SIKKIM GAZETTEGOVERNMENT f.
EXTRAORDINARY PUBLISHED BY AUTHORITY Gangtok No. 365Thursday, 2nd November, 2000 No. 36/LD/LIT/2000 GOVERNMENT OF SIKKIM LAW DEPARTMENT GANGTOK.
Dated: 30.10.2000 NOTIFICATION Whereas the State Government has deemed it expedient and necessary to frame rules with regard to handling and monitoring of State litigations;
Now, therefore, the State Government hereby makes the following rules for conducting the State litigations, namely:- Short title, extent and commencement.
Definitions.
CHAPTER -I PRELIMINARY
1. (1) These rules may be called the Conduct of the Government Litigation, Rules, 2000.
(2) They extend to the whole of"Sikkim.
(3) They shall come ihto force at once.
2. In these rules, unless the context otherwise requires,-
(a) "Advocate General" means any person appointed as an Advocate General by the Governor of Sikkim for the State under Article 165 of the Constitution and also includes Additional Advocate General.
(b) "Code of Civil Procedure" means the Code of Civil Procedure, 1908 (V of 1908);
(c) "Code of Criminal Procedure" means the Code of Criminal Procedure.
1973 (II of 1974);
(d) "Competent Authority" means Minister-in-Charge of the department.
(e) "Constitution: means the Constitution of india:
(f) "Court" means the Courts governed by the Code of Civil Procedure;
and the Courts established within the State under tile Code of Criminal Procedure, and the Sikkim Civil Courts Act, 1978 (No.9 of 1978) and inciudes the High Court;
(g) "Day" means portion of time between a midnight and the Iollowinq midnight;
(h) "Government" means the Government of Sikkim:
(i) "Government Of.ticer" or "Officer" means an officer of Government acting in his official capacity; .
. (j) "Government Advocate" means an advocate appointee to that post by Government in the Law Deparrment in relation to any Court in the State of Sikkim to conduct civil cases, appeals, applications, references.
petitions including petitions for exercise of powers under articie 226 ana i 227 of the Constitution and other proceedings filed in the Courts at Sikkim for and on behalf of the State orlts officers and includes Senior Government Advocate. Additional Government Advocate and Assistant Government Advocate.
(k) "High Court" means the High Court of Sikkim;
(I) "Law Officer" means an advocate appointed by Government in the Law Department, to conduct cases on behalf of the State or its officers before any Court and includes the Advocate General. Standing Counsel for the State in Supreme Court, Government Advocate and Public Prosecutor;
(m) "Legal Remembrancer" includes the Joint Legal Remembrancer in the Law Department:
(n) "Public Prosecutor" means any advocate appointed as a Public Prosecutor by Government in the Law Department for the High Court and for every district in the State under sub-section (1) and (3) of section 24 of the Code of Criminal Procedure, for conducting any prosecution, appeal, application or other proceedings on behalf of the State and includes an Additional Public Prosecutor and Assistant Public Prosecutor:
(0) "Special Counsel" means and advocate specially appointed by Government in the Law Department. to conduct any case. civil or criminal.
anywhere in the State or outside the State for and on behalf of the State or its officers and includes a Law Officer so appointed: .
(p) "Special Public Prosecutor" means an advocate specially appomteo by Government in the Law Department under sub-section (8) of section 24 of the Code of Criminal Procedure, to conduct any criminal case or class of cases on behalf of the State;
(q) "State" means the State of Sikkim.
Power of the Legal 3.
Remembrancer.
CHAPTER - II The Legal Remembrancer The Legal Remembrancer shall exercise the powers as set out hereinafter.
References to Legal Remembrancer by Government or its officers.
4. All the heads of the Departments may make references to the Legal Remembrancer for advice or opinion in respect of suits or other civil or criminal proceedings, which are actually pending in the Courts of Law and to which the State or its officers are parties or inwhich the interest of the State involved.
Advice to be kept 5. All advices and opinions tendered by the Legal Remembrancer and the contidentisl. Advocate General to the administrative departments are strictly confidential and.
therefore, shall not be disclosed either to the public or to other Governments.
including Central Government, without the permission of the Competent authority.
Duties of Legal 6. It shall be the duty of the Legal Remembrancer to supervise all the State Remembrencer in litigations, in which the State or its otticers are either parties or interested in the respect of litiga- following manner:- tion. (1) In civil matters -
(a) to give advice to a Head of Department, on any reference made to him. in case of any doubt about the defensibility of any threatened suit and also to advise on any legal point arising out of any litigation pending in the Court:
(b) to examine and verifty draft plaints. written statements. memorandum of appeais cross-objections. applications or their replies to be filed in the Courts on behalf of the State or its officers.
(c) to recommend whether an appeal should be filed in the appellate Courts and whether to file a writ petition in the High Court or the Supreme Court against any decision detrimental to the interest of the State.
2. In criminal mattersto examine and recommend the proposals for filing criminal appeals/ revisions 2 in the higher Court against the decision or orders of acquittal, sentence or any intenm orders passed by a subordinate Court.
Conduct of 7.
Utigation by the department.
(1) Each Department shall nominate a senior officer not below the rank of Joint Secretary or equivalent who shall maintain close liaison with the Law Officer conducting the case in the Court, for keeping close and constant watch on its progress and for taking steps as may be required during the proceedings:
(2) He shall attend the Court whenever case is fixed inCou rt and assist the Law Officer for the efficient and effective conduct of the Government cases. He shall aiso ensure that whenever the Law Officer Incharge of the case ISnot available for the conduct of the case, for one reason or other, the case is not dismissed for default or otherwise.
(3) The nominated officer shall maintain a file containing all case papers including copies of orders passed by the Court.
(4) He shall provide the Law Officer with all the relevant papers and materials required forthe case. Parawise statements/ instructions in writing with prior approval of the competent authority shall be given to the Law Officer.
CHAPTER II!
DUTIES OF LAW OFFICER (GOVERNMENT ADVOCATES AND PUBLIC PROSECUTORS) Duties 8. (1) It shall be the duty of Govenment Advocate or Public Prosecutor;
(a) to advise the Government department or its officers in respect of any case which he has or may have to conduct for the State or its officers.
(b) to appear in the Court in any Civil suit proceedings, appeal, application for review, or revision, or reference, or injunction application, petition of a Civil nature, etc. including petition for exercise of powers under articles 226 anei 227 of the Constitution, as the case may be, to which the State or its officers are parties and to take appropriate steps as may be required in accordance with law.
,2) Duties of Public Prosecutor In the High Court;
Unless otherwise provided in these rules, it shall be the duty of the Public Servant in the High Court to appear on behalf of the State or its officers or any other Public Servant in the High Court:-
(i) in connection with Writs of Habeas Corpus;
(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, anyone of them) is represented by a counsel;
(vi) in all cases for transfer and bail applications;
(vii) in every application in criminal case flied 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 all cases of contempt of court in which he is required to appear:
(ix) in anyothercase in which he is required to do so by the Legal Remembrancer:
(3) Duties of Public Prossecutor 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 ana 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:
3
(ii) to appear and contest for the prosecution before the Sessions Court or any appeal against a conviction or application for revision of sentence or an order (not being one of discharge or aquittal) 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 so to appear:
(iii) to conduct the prosecution in any trial before the Chief Judicial Magistrate or Judicial Magistrate, as the case may be. when so required by the Legal Remembrancer, Law;
(iv) not to withdraw any serious cases from prosecution under section 321 of the Code of Criminal Procedure without consulting the Government through the Law Department;
(v) to perform such other duties as may be assigned to him by the Government in the Law Department;
(vi) Where the accused person is a Government servant, to intimate the head of the department to whom the Government servant is subordinate about the final order passed by the concerned Court immediately after the said order is passed.
. .~, {4} Duties of Public Prosecutors in Magistrate's Court:- The duties of Public Prosecutor as specified in this rule shall mutatis mutandis apply to the Public Prosecutor attached to the Magistrates' Court except the provisions relating to appeal and revision.
(5) Duties for other Governments- It shall be the duty of the Government Advocate or Public Prosecutor to appear on behalf of other Governments in the case.
whether civil or criminal, filed in Court when required to do so by the Legal Remembrancer, Law.
(6) Duties at or outside the headquarters - Tile duties of the Government Advocate or Public Prosecutor are ordinarily confined to the Courts to which he is attached. However, it becomes his duty to attend other Courts in or outside the State also to conduct cases as may be required by the Government in the Law Department.
(7) General Duties - Unless otherwise provided in these rules. it shall be the duty of the Government Advocate or Public Prosecutor-
(a) to finalise pleadings or memoranda of appeals or replies or applications or affidavits or counter affidavits or other documents in the proceedings Hied in the Court or the proceedings filed in the Courts of other States;
(b) to ensure that no case is heard by the Court without filing the necessary pleadings or submissions or replies or affidavits or counter affidavits or other documents indicating clearly the contentios of the Government. both on questions of law and facts;
(c) to see that no case is conceded before the court, such as granting of bail to any accused or any question of fact not conceded in the affidavit or counter affidavit or any claim against the State without obtaining previous permission of the competent authority.
(d) to appear in any case, whether civil or crirninal., in which the Court desires him to appear or expresses its opinion that he ought to appear;
(e) to assist the Advocate General in civil or criminal cases of special importance, whenever such assistance is required by him.
(f) to submit monthly report regardingpending cases to Law Department;
(g) as soon as a matter of which the State or its officers are parties is decided by the Court;
(i) to communicate the nature of the decision to the administrative department and the Legal Remembrancer, law, giving brief statement of the reasons on which the decision is based;
(ii) to apply immediately for a certified copy of the Judgement and order or 4 decree and take all the necessary steps;
Where the order or decree has been pased under which any amount is due to the Government or its officers, to take all the necessary steps, with all possible expedition, to realise the moneys and cost so awarded; and where the order of decree has been passed against the State or its officers, to see that the order or decree is satisfied, if the Government decides not to challenge the said order or decree;
(h) to ,report to the Legal Remembrancer, Law, any of the following matters arising out of anycivil or criminal case decided by the Court:-
(i) any case in which the Court in confirming or imposing the minimum legal penalty expresses or indicates an opinion that a lesser penalty would serve the ends of justice;
(ii) any case in which the Court has observed or expressed or indicated that impositon of any tax, cess, levy, penalty, fine or royalty under any of the enactments is unjust and would not serve the ends of justice;
(iii) any case in which the action of the lower Court or tile conduct of investigation or prosecution or the conduct of the Law Officer or a State Employee, has been considered to be gravely irregular or has been severely criticised by the Court;
(iv) any case in which the Court has declared any law or statutory rule to be ultra vires or in which it has observed that a law or statutory rule has been causing inconvenience or anomaly;
(v) any defect or lacuna in any enactment or statutory rule, the removal of.which he considers it necessary;
(vi) any pronouncement of the Court on a question of law which is likely to affect other caes in the State; .
(vii) Any other matter or circumstance which he himself or the Court desires or considers it necessary to be brought to the notice of the Government;
(viii) in any case in which any important question of law is likely to affect the policy of the Government or the conduct of the Government or its employees hasmbeen the subject of comment by the Court:
(i) to assist the Advocate General or Public Prosecutor in the High Court in an appeal or other proceedings relating to a case which he has conducted in the subordinate Court, when the Advocate General or the Legal Remembrancer, law requires him to do so.
CHAPTER IV CIVIL SUIT AND OTHER CIVIL PROCEEDINGS.
9. (1) If the Competant Authority in the administrative department on the recommendation of the Law Departmentsanctions the institution of a suit, a copy of the order to that effect shall be sent to the Government Advocate of the concerned court in which the suit is to be instituted.
(2) Preparation of plaint -
(a) After the institution of the suit is sanctioned, a draft of the plaint shall be prepared within 15 days by the Government Advocate concerned in consultation with the nominated officer of the department. The Officer concerned thereafter shall forward the draft plaint to the Legal Remembrancer. Law Department, Government of Sikkim, for examination and verification.
(b) After verification by the Legal Remembrancer, the plaint shall be signed, varified as perthe provisions of Order XXVII, rule 1of the Code of Civil Procedure, by the Government Advocate or the Government Officer concerned and presented by the Government Advocate concerned to the Court.
Procedure for de- 10. (1) Notice of suit - Where a notice of a suit against the State, under section 80 fence of suits on of the Code of Civil Procedure, is received by the Secretary to Government, he shall 5 behalf of State or immediately forward one copy of notice to the Legal Remembrancer. Law Departits officers. ment for advice as to the action to be taken.
Every endeavour shall beinade by the Government Officer concerned to have the matter disposed of within the statutory period of two months, from the delivery of notice, allowed by the Code of Civil Procedure before the threatened suit can be instituted. if it is not possible to redress the grievance of the notice giver. suitable reply shall be given by the administrative department in consultation with the Legal Remembrancer and the Government Advocate concerned.
(3) If any kind of lapses on the part of any Government officer concerned in dealing with the notice results in the prolonged litigation and avoidable loss to Government, the administrative department concerned shall take a serious view of such lapses.
Accountability. 11. If any case is decided against the State Government and the failure of the case is due to inept and negligent handling of the case, the officer of the department who is engaged in handling the litigation on behalf of the department shall be held accountable.
Procedure if ep- 12.
peal is to be filed on behalf of State.
CHAPTER V CIVil APPEALS AND OTHER CIVil PROCEEDINGS IN THE DISTRICT COURTS AND THE HIGH COURT
(1) If the decision of the subordinate Civil Court in any suit or any other civil proceedings. is either wholly or partially adverse to the State or its officers.
the Government Advocate concerned shall at once obtain a copy of judgement and decree and shall submit the same alongwith his report regarding the feasibility of filing appeal/ revision to the Administrative Department concerned and the Legal Remembrancer. The report of the Government Advocate concerned shall not be cryptic. It should contain his exhaustive opinion with detailed reasons in support of the stand taken by him:
Nate:- Under Article 116 of the Limitation Act. 1963. the period of limitation for an appeal to the District Court is 30 days and that for an appeal to the High Court is 90 days, exciuding the time taken for obtaining the certified copies of judgement and decree.
(2) (a) If appeal lies to the District Court or the Bench of the High Court; If the Government Advocate concerned recommends an appeal to the District Court or the Bench of the High Court, as the case may be. he shall within 15 days send his report alongwith copy of draft memorandum of appeal the uncertified copy of judgement and decree. as stated in subrule (1) and also uncertified copies of such of the exhibits or the relevant portions thereof as he deems necessary to explain the grounds on which the decision is based or on which in his opinion an appeal should be made. in important cases copies of all the material exhibits or the relevant portions thereof shall be sent;
(b) If appeal lies to the High Court; In case an appeal has to be filed in the High Court, the procedure as laid down in clause (a, shall be followed except that -
(i) the Government Advocate concerned shall send a certified copy of judgement and decree alongwith grounds of appeal to the Legal Remembrancer.
Law Department alongwith his; aport and uncertified copies of judgement and other exhibits and copies ot translations of the same in English, if they are in regional language;
(ii) the report alongwith all relevant copies shall be sent withiniifteen days from the date of judgement.
(3) The Government officer concerned shall also forward a copy of his opinion to the head of the Department concern who if he concurs with it, will merely file it. but if he differs from it, or considers it otherwise, shall submit a separate report to Government in the administrative department concerned. which In 6 turn, if it considers it necessary, consult the Legal Remembrancer.
(4) On receipt of the papers, the Legal Remembrancer shall decide in consultation with the administrative department concerned, if necessary, whether an appeal should be filed or not. In case of difference of opinion, the opinion of the Legal Remembrancer shall prevail.
(5) (a) If an appeal is sanctioned and is to be filed in the District Court, the Legal Remembrancer shall send all the case papers alongwith Government Resolution and memorandum of appeal, duly approved and corrected, direct to the Government Advocate concerned;
(b) the Government Advocate concerned, shall then take necessary steps to file appeal in the District Court. He shall not make any important additions to, or alterations in the memorandum of appeal without obtaining previous approval of the Government.
Provided that, in urgent or exceptional cases he may move the court for necessary amendment to the memorandum of appeal in anticipation of such approval.
(6) (a) If the appeal is sanctioned and has to be filE:din the High Court, the Legal Remembrancer shall send all the case papers alongwith the Government Resolution to the Government Advocate concerned in the High COLrt;
(b) the Government Advocate concerned in the High Court shall then prepare a memorandum of appeai and take all other steps that thay may be necessary for filing and conducting the appeal. In important or intri- .
cate cases, the memorandum of appeal should be submitted to the Legal Hernembrancer for approval before being filed in the High Court.
Procedure when 13. (1) If an appeal is brought by the opposite party against a decision, either entirely appeal is brought or parly in favour of Government or its officer,either in the District Court or in the High by party.
opposite Court, a notice of the appeal will be served by the concerned court either on the Government Advocate concerned or on the Administrative Department concerned:
(a) in the former case, the Government Advocate concerned shall enter on the back of the notice the date of its receipt. He shall at once obtain an uncertified copy of memorandum of appeal and forward it and the notice received by him to the Administrative Department concerned;
(b) in the latter case tile Administrative Department concerned shall at once send the Government Advocate concerned a Vakalatnama (unless the Government Pleader concerned already holds a general power 0f attorney from him) and obtain through him an uncertified copy of memorandum of appeal.
(2) The Administrative Department concerned to report as to the defence:-
(a) The Administrative Department concerned shall, on receipt of the copies of notice and uncertified copy of memorandum of appeal. carefully compare the grounds of appeal with the court's judgment and after consultation with the Government Advocate concerned, submit his opinion 'o tile Legal Remembrancer stating therein whether an appeai should be defended and making any explanation or remarks that may be needed with reference to the grounds of appeal;
(b) the Administrative Department concerned shall also consider the question regarding the desirability of filing cross-objections, where the decision of the lower court was partially in favour of the State or its officers;
(3) Security of costs:- the Administrative Department concerned shall ascertain if there is any reasonable ground for an application under order XLI, rule 10 of the Code of Civil Procedure, requiring the appeal ant to furnish a security for costs. If the appeal is frivolous or if it is doubtful whether the appellant has sufficient means to pay costs in the event of failure, such application shall invariably be filed.
Procedure when 14. When two or more Government officers of different departments are concerned two Dr more Gov- in a case in which an appeal is to be filed on behalf of tr.a State or in which an appeal 7 ernment officers is brought by the opposite party. the duties of the Government officers specified in the are concerned in foregoing rules shall devolve on the principal of such Government officers.
an appeal case.
Applicability of 15. the provis'ons of the foregoing procedural rules in respect of conduct of civil suits certain rules of shall apply to the conduct of civil appeal excepttb» civil suits to' (1) that discertion shall be exercised by the Government Advocate concerned appeals. in meeting new points raised for the first time in appeal: .
(2) if possible. he shall apply for an adjournment to enable him to consult the Administrative Department concerned or the Legal Remembrancer and if necessary, on such points on which he may not have been fully instructed, or to which he is not able to furnish an immediate reply.
Procedure when 16. When an appeal from an original decree has been decided by an District Court an appeal has against which second appeal has to be filed or defended. the same procedure as is been decided by prescribed in the foregoing rules for filing or defending an appeal from an original a District Court. decree shall be followed for filing or defending a second appeal.
Note:- The limitation for filing of second appeal to the High Court, against the decision of the lower appellate court, is 90 days under Article 116 of the Limitation Act,
1963. excluding the time taken for obtaining the certified copies of judgement and decree or order.
Revision and Re- 17. The procedure prescribed in the foregoing rules for appeals shall, so far as it may view Application. be applicable, apply to the application for revision or review.
Note:- The limitation for filing revision application, under the Code of Civil Procedure, is 90 days from the date of the decree or order sought to be revised and that for review is 30 days from the date or decree or order as per Article 131 and 124 of the Limitation Act, 1963, respectively, excluding the time taken for obtaining the certified copies of judgment and decree or order.
CHAPTER VI Service of Summons CRIMINAL MATTERS IN THE SESSIONS COURTS AND HIGH COURT
PART A
18. (1) In adddition to the procedure contained in section 67 of Code of Ciminal Procedure, a Police Officer in charge of Prosecution of the State shall assist the serving agency of the other State to effect the summons on the witnesses.
(2) In cases instituted by the Police, the Public Prosecutor shall apply to the Court for issue of summonses to all the witnesses. It shall be the responsibility of the Investigating Officer and/or the Officer-in-Charge of the Police Station within whose jurisdiction the witnesses reside, to effect service of summonses to the said witnesses. If there is any lapses for not effecting service in time, the Investigating Officer of the case concerned and the Officer-in-Charge concerned shall be held accountable for the same.
(3) The Investigating Officer of a case should, during the course of investigation itself, ascertain and record the permanent address of the witnesses who may be on casual visit or for casual work at the relevant time of the occurrence of the crime In order to ensure his attendance in Court whenever required for evidence.
Important points 19. (1) The Public Prosecutor in the Sessions Court shall deal with the Superrespecting the intendent of Police concerned in regard to Criminal matters filed in the Sessions conduct of cases Court. The Superintendent of Police concerned or the Investigating Officer or some in the Sessions other responsible officer, fully aquainted with the case, shall be deputed to instruct Court. and assist the Public Prosecutor in the conduct oft,he Sessions Triai, Criminal Appeal.
revision or reference or any other criminal proceeding before the Sessions Court on behalf of the State.
B Procedure as 20.
regards filing of appeals, revisions or other applications when the decision is adverse to prosecution.
(2) In all cases of serious offences, before dropping eye-witnesses, who are cited in the charge-sheet, the Public Prosecutor shall, as far as possible, consult the Investigating Officer concerned or in his absence other Police Officer, who is present for instructing him. Whenever the Public Proscutor drops the witness cited in the charge-sheet in consultation with the Investigating Officer. he shall obtain the consent of the said officer in writing to that effect.
(3) The Public Prosecutor shall, ensure that he remains present in the Court throughout the trial, particularly when the prosecution witnesses are in the box at the time of the cross examination and put proper objection to the questions that are put by the defence.
(4) When the decision is adverse to the prosecution:- In case the Public Prosecutor is not so inclined to recommend an appeal against the order of acquittal or an appeal for enhancement of sentence or any revision or other application to be filed in the High Court, he shall forward the certified copy of judgment alongwith his opinion giving reasons for the same to the Superintendent of Police concerned and the Legal Remembrancer. In such case if the Superintendent of Police or the Government Officer concerned differs from the Public Prosecutor and considers the case fit for moving the High Court he may forward the copy of judgment in that case with his remarks for consideration directly to the Legal Remembrancer, Law Department.
PARTB
(1) (a) Where in any trial, criminal appeal, revision or any other criminal proceeding, the decision of the court is adverse to the prosecution and the Public Prosecutor proposes filing of appeal under section 378 of the Code of Criminal Procedure against the order of acquittal of the accused or an appeal under section 377 of the said Code for enhancement of sentence or any other appeal or an application for revision or any other application to be filed in the higher Court, he shall submit his proposal to that effect to the Legal Remembrancer or the Joint Legal Remembrancer Law Department alongwith the tollowmq informations and case papers:-
(i) a copy of grounds of appeal, revision or other application:
(ii) one clean certified copy of judgment.
(iii) the last date of limitation period on which an appeal, revision or other application is to be filed;
(iv) a list of correct address of the accused against whom appeal, revision or other application is to be filed;
(v) copies of extracts of relevant evidence and copies of depositions of important witnesses and other material record of the case:
(b) he shall s.tthe same time send a copy of his report recommending an appeal, revision or other application alongwith one copy of judgment. to the Superintendent of Police or the Legal Remembrancer concerned.
(2) (a) The Superintendent of Police concerned, recommending the filing of appeal, revision or other application in the Higher Court, while forwarding his proposal, shall send all relevant case papers, as required under sub-rule (1) above to the Legal Remembrancer or the Joint Legal Remembrancer, Law Department.
(b) he shall, on receipt of the report frorn the Public Prosecutor under clause
(b) of sub-rule (1) above, send his report immediately to the Legal Remembrancer orthe Joint Legal Remembrancer Law Department, as the case may be.
(3) Any other Government officer connected with the prosecution or the Public Prosecutor, who desires to file an appeal against the order of acquittal or for enhancement of sentence or any other appeal orto file a revision mother application against the decision of any subordinate court to the High Court 9 in any criminal matter, shall forward his opinion alongwith the opinion of the Public Prosecutor concerndand all the relevant case papers, as required unde r sub-rule (1) above, to the legal Remembrancer. law Department.
(4) In every case in which a Government servant, who is prosecuted for any offence in relation to his official duties, IS acquitted, the head of the department, shall, as soon as possible after the case is decided and the Public Prosecutor consulted, send his report alongwith all relevant case papers to the Legal Remembrancer or the Joint Legal Remembrancer Law Department, stating the facts of the case and whether in his opinion an appeal should be filed against the order of acquittal.
(5) If the appeal is to tile filed under section 378 of the Code of Criminal Procedure, the proposal under sub-rules (1), (2), (3) and (4) alongwith the relevant case papers shall be forwarded to the Legal Remembrancer or the Joint Legal Remembrancer, Law Department, as soon as possibe and except in special cases not later than fifteen days from the date of judgment and if the appeal is to be filed for enhancement of sentence or an application for revision or other application is to be filed in the Higher Court, the proposal to that effect, with all relevant case papers shall be forwarded as soon as possible and except in special cases not later than ten days from the date of judgment.
Note:- Limitation for filing an appeal in the High Court again! the order of acquittal under sub-sections (1) and (3) of section 378 of the Code of Crimina!
Procedure, is 90 days, excluding the period for obtaining certified copy of the judqrnent, under Article 114 of the Limitation Act, 1963 and the limitation for filing an appeal in the High Court against the sentence under SUb-section (1) of section 377 of the said Code or against any order not being an order of acquittal is 60 days.
excluding the period for obtaining certified copy of judqrnent, under Article 115 of the Limitation Act, 1963.
(6) If an appeal is filed by a cornplamant under section 378 (4) of the Code of Criminal Procedure, a notice is served by the High Court on the Public Proecutor concerned in the High Court. In such cases the Public Prosecutor concerned in the High Court shall immediately forward the High Court notice and other enclosures to the Legal Remembrancer or the Joint Legal Remembrancer, Law Department and seek Government's instructions whether the State should support the appeal or not.
(7) If Government in the Law Department does not consider it necessary to file an appeal, revision or other application in the High Court against the order of he lower Court, the Legal Rememberancer or the Joint Legal Remembrancer, Law Department shall communicate the decision of the Government to the Public Prosecutor concerned and all the concerned Government officers.
(8) (a) If Government in the Law Department decides to file an appeal or an applicaton for revision or any other applicaton or to support the appeal filed by the complainant, a Government Resolution in authorising the filing of appeal or application for revision or any other application.
alongwith all relevant case papers, shall be sent by the Legal Remembrancer or the Joint Legal Remembrancer, Law Department to the Public Prosecutor concerned in the High Court to which the appeal, revision or application lies;
(b) the memorandum of appeal or application for revision or other application shall then be drawn by the Public Prosecutor concerned in tha High Court and filed in the High Court within the period of limitation.
Reporting of the 21. As soon as the appeai, revision or other criminal proceeding has been decided result of the case. by a Court the Public Prosecutor shall inform the result of the case to the Legal Remembrancer, law Department. He shall also apply immediately for a certified copy of judgment. If the Court upholds the State appeal. revision or other application or passes. order in favour of the State, the Public Prosecutor concerned srrall send the certified copy of judgment to the GOvernment officer concerned, who proposed the appeal, revision or other application and to the Legal Remembrancer.
10 If decision is adverse to the State.
Bail matters.
22. (1) If the decision of the Court in any criminal matter is wholly or partially adverse to the State, the Public Prosecutor concerned in tile Court shall within fifteen days, submit his detailed report to the Legal Remembrancer, Law Department, with copies to ali the Government officer concerned, giving therein the specific reasons as to Why the decisicn should be acquiesced in or appealed against. If he proposes to challenge the decision of the Court, his report shall be accompanied by the grounds of the appeal, the certified copy of the judgment. the Paper-Book and other relevant case papers.
(2) If Government in the Law Department decide to acquiesce in the decision of the Court, the legal Remembrancer, shall communicate the Government decision to all the officers concerned.
PARTe
23. (1)The Public Proecutor concerned in the Court shall, on receipt of notice of the COUI1,seek instructions of the Superintendent of Police concerned for opposing the bail applications. !f the time does not permit or if the Public Prosecutor concerned does not receive any instructions on time he shall use his wisdom while opposing such bail application on merit.
(2) Cancellation of bait- (a) If the Public Prosecutor is of the opinion that any person released on bail by any court should be rearrested and committed to custody, he shall immediately send his proposal for cancellation of bail to the Legal Remembrancer. who shall in turn, if considered necessary by Government in the Law Department, issue the Govenrment Resolution and direct the Public Prosecutor concerned to take immediate steps to move the Court for cancellation of such bail.
(b) The Public Prosecutor concerned shall effectively oppose the grant of bail to the accused by the Court in cases, which are non-bailable.
Fixation of Ac- 24. If any lapses occur on he part of any agency of the prosecution. resulting In countability. failure of cases, appropriate severe action shall be taken against him or her for such lapses.
Conduct of cases 25. The procedure prescribed in the fore going rules except the provisions relating in the Magistrates' to appeal or revision shall mutatis mutandis apply for conduct of cases in the Courts Court. of Magistrate.
CHAPTER VII WRIT PETITIONS AND APPEALS ARISING THEREFROM IN THE HIGH COURT OF SIKKIM.
Procedure for tit- 26. (1) When a Government officer concerned is not satisfied With the orders of any ing of Writ Peti- Court, tribunal, Board, Commission or other body against which no other remedy IS tlons on behalf of open to get redress, he shall send a proposal to file a Writ Petition under Article 226 State and its ottic- and! or 227 of the Constitution against such an order to the administrative ers. department concerned with the shortest possible time. The proposal shall contain the following papers:-
(a) the grounds for filing Writ Petition giving reasons thereof:
(b) Rules, Orders. precedents and notifications relied upon;
(c) One certified and three uncertifiedcopies of jUdgement, decree or order against which the Writ Petition is to be filed.
(2) The administrative department concerned on receipt of such papers snail send al! the case papers alongwith its opionion to the legal Remembrancer or the joint Legal Remembrancer, Law Departement.
Procedure for tne 27. (1) (a) Whenever a notice or notice of motion In a Wnt Petition IS served on the defence of Writ Government Advocate concerned in the High Court on behalf of the State, he shall 11 Petition on behalf on the same day as far as possible; and latest by next day forward copies of the notice of State and its accompanied by the copy of Rule i.e. order, the Court and connected Writ Petition, officers. affidavit and other annexures to the administrative department concerned and to the legal Remembrancer or the Joint legal Remembrancer, law Department.
(b) He shall also apprise the administrative department concerned on any of the . following points:-
(i) vires or legality of any legislative enactment or statutory rule has been challenged: , '
(ii) executive orders or executive actions of Government and lor its officers have been challenged and the maters is such which not only affects the rights of the rival parties, but also the interest of Government:
(Hi) any taxation matter has been challenged;
(iv) any application for stay or any interim order has been made.
(c) He shall, on finding that the Writ Petition falls under anyone or more of the above points, put in appearance in the High Court on behalf of the State, at the admission stage without waiting for instructions from the administrative department or the Legal Remembrancer or the Joint Legal Remembrancer, Law Department.
Where he finds that the question is between two private parties and Government's interest is not involved, he shall in the first instance obtain instructions from the administrative department concerned and then file appearance before the High Court for bringing the facts about Government's non-involvement in the case to the notice of the High Court.
(d) In other Writ Petitions he shall file appearance in which the State is impleaded as a party, and obtain adjournment, if no instructions from the administrative department concerned are received by him In time.
(2) Whenever a notice or notice of motion is served on the Government officer concerned, who is impleaded as a party in his official capacity, he shall without least delay, forward to the administrative department concerned, all the relevant case papers, including a copy of petition, a statement of facts, which are necessary for meeting the allegations in the Writ Petition should be opposed or not.
(3) The administrative department concerned shall. on receipt of notice or notice of motion and its enclosures, make such enquiry into the facts of the case. as may be necessary and if the Rule is intended to be opposed, shall prepare or obtain parawise report on all the points raised i!l the Writ Petition and affidavit.
(4) On receipt of or after preparing parawise replies the administrative department concerned shall forward the complete case papers, as far as possible, within two weeks from the date of receipt by it or in any case before the expiry of the date mentioned in the notice of motion to the law Department concerned and also forward the copies of the same to the legal Remembrancer orthe Joint Legal Remembrancer.
Law Department.
(5) Swearing of counter affidavit.-
(a) As soon as a case is filed against any Government Department. the concerned Department shall handover the case to such Officer who is well conversant with the facts and circumstances of the case.
(b) The said Officer shall then prepare parawise comments and defence based facts from files and records and shall place the same before the Departmental Secretary who in turn shall entrust the same to the Officer concerned who has been entrusted or delegated with the duty of handling litigation of the Department.
(c) Thereafter, the parawise comments duly countersigned by the Departmental Secretary shall be placd before the legal Remembrancer or Jont Legal Remembrancer.
(d) The Legal Remembrancer or the Joint Legal Remernbrancer shall scrutinize the facts stated by the Department and return the same to the concerned department for obtaining approval from the Competant Authority.· .
(e) After all these formalities are complete. the same shall be sent to the 12 Law Officer concerned to give final shape to the draft reply/ written statement/affidavit etc. Once the draft is finalised the same shall be placed before the Advocate General for settlement.
(f) Any information required by the Advocate General/ Government Advocate concerned in the High Court in connection with the preparation of the counter affidavit shall be furnished by the administrative department concerned as early as possible.
(g) The draft counter affidavit shall after finally settled by the Advocate General be sworn in by the Head of the department or by the competent officer authorisedto do so by the Government.
(h) On swearing the counter affidavit by the Head of the department or by the competent officer, the same shall be filed in the High Court.
;.. Conduct of Writ 28. (1) Important points respecting the conduct of Writ Petition.- Petition (a) In view of the expiditious and summary nature of the proceeding, prompt action is necessary at every stage of the Writ Petition on the part of the Government Advocate concerned in the Higll Court as well as the administrative department and the Government officer concerned.
(b) The administrative department concerned shall depute the competent officer with all instructions and record or such other materials as may be required by the Advocate General! Government Advocate concerned in the High Court. The Government Advocate concerned shall intimate well in advance, as far as possible in writing and where there is no sufficient time then on phone, to the competent officer concerned about the date on which the part heard case is subsequently brought on the list so as to enable the competent officer concerned to be prepared to instruct the Government Advocate concerned on the date fixed for hearing. The competent officer shall not be detained unnecesarily by the Government Advocate concerned unless his presence is essential.
(c) Whenever the questions of making a concession or giving an undertaking before the High Court on behalf of the State or a Government officer arises.
the Government Advocate concerned in the High Court shall obtain a sutiable adjournment and refer the matter to the administrative department concerned for expeditious scrutiny and examination of the pros and cons in consultation with the Legal Remembrancerorthe Joint Legal Remembrancer.
Law Department if necessary. This does not, however. preclude the Advocate Generall Government Advocate concerned in the High Court from conceding obvious points of law during the course of arguments. However, the invalidity or unconstitutionality of any statute. rule, Ordinance or any Government Resolution, order etc. shall never be conceded before obtaining instructions of the Legal Remembrancer, Law Department.
(d) All interim orders passed by the High Court shall be communicated in writing by the Government Advocate concerned in the High Court direct to the party concerned for prompt compliance.
(e) The affidavits to be filed in the interlocutory applications SUCllas -
(i) application for grant, vacation or modification of stay orders.
(li) expedite applications,
(ill) applications for getting the Writ Petitions dismissed on account of having been infructuous, shall be drafed by the Government Advocate concerned in the High Court after obtaining instructions from the administrative department and Government officer concerned.
.•.
Decision to be 29. (1) As soon as the Writ Petition is decided, the Government Advocate concommunicated to cerned in the High Court shall communicate the nature of the decision to tne all concerned administrative department concerned and the Government officer concern eo With a copy to the Legal Remembrancer or the Joint Legal Remembrancer. Law Department, giving in important cases a brief statement of the grounds on which the decrsron 13 is based.
(2) He shall on the very day of the decision apply for a certified copy of the judgment and after obtaining the same forward it to the administrative department concerned.
(3) Where the judgment is adverse to the State, the Government Advocate concerned in the High Court shall obtain certified copy of Judgment and send one uncertfied copy of judgement alongwith his opinion in consultation with the Advocate General, whether an appeal should or should not be filed, to the administrative department concerned. He shall at the same time forward one uncertified copy of judgment alongwith his report to the Legal Remembrancer or the Joint Legal Remembrancer, Law Department.
(4) The administrative department concerned, if it recommends an appeal shall forward the case papers alongwith the report received to the Legal Remembrancer or the Joint Legal Remembrancer, Law Department.
CHAPTER VIII CIVIL AND CRIMINAL APPEALS AND OTHER PROCEEDINGS IN THE SUPREME COURT Appeals by State 30. (1) Government in the Law Department shall consider the proposal for filling of appeal, whether civil or criminal, to the Supreme Court, either received from the Government Advocate or Public Prosecutor in the High Court or other Government Officer, interested in the case, through his administrative department and examine whether there is a strong probability of success and lor substantial question of law of general importance or interpretation of the Constitution is involved.
(2) If it is decided to file an appeal in the Supreme Court against the judqrnent, decree, order or sentence passed or made by the High Court, or any other court or tribunal. the Legal Remembrancer, Law Department, shall with the approval of the Government send instructions to the Standing Counsel for the State in the Supreme Court, for filing Special Leave Petition in the Supreme Court under Article 136 (1) of the Constitution, alongwith the following case papers:- •
(a) The certified copies of judgment, decree, order or sentence appealed from:
(b) a Vakalatnama duly signed by the Chief Secretary in favour of the Standing Counsel;
(c) Paper- Book; and
(d) a detailed note explaining the law and facts of the case.
The copies of the above communications shall also be sent to all concerned.
Note.- Limitation period for filling of a petition for special leave to appeal to the Supreme Court is 90 days from the date of the judgment. decree, order of sentence to be cppealed from.
(3) The admiistrative department concerned shall then take immediate steps to prepare the parawise remarks in reply to the Special Leave Petition, Petition of Appeal and application for stay or injunction, as the case may be, and send the same alongwith case papers and necessary instructions, if any, to oppose the admission of petition and stay or injuction application, if any, to the Standing Counselor Public Prosecutor concerned in the High Court. A copy of the parawise remarks and instructions, if any, to oppose the admission of petition and stay or injunction application, as the case may be, shall also be sent by the said department to the Government Advocate for his use and also to the Legal Remembrancer. The Government Officer concerned who had been made a party in his official capacity.
shall send his Vakalatnama in favour of the Standing Counsel dJly signed by him.
(4) The Star.ding Counselor Public Prosecutor concerned in the High Court shall, if the administrative department concerned so directs. prepare'a counter 14 Appeals State.
affidavit in reply to the Special Leave Petition, Petition of Appeal and stay or injunction application, as the case may be, on the basis of parawise remarks and instructions received from the administrative department concerned. The counter affidavit shall be sworn in by the competent officer of the administrative department concerned before the Registrar or any competent officer of the High Court as the case may be.
The counter affidavit then shall be sent by the adminstrative department concerned to the Standing Counsel in the Supreme Court so as to reach him within the time fixed for filing it in the Supreme Court. The Government Advocate or Public Prosecutor concerned shall supply a copy of the counter affidavit prepared by fiim to the Legal Remembrancer.
Exp/antation:- It is, however, entirely left to the discretion of the adminisrative department concerned to entrust the work of drafting of counter atlidavit to the Government Advocate or Public Prosecutor concerned in the High Court or the Standing Counsel in the Supreme Court.
Note:- The limitation period for filing special leave to appeal to the Supreme Court in a case involving death sentence is 60 days from the date of the judgment, order or sentence under Article 133 (a) of the Limitation Act, 1963.
(5) On receipt of communication under sub-rule (2), the administrative department concerned shall depute a responsible official not below the rank of Joint Secretary, having actual knowledge of the case, to contact the Standing Counsel for swearing an affidavit in support of the statement of facts and other contents contained in the petition to be filed in the Supreme Court.
(6) The Standing Counsel shall file a petition for special leave In the Supreme Court within the time limit.
(7) If the special leave to appeal is granted by the Supreme Court, the Standing Counsel shall send intimation thereof to the Legal Remembrancer. The Standing Counsel shall then, on payment of additional court fee, if any, within the time, get the special leave petition of appeai.
(8) Condonation of delay:-If for any reason the State is unable to lodge a petition for special leave to appeal in the Supreme Court within the period of limitation, the legal Remembrancer and the head of the administrative Department or the Government Advocate of Public Prosecutor in the High Court, as the case may be, shall send their affidavits explaining the delay caused on their part, to the Standing Counsel for being filed in he Supreme Court alongwith the petition for special leave to appeal.
(9) Remittance of amount after grant of special leave to appeal. (a) on receipt of intimation from the Standing Counsel regarding grant of Special leave by the Supreme Court, the Legal Remembrancer, shall require the administrative department concerned to remit a sum of Rs. 2,000 or such amount as the Supreme Court might have directed in a particular case, to the Standing Counsel within 30 days of the filing of the petition of appeal under rule 6 of Order XV of the Supreme Court Rules.
1966 for depositing as security for the cost of the respondent in the Supreme Cou rt.
No security is payable in respect of criminal appeals;
(b) the amount of expenses for printing or cyclostylinq of record, on the basis of estimate prepared by the Registrar of the Supreme Court and initmated by the Standing Counsel shall be borne and paid by the Legal Remembrancer or the administrative department concerned, as the case may be.
(10) The Standing Counsei shall then take further steps as per the provrsrons contained in Order XV of the Supreme Court Rules, 1966.
31. (1) As soon as the Notice, Notice of Motion of petition or appeal or appucauon.
agianst whether civil or criminal, is served on the administrative department concerned at Government, that department shall immediately get typed 5 copies of Notice, Notice of Motion, Special Leave Petition, Petition of Appeal and the application for stay or 15 " injunction. as the case may be. The administrative department concerned shall send original copy of Notice alongwith its annexures to the Standing Counsel in the Supreme Court. One copy each of the said Notice and its annexures shall also be supplied by the administrative department concerned to the Government Advocate or Public Prosecutor concerned in the High Court, who conducted the case in the High Court, and one copy to the Legal Remembrancer. Law Department for Issuing necessary ins; -uctions to the Standing Counsei.
(2) If it is decided to file an appeal in the Supreme Court against the Judgment.
decree, order or sentence passed or made by the High Court. or any other court or Tribunal, the Legal Remembrancer Law shall send instructions to the Law Officer tor the state, appointed by the Government in the Law Department in the Supreme Court, for filing Special Leave Petition in the Supreme Court under Article 136 ('1) of the Constitution. alongwith the following case papers:-
(a) The certified copy/copies of .ludqment. decree order or sentence appealed from:
(b) a Vakalatnama duly signed by the Chief Secretary in favour of Law Officer:
(C) Paper-Book: and
(d) a detailed note explaining the law and facts of the case.
TII\lOcopies of the above communication shall also be sent to all concerned.
Noie: Limitation period for filing of a petition for special leave to appeal to the Supreme Court is 90 days from the date of the judgment. decree. order or sentence to be appealed from:
Provided that the limitation period for filing special leave to appeal to the Supreme Court in a case involving death sentence is 60 days trorn the date of the judgment, cecree, order or sentence under Article 133 (a) of the Limitation Act. 1963.
(3) On receipt of communication under sub-rule (2). the acrmnistranve depart ..
ment concerned shali depute a responsible official not below the rank of Joint Secretary having actual knowledge of the case, to contact the Law Officer for swearing an affidavit in support of the statement of facts and other contents contained in the petition to be filed in the Supreme Court.
(4) A V.akaiatnama to be filed on behalf of the State. shall be executed by the Chief Secretary in favour of the Standing Counsel and shall be sent to him aronowun such instruction as may be made in this behalf.
(5) As soon as the standing Counsel receives the Vakalatnama and the instructions for contesting the appeal. he shall without any delay d raw up the case and lodge the same in the Supreme Court within the time prescribed for.
Note:- (i) Limitation for entering appearance on behalf of respondent in the Supreme Court is 30 days of the service on him of tile notice of lodgement of the petition of appeal as prescribed under rule 12. Order XV of the Supreme Court Rules. 1966.
(ii) Under rule 35. Order XV of the aforesaid Rules. the respondent has to lodge his case within 30 days from the date of service of a copy of the statement of case lodged by the appellant.
(6) Filing of Caveat:- If it is anticipated by the administrative department concerned or the Government Advocate or Public Prosecutor concerned In the High Court that an application for special leave to appeal to the Supreme Court will be made by the opposite party and if it is decided to oppose such application. a brief of the case alongwith opinion on merits of such appeal. shall at once be prepared by It or him and sentto the Legal Remembrancer, who shall with necessary instructions send the same to the Standing Counsel far filing of a caveat in the Supreme Court.
Note :-It may be noted that until the caveat has been iodged under rule 2. Order XVIII of the Supreme Court Rules, 1966, or a Vaklatnarna. has been filed. ihe State call not be heard in oppositicn of the special leave petition filed oy the opposite party.
16 Filing or defence 32. The proceoure, prescribed under rules 30 and 31. aoove shall. mutatis mutandis.
of writ petitions, in so far as it may be applicable, apply to the filing or defence of the original Writ suits and other Petitions under Article 32 of the Constitution, or suits or other proceedings under proceedings. Article 131 of the Constitution in the Supreme Court on behalf of the State and Its officers.
Result of case to be communicated.
33. (1) As soon as the case, either filed on behalf of the State or against the State and its officers, is decided by the Supreme Court. the Standing Counsel shall communicate the decision to the Legal Remembrancer and also to the administrative department or Government officer concerned and the Government Advocate or Public Prosecutor concerned in the High Court. He shall also obtain a certified copy of judgment and decree, final order or sentence, as the case may De, passed by the Supreme Court and send it to the administrative department concerned for compliance.
(2) He shall also withdraw all the unspent security deposit after the disposal of the appeal and credit the same to the administrative Department concerned of Government.
Engagement of 34. (1) If any advocate/ lawyer, other than the Law Officer, IS to be engaged in Special Counsel important cases the engagement of such advocate/ lawyer shall be done by the other than Law administrative department in consultation with the Law Department and fees for such Officer advocate/ lawyer shall be negotiated and determined by the Law Department and the administrative department.
No fees shall be paid to the advoacate/ lawyer engaged by a department without consulting the Law Department as stipulated above.
(2) Ordinarily, when a case is filed or is pending in any Court outside the State in which the State Government is a party, the lawyer from that State will be engaged for conducting the case.
Monthly report 35. Unless otherwise provided in these rules, it shall be the duty of the Standing counsel to submit monthly report regarding disposal and pendency of cases in the Supreme Courts to the Law Department.
CHAPTER IX EXECUTION OF DECREES Interpretation. 36. For the purpose of this Chapter a "decree" includes an "Order" of a Civil Court as defined in section 2 of the Code of Civil Procedure, 1908.
Satisfaction of 37. (1) Where a decree has been passed against the State or its Officers and it has decree against been decided by Government not to contest further, a decision which is wholly or State. partly adverse to Government, the Government Officer concerned Shall at once instruct the Law Officer concerned to pay in the Court whose duty is to execute the decree, all money payable under the decree. They shall see that the decree is fully satisfied within the time fixed for its satisfaction under section 82 of the Code of Civil Procedure, 1908.
(2) For this purpose, the Law Officer concerned shall take the tollowing steps for prompt satisfaction of the decree:- .
(a) As soon as it is decided to acquiesce in a decree passed by Civil Court against the State or its Officer, the Law Officer shall see that the decree is satisfied promptly.
(b) He shall maintain register showing the particulars of the decree passed against the State or its officers.
(c) He shall submit to the Government in tile administrative department concerned, a report every quarter (before tne 10th of january, April. July and October) of every year, stating the particulars of the decrees which have remained unsatisfied for more than four months after it is decided 17 to pay the pauper costs. The Law Officer shall carefully watch the execution of sucn decree and at proper time enforce the first charge of Government in respect of such money or other property.
Scrutiny of costs awarded to State.
40. The Law Officer concerned shall carefully scrutinise the Court's Order or costs in all suits, appeals and other civil proceedings and also suits and appeals by indigent perons, in which he appears on behalf of the State or its officers. He shall see that the costs are duly assessed and entered in the decree togeher with an order specifying the party from whom they are to be recovered. If the order does not properly pr~vide for the Government's costs, he shall at once bring the fact to the notice of tile Legal Remembrancer in order that the desirability of applying for a review or. if necessary, filing an appeal or application for revision may be considered .
.'
General instruc- 41. (1) The Law Officer concerned shall endeavour to obtain from time to time such tions for the Law information as may lead to the recovery of any money due to Government and turrusn Officer. to the administrative department concerned any information which comes to his knowledge and which is likely to facilitate the recovery of the moneys due to Government.
(2) He shall be responsible for seeing that the execution of any decree IS not barred by limitation. When the period of limitation for the execution of any decree IS nearly expiring, without such decrees having been fully satisfied, he shall specially bring that fact to the notice ot the adrninistrative department concerned.
Enquiries as to the property and means of the judgement debtor.
42. (1) The administrative department concerned shall, whenever necessay, though the collector concernecl or otherwise, make enquiries as to the property and means of the judgment-debtor and endeavour to recover from him the Whole or such portion of the amount due as may be possible.
(2) Forthe purpose of making any such enquiries, the administrative department concerned may employ such trustworthy agency as it may think fit any may pass bonafide travelling expenses incurred by the person deputed to make such enquiry.
Arrangements for identification of property to be attached. (
43. Upon the Court issuing orders for the attachment of the judgment-debtor's property, the Law Officer concerned shall at once apply to the administrative department concerned to depute some one to accompany the attaching officer and to point out the property.
in 44. In case claims are made by third parties to the property attached, the Governcases where ment Officer on whose report the property was attached shall collect the evrdence.
claims are made which would show that the property belongs to the jUdgment debtor, and he shall, if to attached prop- possible, be present in the Court and instruct the Law Officer concerned, when the erty. Court is inquiring into the claim.
Procedure Procedure with 45. Where any sum due to Government under a decree is recovered otherwise then regard to recov- the agency of a Court, the Law Officer concerned shall certify such recovery to the eryoftheamount Court under Order XXI, rule z of the Code of Civil Procedure, 1908.
due.
Recoveries to be 46. As soon as the Law Officer recovers any money on behalf of the State or its credited to the officers in the execution of a decree, he shall at once credit the amount in the treasury department. to the receipt head of account of the department concerned to which the decree relates and report the fact to the department concerned.
Procedure when a decree is passed by High Court.
47. (1) When a decree has been pased in appeal in favour of the State or its officers by the High Court, the Law Officer in the High Court, administrative department or the Government Officer concerned shall, as soon as he receives copies of the judgment and decree, forward them to the Law Officer in the Civil Court, having JUrisdiction 1O execute the decree, with instructions to the moce of execution. On receipt ot SUCtl 19 ·.
(2) The administrative department concerned may also consult the Legal Remembrancer whenever he rquires advice in regard to the steps taken for the recovery of such amounts.
Writing off irre- 52. (1) As a ruie, steps for the recovey of Government dues shall be unceasingly coverable dues. continued till the period of limitation expires.
Note:- The period of limitation for execution of decree is 12 years under Article 136 of the Limitation Act, 1963.
(2) (a) If it appears to the administrative department concerned that the judgment-debtorwill not be able to pay what is due fom him un~erthe decree.
or the balance of what is due from him within the period of limitation. 0, if for any reason the administrative department concerned thinks it inexpedient that such person should be further pressed. he may, If the dues are in rspect of court fees or dues to Government in a suit or appeai by indigent person, at once write off the amount still due;
(b) in other cases he shall apply to Government through the Legal Remembrancer.
CHAPTER X GENERAL RULES FOR THE CONDUCT OF SUITS, APPEALS AND OTHER CIVIL OR CRIMINAL PROCEEDINGS Intervention in 53. If it appears to the Head of administrative cepartment or the Government Officer pending cases. concerned that the interest of Government requires that it should be intervened In any suit, appeal or other civil proceedings of which the State has been made a party, tlE;
shall follow the procedure prescribed for the suits, appeals or other civil proceedings, as the case may be, before applying to the Court that the State should be made a party to such case.
Procedure in 54. If the Head of the administrative department or the Government Officer cone mer 9 e Ii c y cerned considers that there is no sufficient time to receive orders of Government in cases. the Law Department in the cases referred to in rule 53 above or in any miscellaneous civil proceedings, he shall direct the Law Officer concerned to apply for postponement of the hearing of the case. If the Court refuses to adjourn the case, he may, if he thinks fit that the matter is urgent, take action in anticipation of the orders of the Government in the Law Department. He shall, however, at once send a full report, giVing reasons for his action to the Legal Remembrancer through his head of the department and obtain ex-post facto sanction in respect of the action taken by him.
Procedure for 55. (1) If the Head of administrative department or the Government Officer concompromises. cerned desires that any suit, appeal or other civil proceedings should be settled out of the Court or compromised in the Court, he can dOso only after obtaining the express orders of Government in the acminisjjative department concerned. However, before issuing such orders, the administrative department concerned shall consult the Legal Remembrancer.
(2) Whenever Government in the administrative department takes a deCISIOlllO compromise the litigation with a view to bring al} end to it, the administrative department concerned shall give instructions to the Law Officer concerned 10 dratt consent terms of the compromise. The Law Officer shall then file the consent terms in the Court concerned after th..~ consent terms are duly approved by the adrninistra- .
tive department concerned. :/ Procedure for 56. (1) The jaw relating to the production of unpublisneo ofticia: records as evrcence production of In the Court is contained in sections 123,124 and 162 of the Indian EVidence Act. 1872 documents from (Act f of 1872). 'I the Government (2) For the purpose of section 123 of the indian EVidence Act, only the Minister· 21 the State or its officers are parties, a reference to the Legal Remembrancer shall be made, when necessary.
(8) A Government Officer other than the head of the department who IS summoned to produce an official document, should first determine whether the document is in custody and he is in a position to produce it. Generally, all official records are supposed to be 'inthe custody of the head of the department and it is only under special circumstances that an official document can be said to be rn the custody of an individual Government Officer. If the document is in the custody of any Government officer summoned, he should first determine whether the docurnent js an unpublished official record relating to affairs of the State and privilege under section 123 should be ciaimed or if he has any doubt about the correct position, in both the cases he should refer the matter to the Secretary of his administrative department, who shall then issue necessary instructions and shall also furnish the affidavit in suitable cases. If the document is such that privilege under section 123 cannot be claimed but if the Government Officer considers that the document is a communication made to him in official confidence and that the public Interest woula suffer by its disclosure, he should claim the privilege under section 124. In doubtful cases, he Should seek the advice of the Secretary of his administrative department.
(9) The Governmeni officer, who is to attend a Court as a witness with otticiai documents should where permission under section 123 has been withheld, be given an affidavit duly Signed by the Secretary of his administrative department. He should produce it when he is called upon to give evidence and should explain that he ISnot at liberty to produce the document before the Court or to give any evidence derived from the documents. He Should, however, take with him the papers in a sealed cover which he has been summoned to produce.
(10) The Secretary of the administrative department Should abstain from entering into correspondence with the Presiding Officer of the Court concerned in regard to the grounds on which the documents have been called for.
Substitution of 57. In case of death of a defendant/respondent in any suit, appeal or other civil legal representa- proceeding filed oy the State, it shall be the duty of the head of the department or tives in case of the Government Officer concerned' to ascertain and intimate the names of legal death of the representatives of the deceased defendant/respondent alongwith their addresses person. to the Law Officer concerned for making an application to the Court for.substitution ot names of the legal representatives of the deceased within the limitation prescribed therefor, i.e. 90 days from the death of the detendant/responcent.
Procedure when 58. If any proceeding has been filed against the Government Officer by name and the Government designation and Government in the administrative department decides that the Officer is sued by Government Officer has acted in the discharge of his official duties, the case should nameanddesigna- be referred to the Legal Remembrancer.
tion Conduct of Civil 59. The Law Officer may appear in any civil or ciminal case on behalf of any and criminal case Authority, Corporation or Board under the control of Government provrded SUCh by. the Law Offic- case does not conflict with the interest of the State and other Government iitigation ers on behalf of does not suffer. In such case the Law Officers would be entitled to fees as laid down State owned Au- by Government in the administrative department concerned.
tnorities, Corporations and Boards.
Law Officers to use 60. The Law Officers shall use their own discretion as to the manner in which the their own discre- cases should be conducted by them. But they shall be guided by any instructions that tion in conducting may be issued to them by the Legal Remembrancer. Unless otner~lse specmcany cases. directed, their arguments need not, however. be lirnitec to those stated In SUCI-J instructions:
Provided that theyshould not admit or make any statements oetors the Coun as ;;.
the State Government concerned on the basis of the rules prescribed by the State Government concerned for payment of fees to its Law Officers, shall be paid from the Grants of the Legai Remembrancer of this State.
Orders as regards 67. In all suits and applications in which the Law Officer concerned appear on cost to be behalf of the State and specially in suits and applications filed by the Indigent persons scrutinised. to sue in forma pauperis, they shall scrutinise carefully the Court's order of cost and see that their costs are duly assessed and entered In the decree together with an order specifying the party from whom they are to be recovered. If the order does not properly provide tor Government cost. they shall at once Dring the fact to me notice of Legal Remembrancer in order that the desirability ot applyinq for a: review or, if necessary, filling an appeal or application for revrsion may be consioereo.
Cost of Paper 68. In cases in which First Appeals have been filed in the High Court by the State, Books to be de- the Law Officer concerned shall, when called upon to do so, deposit in the Court the posited in Court. estimated cost of preparing the Paper-Books.
Recovery oi docu- 69. The Law Officer concerned should taKe back from the Court all exhibits filed mente filed on be- on behalf of the State which are liable to be destroyed under the rules made by the half of State. High Court but which may be of use in future and forward the documents so obtained to the administrative department concerned.
List for bringing 70. In suits, appeals or other proceedings in which the State or :ts officer ISthe on record legal plaintiff, appellant or applicant, the Law Officer concerned shall send a list of cases repreeentives of for bringing on record the legal representatives of the deceased defendant or deceased deien- respondent to the administrative department concerned on the first day of each dents or respon- month.
dents.
Filing of Caveat. 71. If it is anticipated by the administrative department or the Government Officer concerned that in any suit, appeal or any other civil proceedings, the litigants are likely to obtain an ex-parte order from the Court against the State or its officers.
which may result in unnecessary complications or toss to the Government. the administrative department or the Government Officer concerned shall at once send his instructions to the Law Officer concerned in the High Court or the sub-ordinate Court, as the case may be, for filing of a Caveat In the concerned Court. The administrative department or the Government Officer concerned shall thereafter give an intimation of the same to the Legal Remembrancer for obtaining his sanction to the same.
Saving. 72. The provisions of these Rules shall be in addition to and not in derogation of any Order, Notifications or Executive Instructions etc. for the time being in force regulating any of the matters dealt with in these Ruies.
By Order.
T. D. Rinzing, Legal Remembrancer and Secretary, law.
(F. No, 21 (253)/LD/UT/2000).