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1989 Supreme(AP) 217
Andhra Pradesh High Court
Judges : M.JAGANADHA RAO
J.Ram Babu - Appellant
Versus
Government Of A.P. - Respondent
Decided On : 04-25-89
An Assistant Public Prosecutor cannot be appointed as a Special Public Prosecutor under S. 24(8) Cr. P. C.
Headnote:
CRIMINAL PROCEDURE CODE - APPOINTMENT OF SPECIAL PUBLIC PROSECUTOR - S. 24(8) - ASSISTANT PUBLIC PROSECUTOR - CANNOT BE APPOINTED AS SPECIAL PUBLIC PROSECUTOR - IMPROPER EXERCISE OF POWER - WRIT PETITION ALLOWED.
Fact of the Case:
The petitioner, accused in a sessions case, challenged the entrustment of the case to an Assistant Public Prosecutor, arguing that it was not justified and that the appointment was not bona fide.
Finding of the Court:
The court held that the entrustment of the case to the Assistant Public Prosecutor was not valid and that it was not proper on the facts of the case.
Issues: 1. Whether the entrustment of the Sessions case to the 2nd respondent, Assistant Public Prosecutor, is valid? 2. Whether the appointment of the 2nd respondent is proper on the facts of the case?
Ratio Decidendi: 1. Rule 56 of the A. P. Law Officers (RCR) Rules, 1967 does not apply to the facts of the case as an Assistant Public Prosecutor cannot be "entrusted" with a criminal case triable by a Court of session. 2. Rule 8-B of the Law Officer Rules, 1967 is also not attracted to the facts of the case. 3. The impugned order cannot be justified under S. 24 (8) Cr. P. C as it was not an order of "appointment" of a person as a "special Public Prosecutor". 4. The appointment of an Assistant Public Prosecutor to deal with a Sessions case of this magnitude and importance was not proper.
Final Decision: The writ petition was allowed and the impugned order was quashed.
( 1 ) THIS writ petition is filed by the accused No. l in Sessions Case No. 74 of 1988, Additional Sessions Court, Eluru, West Godavari District questioning the entrustment of the said case to the 2nd respondent - Assistant Public prosecutor, for conducting the prosecution.
( 2 ) THE regular Additional Public Prosecutor, Eluru appears to have expressed his difficulty in conducting the prosecution in the case and the question arose as to who should be entrusted with the task. Ultimately, the government issued G. O. Rt. No. 60 (Law) dated 3-3-1988 "entrusting" the case to the 2nd respondent, who does not belong to West Godavari District, but who is an Assistant Public Prosecutor practising at Vishakapatnam. The petitioner states that when Eluru or West Godavari District has a large Bar with several seniors practising on the criminal side and when, even otherwise, there are ever so many criminal lawyers in the neighbouring districts and elsewhere in the State, the selection of an Assistant Public Prosecutor and particularly of the 2nd respondent was not justified. It is argued that the public Prosecutor in the District Courts has a separate status in the rules relating to appointment of Law Officers and an Assistant Public Prosecutor cannot be appointed. It is submitted that the provisions of Rule 56 of the a. P. Law Officers (Recruitment and Conditions of Service and Remuneration) is not attracted to the facts of the case. It is also submitted that the appointment of the 2nd respondent is not bona fide. The above said aspects were urged by Sri E. Ella Reddi for the petitioner, during the arguments.
( 3 ) THE State has filed a counter-affidavit justifying the appointment. The learned Additional Advocate-General has submitted during the course of arguments that Rule 56 of the Rules is applicable or alternately Rule 8-E of the Rules. It is also stated that in any event, the appointment can be justified under S. 24 (8) of the Criminal Procedure Code, 1973. According to him, the fact that a wrong provision has been quoted in the impugned order makes no difference, and he also points out that throughout the file, shows that action was intended not for entrustment of a case as per Rule 56 of the A. P. Law Officers (RCR) Rules, 1967 (hereinafter called the Law Officers s Rules 1967) but for appointment of a Special Public Prosecutor under S. 24 (8) cr. P. C. and that the reference to the said rules is wrong and the power of the government can be traced to S. 24 (8), Cr. P. C.
( 4 ) NO counter has been filed by the 2nd respondent though he has been served on 24-2-89 through court and he has knowledge of the stay orders passed in this case.
( 5 ) THE point for consideration is: Whether the entrustment of the Sessions case to the 2nd respondent, Assistant Public Prosecutor, is valid and even if so, whether it is proper on the facts of the case?
( 6 ) I shall first deal with the applicability of Rule 56 of the Law Officers rules 1957 and then rule 8-B thereof. I shall then deal with 5. 24 (8) of the cr. P. C, 1973. Ultimately, I shall deal with the propriety of the appointment of the 2nd respondent. Rule 56 of the Rules reads thus:"entrustment of cases to Law Officers: The cases coming up before a particular court shall be conducted by the Law Officer attached to that Court, unless the Government having regard to the nature and importance of the case, decides to entrust it to the Advocate-General or any other advocate/law Officer. . . . . . "rule 2 (vii) of the Rules defines a Law Officer appointed to conduct cases for the Government and includes a Government Pleader, Public Prosecutor and a Standing Counsel in a State Public undertaking. Rule 2 (viii) defines public Prosecutor as a person appointed under S. 24, Cr. P. C. 1973 for work on the criminal side and includes an Additional Public Prosecutor. I shall now refer to the relevant portion of S. 24, namely, S. 24 (6) which reads as follows:"notwithstanding anythi
