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K.J. John Vs. the State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1981CriLJ121
AppellantK.J. John
RespondentThe State of Kerala and ors.
Excerpt:
- - on this basis it is contended that unless the government have formed the requisite opinion that no suitable person is available in the said cadre for appointment as public prosecutor or additional public prosecutor so as to entitle them to avail of the exceptional procedure laid down in the proviso to sub-section (6), the appointments to the posts of public prosecutor and additional public prosecutor can be made only from amongst persons holding the posts of assistant public prosecutors grade i and grade ii......further prayer for calling for the records leading up to the orders exts. p2 and p3 passed by the state government appointing respondents 2 and 3 as additional public prosecutors at parur and ernakulam respectively for the periods mentioned therein and to quash those two orders on the ground that those orders have been passed in violation of the provisions contained in section 24 of the code of criminal procedure, 1973 as amended by the code of criminal procedure (amendment) act, 1978 (act 45 of 1978). the contention of the petitioner is that under the provisions of section 24 of the code of criminal procedure, 1973 hereinafter called the 'code' - as amended by act 45 of 1978, the state government is forbidden from effecting appointments to the posts of public prosecutors and additional.....
Judgment:
ORDER

1. The petitioner before us is holding the post of Assistant Public Prosecutor Grade I and he has brought this writ petition seeking the issuance of a writ of quo warranto calling upon respondents 2 and 3 to show cause under what authority they are functioning as Additional Public Prosecutors. There is a further prayer for calling for the records leading up to the orders Exts. P2 and P3 passed by the State Government appointing respondents 2 and 3 as Additional Public Prosecutors at Parur and Ernakulam respectively for the periods mentioned therein and to quash those two orders on the ground that those orders have been passed in violation of the provisions contained in Section 24 of the Code of Criminal Procedure, 1973 as amended by the Code of Criminal Procedure (Amendment) Act, 1978 (Act 45 of 1978). The contention of the petitioner is that under the provisions of Section 24 of the Code of Criminal Procedure, 1973 hereinafter called the 'Code' - as amended by Act 45 of 1978, the State Government is forbidden from effecting appointments to the posts of Public Prosecutors and Additional Public Prosecutors otherwise than in the manner specified in these provisions. According to the petitioner, provisions of Sub-section (6) of Section 24 are applicable in this State inasmuch as a regular cadre of prosecuting officers exists in Kerala and hence the State Government can effect appointments to the post of Public Prosecutors or of Additional Public Prosecutors only from amongst persons constituting such cadre. The case of the petitioner is that Assistant Public Prosecutors Grade I and Grade II together constitute a cadre of prosecuting officers in this State so as to attract the applicability of Sub-section (6) of Section 24 of the Code. On this basis it is contended that unless the Government have formed the requisite opinion that no suitable person is available in the said cadre for appointment as Public Prosecutor or Additional Public Prosecutor so as to entitle them to avail of the exceptional procedure laid down in the proviso to Sub-section (6), the appointments to the posts of Public Prosecutor and Additional Public Prosecutor can be made only from amongst persons holding the posts of Assistant Public Prosecutors Grade I and Grade II.

2. It is on this basis that the aforementioned reliefs by way of quo war-ranto and certiorari have been sought by the writ petitioner.

3. On behalf of the State of Kerala (1st respondent) the learned Additional Advocate General strongly refuted the contentions taken by the petitioner that there exists in this State a regular cadre of prosecuting officers as contemplated by Sub-section (6) of Section 24 of the Code so as to attract the applicability of the said provision. It was urged by the Additional Advocate General that under the scheme of the statutory rules governing the appointment and conditions of service of Kerala Government Law Officers issued under Section 2 of the Kerala Public Services Act, 1968 the posts of Public Prosecutors and Additional Public Prosecutors are purely tenure posts which do not form part of any regular cadre and the method of appointment to those posts as laid down in Rule 8 of the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 - hereinafter referred to as the 'Rules' - is that Government Law Officers at District centres including Public Prosecutors and Additional Public Prosecutors are to be appointed by the Government from a panel of names of advocates prepared by the District Collector in consultation with the District and Sessions Judge of the District concerned. Reliance was also placed by the Additional Advocate General on the fact that separate special rules have been framed by the Government laying down the method of appointment and conditions of service of personnel holding the posts of Legal Advisor for the Vigilance Division, Additional Legal Advisor to the Vigilance Division and the Assistant Public Prosecutors Grades I and II and that the aforementioned posts have been declared by the Special Rules to form only a separate class in the Kerala General Service and they have not been constituted into a distinct cadre as such.

4. Section 24 of the Code as it stood prior to the amendment introduced by the Code of Criminal Procedure (Amendment) Act, 1978 was in the following terms:

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-section (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:

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 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 Prosecutor or 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 of 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 addition 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-section (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 (3) or Sub-section (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 officers by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.

It will be seen that the changes that have been introduced to the section by the Amending Act are the addition of the new provisions now contained in Sub-section (2), proviso to Sub-section (3), Sub-section (6) and Sub-section (9). For the purpose of this case the provisions newly incorporated in Sub-section (2) and the proviso to Sub-section (3) are not relevant. The main plank of the case put forward by the petitioner is the new provision now contained in Sub-section (6) of Section 24. That Sub-section lays down that notwithstanding the provisions contained in Sub-section (5) prohibiting the appointment of any person as Public Prosecutor or Additional Public Prosecutor for a district unless his name appears in the panel of names prepared by the District Magistrate under Sub-section (4), in States where a regular cadre of prosecuting officers exists, appointments to the post of Public Prosecutor or Additional Public Prosecutor shall be made by the State Government only from among the persons constituting such cadre. The proviso to the said Sub-section enables the Government to resort to the procedure laid down in Sub-sections (4) and (5) of the said section in the eventuality of its being found that no suitable person is available in such cadre for appointment as Public Prosecutor or Additional Public Prosecutor. The petitioner contends that since under the Special Rules, Assistant Public Prosecutor Grade I and Assistant Public Prosecutor Grade II have been declared to form a separate class in the Kerala General Service along with persona holding the posts of Legal Advisor to the Vigilance Division and Additional Legal Advisor to the Vigilance Division, a regular cadre of prosecuting officers must be held to exist in this State and hence the provisions of subjection (6) of Section 24 of the Code are attracted here. Rule 5 of the Special Rules issued in respect of the Legal Advisor to the Vigilance Division, Additional Legal Advisor to the Vigilance Division and Assistant Public Prosecutor under G.O. (Ms.) 472/PD/62 dated 7-9-1962 itself shows that the persons holding different categories of posts covered by those rules, viz., Legal Advisor to the Vigilance Division, Additional Legal Advisor to the Vigilance Division and Assistant Public Prosecutors Grade I and Grade II have not been unified into a single cadre. It is stated in Rule 5 that the Legal Advisor to the Vigilance Division, Additional Legal Advisor to the Vigilance Division and Assistant Public Prosecutor Grade I shall belong to the State Cadre in the sense that for the purpose of appointment, probation, seniority, discharge oi probationers and approved probationers for want of vacancy etc., the State shall be the Unit, whereas in the case of Assistant Public Prosecutor Grade II, the District concerned shall be the unit few all such purposes.

5. It is not, therefore, possible for us to accept the contention put forward by the petitioner that in view of the fact that by the Special Rules referred to above, posts of Legal Advisor to the Vigilance Division, Additional Legal Advisor to the Vigilance Division and Assistant Public Prosecutors Grade I and Grade II have been declared to form a special class in the general service, a regular cadre of prosecuting officers has been brought into existence in this State so as to render the provisions of Sub-section (6) of Section 24 of the Code applicable here.

6. We have next to consider what exactly is the connotation to be given to the expression 'regular cadre of prosecuting officers' occurring in Sub-section (6) of Section 24 of the Code. In our opinion, Sub-section (9) of Section 24 provides a clue as to what the Parliament has intended to cannot in using the said expression. It is clear from Sub-section (9) that the expression 'Prosecuting Officers' has been used in the section as taking in persons holding the post of Public Prosecutor, Additional Public Prosecutor, Assistant Public Prosecutor or any other Prosecuting Officer by whatever name called. What Sub-section (6) contemplates as a pre-requisite condition for its applicability is the existence in a State of a regular cadre consisting of officers holding all the aforementioned posts with a regular frame-work of a service consisting of a hierarchy of such officers. It appears to. us that the intent and purpose of the Parliament in introducing, into the section the provisions mow contained in Sub-section (6), which are by way of an exception to those contained in Sub-sections (4) and (5) of that section, is to safeguard the promotional rights of prosecuting officers in such of the States where there is already in existence regular cadre consisting of a hierarchy of prosecuting officers with vested rights of promotion from the lower to the higher categories inclusive of the categories of Additional Public Prosecutors and Public Prosecutors. The provisions of Sub-section (6) of Section 24 can, therefore have application only in respect of States where there is a regular cadre consisting of a hierarchy of prosecuting officers commencing with the Assistant Public Prosecutors at the lowest rung and having at the top level Additional Public Prosecutors and Public Prosecutors. Admittedly, there is no such cadre of prosecuting officers in existence in this State,

7. The mere fact that Assistant Public Prosecutors Grade I and Grade II together with the Legal Advisor to the Vigilance Division and the Additional Legal Advisor to the Vigilance Division have been declared to form a separate class for the purpose of the Special Rules, will' not help the petitioner for sustaining his contention that a regular cadre of prosecuting officers exists in this State. In this connection it is relevant to note that Public Prosecutors and Additional Public Prosecutors are not covered by these Special Rules, but are, on the other hand, governed by separate statutory rules framed under Section 2 of the Kerala Public Services Act, viz., the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978. Rules 8 and 9 of these rules deal with the method of appointment of Government law officers at District Court Level and the duration of their appointment. Those rules specifically lay down that Government Law Officers at District Court centres, Additional District Court centres, inclusive of Public Prosecutors and Additional Public Prosecutors are to be appointed by the Government from a panel of advocates furnished by the District Collector who is to prepare such panel in consultation with the District and Sessions Judge and that the appointment of a person as Public Prosecutor or Additional Public Prosecutor shall only be for a term of three years. This makes it clear that there is no regular cadre of prosecuting officers in this State comprising therein Public Prosecutors and Additional Public Prosecutors. In such a situation, the provisions of Sub-section (6) of Section 24 of the Code cannot, in our opinion, get attracted.

8. In view of the above conclusion that we have reached concerning the applicability and scope of Sub-section (6) of Section 24 of the Code it is manifest that there is no merit in the contentions raised by the petitioner against Exts. P2 and P3, whereby respondents 2 and 3 were appointed as Additional Prosecutors in the courts at Parur and Ernakulam respectively. Hence the reliefs of quo war-ranto and certiorari prayed for by the petitioner will stand disallowed. The further prayer of the petitioner for the issuance of a writ of mandamus directing the State Government to effect appointments to the posts of Public Prosecutor and Additional Public Prosecutor in accordance with Sub-section (6) of Section 24 of the Code has only to be rejected in the light of our conclusion that Sub-section (6) of Section 24 has no applicability at all in this State.

9. The learned Counsel for the petitioner expressed an apprehension that the dismissal of this writ petition may operate to the prejudice of the petitioner even in the matter of his being considered for appointment as public prosecutor in accordance with the procedure laid down in Sub-sections (3) to (5) read with Sub-section (9) of Section 24. We see no basis at all for any such apprehension.

10. This writ petition accordingly fails and it is hereby dismissed. The parties will bear their respective costs.

11. Immediately after the pronouncement of this judgment, the learned Counsel appearing for the petitioner orally prayed under Article 134-A of the Constitution for the grant of a certificate under Article 133(1) to enable his client to carry the matter up in appeal before the Supreme Court. Since the case involves a substantial question of law of general importance concerning the interpretation of Sub-section (6) of Section 24 of the Code of Criminal Procedure, 1973 on which we consider an authoritative pronouncement by the Supreme Court is necessary, we allow the petitioner's prayer and direct the issuance of a certificate as requested for.

12. Issue a carbon copy of this judgment to the learned Counsel for the petitioner on payment of the requisite charges.


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