Mr. Ashim Kumar Banerjee, J. - (1.) Writ petitioner was the public prosecutor under the South Eastern Railway and working at Chakradharpur at the relevant point of time. The writ petitioner was served with an order of suspension dated 30th March, 1995 followed by a charge sheet dated 21st April, 1995. It was contended on behalf of the petitioner that in accordance with the provision of the Criminal Procedure Code the public prosecutors appointed therein were answerable to their departmental head. As such when the writ petitioners along with others were appointed as Public Prosecutors, they were to provide for an independent and separate organisation which should have an independent departmental head and as such the order of suspension and charge sheet issued by the Deputy Security Commissioner, Railway Protection Force were not valid and binding upon him. In support of such contention two decisions had been relied on: (i) Division Bench of the Punjab and Haryana High Court in the case of Kissan Singh v. State of Punjab reported in 1989, Criminal Law Journal, Page 1309. (ii) Unreported Single Bench decision of Rajasthan High Court in the case of Sohan Singh v. Union of India & Ors. (S.B. Civil Petition No. 465 of 1995). Relying upon these two decisions Mr. Mazumder appearing for the petitioner submitted that the order of suspension and the charge sheet were liable to be quashed and set aside. Ms. Aparajita Rao, learned counsel for the respondent, contended that although the writ petitioner was re designated as public prosecutor he continued to be a member of the Railway Protection Force and the Deputy Security Commissioner as well as Chief Security Commissioner were entitled to exercise their disciplinary control over the members of the force including the petitioner. Adequate opportunity had been given to the writ petitioner to defend himself in the said proceedings and no prejudice had caused to him by issuance of the said charge sheet by the Deputy Security Commissioner in as much as no malafide had been alleged.
(2.) In the case of S.B. Shahane & Ors. v. State of Maharashtra reported in Judgment Today 1995 Vol. IV, SC, 245 : [1995(2) SLR 747 (SC)] the Apex Court held that there should be a creation of separate cadre of Assistant Public Prosecutors and Prosecutors and this is not to be under control of the Police Force and there should be a separate prosecution department for conduct of all prosecution by them before the Magistrate Court and making the head to be appointed for such department who shall be responsible to the State Government. Following the said Apex court decision in case of prosecuting personnels of the Railway Protection Force have been held to be free from the clutches of the hierarchy of the Railway Protection Force by the Rajasthan High Court in the case of Soltan Singh (Supra). The Single Bench of the Rajasthan High Court in the case of Sohan Singh (Supra) relied on a decision of a Division Bench of the Punjab and Haryana High Court in the case of Kissen Singh Kundu v. State of Haryana & Ors. (supra) two paragraphs of the said Bench judgment as relied on by the Single Bench is quoted below: "Applying the principles laid down by the Supreme Court and having regard to the legislative history and the object and purpose which was sought to be achieved by the enactment of Section 25(2), there cai, be no manner of doubt that if administrative and disciplinary control over the public prosecutors was entrusted to the officers of the police department, the very purpose for which Section 25 was enacted would be frustrated. This position is not altered merely because the State Government is invested with the powers of ultimate control to pass orders to dismiss or remove a public prosecutor. The State Government appoints Assistant Public Prosecutors and it can alone dismiss or remove them but that does not mean that the police offices to whom immediate disciplinary control has been entrusted will cease to have any right to exercise powers over the Assistant Public Prosecutors. Once the police officers are entrusted with these powers they will have jurisdiction to regulate and control the working of Assistant Public Prosecutors. It is difficult to accept the contention that even though the Assistant Public Prosecutors would be subordinate to police officer in administrative and disciplinary matters, they would be independent in discharge of their duties and functions. Once they are liable to answer to the Superintendent of Police and Inspector General of Police, in substance they are subordinate officers to them and they would be liable to carry out their orders and directions. The State Government while exercising its power of dismissal or removal is bound to be affected by the reports and opinion of those police officers who have administrative and disciplinary control over the Public Prosecutors, therefore, the contention that since the ultimate control vests with the State Government the immediate control of police officers would not affect the independence of the prosecuting agency is fallacious. Similar contention was rejected by the Supreme Court in Nripendra Nath Bagchi's case, AIR 1966 SC 447". ...... ...... ...... ...... ...... "In view of the above factual and legal position, we find that the action of the respondent State of Haryana, in appointing a police officer as Director of Prosecution, that is, in charge of the Prosecution Agency of the State, is wholly illegal and violative of the very letter and spirit of Sections 24 and 25 of the Code of Criminal Procedure. We, therefore, by issuing a writ' of certiorary, quash the appointment of the Director of Prosecution, Haryana, who happens to be an officer of the Police Department, and by issuing further a writ of prohibition, we forthwith restrain the State of Haryana from permitting any police officer to occupy the office of the Director of Prosecution. By issuing a writ of mandamus, we command the State of Haryana to fill the post of director of Prosecution only by appointing a seniority officer belong to the Prosecution Agency, having sufficient experience of actual working as a Public Prosecutor. This writ petition is allowed with costs, which are quantified as Rs. 1000/-."
(3.) I do not find any reason to disagree with the Division Bench and Single Bench of the Punjab and Haryana High Court and Rajasthan High Court in the case of Sohan Singh (Supra) and Kissen Singh Kundu (supra) respectively. Relying on the said two decisions I hold that the order of suspension and the charge sheet issued upon the petitioner by the Divisional Security Commissioner, Railway Protection Force are had and illegal and are accordingly quashed. The respondent authority is, however, granted liberty to appoint an appropriate person to head the prosecution department. In case, such appointment is made the said authority so to be appointed would be entitled to initiate disciplinary proceedings against the writ petitioner on the self same charges if he so desires. Writ petition is thus disposed of. There would be no order as to costs. Urgent xerox certified copy will be given to the parties, if applied for. Order accordingly. ;