No PP, ADA, DA to be transferred on DO notes: HP HC takes serious view
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Shimla, July 6
In an a landmark order, the division bench of justice Tarlok Singh Chauhan and justice Chander Bhushan Barowalia directed that henseforth no Public Prosecutor, Assistant District attorney and District attorney shall be transferred on the basis of the DO notes and their transfers shall be effected strictly in accordance with the Comprehensive guidelines, 2013. The double bench, passed these orders while cancelling the transfers being done of two Additional District Attorneys on the ground of hobnobbing by the politicians.
The matter came forth before the bench as one of the petitioner challenged the transfer of another fellow Additional District Atorrney (ADA) alleging that the latter was transferred on the DO notes of BJP MLA Arun Kumar from Dalhousie to Dharamshala.
Rebutting over the petition Sikha Rana, ADA of Dharmshala blamed Tarsem Kumar that petitioner was himself transferred from Nurpur to Kangra as ADA office on the DO given by the Forest and Youth and Sport Minister of Himachal Pradesh Rakesh Pathania, in condonation of short stay against one Bhupinder Chand. The respondent Sikha exposing the DO note issuing Minister made a astounding revelation before the court that minister was booked under FIR of dated 26/04/2013 u / s 452 , 147 , 149 , 353 , 332 , 506 IPC & 3 Prevention of Damage to Public Property Act in case titled as ” State vs. Rakesh Pathania & others “, pending adjudication before the Ld. Court of JMFC , Nurpur. The petitioner being incharge of the prosecution case at that time, procured the DO note from Rakesh Pathania, who himself was undergoing trial in the said court and managed his transfer at his choice of station with his Wife ( Shveta ). The respondent alleged that petitioner and DO issuing Minister did not come in the court with clean hands.
The court passing 47 paged order said that (how) some of the Public Prosecutors have over a period of time shamelessly started hobnobbing with some of the politicians to procure and secure orders of transfer of their convenience is best illustrated in the instant case.
Both the petitioner as also the private respondent are Public Prosecutors and have at different times procured D.O(Demi- Officio) notes from the local M.L.A. for securing their transfers.
Interestingly the petitioner Tarsem Kumar not only impleated the respondent Sikha Rana party but also made ,Arun Kumar who is a local M.L.A also belonged to BJP as respondent no-3 as party for issuing a Demi – Official ( D.O. ) Note No. on 15.03.2022 for transfer of the petitioner at the behest of respondent No.2 . Sikha Rana as ADA DC office Kangra.
MLA Arun Kumar maintained in the court that being elected public representative of Nagrota Constituency he submitted DO notes not on the beheast of respondent Sikha but her husband who is working in Dr. RPGMC Tanda as Cardiologist , which falls in Nagrota Bagwan constituency and being public representative of the said Constituency . BJP MLA maintained that he often requires help from the husband of respondent No.2 for the emergent treatment and consultation of his constituents. He said that Respondent No.2 and her Husband are not his constituents so there is no political mileage in helping Respondent No.2 but only to serve the poor people of my constituency . He justified issuing the DO note in favor of Respondent No.2 so that husband of Respondent No.2 could serve the patients in a healthy atmosphere. That in the Month of March respondent no-3 visited Tanda Medical College to know the requirements of all departments and their needs as well as grievances. MLA replied in the court that he fully aware that wife of doctor having a child who is 2 years old and knowing the medical history of Respondent No.2 and respondent said that he issued DO on humanitarian grounds and in the capacity of public representative recommended the D O Note for transfer.
Court said in its order that role of the Public Prosecutor is intrinsically dedicated to conduct a fair trial and, therefore, it does not behave well that these attorneys be seen hobnobbing with the politicians or socializing with the public.
The conduct and behavior expected of them is nothing short of that expected of a Judicial Officer. The object and purpose especially of criminal prosecution where the role of the prosecutor assumes a greater importance is to bring home the guilt of the accused and to ensure that he is adequately punished. The working of the prosecutors has to be free from any executive or political interference. The concept of independence of Prosecutors being a wider concept indicates an independent functioning of every Prosecutor free of fear, interference and breaches. Therefore, the conduct of every Prosecutor should be the above reproach. He should be conscientious, studious, thorough, courteous, patient, punctual, just, impartial, sans political or partisan influences. He should deal with his appointment as a public trust and should not allow other affairs or private interests to be interfered with his official duties, nor, he should administer the office for the purpose of advancing his personal ambitions or increasing his popularity. If he compromises with his office, its rippling effects would be both disastrous as well as deleterious. It has specifically come on record that a criminal case is pending against one of the M.L.A.s, who issued a D.O. Note in favor of 2nd respondent in that very Court where 2nd respondent has been posted. We really wonder whether with these falling standards could the public repose any trust or confidence on the Prosecutor as being fair and impartial as against the standards as are expected of a Public Prosecutor. We leave it as that, stated the bench.
Reverting back to the facts , since both the petitioner as also the private respondent are beneficiaries of the D.O. Notes , they are directed to be posted out of district Kangra.
Since , the working of the Public Prosecutor is intrinsically connected with the Court and is not a part of the investigating agency and is rather an independent statutory authority , we direct that henceforth no Public Prosecutor , Assistant District Attorney and District Attorney shall be transferred on the basis of the D.O. Notes and their transfers shall be effected strictly in accordance with the Comprehensive Guidelines, 2013, for regulating the 56 transfers of the employees, that too, only by the administrative authority. With the aforesaid observations , the instant petition is disposed of , leaving the parties to bear their own costs . ”Since , both the petitioner as well as private respondent have feigned ignorance regarding the working and ethics of the Department and the conduct as is expected of them and as their conduct otherwise is not befitting to that of a Public Prosecutor , we gather and impression that probably such Public Prosecutors, who are now being inducted in service, are not at all aware of the ( status they hold and the conduct and behavior that is expected of them by virtue of their office alone. Therefore , let all the Public Prosecutors inducted, in service over the last 15 years, irrespective of their ranks as A.P.P. or P.P., undergo a refresher course designed , laying special emphasis on ethics, morality and conduct expected of a Public Prosecutor in the Himachal Pradesh Judicial Academy, Shimla. Such courses be designed by the Director , Himachal Pradesh Judicial Academy , within period of four weeks and thereafter the Assistant Public Prosecutors or Public Prosecutors be provided training or refresher courses on batchwise basis stretched over a period of two months. The court sent copy of this order to Additional Chief Secretary (Home), to the Government of Himachal Pradesh .
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