JAIDHARI ROY Vs. STATE OF BIHAR

JUDGEMENT

(1.) Petitioner No. 1 herein was appointed as a Public Prosecutor of Vaishali district in the year 1990 for a term of three years under Section 24 of the Code of Criminal Procedure. Other petitioners were similarly appointed as Additional Public Prosecutor of different districts of the State. Respondent Nos. 4 to 15 were appointed as Assistant Public Prosecutor. The move of the Government to appoint Public Prosecutors/Additional Public Prosecutors from amongst the Assistant Public Prosecutors in the State of Bihar under Section 24(6) of the Code of Criminal Procedure (as amended by Bihar Act 16 of 1984) has led to the filing of this writ petition. The petitioners contend that in terms of Section 24(6) of the Code of Criminal Procedure, as amended, there does not exist a regular cadre of prosecuting Officers in the State of Bihar, and consequently the State Government cannot appoint a Public Prosecutor or Additional Public Prosecutor from amongst the Assistant Public Prosecutors in the State, who do not belong to such regular cadre of prosecuting Officers as envisaged by sub-Section (6) of Section 24 of the Code of Criminal Procedure. It is their submission that in the absence of a regular cadre of prosecuting officers, it is not open to the State Government to act under sub-Section (6) of Section 24 of the Code of Criminal Procedure. They contend that "a regular cadre of prosecuting officers" means a regular cadre of prosecuting officers going upto the level of Additional Public Prosecutor and Public Prosecutor. Reliance is placed upon a decision of the Supreme Court in K. J. John v. State of Kerala AIR 1990 SC 1902 : (1990 Cri LJ 1777) and it is submitted that since the cadre of prosecuting officers in the State of Bihar does not include the post of Public Prosecutor/Additional Public Prosecutor, and the Assistant Public Prosecutors are authorised only to conduct cases on behalf of the State before the magisterial Courts, the said Assistant Public Prosecutors cannot be considered to belong to a regular cadre of Prosecuting Officers envisaged under sub-Section (6) of Section 24 of the Code. In the absence of a regular cadre of prosecuting Officers, the State must act in accordance with other provisions of Section 24, and must appoint as Public Prosecutors/Additional Public Prosecutors persons who are eligible and possess the necessary qualification and experience. Rule 137 of the Bihar Practice and Procedure Manual lays down the term of appointment of Public Prosecutors which shall ordinarily be for a term of three years, though the incumbent may be eligible for reappointment on expiry of such term.

(2.) The facts of the case may first be noticed. The petitioners claim that they were duly appointed as Public Prosecutors/Additional Public Prosecutors under Section 24 of the Code. On the other hand, respondent Nos. 4 to 15 are Assistant Public Prosecutors. They are full time employees of the Government and have been appointed in a regular manner. By Government notification dated 18-5-1953 a separate cadre of police Prosecutors for conducting prosecution of State cases before magisterial Courts was established. The aforesaid cadre of police prosecutors consisted of (1) senior District Prosecutors of the rank of Deputy Superintendent of Police, (2) the District Prosecutors of the rank of Inspector of Police and (3) Assistant District Prosecutors of the rank of Sub Inspector of Police. These prosecutors were required to be enrolled under the Police Act and to appear in uniform while on duty. The method of recruitment of such Prosecutors was laid down. These Prosecutors were to conduct prosecution of State cases in magisterial Court only. There was no post of Public Prosecutors/Additional Public Prosecutors in the cadre.In view of the recommendation of Law Commission of India that the prosecuting agency should be separate and may not be a counter-part of the Police Department, and in view of the provisions of Section 25 of the Code of Criminal Procedure, the Government of Bihar issued a circular/letter dated 30th March, 1974, whereby the members belonging to the carde of Police Prosecutors established under Government Notification dated 18th May, 1953, were redesignated as Assistant Public Prosecutors. They were not required to wear police uniform, and pending finalisation with regard to the exercise of administrative control over the cadre, they were initially kept under the control of the Inspector General of Police. The Senior District Prosecutors were redesignated as Assistant Public Prosecutor Grade I, the District Public Prosecutor was redesignated as Assistant Public Prosecutor Grade II and the Assistant District Prosecutor was redesignated as Assistant Public Prosecutor Grade III. The other conditions of service of such Prosecutors remained the same. The continuance of such Prosecutors under the administrative control of Inspector General of Police was questioned before this Court in Lakhan Lal v. State of Bihar (1992) 2 Pt LJR 340. The judgement of this Court in Lakhan Lal (supra) held that the Assistant Public Prosecutors should not be allowed to continue under the administrative control of the Inspector General of Police, and that the State Government must take necessary steps to place them under the control of another person within three months. Consequently by resolution dated 10th March, 1981, the Assistant Public Prosecutors of all grades were placed under the control of the Director of Prosecution, Government of Bihar, and they were directly under the control of Home (Police), Department, Government of Bihar.

(3.) On these facts the petitioners contend that respondent Nos. 4 to 15 did not belong to a "regular cadre of prosecuting Officers," because a regular cadre of prosecuting Officers envisages a cadre of prosecuting officers with the public Prosecutor/Additional Public Prosecutor at the top and Assistant Public Prosecutors at the bottom. The necessary pre-condition for the application of sub-Section (6) of Section 24 of the Code is the existence of such a regular cadre of prosecution officers. Since such a regular cadre does not exist, respondents Nos. 4 to 15 cannot be considered for appointment as Public Prosecutor/Additional Public Prosecutor. The cadre of prosecuting Officers, such as it exists in the State of Bihar, is not a regular cadre of prosecuting officers. The cadre does not include the post of Public Prosecutor/Additional Public Prosecutor, and the officers of the cadre can conduct cases only before the magisterial Courts. It is, therefore, their contention that the move of the Government to appoint Public Prosecutors/Additional Public Prosecutors from amongst the Assistance Public Prosecutors of such a cadre is in breach of the provisions of Section 24 of the Code of Criminal Procedure. The Government should, therefore, be restrained from appointing such Assistant Public Prosecutors as Public Prosecutors/Additional Public Prosecutors, and they should appoint Public Prosecutors/Additional Public Prosecutors such person as are eligible and qualified for appointment having regard to the other provisions of Section 24 of the Code.