JAWAHAR LAL Vs. STATE OF HP

JUDGEMENT

(1.) By means of this petition the Petitioner has laid challenge to the notification dated 29th September, 2010, Annexure P-7, whereby Respondent No. 2, Shri H.S. Rana, who at the relevant time was working as Director of Prosecution, Himachal Pradesh, was granted extension in service from the date of his superannuation, i.e. 30.09.2010, till further orders.

(2.) The brief facts of the case are that the Petitioner is presently working as Joint Director (Prosecution) with the State of Himachal Pradesh. Respondent No. 2, as mentioned above, was working as Director (Prosecution) and was due to retire on 30th September, 2010. The main challenge in the petition was that the impugned notification had been issued without obtaining the concurrence of the Chief Justice of the High Court of Himachal Pradesh in terms of Section 25A of the Code of Criminal Procedure, 1973. The relevant portion of the Section 25A of the Code of Criminal Procedure reads as follows:

(3.) A bare perusal of the provisions of Section 25A(2) clearly shows that the Director of Prosecution can be appointed by the State only with the concurrence of the Chief Justice of the High Court. There is no doubt in our mind that this concurrence has to be obtained prior to the issuance of the order of appointment and the concurrence of the Chief Justice cannot be obtained after issuing the orders. The word "concurrence" itself envisages that there is prior agreement of the authority who is to give his concurrence. The Legislature in its wisdom decided that the Chief Justice would be most suited to decide who should head the prosecution wing in the State. Due to this reason, amendment was carried out in the Code of Criminal Procedure vide Act 25 of 2005, which came into force on 23rd June, 2006 and after this amendment, the Director of Prosecution in any State can not be appointed without the concurrence of the Chief Justice of the High Court.