JUDGMENT :

SURYA PRAKASH KESARWANI, J.

1. Heard Sri R.K. Ojha, learned Senior Advocate assisted by Sri Sanjay Mishra, learned counsel for the petitioner and Sri Manish Goyal, learned Additional Advocate General assisted by Sri Pankaj Rai, learned Additional Chief Standing Counsel for the State-respondents.

2. This writ petition has been filed praying for the following reliefs:

“(a) To issue a writ order or direction in the nature of quo-warranto against the respondent No. 5 and holding their appointment as illegal and which is not in consonance with the statutory provision as provided under Section 25A of Criminal Procedure Code, 1973 (Cr.P.C. in Brevity) (Act No. II of 1974) and further show cause under what authority respondent No. 5 is holding the post.

(b) To issue a writ order or direction in the nature of mandamus or other appropriate writ/direction to place the person who is suitable and eligible in accordance with the Criminal Procedure Code, 1973 (in brevity Act No. II of 1973).

(c) To issue any order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case.”

3. This writ petition was heard on several occasions. Finally on 15.3.2023 learned counsels for the parties have made their submissions which were noted in the order dated 15.3.2023 and the judgment was reserved.

SUBMISSIONS:

4. Sri R.K. Ojha, learned Senior Advocate, submits as under:

(i) The Directorate of Prosecution already established by the State Government vide Office Memorandum of the Home Department No. 7202/vkB -8-9-31(91)-79, dated 27.11.1980. Thus, sub Section (1) of Section 25A stood satisfied as the Directorate was already established.

(ii) Sub Section (2) of Section 25A provides for eligibility of Director of Prosecution and Deputy Director of Prosecution. It provides that a person shall be eligible to be appointed as Director of Prosecution or Deputy Director of Prosecution only if he has been in practice as an Advocate for not less than 10 years and such appointment shall be made with the concurrence of the Chief Justice of the High Court. The Director of Prosecution or the Additional Director of Prosecution, by whatever name may be called, appointed by the State Government as head of the Directorate of Prosecution, is not eligible and does not fulfill the basic eligibility as provided under sub Section (2) of Section 25A of the Code of Criminal Procedure. Therefore, the respondent no. 5 does not have the basic eligibility for appointment. Hence a writ of quo warranto needs to be issued.

(iii) The State Government is bound by the provisions of Section 25A Cr.P.C. enacted by parliament, in the absence of any specific provisions of law to the contrary enacted by the State legislature. Reference is made to Section 5 of the Cr.P.C. which recognises this proposition. Since State Government has not made any amendment in Section 25A(2) Cr.P.C. and instead as per original records produced, the State Government itself took decision not to make any amendment, therefore, the stand taken by State respondents in the counter affidavit that Section 25A Cr.P.C. is not applicable in the State of U.P. is wholly baseless and wholly misleading.

(iv) Since the respondent no. 5 is holding a public office and he does not have eligibility to hold the said post i.e. post of Director of Prosecution/Additional Director of Prosecution/Deputy Director of Prosecution and, therefore, he has incurred disqualification to continue to occupy the post. Hence a writ of quo warranto needs to be issued in view of the provisions of Section 25A Cr.P.C. and the law laid down by Hon'ble Supreme Court in the case of S.B. Shahane and Others vs. State of Maharashtra and Another, AIR 1995 SC 1628 (paragraphs 6 to 15) and a recent judgment of Hon'ble Supreme Court dated 10.01.2022 in Criminal Appeal No. 1655 of 2021 (Jayben vs. Tejas Kanubhai Zala and Another) o