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Baban and ors. Vs. Sambamurthy and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1980CriLJ248
AppellantBaban and ors.
RespondentSambamurthy and anr.
Excerpt:
.....have got acquired or accrued right to continue the proceedings despite the coming into force of the amended provision. - 3. he must be well conversant with telugu, urdu, marathi or kannada; the decision referred to above clearly declare that the order placing me assistant public prosecutors subject to the control of the police officers is ultra vires of section25 and liable to be set aside. 13. we are, therefore, clearly of the view that the assistant police prosecuting officers, who were validly appointed prior to 1-4-1974, who including those that were appointed in the year 1956 by the inspector-general of police, would be deemed to have been appointed under the cr......that arises for consideration is whether the respondent no. 1, who was appointed as asstt. police prosecuting officer and was then conducting c. c. no. 437/ 78 on the file of iv metropolitan magistrate, hyderabad, is competent to conduct the prosecution. it is the contention of the petitioners that the 1st respondent is the assistant police prosecuting officer who was appointed by the inspector-general of police in the year 1956 and is a 'police officer.' having regard to section 25 of the cr. p. c., 1973 (act ii of 1974), only the state government is competent to appoint an assistant public prosecutor for conducting the prosecutions in the courts of magistrates. however, the state government, except as provided in sub-clause (3) of section 25 cannot appoint a police officer as.....
Judgment:

Madhava Reddy, J.

1. This Criminal Revision case comes before us on a reference made by our learned brother Muktadar, J. The question that arises for consideration is whether the respondent No. 1, who was appointed as Asstt. Police Prosecuting Officer and was then conducting C. C. No. 437/ 78 on the file of IV Metropolitan Magistrate, Hyderabad, is competent to conduct the prosecution. It is the contention of the petitioners that the 1st respondent is the Assistant Police Prosecuting Officer who was appointed by the Inspector-General of Police in the year 1956 and is a 'Police Officer.' Having regard to Section 25 of the Cr. P. C., 1973 (Act II of 1974), only the State Government is competent to appoint an Assistant Public Prosecutor for conducting the prosecutions in the Courts of Magistrates. However, the State Government, except as provided in sub-clause (3) of Section 25 cannot appoint a Police Officer as an Assistant Public Prosecutor. The petitioner's objection that the 1st respondent cannot conduct the prosecution was upheld by the learned Metropolitan Magistrate by his order dated 29-9-1978. On a revision by the 1st respondent, the learned Metropolitan Sessions Judge, by his order dated 2(5-12-1978 reversed the order of the Magistrate and held that the Assistant Police Prosecuting Officers are not appointed under the Police Act, but are appointed under the Hyderabad General Services and Andhra Pradesh General Subordinate Service Rules. They are not 'Police Officers.' He further held that Section 25, Cr. P. C does not speak of administrative control, but only of the appointing authority. Mr. Veerabhadrarao, the learned Counsel for the petitioner, contends that the 1st respondent, who is under the administrative control of the Deputy Commissioner of Police and the Inspector-General of Police, is a Police Officer. He further contends that he has not been appointed by the State Government and as such, he Is not an Assistant Public Prosecutor as envisaged by Section 25 of the Cr. P, C. and is not competent to conduct the prosecution against the petitioners in the Metropolitan Magistrate's Court.

2. The learned Public Prosecutor raised a preliminary objection that having regard to Section 397, Cr. P. C. this second revision petition after the order of the Metropolitan Magistrate is not maintainable. No doubt, if once an application for revision under Section 397 is filed before a Sessions Judge, no further application for revision is maintainable in the High Court. But this prohibition is not in general terms. It merely prohibits the person who has already filed this revision petition before the Sessions Judge, from invoking the revisional jurisdiction of the High Court once again. The prohibition operates only against the person who has invoked the jurisdiction of the Sessions Court, and does not preclude a second revision petition to the High Court by any other person. The wording of Sub-section (3) of Section 397, Cr. P. C. makes this position abundantly clear. That apart, neither Section 397 not any other provision of the Cr. P. C. takes away the inherent power of the High Court to exercise its revisional jurisdiction suo motu. In the instant case, against the order of the Metropolitan Magistrate in their favour, the present petitioners had not filed any revision petition. It was the 1st respondent that had invoked the jurisdiction of the Metropolitan Sessions Judge. That revision petition having been allowed, the accused have moved the High Court by way of a revision petition. In as much as only the person who has once moved the Sessions Court by way of revision is prohibited from filing a second revision petition in the High Court, the preliminary objection raised by the learned Public Prosecutor is overruled. We hold that this revision petition is maintainable.

3. That the 1st respondent was appointed as Asstt. Police Prosecuting Officer in 1956 by the Inspector-General of Police is not in dispute. In the year 1959, Rules were framed under G.O.Ms. No. 1466 General Administration (Rules) Department, dated 12-10-1959. These Rules were framed in supersession of all the existing rules in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, and of all other powers vested in the Governor of Andhra Pradesh. These Rules govern the A.P. General Subordinate Service, Class XXX. They govern the appointment of Assistant Public Prosecutors, Grades I and II, which was referred to as Class XXX (a) and also the appointment of Police Prosecuting Officers who form category I and Asstt. Police Prosecuting Officers who form category II and are referred to as Class XXX (b) of A. P. General Subordinate Service. We are not concerned in this case with the Asstt. Public Prosecutors, for, 1st respondent, who is admittedly appointed as an Assistant Police Prosecuting Officer, falls under category II, Class XXX (b) of A. P. General Subordinate Services. Appointment to these posts is by direct recruitment. The appointing authority of Asstt. Police Prosecuting Officers as laid down in Rule 3 is the Inspector-General of Police. The qualifications prescribed for appointment to the said category as laid down in Rule 4 are:

1. the person must not have completed 34 years of age,

2. he must be a law graduate of a University in the State or any other recognised University;

3. he must be well conversant with Telugu, Urdu, Marathi or Kannada; and

4. he must have had not less than 3 years' active practice in Criminal Courts.

The person concerned who is ultimately appointed as Assistant Police Prosecuting Officer is required to execute an agreement as prescribed by the State Government agreeing to serve the State Government for a period of at least 2 years from the date of completion of training. The appointment of the 1st respondent continued to be governed by these Rules.

4. It would be seen from these Rules that before appointment or after the appointment, the Assistant Police Prosecuting Officers are not in fact Police Officers, nor are they treated as such. Under the Police Act, 1861, 'Police' is defined in Section 1 as follows:

the word 'Police' shall include all persons who shall be enrolled under this Act.

Section 2 of the Police Act enables the constitution of the Police forces which requires the Police force to be formally enrolled and shall consist of such number of officers and men, and shall be constituted in such manner, as shall from time to time be ordered by the State Government. Under the Police Act, 1861 and under the Police Manual Rules, governing the recruitment of Police Officers, different categories of Police Officers ranking from Police Constables to Inspectors of Police that may be recruited, are specified. The conditions of service of members of the subordinate ranks of any police force shall be such as may be determined by the State Government. The administrative' control and the power to appoint, dismiss or take any disciplinary action is subject to the provisions of Article 311 of the Constitution and to such rules as may be framed by the respective State Governments, the administrative head being the Inspector-General of Police.

5. The special rules for Andhra Pradesh Police Subordinate Service classify and categorise the various classes of officers and ranks in the Police Department. The Rules issued in G.O.Ms. 'No. 12-63, General Administration (Rules) dated 26-8-1959 govern some of the employees in the Police Deptt. These posts include all personnel between the rank of Police Constables and the Inspectors of Police. Above them are Gazetted Officers of Police right up to the post of Inspector-General of Police. No post of a Public Prosecutor, Assistant Public Prosecutor, Police Prosecuting Officer, or Assistant Police Prosecuting Officer is envisaged or governed by these Rules. None of the powers vested in a Police Officer either under the Police Act or under any other special enactments are conferred on Police Prosecuting Officers or Assistant Police Prosecuting Officers.

6. Apart from the persons mentioned in the said Act and Rules, no person can claim to be designated as a Police Officer. The duties of a Police Officer are specified in the various enactments. Under the Code of Criminal Procedure, the Officers-in-Charge of the Police Station and Officers investigating into offences reported to them have specified duties assigned to them. No person other than the Police Officer is empowered to discharge these duties. It is not the case of the petitioners that the Asstt, Police Prosecuting Officers appointed in 1956, or those recruited for the first time under the rules referred to above, are entrusted with any of these duties. The Asstt. Police Prosecuting Officers play no part in the investigation of crimes, or take part in the administration of the Police Dept. as such in any capacity whatsoever. The Asstt. Police Prosecuting Officers are therefore in no sense of the terms 'Police Officers.'

7. Nonetheless Mr. Veerabhadra Rao the learned Counsel for the petitioners contends that since the Assistant Police Prosecuting Officers are under the administrative control of the Deputy Commissioner of Police and the Inspector-General of Police and they are required to submit the reports of the cases being prosecuted by them to the Deputy Commissioner of Police and the Inspector-General of Police and any remarks made by the said officers would affect their chances of promotion, they are, for all practical purposes, part of the Police Department and as such 'Police Officers.' According to him they become part of the investigating agency, which is the Police Department, and having regard to the prohibition contained in Sub-section (2) of Section 25 of the Cr. P. C., are ineligible to be appointed as Assistant Public Prosecutors. No doubt Sub-section (2) to Section 25 declares that no Police Officer shall be eligible to be appointed as an Assistant Public Prosecutor, save as otherwise provided in Sub-section (3). Sub-section (3) merely enables the District Magistrate to entrust a case even to a Police Officer as Assistant Public Prosecutor, where no Assistant Public Prosecutor is available for that purpose and provided further that the Police Officer so appointed is not below the rank of an Inspector and has not taken part in the investigation into the offence with respect to which the accused is being prosecuted. In this context, it may be noticed that even the present Code does not totally prohibit the entrustment of the prosecution of cases to a Police Officer altogether. It does authorise subject to certain limitations, the appointment of Police Officers as Assistant Police Prosecuting Officers to conduct the prosecution in the specified cases. The primary object of the Code obviously is, the investigating agency should not be entrusted with the prosecution of that case before a Court of law and not that every Police Officer should be debarred altogether from conducting a case as a Prosecutor, Be that as it may, so far as the 1st respondent is concerned, it is common ground that he is not appointed to conduct this particular case. He is appointed as an Assistant Police Prosecuting Officer even before the commencement of the Code of Criminal Procedure, 1973 i.e. prior to 1-4-1974, to conduct prosecutions in general in the Magistrate's Court and he has been so conducting for a long time prior to 1-4-1974.

8. Before we consider how far the provisions of Section 25 debar any person from conducting the prosecutions after the commencement of Act II of 1974, we must notice that Section 484(2)(b) declares that notwithstanding the repeal of Cr. P. C., 1898, all appointments, not being appointments as Special Magistrates, made under the old Code and which are in force immediately before the commencement of this Code shall be deemed, to have been made under the corresponding provisions of this Code. Having regard to this saving clause, the appointment of the 1st respondent, which was made while the old. Cr. P. C., 1898 was in force, and which appointment is not shown to be contrary to the Rules then in force, continues to be a valid appointment under the new Code, as if such appointments were made under the corresponding provisions of the new Code. The corresponding provision of the new Code being Section 25, the appointment of the 1st respondent shall be deemed to be under the said provision. No doubt, the 1st respondent was appointed by the Inspector-General of Police and Section 25 now lays down that it shall be by the State Government. But having regard to Section 484(2)(b), the 1st respondent's appointment shall be deemed to be by the State Government, though in fact it was only by the Inspector-General of Police, Of course having regard to the express prohibition contained in Sub-section (2) of Section 25 if the appointment of 1st respondent is as a 'Police Officer' or deemed to be a 'Police Officer', even though the appointment is deemed to be one under the new Code, he would be ineligible for appointment and consequently his appointment may not continue to be a valid appointment so as to entitle him to conduct the prosecution in the Courts of the Magistrates. But as already stated above, it is not shown that the 1st respondent was entrusted with any of the duties of a Police Officer. He is not holding a post which falls in one of the categories of posts in Police Department nor is he entrusted with any of the duties of a Police Officer as such.

9. Mr. Veerabhadra Rao, the learned Counsel for the petitioner however argued that the term 'Police Officer' should be given a wide connotation so as to include even persons who are not recruited as a Police Officer or task force as such. If they are under the administrative control of the Police Officers, they should be deemed to he Police Officers within the meaning of Section 25 and as such ineligible for appointment as Assistant Public Prosecutors. We may, at this stage, take notice of G.O.Ms. No 2376 Home (Courts-C) Department, dated 30-11-1961 issued by the Government of Andhra Pradesh under Sub-section (1) of Section 492, Cr. P. C. appointing, among others, Assistant Police Prosecuting Officers in the 'Telangana area to be the Public Prosecutors, ex-officio. From that date onwards, all the Assistant Police Prosecuting Officers recruited in 1956, or recruited under the Rules of 1959, and working as Assistant Police Prosecuting Officers on the date of issuance of the said G. O. came to be appointed as Public Prosecutors by virtue of their holding of the office of Assistant Police Prosecuting Officers. That notification makes it clear that whatever may have been their status, when they were originally appointed, at least from 1961 onwards, they came to be regarded as Public Prosecutors as envisaged by Sub-section (1) to Section 492. The duties that were entrusted to them right from the date of their appointment up to the date on which this objection was taken, were none else than the conducting of prosecutions before the Courts of the Magistrates. They cannot be deemed in any sense of the term. 'Police Officers' howsoever the interpretation of the term 'Police Officer' may be. Dealing with the case of confession made to a Customs Officer whose duties apparently are analogous to that of a 'Police Officer' with regard to goods imported to or exported from the country, the Supreme Court in State of Punjab v. Barkat Ram : [1962]3SCR338 held in the context of Section 25 of the Evidence Act as follows:

The words 'Police Officer' are not to be construed in a narrow way, but have to be construed in a wide and popular sense. The expression 'Police Officer, has, however, not such a wide meaning as to include persons on whom certain police powers are conferred, the Customs Officer is not primarily concerned with the detection and punishment of crime committed by a person, but is mainly interested in the detention and prevention of smuggling of goods and safeguarding the recovery of customs duties. He is more concerned with the goods and customs duty than with the offender. The duties of the Customs Officers are very much different from those of the Police Officers and their possessing certain powers, which may have similarity with those of Police Officers, for the purpose of detecting smuggling of goods and the persons responsible for it, would not make them Police Officers. Merely because similar powers in regard to the detection of infractions of Customs laws have been conferred on Officers of the Customs Department as are conferred on Officers of the Police is not a sufficient ground for holding them to be Police Officers within the meaning of Section 25 of the Evidence Act.

In that view of the matter, the Supreme Court held that Customs Officers acting under the Sea Customs Act, are not Police Officers.

10. A fortiori the Assistant Police Prosecuting Officers cannot be deemed to be Police Officers. Unlike the Customs Officers, Assistant Police Prosecuting Officers, do not possess the powers of detection or investigation even to a limited extent. They are merely entrusted with the duty of conducting prosecutions in the Magistrate's Courts on the basis of the investigation into facts made by the Police Officers. They have no part to play at any stage of the investigation. Their duty commences at the stage where the duties of the Police Officers in relation to investigation of a crime, end. Mr. Veerabhadra Rao was not able to point out to us any duties of a Police Officer being entrusted to an Assistant Police Prosecuting Officer.

11. Even so, Veerabhadra Rao contends that inasmuch as on the 1st respondent's own admission he has to submit reports to the Deputy Commissioner of Police and his work is reviewed by the Inspector-General of Police, and thus under administrative control, he must be deemed to be a Police Officer. In this behalf Mr. Veerabhadra Rao relied upon a decision of the Allahabad High Court in Jaipal Singh v. State of U.P. 1976 Cri LJ 32 (All). That was a case in which the Assistant Public Prosecutors were placed by a Government order under the administrative and disciplinary control of the Supdt. of Police at the District level and the Inspector-General of single Judge of the Allahabad High Police at the State level. The learned Court, before whom the said order was questioned, declared that it was inconsistent with Section25 of the Cr. P. C. and accordingly quashed the same. He opined that prior to 1-4-1974, Public Prosecutors and Assistant Public Prosecutors were members of the Police force as constituted under Section 2 of the Police Act, 1861, and they were under the administrative and disciplinary control of the Supdt. of Police, Dy. Inspector-General of Police and the Inspector-General of Police. Having regard to the fact that Sections 25 and25 were enacted to implement the recommendations of the Law Commission to separate the prosecuting agency from the investigating agency and the prosecuting agency should not be amenable to the administrative control of the Police Department which is the investigating agency, it was held that the Assistant Public Prosecutors could not be made subordinate to and subject to the disciplinary control of the Inspector-General of Police. The decision in our opinion, does not in any way help the petitioners' contention. The question that arose is that in view of Section25, Cr. P. C. (sic) be deemed to have been appointed by the State Government and could be placed under the disciplinary control of the Inspector-General of Police, or the Supdt. of Police. The question whether an Assistant Police Prosecuting Officer is a 'Police Officer' or not, did not arise for consideration. In the instant case while it is stated that the 1st respondent has to submit his reports to the Deputy Commissioner of Police and the Inspector-General of Police and that those Officers are empowered to review his work, it is not asserted that he is subjected to the disciplinary jurisdiction of the said Officers; how far any administrative control should be exercised by the said officers over the Asstt. Police Prosecuting Officers after the enactment of Section 25 of the Act II of 1974 is another matter. Section25, Cr. P. C. does not speak of any administrative control over the Prosecuting Officers. If any disciplinary action is taken against the Assistant Police Prosecuting Officer by an authority other than the State Government, that perhaps may be questioned as without jurisdiction. But that does not take away the authority of the Asstt. Police Prosecuting Officers to conduct prosecutions in Magistrate's Courts and render them incompetent. The decision referred to above clearly declare that the order placing me Assistant public prosecutors subject to the control of the Police Officers is ultra vires of Section25 and liable to be set aside. But that is far from saying that the Assistant Public Prosecutors thereby become 'Police Officers'. If they were 'Police Officers' they could be rightly placed under the administrative control of the Police Officers. That decision, far from declaring that Asstt. Prosecuting Officers are 'Police Officers' leads to the conclusion that as they are not 'Police Officers', but members of an independent prosecuting agency, cannot be placed under the administrative control of the Police Officers, who constitute the investigating agency.

12. Further, Section25, Cr. P. C. merely puts an embargo upon a Police Officer being appointed as a Public Prosecutor but it does not prohibit an Assistant Public Prosecutor from being made subject to the administrative control of any Police Officer. In any event that is a matter with which we are not directly concerned, and we do not propose to express any final opinion upon it.

13. We are, therefore, clearly of the view that the Assistant Police Prosecuting Officers, who were validly appointed prior to 1-4-1974, who including those that were appointed in the year 1956 by the Inspector-General of Police, would be deemed to have been appointed under the Cr. P. C., 1973 (Act II of 1974). They are not 'Police Officers' within the meaning of Section 25 of the Act and as such are not ineligible to be appointed or continued as Assistant Public Prosecutors. They are not debarred by anything contained in Section 25, Cr. P. C. or any other law from discharging the duties attached to the post of Assistant Police Prosecuting Officer, now designated, since the issuance of G. O. 2376, Home (Courts-C) Department, dated 30-11-1961 as 'Public Prosecutors'. The 1st respondent who is the Assistant Police Prosecuting Officer, is therefore competent to conduct the prosecution against the petitioners in C. C. No. 437 of 1978.

14. This revision petition, therefore, fails and is accordingly dismissed.


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