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Pending Criminal Case: Chhattisgarh HC Directs State To Reconsider Its Appointment Of Deputy Advocate General [Read Judgment]

LIVELAW NEWS NETWORK
1 Feb 2020 1:41 PM GMT
Pending Criminal Case: Chhattisgarh HC Directs State To Reconsider Its Appointment Of Deputy Advocate General [Read Judgment]
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The Chhattisgarh High Court has directed the State Government to reconsider its appointment of Rajneesh Singh Baghel as Deputy Advocate General, who is accused in a criminal case.

Uttam Kumar Pandey, a lawyer practicing in High Court had filed a writ petition seeking a writ of quo warranto alleging that Baghel is an 'accused' in a criminal case which is pending from the year 2012 and it is being prosecuted by the State. The writ petition filed by him was dismissed by the Single bench.

Before the Division Bench, the issue raised was whether an accused in a criminal case pending trial and being prosecuted by the State can be identified and appointed by the State as a Deputy Advocate General for conducting the cases of the State. Allowing the appeal, the bench comprising of Justice PR Ramachandran Menon and Justice Parth Prateem Sahu said:

When the State is prosecuting a criminal case against the 3rd Respondent for the offence under Sections 294, 506 and 323, read with Section 34 of the Indian Penal Code, which is pending for nearly 7 years, what will be the fate of the said case, when the said accused is picked up to be appointed as Deputy Advocate General and to represent the State in this Court is a disturbing fact. The apprehension expressed by the Appellant, to get a fair deal, cannot be simply ruled out.

The bench referred to the Apex Court judgment in Brijeshwar Singh Chahal in which it was observed that if there is no legalistic assessment of the requirements of the law officers before making appointments, the inappropriate appointment would make it against the rule of law, against public faith in the fairness in system and will be against public interest and administration of justice, which could be stopped by exercising the power of judicial review. The Court said:

"Even in the absence of any statutory provisions/rules/norms, the law declared by the Apex Court in Brijeshwar Singh Chahal (supra) remains to be the law of the land, by virtue of Article 141 of the Constitution of India. In the said circumstances, the observation made in the 'paragraph 51.6' of the verdict in Brijeshwar Singh Chahal (supra) that other States also would do well to reform their system of selection in the appointment in the above regard, to make it more transparent, fair and objective, if necessary, by amending the relevant rules/regulations on the subject would govern the field. " 

The bench also observed that process and procedure cannot be justified by the State simply saying that 'a person is innocent until found guilty' and that registration of a criminal case is not a bar for a person to practise as an Advocate under Section 24A of the Advocates Act. It added

"The right to practise in terms of Advocates' Act of 1961 originates from the constitutional right guaranteed under Article 19 (1) (g) of the Constitution of India. Coming to the right to be engaged as a State counsel, there is no vested right as made clear by the Apex Court in the judgment discussed above. It has to be by way of selection and not by way of any political interference or other extraneous considerations. 'Eligibility', as made clear by the Apex Court, is different from 'suitability' and all persons found suitable by the Government should be eligible persons. Judicial scrutiny is possible in respect of the question of considering the 'eligibility', though it may not be attracted in respect of the 'suitability' expressed by the State. "

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