S. Thamizharasan vs The State of Tamil Nadu

S. Nagamuthu, J.—The legality of the appointment of a Police Officer belonging to Indian Police Service as the Director of Prosecution in

the State of Tamil Nadu is challenged in this Public Interest Litigation on the ground that the said appointment is contrary to the mandate of Section

25-A of the Criminal Procedure Code, 1973, [hereinafter referred to as ""the Code""].

Prior to the year 1984, the Assistant Public Prosecutors, appointed as regular Government Servants to conduct prosecution in the Courts of

Magistrates in the State of Tamil Nadu, were under the supervision and control of the respective District Collectors in the Districts other than

Chennai and the Commissioner of Police in the Chennai City. While so, the Government of TamilNadu issued G.O.Ms. No. 2075 Home (CTS

VI) Department, dated 15.09.1984, constituting a directorate of prosecution to function under the administrative control of the Home Department.

Accordingly, the Directorate constituted was functioning for some time. But, it was later on wound up due to administrative reasons. Once again,

the Government issued G.O.Ms. No. 1788, Home dated 30.10.1992, reviving the directorate and also by constituting eight Regional Offices with

necessary staff. A Special Officer in the rank of Joint Secretary to Government was functioning as Ex-Officio Director of the same. Then the

Government issued G.O.Ms. No. 570, (Home.Pol.1), Department, dated 17.04.1995 creating a post of Director of Prosecution in the rank of

Inspector General of Police. The post was upgraded to the rank of Additional Director General of Police with effect from 27.09.2000, [vide

G.O.Ms. No. 2075, (Home.Pol.1) Department, dated 10.10.2000. Now, it is again headed by an Inspector General of Police with effect from

11.10.2007.

The Government also passed G.O.Ms. No. 308, Home (Courts -VI), Department, dated 18.02.1988 issuing Adhoc Rules in respect of the

appointment and qualification for the post of Director of Prosecution, which reads as follows:

By promotion from the post of Joint Director of Prosecution; or

By recruitment by transfer from the post of District Judge Grade I of the Tamil

Nadu State Higher Judicial Service; or

By direct recruitment from Advocates; or

By transfer from the posts of Joint Secretary to Government in having experience in legal matters.

For promotion, one should have put in not less than three years in the post of Joint Director of Prosecution and for direct recruitment, one

should have practiced as an Advocate for not less than 10 years in Criminal Courts of law.

During the year 1995, the Government kept the post of Director of Prosecution in abeyance and instead, created temporary post of Director of

Prosecution in the rank of Inspector General of Police as per Rule 46 of the Tamil Nadu Services Manual (State and Subordinate Services)

Volume I Rules. As per G.O. Ms. No. 579, (cited supra), one Mr. V.C. Perumal, IPS, Deputy Inspector General of Police, Railways, was

promoted as Inspector General of Police and posted as Director of Prosecution in the newly created post with effect from 17.04.1995. It appears

that on his transfer, police officers of similar cadre were subsequently appointed as temporary Directors of Prosecution in succession.

The Government of Tamil Nadu subsequently re-issued the Adhoc Rules governing the post of the Director of Prosecution and according to the

same, the method of appointment is as follows: By promotion from the post of Joint Director of Prosecution or By recruitment by transfer from

among the holders of the posts of the District Judge (Super time scale) or District Judge or Additional District Judge or Chief Judicial Magistrate of

the Tamil Nadu State Judicial Service; or By transfer from among the holders of the post of Joint Secretary to Government, Law Department.

While so, Section 25-A was inserted to the Code of Criminal Procedure as per Central Act 25 of 2005, which came into force on 23.06.2005.

It reads thus:

25-A. Directorate of Prosecution.-(1) The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution

and as many Deputy Directors of Prosecution as it thinks fit.

(2) A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as

an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court.

(3) The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the

Head of the Home Department in the State.

(4) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution.

(5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under Sub-section

(1), or as the case may be, Sub-section (8), of Section 24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution.

(6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under Sub-section

(3), or as the case may be, Sub-section (8), of Section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed

under Sub-section (1) of Section 25 shall be subordinate to the Deputy Director of Prosecution.

(7) The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy

Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify.

(8) The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor.

Despite the introduction of the above provision, the State Government has been continuing the practice of appointing a Police Officer from the

Indian Police Service as Director of Prosecution, thereby bringing all the Prosecutors including the Public Prosecutor of the High Court as

Subordinates of the said Police Officer. The petitioner is aggrieved by the same and that is how, he is before this Court with this Public Interest

Litigation.

In the counter filed by the second respondent, inter alia, it is stated that the State Legislature has passed a Bill [LA Bill No. 33 of 2006] omitting

Section 25-A of the Code of Criminal Procedure Code, 1973, in its application to the State of Tamil Nadu. The said Bill has been sent to the

Government of India for the assent of the President, and so far, no assent has been made by the President of India. It is further stated that several

State Governments have taken the stand that a Senior Police Officer of the rank of Director General of Police/Inspector General of Police should

head the Department as Director of Prosecution, who would be able to bring about proper co-ordination between the two wings without in any

manner affecting the independence of the Prosecutors, which is essential for ensuring fairness in prosecution. The State Government of Utter

Pradesh and Orissa have inserted a provision as Section 25(2) of the Criminal Procedure Code, which empowers the State Government to

exercise its control over Assistant Public Prosecutors through Police Officers.

It is also stated that the present incumbent Mr. N. Chenbaharaman third respondent, who belongs to Indian Police Service, is possessing a

Degree in Law, and therefore, the said appointment is neither irregular nor illegal. It is further stated that Justice Malimath Committee, on reforms

of the Criminal Justice System, has also recommended for the appointment of a Police Officer of the rank of Director General as Director of

Prosecution. The Director of Prosecution is not under the administrative and disciplinary control of the Police Department or its Officers, but the

prosecuting Department is manned by All India Service Officer under the control of Home Department. In the interest of administration of the

Department and by such appointment, the independence of the Public Prosecutors will not be jeopardized. It is further stated that administrative

skill is required to hold the post of Director of Prosecution to deal with the personnel''s management of prosecuting officials and non-prosecuting

officials to the Directorate of Prosecution in entire State.

We have considered the above rival submissions and perused the records carefully. Before going into the other rival contentions, we feel, it

would be appropriate to trace the History of the Legislation governing the prosecutors.

Let the journey start from the Code of Criminal Procedure 1988, wherein, u/s 492 of the Code, the State Government was empowered to

appoint, generally, or in any case, or for a any specified class of cases, in any local area, one or more officers to be called Public Prosecutors.

Section 492(2) of the Code states that the District Magistrate, or, subject to the control of the District Magistrate, the Sub-Divisional Magistrate,

may, in the absence of the Public Prosecutor, or where no Public Prosecutor has been appointed, appoint any other person, not being an officer of

Police below [such rank as the [State Government] may prescribe in this behalf] to be Public Prosecutor for the purpose of [any case].

Under the said Code, the Public Prosecutor appointed u/s 492 or in the absence of or where there is no such Public Prosecutor appointed, an

Officer appointed by the District Magistrate shall be eligible to do the prosecution before any Court. A close reading of the said provision would

make it abundantly clear that the said provision does not provide for the appointment of a Police Officer, as Public Prosecutor to conduct the

prosecution. However, Police Officers were appointed in various States as Prosecuting Officers and such appointments were made as per Adhoc

Rules issued by the Governments.

Considering the above situation, the Law Commission in its 14th Report on Judicial Administration, while dealing with the subject of

Prosecution Agency"", made certain recommendations in Paragraph 12 of Chapter 25 of Volume 12, to the following effect:

We, therefore, suggest that as a first step towards improvement, the prosecuting agency should be completely separated from the Police

Department. In every District, a separate prosecution department may be constituted and placed in charge of an official who may be called a

Director of Police Prosecution. The entire prosecution machinery in the District should be under his control. In the District should be under his

control. In order to ensure that he is not regarded as a part of the Police Department he should be an independent official directly responsible to

the State Government. The departments of the machinery of the criminal justice, namely, the investigation department and the prosecuting

department should thus be completely separated from each other.

Thus, the Law Commission, very strongly, felt that the Prosecuting Agency should be completely separated from the Police Department and

the Police Department should have no administrative control over the Prosecuting Agency. The said report of the Law Commission was accepted

in principle by the Central Government and while enacting the new Code, viz., the Criminal Procedure Code 1973, appropriate provisions for such

separation of the Prosecuting Agency from the Police Department were made by way of Sections 24 and 25 of the Code.

The said Code came into force with effect from 01.04.1974. After the advent of the new Code, by its strict implementation, the Prosecution

Agency was kept independent and totally severed from the Police Department.

The National Police Commission in its Fourth Report submitted to the Government of India also made similar recommendations, which reads

as follows:

The minimum qualification and experience that may be prescribed for various categories are suggested below:

Assistant Public Prosecutor Grade II.

Assistant Public Prosecutor Grade II.

Additional Public Prosecutor.

Three years of experience at the Bar or five years experience as a Judicial

Officer or seven years practice at the Bar or Seven years practice as a Judicial Officer

Public Prosecutor do

Deputy Director of Prosecution Seven years Practice at the bar or seven years experience as a Judicial Officer which at least three years should

be a Sessions Judge or three years experience as Additional Public Prosecutor or Public Prosecutor.

Director of Prosecution and Additional Director of Prosecution Ten years practice at the Bar or ten years experience as a Judicial Officer at

least five years should be as a Sessions Judge or three years experience.

The said recommendations would also go to show that the Police Commission also felt, like the Law Commission, that the Prosecuting Agency

should be kept independent without there being any control, more particularly, any administrative control by the Police Department.

In the above background, insofar as Tamil Nadu is concerned, prior to15.09.1984, the Prosecutors were appointed by the District

Magistrates and they were doing the prosecution in all Courts. Of course they were under the administrative control of the District

Magistrates/District Collectors and not under the control of the Police Departments. But, their independence to decide the matters, such as u/s 321

of the Code was preserved.

It was only under G.O.Ms. No. 2075, Home Department, dated 15.09.1984, under the guise of bringing effective control of these Public

Prosecutors, including the Assistant Public Prosecutors, separate directorate was conceived off. As we have narrated in the earlier paragraphs, the

said post was filled up with an Officer of the Police Department drawn from the Indian Police Service not below the rank of Inspector General of

Police.

Similarly, in few more States also, Police Officers were appointed as Directors of Prosecution. This position came to be noticed by the

Hon''ble Supreme Court in S.B. Shahane and others Vs. State of Maharashtra and another, . Precisely, the challenge in the said case was to the

appointment of the Police Prosecutors as Assistant Prosecutors to conduct prosecution in the Courtsof Magistrate without bringing about their

severance from the Police Department. The Hon''ble Supreme Court extensively had gone into the scope of Section 25 of the Code in the

background of 14th Report of the Law Commission and finally held in paragraph 10 as follows:

Thus, when all the sub-sections of Sections 25 of the Code are seen as a whole, it becomes clear therefrom, that there is a statutory obligation

imposed on the State or the Central Government, as the case may be, to appoint one or more Assistant Public Prosecutors in every district for

conducting the Prosecutions in the Magistrate''s Courts concerned and of making such Assistant Public Prosecutor independent of the Police

Department or its officer entrusted with the duty of the investigation of cases of which prosecutions are to be launched in Courts, by constituting a

separate cadre of such Assistant Public Prosecutors and creating a separate prosecution department for them, its head made directly responsible

to the Government for such department''s works.

[Emphasis applied].

Ultimately, the Hon''ble Supreme Court issued a direction to the Government of Maharashtra to the following effect:

To constitute a separate cadre of Assistant Public Prosecutors either on district-wise basis or on State-wise basis, by creating a separate

Prosecution Department for them and making the head to be appointed for such Department directly responsible to the State Government for there

discipline and the conduct of all prosecutions by them before the Magistrates'' Courts and further free such Prosecutors fully from the

administrative and disciplinary control of the Police Department or its officers, if they still continue to be under such control.

[Emphasis applied].

Thus, on the basis of the said view expressed by the Hon''ble Supreme Court, the Central Government thought it fit to bring an amendment to

the Code of Criminal Procedure so as to introduce Section 25-A, as extracted supra.

A glance through the said provision would make it manifestly clear that the intention of the Parliament is to maintain absolute independence for

the Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors from the control of the Police Department in any manner.

Apart from that, Sub-section 2 of Section 25-A of the Code mandates that the eligibility for such appointment either as a Director of Prosecution

or as a Deputy Director of Prosecution shall be Practice as an Advocate for not less than ten years. It further mandates that such appointment shall

be made with the concurrence of the Hon''ble Chief Justice of the High Court. When such statutory provision is in force, it is not at all open for the

Government to state that it will proceed to appoint a Police Officer as Director of Prosecution, since the Bill passed in the State Legislature to omit

Section 25-A in its application to the State of Tamil Nadu is pending before the Central Government for assent of the President of India. The State

Government is bound to scrupulously follow the said provision.

The learned Additional Advocate General would make an attempt to differentiate the Director of Prosecution in the State of Tamil Nadu

purportedly appointed as per the Adhoc Rules from the Director of Prosecution or Deputy Director of Prosecution contemplated u/s 25-A of the

Code. According to her, in the State of Tamil Nadu, the Government has not appointed any Director of Prosecution or Deputy Director of

Prosecution as required u/s 25-A of the Code, and instead, a Police Officer is appointed so only in accordance with the Adhoc Rules. She would

further submit that the said appointment does not in any manner infringe the independence of the Prosecuting Agency, as he has got only

administrative control.

But, we are not prepared to persuade ourselves to accept the said argument of the learned Additional Advocate General, for the simple reason

that as a matter of fact, the Director of Prosecution has got full administrative control of all the Prosecutors in the State. It is not as though the

Prosecutors are not under the supervision and control of this Police Officer. The details of the powers and duties of the Director of Prosecution as

found in the Hand Book issued by the Directorate are as follows:

The Director will be the Administrative head of the Prosecution Department; Facilitate effective co-ordination among the investigating and

prosecuting officers.

To conduct review meeting with the Deputy Directors of Prosecution, Assistant Directors of Prosecution and Additional Public Prosecutors and

periodical reports to the Home Department.

...

Take necessary steps for filing of draft final reports and conducting of trials in criminal cases by co-ordinating efforts of the Investigating and

Prosecuting Officers.

From the above details, we find no difference between a Director of Prosecution contemplated u/s 25-A of the Code and a Director of

Prosecution appointed as per the Adhoc Rules as sought to be made out by the respondents. That apart, the Adhoc Rules issued by the

government orders cannot override the Statutory Provision contained in Section 25-A of the Code. In the words of the Hon''ble Supreme Court in

Veenakumari Tandon v. Neelam Bhalla reported in 2007 (12) SCC 764, ""it is now a well-settled principle of law that a legislative Act shall prevail

over the subordinate legislation"". Thus, as soon as Section 25-A of the Code had come into force, the Adhoc Rules, which were invogue prior to

the same, would automatically become inoperative. Therefore, we hold that the appointment of Director of Prosecution and Deputy Directors of

Prosecution are to be made strictly in accordance with the qualifications prescribed in Section 25-A of the Code and with the concurrence of the

Hon''ble Chief Justice of the High Court.

Nextly, the learned Additional Advocate General would submit that the right of the Government to appoint an Officer of Indian Police Service

as Director of Prosecution in the event, the Bill omitting Section 25-A in its application to the State of Tamil Nadu takes the shape of law by the

assent of the President of India may be preserved. In this regard, we do not want to express any opinion at this stage, as it would only be

hypothetical, as the Bill has not taken the shape of a law yet. At the same time, we would like to highlight the judicial opinion in the pre-Section 25-

A scenario.

The intention of the Legislature underlying the enactment of Sections 25-A and 25 of the Code is very obvious, which states that the

Prosecutor, who has to conduct prosecution, should not be a person other than an Advocate having seven years standing at the bar. The object of

such provision, as we have already stated, is to give complete freedom for the Prosecutors to take decisions including spontaneous decisions in the

matter of conducting the prosecution case. The Office of the Public Prosecutor is a very responsible Office and he has an important role to play in

the Criminal Justice Delivery System. The Public Prosecutors are to be independent, unbiased and impartial while conducting prosecution. The

Public Prosecutor is not a Police Prosecutor in the sense that he is not a mouthpiece of the Police, for he is not an Advocate engaged by the State

to conduct its prosecutions. Therefore, the Prosecutors cannot be allowed to be controlled either administratively or in any other mode by the

Police Department.

While considering an identical situation, a Division Bench of the Calcutta High Court in Raj Kishore Rabidas v. The State eported in AIR 1969

Cal 1321, has made the following observations;

It would be, therefore, apposite to say that a Public Prosecutor for the State is not such a mouthpiece for his client the State, to say what it wants

or his tool to do what the State directs. He owes allegiance to higher cause. He must not consciously misstate the facts, nor knowingly conceal

truth. Despite his undoubted duty to his client, the State, he must sometimes, disregard his client''s most specific instructions if they conflict with his

duty to the Court to be fair, independent and unbiased in his views. As an Advocate for the State, he may be ranked as a Minister of Justice

equally with the Judge.

A Full Bench of kerela High Court in Dy. Accountant General (Admn) Office of the Accountant General, Kerala Trivandrum Vs. State of

Kerala and Others, has held as follows:

A Public Prosecutor has to discharge various functions in the Court which would be difficult for him to discharge independently, if he had to serve

under the administrative and disciplinary control of a police officer holding the rank of the Head of his Department in the capacity of Director of

Prosecution. It is contended that very frequently the Public Prosecutor has to exercise his discretion and own Judgment to come to the conclusion

as to whether in a certain case prosecution should be withdrawn against the accused persons or not.

The Hon''ble Supreme Court had an occasion to deal with more or less a similar situation in Balwant Singh and Others Vs. State of Bihar, ,

wherein, the Hon''ble Supreme Court has held as follows:

The Criminal Procedure Code is the only master of the Public Prosecutor and he has to guide himself with reference to Criminal Procedure Code

only. So guided, the consideration which must weigh with him is, whether the broader cause of public justice will be advanced or retarded by the

withdrawal or continuance of the prosecution. As we have already explained, public justice maybe a much wider conception than the justice in a

particular case.

In Krishan Singh Kundu Vs. State of Haryana and Others, wherein, a Division Bench of Punjab and Haryana High Court has gone extensively

deep into the scope of Sections 24 and 25 of the Code and after having analyzed the scope of these provisions in the background of the Law

Commission Report, Police Commission Report and various other Judgments, while considering the question of legality of appointment of a Police

Officer as Director of Prosecution, the Division Bench has held in Paragraph 12 asfollows:

In view of the above factual and legal position, we find that the action of the respondent State of Haryana, in appointing a Police Officer as

Director of Prosecution, that is, in charge of the Prosecution Agency of the State, is wholly illegal and violative of the very letter and spirit of

Sections 24 and 25 of the Code of Criminal Procedure. We, therefore, by issuing a Writ of Certiorari, quash the appointment of the Director of

Prosecution, Haryana, who happens to be an Officer of the Police Department, and by issuing further a Writ of Prohibition, we forthwith restrain

the State of Haryana from permitting any police officer to occupy the office of the Director of Prosecution. By issuing a Writ of Mandamus, we

command the State of Haryana to fill the post of Director of Prosecution only by appointing a Senior Officer belonging to the Prosecution Agency,

having sufficient experience of actual working as a Public Prosecutor.

Very recently, the Hon''ble Supreme Court in NHRC v. State of Gujarat reported in 2009 6 SCC 767 had an occasion to have a look into the

position of a Prosecutor. The Hon''ble Supreme Court had elaborately dealt with the position of the Prosecutors in many Countries like, Australia,

Canada, Republic of Ireland, South Africa, England and in India and ultimately, made the following observations:

The Law Commission in 1958 had recommended that a Director of Prosecutions be set up having its own cadre, though this recommendation

was not included in the Code then. Again in 1996 the Law Commission in its 154th Report identified as Independent Prosecuting Agency as one

of the several areas within the Code which required redesigning and restructuring. The Law Commission supported most of the proposed

amendments to the Code as contained in the proposed Code of Criminal Procedure Amendment Bill, 1994. Recommendations related to the

structure of a Directorate of Prosecutions at the State-level, to be adopted by a State Government in the event it decided to set up a cadre of

Prosecutors. The Law Commission further recommended that the structure of State-level Directorates of Prosecution be given statutory status

through an amendment to the Code. Despite the absence of such a requirement and inadequacy of the provisions in the Code a number of States

mainly, Delhi, Andhra Pradesh, Bihar, Goa, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh, Orissa, Tamil Nadu and Uttaranchal,

established a Directorate of Prosecution.

From all the above, there can be no second opinion at all, as held repeatedly by the Hon''ble Supreme Court and various High Courts that

there should be complete separation of Public Prosecutors, Additional Public Prosecutors, Special Public Prosecutors and Assistant Public

Prosecutors from the control or supervision in any form by the Police, as otherwise, such control or supervision would only invade into the

independence of the institution of Prosecutors, which would only bring harm to the Criminal Justice Delivery System. The contention of the learned

Additional Advocate General that the Police Officer appointed as a Director of Prosecution has got only administrative control and absolutely there

is no chance for him to influence in any manner the decision making process of the Public Prosecutor does not persuade us.

In view of the foregoing discussions, we have no hesitation to hold that the appointment of a Police Officer as Director of Prosecution is

contrary to Section 25-A of the Code of Criminal Procedure, 1973, and so, the same is liable to be quashed. In the case on hand, the second

respondent was the Director of Prosecution when this Writ Petition was filed. Recently, he has been transferred and in his place, the third

respondent has been posted. Though the third respondent is a Law Graduate, admittedly, he does not satisfy the qualification as prescribed in

Section 25-A of the Code, and further, his appointment was not made with the concurrence of the Hon''ble Chief Justice of this Court. So, his

appointment is liable to be set aside.

In the result, the Writ Petition is allowed; the appointment of the third respondent as Director of Prosecution, is set aside and the Government

is at liberty to appoint Director of Prosecution and Deputy Directors of Prosecution strictly in accordance with Section 25-A of the Criminal

Procedure Code. No costs. Consequently, connected Miscellaneous Petition is closed.