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2009 Supreme(Mad) 5074
Before the Madurai Bench of Madras High Court
THE HONOURABLE MR.JUSTICE D. MURUGESAN & THE HONOURABLE MR.JUSTICE S. NAGAMUTHU
S. Thamizharasan
Versus
The State of Tamil Nadu, Rep by Secretary to Government, (Home Courts), Fort. St. George, Chennai & Others
W.P.(MD).No.222 of 2009 & M.P.(MD) No.1 of 2009
Decided on: 26-11-2009
For the Appearing Parties:C. Jeganathan, Veera. Kathiravan, Advocates. V. Chellammal, Additional Advocate General, R. Janakiramalu, Special Government Pleader.
Ratios:
a. A police officer cannot be appointed as Director of Prosecution.
b. The Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors should function with absolute independence and free from the control of the Police Department in any manner.
c. The Public Prosecutors are to be independent, unbiased and impartial while conducting prosecution.
d. The Public Prosecutor is not a Police Prosecutor in the sense that he is not a mouthpiece of the Police.
e. The Prosecutors cannot be allowed to be controlled either administratively or in any other mode by the Police Department.
f. There should be complete separation of Public Prosecutors, Additional Public Prosecutors, Special Public Prosecutors and Assistant Public Prosecutors from the control or supervision in any form by the Police.
Headnote:(A) Code of Criminal Procedure, 1973 (2 of 1974)-Sec.25A-Criminal trial-Prosecution-Director of Public Prosecution-Public prosecutor-Appointment-Qualification-Police officer-A Director General of Police was appointed as Director of Public Prosecution-Petitioner filed PIL challenging his appointment-Petitioner contended that director of public prosecution should be an independent person and a serving police officer is not to be appointed-State contended that it would ensure better co-ordination between the police and the prosecutors-Held, the office of the public prosecutor is an independent office and the appointment of a serving police officer as director of public prosecution is bad-Writ petition allowed.
(B) Code of Criminal Procedure, 1973 (2 of 1974)-Sec.25A-Criminal trial-Prosecution-Director of Public Prosecution-Public prosecutor-Appointment-Qualification-Police officer-A police officer cannot be appointed as Director of Prosecution- The Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors should function with absolute independence and free from the control of the Police Department in any manner.
A glance through the said provision would make it manifestly clear that the intention of the Parliament is to maintain absolute independence for the Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors from the control of the Police Department in any manner. Apart from that, Sub Section 2 of Section 25-A of the Code mandates that the eligibility for such appointment either as a Director of Prosecution or as a Deputy Director of Prosecution shall be Practice as an Advocate for not less than ten years. It further mandates that such appointment shall be made with the concurrence of the Hon’ble Chief Justice of the High Court. When such statutory provision is in force, it is not at all open for the Government to state that it will proceed to appoint a Police Officer as Director of Prosecution. Para 24
(C) Code of Criminal Procedure, 1973 (2 of 1974)-Sec.25A-Criminal trial-Prosecution-Director of Public Prosecution-Public prosecutor-Appointment-Qualification-Police officer- The Public Prosecutors are to be independent, unbiased and impartial while conducting prosecution- The Public Prosecutor is not a Police Prosecutor in the sense that he is not a mouthpiece of the Police- The Prosecutors cannot be allowed to be controlled either administratively or in any other mode by the Police Department.
The Office of the Public Prosecutor is a very responsible Office and he has an important role to play in the Criminal Justice Delivery System. The Public Prosecutors are to be independent, unbiased and impartial while conducting prosecution. The Public Prosecutor is not a Police Prosecutor in the sense that he is not a mouthpiece of the Police, for he is not an Advocate engaged by the State to conduct its prosecutions. Therefore, the Prosecutors cannot be allowed to be controlled either administratively or in any other mode by the Police Department. Para 29
(D) Code of Criminal Procedure, 1973 (2 of 1974)-Sec.25A-Criminal trial-Prosecution-Director of Public Prosecution-Public prosecutor-Appointment-Qualification-Police officer- There should be complete separation of Public Prosecutors, Additional Public Prosecutors, Special Public Prosecutors and Assistant Public Prosecutors from the control or supervision in any form by the Police.
There should be complete separation of Public Prosecutors, Additional Public Prosecutors, Special Public Prosecutors and Assistant Public Prosecutors from the control or supervision in any form by the Police, as otherwise, such control or supervision would only invade into the independence of the institution of Prosecutors, which would only bring harm to the Criminal Justice Delivery System. Para 35
S. NAGAMUTHU, J.
The legality of the appointment of a Police Officer belonging to Indian Police Service as the Director of Prosecution in the State of Tamil Nadu is challenged in this Public Interest Litigation on the ground that the said appointment is contrary to the mandate of Section 25-A of the Criminal Procedure Code, 1973, [hereinafter referred to as "the Code"].
2. Prior to the year 1984, the Assistant Public Prosecutors, appointed as regular Government Servants to conduct prosecution in the Courts of Magistrates in the State of Tamil Nadu, were under the supervision and control of the respective District Collectors in the Districts other than Chennai and the Commissioner of Police in the Chennai City. While so, the Government of Tamil Nadu issued G.O.Ms.No.2075 Home (CTS VI) Department, dated 15.09.1984, constituting a directorate of prosecution to function under the administrative control of the Home Department. Accordingly, the Directorate constituted was functioning for some time. But, it was later on wound up due to administrative reasons. Once again, the Government issued G.O.Ms.No.1788, Home dated 30.10.1992, reviving the directorate and also by constituting eight Regional Offices with necessary staff. A Special Officer in the rank of Joint Secretary to Government was functioning as Ex-Officio Director of the same. Then the Government issued G.O.Ms.No.570, (Home.Pol.1), Department, dated 17.04.1995 creating a post of Director of Prosecution in the rank of Inspector General of Police. The post was upgraded to the rank of Additional Director General of Police with effect from 27.09.2000, [vide G.O.Ms.No.2075, (Home.Pol.1) Department, dated 10.10.2000. Now, it is again headed by an Inspector General of Police with effect from 11.10.2007.
3. The Government also passed G.O.Ms.No.308, Home (Courts -VI), Department, dated 18.02.1988 issuing Adhoc Rules in respect of the appointment and qualification for the post of Director of Prosecution, which reads as follows:-
By promotion from the post of Joint Director of Prosecution; or
By recruitment by transfer from the post of District Judge Grade I of the Tamil Nadu State Higher Judicial Service; or By direct recruitment from Advocates; or
By transfer from the posts of Joint Secretary to Government in having experience in legal matters.
4. For promotion, one should have put in not less than three years in the post of Joint Director of Prosecution and for direct recruitment, one should have practiced as an Advocate for not less than 10 years in Criminal Courts of law.
5. During the year 1995, the Government kept the post of Director of Prosecution in abeyance and instead, created temporary post of Director of Prosecution in the rank of Inspector General of Police as per Rule 46 of the Tamil Nadu Services Manual (State and Subordinate Services) Volume I. As per G.O.Ms.No.579, (cited supra), one Mr.V.C.Perumal, IPS, Deputy Inspector General of Police, Railways, was promoted as Inspector General of Police and posted as Director of Prosecution in the newly created post with effect from 17.04.1995. It appears that on his transfer, police officers of similar cadre were subsequently appointed as temporary Directors of Prosecution in succession.
6. The Government of Tamil Nadu subsequently re-issued the Adhoc Rules governing the post of the Director of Prosecution and according to the same, the method of appointment is as follows:-
By promotion from the post of Joint Director of Prosecution or By recruitment by transfer from among the holders of the posts of the District Judge (Super time scale) or District Judge or Additional District Judge or Chief Judicial Magistrate of the Tamil Nadu State Judicial Service; or By transfer from among the holders of the post of Joint Secretary to Government, Law Department.
7. While so, Section 25-A was inserted to the Code of Criminal Procedure as per Central Act 25 of 2005, which came into force on 23.06.2005. It reads thus:-
"25-A. Dir
