E A THANKAPPAN Vs. STATE OF KERALA

JUDGEMENT

(1.) This is a public interest litigation filed by an Advocate of this Court challenging the appointment of the 2nd respondent as Director General of Prosecution vide Ext P-1 and later as Public Prosecutor vide Ext. P-2 produced in the W.P.(C).

(2.) We have heard the Learned Counsel appearing for the petitioner, learned Advocate General for the State and the learned senior counsel, Sri Santhalingam, appearing for the 2nd respondent.

(3.) The challenge against the appointment of the 2nd respondent as Director General of Prosecution is on the ground that the appointment is not under or in accordance with Section 25A of the Code of Criminal Procedure, which requires concurrence of the appointment by the Chief Justice of the High Court. The Advocate General appearing for the State raised a contention that Section 25A of the Cr.P.C. was introduced by Act 25 of 2005 with effect from 23-6-2006 and the provision only enables the Government to constitute a Directorate of Prosecution. According to Advocate General, no such Directorate of Prosecution as visualised under Section 25A of the Cr.P.C. is constituted in the State even as on today. However, the Advocate General has produced Ext. R-1(a) series of documents by which the State constituted the Directorate of Public Prosecution way back on 26-4-1975, which is more than 30 years prior to the introduction of Section 25A to the Cr.P.C. It is seen from Ext. R-1(a) that while appointing Director of Public Prosecution his duties and functions are laid down in the Government Order dated 26-4-1975. Eversince Government has been appointing Director of Public Prosecution in the High Court periodically. Later, the Government redesignated the post of Director of Public Prosecution to that of Director General of Prosecution with effect from 25-10-1991 vide Ext. R-1(a)(ii) dated 20-11-1991. It is seen that even after the redesignation, the Director General of Prosecution retained the same functions and duties that were assigned to the Director of Prosecution vide Ext. R-1(a)(i). Later the Government modified the powers and functions of the Director General of Prosecution vide Ext. R-1(a) (iii) dated 2-7-1996 but by retaining the designation. The contention of the State is that the Directorate constituted 30 years back under Government Orders continues to function in the same manner and it is neither the same or equivalent to the Directorate of Prosecution visualised under Section 25A of Cr.P.C.