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K. Tirupathi Vs. Government of Andh. PrA. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1983CriLJ1243
AppellantK. Tirupathi
RespondentGovernment of Andh. PrA. and ors.
Excerpt:
.....- issued by the government, whereunder departmental persons have been appointed as assistant public prosecutors to conduct prosecutions in magistrate's court under special enactments, like the andhra pradesh buildings (lease, rent and eviction) control act, 1960; andhra pradesh weights and measures act, 1958 and the railway property (unlawful possession) act, 1966. 6. there is no dispute about the facts. 8. section 25 does not say like section 24 that the assistant public prosecutor should 'also be a practising advocate. , observed that the power conferred under sub-section (3) of that section can be exercised in exceptional cases for conducting a particular case and it cannot be exercised for making general appointments to conduct cases before the magistrates' courts. it is common..........s. t. c. no. 140/1981, the accused took an objection that the 2nd respondent was not appointed as public prosecutor under section 25 of the cr. p.c. 1973, and, therefore, he could not conduct the prosecution. the learned vii metropolitan magistrate upheld the objection. aggrieved by his order, the 2nd respondent and the municipal corporation of hyderabad preferred a revision to this court. it was allowed on 12th aug., 1982 by punnayya, j. on the ground that the high court in its inherent jurisdiction under section 482, cr. p.c. could not set aside his appointment.3. here it may be noted that in view of the objection taken by the accused in that case, the government of andhra pradesh, issued g. o. ms. no. 1152 municipal administration dated 24th oct., 1981, redesignating the post of.....
Judgment:
ORDER

Gangadhara Rao, J.

1. The 2nd respondent, Sri Shankar Rao Bowgikar, was a Lower Division Clerk in the Municipal Corporation of Hyderabad. He is a law graduate. He has also a Post-Graduate Diploma in LSGD.

2. A Court has been specially constituted to deal with the cases arising under the Hyderabad Municipal Corporation Act and the Prevention of Food Adulteration Act. In fact, its entire expenditure, including the pay and allowances of the Magistrate, is borne by the Municipal Corporation of Hyderabad. It is now called the VII Metropolitan Magistrate's Court. There was a Court Inspector in that Court appointed by the Municipal Corporation of Hyderabad to conduct cases arising under the Hyderabad Municipal Corporation Act, and one Madhava Rao was working as the Court Inspector. He was promoted as Superintendent. In his place the 2nd respondent' was promoted as the Court Inspector by the Municipal Corporation of Hyderabad on 10th May, 1979. When he was conducting S. T. C. No. 140/1981, the accused took an objection that the 2nd respondent was not appointed as Public Prosecutor under Section 25 of the Cr. P.C. 1973, and, therefore, he could not conduct the prosecution. The learned VII Metropolitan Magistrate upheld the objection. Aggrieved by his order, the 2nd respondent and the Municipal Corporation of Hyderabad preferred a revision to this Court. It was allowed on 12th Aug., 1982 by Punnayya, J. on the ground that the High Court in its inherent jurisdiction under Section 482, Cr. P.C. could not set aside His appointment.

3. Here it may be noted that in view of the objection taken by the accused in that case, the Government of Andhra Pradesh, issued G. O. Ms. No. 1152 Municipal Administration dated 24th Oct., 1981, redesignating the post of Court Inspector as Assistant Public Prosecutor with immediate effect under Sub-sections (4) and (5) of Section 137 of the Hyderabad Municipal Corporation Act, as subsequently amended. In the same G. O, a notification was issued, which was published in the Andhra Pradesh Gazette appointing the 2nd respondent as Assistant Public Prosecutor under Section 25(1) of the Cr. P.C. 1973, for the purpose of cases tried in any Criminal Court situated within the municipal limits of Hyderabad and Secunderabad in respect of offences punishable under the provisions of the Hyderabad Municipal Corporation Act, 1955 and the rules and bye-laws made thereunder. On 2nd Nov., 1981 the Special Officer, Municipal Corporation of Hyderabad, has appointed the 2nd respondent as the Assistant Public Prosecutor of Municipal Corporation of Hyderabad to conduct all cases in respect of the offences punishable under the provisions of the Hyderabad Municipal Corporation Act, 1955 and the rules and bye-laws made thereunder in the Court of the VII Metropolitan Magistrate, Hyderabad. The petitioner, Sri K. Tirupati, an advocate, has filed this writ petition for a quo warranto under Article 226 of the Constitution questioning the appointment of the 2nd respondent as Assistant Public Prosecutor.

4. Sri B. Veerabhadra Rao, the learned Counsel for the petitioner, has ably argued the case. He submitted that the appointment of Assistant Public Prosecutors is governed toy the Rules framed by the Governor under Article 309 of the Constitution according to which, only an advocate with three years' active practice could be appointed as Asstt. Public Prosecutor and the 2nd respondent is mot a practising advocate. He further submitted that the appointment of departmental persons for the conduct of the prosecutions is contrary to Section 25 of the Cr. P.C. He also urged that under Section 29 of the Advocates Act only advocates could be appointed as Assistant Public Prosecutors.

5. On the other hand, it was submitted,by Sri Y. Suryanarayana, the learned Counsel for the 2nd respondent, and Sri A. M. Srirtivasa Rangachary, standing counsel for the Municipal Corporation of Hyderabad that the appointment of the 2nd respondent is under Section 137 of the Hyderabad Municipal Corporation Act, that the rules framed by the Governor under Article 309 of the Constitution relating to appointment of Assistant Public Prosecutors do not apply to him and -the appointment of the 2nd respondent as Assistant Public Prosecutor is not opposed to the provisions of Section 25 of the Cr. P.C. 1973. They have also placed before me some G. Q. issued by the Government, whereunder departmental persons have been appointed as Assistant Public Prosecutors to conduct prosecutions in Magistrate's Court under special enactments, like the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Andhra Pradesh Weights and Measures Act, 1958 and the Railway Property (Unlawful Possession) Act, 1966.

6. There is no dispute about the facts. The 2nd respondent was an employee of the Municipal Corporation of Hyderabad. He was working as a Lower Division Clerk. He is a Law graduate. He was promoted as a Court Inspector which post was subsequently redesignated as Assistant Public Prosecutor. He was appointed under Sub-sections (4) and (5) of Section 137 of the Hyderabad Municipal Corporation Act, which provides for appointment of officers and servants of the Corporation. Under Sub-sections (4) and (5) of that section, the Government of Andhra Pradesh, redesignated the post of Court Inspector as Assistant Public Prosecutor and issued a notification under Section 25(1) of the Cr. P.C. 1973, appointing the 2nd respondent as Assistant Public Prosecutor to conduct cases arising under the Hyderabad Municipal Corporation Act and the rules and bye-laws made thereunder. Thus, he is an employee of the Municipal Corporation of Hyderabad and he is governed by the service conditions of the employees of the Municipal Corporation of Hyderabad, He was not appointed under the rules made by the Governor under the proviso to Article 309 of the Constitution-for appointment of Asstt. Public Prosecutors. His appointment is outside these rules. At the same time, he was appointed as Assistant Public Prosecutor by the Government under Section 25 of the Cr. P.C. The question is whether in these circumstances his appointment is invalid?

7. Section 2(e) of the Cr. P.C. 1973, defines 'Public Prosecutor' as meaning any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor. Section 24 refers to Public Prosecutors. It says, that for every High Court, the Central Government or the State Government shall appoint a Public Prosecutor and may also appoint one or more additional Public Prosecutors. Similarly, the Central Government may appoint one or more Add! Public Prosecutors for the purpose of conducting any case or class of cases in any district or local area. So also for every district the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for 'the District. A person shall be eligible to be appointed as Public Prosecutor or Additional Public Prosecutor only if he has been in practice as an advocate for not less than seven years. So also the Central Government or the State Government may appoint for the purpose of any case or class of cases a person who has been in practice as advocate for not less than ten years as a Special Public Prosecutor. Obviously, the appointment of the 2nd respondent is not made under this section and it has no application to him. It is made under Section 25 of the Cr. P.C. which reads as follows:

25. Assistant Public Prosecutors.

(1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates.

(1-A) The Central Government may appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the Court 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.

(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.

A reading of the section shows that the State Government can appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates. So, also, the Central Government can appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the Courts of Magistrates. Normally, no police, officer is eligible to be appointed as Assistant Public Prosecutor. But, 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, if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted, or if he is below the rank of Inspector.

8. Section 25 does not say like Section 24 that the Assistant Public Prosecutor should 'also be a practising advocate. In fact under Section 25, under certain conditions, even a Police Officer can be appointed as Assistant Public Prosecutor. Thus, for an appointment made under Section 25, the rules made by the Governor under the proviso to Article 309 of the Constitution for appointment of Assistant Public Prosecutors, and the provisions of the Advocates Act, need not always apply. Consequently, if the appointment of the 2nd respondent is under Section 25 of the Cr. P.C. the argument that his appointment is not under the Rules made by the Governor under Article 309 of the Constitution for appointment of the Assistant Public Prosecutors and also that his appointment is contrary to the provisions of the Advocates Act, will lose all its significance.

9. Evidently, in this case, the 2nd respondent was appointed as Assistant Public Prosecutor under Section 25(1) of the Cr. P.C. by the State Government to conduct cases arising under the Hyderabad Municipal Corporation Act in Criminal Courts within the Municipal limits of Hyderabad and Se-cunderabad. He cannot conduct any other cases and also in other Courts outside the Municipal limits of Hyderabad and Se-cunderabad. Thus, his appointment is for a limited purpose and he is appointed for that limited purpose only in one Court, that is, VII Metropolitan Magistrate's Court at Hyderabad. Since he is appointed under Section 25, even if he is a Departmental person and if he is not practising as an advocate, it does not matter, for Section 25 contemplates appointment of persons as Assistant Public Prosecutors who are not advocates and who can also be Departmental persons. I do not agree with the learned Counsel for the petitioner that if a Departmental person is appointed as Assistant Public Prosecutor, he will be always interested in securing a conviction. That apart, if he could be validly appointed under Section 25 of the Cr. P.C. then this Court cannot set aside that appointment when the vires of Section 25 has not been challenged and when it also reflects the policy of the Legislature.

10. Now I will refer to the decisions cited by the learned Counsel for both parties.

11. In Baban v. Sambamurthy 1980 Cri LJ 248 (Andh Pra) the 1st respondent therein Was appointed as Assistant Police Prosecuting- Officer to conduct prosecution in the Criminal Courts in the State, It was contended that he was a Police Officer under the control of the Police Department, that he was not appointed by the. State Government and as such he was not competent to conduct the prosecution. A bench, of this Court held that the Cr. P.C. does not totally prohibit the entrustment of the prosecution case to a Police Officer altogether, and does authorise, subject to certain limitations, the appointment of police officers as Assistant Police Prosecuting Officers to conduct prosecution in specific cases. They also distinguished the decision of the Allahabad High Court in Jaipal Singh v. State of U.P. 1976 Cri LJ 32.

12. In Jaipal Singh v. State of U.P. 1976 Cri LJ 32 it was held that the order of the U.P. Government placing the Assistant Public Prosecutors under the administrative and disciplinary control of the Superintendent of Police at the District level, and the Inspector-General of Police at the State level, is inconsistent with Section 25 of the Criminal P.C. and hence liable to be set aside. After referring to Section 25 of -the Cr. P.C. K. N. Singh J., observed that the power conferred under Sub-section (3) of that section can be exercised in exceptional cases for conducting a particular case and it cannot be exercised for making general appointments to conduct cases before the Magistrates' Courts. This is not a case of making general appointments to conduct cases in Magistrates' Courts.

13. State of Haryana v. Shamsher Jang : (1972)IILLJ186SC was relied upon to show that the Government is not competent to alter by means of administrative instruction the conditions of service prescribed by the rules made under Article 309 of the Con-stitution. To the same effect is S. L. Sach-dev V. Union of India AIR 1981 SC 411.

14. I do not see how (these decisions are relevant As stated by me already, no new post has been created. Only the existing post of a Court Inspector is redesignated as Assistant Public Prosecutor and it is a post borne on the cadre of Municipal Corporation. The Government is the sanctioning authority for that post and it has sanctioned it. No rules have been framed for the post under Section 139 read with 585 of the Hyderabad, Municipal Corporation Act. it cannot be disputed that even in the absence of rules a post can be created and recruitment could be made for that post by the State Government in the exercise of its executive power under Article 162 of the Constitution. See B. N. Nagarajan v. State of Mysore 0043/1966 : (1967)ILLJ698SC and Sant Ram v. State of Rajasthan : (1968)IILLJ830SC .

15. Since the 2nd respondent is an employee of the Municipal Corporation of Hyderabad, the rules made by the Government under Article 309 of the Constitution for appointment of Assistant Public Prosecutors do not apply to him. Further, his appointment is limited only to conduct prosecutions for offences arising under the Hyderabad Municipal Corporation Act and it is covered by Section 25 of the Cr. P.C. 1973. He is a law graduate. In fact, he has been conducting prosecutions as a Court Inspector, Because an objection was taken by the accused that he was not appointed as As-istant Public Prosecutor by the Government under Section 25 of the Cr. P.C. the Government issued the notification redesignating the post as Assistant Public Prosecutor and appointing him as Assistant Public Prosecutor under Section 25 of the Cr. P.C. It is common knowledge that under some special enactments like Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, Andhra Pradesh Weights and Measures Act, 1958 and the Railway Property (Unlawful Possession) Act, 1966, departmental officials, who are law graduates, are appointed as Assistant Public Prosecutors to conduct prosecutions in cases arising under these enactments. Because the Hyderabad Municipal Corporation has administrative control over the 2nd respondent, I do not think that, on that score, he is disabled from conducting prosecutions in cases arising under the Hyderabad Municipal Corporation Act or that he will not conduct the prosecution fairly and impartially.

16. In the result, I hold that the appointment of the 2nd respondent as Assistant Public Prosecutor to conduct cases arising under the Hyderabad Municipal Corporation Act is valid and I dismiss this writ petition, but in the circumstances of the case, without costs. Advocate's fee Rs. 100/-.


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