KRISHAN SINGH KUNDU Vs. STATE OF HARYANA

JUDGEMENT

(1.) This is a petition under Arts. 226 and 227 of the Constitution which has been brought before us in the nature of Public Interest Litigation by Mr. Krishan Singh Kundu a practising Advocate of this Court. At the very outset, we must bring on record our appreciation for Mr. Kundu for having done a commendable service to the cause of the Administration of Justice in the State of Haryana.

(2.) The short grievance of the petitioner, as projected in this petition, is against the appointment of a police officer as Director of Prosecution by the State of Haryana, which according to the petitioner is in utter violation of the letter and spirit of the provisions of Ss.24 and 25 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), as also against the recommendations of the Law Commission of India which have already been accepted by the State of Haryana. In nutshell, the thrust of the argument of the petitioner is that the Director of Prosecution being head of the Prosecution Department and overall incharge of the Prosecution Agency of the State, should be a person who has been an experienced prosecutor himself and possesses to his credit the legal qualifications, professional training and the rich experience acquired by conducting cases personally in the trial as well as the appellate court. If to the contrary, a police officer without any experience as a prosecutor is appointed as Director of Prosecution, then the Prosecution Agency as a whole and the Public Prosecutors in important criminal cases in particular, would be deprived of the day to day guidance with regard to the conduct of the cases at various stages. According to the petitioner, in certain important cases the Director of Prosecution is also supposed to appear personally in the courts and conduct the cases under his close supervision, but the Prosecution Agency of the State would be deprived of this service if the Director of Prosecution happens to be a police officer without any professional training to his credit. Attack on the appointment of a police officer manning the office of Director of Prosecution has been advanced further with the help of established principles of law as well as precedents, to contend that the very appointment of a police officer incharge of the Prosecution Agency lies directly counter to the impartial and fair trial in the Court of law, as the Director of Prosecution belonging to Police Department will always be anxious to secure maximum convictions in the State cases by exerting all sorts of influences at the stage of investigation and even thereafter at the stage of examining the prosecution witnesses. Such a situation would be inconsistent with the march of times in a welfare State.

(3.) In reply to the writ petition, written statement has been filed by the Deputy Secretary to Government, Haryana, Department of Administration of Justice, on behalf of the State of Haryana the only respondent in the case. In the written statement, the stand taken by the respondent is that according to Sub-S. (6) of S.24 of the Code, where in a State there existed a regular cadre of prosecuting officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from amongst the persons constituting such cadre. But, an exception had also been made in S.25 to the effect that where no Assistant Public Prosecutor was available for the purpose of any particular case, the District Magistrate could appoint a police officer not below the rank of Inspector to be an Assistant Public Prosecutor provided that the officer had not taken any part in the investigation. Further, it has been conceded in the written statement that in the State of Haryana, the Prosecuting Agency had in fact been separated from the control of the police with effect from 1-4-1974 consequent upon the enforcement of the Code. Further, it has been asserted that the Prosecuting Agency in Haryana at present was independently working with no police interference at all. It has further been admitted that the State was aware of the fact that a ban had in fact been imposed under S.25 of the Code against the appointment of a police officer as Assistant Public Prosecutor. In order to justify the appointment of a police officer as Head of the Prosecuting Agency in Haryana, the stand taken by the respondent is that there were no statutory rules governing the appointment of Director of Prosecution from amongst the Assistant District Attorneys/Deputy District Attorney/District Attorneys. Therefore in the absence of such rules, the State Government took a policy decision on 2-3-1974 for filling the post of Director of Prosecution either by direct recruitment or by transfer or by promotion from amongst the District Attorneys. However, it has further been pleaded "that the appointment of a police officer as Director of Prosecution does not violate in any way the spirit of the scheme as laid down in S.25 of the Code of Criminal Procedure, 1973, as the officer so appointed as Head of the Prosecuting Agency is not under the control of the Police Department. An officer from the IPS Cadre when appointed as Director of Prosecuting severs his relations with the Police de facto. He is directly answerable to the State Government and not to the Police Chief and as such the Prosecution Agency's, independence has not been jeopardised". Emphasis has also been laid that the appointment of Director of Prosecution was not covered by S.25 of the Code and that the post of Director of Prosecution was not that of Public Prosecutor and was merely of an administrative head of the Prosecution Department.