Calcutta HC: Prompt Appointment of Judicial Personnel in Criminal Courts Particularly Special Courts Dealing with Sexual Crimes against Children is a Constitutional Imperative

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The Calcutta High Court was submitted with a petition by Mizanur Rahman on 6th January 2020 to renew his prayer for bail after being in custody for 528 days.

The Court was unable to proceed as the learned counsel for the State submitted that the Special Court was lying vacant due to “absence of Judicial Personnel”. The Registrar (Judicial service) was directed to submit a report for inquiring why the Special Court is lying vacant.

Report submitted by the Registrar

On 13th January 2020, the Court reviewed the report submitted by the Registrar. According to the report, there are 23 posts vacant in the cadre of District Judge (Entry Level)/Additional District of Sessions Judge.

However, the Court stated that the selection process for filling up vacancies had been complete since September 2019 implying “procrastination at the end of the State government to appoint judicial officers”.

Court’s Response

The Court pointed out that the delay in cases in various Courts including Special Court under the Protection of Children from Sexual Offences Act. Under Section 35 of the POCSO Act, all cases have to be closed within one year. However, the accused/petitioner has been in custody for more than 545 days due to vacancy in the Special Court. The Court stated, “Prompt appointment of judicial personnel in Criminal courts, particularly Special Courts dealing with Sexual crimes against children is a constitutional imperative.”

Supreme Court in the case Malik Mazhar Sultan (3) Vs. U.P. (2008) 17 SCC 703, laid out a rigid rime frame; appointment letters should be submitted within 30th September of each year and last joining date should be by 30th October.

The discrepancy and failure on part of the State government have had a ‘crippling impact” on the Administration of Justice where undertrials are suffering in prison instead of being granted speedy trials. The Court directed the Judicial Secretary to file an affidavit by the 5th of February 2020 as to why the appointment of 23 posts has not been made.

Submission of Affidavit

On 5th February 2020, the learned public prosecutor submitted an affidavit on behalf of the Judicial Secretary as per the direction of the Court. After Perusing the Averments (factual statements made in the report) along with the annexures, the Court discovered some glaring discrepancies.

Court’s Response

The Court stated that “Annexure “A-1” on page 12 of the affidavit does not tally with the averments made in para 2 on page 6 of the said affidavit.” The Court expressed concern over the state of affairs as the Judicial Secretary’s affidavit was made under oath and the Judicial Officer win a responsible position had authorized the affidavit “in a most casual and cavalier manner.”

Therefore, the Court denied relying on the affidavit submitted and directed the Judicial Secretary to appear in person as well as file a more detailed affidavit pertaining to the discrepancies found in the current affidavit.

The Court has set the next hearing on 11th February 2020 where the Judicial Secretary, “has to explain how he affirmed the averments in paragraph 2 and 3 as true to his knowledge in spite of incorrect averments therein.”

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