JUDGMENT

VENKATACHALA, J. —Judgment dated 31st July 1981, by which a Division Bench of the High Court of Judicature at Bombay, Nagpur Bench, rejected the Special Leave Application No. 317 of 1979 filed under Article 226 of the Constitution of India by the appellants herein, is appealed against by them in this Civil Appeal by special leave.

2. The appellants were the Police Prosecutors appointed by the Inspector General of Police or Commissioner of Police in the State of Maharashtra under Rule 60 of the Bombay Police Manual, 1959 - "the Manual". On their appointment, they became the personnel of the Maharashtra States Police Department (Establishment) under the control of the head of the Department, the Inspector General of Police, as provided for under Rule 32 of the Manual. After the coming into force of the Code of Criminal Procedure, 1973 - "the Code", the Government of Maharashtra issued a Notification dated 1st April, 1974, which read thus :

"In exercise of the powers conferred by Section 25 of the Code of Criminal Procedure, 1973 (II of 1974), the Government of Maharashtra hereby appoints, with effect from 1st April, 1974 the officers specified in column (2) of the Schedule hereto appended, who are Police Prosecutors, to be Assistant Public Prosecutors also, for conducting prosecutions in the Courts of Magistrates in the District (including Greater Bombay) or District, respectively, specified against them in column (4) of the said Schedule."

3. When the above notification was issued by the Government of Maharashtra under Section 25 of the Code appointing the Police Prosecutors of its Police Department as the Assistant Public Prosecutors to conduct prosecutions in Courts of Magistrates, without bringing about their severance from the Police Department, the appellants filed the aforesaid Special Leave Application seeking from the High Court issuance of a direction to the Government of Maharashtra for their exclusion from its Police Department so as to free them from the administrative and disciplinary control of the Inspector General of Police, the head of the Police Department and create a separate cadre of Assistant Public Prosecutors for them under a separate prosecution Department, making its head directly responsible to Government. When that application was rejected by the Division Bench of the High Court, the judgment of that rejection is questioned by the appellants in this appeal by special leave.

4. We have heard arguments of learned counsel for the parties. A short question which needs our answer for deciding this appeal in the light of the arguments is the following :

When by its notification dated 1st April, 1974 issued under Section 25 of the Code, the Government of Maharashtra appointed the Police Prosecutors, who were the personnel of its Police Department functioning under the control of its head the Inspector General of Police, as Assistant Public Prosecutors, could it have allowed such Assistant Public Prosecutors to be the personnel of the Police Department and continue to function under the control of its head, the Inspector General of Police ?

5. Section 25 of the Code which has formed the basis for the Government of Maharashtra to issue the notification adverted to in the above question, reads thus :

Section 25 of the Code :

"25. Assistant Public Prosecutors.-

(1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates.

(1-A) The Central Government may appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the Courts of Magistrates.

(2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor.

(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of tha