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Qualifications and Appointment of the Government Pleaders and Public Prosecutors;

11. Eligibility of appointment; (1) A person to be appointed as a Government Pleader or Public Prosecutor shall be one-

(a) who is a citizen of India;

(b) who has obtained a degree in Law from any statutory University and has been enrolled as an advocate;

(c) who is not more than fifty-five years of age on the date of appointment;

(d) who has been in practice as an advocate,-

(i) in the case of Government Pleader or Additional Government Pleader in the High Court, for not less than ten years;

(ii) in the case of any other Government Pleader or additional Assistant Government Pleader, Public Prosecutor or Additional Public Prosecutor, for not less than seven years;

(iii) in the case of Subordinate Government Pleader at taluka headquarters, for

      not less than three years; and

(iv) in the case of an Honorary Assistant to the Government Pleader in the High

     Court or District Government Pleader in the mofussil court, for not less than

     three years.

(2) Notwithstanding anything contained in the foregoing provisions, if in the opinion

     of Government in the Law and Judiciary Department a person is,-

       (i) a distinguished jurist, he shall be eligible for being appointed as an Assistant Government Pleader on the Original and Appellate Side of the High Court at Bombay, irrespective of the fact whether such a person is or is not practising as an advocate, or if he is or was practising as an advocate, whether he has or has not completed the period of practice prescribed in sub-clause (ii) of clause (d) of sub-rule (1) on the date of such appointment; or

(ii) a retired judicial officer or officer of the rank not below that of a Joint Secretary in the Law and Judiciary Department and who, prior to his joining service as such officer was a practising advocate, or had practised as an advocate for not less than seven years, he shall be eligible for being appointed as an Assistant Government Pleader on the Original and Appellate Side of the High Court at Bombay.

        Explanation.- In computing the period of practice prescribed in clause (ii) of this sub-rule there shall be included any period during which the person has held judicial office or the office not below the rank of Joint Secretary in the Law and Judiciary department, after he became an advocate.

12  Additional qualifications to be considered for appointment ;

     Appointment of any person who is eligible to be appointed under rule 11 shall, however,

     be made having regard to his integrity, reliability, reputation, character and antecedents

     in addition to his qualifications and experience.

13.Appointment;    Every Government Pleader referred to in clause (j) of rule 2, or Public

    Prosecutor or Additional Public Prosecutor for High Court or for each district shall be

   appointed by Government in the Law and Judiciary Department (hereinafter in this rule

   referred to as “the Government”).

(1)The Government shall invite applications from advocates in such manner as it thinks fit, and select from amongst the applicants a suitable candidate for appointment of –

(i) a Government Pleader or Additional or Assistant Government Pleader or Honorary Assistant to the Government Pleader in the High Court or in the Bombay City Civil Court or in the Court of Small Causes at Bombay; and

(ii) a Special Government Pleader and Additional Special Government Pleader for the Maharashtra Revenue Tribunal at Bombay;

(iii) a Public Prosecutor or Additional Public Prosecutor in the High Court.

(3) The District Magistrate in Greater Bombay, or as the case may be, in every district shall invite applications from advocates in such manner as he thinks fit, for inclusion of the names of suitable candidates from amongst them, with the approval of the Government, in the panel for appointment of Public Prosecutor or Additional Public Prosecutor for Greater Bombay, or as the case may be, for a district; and the Government shall select a candidate from the panel so prepared for any such appointment.

(4) The Collector of every district other than the district of the City of Bombay and the Bombay Suburban District shall invite applications from advocates in such manner as he thinks fit, for inclusion of the names of suitable candidates from amongst them, with the approval of the Government, in the panel for appointment of District Government Pleader or Additional or Assistant Government Pleader or Honorary Assistant to the District Government Pleader, or as the case may be.  Subordinate Government Pleader; and the Government shall, select a candidate from the panel so prepared for any such appointment.

(5) The Commissioner of the Pune Division, Nagpur Division, Kolhapur Division and Aurangabad Division shall invite applications from advocates in such manner as he thinks fit, for inclusion of the names of suitable candidates from amongst them, with the approval of the Government, in the panel for appointment of a Special Government Pleader for the Maharashtra Revenue Tribunal at Pune, Nagpur, Kolhapur or as the case may be, Aurangabad; and the Government shall select a candidate from the panel so prepared for any such appointment.

(6) A person appointed as the Government Pleader or Additional or Assistant Government Pleader may also be appointed as a Public Prosecutor or Additional Public Prosecutor under sub-section (1), or as the case may be, sub-section (3) of section 24 of the Code of Criminal Procedure.

 

CHAPTER IV

 

14 The duties of the Government Pleaders and Public Prosecutors;

(1) Advisory to Government or its officers.- It shall be the duty of the Government Pleader or the Public Prosecutor to advise Government or its officers in respect of proceedings, whether civil or criminal, which he has or may have to conduct on behalf of the state or its officers.

(2) Statutory Duties.- The Government Pleader or Public Prosecutor shall discharge such functions as are expressly imposed upon him by the Code of Civil Procedure, the Code of Criminal Procedure or by any other law for the time being in force.

(3)Duties as Government Pleader.- Unless otherwise provided in these rules the Government Pleader shall act for the State or its officers in respect of the judicial proceedings filed in the court and shall be the recognised agent of the State or its officers within the meaning of Order XXVII, rules 2,4 and 8 read with Order III, rule 1 of the Code of Civil Procedure; and it shall be the duty of the Government Pleader,-

(a)           To appear in the court in any civil suit or appeal or application for review or revision or reference, petition of a civl nature, including petition for exercise of powers under articles 226 and 227 of the Constitution or any other civil proceeding; as the case may be to which the State or its officers are parties and the institution or defence of which is undertaken by Government in the Law and Judiciary Department and in all interlocutory or other proceddings arising therefrom and filed in the court;

 (b) To appear on behalf of the State or its officers in the court at the stage of admission of appeals;

 (c) To appear in the court on behalf of the State or its officers in which urgent applications like granting, opposing or vacating stay or injunction or both are moved. Whenever stay or injunction is granted or refused and the same is likley to affect the interests of the Government, to apply immediately for an order of the court to direct the plaintiffs or defendants or appellants or opponents or petitioners or respondents, as the case may be, to furnish security to the extent necessary;

      (d) To appear in any case in the court in which he is directed to appear by any District Judge in support of an order imposing a fine on, or directing the arrest of, a witness under the provisions of the Code of Civil Procedure;

      (e) To appear on behalf of the State or its officers in any other case filed in the court when required to do so by the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be ;

 (f) To appear in any civil suit or any other proceeding filed in the court in which the Government or its officers are concerned or interested and in which the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be, requires him to appear, whoever the nominal party may be on whose behalf he is called upon to appear.

(4) Duties as Public Prosecutor in the High Court.- Unless otherwise provided in these rules, it shall be the duty of the Public Prosecutor in the High Court.-

(a) To appear on behalf of the State or its officers or any other Public Servant when so directed by the Remembrancer of Legal Affairs, in the High Court -

(i) In every application for the issuance of writs of Habeas Corpurs;

(ii) In every case submitted to the High Court under section 366 of the Code of Criminal Procedure for confirmation of a sentence of death;

(iii) In every appeal for enhancement of sentence under section 377 of the Code of Criminal Procedure ;

(iv) In every appeal under section 378 of the Code of Criminal Procedure ;

(v) In every appeal against a conviction heard by the High Court under section 386 of the Code of Criminal Procedure, if in such appeal the accused person (or when there are several accused persons, any one of them) is represented by a counsel;

(vi) In all cases for transfer and bail applications;

(vii) In every application in criminal case filed in the High Court on behalf of the State for the exercise by the High Court of its powers of reference and revision;

(viii) In every criminal matter in which he may specifically be instructed to appear by a District and Sessions Judge, a District Magistrate or the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be;

(ix) In all cases of contempt of court in which he is required to appear;

(x) In any proceeding conducted on behalf of the State before a full or larger Bench of the High Court or any Special Bench of the High Court constituted under any law for the time being in force or before a Third Judge;

(xi) In any other case in which he is required to do so by the Remembrancer of Legal Affais or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be ;

      (b) To present, as soon as possible, an appeal in the High Court against the order of acquittal or against the sentense on the ground of its inadequacy passed in any case, in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (XXV of 1946) or by any other agency empowered under any Central Act, other than the Code of Criminal Procedure, and in which the Central Government have issued a direction to him to do so, without waiting for further instructions from the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be;

     (c) If, in any criminal case heard before the High Court, a question arises as to any property in which Government in the administrative department may be interested, to inform the District Magistrate of the district in which the case was tried and also the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be, and, when necessary, to apply for an adjournment of the case, in order to enable those officers to furnish him with all information on such question before the case is finally heard by the High Court.

(5) The duties as Public Prosecutor in the Sessions Court;

(i) To appear and conduct the prosecution in every trial before the Sessions Court; and for that purpose, he shall at the earliest opportunity examine the records of the proceedings before the committing Magistrate and ensure that any defect, such as the omission to summon a necessary witness is, if possible, remedied before the date fixed for hearing in the Sessions Court '

(ii) To appear for the prosecution at the hearing before the Sessions Court of any appeal against a conviction or application for the revision of sentense or an order (not being one of discharge or acquittal) against which no appeal lies or against any other order when notice of such appeal is served upon him or when he is directed by the Sessions Judge or by the District Magistrate or the Commissioner of Police, as the case may be, so to appear ; and in doubtful cases he shall consult the District Magistrate or the Commissioner of Police, as the case may be, whether he should or should not appear in such cases ;

(iii) To conduct the prosecution in any trial before a Court of the Metropolitan Magistrate or Judicial Magistrate, as the case may be, when so required by the Sessions Judge or the District Magistrate or the Commissioner of Police or the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be;

        (iv) To prepare and file complaints in the Court of Metropolitan Magistrate or Judicial Magistrate, as the case may be, when directed by any court or by any head of the department of Government or the District Magistrate or the Commissioner of Police, as the case may be

        (v) Not to withdraw any prosecution under section 321 of the Code of Criminal Procedure except upon the suggestion by the court or for other special reasons which it will be for him to substantiate and without first obtaining the sanction of Government in the Home Department through the District Magistrate or the Commissioner of Police, as the case may be;

        (vi) To perform such other duties as may be assigned to him by Government in the Home Department or the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be;

       (vii) To assist the Government officer or Judge or Magistrate in such investigations or inquiries as might result in criminal prosecutions;

Rule(15)   Charge and distribution of briefs :

(1)    (a)  The Government Pleader or Public Prosecutor [except in the case of the Government Pleader, High Court (Original Side) and the Additional Government Pleader, High Court (Appellate Side) at Bombay or except where there is only one Law Officer shall be in overall charge of the distribution of briefs amongst his subordinates and Panel Counsel, if any;       

        Provided that, the distribution shall be subject to any instructions from the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government.  Law and Judiciary Department at Nagpur and Aurangabad, as the case may be.

(b)            subject to clause (a), the Government Pleader or Public Prosecutor shall, as a general rule and as far as possible, himself conduct all important civil or criminal cases which involve important law points or involve important policies of the Government or high stakes.  While appearing in such matters he may take the assistance of his subordinate after seeking the sanction of the Remembrancer of Legal Affairs.

(c)             Subject to proviso to clause (a) and clause (b), he shall distribute the work equally amongst his subordinates and Panel Counsel, as the case may be, during a day.  However under special circumstances or reasons to be recorded in writing, he may allot more than on court to himself or any of his subordinates of Panel Counsel.

(d)            (i) The Additional or Assistant Government Pleaders or Honorary Assistants to the Government Pleader concerned or the Additional Public Prosecutors shall appear in such cases only as are entrusted to them by the Government Pleader or Public Prosecutor, as the case may be.

(ii)  The Honorary Assistants to the Government Pleaders concerned shall assist the Government Pleaders concerned in their day to day Government litigation work.

(2)    (a) The Government Pleader, High Court (Original Side) and the Additional Government Pleader, High Court (Appellate Side) at Bombay and their subordinates shall appear in such cases as are entrusted to them by the Advocate-General.

        (b) While appearing in the cases which are of complicated or intricate nature the Government Pleader, High Court (Original Side) or the Additional Government Pleader, High Court (Appellate Side) at Bombay may take the assistance of B Panel Counsel or the Assistant Government Pleader, preference being given to the Assistant Government Pleader.  However in the cases which are not comparatively heavy or complicated the Government Pleader, High Court (Original Side) or the Additional Government Pleader, High Court (Appellate Side) at Bombay shall invariably appear alone in such matters.