Observing that criminal courts cannot be rendered non-functional because of administrative confusion within the Prosecution Department, the Court warned that failure to provide a prosecutor on the next date of hearing would invite contempt proceedings against the senior prosecution officers for impeding judicial proceedings.

Special Judge (NDPS Cases) Parvez Iqbal , Jammu, passed the directions while hearing a prosecution under the NDPS Act arising out of FIR No. 05/2023 registered at Police Station ANTF, Jammu. The Court noted that despite the presence of the accused, defence counsel and a prosecution witness who had travelled from Srinagar to depose, the trial could not proceed because no prosecutor was available to conduct the case.

Earlier today when the matter was taken up, the Court found that PW-10, ASI Gurdeep Singh, had appeared from Srinagar to record his testimony. The accused, who had been in custody since 23 June 2023, were also produced virtually from District Jail, Amphalla. However, the Special Public Prosecutor was absent and no substitute had been deputed by the Department of Prosecution.

The Court recorded that a police official attached to the prosecution informed it that the Special Public Prosecutor, Mr. Sunil Sharma, had proceeded on four days' leave, but the department had made no alternative arrangement. The explanation offered was that the Director General (Prosecution) had allegedly been divested by the Home Department of the power to assign charge to another prosecutor even during the leave period.

During the hearing, the Deputy Director Prosecution (DDP), Jammu, appeared and produced a communication dated 22 July 2026 issued by the Home Department along with a subsequent order of the Director General (Prosecution). After examining both documents, the Court observed that the communication of the Home Department had been interpreted incorrectly by the office of the Director General (Prosecution).

The Court observed that a plain reading of the Home Department's communication did not curtail the authority of the Director General (Prosecution) to make temporary arrangements during the leave period of prosecutors. It observed,

"Bare perusal of both the letters would reveal that DG (Prosecution)'s office has given out-of-context interpretation to the communication of Home Deptt. which in no manner curtails the power of the office of DG (Prosecution) to make temporary arrangement during leave period. It appears to be a knee-jerk reaction to the communication from Home Department."

Expressing serious concern over the paralysis of court proceedings, the Special Judge remarked that the Court was not interested in the internal reasons behind the administrative failure but found the situation wholly unacceptable. The Court observed,

"It is totally unacceptable that this Court where in every case, one of the party is State/UT which is supposed to be represented by Prosecutor as per BNSS, is left high and dry, virtually non-functional merely because one of the Public Prosecutor has proceeded on leave and Department of Prosecution is confused about their authority to make alternate arrangement for leave period."

The Court further noted that the absence of a prosecutor had a direct bearing on the liberty of accused persons as well as the rights of litigants awaiting urgent relief.

Emphasising the consequences of the administrative lapse, the Court observed,

"Needless to mention that there are people who are incarcerated in Jail waiting desperately for proceedings in their trial. There are others who are before the Court to seek immediate relief on account of certain exigencies."

The Court also pointed out that 12 prosecution witnesses had appeared before the Court but would return without their evidence being recorded solely because of the absence of a prosecutor. It observed,

"There are 12 PWs present in the Court today who will ironically go unexamined because of unavailability of the Prosecutor."

While dealing with the controversy regarding the Home Department's communication, the Court expressed the view that the communication pertained only to "Transfer, Posting & Appointment" of prosecutors and did not prevent temporary arrangements for short leave periods.

The Court observed that if approval from the Home Department was indeed considered necessary, the concerned authorities ought to have obtained such approval before sanctioning leave to the Special Public Prosecutor.

Taking note of the disruption caused to the functioning of the Court, the Special Judge directed the Director General (Prosecution) and the Director (Prosecution), who had sanctioned the leave of the Special Public Prosecutor, to ensure that an alternate prosecutor is made available for the remaining leave period. The Court directed,

"DG (Prosecution) and Director (Prosecution) who have sanctioned leave to Mr. Sunil Sharma are directed to ensure that an alternate arrangement is made for the leave period and a Prosecutor is made available in the Court tomorrow to conduct prosecution, failing which contempt of Court proceedings shall be undertaken against them for impeding the Court proceedings and thwarting the daily working of this Court by their acts of omission and commission."

The Court also directed that a copy of the order be forwarded to the Director General (Prosecution), Director Prosecution and DDP Jammu through special messenger and e-mail for immediate compliance. The matter has been listed for 7 August 2026.

Case Title: UT of J&K v. S.K. Shafi & Anr.

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