Babie Shirin And Others vs State Of Manipur And Others

MV Muralidaran, J

[1] Heard Mr. H. Kenajit, learned counsel appears for the petitioner and Mr. Y. Ashang, learned Government Advocate appears for the respondents. This writ petition is disposed at the admission stage itself.

[2] This writ petition has been filed by the petitioner seeking a quo warranto to set aside the order dated 28.12.2018 passed by the second respondent whereby appointing the third respondent to conduct the prosecution case in Cril (C) Case No. 1 of 2018 on the file of the learned Sessions Judge, Imphal West.

[3]. Succinctly put, the facts of the case run thus: During October, 2018, the Hon'ble Chief Minister, through the Public Prosecutor has filed Cril (C) Case No. 1 of 2018 against the petitioners under Sections 500, 501, 502, 505(II), 120 and 34 IPC. On 03.1.2018, the Public Prosecutor (District) has filed Cril (Misc) Case under Section 302 Cr.P.C. to allow the third respondent to prosecute the case and the said application was allowed by the learned Sessions Judge, Imphal West.

[4]. The case of the petitioners is that the impugned appointment order dated 28.12.2018 appointing the third respondent is not a speaking and reasoned order explaining the circumstances under which such appointment was necessary to be made and it also does not explain how the fees of the privately engaged advocate is to be paid. Further, the third respondent has been appointed at the whims of the authority without following due process of law.

[5]. Further case of the petitioners is that the appointment of the third respondent to prosecute the case has caused loss to the public exchequer, as in the State of Manipur there exist a regular cadre of Public Prosecutor or an Additional Public Prosecutors whose fees/salaries are paid from the public exchequer. Moreover, the second respondent has not given any reason to appoint an independently practising advocate when the Office of the Public Prosecutor with regular cadre of Public Prosecutors or Additional Public Prosecutors available.

[6]. Since the appointment of the third respondent to prosecute the case against the petitioners has robbed the petitioners of their right to fair, independent and unbiased trial and every action taken by the Sate must not only be fair but it should also seem to have been fair, the petitioners have filed the present petition in the form of quo warranto to set aside the appointment of the third respondent.

[7]. Assailing the order dated 28.12.2018 appointing the third respondent to conduct the prosecution case in Cril (C) Case No. 1 of 2018 on the file of the learned Sessions Judge, Imphal West, the learned counsel for the petitioners submitted that the order for appointing the third respondent to prosecute the criminal case is arbitrary and mala fide. He would submit that there is no policy decision or guideline of the State for appointment of Special Public Prosecutor.

[8]. The learned counsel further submitted that no reasons have been recorded by the second respondent while making the appointment of the third respondent and that there is nothing on record to show whether the said authority has applied his mind while making the appointment. Stating that the appointment has been made in such a manner that the Advocate will only be a puppet in the hands of the appointing authority and that the duty to act fairly on the part of the Public Prosecutor which is a part of fair procedure envisaged under Articles 14 and 21 of the Constitution of India is violated, the learned counsel for the petitioners prayed for setting aside the appointment of the third respondent.

[9]. Per contra, the learned Government Advocate who appeared on behalf of the Respondent Nos. 1 & 2 on instruction submitted that in view of the decision of the Government of Manipur, the third respondent has been engaged to conduct the prosecution case in Cril (C) Case No. 1 of 2018 and accordingly, filed petition under Section 302 Cr.P.C. before the learned Sessions Judge, Imphal West. He would submit that the learned Sessions Judge, Imphal West, after considering the rival submissions, has rightly allowed the petition and permitted the third respondent to conduct the prosecution case.

[10]. The learned Government Advocate further submitted that if the petitioners have any grievance over the order of the learned Sessions Judge, Imphal West, they ought to have file appeal against the said order and the present petition for quo warranto is not maintainable.

[11]. I have considered the submissions made by both sides and also perused the materials available on record.

[12]. The petitioners, who are facing trail in Criminal (C) Case No. 1 of 2018 filed under Section 500, 501, 502, 505(II), 120-B and 34 of IPC on the file of the learned Sessions Judge, Imphal West, have filed the present writ petition seeking quo warranto to set aside the appointment of the third respondent to prosecute the said case.

[13]. Before the learned Sessions Judge, the Public Prosecutor (District), Government of Manipur, having its Office at Uripok Cheirap Court Complex, has sought permission of the Court to conduct Criminal (C) Case No. 1 of 2018 by the third respondent Shri Rarry Mangsatabam, Advocate by way of application under Section 302 Cr.P.C. After hearing both sides, the learned Sessions Judge, Imphal West, vide order dated 03.01.2019, granted permission to conduct the case by the third respondent herein on behalf of the Public Prosecutor (District). In fact, the petitioners have not challenged the said order by way of appeal or revision, as the case may. On the other hand, after a lapse of nine months, they have come up with the present petition challenging the appointment of the third respondent by way of quo warranto.

[14]. It is settled that a writ of quo warranto is a writ which lies against the person, who according to the relator is not entitled to hold an office of public nature and is only a usurper of the office. It is the person, against whom the writ of quo warranto is directed, who is required to show, by what authority he is entitled to hold the office. The challenge can be made on various grounds, including the grounds that the possessor of the office does not fulfil the required qualifications or suffers from any disqualification, which debars him to hold such office.

[15] Before considering the merits of the contentions, let us briefly refer to the nature of writ of quo warranto. Writ of quo warranto cannot be issued, unless there is clear violation of law. Writ of quo warranto can only be issued when the appointment is contrary to the statutory rules.

[16] In University of Mysore v. C.D.Govinda Rao, reported in AIR 1965 SC 491, the Hon'ble Supreme Court held as under:-

"6. .... As Halbury has observed:

"An information in the nature of a quo warranto took the place of the obsolate writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined."

Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons, not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not."

[17] The law is well settled in respect of quo warranto. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine as to whether a case has been out for issuance of a writ of quo warranto.

[18] In B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association, reported in (2006) 11 SCC 731, the Hon'ble Supreme Court considered the jurisdiction of the High Court to issue a writ of quo warranto is a limited one which can only be issued when the appointment is contrary to the statutory rules.

[19]. In N. Kannadasan v. Ajoy Khose, reported in (2OO9) 7 SCC 1, the Hon'ble Supreme Court held as under:

"131. Concededly, judicial review for the purpose of issuance of writ of quo warranto in a case of this nature would lie:

(A) in the event the holder of a public office was not eligible for appointment;

(B) processual machinery relating to consultation was not fully complied.

The writ of quo warranto proceedings affords a judicial remedy by which any person who holds an independent substantive public office is catted upon to show by what right he holds the same so that his title to it may be duly determined and in the event it is found that the holder has no title he would be directed to be removed from the said office by a judicial order. The proceedings not only give a weapon to control the executive from making appointments to pubtic office against law but also tend to protect the pubtic from being deprived of public office to which it has a right. It is indisputably a high prerogative writ which was reserved for the use of the Crown. The width and ambit of the writ, however, in the course of practice, have widened and it is permissible to pray for issuance of a writ in the nature of quo warranto.

In Corpus Juris Secundum [74 C.J.S. Quo Warranto 14], "Quo Warranto" is defined as under:

"Quo warranto, or a proceeding in the nature thereof, is a proper and appropriate remedy to test the right or title to an office, and to remove or oust an incumbent.

It is prosecuted by the State against a person who unlawfully usurps, intrudes, or holds a public office. The relator must establish that the office is being unlawfully held and exercised by the respondent, and that relator is entitled to the office."

In Law Lexicon by J.J.S. Wharton, Esq., 1987, "Quo Warranto" has been defined as under:

"QUO WARRANTO, a writ issuable out of the Queen's Bench, in the nature of a writ of right, for the Crown, against him who claims or usurps any office, franchise, or liberty, to enquire by what authority he supports his claim, in order to determine the right. It lies also in case of non-user, or long neglect of a franchise, or misuser or abuse of it; being a writ commanding the defendant to show by what warrant he exercises such a franchise having never had any grant of it, or having forfeited it by neglect or abuse."

Indisputably, a writ of quo warranto can be issued inter alia when the appointment is contrary to the statutory rules as has been held by this Court in High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat and R.K. Jain v. Union of India. (See also Mor Modern Coop. Transport Society Ltd. v. Govt. of Haryana.) In Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra, this Court has stated that it is not for the court to embark upon an investigation of its own to ascertain the qualifications of the person concerned. (See also Arun Singh v. State of Bihar.) We may furthermore notice that while examining if a person holds a public office under valid authority or not, the court is not concerned with technical grounds of delay or motive behind the challenge, since it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality. [See Kashinath G. Jalmi (Dr.) v. Speaker.]

Issuance of a writ of quo warranto is a discretionary remedy. Authority of a person to hold a high public office can be questioned inter alia in the event an appointment is violative of any statutory provisions. There concededly exists a distinction in regard to issuance of a writ of quo warranto and issuance of a writ of certiorari. The scope and ambit of these two writs are different and distinct. Whereas a writ of quo warranto can be issued on a limited ground, the considerations for issuance of a writ of certiorari are wholly different."

[20]. In High court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, reported in (2003) 4 SCC 712, the Hon'ble Supreme Court held:

"22. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari. (See R.K.Jain v. union of India, (1993) 3 SCC 119, para 74).

[21]. The question to be considered in this petition is whether the appointment of third respondent is contrary to the statutory rules. A writ of quo warranto does not lie, if the alleged violation is not statutory in nature.

[22]. In the present case, the appointment of third respondent to conduct prosecution in Criminal (C) Case No.1 of 2018 has been issued by the State of Manipur on 28.12.2018 and the appointment order is re-produced hereunder:

GOVERNMENT OF MANIPUR

SECRETARIAT: LAW & LEGISLATIVE AFFAIRS

DEPARTMENT

ORDERS

Imphal, December 28, 2018

No.5/104/2018-Case/L: The Governor of Manipur is pleased to engage Shri Rarry Mangsatabam, Advocate to conduct prosecution in Cril Complaint Case No.l of 2018 (the Addl. Public Prosecutor (District), Manipur - vs- Ms.Babie Shirin & 2 others) on behalf of the complainant in the Court of Sessions Judge, Imphal West.

The Public Prosecutor (District) in coordination with Shri Rarry Mangsatabam, Advocate are to file a petition under Section 302 of the Code of Criminal Procedure, 1973 before the Sessions Judge, Imphal West for permission to conduct the prosecution in the above case.

By order and in the name of Governor.

sd/

(Nungsitombi Athokpam )

Secretary (Law)

Governor of Manipur

[23]. Pursuant to the order impugned, the Public Prosecutor (District) has filed a petition under Section 302 Cr.P.C. before the learned Sessions Judge, Imphal West, seeking permission to allow the third respondent herein to prosecute the Criminal Complaint Case No. 1 of 2018 on behalf of the complainant stating that it is imperative to conduct the prosecution by engaging a pleader, namely the third respondent, to meet the ends of justice and to ensure effective speedy trial.

[24]. Though the petitioners contended that the appointment of the third respondent to prosecute the case against them is without assigning any reason and that the authorities have grossly misused their power and also had totally undermined the office of the Public Prosecutor, nothing has been produced to prove the same by the petitioners.

[25]. A written complaint has been fired by the complainant [Public prosecutor (District)] as provided under section 199(2) Cr.P.C. against the petitioners and the said complaint was lodged after the sanction accorded by the Department of Home vide order dated 27.10.2018 in No.2/B(1)/2018-H. Further, the complaint has been filed by the Hon'ble Chief Minister Sarva Shri Nongthombam Biren singh aggrieved by the criminal acts of defamation committed by the petitioners jointly and severally against the Hon'ble Chief Minister in relation to the discharge of his public functions as chief Minister, Manipur.

[26]. The allegation in the complaint is dated 25.10.2018. The first petitioner as author; second petitioner as publisher and the third petitioner as editor of the locat daily viz., Imphal Free Press English Edition, published defamatory article under the front cover top column. The relevant portion of the defamatory article which culminated in filing the defamation case reads thus:

"Celebrations for the State Chief Minister, N.Biren Singh on being conferred the 3rd best CM in the country has been a bit premature. The popularity level of Biren Singh has gone down in the graph as the India Today popularity assessment programme continue across the country with Chief Ministers of more States being added in."

[27]. Stating that the article published by the petitioners in the aforesaid daily clearly exposed the Hon'ble Chief Minister to contempt, ridicule, loss of reputation and goodwill, after according sanction by the Department of Home, a defamation case (Criminal Complaint Case No.1 of 2018) was filed through the Public Prosecutor before the learned Sessions Judge, Imphal West. Whether the article published by the petitioners really caused the loss of reputation and goodwill of the Hon'ble Chief Minister is to be considered by the concerned Court only after full fledged trial.

[28]. This Court finds no mala fide intention of the State in appointing the third respondent to conduct the prosecution in Criminal Complaint case No.1 of 2018. However, the state Government has taken a decision and has issued the impugned order dated 28.12.2018 appointing the third respondent to conduct the prosecution. It is not the case of the petitioners that the third respondent is not suitable for conduction of the said criminal case. On the other hand, it is the say of the petitioners that the appointment of the third respondent to prosecute the case has caused loss to the public exchequer and the state has not given any reason to appoint an independent practising Advocate when large Public Prosecutor and Additional Public Prosecutors are there.

[29]. Law does not prohibit appointment of an independent practising Advocate like the third respondent in conducting the prosecution case. The appointment of the third respondent to prosecute the case against the petitioners, in no way affects the petitioners right to fair, independent and unbiased trial. It is the bounden duty of the prosecution to prove the guilt of the accused in criminal cases. Similarly, it is the duty of the accused in the criminal case to prove his innocence.

[30]. When defamation alleged to have been caused against the Hon'ble Chief Minister, who is a public servant and discharging his duties to the public at large, the contention of the petitioners that appointment of the third respondent to prosecute the defamation case has caused loss to the public exchequer is unsustainable. The petitioners have not made out a case that the appointment of the third respondent was in contravention of the statutory provisions so as to issue a writ of quo warranto.

[31]. Coming to the direction of the State Government to the Public Prosecutor (District) in coordination with the third respondent to file a petition under Section 302 Cr.P.C. before the learned Sessions Court, Imphal West for permission to conduct the prosecution case in Criminal Complaint Case No.1 of 2018 is concerned, pursuant to the order dated 28.12.2018, the Public Prosecutor (District) has filed application under Section 302 Cr.P.C. before the learned Sessions Judge, Imphal West and by an order dated 03.1.2019, the learned Sessions Judge, Imphal West, allowed the said petition. The order of the learned Sessions Judge, Imphal West, dated 03.1 .2019, reads thus:

"Accused are present with their conducting Counsel.

The complainant has filed an application u/s 302 Cr.P.C. for permission to conduct this case on his behalf by Shri Rarry Mangsatabam, Advocate.

Allowed.

P.W - 1 is examined and discharged.

Fix 11.01.2019 for P.W. hearing."

[32]. Section 301 Cr.P.C. provides that Public prosecutor or Assistant Public Prosecutor in charge of a case may appear without any written authority before any court in which that particular case is under inquiry, trial or appeal. Sub-section 2 provides that if any private person instruct a pleader to prosecute any person in any court, the public Persecutor in charge of the case shall conduct the prosecution and pleader so instructed shall act therein under the direction of public Prosecutor and may with the permission of the court submit written arguments after the evidence is closed in the case.

[33]. Section 302 of the Cr.P.C. reads as under:

"Permission to conduct prosecution.- (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:

Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.

(2) Any person conducting the prosecution may do so personally or by a pleader".

[34]. On reading of Section 302 of Cr.P.C., it is clear that the Magistrate can give permission to conduct prosecution to any person if the application is made by a party. This Court does not find any other rider in the said Section except seeking permission of the Magistrate.

[35]. In Dhariwal Industries Limited v. Kishore wadhwani and others, reported in (2016) 10 SCC 378, the Hon'ble Supreme Court has discussed distinction between sections 301 and 302 of Cr.P.C. In the said case, the Hon'ble supreme court has incorporated the ratio laid down in the case of Shiv Kumar v. Hukam Chand & another, which is as under :

"It must be noted that the latter provision is intended only for Magistrate courts. It enables the Magistrate to permit any person to conduct the prosecution. The only rider is that Magistrate cannot give such permission to a police officer below the rank of Inspector. Such person need not necessarily be a Public Prosecutor".

[36]. On the same line, the Hon'ble Supreme Court in the case of Dhariwal Industries Limited (supra) has held under:

"17. We have already explained the distinction between Sections 301 and 302 Cr.P.C. The role of the informant or the private party is limited during the prosecution of a case in a Court of Session. The counsel engaged by him is required to act under the directions of public prosecutor. As far as Section 302 Cr.P.C is concerned, Power is conferred to grant Permission to the complainant to conduct the Prosecution independently".

[37]. ln the case on hand, the defamation case is triable by Sessions Judge and accordingly, the Criminal Complaint Case No. 1 of 2018 is pending before learned Sessions Court, Imphal West, where the Public Prosecutor (District) has filed petition Under Section 302 Cr.P.C. seeking permission of the Court to Conduct prosecution by the third respondent. As stated supra, in the impugned order itself, the Government directed the Public Prosecutor (District) to file petition under Section 302 Cr.P.C. in Consultation with the third respondent. Therefore, we find no Mala fide intention of the State in appointing the third respondent to conduct prosecution in Cril (C) No.1 of 2018. Moreover, after examining the matter, the learned Sessions Judge granted permission to the third respondent.

[38]. It is the say of the petitioners that while granting permission the learned Sessions Judge, Imphal West, has not assigned any reason for allowing the petition filed under Section 302 Cr.P.C. This Court is of the view that the said plea cannot be raised as a ground in the present petition to test the appointment of the third respondent. In fact, the learned sessions Judge, Imphal west, after examining P.W.1 and upon hearing the petitioners, passed the order dated 03.1.2019. Thus, it is clear that after satisfying and upon considering the impugned appointment order, the learned sessions Judge, Imphal west, permitted the third respondent to conduct the prosecution case. As against the said order, admittedly, the petitioners have not filed any appeal.

[39]. It is pertinent to note that the order of the learned sessions Judge, Imphal west is dated 03.1.2019 and as stated supra, against the said order, the petitioners have not filed any appeal and/or revision before the higher Court. On the other hand, after a lapse of nearly nine months, the petitioners have filed the present writ petition seeking quo warranto. The said approach adopted by the petitioners is only to drag on the criminal case lodged against them. If really, the petitioners have grievance over the appointment of the third respondent to conduct the prosecution case, they would have filed appeal against the permission granted by the Court. Having waited for about nine months and upon entering the third respondent in the conduction of the criminal case in question, the petitioners have filed the present writ petition, which cannot be entertained in the eye of law.

[40]. This Court is convinced, on the facts of the present case, that the appointment of the third respondent made by the State to conduct the prosecution in Crime Complaint Case No. 1 of 2018 on the file of the learned sessions Judge, Imphal west, is to ensure fair trial. The existing Public Prosecutor (District) shall give full assistance to the third respondent in conducting fair trial in the above Criminal Complaint Case.

[41]. As stated Supra, no mala fide and bias has been attributed against the third respondent. Further, the appointment of the third respondent has been made as per law and without challenging the order of the learned Sessions Judge, Imphal West, the petitioner cannot maintain the present writ petition under the garb of "writ of quo warranto". Having failed in the first attempt before the learned Sessions Court, Imphal West, the petitioners have no right to challenge the appointment of the third respondent by way of quo warranto in the second round, which cannot be entertained by this Court invoking Article 226 of the Constitution of India. The writ petition filed by the petitioners is misconceived and against the settled law and therefore, the same liable to be dismissed.

[42]. Accordingly, the writ petition is dismissed. No costs.