The Jammu and Kashmir (J&K) High Court has sought the response of the Central government and the Union Territory (UT) of Jammu & Kashmir in a public interest litigation (PIL) petition challenging a Government Order establishing a separate prosecution wing known as “J&K Prosecution Service” after the abrogation of Article 370 of the Constitution (Amit Pathania and another v. Union of India).
The separate prosecution wing was created pursuant to the decision of Supreme Court in the case SB Shahane and others v. State of Maharashtra, [AIR 1995 SC 1628].
By this step, the prosecution powers were taken away from the Jammu and Kashmir Police and a separate prosecution wing was set up for the UT.
The Bench comprising Chief Justice Pankaj Mithal and Justice Dhiraj Singh Thakur deemed it fit to call for a reply from the respondents and allowed Additional Advocate General’s prayer for a month’s time to file response to the petition. The case will be taken up next on March 15, 2021.
“We deem it proper to call for a reply from the respondents,” the Court said.
The petitioner, Amit Pathania, has questioned the Government Orders of October 30 and 31, 2019 and a notification of October 31, 2019 with regard to the qualification criteria prescribed for appointment of Public Prosecutors (PPs/Additional Public Prosecutors (APPs)/ Assistant Public Prosecutors in the Union Territory of Jammu and Kashmir.
The contention of the petitioner was that the “J&K Prosecution Service” created by the notification 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 the Code of Criminal Procedure.
Section 24(7) mandates 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.
It was the argument of the petitioner that the J&K Prosecution Service Recruitment Rules, 2020 in Schedule II provide for appointment of prosecuting officers by direct recruitment from amongst the persons possessing a LL.B degree. The said rule, thus, completely ignores seven years of practice as stipulated under Section 24 (7) of the CrPC, it was contended.
Additional Advocate General, Raman Sharma, appearing for the respondents, drew the attention of the Court to Section 24(9) of CrPC to contend 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 LL.B degree would be covered and eligible for appointment.
Notably, the respondents notified the Jammu and Kashmir Prosecution Recruitment Rules 2020 during the pendency of the petition.