1. While dealing with Criminal Application No. 1767/2016, for grant of regular bail, tendered by accused under section 439 of the Code of Criminal Procedure, on being called upon, it was reported by the District Judge in his report submitted to the Court that the Special Public Prosecutor appointed in accordance with the provisions of section 24(8) of the Code of Criminal Procedure is not extending cooperation in proceeding with the trial. While examining the grievance, the learned Public Prosecutor appearing for the State brought to the notice of the Court the resolution issued by the State Government on 12th May, 2015, authorising the Commissioner of Police and Superintendent of Police in the district to make appointment of the Special Public Prosecutor in exercise of powers under section 24(8) of the Code of Criminal Procedure. The Court took suo motu cognizance of the decision taken by the State Government on 12th May, 2015, authorising the Commissioner of Police and Superintendent of Police in a district to prepare a panel of prosecutors for conducting trials in the Courts within the district. The learned Single Judge noticed that the resolution prima facie appears to be in contravention of provisions of section 24(8) of the Code of Criminal Procedure and as such, directed the State Government to explain as regards the legality and correction of decision. The learned Single Judge taking suo motu cognizance of the matter directed the same to be referred to the Division Bench for decision. In pursuance of the notice issued by the Division Bench, the State Government has presented reply and explained its stand.
2. The Government Resolution dated 12th May, 2015, authorises the Commissioner of Police, Special Inspector General of Police and the Superintendent of Police to prepare a panel of advocates for making appointment of the prosecutors within the jurisdictional area of such officers. The advocate, who shall be from amongst the panel, can be appointed as Special Public Prosecutor to deal with sensitive and important cases arising within the jurisdiction. It is further prescribed that it would be within the competence of such police officer to ensure that a particular case is sensitive requiring appointment of the Special Public Prosecutor. So far as payment of professional charges are concerned, it is directed that it shall be governed by the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984. The decision taken is apparently in contravention of provisions of section 28(4) of the Code of Criminal Procedure. Section 24(8) reads thus :
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 subsection (4).(6) Notwithstanding anything contained in subsection (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional 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 subsection (4).[Explanation For the purposes of this subsection( a) "regular Cadre of Prosecuting Officers" means a Cadre of Prosecuting Officers which includes therein the post of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post;(b) "Prosecuting Officer" means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.](7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under subsection (1) or subsection (2) or subsection (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;[Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this subsection.](9) For the purposes of subsection (7) and subsection (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 Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.]
3. The Central Government or the State Government may appoint, for the purpose of 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. The proviso prescribes that the Court may permit the victim to engage an advocate of his choice to assist the prosecution. On perusal of section 24 of the Code of Criminal Procedure which deals with Public Prosecutors, it does appear that subsection (8) invests powers on the Central Government or the State Government to appoint a Special Public Prosecutor for any case or class of cases. Subsection (1) of section 24 provides that 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 Prosecutor for conducting such case.
4. By virtue of Maharashtra amendment, reference to High Court in subsection (1) has been deleted and it is no more mandatory for the State Government or the Central Government to consult the High Court. Subsection (2) deals with powers of the Central Government to appoint Public Prosecutor for the purpose of conducting any case or class of cases in any district or local area. So far as the appointments Public Prosecutor for district area are concerned, subsection (3) provides that the State Government shall appoint Public Prosecutor and may also appoint one or more Additional Public Prosecutor in the district. Subsection (4) of section 24 mandates consultation with the Sessions Judge for preparing panel of names of persons, who are, in his opinion, fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district. However, there is amendment to subsection (4) provided by State of Maharashtra whereby mandate of consultation with the Sessions Judge has been deleted and the appointment is mandatorily required to be made with the approval of the State Government. Subsection (5) of section 24 provides that no person shall be appointed by the State Government as Public Prosecutor or Additional Public Prosecutor for the district, unless his name appears in the panel of names prepared by the District Magistrate under subsection (4). Subsection (6) of section 24 provides for making appointment from amongst the regular cadre of Prosecuting Officers. Subsection (8) of section 24 is an exception to the scheme of making appointment of regular Public Prosecutor for conducting trials on behalf of the State in the district or on behalf of the Central Government. Said provision i.e. subsection (8) of section 24 empowers the State Government or the Central Government to appoint a Special Public Prosecutor having experience of not less than ten years, for the purpose of conducting any case or class of cases. In making appointment of a Special Public Prosecutor, the procedure contemplated under subsections (1) to (6) of section 24 is not expected to be adhered to. It is exclusively within the domain of the State Government to appoint a Special Public Prosecutor for conducting any case or class of cases. However, the only requirement is that such person shall have professional experience of not less than ten years.
5. In the matter of State of Uttar Pradesh and another Vs. Johri Mal, AIR 2004 SC 3800, the Honourable Supreme Court has observed that the appointment of a Government Pleader is a professional engagement and the State Government has discretion to engage the advocate of its choice to represent the State in the Court of law. So far as the scheme of section 24 is concerned, as has been recorded above, subsection (8) of section 24 carves out an exception and authorises the State Government to make appointment of Special Public Prosecutor for conducting a case or class of cases and, for making such appointments, the regular procedure prescribed under the other subsections of section 24 of Code of Criminal Proceudre is not to be followed.
6. It has been pointed out that the State Government, after receipt of notice of the instant petition, has corrected the mistake that has occurred in issuing resolution on 12th May, 2015. The State Government has amended the Government Resolution and has issued revised directions issued on 21.10.2016. Under the revised directions, the Commissioner of Police, the Special Inspector General of Police or the District Superintendent of Police may propose a panel of Special Prosecutor and may submit the proposal to the State Government. It is provided that while preparing the panel it shall be ensured that only names of advocates having professional experience of ten years shall be included in the panel. The proposal shall have to be forwarded through the Home Department of the State Government to Law and Judiciary Department. It is further provided that it is within the competence of the State Government to prepare a panel for any commissionorate division or a district. The Commissioner of Police or the Special Inspector General or the District Superintendent of Police are directed to tender the proposal on preparation of panel directly to the Law and Judiciary department and to seek approval. It has also been provided that the panel so constituted would be limited for conducting trial in a particular Sessions case alone. Revised instructions have been issued by the State Government in supersession of earlier instructions dated 12th May, 2015. It is thus clear that as per the Government Resolution as modified on 21.10.2016, the powers are invested with the State Government alone in respect of preparation of panel of Prosecutors for conducting trials which are of sensitive nature. Prima facie there does not appear violation of mandate of section 24(8) of the Code of Criminal procedure. There does not appear to be any prohibition in law for preparing a panel of Special Public Prosecutor by the State Government. However, the mandate of subsection( 8) which provides that the appointment of Special Public Prosecutor for the purpose of conducting any case or class of cases shall have to be adhered to. It would not be within the competence of the Superintendent of Police or the Commissioner of Police or the Special Inspector General to appoint a particular Special Public Prosecutor for conducting any particular case or class of cases. It shall be open only for the State Government to make appointment of a Special Public Prosecutor authoring him to conduct any case or class of cases. There shall be no dual opinion as regards observance of mandate of subsection (8) of section 24 of the Code of Criminal Procedure and, it shall be impressed upon by the State Government on all the police officers i.e. Commissioner of Police, Superintendent of Police or the Special Inspector General that, it is only the State Government which has the authority to appoint the Special Public Prosecutor for conducting any case or class of cases and such authorisation cannot be issued by the police officers.
7. In view of above, writ petition stands disposed of.
8. Learned counsel Mr. Vijay Sharma, who has been appointed as amicus curiae to assist the Court, shall be paid remuneration of Rs. 10,000/. Learned counsel has fairly stated that he will not claim any fees. The gesture and the assistance rendered by the learned counsel is appreciated.
