The Governor of Bihar has amended The Bihar Service Code, 1952 in exercise of powers conferred by the proviso to Article 309 of the Constitution of India to elevate the status of Office of The Advocate General, Bihar.
The amendment reads: "The Office of The Advocate General, Bihar" shall be added after S.No.-33 at S.No.-34 in the list of Heads of Department of the Appendix-3 of the Bihar Service Code." It has been notified in the Bihar Gazette No. 856 on August 28, 2024.
It implies that the Advocate General (AG) will now be deemed as the Head of Department of Government of Bihar. The upgradation of the AG Office into a separate department is a significant institutional change. AG has been designated him as head of the newly created department. AG has been granted the status of Cabinet rank minister. During 2010-2015, he headed education department and later environment and forest department as State's cabinet minister.
Notably, a former legislator and minister, Prashant Kumar Shahi was re-appointed Advocate General in January 2023. His appointment was made after the resignation of Lalit Kishor, his predecessor. Shahi held the same post during 2005-2010. He is a law graduate from B.H.U, Varanasi.
Article 165 of the Constitution of India makes a provision for the appointment of Advocate-General for the State. The provision reads: "(1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State.
(2) It shall be the duty of the Advocate-General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.
(3) The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine. Conduct of Government Business."
The Law Manual states that "No person shall be appointed Advocate General unless he gives a declaration in writing that he is free from embarrassments."
It also states that "whenever an Advocate General is appointed, he shall on his appointment report to the Government: (i) the cases in which he can not represent Government owing to his having received instruction from the other party (ii) in case he is a Director or Advisor of a company, the fact of his being such a Director or Advisor."
The Advocate General used to be appointed under Section 24 of the Code of Criminal Procedure, 1973 (2 of 1974) to be the public Prosecutor for all cases before the High Court. Section 18 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 makes provision for public prosecutors. Section 20 (12) of BNSS states that the provisions of the Section 20 "shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor."
Under clause (2) of Article 165 of the Constitution, the Governor has also assigned, the following duties to the Advocate General, namely :-
(A) ADVISORY DUTIES
(i)To advise Government of any legal matter which may be referred to him for opinion.
(ii)To assist the Principal Legal Remembrancer in conveyancing work and to draft such instruments and other Legal documents as the Government may require.
(iii)To advise the Principal Legal Remembrancer in all such matters in which his opinion is sought.
(vi) To advise district officer (as per rule 94 infra) on any proceedings whether civil or criminal conducted by him or to be conducted by him, on behalf of Government.
(v)To advise, when required by Government, the Court of Wards in matters of civil nature in which litigation may arise or which are subject matter of pending litigation.
(B) LEGISLATIVE DUTIES
(i)To scrutinies such Drafts, Bills, as may be referred to him, for a scrutiny by the Law and Legislative Affairs Department and advise generally upon the proposed measures.
(ii)To report to the Law and Legislative Affairs Department, any flaws in any law and any matter arising out of cases already, which, in his opinion should be brought to the notice of Government.
(iii)To attend, take part and speak in any proceeding of the State Legislative assembly, as provided in Article 177 of the Constitution, when requested by Government to do so.
(C) OTHER DUTIES
(i)To prepare briefs for use of counsel engaged to represent the Government in appeals and references (Civil or Criminal), before the Supreme Court.
(ii)To represent Government before the Supreme Court in all such cases in which the Government requires him to do so.
(iii) To represent State of Union Government in the High Court in the following matters/cases, namely :-
(a)All civil and criminal cases on the original side ;
(b)Such criminal cases which the High Court transfers to itself from any other court for trial;
(c)All letters patent appeals;
(d)Appeals by accused persons against capital sentences and against conviction for murder if any of its forms;
(e)Appeals preferred by Government against orders of acquittals ;
(f)Appeals filed by accused persons set down for bi-party hearing, in which the appellant is represented by a lawyer ;
(g)Revision petitions filed by Government ;
(h)Revision petitions filed on behalf of private persons and set down for bi-party hearing in which the applicant is represented by a lawyer;
(i)Proceedings regarding the transfer of cases, which have been set down for bi-party hearing;
(j)Any other proceedings in which his services may be required by Government.
Provided that his services shall not be requisitioned to defend a Government servant in the proceedings under contempt of Courts Act.
(iv)To appear in any court subordinate to the High Court, in any civil case, when specially directed by the Government.
(v)To represent Government in all suits, appeals, revisions, references and other proceedings of civil nature in which Government is a party before the High Court or Arbitration Tribunal.
(vi)To represent Government in any civil, criminal or quassi-judicial proceedings of special importance in the High Court, in any court or before any authority or Tribunal in the State, when so directed by Government.
(vii)To represent Government in all cases before the Board of Revenue of the State Industrial Tribunal, when so directed by the Government.
(viii)To represent the court of Wards in the High Court, in proceedings of civil nature, when so directed by the Government.
(ix)To represent Government in all departmental or other enquiries, when so required by the Government in writing.
(x)To represent a party before any court in a proceedings of public importance whether or not the State Government, is a party when so required by the State Government.
(xi)To represent the Union of India in such cases as may be directed by the State Government.
(xii)To report to the Government the result of all cases, together with his opinion, instituted or conducted by him at the instance of or on behalf of Government.
(xiii)To procure certified copies of any judgement or order passed by the High Court which may be required by Government or may contain comments on any action taken by Government; and
(xiv)To perform such other duties of a legal character as may be assigned to him by the Government from time to time and to discharge the duties imposed on him by any law for the time being in force.
The Advocate General is debarred from accepting brief from any private person in any criminal case in any court. He may accept a brief from a private person in any civil case in any court: Provided that such acceptance does not interfere with his duties under these rules, and is not a case in which Government or the court of Wards is a party.
He is debarred from accepting a brief on behalf of a legal practitioner or an Advocate in proceeding taken against him under the Legal Practitioners Act, 1879 (XVIII of 1879) or under the Advocate Act, 1961 (XXV of 1961) or under other similar enactment for time being in force. He shall not accept appointment as a director or as an advisor to any company without the sanction of Government. He shall not give legal advice to a private person on matters in which his interest is adverse to Government. He shall not give advice in any case to private persons in his opinion, he is likely to be called upon to advice Government in the case. He shall not accept brief from any person, whether a petitioner or a respondent, challenging the decision regarding a candidate to local bodies or to the State Legislature or Parliament.
The Advocate General may not withdraw from a prosecution which he has been directed by Government to initiate, without prior concurrence of the department which directed him to initiate the Proceeding, nor may be withdraw from a prosecution initiated by him suo-motu without prior concurrence of the Law and Legislative Affairs Department.
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