K TIRUPATHI Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) The 2nd respondent, Sri Shankar Rao Bowgikar, was a Lower Division Clerk in the Municipal Corporation of Hyderabad. He is a law graduate. He has also a Post-Graduate Diploma in LSGD.

(2.) A Court has been specially constituted to deal with the cases arising under the Hyderabad Municipal Corporation Act and the Prevention of Food Adulteration Act. In fact, its entire expenditure including the pay and allowances of the Magistrate, is borne by the Municipal Corporation of Hyderabad. It is now called the VII Metropolitan Magistrates Court. There was a Court Inspector in that Court appointed by the Municipal Corporation of Hyderabad to conduct cases arising under the Hyderabad Municipal Corporation Act, and one Madhava Rao was working as the Court Inspector. He was promoted as Superintendent. In his place and 2nd respondent was promoted as the Court Inspector by the Municipal Corporation of Hyderabad on 10/05/1979. When he was conducting S.T.C. No. 140/1981, the accused took an objection that the 2nd respondent was not appointed as Public Prosecutor under S. 25 of the Cr.P.C. 1973, and, therefore, he could not conduct the prosecution. The learned VII Metropolitan Magistrate upheld the objection. Aggrieved by his order, the 2nd respondent and the Municipal Corporation of Hyderabad preferred a revision to this Court. It was allowed on 12/08/1982 by Punnayya J. on the ground that the High Court in its inherent jurisdiction under Section 482, Cr.P.C. could not set aside the appointment.

(3.) Here it may be noted that in view of the objection taken by the accused in that case, the Government of Andhra pradesh, issued G.O.Ms. No. 1152 Municipal Administration dated 24/10/1981, re-designating the post of Court Inspector as Assistant Public Prosecutor with immediate effect under sub-sections (4) and (5) of S. 137 of the Hyderabad Municipal Corporation Act, as subsequently amended. In the same G.O. a notification was issued, which was published in the Andhra Pradesh Gazette appointing the 2nd respondent as Assistant Public Prosecutor under S. 25(1) of the Cr.P.C. 1973, for the purpose of cases tried in any Criminal Court situated with the municipal limits of Hyderabad and Secunderabad in respect of offences punishable under the provisions of the Hyderabad Municipal Corporation Act, 1955 and the rules and bye laws made thereunder. On 2/11/1981 the Special Officer, Municipal Corporation of Hyderabad, has appointed the 2nd respondent as the Assistant Public Prosecutor of Municipal Corporation of Hyderabad to conduct all cases in respect of the offences punishable under the provisions of the Hyderabad Municipal Corporation Act, 1955 and the rules and bye-laws made thereunder in the Court of the VII Metropolitan Magistrate, Hyderabad. The petitioner, Sri K. Tirupati, an advocate, has filed this writ petition for a quo warranto under Art. 226 of the Constitution questioning the appointment of the 2nd respondent as Assistant Public Prosecutor.