WP/18205/2003 of District Bar Association, Karimnagar rep.by its Secretary, Vs The Union of India, rep.by its Secretary, Law Department, on 27 December 2006

HON’BLE THE CHIEF JUSTICE SRI G.S. SINGHVIANDHON’BLE SRI JUSTICE C.V. NAGARJUNA REDDYWrit Petition No.18205 & 18801 of 2003

Writ Petition No.18205 of 2003Between:District Bar Association, Karimnagar rep. byits Secretary, P. Ramulu … PetitionerAndThe Union of India, rep. by its Secretary,Law Department, New Delhi and others. … RespondentsWrit Petition No.18801 of 2003Between:Telangana Lawyers Association, rep by itsJoint Secretary, Shri M. Krishna Reddy… PetitionerAndThe Government of Andhra Pradesh,Rep. By its Secretary to Government,Law Department, Secretariat and others. … Respondents:: ORDER::Counsel for the Petitioners: Sri S. Satyam ReddyCounsel for the Respondents: Government Pleader for Home December 27, 2006

Per G.S. Singhvi, CJ

In these petitions filed by two associations of the Advocates, prayer hasbeen made for striking down Section 24 (6) of the Code of CriminalProcedure, 1973 (for short, ‘CrPC’) and G.O.Ms.No.102, Law (LA & J CourtsA2) Department, dated 8-8-2003 issued by the State Government for encadrement of 15 posts ofAdditional Public Prosecutors Grade-I and 12 posts of Public Prosecutors.

In the affidavits filed by them, Shri P. Ramulu, Secretary, District BarAssociation, Karimnagar, and Shri M. Krishna Reddy, Joint Secretary,Telangana Lawyers Association have emphasized the imperative of keepingthe prosecuting officers totally free from the governmental control and pleadedthat the mode of recruitment prescribed under Section 24 (6) of CrPC, whichhas the effect of excluding the practicing advocates from the zone of eligibilityis abhorrent to this concept. They have referred to Section 24 (4) of CrPC,which provides for preparation of panel of suitable persons, in consultationwith the Sessions Judge for appointment as Public Prosecutors andAdditional Public Prosecutors in the district and averred that the non-obstanteclause contained in sub-section (6) of Section 24 not only dispenses with therequirement of consultation with the Sessions Judge, but also confersunbridled power on the executive apparatus of the State to select the personsof their choice. They have also pleaded that exclusion of the members oflegal profession from the zone of eligibility for recruitment to the posts ofAdditional Public Prosecutors and Public Prosecutors is clear antithesis of therequirement of Prosecutors who are supposed to act independently and notsuccumb to the pressures of the executive and political apparatus of theState. They have questioned G.O.Ms.No.102, dated 8-8-2003 on the groundthat encadrement of the posts of Additional Public Prosecutors Grade-I andPublic Prosecutors will have the effect of depriving the practicing Advocates oftheir right to compete for selection and appointment on those posts.

The stand of the State Government, as reflected in paragraphs 2 to 8 ofthe affidavits filed by Shri K. Bhikshamaiah, Deputy Secretary to Government,Home (Courts) Department, is that Assistant Public Prosecutors and SeniorAssistant Public Prosecutors are appointed under Section 25 of CrPC and they work under the control of Director of Prosecutions, who is also head ofthe department. According to Shri Bhikshamaiah, the State Government has,after considering the recommendations of the Law Commission of India,created Prosecution Department and there is a regular cadre of PublicProsecutors who conduct cases in different Courts. It is also the case of theState that the method of appointment laid down in the Andhra Pradesh StateProsecution Service Rules, 1992 (for short, ‘the 1992 Rules’) ensures thatexperienced persons are appointed on higher posts.

Shri S. Satyam Reddy, learned counsel for the petitioner associationslamented that despite the recommendations made by the Law Commission,the Parliament and the State Legislatures have not taken steps to enact lawsmaking the Prosecutors totally independent of the governmental control andargued that exclusion of the practicing advocates from the zone of eligibility forrecruitment as Additional Public Prosecutors and Public Prosecutors will haveserious adverse impact on the criminal justice system in the State. He arguedthat the rules framed under Section 24 (6) are in direct conflict with Section 24(7) inasmuch as, the rules provide for recruitment of Additional PublicProsecutors and Public Prosecutors from among the members of ProsecutionCadre whereas in terms of Section 24 (7), a person is not even eligible to beappointed as Public Prosecutor or Additional Public Prosecutor unless he hasbeen in practice as an Advocate for not less than seven years. Learnedcounsel then submitted that by virtue of Section 24 (6), all other sub-sectionshave been rendered redundant and the executive apparatus of the State hasbeen given total control over the Prosecutors. Shri Reddy assailedG.O.Ms.No.102, dated 8-8-2003 by arguing that encadrement of 12 posts ofPublic Prosecutors and 15 posts of Additional Public Prosecutors in theProsecution Cadre for 12 districts in the State will deprive the Advocates oftheir right to compete for selection and appointment in accordance withSection 24 (4) and (5) of CrPC.

Learned Government Pleader for Home defended the recruitment ofAdditional Public Prosecutors and Public Prosecutors from among AssistantPublic Prosecutors by arguing that they not only fulfill the academicqualification, but also have sufficient experience of working in the Courts of Munsifs. He submitted that Section 24 (6) was introduced by CrPC(Amendment) Act, 1978 for ensuring that only experienced persons handle thecases involving serious offences which are tried in the Sessions Courts. Learned Government Pleader further argued that the 1992 Rules have beenframed by the State Government keeping in view the provisions of Section 24(6) of CrPC and the apprehension of the petitioners that recruitment ofProsecutors in accordance with the 1992 Rules will adversely affect theindependence of the Prosecutors is not well founded. He emphasized that themembers of the Prosecution Cadre have been discharging their dutiesindependently uninfluenced by any pressure from the political or executivebranches of the State and argued that the prayer made by the petitioners forstriking down the rules should be rejected. On the issue of encadrement of 12posts of Public Prosecutors and 15 posts of Additional Public Prosecutors,learned Government Pleader submitted that this has been done with a view toensure that only those persons who have gained sufficient experience ofworking as Prosecutors in the Courts of Munsifs and Chief JudicialMagistrates are entrusted with serious cases triable in the Sessions Courts.

We have given serious thought to the respective arguments. Fordeciding the issue raised by the petitioners, it will be useful to notice therelevant statutory provisions. The same are as under:

Sections 24 and 25 of CrPC.

Sections 24 and 25 of CrPC, which relate to appointment of PublicProsecutors and Additional Public Prosecutors in the High Court and Districtsor local area and Assistant Public Prosecutors in the Courts of Magistrates,read as under:

“24. Public Prosecutors:

(1) For every High Court, the Central Government or the StateGovernment shall, after consultation with the High Court, appoint aPublic Prosecutor and may also appoint one or more Additional PublicProsecutors, for conducting in such Court, any prosecution, appeal orother proceeding on behalf of the Central Government, as the case maybe.

(2) The Central Government may appoint one or more PublicProsecutors, for the purpose of conducting any case or class of casesin any district, or local area.

(3) For every district, the State Government shall appoint a PublicProsecutor and may also appoint one or more Additional PublicProsecutors for the district:

Provided that the Public Prosecutor or Additional PublicProsecutor appointed for one district may be appointed also to be aPublic Prosecutor or an Additional Public Prosecutor, as the case maybe, for another district.

(4) The District Magistrate shall, in consultation with the Sessionsjudge, prepare a panel of names of persons, who are, in his opinion, fitto be appointed as Public Prosecutors or Additional Public Prosecutorsfor the district.

(5) No person shall be appointed by the State Government as thePublic Prosecutor or Additional Public Prosecutor for the district unlesshis name appears in the panel of names prepared by the DistrictMagistrate under sub-section (4).

(6) Notwithstanding anything contained in sub-section (5), where in aState there exists a regular Cadre of Prosecuting officers, the StateGovernment shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre:

Provided that where, in the opinion of the State Government, nosuitable person is available in such Cadre for such appointment thatGovernment may appoint a person as Public Prosecutor or AdditionalPublic Prosecutor, as the case may be, from the panel of namesprepared by the District Magistrate under sub-section (4).

(7) A person shall be eligible to be appointed as a Public Prosecutor oran Additional Public Prosecutor under sub-section (1) or sub-section(2) or sub- section (3) or sub-section (6), only if he has been in practiceas an Advocate for not less than seven years.

(8) The Central Government or the State Government may appoint, forthe purpose of any case or class of cases, a person who has been inpractice as an advocate for not less than ten years as a Special PublicProsecutor.

(9) For the purposes of sub-section (7) and sub-section (8), the periodduring which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code)service as a Public Prosecutor or as an Additional Public Prosecutor orAssistant Public Prosecutor or other Prosecuting Officer, by whatevername called, shall be deemed to be the period during which suchperson has been in practice as an advocate.

25. Assistant Public Prosecutors:

1) The State Government shall appoint in every district one or moreAssistant Public Prosecutors for conducting prosecutions in thecourts of Magistrates.Assistant Public Prosecutors for conducting prosecutions in thecourts of Magistrates.

1A) The Central Government may appoint one or more Assistant Public Prosecutors for the purpose of conductingany case or class of cases in the courts of Magistrates.any case or class of cases in the courts of Magistrates.

2) Save as otherwise provided in sub-section (3), no police officershall be eligible to be appointed as an Assistant PublicProsecutor.shall be eligible to be appointed as an Assistant PublicProsecutor.

3) Where no Assistant Public Prosecutor is available for thepurposes of any particular case, the District Magistrate mayappoint any other person to be the Assistant Public Prosecutor in-charge of that case:

Provided that a police officer shall not be so appointed–

a)if he has taken any part in the investigation into the offencewith respect to which the accused is being prosecuted; orwith respect to which the accused is being prosecuted; orb)if he is below the rank of Inspector.”

Andhra Pradesh Prosecution Service Rules, 1992

In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India read with Sections 24 and 25 of CrPC,the Governor of Andhra Pradesh made the 1992 Rules for the AndhraPradesh State Prosecution Service. Rules 2, 3 and 5 of the 1992 Rules,which provide for constitution of the service, method of appointment andqualifications, and have bearing on the decision of the writ petition, read asunder:

“2. Constitution:-

The Service shall consist of the following categories of posts inthe Andhra Pradesh State Prosecution Service.

Category-1:Director of Prosecutions

Category-2:Additional Director of Prosecutions Category-3:Public Prosecutor/Joint Director of Prosecutions Additional Public Prosecutors Grade-I/Category-4:

Deputy Director of Prosecutions

Additional Public Prosecutors, Grade-IICategory-5:

Senior Assistant Public ProsecutorCategory-6:

Assistant Public ProsecutorCategory-7:

3. Method of Appointment:-

Subject to the other provisions in these rules, the method ofappointment for the several categories shall be as follows:- Note:

a)30% of the substantive vacancies in the category ofAdditional Public Prosecutor, Gr.II (Category-5) shall be filledby direct recruitment.Additional Public Prosecutor, Gr.II (Category-5) shall be filledby direct recruitment.

b)The remaining vacancies in the category of AdditionalPublic Prosecutor, Grade-II shall be filled by promotion fromthe Category-6. If a suitable or qualified person in thecategory of Senior Assistant Public Prosecutor is notavailable, the said vacancies shall also be filled by directrecruitment or by contract.Public Prosecutor, Grade-II shall be filled by promotion fromthe Category-6. If a suitable or qualified person in thecategory of Senior Assistant Public Prosecutor is notavailable, the said vacancies shall also be filled by directrecruitment or by contract.

c)The State Level Recruitment Board in Police Departmentshall from time to time hold the examination/selection for thecandidates for appointment by direct recruitment.”shall from time to time hold the examination/selection for thecandidates for appointment by direct recruitment.”

5. QUALIFICATIONS:

No person shall be eligible for appointment to the categoriesspecified in column (1) of the Table below by the method specified incolumn (2) unless he possesses the qualifications specified in thecorresponding entry in column (3) thereof:-column (2) unless he possesses the qualifications specified in thecorresponding entry in column (3) thereof:- CategoryMethod ofQualificationsAppointment AMENDMENT

Provided that the candidates having passed the five year coursein Law after Intermediate shall also be eligible for recruitment to theposts of APPs (Added as per G.O.Ms.No.448, Home (Courts-C) Dept.,dt.16-9-92.”

Analysis of the statutory provisions:

Section 24 (4) envisages that the District Magistrate shall, inconsultation with the District and Sessions Judge, prepare a panel of thenames of persons who are considered fit to be appointed as PublicProsecutors or Additional Public Prosecutors for the district. Sub-section (5),which is couched in negative form, declares that no person shall be appointedby the State Government as Public Prosecutor or Additional Public Prosecutorfor the district unless his name appears in the panel prepared under sub-section (4). However, the prohibition contained in sub-section (5) is subject tothe non-obstante clause contained in sub-section (6), which lays down that ifthere exist a cadre of prosecuting officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among thepersons constituting such cadre. Proviso to this section enables the StateGovernment to revert to the panel prepared under sub-section (4), if suitableperson is not available in the cadre of prosecuting officers.

The 1992 Rules provide for direct recruitment to the cadres of AssistantPublic Prosecutors (100%) and Additional Public Prosecutors Grade-II (up tothe extent of 30%) through the agency of the Andhra Pradesh State LevelRecruitment Board (hereinafter referred to as ‘the Board’). The minimumqualifications prescribed for the post of Assistant Public Prosecutors areBachelor’s Degree in any subject with a Bachelor’s Degree in Law of aUniversity in India established or incorporated by or under a Central Act, aProvincial Act or a State Act or an Institution recognized by the UniversityGrants Commission or an equivalent qualification and at least three years’practice as an Advocate in Criminal Courts in the State. For the post ofAdditional Public Prosecutor Grade-II, the minimum academic qualification isidentical to the one prescribed for the post of Assistant Public Prosecutor, butthe candidate is required to possess experience of at least seven years as anAdvocate. This shows that at the entry level, in the cadre of Prosecutors, theAdvocates having requisite experience are eligible to be considered. Therequirement of seven years experience as an Advocate for appointment asAdditional Public Prosecutor Grade-II by direct recruitment is in consonancewith Section 25 (7) CrPC. The Additional Public Prosecutors Grade-II up tothe extent of 70%, Additional Public Prosecutor Grade-I/Deputy Director ofProsecutions, Public Prosecutor/Joint Director of Prosecutions, AdditionalDirector of Prosecutions and Director of Prosecutions are required to be filledby promotion. The reason why the rule making authority has not provided fordirect recruitment to these posts is not far to seek. By providing recruitment tothese posts only by promotion, the rule making authority wanted to ensure thatonly persons with sufficient experience of having worked as Prosecutors inthe lower Courts are assigned the task of dealing with more serious cases inthe higher Courts. This is also intended to ensure that the members of thelower cadre have adequate avenues of promotion, which will continue toinspire them to give their best to the society.

In our opinion, the decision of the State Government to constituteProsecution Cadre and regulate recruitment to encadred posts by framingrules under proviso to Article 309 of the Constitution does not, in any manner,violate Sections 24 (4), (5) or (7) and the 1992 Rules cannot be declared ultravires the provisions of Section 24 of CrPC merely because they do not providefor direct recruitment to the posts of Additional Public Prosecutors Grade-I,Public Prosecutors and other higher posts. What should be the methodologyof recruitment to the particular service or post, what should be the source ofrecruitment and what should be the qualifications are matters which lie in theexclusive prerogative of the employer and the Court cannot interdict in thesematters unless it is shown that the rules regulating recruitment to anyparticular service or post is violative of the doctrine of equality or any otherconstitutional provision or law enacted by the competent legislature. TheCourt cannot impose its views on the employer and direct that recruitment tothe particular service or a post should be made by the method which it deemsproper. Any such direction would amount to unwarranted transgression on theemployer’s prerogative to make recruitment. It may also amount to usurpationof the rule making power of the State.

The argument of Shri S. Satyam Reddy that the scheme of the 1992Rules denies the practicing Advocates of the right to be considered forrecruitment as Additional Public Prosecutors and Public Prosecutors is basedon a wholly unfounded assumption that inexperienced persons are appointedto handle the cases, which are tried in the Sessions Courts. At the cost ofrepetition, we deem it proper to mention that except for the post of AssistantPublic Prosecutor, no person can be appointed to cadred posts unless hepossesses the minimum academic qualification i.e. Bachelor’s Degree in anysubject with Bachelor’s Degree of Law and has practice as an Advocate for atleast seven years. Therefore, the members of Bar, who have requisiteexperience can compete for selection and appointment by direct recruitmentand there is no basis for the complaint that the Advocates with sufficientexperience are excluded from the zone of eligibility.

The petitioners’ challenge to encadrement of 15 posts of Additional Public Prosecutors Grade-I and 12 posts of Public Prosecutors is also liable tobe negatived because, as mentioned above, the same does not result indepriving the practicing Advocates of their constitutional or legal rights andthose who are eligible can compete for appointment to the post of AdditionalPublic Prosecutor Grade-II by direct recruitment.

The argument of the learned counsel that recruitment made inaccordance with the provisions of Section 24 (6) of CrPC may result incompromising independence of the Prosecutors is founded on a mistakenbelief that those appointed as Assistant Public Prosecutors, Senior AssistantPublic Prosecutors, Additional Public Prosecutors Grade-II and Grade-I andPublic Prosecutors are susceptible to the pressures of extraneous forcesincluding executive and political apparatus of the State. We cannot acceptsuch preposterous assumption and declare Section 24 (6) unconstitutional.

The role of Public Prosecutors came up for consideration before a five Judge Bench in Sheonandan Paswan v. State of Bihar[[1]]. Bhagwati, CJ

and Oza, J expressed their views in the following words:

“The Public Prosecutor is the counsel for the Government forconducting prosecution on behalf of the State Government or theCentral Government, as the case may be. He is an officer and likeevery Advocate practicing before court, he also owes an obligation tothe court to be fair and just; he must not introduce any personal interestin the prosecution nor must he be anxious to secure conviction at anycost. He must present the case on behalf of the prosecution fairly andobjectively. He is bound to assist the court with his fairly consideredview and the fair exercise of his judgment.”

Venkataramaiah, J expressed his opinion in the following terms:

“A Public Prosecutor is not a persecutor. He is the representativenot of an ordinary party to a controversy, but of sovereignty whoseobligation to govern impartially is as compelling as its obligation togovern at all, and whose interest, therefore, in a criminal prosecution isnot that it shall win a case, but that justice shall be done. As such he isin a peculiar and very definite sense the servant of the land the twofoldaim of which is that guilt shall not escape or innocent suffer. He shouldprosecute with earnestness and vigour. It is as much his duty to refrainfrom improper methods calculated to produce a wrongful conviction as it is to use every legitimate one to bring about a just one.”

In S.B. Shahane v. State of Maharashtra[[2]], the Supreme Court emphasized the need of separate cadre of Assistant Public Prosecutors etc.

and observed:

Conclusion

“When Assistant Public Prosecutors are appointed under Section25 of the Code for conducting prosecutions in courts of Magistrates in adistrict fairly and impartially, separating them from the police officers ofthe Police Department and freeing them from the administrative ordisciplinary control of officers of the Police Department, are theinevitable consequential actions required to be taken by the StateGovernment which appoints such Assistant Public Prosecutors,inasmuch as, taking of such actions are statutory obligations impliedlyimposed upon it under sub-section (3) thereof. When suchconsequential actions are taken by the State Government in respect oflarge number of persons appointed as Assistant Public Prosecutors, itbecomes necessary for putting them on a separate cadre of AssistantPublic Prosecutors and creating a separate Prosecution Department assuggested by the Law Commission in its Report making thoseAssistant Public Prosecutors subject to control of their superiors in thehierarchy in matters of administration and discipline, with the head ofsuch Prosecution Department being made directly responsible to theState Government in respect of conduct of prosecutions by theAssistant Public Prosecutors of his department.”

The Government of Andhra Pradesh has already framed rules forconstitution of separate prosecution service and laid down the method ofrecruitment which, as mentioned above, do not suffer from any constitutionalor legal infirmity.

In the result, the writ petitions are dismissed.

G.S. SINGHVI, CJ

C.V. NAGARJUNA REDDY, J

December 27, 2006svs

[1](1987) 1 SCC 288

[2]1995 Supp (3) SCC 37