K J JOHN ASSTT PUBLIC PROSECUTOR GRADE I PALAI UTTAR PRADESH ASSTT PUBLIC PROSECUTORS ASSOCIATION Vs. STATE OF KERALA
LAWS(SC)-1990-7-13
SUPREME COURT OF INDIA (FROM: KERALA)
Decided on July 12,1990

K.J.JOHN,ASSISTANT PUBLIC PROSECUTOR GRADE I,PALAI,UTTAR PRADESH ASSISTANT PUBLIC PROSECUTORS ASSOCIATION,THROUGH ITS PRESIDENT SHRI ANRUDDHCHAUBEY Appellant
VERSUS
STATE OF UTTAR PRADESH,STATE OF KERALA Respondents


Cited Judgements :-

JAIDHARI ROY VS. STATE OF BIHAR [LAWS(PAT)-1994-7-5] [REFERRED TO]
OMANAKUTTAN NAIR VS. STATE OF KERALA [LAWS(KER)-2002-9-10] [REFERRED TO]
MAHENDRA KUMAR TIWARI VS. STATE OF JHARKHAND [LAWS(JHAR)-2008-4-57] [REFERRED TO]
SHAMBHU KUMAR S/O LATE MOHIT LAL INDRA NAGAR LOHIYAHI VS. STATE OF BIHAR [LAWS(PAT)-2013-1-76] [REFERRED TO]
SANJAY AGRWAL VS. STATE OF UP [LAWS(ALL)-2007-6-68] [REFERRED]
COIMBATORE TEXCITY SHARE BROKERS ASSOCIATION VS. UNION OF INDIA [LAWS(MAD)-1992-1-78] [REFERRED TO]
A K AHLAWAT VS. STATE OF HARYANA [LAWS(P&H)-2010-5-18] [REFERRED TO]


JUDGEMENT

KASLIWAL - (1.)AS identical questions of law are involved in both the above cases, they are disposed of by one single order.
(2.)CIVIL Appeal No. 1101 of 1981 is directed against the judgment of High Court of Kerala at Ernakulam dated 8/10/1980. The High Court has granted a certificate under Article 133(l) of the Constitution of India certifying that the case involved a substantial question of law of general importance consisting the interpretation of Sub Section (6) of Section 24 of the Code of Criminal Procedure, 1973.
The Writ Petition under Article 32 of the Constitution has been filed by the Uttar Pradesh Public Prosecutors' Association consisting the membership of Assistant Public Prosecutors, including Prosecuting Officers, Senior Prosecuting Officers, Deputy Director of Prosecution serving under the Government of Uttar Pradesh. Petitioner No. 2 is the President of the Association. In both the cases the controversy raised is that there exists a regular cadre of Prosecuting Officers and as such the State Government is bound to appoint Public Prosecutors and Additional Public Prosecutors only from among the persons constituting such cadre in view of S. 24(6) of the Code of Criminal Procedure,1973.

In order to appreciate the controversy, it would be necessary to give the background of the law and rules relating to the appointment of public prosecutors. Sections 24 and 25 of the Code of Criminal Procedure, 1973 correspond to Section 492 of the Old Code and deal with the appointment of Public Prosecutors, Additional Public Prosecutors, Special Public Prosecutors and Assistant Public Prosecutors. Under the Old Code there could be any number of Public Prosecutors appointed by the Central Government or by the State Government or by the District Magistrate or by the Sub Divisional Magistrate subject to the control of the District Magistrate. Under Section 495 of the Old Code any Magistrate enquiring into or trying a case could permit the prosecution to be conducted by any person who may do so personally or by a pleader. In the courts of Magistrates the prosecution was conducted generally by Police Officers or by persons recruited from the Bar styled as Police Prosecutors or Assistant Public Prosecutors all of whom worked Under the directions of the Police Department. Moreover, no qualification was laid down in the old Code for the Advocates being appointed as Public Prosecutors. In Section 24 of the new Code for the first time such detailed provisions have been made. In Section 24 as originally framed there were only two categories of public prosecutor (1) those appointed by the Central or State Government under this Section, and (2) those engaged by the Public Prosecutor to act under his own direction. Provision was also for the first time made for appointment of Public Prosecutor in the High Court for conducting any prosecution in the said court on behalf of the Central Government or the State Government by the concerned Government after consultation with the High Court. The appointment of Public Prosecutor or Additional Public Prosecutor of the State Government in every District could be made only from the panel of names of the persons prepared by the District Magistrate in consultation with the Sessions Judge. It was for the first time provided that in the case of Public Prosecutor and the Additional Public Prosecutor he should be an Advocate of not less than seven years standing at the Bar and in the case of Special Public Prosecutor the standing at the Bar should not be less than 10 years.

(3.)THE original Section 24 has been amended by the Criminal Procedure Code (Amendment) Act of 1978 (hereinafter referred to as the Amending Act of 1978) w.e.f. 18/12/1978 and a new Section 24 has been substituted for the original Section 24. It would be necessary to reproduce Section 24 as it stood in the original Code of Criminal Procedure, 1973 as well as Section 24 which stood after the Criminal Procedure Code (Amendment) Act, 1978.
Section 24 of the Code as it stood prior to the amendment introduced by the Code of Criminal Procedure (Amendment) Act, 1978 reads as under:

"24. Public Prosecutors- (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor for conducting, in such court, any prosecution, appeal or other proceeding on behalf of the Central or State Government, as the case may be.

(2) For every district the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district.

(3) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons who are, in his opinion, fit to be appointed as the Public Prosecutor or Additional Public Prosecutor for the District.

(4) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears on the panel of names prepared by the District Magistrate under sub-section (3).

(5) A person shall only be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-s. (1) or sub-section (2),if he has been in practice as an advocate for not less than seven years.

(6) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, an advocate who has been in practice for not less than ten years, as a Special Public Prosecutor".

The Section as amended by the Amendment Act, 1978 reads as under:

"24. Public Prosecutors- (1) For every High Court the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint ont one or more Additional Public Prosecutors, for conducting in such court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.

(2) The Central Government may appoint one or more Public Prosecutors, for the purpose of Conducting any case or class of cases in any district, or local area.

(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district. Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutoror an Additional Public Prosecutor, as the case may be for another district.

(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion, fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.

(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel or names prepared by the District Magistrate under sub-section (4).

(6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular cadre of Prosecuting Officers, the State Government 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, no suitable person is available in such cadre for such appointment that Government may appoint a person as Public prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-s. (4).

(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub-section (5) or subsection (6), only if he has been in practice as an advocate for not less than seven years.

(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.

(9) For the purposes of sub-section (7) and sub-section (8), the period during 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 or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate". .

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