Jammu & Kashmir High Court Seeks Government's Response In Plea Against Separate Prosecution Wing For J&K

A Division Bench compromising of Chief Justice Pankaj Mithal and Justice Dhiraj Singh Thakur has asked the Government to file its reply in the matter, within a month.

The development comes in a PIL filed by Amit Pathania against Government Order dated September 30, 2019.

The order issued after abrogation of Article 370, sought to create a separate prosecution Wing for the newly formed Union Territory. It proposed the establishment of the 'J&K Prosecution Service' in terms of the Supreme Court's directions in SB Shahane & Ors. v. State of Maharashtra (AIR 1995 SC 1628).

As per the Petitioner, the aforesaid service so created by the notification consists of members of J&K Police (Gazetted) service (Prosecution wing) and Prosecuting officers (Non-Gazetted) as its members.

He contended that these persons are not eligible for appointment as Prosecutors in view of Section 24(7) of CrPC which provides that a person is eligible for appointment as Public Prosecutor /Additional Public Prosecutor only if he has been in practice as an Advocate for not less than seven years.

He submitted,

"J&K Prosecution Service Recruitment Rules, 2020 in Schedule II provide for appointment of Prosecuting Officers by direct recruitment from amongst the persons possessing Bachelor of Law (LLB) Degree of a University established by Law. The said Rule completely ignores seven years of practice as stipulated under sub-rule 7 of Section 24 of the Cr.P.C. and as is in conflict with the Code."

Taking these submissions into account, the Court said,

"We deem it proper to call for a reply from the respondents…Additional Advocate General appearing for respondent nos. 2to 4 prays for and is allowed a month's further time and no more to file response to the writ petition."

During the hearing, the Government drew the Court's attention to Section 24(9) of CrPC and submitted that in view of the aforesaid deeming clause, a person who had been in service as Public Prosecutor or Additional Public Prosecutor or Assistant Public Prosecutor shall be deemed to be in practice as an Advocate and, therefore, the Police Officers who were working as Prosecuting Officers with a Degree of Law would be covered and eligible for appointment.

The matter is now listed for hearing on March 15, 2021.

Case Title: Amit Pathania & Anr. v. Union Of India & Ors.

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