DEBANGSU BASAK, J. - (1.) A litigant has a right to choose his lawyer. Would the State when it is a litigant, lose such right? Two writ petitions are being heard together as they involve common questions.
(2.) WRIT Petition No. 21740 (W) of 2012 relates to appointment of Public Prosecutor, Assistant Public Prosecutor, Government Pleader/Advocate in the district of purulia. W.P. No. 1283 (W) of 2011 relates to similar appointments in the district of Birbhum. Re: - Purulia Mr. Priyabrata Ghosh contended, Section 24 of the Criminal Procedure Code was violated in the appointment of Public Prosecutor and like post. He relied on page 35A of the writ petition to contend, the earlier panel was cancelled arbitrarily. Cancellation of the earlier panel without calling for representation, was wrong. Such procedure lacked transparency. On the lack of transparency, Mr. Priyabrata Ghosh relied on All India Reporter 2004 Supreme Court page 3800 (State of U.P. and Ors. v. Johri Mal). He also contended, a proceeding under the Negotiable Instruments Act, 1881 was pending against the Public Prosecutor appointed and in support of such contention he relied on an information sheet obtained on January 4, 2012. He also relied on Regulation 96 of the Legal Remembrancer Manual to submit, a person more than 60 years of age ought not to be appointed as a Government Pleader. On the question of binding precedent he relied on 2011(9) Supreme Court Cases page 286 (Andhra Pradesh Dairy Development Corporation Federation v. B. Narasimha Reddy and Ors.) and All India Reporter 2011 Supreme Court page 3001 (Fida Hussain and Ors. Vs. Moradabad Development Authority and Anr.). The State did not use any affidavit in his petition according to Mr. Priyabrata Ghosh, since there were glaring infirmities records of the case should be called for. Court had power to call for the records. Re: - Birbhum Mr. Pratik Dhar appearing for the petitioner contended, provisions of Criminal Procedure Code as well as the Legal Remembrancer Manual was not followed while preparation of the panel for the district of Birbhum. He relied on Section 24 of the Criminal Procedure Code particularly Section 24 (4) and (6) Explanation (b) and contended, the procedure established therein was not followed in the case of appointment of Public Prosecutor in the case of Birbhum. He also relied on Regulation 96 of the Legal Remembrancer Manual of the Government of West Bengal. According to him, consultation appearing in Regulation 96 of the Legal Remembrancer Manual would mean effective consultation. Referring to the letter dated August 10, 2011 written by the Legal Remembrancer to the District Magistrate, Birbhum and the letter dated August 17, 2011 written by the District Magistrate to the District Judge, Birbhum he contended, the entire procedure established under Section 24 of the Criminal Procedure Code and Regulation 96 of the Legal Remembrancer Manual was followed in breach. He further contended, those three letters would rather indicate a reverse procedure being followed. He relied on 1991(1) Supreme Court Cases page 212 (Kumari Shrilekha Vidyarthi and Ors. v. State of U.P. & Ors.) to contend, if a procedure established by law was not followed the actions would be a nullity. He relied on 2004 (4) Supreme Court Cases page 714 (State of U.P. & Anr. V. Johri Mal) to emphasize the meaning of consultation and that the views of the District Judge would receive primacy in the appointment preparation of the panel.
(3.) MR . Shyamal Sanyal appeared for the State in the Birbhum petition. State filed an affidavit in the Birbhum petition. The State contended, due procedure established by law was followed in the appointments.;