IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 WP(C).No. 18844 of 2011(S) -------------------------- PETITIONER: --------------- E.A.THANKAPPAN, ADVOCATE, ROOM NO.7, ASIAN BUSINESS CENTRE, ST.ALBERTS HIGH SCHOOL LANE, BANERJI ROAD, COCHIN-35. BY ADV. SRI.D.ANIL KUMAR RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY ADDL.CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. T.ASAF ALI, DIRECTOR GENERAL OF PROSECUTION, OFFICE OF THE ADVOCATE GENERAL, ERNAKULAM, COCHIN-31. ADVOCATE GENERAL, SRI.K.P.DANDAPANI SRI.P.SANTHALINGAM, SENIOR ADVOCATE FOR R2 SRI.S.SHARAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.18844/2011 APPENDIX EXT.P1: COPY OF THE ORDER DT.01.07.2011 ISSUED BY THE 1ST RESPONDENT. ANNEXURE R1(A) SERIES: (i); COPY OF G.O.(MS) NO.53/75/HOME DT.26.4.1975. (II) COPY OF G.O.(MS) NO.165/91/HOME DT.20.11.1991. (III) COPY OF G.O.(MS) NO.120/96/HOME DT.2.7.1996. (IV) COPY OF G.O.(MS) NO.224/2000/HOME DT.13.10.2000 (V) COPY OF G.O.(RT) NO.621/01/HOME DT.14.2.2001 ANNEXURE R1(B) SERIES (I) COPY OF G.O.(MS) NO.144/08/HOME DT.8.9.2008. (II) COPY OF G.O.(MS) NO.96/08/ LAW DT.25.09.2008 (III) COPY OF G.O.(RT) NO.190/08/VIG. DT.9.9.2008 //TRUE COPY// PA TO JUDGE “CR” C.N.RAMACHANDRAN NAIR, Ag.C.J. & P.S.GOPINATHAN, J. ------------------------------------- W.P.(C) No.18844 OF 2011 ------------------------------------- Dated this the 21st day of October, 2011 J U D G M E N T ~~~~~~~~~~~ C.N.Ramachandran Nair, Ag.C.J. 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.P1 and later as Public Prosecutor vide Ext.P2 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 W.P.(C) No.18844/2011 2 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.R1(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.R1(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, W.P.(C) No.18844/2011 3 the Director General of Prosecution retained the same functions and duties that were assigned to the Director of Prosecution vide Ext.R1(a)(i). Later the Government modified the powers and functions of the Director General of Prosecution vide Ext.R1(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. 4. The learned senior counsel appearing for the 2nd respondent also supported the argument of the Advocate General. However, counsel appearing for the petitioner submitted that after Cr.P.C. is amended any appointment to the post should be taken as a statutory appointment under the provisions of the Act and so much so, procedural compliance including concurrence of appointment by the Chief Justice of the High Court is required. We are unable to accept this contention because the Directorate as contemplated under Section 25A(1) W.P.(C) No.18844/2011 4 itself provides for a hierarchy of officers starting with Director General of Prosecution and as many Deputy Directors of Prosecution as the State Government may think fit. The qualification for appointment of Director of Prosecution and even Deputy Director of Prosecution is 10 years experience and for both appointments concurrence of the Chief Justice of the High Court is required under sub section 2 of Section 25A. It is seen from Section 25A itself that State Government is left with complete discretion to start a Directorate of Prosecution as conceived in the said Section. If the Government wants to start a Directorate as stated in Section 25A certainly Rules have to be framed providing for selection of the Director as well as Deputy Directors. In the first place, administrative sanction and then fund allotment have to be made by the Government for establishment of the Directorate with Deputy Directors and subordinate staff. Until the Government constitutes the Directorate in terms of Section 25A of Cr.P.C., the Directorate constituted under Ext.R1(a) series of executive orders issued by the Government in exercise of powers under Article 162 of the Constitution of India can and necessarily has to function. The W.P.(C) No.18844/2011 5 Directorate constituted 30 years prior to the introduction of Section 25A cannot be taken as a Directorate functioning under the said Section. In our view, the Director of Public Prosecution, later redesignated as Director General of Prosecution appointed under Ext.R1(a) series of executive orders issued by the Government does not automatically become a Directorate under Section 25A on the introduction and commencement of the said provision in the Cr.P.C. In other words, a Directorate under Section 25A has to be constituted through specific orders to be issued under Section 25A of the Cr.P.C., if the State Government so desires. So much so, the contention of the petitioner that the appointment of the 2nd respondent as Director General of Prosecution based on executive orders issued by the Government under Ext.R1(a) series requires the concurrence of the Chief Justice of the High Court lacks any merit. It is pertinent to note that so far no one including the petitioner has approached the Government or sought a direction from this Court for constitution of a Directorate of Prosecution and for appointment of Director and Deputy Directors of Prosecution as contemplated under Section 25A of Cr.P.C. We have also to take into account W.P.(C) No.18844/2011 6 the ground realities that 30 years prior to introduction of Section 25A Directorate of Prosecution was constituted under executive orders issued by the Government and several Director of Public Prosecution and later Director Generals of Prosecutions have been appointed systematically and they functioned as such for over three decades. It may be desirable to have a Directorate in the State in terms of Section 25A of Cr.P.C. But the same does not mean that the State cannot allow the existing Directorate constituted under executive orders to continue until then. We, therefore, do not find any merit in the challenge against the appointment of the 2nd respondent as Director General of Prosecution under Ext.R1 series executive orders in accordance with the practice followed by Government for several years. 5. The next question to be considered is whether the appointment of the 2nd respondent as Public Prosecutor vide Ext.P2 is against Section 24(1) of the Cr.P.C. or in violation of the Rules of appointment of Government Law Officers including the Public Prosecutor under the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases W.P.(C) No.18844/2011 7 Rules, 1978 (herein after referred to as 'the Rules'). Section 24 of the Cr.P.C. provides for appointment of Public Prosecutors both in the High Court and in the District Level. The relevant provisions of Section 24 applicable in this case is as follows: 24. Public Prosecutors:- (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. ............ .................. ................... .............. .................... .................... (7) A person shall be eligible to be appointed as Public Prosecutor or an Additional Public Prosecutor under sub section (1) or sub section (2) or sub section (3) or sub section (6), only if he has been in practice as an advocate for not less than 7 years.” 6. Sub section (1) of Section 24 makes it clear that the appointment of Public Prosecutor in the High Court either by the Central Government or by the State Government shall be done in W.P.(C) No.18844/2011 8 consultation with the High Court. In this case, the 2nd respondent's appointment as Public Prosecutor vide Ext.P2 is approved by the Judges of the High Court on the administrative side and there is no dispute on this issue. So far as the eligibility of the 2nd respondent is concerned, he has 29 years of practice as a lawyer in the District Court Centre at Thalassery. The qualification for appointment as Public Prosecutor or Additional Public Prosecutor under sub section (1) is only practice as an advocate for not less than 7 years. The 2nd respondent has more than 29 years of practice to his credit and he is a distinguished criminal lawyer in the District Court at Thalassery. However, the petitioner's case is that 2nd respondent is not qualified by virtue of Rule 5(1)(a) of the Kerala Government Law Officers (Appointment and Condition of Service) and Conduct Rules, 1978. Rule 5 is as follows. 5. Qualification for appointment as Government Law Officers in the High Court:- (1) No person shall be included in the panel furnished by the Advocate General for appointment as a Government Law Officer in the High Court unless such person, - W.P.(C) No.18844/2011 9 (a) in the case of Public Prosecutor or @ Senior Government Pleader (or Liaison Officer) has for at least ten years been an advocate of a High Court and has actually practised in the High Court for at least 5 years.” 7. The contention of the counsel for the petitioner is that under Rule 3(i) of the Rules, Government Law Officers include Public Prosecutors and so much so, appointment of the Public Prosecutor has to be strictly in terms of Rule 5(1)(a) extracted above, wherein there is a requirement for the candidate to have actual practice in the High Court as an Advocate for atleast five years. According to the petitioners, the 2nd respondent has not actually practiced in the High Court for five years though the 2nd respondent has clearly stated in the affidavit that he along with junior Advocates have filed several cases in the High Court during the several years of practice he has to his credit. The Advocate General appearing for the State referred to the decision of the Supreme Court in Prof.C.P.Agarwal v. C.D.Parikh and others [1970(1) SC 182] wherein the Supreme Court held as follows: W.P.(C) No.18844/2011 10 “An advocate of a High Court must mean an advocate whose name has been enrolled as an advocate of a High Court, no matter whether he practised in the High Court itself or in Courts subordinate to it or both. There is nothing in any of the provisions to indicate that an advocate of a High Court can only be that advocate who has been practising in the High Court. The distinction, if any between the words “an advocate” in Article 233(2) and the words “an advocate of a High Court” in Article 217(2)(b) has no significance in any event after the coming into force of the Advocates Act, 1961 as by virtue of Section 16 of that Act there are only two classes of persons entitled to practise, namely senior advocates and other advocates.” 8. Relying on the above decision, the Advocate General contended that the 2nd respondent should be treated as an advocate with the required years of practice in terms of the Rules. Alternatively, the Advocate General for the State and the learned senior counsel appearing for the 2nd respondent contended that Rule 5(1)(a) cannot stand in the way of appointment of 2nd respondent as Public Prosecutor in terms of Section 24 of the Cr.P.C. Because under sub section (7) the qualification required is only 7 years practice as an Advocate and W.P.(C) No.18844/2011 11 such practice need not be as Advocate of the High court. However, the counsel for the petitioner contended that the provisions of the Cr.P.C. should be read along with the provisions of the Rules above referred and so much so, the Rule cannot be violated while appointing the Public Prosecutor. We are unable to accept this contention because, the appointment of Public Prosecutors in the High Court is subject to scrutiny by the High Court and when the High Court on the administrative side approves the appointment, the same cannot be questioned on the ground that the candidate is not qualified by virtue of not being an Advocate with 5 years practice in the High Court in terms of the Rules. We do not know what is the significance for the practise in the High Court for appointment as Public Prosecutor because essentially the Public Prosecutors are handling criminal cases and those who have long practice in the criminal side, in our view, have the right experience to be appointed as Public Prosecutors. It is worthwhile to note that Rule 5(1) above does not even require any experience in criminal practice for appointment as Public Prosecutors. In our view, the Rule is not only against Section 24(1) & (7) but also has no relevance with W.P.(C) No.18844/2011 12 reference to the nature of work to be done by the Public Prosecutors. In our view, consultation with the High Court for appointment of Public Prosecutor in the High Court and consultation with the Sessions Judge for appointment of Public Prosecutors in the District Level are sufficient safeguards provided in the Cr.P.C. to ensure that only qualified persons are appointed as Public Prosecutors and Additional Public Prosecutors both at High Court and at the District level. So much so, we feel the appointment of a Public Prosecutor in consultation with High Court under Rule 24(1) and who has the qualification under sub section 7 thereto cannot be interfered with on the ground of lack of special qualification as prescribed under Rules above referred. As a matter of practice, several of the Public Prosecutors appointed to this Court with the approval of the High Court and who have functioned as such for several years, have not been High Court Advocates for 5 years as stated in the Rules. So much so, we feel the appointment of the 2nd respondent in accordance with the practice hitherto followed with the approval of High Court Judges cannot be challenged on the ground of violation of Rule 5(1)(a) of the Rules. W.P.(C) No.18844/2011 13 9. The last contention raised by the petitioner is against conferment of status and benefits to the 2nd respondent same as that of the Advocate General . Advocate General is appointed under Article 165 of the Constitution of India and the same is a constitutional post. By conferring benefits and status similar to the Advocate General, the Public Prosecutor does not become the Advocate General of the State. The counsel for the 2nd respondent has relied on the decision of the Supreme Court in M.T.Khan v. Government of A.P and others [2004(2) SCC 267], wherein the Supreme Court was held that the Government of a State as a litigant can appoint as many lawyers as it likes to defend it. For the said purpose, the State is not prohibited from conferring such designation on such legal practitioners as it may deem fit and proper. But, the State, cannot appoint more than one Advocate General. 10. What is clear from the above is the Advocate General is a unique position conferred by the Constitution and there is nothing that bars the Government from giving benefits similar to the Advocate General to the Public Prosecutor as well. We, W.P.(C) No.18844/2011 14 therefore, do not find any substance in the challenge against the conferment of facilities and benefits to the 2nd respondent same as that of the Advocate General. 11. We, therefore, do not find any merit in the challenge against Exts. P1 and P2. Consequently, we uphold the impugned orders appointing the 2nd respondent as Director General of Prosecution and as Public Prosecutor in the High Court. W.P.(C) is consequently dismissed. (C.N.RAMACHANDRAN NAIR, Acting Chief Justice) (P.S.GOPINATHAN, JUDGE) ps/22/10