Can Advocates With Less Than 7 Years Of Experience Represent The State In Criminal Cases

KEY TAKEAWAYS

• Section 24 of the Code of Criminal Procedure deals with the appointment of Public Prosecutors with not less than 7 years of experience as an Advocate in Court.
• The Madhya Pradesh High Court recently heard a PIL filed by a social worker which deals with the appointment of junior advocates as the panel lawyers for the State.
• The Court has sought a response from the State Government relating to the question of whether Advocates with less than 7 years of experience can represent the State in Criminal cases.
• In another case of Madhya Pradesh High Court, it was held that the appointment of a law officer for State was a purely prerogative matter and the Court couldn’t interfere with it.

INTRODUCTION

This Article deals with the appointment of government law officers under section 24 of the Code of Criminal Procedure and the recent case in the Madhya Pradesh High Court concerning the same. For starters, let’s take a look at what section 24 states.

Section 24 of the Code of Criminal Procedure deals with Public Prosecutors. It states that “For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceedings on behalf of the Central Government or State Government, as the case may be.”

Section 24 (7) specifies that a person will be designated as a public prosecutor under subsections (1), (2), (3), and (6) only if he has practiced as an Advocate for not less than 7 years.

In a 2020 case, the High Court of Madhya Pradesh had held that appointment of a Government Advocate is purely prerogative of the State Government and the Court cannot interfere into the appointment made by the State Government as the appointment of a Government Advocate is purely a professional engagement

So now the question is, can advocates with less than 7 years of experience represent the State in criminal cases? In a recent PIL filed by a social worker before the Madhya Pradesh High Court, the Hon’ble High Court has questioned the State regarding the same.

GYAN PRAKASH VS. GOVERNMENT OF MADHYA PRADESH AND OTHERS

This is the most recent case concerning the Appointment of law officers under Section 24 of the Code of Criminal Procedure.

Facts in Brief

The PIL regarding this matter was filed by Mr. Gyan Prakash, a social worker, who alleged that the Advocate General Office has authorized a large number of junior counsels to represent the State in criminal matters without possessing the minimum statutory eligibility as prescribed under Section 24 of the Code of Criminal Procedure.

Court’s Observations

The Hon’ble High Court of Madhya Pradesh expressed its concerns on the contractual appointment of panel lawyers without the prerequisite of 7 years of experience being fulfilled to represent the State Government in Criminal matters like criminal appeal, suspension of sentences, bail applications, etc. The Bench of Hon’ble Chief Justice Mohammad Rafiq and Justice Vijay Kumar Shukla took exception to lawyers without required experience representing the State and Centre before the Courts in criminal matters contrary to the eligibility criteria given in Section 24 of the CrPC. The Court questioned the Centre and the State whether a panel lawyer may appear before the High Court in criminal matters like appeals, bail applications, criminal revisions, suspension of sentences, MCRCs, etc. without having the experience of 7 years and without consultation of High Court as required u/s 24 (1) of the CrPC?

Amicus Curiae Advocate Aditya Sanghi informed the Court that the public prosecutors may be appointed for a minimum period of 3 years and it should not be dependent merely on the discretion of the political dispensation.

Issues on which the Court sought the State’s Response

The Court directed the Respondent-State to clarify whether one public prosecutor is appointed for each court in all districts of the State or whether multiple courts are assigned to one public prosecutor in criminal matters.

The State was also directed to clarify as to how many posts in the cadre of Addl. District Prosecution Officers, District Prosecution Officers, and Deputy Director are vacant in the State.

Further, the Court questioned whether promotions may not be granted against the unfilled posts of the quota of promotion in the cadre of the District Prosecution Officers and Deputy Director to the extent not affected by order of the Hon’ble Supreme Court, concerning which there is no dispute.

The Court also asked whether the State can refrain from appointing Addl. District Prosecution Officers/District Prosecution Officers on basis of Retainership for fixed duration against unfilled posts of Public Prosecutors.

The Court also directed the Central Government to file a report concerning the compliance of Section 24(1) and Section 24(4) of CrPC; concerning whether the Advocates appearing for agencies like Central Bureau of Investigation, Enforcement Directorate, etc. before High Court and courts subordinate, are appointed in consultation with the High Court or Sessions Judge in terms of Section 24(1) and 24(4) of Cr.P.C. respectively.

So in short, the Hon’ble High Court has sought the State’s response concerning the appointment of advocates with less than 7 years of experience to represent the State in criminal cases.

There’s another judgment concerning a similar issue, passed by the High Court of Madhya Pradesh in the year 2020, VipinKumawatvs the State of MP. Keep reading to know more!

VIPIN KUMAWAT VS. STATE OF MADHYA PRADESH AND ORS

This case doesn’t deal exactly with the appointment of public prosecutors under Article 24 of the Code of Criminal Procedure but it still deals with the appointment for the post of Additional/Deputy Advocate General/Government Advocate/Deputy Government Advocate.

Facts in Brief

In the case at hand, the Petitioner had fulfilled all the eligibility requirements to be appointed as a law officer for the State of Madhya Pradesh. The Application form contained rules and principles for appointment of Additional/Deputy Advocate General/Government Advocate/Deputy Government Advocate, which the Petitioner fulfilled. The Post required 10 years of experience as an Advocate in High Court with 20 cases, with evidence where the candidate has appeared in the last 3 years. Respondents 1 & 2 who were supposed to oversee the appointment of a law officer based on the experience at the High Court issued the order wherein the Petitioner did not find his name despite fulfilling the eligibility criteria. Respondents 3 to 7 were appointed as Law Officers contrary to the rule of eligibility. The Petitioner submitted that the Respondents 3 to 7 were not eligible for the post of Law Officers as they did not have experience of 10 years in the High Court and Respondent 7 did not have 20 cases in the last three years.

Court’s Observations

However, in this case, it was held that Respondents 3 to 7 were eligible for the post of a law officer. It was held that the appointment of a Government Advocate is purely prerogative of the State Government and the Court cannot interfere with the appointment made by the State Government as the appointment of a Government Advocate is purely a professional engagement. It was observed that it’s the client’s discretion as to whom he wants to appoint as his counsel. The Petitioner has no legally enforceable right to claim the appointment on the post of Government Advocate as a matter of right.

So far as the guidelines issued by the State Government regarding the appointment of Law Officer is concerned, they are neither an executive instruction nor statutory rules because they have neither been issued nor under any provision of law under Article 309 of the Constitution of India. The Court observed that no undue favour was shown in the appointment of Law Officers and proper mechanism to assess the performance of the Law Officers was maintained. The Law Officers were appointed considering their period of bar, experience, merit, and ability as an Advocate. Therefore the Court held that there was no case to interfere with the impugned order relating to the appointment of law officers.

CONCLUSION

Law Officers and Advocates representing the State have to be selected and appointed carefully as inexperienced and new advocates might not be able to handle the case efficiently. Moreover, State affairs need efficient and experienced lawyers in its corner who can help boost the justice system. Inexperienced lawyers will not only be of less assistance to the State but to the Court as well.

There needs to be a proper selection process and the eligibility criteria should be strictly followed in order to have efficient and experienced lawyers representing the State especially when the matters concerned are in the interest of the general public at large.