2012 (1) TMI 192 - HC - VAT and Sales Tax

Court Invalidates Amendment, Quashes Circular, Orders Reconsideration

Sadhana Sharma Versus State Of U.P. Thru. Prin. Secy., Law Deptt., & Others

The court declared the amendment to Section 24 of the Code of Criminal Procedure by U.P. Act No.18 of 1991 unconstitutional, restoring the original ... - Issues Involved:1. Constitutional validity of Section 2 of U.P. Act No.18 of 1991.2. Validity of the Circular dated 13.8.2008 amending the L.R. Manual.3. Legality of the removal and non-renewal of the petitioner as Additional District Government Counsel (Criminal).Summary:Issue 1: Constitutional Validity of Section 2 of U.P. Act No.18 of 1991The writ petitions challenged the constitutional validity of Section 2 of U.P. Act No.18 of 1991, which amended Section 24 of the Code of Criminal Procedure (CrPC) by omitting sub-sections (4), (5), and (6), and the phrase 'after consultation with the High Court' from sub-section (1). The court held that the amendment was arbitrary and unfounded, as it was based on non-existent facts and lacked a rational nexus to the object sought to be achieved. The amendment was found to be contrary to the original scheme and object of the CrPC, as well as the recommendations of various Law Commissions, which emphasized the need for an independent prosecuting agency. The court declared the amendment ultra vires, unconstitutional, and void, restoring the original provisions of Section 24 CrPC.Issue 2: Validity of the Circular dated 13.8.2008 Amending the L.R. ManualThe petitioner also challenged the Circular dated 13.8.2008, which made consultation with the District Judge mandatory for the appointment of District Government Counsels. The court found the Circular to be arbitrary and in violation of the principles laid down by the Supreme Court in Km. Shrilekha Vidyarthi's case, which emphasized the importance of maintaining an independent prosecuting agency. The court quashed the Circular and directed the State of U.P. to amend the L.R. Manual in line with the observations made in the judgment.Issue 3: Legality of the Removal and Non-Renewal of the PetitionerThe petitioner, who was appointed as Additional District Government Counsel (Criminal) Budaun and had her appointment renewed from time to time, was removed from her post based on adverse reports and complaints. The court found that the removal and non-renewal of the petitioner were arbitrary, as the State Government relied on the opinion of an Additional District Judge rather than obtaining the opinion of the District Judge, as required under the L.R. Manual. The court quashed the removal order and directed the State Government to reconsider the petitioner's case in light of the observations made in the judgment.Order:1. The Code of Criminal Procedure (U.P. Amendment) Act, 1991 (Act No.18 of 1991) (Section 2) is declared ultra vires, unconstitutional, void, and illegal, restoring the original provisions of Section 24 CrPC.2. The order dated 22.3.2011 and the order dated 30.3.2011 passed by the District Magistrate, Badaun, are quashed with consequential benefits to the petitioner.3. The State of U.P. is directed to reconsider the petitioner's case and permit her to discharge her duties in the meantime.4. The State of U.P. is directed to amend the L.R. Manual within three months in accordance with the observations made in the judgment.5. No orders as to costs.