Full Judgment Text
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PETITIONER:
K.J. JOHN, ASSISTANT PUBLIC PROSECUTOR GRADE 1,PALAI ETC. ET
Vs.
RESPONDENT:
STATE OF KERALA & ORS. ETC. ETC.
DATE OF JUDGMENT12/07/1990
BENCH:
KASLIWAL, N.M. (J)
BENCH:
KASLIWAL, N.M. (J)
KANIA, M.H.
CITATION:
1990 AIR 1902 1990 SCR (3) 319
1990 SCC (4) 191 JT 1990 (3) 163
1990 SCALE (2)20
ACT:
Code of Criminal Procedure, 1973: Section 24(6)--State
Government whether bound to appoint Public Prosecutors and
Additional Public Prosecutors only from among persons con-
stituting such ’regular cadre of prosecuting
Officers’--Interpretation of.
HEADNOTE:
The appellant in the civil appeal was an Assistant
Public Prosecutor Grade I in the State of Kerala. The writ
petition under Article 32 of the Constitution has been filed
by the Uttar Pradesh Public Prosecutors’ Association con-
sisting of the membership of Assistant Public Prosecuters,
including Prosecuting Officers, senior Prosecuting Officers,
Deputy Director of Prosecution serving under the Government
of Uttar Pradesh. In both the cases the controversy raised
is that there exists a regular cadre of Prosecuting Officers
and as such the State Government is bound to appoint Public
Prosecutors and Additional Public Prosecutors only from
among the persons constituting such cadre in view of section
24(6) of the Code of Criminal Procedure, 1973, as amended by
the Criminal Procedure Code (Amendment) Act of 1978.
The appellant’s writ petition filed in the High Court of
Kerala was dismissed. The High Court was of the view that
the provisions of sub-section (6) of section 24 could have
application in respect of States where there was a regular
cadre consisting of hierarchy of Prosecuting Officers with
the Assistant Public Prosecutor at he lowest rung and having
at the top level Additional Public Prosecutors and Public
Prosecutors. The High Court held that there was no regular
cadre of Prosecuting Officers in the State of Kerala Com-
prising therein Public Prosecutors and Additional Public
Prosecutors. The High Court further observed that under the
Kerala Government Law Officers (Appointment and Conditions
of Service) and Conduct of Cases Rules, 1978 the posts of
Public Prosecutors and Additional Public Prosecutors were
tenure posts and as such the Assistant Public Prosecutors
who were regular hands could not be appointed to the tenure
posts.
320
Before this Court it was contended on behalf of the
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appellant/ petitioners that Assistant Public Prosecutors
Grade I and Grade II together constituted a cadre of Prose-
cuting Officers so as to attract the applicability of sub-
section (6) of section 24 of the Code. It was urged that in
case the meaning to the expression "regular cadre of Prose-
cuting Officers" under sub-section (6) of section 24 was
given as to consist of a regular cadre of Prosecuting Offi-
cers going upto Public Prosecutor at the top, then there was
no benefit to such persons by enacting sub-sections (6) and
(9) in section 24, by the Amending Act of 1978. It was
further urged that there was no bar for appointment of
Assistant Public Prosecutors against tenure posts as offi-
cers on deputation.
The State of U.P. in its counter has brought out the
distinction in these two kinds of posts in the manner and
terms of their appointment, discharge of duties, emoluments
etc. It was further urged that in Uttar Pradesh there was no
regular cadre of Prosecuting Officers within the meaning of
section 24(6) of the Code of Criminal Procedure and as such
the petitioners were not entitled to appointment as Public
Prosecutors or Additional Public Prosecutors.
Dismissing the appeal and the writ petition, this Court,
HELD: (1) The intention of introducing sub-section (6)
and the deeming fiction in sub-section (9) was in order to
safeguard the promotional rights of Prosecuting Officers in
such of the States where there was already in existence a
regular cadre consisting of a hierarchy of Prosecuting
Officers going to the top level of Additional Public Prose-
cutors and Public Prosecutors. [334E-F]
(2) The Kerala High Court was right in taking the view
that the expression "regular cadre of Prosecuting Officers"
comprised a service with Assistant Public Prosecutor at the
lowest level and Public Prosecutors at the top. In case a
regular cadre of Prosecuting Officers did not go upto Public
Prosecutor at the top, the State Government could not be
considered as bound to appoint Public Prosecutor or Addi-
tional Public Prosecutor only from among the persons consti-
tuting such cadre under the Code of Criminal Procedure for
conducting cases in the Sessions Court. [334G-H]
(3) It was within the competence of the State Government
to keep such posts of Public Prosecutor and Additional
Public Prosecutor as tenure posts for some period based on
contract and not to make such
321
posts as regular or permanent under any service rule. In
this view of the matter, till such posts were tenure posts,
to be filled on contract basis for some period, the Assist-
ant Public Prosecutors who were members of a regular service
could not claim any right to be appointed on such posts
under sub-section (6) of section 24 of the Code of Criminal
Procedure. [33SA-C]
(4) The contention of the petitioners that Assistant
Public Prosecutors can be appointed on such tenure posts on
deputation and may return back to their parent service after
completion of the period of such tenure posts, was not
acceptable. [335C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1101 of
1981.
On appeal by Certificate from the Judgment and Order
dated 8.10.80 of the Kerala High Court in O.P. No. 1026/79E.
WITH
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Writ Petition (Civil) No. 346 of 1988.
(Under Article 32 of the Constitution of India).
M.K. Ramamurthi, G. Vishwanathan Iyer, Shiv Pujan Singh,
N. Sudhakaran and K. Prasantha for the Appellants.
Anil Dev Singh, P.S. Poti, Ms. Mukta Sharma, Mrs. S.
Dikshit, K.R. Nambiar for the Respondents.
The Judgment of the Court was delivered by
KASLIWAL, J. As identical questions of law are involved
in both the above cases, they are disposed of by one single
order.
Civil Appeal No. 1101 of 1981 is directed against the
Judgment of High Court of Kerala at Ernakulam dated October
8, 1980. The High Court has granted a certificate under
Article 133(1) of the Constitution of India certifying that
the case involved a substantial question of law of general
importance consisting the interpretation of Sub-section (6)
of Section 24 of the Code of Criminal Procedure, 1973.
The Writ Petition under Article 32 of the Constitution has
been
322
filed by the Uttar Pradesh Public Prosecutors’ Association
consisting the membership of Assistant Public Prosecutors,
including Prosecuting Officers, Senior Prosecuting Officers,
Deputy Director of Prosecution serving under the Government
of Uttar Pradesh. Petitioner No. 2 is the President of the
Association. In both the cases the controversy raised is
that there exists a regular cadre of Prosecuting Officers
and as such the State Government is bound to appoint Public
Prosecutors and Additional Public Prosecutors only from
among the persons constituting such cadre in view of Section
24(6) of the Code of Criminal Procedure, 1973.
In order to appreciate the controversy, it would be
necessary to give the background of the law and rules relat-
ing to the appointment of public prosecutors. Sections 24
and 25 of the Code of Criminal Procedure, 1973 correspond to
Section 492 of the Old Code and deal with the appointment of
Public Prosecutors, Additional Public Prosecutors, Special
Public Prosecutors and Assistant Public Prosecutors. Under
the Old Code there could be any number of Public Prosecutors
appointed by the Central Government or by the State Govern-
ment or by the District Magistrate or by the Sub-Divisional
Magistrate subject to the control of the District Magis-
trate. Under Section 495 of the Old Code any Magistrate
enquiring into or trying a case could permit the prosecution
to be conducted by any person who may do so personally or by
a pleader. In the courts of Magistrates the prosecution was
conducted generally by Police Officers or by persons re-
cruited from the Bard styled as Police Prosecutors or As-
sistant Public Prosecutors all of whom worked under the
directions of the Police Department. Moreover, no qualifica-
tion was laid down in the old Code for the Advocates being
appointed as Public Prosecutors. In Section 24 of the new
Code for the first time such detailed provisions have been
made. In Section 24 as originally framed there were only two
categories of public prosecutor--(1) those appointed by the
Central or State Government under this Section, and (2)
those engaged by the Public Prosecutor to act under his own
direction, vide Section 2(U). Provision was also for the
first time made for appointment of Public Prosecutor in the
High Court for conducting any prosecution in the said court
on behalf of the Central Government or the State Government
by the concerned Government after consultation with the High
Court. The appointment of Public Prosecutor or Additional
Public Prosecutor of the State Government in every District
could be made only from the panel of names of the persons
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prepared by the ,District Magistrate in consultation with
the Sessions Judge. It was for the first time provided that
in the case of Public Prosecutor and the Additional Public
Pro-
323
secutor he should be an Advocate of not less than seven
years standing at the Bar and in the case of Special Public
Prosecutor the standing at the Bar should not be less than
10 years.
The original Section 24 has been amended by the Criminal
Procedure Code (Amendment) Act of 1978 (hereinafter referred
to as the Amending Act of 1978) w.e.f. 18th December, 1978
and a new Section 24 has been substituted for the original
Section 24. It would be necessary to reproduce Section 24 as
it stood in the original Code of Criminal Procedure, 1973 as
well as Section 24 which stood after the Criminal Procedure
Code (Amendment) Act, 1978.
Section 24 of the Code as it stood prior to the amend-
ment introduced by the Code of Criminal Procedure (Amend-
ment) Act, 1978, reads as under:
"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 Prosecu-
tor for conducting, in such court, any prosecution, appeal
or other proceeding on behalf of the Central or State Gov-
ernment, as the case may be.
(2) For every district the State Government shall appoint a
Public Prosecutor and may also appoint one or more Addition-
al 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 subsection (3).
(5) A person shall only be eligible to be appointed as a
Public Prosecutor or an Additional Public Prosecutor under
sub-s. (1) or sub-section (2), if he has been in practice as
an advocate for not less than seven years.
324
(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 as
under:
"24. Public Prosecutors--(1) For every High Court the Cen-
tral Government or the State Government shall, after consul-
tation 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 Addition-
al 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 Prosecu-
tor, as the case may be for another district.
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(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 Prosecu-
tors 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 or names
prepared by the District Magistrate under subsection (4).
(6) Notwithstanding anything contained sub-section (5),
where in a State there exists a regular cadre of Prosecuting
Officers, the State Government shall appoint a Public Prose-
cutor or an Additional Public Prosecutor only from
325
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 Dis-
trict Magistrate under sub-s. (4).
(7) A person shall be eligible to be appointed as a Public
Prosecutor or an Additional Public Prosecutor under subsec-
tion (1) or sub-section (2) or sub-section (3) or subsection
(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 com-
mencement of this code) service as a Public prosecutor or as
an Additional Public Prosecutor or Assistant Public Prosecu-
tor or other Prosecuting Officer, by whatever name called,
shall be deemed to be the period during which such person
has been in practice as an advocate".
A perusal of the above provisions would show that the
changes that have been introduced in Section 24 by the
Amending Act of 1978 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). The main contro-
versy put forward hinges on the new provision now contained
in sub-s. (6) of Section 24. The contention raised on behalf
of the petitioners is that sub-section (6) of Section 24
introduced by amendment clearly lays down that notwithstand-
ing anything contained in sub-section (5) where in a State
there exists a regular cadre of Prosecuting Officers (empha-
sis added), appointment 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.
So far as the State of Kerala is concerned, it has been
contended
326
on behalf of the appellant that the appointment of Assistant
Public Prosecutors was governed by the Statutory Rules
framed under Article 309 of the Constitution. These Rules
were published on 7th September, 1962 and dealt with the
posts of Legal Advisor to the vigilance division. Additional
Legal Advisor to the Vigilance division and Assistant Public
Prosecutors Grade I & II. As regards Assistant Public Prose-
cutors Grade I, the appointment was to be made by promotion
from Assistant Public Prosecutor Grade II. So far as the
Assistant Public Prosecutor Grade II is concerned, the
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appointment was to be made by direct recruitment. It was
pointed out that under the above rules for appointment as
Assistant Public Prosecutor Grade II a candidate was re-
quired to be a member of the Bar having not less than two
years active practice in criminal courts. After selection he
was to be kept on probation for two years and was also
required to undergo a training for a period of six months.
It was also pointed out that District was considered as unit
for the appointment of Assistant Public Prosecutors Grade II
and so far as Assistant Public Prosecutors Grade I are
concerned they belonged to the State Cadre. It was thus
urged on behalf of the appellant that a regular cadre of
Prosecuting Officers in the State of Kerala was existing and
in this view of the matter the appointment of a Public
Prosecutor or Additional Public Prosecutor could only be
made from amongst the persons constituting such cadre as
envisaged under sub-section (6) of Section 24 of the Crimi-
nal Procedure Code after amendment.
It may be pointed out at this stage that Sh. K.J. John,
Assistant Public Prosecutor Grade I filed a writ petition in
the High Court of Kerala and a Division Bench by Judgment
dated 5th October, 1980 dismissed the writ petition. The
High Court considered the meaning and scope of the expres-
sion "regular cadre of Prosecuting Officers" occuring in
sub-section (6) of Section 24 of the Code. According to the
High Court sub-section (9) of Section 24 provided a clue to
the intention of the Parliament in using the said expres-
sion. It held that from sub-section (9) it would be clear
that the expression "Prosecuting Officers" has been used in
sub-section (6) as meaning any persons holding the post of
Public Prosecutor, Additional Public Prosecutor, Assistant
Public Prosecutor or any other Prosecuting Officer by what-
ever name called. Thus in the opinion of the High Court,
sub-section (6) contemplated a prerequisite condition for
its applicability the existence of a regular cadre consist-
ing of officers holding all the aforementioned posts with a
regular framework of service consisting of a hierarchy of
such officers. The provisions of sub-section (6) of Section
24 can, therefore, have application in respect of States
where there is a
327
regular cadre consisting of a hierarchy of Prosecuting
Officers with the Assistant Public Prosecutor at the lowest
rung and having at the top level Additional Prosecutors and
Prosecutors. According to the High Court admittedly no such
cadre of such officers existed in the State of Kerala and as
such there was no question of applying the provisions of
sub-section (6) of Section 24.
It may also be pointed out that the High Court also
noticed the provisions of Kerala Government Law Officers
(Appointment and Conditions of Service) and Conduct of Cases
Rules, 1978 which dealt with the method of appointment of
Government Law Officers at District Court level and the
duration of their appointment. These Rules specifically laid
down that Government Law Officers at District Court Centres,
Additional District Court Centres, inclusive of Public
Prosecutors and Additional Public Prosecutors were to be
appointed by the Government from a panel of advocates fur-
nished by the District Collector who was to prepare such
panel in consultation with the District and Sessions Judge.
The appointment of a person as Public Prosecutor or Addi-
tional Public Prosecutor shall only be for a term of three
years. The High Court considered that the posts of Public
Prosecutors and Additional Public Prosecutors under the
above Rules were tenure posts and as such the Assistant
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Public Prosecutors who were regular hands cannot be appoint-
ed to the tenure posts. The High Court ultimately, held that
there was no regular cadre of Prosecuting Officers in the
State of Kerala comprising therein Public Prosecutors and
Additional Public Prosecutors.
Learned counsel appearing on behalf of the appellant
K.J. John in Civil Appeal No. 1101 of 1981 contended that
under the Old Code the qualification and method of appoint-
ment for Public Prosecutors did not require any condition
for a candidate to be an advocate. In order to remove such
unsatisfactory state of affairs the Legislature provided the
qualification and the method of appointment of Public Prose-
cutors and Additional Public Prosecutors by making elaborate
provisions in Section 24 of the Criminal Procedure Code,
1973. Under Section 24, as it stood before the 1978 amend-
ment, provision was made for appointment of Public Prosecu-
tors and Additional Public Prosecutors from a panel of names
of advocates to be submitted by the District Magistrate
inconsultation with the Sessions Judge to the State Govern-
ment. A provision was made for the first time that a period
Of seven years of practice at the Bar was necessary for
appointment of Public Prosecutors and Additional Public
Prosecutors.
328
It was further contended that this scheme of appointment
of Public Prosecutors and Additional public Prosecutors was
again found to be unsatisfactory because the selection of
persons for for appointment as Public Prosecutors from the
Bar was not found to be satisfactory. Further the Assistant
Public Prosecutors with required experience and ability and
who were amenable to the disciplinary jurisdiction of the
Government and had no avenues of promotion, were denied
promotion as Public Prosecutors. The Legislature wanted to
rectify this defect and, therefore, amended Section 24
suitably to promote Assistant Public Prosecutors as Public
Prosecutors and Additional Public Prosecutors at the Dis-
trict level. The amendment in Section 24 by Amending Act of
1978 was thus made with the above purpose and intention. It
was thus contended that under sub-section (6) of Section 24
introduced by the amendment, it was never intended to in-
clude the posts of Public Prosecutors and Additional Public
Prosecutors within the expression "exists regular cadre of
Prosecuting Officers". It was urged that the regular cadre
of Prosecuting Officers as mentioned in sub-section (6) of
Section 24 is dehors the cadre of Public Prosecutors/ Addi-
tional Public Prosecutors otherwise sub-section (6) becomes
meaningless. It was thus submitted that the High Court com-
mitted an error in construing the expression "regular cadre
of Prosecuting Officers" to comprise a service with Assist-
ant Public Prosecutor at the lowest level and Public Prose-
cutor at the top. If Public Prosecutors and Additional
Public Prosecutors are necessary in the existing cadre as
interpreted by the High Court then there was no question of
granting any benefit by the Legislature by introducing sub-
section (6) in Section 24 by way of amendment.
It was next contended that the High Court misunderstood
the -scope of sub-section (9). A combined reading of sub-ss.
(6), (7) & (9) is necessary to understand the intention of
the Legislature. According to the learned counsel sub-sec-
tion (6) provided for appointment of Public Prosecutors from
a regular cadre of Prosecuting Officers, subsection (7)
provided that a person to be eligible for appointment as
Public Prosecutor must have been in’ practice as an advocate
for not less than seven years and therefore sub-section (9)
was necessary to create the fiction that the period of
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service as a Public Prosecutor or as an Additional Public
Prosecutor or Assistant Public Prosecutor or other Prosecut-
ing Officer, by whatever name called, shall be deemed to be
the period during which such person has been in practice as
an advocate. As regards the reason given by the High Court
that the post of’ Public Prosecutor and Additional Public
Prosecutor were tenure post.s for three years, it was sub-
mitted by learned counsel for appellant
329
that the Kerala Government Law Officers (Appointment and
Conditions of Service) and Conduct of Cases Rules, 1978 as
notified in the Kerala Gazette No. 25 dated 20th June, 1978
was made before the coming into force of the Criminal Proce-
dure Code (Amendment) Act, 1978 on December 18, 1978. It was
thus contended that the above Kerala Rules making the posts
of Public Prosecutors and Additional Public Prosecutors as
tenure posts cannot stand in the face of Section 24 of
Criminal Procedure Code after Amendment Act of 1978. In the
alternative it was also contended that even if the posts of
Public Prosecutors and Additional Public Prosecutors in
Kerala may be allowed to continue as tenure posts, there is
no bar for appointment of Assistant Public Prosecutors on
such posts. The Assistant Public Prosecutors will be in the
same position as officers on deputation and will come back
to their parent posts after the period of such tenure posts
is over. It is contended that this cannot be considered as a
circumstance or a ground to construe sub-section (6) of
Section 24 to mean that the expression "regular cadre of
Prosecuting Officers" does not enable the Assistant Public
Prosecutors to claim appointment as Public Prosecutor.
Learned counsel appearing on behalf of the petitioners
in the Writ Petition have also made identical arguments as
made in the Kerala case. The State of U.P. in its counter
affidavit has pointed out that the cadre of Prosecuting
Officers working in lower district courts in criminal side
is wholly different and it cannot include Public Prosecutors
who work exclusively on contract basis in the Sessions
Courts. Assistant Prosecuting Officers are appointed under
Section 25 of the Code of Criminal Procedure. After 1980,
the Assistant Prosecuting Officers have been appointed by
the State Government through the Public Service Commission,
on the basis of competitive written examination and inter-
view of Law Graduates. On the other hand Public Prosecutors
are appointed in terms of professional contracts under
Section 24(4) and 24(5) of the Code of Criminal Procedure. A
panel of names of advocates with seven years working experi-
ence is prepared by the District Magistrate in consultation
with the District & Sessions Judge and sent to Law Depart-
ment of the State Government for approval. Public Prosecu-
tors are thus appointed by the Law Department of State
Government, whereas Assistant Prosecuting Officers are
appointed by the Home Department of the State Government as
regular Government servants. It has been further submitted
in the reply that Assistant Prosecuting Officers are regular
Government servants and they get monthly salary and other
allowances as admissible to other regular Government serv-
ants. The services of Assistant Prosecuting Officers are
pensionable, while Public Prosecutors are
330
appointed purely on the basis of contract, on a fixed fees.
Assistant Public Prosecuting Officers work under the admin-
istrative control of Home Department and Director General
(Prosecution) is Head of the Prosecution Department. The
work and performance Of Public Prosecutors is assessed by
the District Magistrate at the District level and they are
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controlled by the Law Department of the State Government. It
has been further submitted in the reply that the Assistant
Prosecuting Officers main work is to prosecutre criminal
cases in the lower District Courts i.e. courts of Judicial
Magistrates, Chief Judicial Magistrate, Metropolitan Magis-
trates, Chief Metropolitan Magistrates, Munsif Magistrates,
Executive Magistrates, District Magistrates and special
Courts under the Terrorist Act and the Gangster Act. The
Assistant Prosecuting Officers also help the Executive
Magistrate to conduct the identification of accused in
criminal cases and also report on bail applications of the
accused. Assistant Prosecuting Officers also check the
records of Sessions cases before their committal to Sessions
Court and they also deal with the finger print branch and
Malkhana of case properties. They are Legal Advisors of the
Superintendents of Police in matters pertaining to investi-
gation. The Public Prosecutor’s main work is to prosecute
the criminal cases in the Sessions Courts.
The State Government in its counter affidavit has fur-
ther given the following chart showing the hierarchy pay
scales and strength of cadre:
----------------------------------------------------------
Name of Post Pay scale Permanent Temporary.Total No.
of Posts
-----------------------------------------------------------
Joint Director Rs. 1840-2400 - 1 1
Legal
Joint Director Rs. 1840-2400 - 1 1
(Admn.)
Dy. Director Rs. 1250-2050 5 6 11
Sr. Prosecuting Rs. 1250-2050 - 17 17
Officer (Gr. I)
Sr. Prosecuting Rs. 850.1720 13 70 83
Officer (Gr. II)
Prosecuting Rs. 770-1600 84 114 198
Officer
331
Asstt. Prosecuting Rs. 625-1240 704 174 878
Officer
------------------------------------------------------------
As against the aforesaid cadre and pay scales the Public
Prosecutors are retained on monthly fees/daily fees as the
case may be. They are paid library allowances also. The
rates in their cases have been indicated as under:
------------------------------------------------------------
Monthly Library
Fees Allowance
(1) Public Prosecutor/District Rs.2700 Rs.300
Govt. Counsel (Gr.)
(2) Additional Public Prosecutor Rs.2550 Rs.250
Gr. I/Addl. District Govt.
Counsel (Gr.)
(3) Addl. Public Prosecutor Rs. 1800 Rs.200
Gr. II/Asstt. Distt. Govt.
Counsel (Gr.)
(4) Addl. Public Prosecutor Rs. 50 as daily fees.
Gr. III
------------------------------------------------------------
It has been further submitted in the reply that the
petitioners have several promotional avenues in their own
cadre and cannot claim any post outside their cadre. In
Uttar Pradesh there is no regular cadre of Prosecuting
Officers within the meaning of Section 24(6) of the Code of
Criminal Procedure and as such the petitioners are not
entitled to appointment as Public Prosecutors or Additional
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Public Prosecutors in Sessions Courts. It has also been
pointed out that at present the total strength and posts of
Assistant Prosecuting Officers is 878 out of which 66 1 have
been filled and the rest are vacant. The total number of
posts of Prosecuting Officers is 198 out of which 191 have
been filled up and the rest are vacant. At present the posts
of Senior Prosecuting Officer Gr. II & I are 83 and 17
respectively. Thus there is ample opportunity of promotion
open to the petitioners.
The main controversy hinges on the scope of sub-section
(6) of Section 24 and specially the words "regular cadre of
Prosecuting Officers" existing in this provision. Prior to
coming into force of the Code of Criminal Procedure, 1973,
the Prosecuting Officers were under the
332
control of Police Department. It-was not necessary at that
time that the Public Prosecutor or Additional Public Prose-
cutor should have any experience as an advocate. In order to
remove such unsatisfactory state of affairs, the Legislature
made an elaborate provision under Section 24 for the ap-
pointment of Public Prosecutors and Additional Public Prose-
cutors in the Criminal Procedure Code, 1973. Under this
provision it was laid down that practice as an advocate for
not less than seven years was necessary for appointment of
Public Prosecutor and Additional Public Prosecutor. After
sometime, it was considered by the Legislature that the
above provision does not take into consideration the working
experience of Prosecuting Officers and pleaders for eligi-
bility for appointment as Public Prosecutor and Additional
Public Prosecutor. The Legislature as such substituted a new
Section 24 by the Criminal Procedure Code (Amendment) Act,
1978 brought into force w.e.f. 18th December, 1978. Under
sub-section (9) of this new Section 24 it was provided that
the period during which a person has been in practice as a
pleader, or has rendered service as a Public Prosecutor or
as an Additional Public Prosecutor or Assistant Public
Prosecutor or other Prosecuting Officer, by whatever name
called, shall be deemed to be the period during which such
person has been in practice as an advocate. This provision
thus granted benefit of the period of service to the persons
mentioned in the above provision and by a deeming fiction
such period of service was considered as the period in
practice as an advocate. Thus the above provision made the
Prosecuting Officers such as Public Prosecutor, Additional
Public Prosecutor, Assistant Public Prosecutor or other
Prosecuting Officer, by whatever name called, also eligible
for being included in the panel to be prepared by the Dis-
trict Magistrate in consultation with the Sessions Judge fit
to be appointed as Public Prosecutors or Additional Public
Prosecutors for the district.
In this background we have to understand the scope of
subsection (6) of Section 24 which gives a clear mandate to
appoint a Public Prosecutor or an Additional Public Prosecu-
tor only from amongst the persons constituting a regular
cadre of Prosecuting Officers. According to this provision
any person from the advocates or from any other source
cannot be appointed as a Public Prosecutor or an Additional
Public Prosecutor if there already exists a regular cadre of
Prosecuting Officers in a State. So far as the proviso to
sub-section (6) of Section 24 is concerned it would not
apply in the normal circumstances and would only be attract-
ed where in the opinion of the State Government no suitable
person is available in such regular cadre of Prosecuting
Officers for appointment as Public Prosecutor or Addi-
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tional Public Prosecutor. Admittedly the regular cadre of
Prosecuting Officers in the State of Kerala as well as in
the State of U .P. does not include Public Prosecutors or
Additional Public Prosecutors. The case of the appellants is
that Assistant Public Prosecutors Gr. I and Gr. II together
constitute a cadre of Prosecuting Officers so as to attract
the applicability of sub-section (6) of Section 24 of the
Code. It has been contended on their behalf that unless the
Government formed the requisite opinion that no suitable
person is available in the said cadre for appointment as
Public Prosecutor or Additional Public Prosecutor, the
appointments to the posts of Public Prosecutor, and Addi-
tional Public Prosecutor can be made only from amongst
persons holding the posts of Assistant Public Prosecutors
Gr. I & Gr. II.
A combined reading of sub-section (6) and sub-section
(9) of Section 24 gives a clue to the intention of the
Legislature in determining the scope of the expression
"regular cadre of Prosecuting Officers" occurring in sub-
section (6). The intention of introducing sub-section (6)
and the deeming fiction in sub-section (9) was in order 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 going to the top level of Additional Public Prose-
cutors and Public Prosecutors. In Sub-sectiOn (9) the ex-
pression "Prosecuting Officers" has been used as taking in
any persons holding the post of Public Prosecutor, Assistant
Public Prosecutor or any other Prosecuting Officer by what-
ever name called. Sub-section (6) independently can grant no
benefit to the Prosecuting Officers unless the clause of
deeming fiction contained in sub-section (9) makes them
eligible for appointment1 as a Public Prosecutor or Addi-
tional Public Prosecutor. Sub-section (9) clearly speaks
with regard to the service rendered as a Public Prosecutor
or as Additional Public Prosecutor, or Assistant Public
Prosecutor or other Prosecuting Officer, by whatever name
called to be counted as the period as if such person had
been in practice as an advocate for the purposes of subsec-
tion (7) & sub-section (8). Thus we are clearly of the view
that the expression "regular cadre of Prosecuting Officers"
contained in subsection (6) of Section 24 must comprise a
regular cadre of Prosecuting Officers going up to the level
of Additional Public Prosecutor and Public Prosecutor. It
may be important to note that so far as the State of Kerala
is concerned under Rule (5) of the Kerala Government Law
Officer (Appointment & Conditions of Service) and Conduct of
Cases Rules, 1978, it has been stated that the Legal Advisor
to the Vigilance Department, Additional Legal Advisor to the
Vigilance Department and Assistant Public Prosecutor Gr. I
shall belong to the State Cadre
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in the sense that for the purpose of appointment, probation,
seniority, discharge of probationers and approved probation-
ers for want of vacancy, the State shall be the unit whereas
in the case of Assistant Public Prosecutor Gr. II, the
District concerned shall be the unit for all such purposes.
Thus if we take the argument of learned counsel for the
appellant to its logical conclusion, the result would be
that in a State if there existed a cadre of Prosecuting
Inspectors or Assistant Public Prosecutors only in that case
also the State Government would be bound to appoint Public
Prosecutor and Additional Public Prosecutor only from among
such cadre under sub-section (6) of Section 24. It could not
have been the intention of the legislature while enacting
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sub-section (6) of Section 24 of the Code. It was also
contended on behalf of the petitioners that in case the
meaning to the expression "regular cadre of Prosecuting
Officers" under sub-section (6) of Section 24 is given as to
consist of a regular cadre of Prosecuting Officers going
upto Public Prosecutor at the top, then there is no benefit
to such persons by enacting sub-section (6) and (9) in
Section 24 of the Code. We find no force in this contention.
The basic intention of the Legislature was to appoint Public
Prosecutors and Additional Public Prosecutors from the
advocates having atleast seven years practice. Section 24 as
initially contained in Section 24 of the Code did not make
any Prosecuting Officer even of the cadre of Public Prosecu-
tor prior to 1973 as eligible for being appointed as Public
Prosecutor or Additional Public Prosecutors, they were made
eligible by substituting Sec. 24 by the Amending Act of 1978
by introducing a new provision under subsection (9) of
Section 24. In this background when we consider the provi-
sion of sub-section (6) of Section 24 which makes it incum-
bent to appoint Public Prosecutor and Additional Public
Prosecutors only from a regular cadre of Prosecuting Offi-
cers, it can only be applied in case of such regular cadre
which may go upto the level of Public Prosecutor.
In view of these circumstances we find that the Kerala
High Court is right in taking the view that the expression
"regular cadre of Prosecuting Officers" comprised a service
with Assistant Public Prosecutor at the lowest level and
Public Prosecutors at the top. In case a regular cadre of
Prosecuting Officers did not go into Public Prosecutor at
the top, the State Government cannot be considered as bound
to appoint Public Prosecutor or Additional Public Prosecutor
only from among the persons constituting such cadre under
the. Code of Criminal Procedure for conducting cases in the
Sessions Court.
There is another insurmountable difficulty which exists in
the
335
way of the appellant and the petitioners in as much as the
State Government has made the posts of Public Prosecutor and
Additional Public Prosecutors as tenure posts- It lies
within the competence of the State Government to keep such
posts of Public Prosecutor and Additional Public Prosecutor
as tenure posts for some period based on contract and not to
make such posts as regular or permanent under any service
rule. In this view of the matter till such posts are tenure
posts, to be filled on contract basis for some period, the
Assistant Public Prosecutors who are members of a regular
service cannot claim any right to be appointed on such posts
under sub-section (6) of Section 24 of the Code of Criminal
Procedure. They are also eligible to be considered with any
advocate of seven years standing if willing to join such
post on tenure basis by the District Magistrate in consulta-
tion with the Sessions Judge. We cannot accept the conten-
tion of the learned counsel for the petitioners in this
regard that Assistant Public Prosecutors can be appointed on
such tenure posts on deputation and may return back to their
parent service after completion of the period of such tenure
posts. The State of U.P. in its counter has clearly brought
out the distinction in these two kinds of posts in the
manner and terms of their appointment, discharge of duties,
emoluments etc. The Assistant Public Prosecutors have ave-
nues of promotion in their own cadre and no argument can
however be advanced in interpreting the provision of sub-
section (6) of Section 24 on this basis.
In the result both the above cases are dismissed with no
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order as
to costs.
R.S.S. Appeal and Petition dismissed.
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