HC seeks Govt response on plea challenging separate prosecution wing

GK File Photo of J&K High Court

The High Court has sought response of Union of India and Jammu and Kashmir Government on a Public Interest Litigation challenging setting up of a separate prosecution wing in J&K.

While hearing parties through their counsel at Jammu wing of the HC, a division bench of Chief Justice Pankaj Mithal and Justice Dhiraj Singh Thakur said: “We deem it proper to call for a reply from the respondents.”

The PIL filed by one Amit Pathania throws challenge to a Government Order dated 30.10.2019 where under a separate prosecution wing known as ‘J&K Prosecution Service’ has been created pursuant to the directions of Supreme Court in the case S B Shahane and others vs state of Maharashtra.

The plea also challenges the notification dated 31.10. 2019 with regard to the qualification criteria prescribed for appointment of Public Prosecutors (PPs), Additional Public Prosecutors (APPs) and Assistant Public Prosecutors in J&K.

Counsel for the petitioner contended that the ‘J&K Prosecution Service’ consists of members of J&K Police (Gazetted) service (Prosecution wing) and Prosecuting officers (Non-Gazetted) as its members and these persons are not eligible for appointment as Prosecutors in view of Section 24(7) of Code of Criminal Procedure ( CrPC). The CrPC, they say, clearly 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.

On behalf of Jammu and Kashmir government, AAG Raman Sharma while drawing attention of the court to sub section 9 of Section 24 contended that in view of the said deeming clause a person who had been in service as Public Prosecutor or Additional Public Prosecutor or Assistant Public Prosecutor would 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”, he told the court.

Counsel for the petitioners however submitted that 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 CrPC and as is in conflict with the Code,” they said.

After he requested for one month’s time for filing response, the court granted AAG Sharma the same and listed the petition for consideration on 15 March.