Satish Chandra, C. J. - (1.) THE Slate of Uttar Pradesh appeals against the judgment of a learned Single Judge quashing a notification dated March 15, 1975. This notification was challenged by some Assistant Public Prosecutors on the ground that by placing them under the administrative and disciplinary control of the police authorities, the notification violated Section 25 (2) of the Code of Criminal Procedure. A learned Single Judge accepted this submission and quashed the said notification.
(2.) SECTION 25 of the Code of Criminal Procedure provides :- "25 (1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates. (2) Save as otherwise provided in sub-section (3) no police officer shall be eligible to be appointed as an Assistant Public Prosecutor. Provided that nothing in this subsection shall be construed to prohibit the State Government from exercising its control over Assistant Public Prosecutor through police officers. (3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint 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 offence with respect to which the accused is being prosecuted ; or (b) if he is below the rank of Inspector." The learned Single Judge, after a review of the various materials touch- ling the subject, held that the scheme behind the enactment of sub-section (2) was to make the enforcement agency independent of the police department. To achieve this policy, the State Government on March 27, 1974 issued a notification declaring that all appointments of Senior Public Prosecutors and Assistant Public Prosecutors made under the Police Act, 1861 shall cease from April 1, 1974 and the said posts of the police establishments shall stand abolished. The provisions contained in the Police Regulations in respect of Public Prosecutors were repealed. The same day, the Government issued another notification under Article 309 of. the Constitution framing the U. P. (Assistant Public Prosecutors) Appointment Rules, 1974. On June 15, 1974, the State Government issued a notification stating that the Senior Public Prosecutors, Public Prosecutors and Assistant Public Prosecutors would henceforth be under the administrative and disciplinary control of the District Magistrate at the district level. In pursuance of that policy, another Government order was issued on August 21, 1974 directing that the Character Rolls and other service records of the Public Prosecutors should be transferred by the police department to the District Magistrate. Later on, it appears that the State Government had second thoughts and reversed its policy. It issued a notification on March 15, 1975 rescinding its earlier order dated June 15, 1974 and directing that henceforth the Public Prosecutors, Senior Public Prosecutors and Assistant Public Prosecutors shall be under the control of the Superintendent of Police at the district level and the Inspector General of Police at the State level for purposes of administrative and disciplinary matters.
(3.) AS already observed, this latter notification was quashed on the view that it was in conflict with the scheme of Sec. 25 (2) of the Code of Criminal Procedure. During the pendency of the present appeal, the Governor promulgated the Code of Criminal Procedure (Uttar Pradesh Amendment) Ordinance, 1975 (U. P. Ordinance No. 38 of 1975). This Ordinance was replaced by U P. Act No. 16 of 1976 bearing the same name. By this ordinance and the resulting Act, a proviso was added to Section 25 (2) of the Code of Criminal Procedure. That proviso was added retrospectively. It stated : "Provided that nothing in this subsection shall be construed to prohibit the State Government from exercising its control over Assistant Public Prosecutor through police officers." After this amendment, sub-section (2) of Section 25 read as follows :- "2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor. Provided that nothing in this subsection shall be construed to prohibit the State Government from exercising its control over Assistant Public Prosecutor through police officers." ;