Allahabad High Court
Kishan Kumar Pathak vs State Of U.P. And 4 Others on 19 May, 2023
Author: Jayant Banerji
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2023:AHC:109602-DB
(AFR)
Court No. - 3
INDEX
IN
JUDGEMENT
IN
Case :- WRIT - C No. - 27571 of 2022
Kishan Kumar Pathak .......... Petitioner
Versus
State Of U.P. And 4 Others .......... Respondents
Counsel for Petitioner :- Rahul Mishra,Sanjay Mishra
Counsel for Respondent :- C.S.C.,Pankaj Rai
Per: Hon'ble Surya Prakash Kesarwani, J.
Sl. No.
Particulars
Paragraph Nos.
1.
Prayer
2
2.
Submissions
4 - 6
3.
DISCUSSION AND FINDINGS
(A)
Preliminary objection of State respondents on account of pendency of Writ C No. 923 of 2014 (All India Prosecutors Association and another Vs. Union of India through Cabinet Secretary and others).
7 - 9
(B)
CREATION OF DIRECTORATE OF PROSECUTION, UTTAR PRADESH
10 - 14
(C)
Whether Section 25A Cr.P.C. is applicable and enforced in the State of Uttar Pradesh?
15 - 23
(D)
Effect of Division Bench Judgement dated 11.1.2012 in Misc. Bench No. 7825 of 2011 (Sadhana Sharma Vs. State of U.P. through Principal Secretary Law Department, and others) and Misc. Bench No. 4097 of 2011 (Sadhana Sharma Vs. State of U.P. through Principal Secretary Law Department, Government of U.P.) AND the order of Hon'ble Supreme Court in SLP (C) No. 4042-4043 of 2012.
24 - 27
(E)
Whether Section 25A shall prevail over the office memorandum dated 27.11.1980?
28 - 31
(F)
Whether Section 24, 25 and 25A Cr.P.C. needs to be understood as a singular Scheme?
32 - 33
(G)
Whether the Office Memorandum dated 27.11.1980 is a law under Section 5 Cr.P.C.
34
(H)
Whether Section 25A(2) Cr.P.C. is mandatory
35 - 36
(I)
Whether the respondent no. 5 possesses the essential qualification/eligibility under section 25A Cr.P.C. to hold the public office of the post in question?
37 - 40
(J)
Whether as per pleadings, the respondent No.5 is an usurper of the public office and is holding the post without eligibility and without any authority of law
41 - 44
(K)
Law of Writ of Quo-Warranto and Locus Standi
45 - 48
(L)
Whether on facts of the present case writ of quo warranto needs to be issued?
49 - 50
(M)
Judgements relied by the State respondents
51 - 55
(N)
Brief Summary of Conclusions
56
4.
Relief Granted
57
Per: Hon'ble Jayant Banerji, J.
(Concurring)
Sl. No.
Particulars
Page Nos.
1.
Judgment
1 to 18
(Hon'ble Jayant Banerji, J) (Hon'ble Surya Prakash Kesarwani, J)
Date:19.05.2023
AFR
(Judgment reserved on 15.03.2023)
(Judgment delivered on 19.05.2023)
Court No. - 03
Case :- WRIT - C No. - 27571 of 2022
Petitioner :- Kishan Kumar Pathak
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Rahul Mishra,Sanjay Mishra
Counsel for Respondent :- C.S.C.,Pankaj Rai
Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Jayant Banerji,J.
(Per : 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 judgement 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/आठ-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) observing that Director of Prosecution is appointed by State Government in exercise of powers under Section 25A Cr.P.C. which stipulates a minimum legal experience of not less than ten years for a person to be eligible to be Director of Prosecution and his appointment shall be made with the concurrence of the Chief Justice of the High Court, a writ of quo warranto deserves to be issued and appointment of the respondent no.5 deserves to be quashed.
5. Sri Manish Goyal, learned Additional Advocate General submits as under :
i. The Directorate of Prosecution was established by office memorandum dated 27.11.1980 pursuant to the 14th Law Commission Report.
ii. The State Government has not implemented Section 25A(1) Cr.P.C.. After the decision taken by the State Government on 28.02.2014 not to amend Section 25A Cr.P.C., certain complaints were received in the year 2017 and thereupon an opinion of learned Advocate General was sought on 09.11.2020 and thereafter neither opinion was given nor any decision upon the complaints was taken. Thus, Section 25A has not been enforced in the State of Uttar Pradesh.
iii. Provisions of Section 25A Cr.P.C. are not mandatory but directory and, therefore, it is not a compulsory obligation of the State Government to abide by the provisions of Section 25A. Reliance is placed upon the Division Bench Judgment of the Kerala High Court in Writ (C) No.18844 of 2011 (Thankappan Vs. State of Kerala) decided on 21.10.2011 (paragraph 4).
iv. Interpretation of sub Section (1) of Section 25A Cr.P.C. is engaging attention of Hon'ble Supreme Court in Writ (C) No.923 of 2014 (All India Prosecutors Association and another Vs. Union of India through Cabinet Secretary and Ors.) wherein question No.1 has been framed as under :
"1. Whether the word 'may' in sub-section 1 of Section 25A of the Criminal Procedure Code, 1973 should be read as 'shall' and if so, is it mandatory for each State to establish a directorate of prosecution in terms of Section 25A?"
v. Since Section 25A Cr.P.C. has not yet been enforced in the State of Uttar Pradesh, therefore, the qualification of Director of Prosecution, as provided under sub Section (2) of Section 25A Cr.P.C. shall not been attracted. Hence, the writ of quo warranto cannot be issued.
vi. The respondent no.5 does not belong to the cadre, as provided under sub Section (2) of Section 25A Cr.P.C. inasmuch the respondent no.5 is neither the Director of Prosecution nor Deputy Director of Prosecution but Additional Director General of Prosecution. Hence, the respondent no.5 need not possess the eligibility, as provided under sub Section (2) of Section 25A Cr.P.C.
vii. The judgement of Hon'ble Supreme Court in the case of S.B. Shahane (supra) (paragraph nos. 10, 12 and 13) is with reference to appointment of Assistant Public Prosecutor in the Magistrate's Court. Therefore, this judgement has no relevance with regard to the eligibility of Director of Prosecution or the Additional Director General of Prosecution/respondent no.5.
viii. Section 5 of the Cr.P.C. does not come in the aid of the petitioner inasmuch as Office Memorandum dated 27.11.1980 is a law within the meaning of the Article 13 of the Constitution of India. Therefore, there being a law in the form of Office Memorandum dated 27.11.1980, the provisions of Section 5 Cr.P.C. would not be applicable.
ix. Unless the provision of Section 25A Cr.P.C. is adopted by the State Legislature, the said provision is not enforceable in the State of Uttar Pradesh. Hence, the State Government is not bound by the provision of Section 25A Cr.P.C. inasmuch as field of legislation regarding Section 25A is referable to Entry 2 and 26 of List III - Concurrent List of the VII Schedule to the Constitution of India.
6. No other submissions have been made by learned counsel for the parties before us.
DISCUSSIONS AND FINDINGS:-
7. Having carefully considered the submissions of learned counsel for the parties and perused the record of the writ petition as well as the original records as produced by the State respondents, discussion on the matter point wise, is as follows:-
(A) Preliminary objection of State respondents on account of pendency of Writ C No. 923 of 2014 (All India Prosecutors Association and another Vs. Union of India through Cabinet Secretary and others).
8. Learned Addl. Advocate General has raised a preliminary objection that interpretation of the word 'may' used in sub-section (1) of Section 25A of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) is engaging attention of Hon'ble Supreme Court in Writ (C) No. 923 of 2014 and, therefore, this court may not entertain this writ petition.
9. We do not agree with the preliminary objection of the learned Addl. Advocate General. In the State of Uttar Pradesh a Directorate of Prosecution has already been established by the State Government which shall be discussed in the later part of this judgement. That apart, against our order dated 1.3.2023 passed in this writ petition, the State respondents have filed SLP (Civil) Diary No. 9996 of 2023 (State of U.P. and others Vs. Kishan Kumar Pathak and others), which has been dismissed by Hon'ble Supreme Court by order dated 13.3.2023. Besides this Section 25A Cr.P.C. has been enforced in the State of U.P. Thus we do not find any substance in the aforesaid objection raised by the learned Addl. Advocate General. Therefore, the objection is rejected.
(B) CREATION OF DIRECTORATE OF PROSECUTION, UTTAR PRADESH:-
10. The Directorate of Prosecution was established by the State Government by Office Memorandum No. 7202/8/आठ-9-31(91)-79 dated 27.11.1980. As per the aforesaid Office Memorandum, Director of Prosecution is Head of the Department and Legal Advisor and his duty includes to give advice to the Police Department, District Level Departments and to apprise State Government with uptodate status of prosecution etc. Dy. Director of Prosecution is drawing and disbursing officer who assist and advise the Director of Prosecution in legal and administrative matters. Apart from above, the Director and Dy. Director are required to discharge several other functions relating to prosecution. The aforesaid office memorandum dated 27.11.1980 (without annexures) is reproduced below:
"उत्तर प्रदेश शासन गृह (पुलिस) अनुभाग-9 संख्या 7202/आठ-9-31(91)-79 लखनऊ, दिनांक 27 नवम्बर, 1980 कार्यालय-ज्ञाप विषयः- अभियोजन निदेशालय, उत्तर प्रदेश की स्थापना।
अधोहस्ताक्षरी को यह कहने का निदेश हुआ है कि दण्ड प्रक्रिया संहिता, 1973 के लागू होने के बाद प्रभावी एवं निष्पक्ष अभियोजन की दृष्टि से प्रदेश में एक स्वतन्त्र अभियोजन निदेशालय की स्थापना का प्रश्न पर्याप्त समय से शासन के विचाराधीन था। इस सिलसिले में भारत के विधि आयोग की 14वीं रिपोर्ट में की गयी संस्तुतियों एवं शासन द्वारा गठित ऋषिराय समिति की संस्तुतियों पर गम्भीरता पूर्वक विचार करने के उपरान्त राज्यपाल महोदय ने उक्त संहिता की धारा 25 के अधीन नियुक्त मैजिस्ट्रेट, न्यायालयों में पैरवी करने, वाले सहायक लोक अभि-योजकों, (असिस्टेंट पब्लिक प्रासीक्यूटर्स) के समस्त कार्य पर प्रभावी नियन्त्रण एवं पर्यवेक्षण हेतु अलग से अभियोजन निदेशालय, जिसका मुख्यालय लखनऊ में होगा, स्थापित किये जाने की स्वीकृति प्रदान कर दी है।
2- राज्यपाल महोदय निदेशालय के मुख्यालय हेतु अनुलग्नक-1 में तथा उसके क्षेत्रीय कार्यालयों में तथा जिला कार्यालयों के लिए अनुलग्नक-2 में उल्लिखित अस्थाई पदों को, उसके सम्मुख निर्दिष्ट वेतनमानों में, पदों के भरे जाने की तिथि जो इस आदेश के पूर्व की न होगी से 28 फरवरी, 1981 तक, यदि उन्हें इसके पूर्व ही बिना किसी सूचना के समाप्त न कर दिया जाये, सृजित किये जाने की भी स्वीकृति प्रदान करते हैं।
3- स्वीकृत पदों के धारकों को अपने पद के वेतनमान में मिलने वाले वेतन के अतिरिक्त सरकार द्वारा समय- समय पर स्वीकृत महंगाई एवं अन्य भत्ते जो भी अनुमन्य हों, देय होंगे।
4- चूंकि अभियोजन निदेशालय की स्थापना, अधिकारी एवं कर्मचारी वर्ग के वेतन, भत्तों आदि पर होने वाले व्यय तथा अनुलग्नक-3 में अंकित स्टाफ कार, साज-सज्जा आदि के क्रय व अऩ्य मदों पर होने वाले व्यय के लिये चालू वित्तीय वर्ष 1980-81 के आय-व्ययक में कोई प्राविधान नही है और यह व्यय अत्यावश्यक एवं अपरिहार्य है, अतः इस प्रयोजन के लिये राज्य विधान मण्डल के अनुमोदन की प्रत्याशा में श्री राज्यपाल ने राज्य आकस्मिकता निधि से रूपया 12,68,000 (बारह लाख अड़सठ हजार रूपये) केवल की धनराशि अग्रिम के रूप में आहरित करने की भी स्वीकृति प्रदान कर दी है। इस धनराशि की प्रतिपूर्ति वाद में अनुपूरक मांगों के माध्यम से की जायेगी।
5- साज-सज्जा, उपकरण, फर्नीचर, स्टाफ कार आदि का क्रय निदेशक, अभियोजन निदेशालय द्वारा निर्धारित प्रक्रिया एवं नियमों के अऩुसार किया जायेगा तथा क्रय किये गये वस्तुओं का विवरण वे यथासमय शासन को सूचित करेंगे तथा उसका लेखा जोखा विधिवत् रखना सुनिश्चित करेंगे।
6- अभियोजन निदेशालय का ढांचा अनुलग्नक-4 में दिया गया है। तद्नुसार मुख्यालय पर एक उप-निदेशक अभियोजन निदेशक की सहायता के लिये अन्य सपोर्टिंग स्टाफ के साथ रहेगा। प्रशासकीय सुविधा के लिये प्रदेश को 4 क्षेत्रों लखनऊ, बरेली, वाराणसी व आगरा में बाँट दिया गया है। प्रत्येक क्षेत्र के अन्तर्गत अनुलग्नक-4 में निर्दिष्ट मण्डल व जिले सम्मिलित रहेंगे।
7- अभियोजन निदेशक, उप निदेश अभियोजन (मुख्यालय), क्षेत्रीय उप निदेशक अभियोजन, ज्येष्ठ अभियोजन अधिकारी, अभियोजन अधिकारी तथा सहायक अभियोजन अधिकारी के कर्तव्य एवं दायित्व अनुलग्नक-5 में दिये हैं। ज्येष्ठ अभियोजन अधिकारियों, अभियोजन अधिकारियों तथा सहायक अभियोजन अधिकारियों का वर्तमान स्वीकृत नियतन अनुलग्नक 6 में दिया गया है।
8- अभियोजन निदेशालय की स्थापना के फलस्वरूप अभियोजन शाखा के लिये पूर्व स्वीकृत सहायक अभियोजन अधिकारी/अभियोजन अधिकारी/ज्येष्ठ अभियोजन अधिकारी के समस्त पद तथा ज्येष्ठ अभियोजन अधिकारियों के कार्यालयों के लिये 11 जिलों (जिनके नाम अनुलग्नक-2 में इंगित है) मे स्वीकृत कार्यालय चपरासी के पद तथा कार्यरत समस्त अधिकारी/कर्मचारी अभियोजन निदेशालय के प्रशासकीय नियन्त्रण में आ जायेंगे तथा उनसे सम्बन्धित अभिलेखादि पुलिस महानिरीक्षक द्वारा निदेशालय को शीघ्रातिशीघ्र हस्तांतरित किये जायेंगे।
9- निदेशक अभियोजन तथा उप निदेशक अभियोजन के पदों पर नियुक्ति तथा अधिकारों के प्रतिनियमन एवं अन्य नव सृजित पदों पर नियुक्ति की प्रक्रिया के संबंध में आदेश अलग से जारी किये जायेंगे।
10- नयी व्यवस्था के फलस्वरूप वर्षों से चली आ रही पुरानी व्यवस्था, जिसके अन्तर्गत पुलिस अधीक्षक, अभियोजन अधिकारियों के कार्य पर नियन्त्रण रखते थे, समाप्त हो जायेंगी। फलस्वरूप जिला स्तर पर सहायक अभियोजन अधिकारियों एवं अभियोजन अधिकारियों (प्रभारी अभियोजन अधिकारियों को छोड़कर) द्वारा मामलों की विवेचना के सम्बन्ध में दिये गये योगदान के बारे में वार्षिक मन्तव्य देने का अधिकार पुलिस अधीक्षक को होगा, किन्तु अभियोजन कार्य के बार में टिप्पणी करने का अधिकार इन्हें न होगा। प्रतिवेदक अधिकारी के लिये यह अनिवार्य होगा कि इस मन्तव्य को वह उनकी वार्षिक प्रविष्टि में अक्षरशः शामिल करेंगे तथा ज्येष्ठ अभियोजन अधिकारियों एवं प्रभारी अभियोजन अधिकारियों के सम्बन्ध में प्रतिवेदक अधिकारियों के लिये यह पर्याप्त होगा कि वह पुलिस अधीक्षक की राय प्राप्त कर वार्षिक प्रविष्टि देेते समय उसका समुचित उपयोग करें।
11- अभियोजन निदेशालय की स्थापना के तुरन्त बाद ही अभियोजन अधिकारियों के साहायतार्थ पुलिस विभाग में पूर्व स्वीकृत या पूर्व विद्यमान लिपिकीय तथा चतुर्थ श्रेणी के पदों को आवश्यकतानुसार बनाये रखने/ समाप्त करने/पुलिस विभाग में जहां तेजी से जिला फोर्स का विस्तार हो रहा है, समायोजित करने के विषय पर शासन द्वारा विचार किया जायेगा।
12- उपर्युक्त के अतिरिक्त अभियोजन निदेशालय के संबंध में निम्नलिखित निर्णय भी लिये गये हैं--
1- अभियोजन निदेशालय गृह विभाग के अधीन होगा और इसके अन्तर्गत मैजिस्ट्रेट न्यायालयों के अभियोजन कार्य तथा सहायक लोक अभियोजकों (सहायक अभियोजन अधिकारी/अभियोजन अधिकारी/ज्येष्ठ अभियोजन अधिकारी) के समस्त कार्य नियन्त्रण एवं पर्यवेक्षण का कार्य होगा।
2- निदेशक अभियोजन, उत्तर प्रदेश के पद पर उप पुलिस महानिरीक्षक के स्तर के पुलिस सेवा के अधिकारी की नियुक्ति की जायेगी पर वह पुलिस महानिरीक्षक के नियन्त्रण मे कार्य नही करेगें और न ही पुलिस के अधिकारों का प्रयोग करेंगे।
3- जिन जनपदों में ज्येष्ठ अभियोजन अधिकारी के पद स्वीकृत हैं उनमें ज्येष्ठ अभियोजन अधिकारी जिला प्रभारी अधिकारी होंगे तथा अन्य जिलों में जहां ज्येष्ठ अभियोजन अधिकारी नियुक्त नही है वरिष्ठतम् अभियोजन अधिकारी प्रभारी अधिकारी होंगे।
4- नयी व्यवस्था को सफल एवं प्रभावी ढंग से लागू करने के लिये जिला स्तर पर जिला मैजिस्ट्रेट की प्रभावशाली भूमिका रहेगी और वह अभियोजनकार्यों तथा अभियोजन कार्यालय के अधिकारियों को कार्य पर प्रभावी नियन्त्रण रखने में और उसमें पूर्ण रुचि लेंगे। इस सम्बन्ध में निम्नांकित उत्तरदायित्वों का निर्वाह भी पूरी तरह से सुनिश्चित करेंगेः--
अ-- जिलाधिकारी--जनपद में ज्येष्ठ अभियोजन अधिकारियों पर तात्कालिक पर्यवेक्षण (इमीडिएट सुपरवीजन) रखेंगे।
ब-- जिला स्तर पर अभियोजन शाखा के अधिकारियों के आहरण एवं वितरण अधिकारी जिलाधिकारी होंगे तथा इन अधिकारियों के वेतन आदि के आहरण एवं वितरण का प्रबन्ध जिलाधिकारी कार्यालय द्वारा किया जायेगा।
स-- जिलाधिकारी सत्र न्यायालय में पैरवी करने वाले लोक अभियोजक और ज्येष्ठ अभियोजन अधिकारी/अभियोजन अधिकारी प्रभारी के बीच समुचित समन्वय सुनिश्चित करेगे, जिसका मुख्यतः सम्बन्ध सत्र न्यायालय को संदर्भित मुकदमो के कलेन्डर, सत्र न्यायालयों में प्रेषित जमानत प्रार्थना-पत्र संबंधी अभिलेख, गवाहों के लिए अभियोजन अधिकारी के माध्यम से सम्मन जारी करवाने व अपील व विमुक्ति रिपोर्ट से होगा।
13- उपर्युक्त मदों पर होने वाला व्यय प्रथमतः राज्य आकस्मिकता निधि के नामे डाला जायेगा तथा बाद में .. वित्तीय वर्ष 1980-81 के आय-व्ययक में अनुदान संख्या 19 के अधीन लेखा शीर्षक "214-न्याय प्रशासन-आयोजनेत्तर-क-कानूनी सलाहकार और परामर्शदाता--लोक अभियोजन शाखा अधिष्ठान" के अन्तर्गत संगत प्राथमिक इकाइयों के नाम डाला जायेगा।
हरगोविन्द डबराल संयुक्त सचिव। "
11. Duties and responsibilities of Director and Dy. Director of Prosecution have been provided in Annexure 5 to the aforesaid Office Memorandum dated 27.11.1980, as under:
"अनुलग्नक-5 अभियोजन निदेशक उत्तर प्रदेश के कर्त्तव्य एवं दायित्व अभियोजन निदेशक प्रदेश के अभियोजन संगठन के अध्यक्ष होंगे तथा मैजिस्ट्रेट कोर्टस में पैरवी करने वाले समस्त लोक अभियोजकों का प्रशासकीय नियंत्रण सम्पूर्ण रूप से उनमे निहित होगा।
2- उनका स्तर विभागाध्याक्ष का होगा तथा उन्हें व सभी प्रशासकीय एवं वित्तीय अधिकार प्राप्त होंगे जो सामान्यतया एक विभागाध्यक्ष में प्रतिनिहित होते हैं।
3- वह अपने निदेशालय, क्षेत्रीय उपनिदेशकों के कार्यालय तथा ज्येष्ठ अभियोजन अधिकारियों के कार्यालयों के अराजपत्रित कर्मचारियों, अभियोजन अधिकारियों तथा सहायक अभियोजन अधिकारी के नियुक्ति अधिकारी होंगे तथा इन श्रेणियों के कर्मचारियों के स्थानान्तरण तैनाती आदि करने का उन्हें अधिकार होगा।
4- उनका प्रशासकीय नियंत्रण उपनिदेशक अभियोजन (मुख्यालय) क्षेत्रीय उपनिदेशकों तथा ज्येष्ठ अभियोजन अधिकारियों के ऊपर भी रहेगा और वे इन अधिकारियों की चरित्र पंचिकाओं में उनके कार्य तथा आचरण के बारे मे वार्षिक गोपनीय रिपोर्ट अंकित करेंगे व उन्हें शासन को अन्तिम अनुमोदन हेतु भेजेंगे।
5- वह विधिक मामलों में फौजदारी कार्यवाही के किसी भी स्तर पर (तफतीश के स्तर को सम्मिलित करते हुए) जटिल व महत्वपूर्व मामलों जैसे षड़यन्त्र, जालसाजी, घोखाधड़ी जिसमे साक्ष्य परिस्थितियों व उपलब्ध लेखा अभिलेखों पर आधारित हो, में पुलिस विभाग तथा शासन के जिला स्तरीय विभागों को आवश्यकतानुसार परामर्श देंगे।
6- ऐसे समस्त विधिक/प्रशासकीय मामले जो क्षेत्रीय उपनिदेशक तथा ज्येष्ठ अभियोजन अधिकारियों द्वारा परामर्श/ आदेशों के लिए भेजे जाये उनमे परामर्श/आदेश देगें।
6(ए)- पुलिस संगठन के राज्य स्तर पर विधि सलाहकार होंगे।
7- प्रदेश के समस्त अभियोजन कार्यालयों का निरीक्षण करेंगे व अभियोजन की स्थिति से शासन को आवधिक विवरण भेजकर अवगत करायेंगे।
8- ऐसे अन्य कार्य जो शासन द्वारा समय-समय पर सौंपे जायें।
उप निदेशक (मुख्यालय) के कर्त्तव्य एवं दायित्व 1- अभियोजन निदेशालय के अधिष्ठान के आहरण तथा वितरण अधिकारी होंगे।
2- विधिक तथा प्रशासकीय मामले में निदेशक की सहायता करेंगे व उन्हें उचित परामर्श देगे।
3- निदेशालय के अधीनस्थ कर्मचारियों के चरित्र एवं आचरण की वार्षिक प्रविष्टियों के रिपोर्टिंग अधिकारी होंगे तथा निदेशक को उन्हें अनुमोदनार्थ प्रस्तुत करेंगे।
4- वह अन्य कार्य जिन्हें निदशक द्वारा उन्हें समय-समय पर सौंपा जायेगा।
क्षेत्रीय उपनिदेशक अभियोजन के कर्त्तव्य एवं दायित्व 1- अपने कार्यालय के कार्यलयाध्यक्ष होंगे।
2- अपने अधीनस्थ कर्मचारियों के अधिष्ठान के आहरण तथा वितरण अधिकारी होंगे।
3- अपने क्षेत्र के समस्त ज्येष्ठ अभियोजन अधिकारियों पर उनका प्रशासनिक नियंत्रण रहेगा।
4- ऐसे जटिल मामलों जिनमें ज्येष्ठ अभियोजन अधिकारी द्वारा उनसे परामर्श मांगा जाये, उन्हें अपना परामर्श देंगे।
5- अपने क्षेत्र के ज्येष्ठ अभियोजन अधिकारियों/अभियोजन अधिकारियों के कार्य का समय-समय पर निरीक्षण करेंगे व क्षेत्र के अभियोजन की स्थिति से अभियोजन निदेशक को आविधिक विवरण भेजकर अवगत करायेंगे।
6- क्षेत्र के ज्येष्ठ अभियोजन अधिकारियों की चरित्र पंजिकाओं में उनके कार्य तथा आचरण की वार्षिक गोपनीय रिपोर्ट प्रतिवेंदक अधिकारी के रूप में अंकित करेंगे तथा अनुमोदन हेतु उन्हें अभियोजन निदेंशक को भेजेंगे। इसके अतिरिक्त क्षेत्र के अभियोजन सहायक अभियोजन/अधिकारियों की वार्षिक प्रविष्टियों के अनुमोदन अधिकारी होंगे।
6-(ए) संबंधित उप पुलिस महानिरीक्षकों के विधि सलाहकार होंगे।
7- ऐसे कार्य जो शासन अथवा निदेशक द्वारा समय-समय पर सौंपे जायें।
ज्येष्ठ अभियोजन अधिकारियों के कर्त्तव्य एवं दायित्व 1- ज्येष्ठ अभियोजन अधिकारी अपने जिले के अभियोजन अधिकारियों सहायक अभियोजन अधिकारियों व अन्य अधीनस्थ के प्रभारी अधिकारी होंगे।
2- जिले के समस्त अभियोजन अधिकारियों/सहायक अभियोजन अधिकारियों तथा अपने कार्यालय स्टाफ के आहरण व वितरण अधिकारी होंगे।
3- जिले के अभियोजन अधिकारियों/सहायक अभियोजन अधिकारियों के कार्य तथा आचरण की वार्षिक गोपनीय रिपोर्ट अंकित करेंगे तथा उन्हें अनुमोदनार्थ क्षेत्रीय उपनिदेशक अभियोजन को भेजेंगे।
4- जटिल व महत्वपूर्ण फौजदारी वादो की पैरवी स्वयं मैजिस्ट्रेट कोर्ट में करेंगे तथा अपने अधीनस्थ अभियोजन अधिकारियों/सहायक अभियोजन अधिकारियों को मार्गदर्शन देंगे तथा उनके कार्य का समय-समय पर निरीक्षण करेंगे और जिले की अभियोजन की स्थिति के सम्बन्ध में आवधिक विवरण क्षेत्रीय उप निदेशक अभियोजन व अभियोजन निदेशक को भेजा करेंगे।
5- वह जिला पुलिस अधीक्षक को उन सभी फौजदारी वादों में परामर्श देंगे जिन्हें जिला पुलिस अधीक्षक द्वारा उन्हें परामर्श हेतु भेजा जायेगा।
5(ए)- रेंज मुख्यालय पर पुलिस उप महानिरीक्षक के विधि सलाहकार होंगे।
6- ऐसे अन्य कार्य जो समय-समय पर क्षेत्रीय उप निदेशक अथवा निदेशक व जिला मैजिस्ट्रेट द्वारा सौपा जाये।
नोट- जिन जिलों में अभियोजन अधिकारी प्रभारी अधिकारी होंगे वहां पर अभियोजन अधिकारी द्वारा उन सभी कर्त्तव्यो व दायित्वों का निर्वहन किया जायेगा जिनका सवंहन अन्य जिलों में ज्येष्ठ अभियोजन अधिकारियों द्वारा किया जाता है।
अभियोजन अधिकारी/सहायक अभियोजन अधिकारी के कर्तव्य 1- मजिस्ट्रेट कोर्टस में फौजदारी वादों को शासन की ओर से पैरवी करना।
2- ज्येष्ठ अभियोजन अधिकारी के कार्य में सहायता देना व उनके मार्गदर्शन में कार्य करना।
3- जिला पुलिस अधीक्षक को अभियोजन के मामलों में विधिक परामर्श देना।
4- व्यक्ति व माल की शिनाख्त कार्यवाही में सहायता करना।
5- दोष मुक्त (Aquittal) रिपोर्ट तैयार करना।"
12. From perusal of the afore quoted office memorandum dated 27.11.1980 it is evident that Directorate of Prosecution has been established in the State of U.P. as an administrative decision pursuant to the recommendations of the 14th report of the Law Commission and the report of Rishi Rai Committee.
13. The background of enactment of Section 25A Cr.P.C. has been briefly summarised by Hon'ble Supreme Court in National Human Rights Commission Vs. State of Gujarat and others (2009) 6 SCC 767 (paragraphs 23 to 30), as under:
"23. The role of public prosecutors in ensuring a fair trial is of paramount importance. This Court in S.B. Shahane v. State of Maharashtra, 1995 Supp (3) SCC 37 had stressed on the desirability of separation of prosecution agency from investigation agency. It was observed that such Assistant Public Prosecutors could not be allowed to continue as personnel of the Police Department and to continue to function under the control of the head of the Police Department. The State Governments were directed to constitute a separate cadre of Assistant Public Prosecutors by creating a separate prosecution Department making its head directly responsible to the State Government.
24. Many commonwealth countries like Australia have a Commonwealth Director of Public Prosecutions, which was set up by the Director of Public Prosecutions Act, 1983 and started operations in 1984. The nine States and territories of Australia also have their own DPPs. Ultimate authority for authorizing prosecutions lies with the Attorney General. However, since that is a political post, and it is desired to have a non-political (public service) post carry out this function in most circumstances, the prosecutorial powers of the AG are normally delegated to the DPP. However, in South Australia the AG may direct the DPP to prosecute or not to prosecute. This is a very rare occurrence. It is common for those who hold the office of Commonwealth or State DPP later to be appointed to a high judicial office.
25. In Canada, each province's Crown Attorney Office (Canada) is responsible for the conduct of criminal prosecutions. In Ontario, local Crown Attorney in the Criminal Law Division is in charge of criminal cases. Only British Columbia, Nova Scotia and Quebec (a civil code jurisdiction) have a Director of Public Prosecutions office. Recent legislation passed by Parliament split the conduct of federal prosecutions from the Department of Justice (Canada), and created the Office of the Director of Public Prosecutions (officially to be called as Public Prosecution Service of Canada). This legislation came into effect from 12-12-2006. The Director of Public Prosecutions of Hong-Kong, China heads the prosecutions Division of the Department of Justice, which is responsible for prosecuting trials and appeals on behalf of the Hong Kong Special Administrative Region, providing legal advice to law enforcement agencies, acting on behalf of the Secretary for Justice in the institution of criminal proceedings, and providing advice and assistance to bureaux and departments in relation to any criminal law aspects of proposed legislation. DPP is superintended by the Secretary for Justice, who is also accountable for the decisions of DPP.
26. The Director of Public Prosecutions in the Republic of Ireland has been responsible for prosecution, in the name of the People, of all indictable criminal offences in the Republic of Ireland since the enactment of the Prosecution of Offences Act 1974. Before 1974, all crimes and offences were prosecuted at the suit of the Attorney General. DPP may also issue a certificate that a case should be referred to the Special Criminal Court; a juryless trial court usually reserved for terrorists and organized criminals.
27. In South Africa public prosecutions are conducted by an independent National Director of Public Prosecutions (NDPP). The NDPP is supported by a Chief Executive Officer, Marion Sparg, Deputies, Regional Directors of Public Prosecutions (DPPs), and several Special Directors. The National Director is also the head of the controversial Directorate of Special Operations (DSO) - commonly known as the Scorpions - which deals with priority and organized crime. In 2005, the unit instituted proceedings against the country's Deputy President, Jacob Zuma, leading to his dismissal.
28. In England and Wales, the office of the Director of Public Prosecutions was first created in 1880 as part of the Home Office, and had its own department from 1908. DPP was only responsible for the prosecution of a small number of major cases until 1986 when responsibility for prosecutions was transferred to a new Crown Prosecution Service with DPP as its head. He/she is appointed by the Attorney General for England and Wales. In Northern Ireland a similar situation existed, and DPP now heads the Public Prosecution Service for Northern Ireland.
29. The Law Commission in 1958 had recommended that a Director of Prosecutions be set up having its own cadre, though this recommendation was not included in the Code then. Again in 1996 the Law Commission in its 154th report identified as Independent Prosecuting Agency as one of the several areas within the Code which required redesigning and restructuring. The Law Commission supported most of the proposed amendments to the Code as contained in the proposed Code of Criminal Procedure Amendment Bill, 1994. Recommendations related to the structure of a Directorate of Prosecutions at the State-level, to be adopted by a State Government in the event it decided to set up a cadre of Prosecutors. The Law Commission further recommended that the structure of State-level Directorates of Prosecution be given statutory status through an amendment to the Code. Despite the absence of such a requirement and inadequacy of the Provisions in the Code a number of states mainly, Delhi, Andhra Pradesh, Bihar, Goa, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh, Orissa, Tamil Nadu and Uttaranchal, established a Directorate of Prosecution.
30. By an amendment in 2006, Section 25-A was inserted in the Code, which categorically legislated for the creation of a Directorate of Prosecution in every state:
"25-A. Directorate of Prosecution.-(1) The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit.
(2) A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court.
(3) The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the Head of the Home Department in the State.
(4) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution.
(5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (1), or as the case may be, sub-section (8), of Section 24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution.
(6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (3), or as the case may be, sub-section (8), of Section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of Section 25 shall be subordinate to the Deputy Director of Prosecution.
(7) The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify.
(8) The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor."
14. Since, despite recommendations of the Law Commission and also despite judgement of Hon'ble Supreme Court in S.B. Shahane v. State of Maharashtra AIR 1985 SC 1628 several States have not established Directorate of Prosecution while some of the States including the State of Uttar Pradesh have established a Directorate of Prosecution therefore, so as to give statutory status to the Directorate of Prosecution, the Parliament inserted Section 25A in Cr.P.C. by Section 4 of the Code of Criminal Proseducre (Amendment) Act, 2005 (No. 25 of 2005) which received assent of the President on 23.6.2005 and was enforced by Notification No. S. O. 923(E) dated 21.6.2006 w.e.f. 23.6.2006.
(C) Whether Section 25A Cr.P.C. is applicable and enforced in the State of Uttar Pradesh?
15. Section 1(2) Cr.P.C. provides for applicability of the Code, as under:-
"1. Short title extent and commencement.
(1) .....................
(2) It extends to the whole of India:
Provided that the provisions of this Code, other than those relating to Chapters VIII, X and XI thereof, shall not apply-
(a) to the State of Nagaland,
(b) to the tribal areas, but the concerned State Government may, by notification, apply such provisions or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications, as may be specified in the notification.
Explanation.- In this section," tribal areas" means the territories which immediately before the 21st day of January, 1972 , were included in the tribal areas of Assam, as referred to in paragraph 20 of the Sixth Schedule to the Constitution, other than those within the local limits of the municipality of Shillong."
16. Article 246(2) provides for legislative competence, Article 254 provides for legislative superemacy and Entry (2) of List-III of the VIIth Schedule provides for field of legislation on the subject of Criminal Procedure, as under:-
"246. Subject matter of laws made by Parliament and by the Legislatures of States.-
(1) .......
(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause ( 1 ), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List").
254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.--(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause ( 2 ), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of suchnothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
List III --- Concurrent List Entry (2) of List-III of the VIIth Schedule to the Constitution of India:--
2. Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution."
17. After enactment of Section 25A for establishment of a Directorate of Prosecution in every State, from the records of the State Government as produced before us; it appears that vide minutes of the meeting dated 15.2.2008 under the Chairmanship of the Chief Secretary, U.P. consisting of several officers of the State Government including the Principal Secretary, Home, Principal Secretary, Law, Director General of Police and Director of Prosecution (Directorate of Prosecution, U.P. ) proposed for State amendment in Section 25A Cr.P.C. and for that purposes a Committee was constituted to submit a report. The minutes were approved by the Chief Minister on 26.2.2008. The Committee so constituted submitted its report suggesting to omit sub section (2) and sub section (4) of Section 25A besides some amendments in sub section (1) and sub sections (6) &(7). Thereafter a draft amendment was prepared and no objection/suggesion of various departments were also taken. Certain changes were suggested by the Legislative Department. Lastly the Home Department proposed the following amendments in Section 25A Cr.P.C. and sought approval of the Chief Minister on 15.7.2008, as under:
(1) दण्ड प्रक्रिया संहिता की धारा-25क की उपधारा (1) के स्थान पर निम्नलिखित उपधारा रख दी जायगी, अर्थातः- "(1) राज्य सरकार अभियोजन निदेशालय स्थापित कर सकती है और अभियोजन निदेशक और ऐसे अन्य अधिकारियों की नियुक्ति कर सकती है जैसा वह उचित समझे।"
(2) दण्ड प्रक्रिया संहिता की धारा- 25क की उपधारा (2) निकाल दी जाएगी।
(3) दण्ड प्रक्रिया संहित की धारा-25क की उपधारा (3) को यथावत बनाये रखा जाएगा।
(4) दण्ड प्रक्रिया संहिता की धारा-25क की उपधारा (4) निकाल दी जाएगी।
(5) दण्ड प्रक्रिया संहिता की धारा-25क की उपधारा (5) को यथावत बनाये रखा जाएगा।
(6) दण्ड प्रक्रिया संहिता की धारा- 25क की उपधारा (6) में शब्द "उप-निदेशक" के स्थान पर शब्द "निदेशक" रख दिया जाएगा।
(7) दण्ड प्रक्रिया संहिता की धारा- 25क की उपधारा (7) में शब्द "अभियोजन उप निदेशक और क्षेत्र, जिसके लिए प्रत्येक अभियोजन उप निदेशक की नियुक्ति की गई है, ऐसे होंगे जो राज्य सरकार, अधिसूचना द्वारा, विनिर्दिष्ट करे" के स्थान पर शब्द "अभियोजन निदेशालय के अन्य अधिकारी ऐसे होंगे जैसे राज्य सरकार निर्धारित करे", रख दिये जाएंगे।
दण्ड प्रक्रिया संहिता की धारा-25क की उपधारा (8) को यथावत बनाये रखा जाएगा।"
18. Thereafter the matter was referred for opinion of the learned Advocate General vide office note dated 20.7.2012 and 9.8.2012 who gave his detailed opinion on 12.1.2014 and concluded as under:
"the amendments proposed in Section 25-A of Cr.P.C. are not in consonance with various directions issued by Hon'ble Supreme Court as well as the reports of the Law Commission. The proposed amendment would completely defeat/frustrate the intention and object of incorporating Section 25-A in the Criminal Procedure Code."
19. Thereafter an office note was put up on 30.1.2014 which was recommended/forwarded by the Secretary, Home on 18.02.2014 and by the Principal Secretary Home on 21.2.2014 and thereafter by the Chief Secretary, U.P. on 22.2.2014 and the same was placed before the Chief Minister for approval of the proposal as under:
"7- मा० महाधिवक्ता के परामर्श के आलोक में दण्ड प्रक्रिया संहिता, 1973 में दण्ड प्रक्रिया (संशोधन) अधिनियम,2005 द्वारा जोड़ी गयी नयी धारा-25क में राज्य सरकार द्वारा प्रस्तावित संशोधन पर किसी अग्रेतर कार्यवाही की आवश्यकता नहीं प्रतीत होती है।
अतः कृपया मुख्य सचिव महोदय के माध्यम से उपरोक्त प्रस्तर-7 के प्रस्ताव पर मा० मुख्यमंत्री जी का अनुमोदन प्राप्त करना चाहें।"
20. The Chief Minister approved the proposal (reproduced in para-19 above) on 28.2.2014 and thus the matter came to an end. Nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. However, despite the aforenoted facts the Director of Prosecution and Dy. Director/Addl. Director General Prosecution continued to occupy the post without fulfilling the eligibility as provided under Section 25A(2) Cr.P.C.
21. Learned Addl. Advocate General has stated before us in his submissions, as afore noted, that "After the decision taken by the State Government on 28.2.2014 not to amend Section 25A Cr.P.C., certain complaints were received in the year 2017 and thereupon an opinion of learned Advocate General was sought on 9.11.2020 but neither opinion was given nor any decision upon the complaints was taken." His statement itself shows that the decision of the State Government dated 28.2.2014 dropping the proposed amendment and to implement Section 25A Cr.P.C. is wholly undisputed.
22. Apart from above, on perusal of the record this court observed in paragraph 3 of its order dated 1.3.2023 that "At page 44 of the record, it has been stated that provisions of sub-section(1) of Section 25-A is applicable and as per the provisions of sub-sections(2),(5), (6) and (7) of Section 25-A(1) Cr.P.C., the responsibilities and duties of prosecutors will automatically increase." This has not been disputed by the learned Addl. Advocate General although he was confronted with the order and the records were with him at the time of submissions.
23. The facts as noted above leaves no manner of doubt that Section 25A read with Section 1(2) Cr.P.C. has been enforced in the State of U.P. w.e.f. 23.6.2006 and the State of U.P. consciously took decision not to amend Section 25A Cr.P.C. The Legislature of the State of Uttar Pradesh has not enacted a law to amend Section 25A Cr.P.C. with assent of the President of India under Article 254 of the as under Constitution of India. Thus, the provisions to Section 25A are in force in the State of U.P. since 23.6.2006. By enactment of Section 25A Cr.P.C., the existing Directorate of Prosecution established by the aforesaid office memorandum dated 27.11.1980, has achieved statutory status. Section 25A Cr.P.C. has been enacted for creation of a Directorate of Prosecution in every State as has also been observed by Hon'ble Supreme Court in National Human Right Commission (supra) (Paras-29 and 30), aforequoted. Thus Section 25A Cr.P.C. would prevail over the aforesaid office memorandum dated 27.11.1980 including the eligibility for appointment on the post of Director of Prosecution and Dy. Director of Prosecution/ Additional Director General of Prosecution by whatever name called, to the extent the Office Memorandum 27.11.1980 is inconsistent with Section 25A Cr.P.C.
(D) Effect of Division Bench Judgement dated 11.1.2012 in Misc. Bench No. 7825 of 2011 (Sadhana Sharma Vs. State of U.P. through Principal Secretary Law Department, and others) and Misc. Bench No. 4097 of 2011 (Sadhana Sharma Vs. State of U.P. through Principal Secretary Law Department, Government of U.P.) AND order of Hon'ble Supreme Court in SLP (C) No. 4042-4043 of 2012.
24. In the case of Sadhana Sharma (supra), amongst other things; the constitutional validity of State amendment by U.P. Act No. 18 of 1991 amending Section 24 Cr.P.C. was challenged. While considering the matter, the Division Bench of this Court observed/held with respect to Section 25A Cr.P.C. [in paragraphs 15, 168, 169, 175, 181, 183, 195(3), 195(7), and 195(8) ], as under:
"15. Section 25-A was inserted by the Code of Criminal Procedure Amendment Act, 2005 (Act No.25 of 2005) S.4 enforced from 23.6.2006 constituting Directorate of Prosecution. Under Section 25A, the Head of Directorate of Prosecution shall be the Director of Prosecution. The Director of Prosecution shall be the person who has been in practice as Advocate for not less than 10 years and his appointment shall be with the concurrence of the Chief Justice of High Court. Thus, reading of Section 25-A reveals that the Directorate of Prosecution shall be an independent body of the State discharging their obligation under the Director of the Prosecution who is appointed with the concurrence of Chief Justice of the High Court and will have supervisory jurisdiction on the Government counsels, prosecuting officers appointed under section 24 and 25 of the CrPC.
168. Section 25-A inserted by Act No.25 of 2005, has been given effect from 23.6.2006. It provides that the State Government shall establish a Directorate of Prosecution consisting of a Director of Prosecution and Deputy Director of Prosecution. The Director of Prosecution shall be appointed with the concurrence of Chief Justice of High Court who shall have administrative control over the Directorate. The Deputy Director of Prosecution shall be subordinate to Director of Prosecution and every Prosecutor, Additional Public Prosecutor as under and Special Public Prosecutor appointed under Section 24 shall be subordinate to Director of Prosecution. Thus, the Parliament had regulated the appointment of prosecuting branch making it almost independent and out of the purview of the Government. The concurrence of Chief Justice in filling of vacancy of Director of Prosecution is an effort to make prosecution independent.
169. Proviso of Clause (2) of Article 254 empowers the Parliament to legislate the law on a subject matter already occupied by the State Government under List-III of Seventh Schedule. To the extent of repugnancy, the State Law shall be deemed to be modified, invalid or void.
175. In view of the aforesaid settled proposition of law, in case the impugned amendment is considered simultaneously along with Section 25-A of CrPC or given effect to, then there appears to be inconsistency which is irreconcilable. In case said amendment is given effect to, it would lead to disobeying the provisions of Section 25-A. The letter and spirit of Section 25-A is to make Prosecution Branch independent. That is why, the Parliament provided that Director of Prosecution, shall be appointed with concurrence of the Chief Justice of High Court and the Public Prosecutor appointed to the High Court, shall be subordinate to the Director of Prosecution whereas, the Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed under sub-section (3) or sub-section (8) or Section 24, shall conduct cases before the court and every Special Public Prosecutor appointed under Section 25, shall work under the Deputy Director of Prosecution. There appears to be no dispute that the District Government Counsels are appointed in pursuance of the statutory provisions contained in sub-section (3) of Section 24 of CrPC. The Deputy Director of Prosecution has to work under the Director of Prosecution.
181. Much argument has been advanced by the learned Senior Counsel appearing for the State. The word, 'may', used in Section 25-A of Code of Criminal Procedure, is not mandatory. The argument advanced by the learned counsel, seems to be not correct. Section 25-A was added by the Parliament within the presumption that entire Section 24 is in operation without taking into account the deletion made by the State Government.
183. What the Parliament has done by enacting Section 25-A, the independent power conferred on the State Government to appoint Special Counsel, under Section 24 (8) of the CrPC has been diluted to some extent that now, though the Government may appoint Special Counsel but the counsel so appointed, shall discharge his/her obligation under the Directorate of Prosecution constituted under Section 25-A of the Code of Criminal Procedure. The provisions seems to have been made to check abuse of power by the State Government while dealing with the cases pending in the subordinate courts while prosecuting or defending the cases by the State through the counsel appointed by it.
195. Subject to discussion and finding recorded hereinabove in the proceeding paragraphs, the impugned amendment seems to be ultra vires and not sustainable and we sum up the finding as under:
(1) ...............
(2) ..............
(3) The special counsel is different class than the District Government Counsel appointed under sub-section (4), (5) and (6) of Section 24 of Code of Criminal Procedure. Thus, so far as the supervisory or statutory control is concerned by inserting Section 25-A, Parliament removed the difference between the counsel appointed on the recommendation of the District Judge and District Magistrate and a special counsel appointed by the Government straight way in a particular case. Accordingly, in case impugned amendment is sustained, then it shall be in derogation of letter and spirit of Section 25-A of CrPC and shall be repugnant to Central Act in view of proviso to Clause (2) of Article 254 of the Constitution. Both cannot stand together.
(7) The impugned amendment is hit by the proviso of Clause (2) of Article 254 of the Constitution of India and repugnant to Section 25-A of CrPC. Both cannot stand together inasmuch as, following one, will make the other ineffective.
(8) The purpose of Section 25-A of CrPC is to make prosecuting branch independent from the Government to optimum level. That is why even Special Counsel appointed under sub-section (8) of Section 24 has been placed under the Directorate of Prosecution."
(Emphasis supplied)
25. Brief Summary of the judgment, in the case of Sadhana Sharma (supra) considering Section 25A Cr.P.C., is as under:
"i. Under Section 25A, the Head of Directorate of Prosecution shall be the Director of Prosecution. The Director of Prosecution shall be the person who has been in practice as Advocate for not less than 10 years and his appointment shall be with the concurrence of the Chief Justice of High Court.
ii. Reading of Section 25-A reveals that the Directorate of Prosecution shall be an independent body of the State discharging their obligation under the Director of the Prosecution who is appointed with the concurrence of Chief Justice of the High Court and will have supervisory jurisdiction on the Government counsels, prosecuting officers appointed under section 24 and 25 of the CrPC.
iii. Section 25-A inserted by Act No.25 of 2005, has been given effect from 23.6.2006.
iv. The Parliament had regulated the appointment of prosecuting branch making it almost independent and out of the purview of the Government. The concurrence of Chief Justice in filling of vacancy of Director of Prosecution is an effort to make prosecution independent.
v. Proviso of Clause (2) of Article 254 empowers the Parliament to legislate the law on a subject matter already occupied by the State Government under List-III of Seventh Schedule. To the extent of repugnancy, the State Law shall be deemed to be modified, invalid or void.
vi. In view of the aforesaid settled proposition of law, in case the impugned amendment is considered simultaneously along with Section 25-A of CrPC or given effect to, then there appears to be inconsistency which is irreconcilable. In case said amendment is given effect to, it would lead to disobeying the provisions of Section 25-A. The letter and spirit of Section 25-A is to make Prosecution Branch independent. That is why, the Parliament provided that Director of Prosecution, shall be appointed with concurrence of the Chief Justice of High Court.
vii. Much argument has been advanced by the learned Senior Counsel appearing for the State. The word, 'may', used in Section 25-A of Code of Criminal Procedure, is not mandatory. The argument advanced by the learned counsel, seems to be not correct. Section 25-A was added by the Parliament within the presumption that entire Section 24 is in operation without taking into account the deletion made by the State Government.
viii. Subject to discussion and finding recorded hereinabove in the proceeding paragraphs, the impugned amendment seems to be ultra vires and not sustainable.
ix. The impugned amendment is hit by the proviso of Clause (2) of Article 254 of the Constitution of India and repugnant to Section 25-A of CrPC. Both cannot stand together inasmuch as, following one, will make the other ineffective.
x. The purpose of Section 25-A of CrPC is to make prosecuting branch independent from the Government to optimum level."
26. Against the aforesaid Division Bench judgement in the case of Sadahna Sharma (supra) S.L.P. (c) No. 4042-4043 of 2012 (State of U.P. Vs. Sadhana Sharma were filed by the State of U.P. which were dismissed by the Hon'ble Supreme Court by order dated 17.7.2012, as under:
"SLP (C) No. 4042-4043 Counsel appearing for the State of U.P. seeks leave to withdraw these Special Leave Petitions filed by the State in view of the policy decision of the State that they wish to implement the judgment of the High Court in its entirety and would continue to adopt the same policy in future as well.
These special leave petitions are, accordingly, dismissed as withdrawn."
27. Thus, the State Government gave an undertaking before the Hon'ble Supreme Court to implement the aforesaid judgement of the High Court in the case of Sadhana Sharma (supra) in its entirety. Therefore, apart from our findings, as noted in paragraphs 14 to 23, it is evident that by judicial pronouncement in the case of Sadahna Sharma (supra) the enforceability of Section 25A Cr.P.C. was accepted by the State of Uttar Pradesh and the SLP was withdrawn with an undertaking to implement the judgement of the High Court in its entirety. Section 25A was held to be applicable which fact was accepted by the State of U.P. Therefore, the stand taken by the respondents that Section 25A Cr.P.C. is not applicable in the State of U.P. is wholly baseless and infact it is a disrespect being shown by them to the Parliament, the binding judgment in the case of Sadhana Sharma (supra), the statement made on behalf of State of U.P. before Hon'ble Supreme Court and the constitutional provisions including Article 141.
(E) Whether Section 25A shall prevail over the office memorandum dated 27.11.1980?
28. Criminal Procedure Code, 1973 has been enacted by the Parliament in exercise of powers conferred under Article 246(2) with respect to the field of legislation provided in entry 2 of List III - concurrent list to the VII schedule of the Constitution of India. Sub-section (2) of Section 1 of Cr.P.C. aforequoted leaves no manner of doubt that the provisions of Cr.P.C. extends to the whole of India provided that provisions of the Code, other than those relating to Chapter VIII, X and XI thereof shall not apply to the State of Nagaland and to the tribal areas but the concerned State Government, may, by notification, apply such provisions or anyone of them to the whole part of the State of Nagaland or such tribal areas. Thus as per sub-section (2) of Section 1 Cr.P.C. the provision of Section 25A Cr.P.C. are applicable in the State of Uttar Pradesh. The U.P. Legislature has not enacted any law to amend the aforesaid Section 25A Cr.P.C. with the assent of the President of India. Office Memorandum dated 27.11.1980 is not a law yet if the office memorandum dated 27.11.1980 is presumed to be a law still Section 25A Cr.P.C. shall prevail over it. Article 254(2) of the Constitution of India deals with the question of legislative supermacy as held in ITC Ltd. V. Agricultural Produce Market Committee (2002) 9 SCC 232. If a State law is in conflict with the law made by Parliament in the field of legislation falling under the concurrent list, then the law enacted by Parliament shall prevail and to the extent of repugnancy the State law shall be void. Reference in this regard may be had to the law laid down by the Hon'ble Supreme Court in the case of Zaverbhai Amaidas V. State of Bombay, AIR 1954 SC 752.
29. In the case of Zaverbhai Amaidas (supra) a Constitution Bench of Hon'ble Supreme Court held as under
"Now, by the proviso to Article 254(2) the Constitution has enlarged the powers of Parliament, and under that proviso, Parliament can do what the Central Legislature could not under section 107(2) of the Government of India Act, and enact a law adding to, amending, varying or repealing a law of the State, when it relates to a matter mentioned in the Concurrent List. The position then is that under the Constitution Parliament can, acting under the proviso to Article 254(2), repeal a State law. But where it does not expressly do so, even then, the State law will be void under that provision if it conflicts with a later "law with respect to the same matter" that may be enacted by Parliament."
(Emphasis supplied)
30. In the case of ESI Corporation vs. Mangalam Publication (India)(P.) Ltd., (2018) 11 SCC 438 (para-16), Hon'ble Supreme Court held that the effect of ESI Act enacted by Parliament cannot be circumvented by the department's office memorandum. In the case of Baleshwar Dass and others etc. vs. State of U.P. and others, (1980) 4 SCC 226 (Para-28), Hon'ble Supreme Court held that "Memorandum cannot over-ride the Rules themselves but will operate subject to them in case of inconsistency." In the case of Gambhirdar K. Gadhvi vs. State of Gujrat and others (2022) 5 SCC 179 (Para-50), Hon'ble Supreme Court in the matter of a writ petition for quo warranto, while considering the State Legislation and the U.G.C. Regulations, held that U.G.C. Regulation being Central Legislation shall pevail by applying the rule of repugnancy as enunciated in Article 254 of the Constitution of India since the subject "Education" is in the Concurrent List.
31. In view of the law settled by Hon'ble Supreme Court as discussed above we hold that the essential qualification as provided in Section 25A(2) Cr.P.C. for the post of Director of Prosecution or Dy. Director of Prosecution shall prevail over the qualification for the said posts provided under the office memorandum dated 27.11.1980.
(F) Whether Section 24, 25 and 25A Cr.P.C. needs to be understood as a singular Scheme?
32. Section 24 provides for appointment of Public Prosecutors and Addl. Public Prosecutors. Section 25 provides for appointment of Assistant Public Prosecutors. Sub section (1) of Section 25A creates obligation upon the State Government to establish a Directorate of Prosecution consisting of Director of Prosecution and as many Dy. Director of Prosecution as it may think fit. In the State of Uttar Pradesh Directorate of Prosecution has already been established. Sub section (2) of Section 25A provides for eligibility of a person for appointment as a Director of Prosecution or Dy. Director of Prosecution and such appointments has to be made with the concurrence of the Chief Justice of the High Court. Sub section (3) provides that the Director of Prosecution shall be the Head of the Directorate of Prosecution who shall function under the administrative control of the Head of the Home Department in the State. Sub section (4) provides that every Dy. Director of Prosecution shall be subordinate to the Director of Prosecution. Sub Section (5) provides that every Public Prosecutor, Addl. Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub section (1) or as the case may be, under sub-section (8) of Section 24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution. Sub section (6) provides that every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (3), or as the case may be, sub-section (8) of section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of section 25 shall be subordinate to the Deputy Director of Prosecution. Sub-section (7) empowers the State Government to issue notification to specify the functions of the Director of Prosecution and the Dy. Director of Prosecution and the areas for which each of Dy. Director of Prosecution have been appointed. Thus while Sections 24 and 25 Cr.P.C. provide for appointment of Public Prosecutor, Addl. Public Prosecutor, Special Public Prosecutor and Assistant Public Prosecutor, Section 25A provides for establishment of Directorate of Prosecution and the hierarchy for smooth, independent and efficient functioning of the Directorate of Prosecution. Thus Sections 24, 25 and 25A are part of one singular Scheme which makes a perceptible demarcation and compartmentalization for the Public Prosecutor in the High Court and District Courts and administrative control and hierarchy in the Department of Prosecution i.e. Directorate of Prosecution.
33. Similar view has been expressed by Hon'ble Supreme Court in the case of K. Anbazhagan V. State of Karnataka and others (2015) 6 SCC 158 (Paragraph 28) while considering the provisions of Section 24, 25 and 25A Cr.P.C., as under:
"28. The aforesaid provisions have to be appreciated in a schematic context. All the provisions reproduced hereinabove are to be read and understood as one singular scheme. They cannot be read bereft of their text and context. If they are read as parts of different schemes, there is bound to be anomaly. Such an interpretation is to be avoided, and the careful reading of the Criminal Procedure Code, in reality, avoids the same. The dictionary clause in 2(u) only refers to a person appointed under Section 24 CrPC and includes any person acting under the directions of a Public Prosecutor. The class or status of the Public Prosecutor is controlled by Sections 24 and 25-A, CrPC. On a careful x-ray of the provisions of Section 24 it is clearly demonstrable that Section 24(1) has restricted the appointment of Public Prosecutor for the High Court, for the provision commences with words "for every High Court." Sub-section (3) deals with the appointment of Public Prosecutor or Additional Public Prosecutor for the districts. There is a procedure for appointment with which we are not concerned. Sub- section (8) of Section 24 deals with appointment of Special Public Prosecutor for any case or class of cases. A Public Prosecutor who is appointed in connection with a district his working sphere has to be restricted to the district unless he is specially engaged to appear before the higher court. A Special Public Prosecutor when he is appointed for any specific case and that too for any specific court, it is a restricted appointment. In this context Section 25-A of the Code renders immense assistance. The State Government is under obligation to establish Directorate of Prosecution. Section 25-A clearly stipulates that Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor who are appointed by the State Government under sub-Section (1) or under sub- Section (8) of Section 24 to conduct cases in the High Court, shall be subordinate to the Director of Prosecution. Sub-section (6) postulates that the three categories named herein appointed by the State Government to conduct cases in the district courts shall be subordinate to Deputy Director of Prosecution. Thus, the scheme makes a perceptible demarcation and compartmentalization for the Public Prosecutor in the High Court and the district courts."
(G) Whether the Office Memorandum dated 27.11.1980 is a law under Section 5 Cr.P.C.:-
34. Section 5 Cr.P.C. is a saving provision so as to save a special law or local law for the time being in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force in the absence of specific provision to the contrary in Cr.P.C. Section 2(y) Cr.P.C. provides that the words and expressions used and not defined but defined in Indian Penal Code (45 of 1860), have the meaning respectively assigned to them in that Code. As per Section 41 Cr.P.C., a "special law" is a law applicable to a particular subject. As per Section 42 Cr.P.C., a "local law" is a law applicable only to a particular part of India. Office Memorandum dated 27.11.1980 to fall under Section 5 Cr.P.C., must be a special law or a local law as defined in Section 41 and Section 42 I.P.C. It has neither been argued by the learned Additional Advocate General nor any material has been placed to demonstrate that the Office Memorandum dated 27.11.1980 is a special law or a local law. Therefore, the Office Memorandum dated 27.11.1980 is not a law referable to Section 5 Cr.P.C. Instances of special law are Army Act, Navy Act and Air Force Act etc. which embody a completely self-contained comprehensive Code. Reference in this regard may be had to the judgment of Hon'ble Supreme Court in Ajmer Singh vs. Union of India, (1987) 3 SCC 340 (para-7). In Maru Ram vs. Union of India and others, (1981) 1 SCC 107 (Paras-32 to 36), a Constitution Bench of Hon'ble Supreme Court considered Section 433A Cr.P.C. enacted by Parliament, Remission Rules and legislative competence of State Legislature to enact a law under Entry-4 of List-II and held that broadly speaking, there are three components of Section 5 Cr.P.C. Firstly, the Procedure Code generally governs the matters covered by it, secondly, if a special or local law exists covering the same area, this latter law will be saved and will prevail and thirdly, if there is specific provision to the contrary in Cr.P.C., then that will override the special or local law and that shall be the last word and will hold even against the special law or local law. Since the Office Memorandum dated 27.11.1980 is neither a special law nor a local law, therefore, it shall not be covered by Section 5 Cr.P.C. The Office Memorandum dated 27.11.1980 was an administrative decision to establish a Directorate of Prosecution and Section 25A Cr.P.C. has given a statutory recognition to the already established Directorate of Prosecution.
(H) Whether Section 25A(2) Cr.P.C. is mandatory?
35. It is admitted case of the respondents that the Directorate of Prosecution has been established in the State of Uttar Pradesh. In the case of Sadhana Sharma (supra) the State Government has accepted that Section 25A Cr.P.C. is mandatory. Therefore, there is no need to enter into the interpretation of the word "may" used in sub section (1) of Section 25A Cr.P.C. Once a Directorate of Prosecution has been established in the State of Uttar Pradesh, the qualification of Director of Prosecution and Dy. Director of Prosecution as provided in sub section (2) of Section 25A are mandatory particularly when Section 25A(2) Cr.P.C. has not been amended by the U.P. Legislature. In the case of Jeevan Lal Sharma Vs. S.S. Parmar (2007) 51 AIC 842 (HP) (paragraphs 7,9,11,12 and 15), a Division Bench of Himachal Pradesh High Court has considered the question as to whether sub section (2) of Section 25A is mandatory? and held it to be mandatory observing that no person can be permitted to hold the charge of the office of Director of Prosecution until he conforms with the eligibility requirement as contained in sub section (2) of Section 25A.
36. Since the Director of Prosecution performs the statutory duties relating to criminal justice system, therefore, the Parliament understandably enacted the aforesaid provision of law keeping in mind the fact that persons other than those mentioned in sub-section (2) are not equipped with the necessary wherewithal as well as the bent of mind to perform the functions of the Director Prosecution. Provisions of Section 25A(2) providing eligibility of a person for appointment on the post of Director of Prosecution or Dy. Director of Prosecution that he must be 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, is mandatory. It is admitted case of the respondents that the respondent no. 5 does not possess the eligibility for appointment as Director of Prosecution or Additional Director of Prosecution or Dy. Director of Prosecution, by whatever named called.
(I) Whether the respondent no. 5 possesses the basic qualification/eligibility under section 25A Cr.P.C. to hold the public office of the post in question?
37. In paragraph 14 of the writ petition, the petitioner has stated that the respondent no. 5 is not eligible and suitable for the post in question as per provisions of Cr.P.C. but is holding the said post. In paragraph 19 of the counter affidavit the respondent no. 2 has stated that the respondent no. 5 is fully eligible. In paragraph 6 of the counter affidavit, the respondent no. 2 has stated that the respondent no. 5 is an IPS Officer and has joined the duties as A.D.G. Prosecution on 28.8.2019 in compliance to the order of Addl. Chief Secretary, Home dated 26.8.2019. In paragraph 7 it has been stated that the respondent no. 5 is posted as A.D.G. Prosecution (Addl. Director General of Prosecution) and not as Director of Prosecution.
38. In paragraph 5 of his short counter affidavit, the respondent no. 5 has stated that he has joined on 28.8.2019 as A.D.G. Prosecution in compliance to the order of the Addl. Chief Secretary Home dated 26.8.2019. Averments made in paragraph 8,9 and 10 of the short counter affidavit, the respondent no. 5 has given various details of the duties discharged by him as A.D.G. Prosecution which leaves no manner of doubt that the respondent no. 5 is functioning as Head of the Directorate of Prosecution under the administrative control of the Head of the Home Department of the State of U.P. Thus the respondent no. 5 is discharging duties of Director of Prosecution under the administrative control of the Head of the Home Department in the State of U.P. As per office memorandum dated 27.11.1980 there is no post of A.D.G. Prosecution or A.D.G. Prosecution Police. Admittedly, the respondent no. 5 is discharging the duties of Director of Prosecution referable to sub section (3) of Section 25A Cr.P.C. Since we have already held that Section 25A (2) Cr.P.C. is a mandatory provision, therefore, the respondent no. 5 can hold the aforesaid Public office only if he possess the eligibility as provided in sub-section (2) of Section 25A Cr.P.C.
39. In a recent judgement in the case of Jayaben Vs. Tejas Kanubhai Zala and another (2022) 3 SCC 230 (paragraph 22), the Hon'ble Supreme Court held that the post of Director of Prosecution is a very important post in so far as the administration of justice in criminal matters is concerned. It is the duty of the Director of Prosecution to take prompt decisions. Given that crimes are treated as a wrong against the society as a whole, the role of the Director of Prosecution in the administration of justice is crucial. He is appointed by the State Government in exercise of powers under Section 25A of the Code of Criminal Procedure. His crucial role is evident from conditions in Section 25A(2) of the Code, which stipulates a minimum legal experience of not less than ten years to be eligible to be Director of Prosecution and that such an appointment shall be made with the concurrence of the Chief Justice of the High Court.
40. Thus, a person to be eligible for appointment as Director of Prosecution or Dy. Director of Prosecution, he must have been in practice as an Advocate for not less than 10 years and the appointment can be made only with the concurrence of the Chief Justice of the High Court. Since the respondent no. 5 does not fulfil the aforesaid basic eligibility provided in sub-section (2) of Section 25A Cr.P.C. and yet is discharging the functions as A.D.G. Prosecution as Head of the Directorate of Prosecution, therefore, he cannot be held to possess the mandatory eligibility under section 25A(2) Cr.P.C. That apart he has been appointed without the concurrence of the Chief Justice of the High Court.
(J) Whether as per pleadings, the respondent No.5 is an usurper of the public office and is holding the post without eligibility and without any authority of law:-
41. In paragraphs-24, 25 and 26, the petitioner has made specific averment that the respondent No.5 is an usurper of public office and is holding the said public post without any legal authority, eligibility and suitability and, therefore, a writ of quo warranto be issued against the respondent No.5 holding his appointment as illegal and not in consonance with the statutory provisions of Section 25A Cr.P.C. Averments of these paragraphs-24, 25 and 26 of the writ petition have not been denied in paragraph-20 of the counter affidavit filed on behalf of the respondent No.2 (the Principal Secretary, Home Department), which has been sworn by Dr. Paulson, Secretary, Home Department, Government of U.P. Lucknow. Paragraphs-24, 25 and 26 of the writ petition and Paragraph-20 of the counter affidavit are reproduced below:
Paragraphs-24, 25 and 26 of the writ petition Paragraph-20 of the counter affidavit (Reply of Paragraphs-24, 25 and 26 of the writ petition)
24. That the public office is held by Respondent No. 5 a usurpt without legal authority and various judgment by Hon'ble Apex Court and various Hon'ble. High Courts, Law Commission Reports implies that respondent No. 5 is a usurpt and is holding the public office without any legal authority. The copy of the compilation of various judgment by Hon'ble Apex Court and various Hon'ble High Courts, Law Commission Reports is being filed herewith and marked as Annexure No. 1 to this writ petition.
25. That the petitioner being the citizen of the country and has right to challenge the authority of respondent No. 5 who is holding the public office without any legal authority, eligibility and suitability.
26. That in view of the aforesaid facts and circumstances of the case it is expedient in the interest of justice that this Hon'ble Court may kindly be pleased to issue a writ 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 issue writ of mandamus or other appropriate writ / directions to place the person who is, suitable and eligible in accordance with the Criminal Procedure Code, 1973 (in brevity Act No. II of 1973) , otherwise the petitioner shall suffer irreparable loss and injury.
20.That the contents of paragraph No. 17, 18, 19, 20, 21, 22, 23, 24, 25 & 26 of the writ petition being matters of record need no comments, which could be verified from the record itself for the sake of brevity.
42. In paragraphs-8 and 9 of his short counter affidavit, the respondent No.5 has stated as under:
"8.That as ADG Prosecution, I have tried to improve the coordination between different stakeholders of criminal justice system, and inform the government about the prosecution status regarding the Trial Cases against Mafia, as well as crime against women etc. implementation of e-Prosecution and ICIS in U.P., monitoring of acquittal and conviction reports, provision of facilities to improve professional competence and working environment.
9. That to improve the/welfare of prosecutors and staff so as to improve their morale and working conditions. Effort was made to make their work paperless by introducing e-Prosecution Portal, e-Prosecution Mobile App, e-Office and e-HRMS (Manav Sampada Portal) and training and grievance redressal through webinar."
43. In paragraph-10 of his short counter affidavit, the respondent No.5 referred to a seminar on implementation of POCSO Act held in the Auditorium of the Supreme Court from 10.12.2022 to 11.12.2022 where all the Directors of Prosecution from all the States of India were present and were advised to follow the model of prosecution being implemented by A.D.G., Prosecution, U.P. Averment of paragraphs-8 and 9 read with paragraph-10 goes to show that the respondent No.5 under the nomenclature of A.D.G., Prosecution, U.P. is discharging the functions of Director of Prosecution. It is not the case of the State-respondents that any person other than the respondent No.5 is functioning as head of the Directorate of Prosecution, Uttar Pradesh.
44. The averments made in the aforequoted Paragraphs No.24, 25 and 26 of the writ petition have not been denied by the State-respondents in paragraph-20 of the counter affidavit. Thus, it stands admitted to the respondents that the respondent No.5 is an usurper of the public office which is held by him without any legal authority and without eligibility prescribed in Section 25A(2) of the Cr.P.C. While replying the contents of Para-26 of the writ petition in para-20 of the counter affidavit, the State-respondents have not denied the averments of the petitioner that a writ of quo warranto may be issued against the respondent No.5 and a writ of mandamus may be issued to place a suitable and eligible person in accordance with Section 25A of the Cr.P.C. Therefore, a writ of quo warranto needs to be issued against the respondent No.5.
(K) Law of Writ of Quo Warranto and Locus Standi
45. In Civil Appeal No. 6706 of 2022 (State of West Bengal Vs. Anindya Sundar Das and others) decided on 11.10.2022 (Paragraphs 9, 23, 24 and 26) reported in AIR 2022 SC 4902, Hon'ble Supreme Court referred to its earlier judgments in Central Electricity Supply Utility of Odisha Vs. Dhobie Sahoo and others (2014)1 SCC 161, Bharati Reddy Vs. State of Karnataka (2018) 6 SCC 162, University of Mysore Vs. C.D. Govindra Rao (1964 4 SCR 575, High Court of Gujarat Vs. Gujarat Kishan Mazdoor Panchayat (2003) 4 SCR 712, B. Srinivasa Reddy Vs. Karnataka Urban Water Supply and Drainage Board Employees' Association (2006) 11 SCC 731 and held/observed as under:-
"9. The Division Bench of the High Court relied upon the judgments of this court in Central Electricity Supply Utility of Odisha v. Dhobei Sahoo, (2014) 1 SCC 161 and Bharati Reddy v. State of Karnataka, (2018) 6 SCC 162 and noted that a writ of quo warranto can be issued when:
(i) A person holding public office lacks eligibility criteria prescribed for such appointment; and
(ii) The appointment is made contrary to the statutory provisions or rules.
23. Through a line of cases, this Court has laid out the terms on which the writ of quo warranto may be exercised. In University of Mysore v C.D. Govindra Rao, (1964) 4 SCR 575, a Constitution Bench of this Court, speaking through Justice Gajendragadkar (as he then was), held that:
6. [...] Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognized in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons, not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.
(emphasis supplied)
24. In High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (2003) 4 SCC 712 in his concurring opinion in a three judge Bench, Justice SB Sinha, held that:
22. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact on the candidates or other factors which may be relevant for issuance of a writ of certiorari. (See R.K. Jain v. Union of India, SCC para 74.)
23. A writ of quo warranto can only be issued when the appointment is contrary to the statutory rules. (See Mor Modern Coop. Transport Society Ltd. v. Financial Commr. & Secy. to Govt. of Haryana.)
26. In Central Electricity Supply Utility of Odisha v. Dhobei Sahoo, (2014) 1 SCC 161, another two judge Bench of this Court reiterated that:
21. [...] the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. That apart, the concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is impermissible. The basic purpose of a writ of quo warranto is to confer jurisdiction on the constitutional courts to see that a public office is not held by usurper without any legal authority.
(emphasis supplied)
46. In the case of Bharati Reddy Vs. The State of Karnataka and others Civil Appeal No. 1763 of 2018 decided on 6.3.2018 (Paragraph-30) Hon'ble Supreme Court has considered the question of issuance of writ of quo warranto and held as under:
30. In B.R. Kapur Vs. State of Tamil Nadu & Anr.8 the Constitution Bench was called upon to consider the situation where a person convicted for a criminal offence and whose conviction has not been suspended pending appeal, could be sworn in as the Chief Minister of a State and continue to function as such. The Court was called upon to answer the controversy on the basis of indisputable fact that the incumbent Chief Minister had already been convicted of a criminal offence and such conviction had not been suspended in the pending criminal appeal. After considering the purport ofArticle 164 and Article 173 of the Constitution, the Court concluded that the appointment of the second respondent in the appeal as the Chief Minister was in clear violation of the constitutional provisions and thus a writ of quo warranto was inevitable. The substratum of the exposition was the factum of basic ineligibility of the person to be appointed or continue as Chief Minister. In a concurring judgment by Brijesh Kumar, J. (as His Lordship then was) the nature of writ of quo warranto has been explicated in the following words:
"79. ......A writ of quo warranto is a writ which lies against the person, who according to the relator is not entitled to hold an office of public nature and is only a usurper of the office. It is the person, against whom the writ of quo warranto is directed, who is required to show, by what authority that person is entitled to hold the office. The challenge can be made on various grounds, including on the grounds that the possessor of the office does not fulfil the required qualifications or suffers from any disqualification, which debars the person to hold such office. ............"
47. In a recent judgement in the case of Gambhirdan K. Gadhvi Vs. State of Gujrat (2022) 5 SCC 179 (Paragraphs 16 and 17), Hon'ble Supreme Court referred to its earlier judgements in Rajesh Awasthi Vs. Nand Lal Jaiswal (2013) 1 SCC 501 at 514 and Armed Forces Medical Association Vs. Union of India (2006) 11 SCC 731 and reiterated similar principles.
48. Thus a Writ of Quo Warranto will lie when the appointment is made contrary to the statutory provisions. Broadly stated, the quo warranto proceedings affords a judicial remedy by which any person, who holds an independent substantive public office or franchiese or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by a judicial order. It gives the judiciary a weapon to control the executive from making appointments to public office against law and to protect citizens from being deprived of public office to which they have a right. It protects the public from usurpers of public office. Therefore, a person can effectively claim a writ of quo- warranto, if he satisfies the court that the office in question is a public office and is held by an usurper without legal authority. This inevitably would lead to an enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not. Thus, a writ of quo-warranto can only be issued when a person holding a public office does not fulfill the eligibility criteria prescribed for appointment to such an office or when the appointment is contrary to statutory provisions.
(L) Whether on facts of the present case writ of quo-warranto needs to be issued?
49. Indisputedly the respondent no. 5 holds a public office. As discussed in foregoing paragraphs of this judgement, he does not possess the eligibility/necessary qualification for appointment on the post of Director of Prosecution or Dy. Director of Prosecution or Addl. Director of Prosecution as Head of the Directorate of Prosecution. Indisputedly the respondent no. 5 is an IPS officer in police service. Sub-section (2) of Section 25A specifically provides that a person shall be eligible to be appointed as Director of Prosecution or Dy. 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 Chief Justice of the High Court. It is admitted to all the respondents that the respondent no. 5 has not been in practice as an Advocate for not less than 10 years and also his appointment has been made without concurrence of Chief Justice of the High Court. The petitioner is a practising Advocate and has satisfied the Court by drawing attention to the relevant facts and the relevant provisions of law that the office in question is a public office which is being held by the respondent no. 5 without fulfilling the basic eligibility and thus he is a usurper of the public office holding the post without any legal authority and his appointment is contrary to the provisions of Section 25A Cr.P.C. A writ of quo warranto can be issued when a person holding the public office does not fulfil the eligibility criteria prescribed for appointment to such an office or when the appointment is contrary to the statutory provisions. Reference in this regard may be had to the recent judgement of the Hon'ble Supreme Court dated 3.3.2022 in Writ Petition (Civil) No. 1525 of 2019 (Gambhirdan K Gadhvi Vs. The State of Gujarat and others) reported in (2022) 5 SCC 179.
50. In the present set of facts we have already held that the appointment of the respondent no. 5 is contrary to the provisions of sub-section (2) of Section 25A Cr.P.C. inasmuch as he neither possesses the eligibility provide under the said provisions nor his appointment was made with the concurrence of the Chief Justice of the High Court. Therefore, we hold that the respondent no. 5 is usurper of a public office and his appointment was in breach of sub-section (2) of Section 25A Cr.P.C.
(M) Judgements relied by the State respondents:-
51. Learned Addl. Advocate General has relied upon the judgements of Hon'ble Supreme Court in the case of Official Liquidator Vs. DhartiDhan (P) Ltd. (1977) 2 SCC 166 (paragraph 8) for interpretation of the word 'may'. We find that the said judgement has no relevance on the facts of the present case. In view of the fact that the Directorate of Prosecution has been established in the State of U.P. and legal position in our finding in detail has been recorded in the foregoing paragraphs of this judgement.
52. The second judgement relied upon by the learned Addl. Advocate General is the judgement of Hon'ble Supreme Court in A.K. Roy Vs. Union of India (1982) 1 SCC 271 (Paragraph 50) for the proposition that the State Legislature can opt for non-enforcement of a particular provision in the statute if the statute provides for a discreton. In the present set of facts there is nothing on record to show that the State legislature has amended the provision of Section 25A Cr.P.C. On the contrary the State of U.P. has declined to bring any amendment in Section 25A Cr.P.C.
53. The next judgements relied upon by the learned Addl. Advocate General are in Sub-Inspector Rooplal Vs. Lt. Governor (2000) 1 SCC 644 (paragraph 12 and 13), U.P. Power Corporation Ltd. V. Rajesh Kumar (2012) 7 SCC 1 (paragraph 16 to 21) and JaisriSahu Vs. Rajdewan Dubey AIR 1962 SC 83 for proposition that if different view is taken by a Coordinate Bench, judicial propriety demands that the matter be referred to a larger Bench. These judgements are of no help to the respondents inasmuch as no contrary view is being taken by this Court. The present judgement is based on facts as emerging from own records of the respondents, the law laid down by the Hon'ble Supreme Court and the undertaking given by the State of U.P. before Hon'ble Supreme Court in the case of Sadhana Sharma (supra).
54. The next judgement of Hon'ble Supreme Court relied by learned Addl. Advocate General in Union of India Vs. Hansoli Devi (2002) 7 SCC 273, Sukhdev Singh Vs. State of Haryana (2013) 2 SCC 212 and Raghunath Rai Bareja Vs. Punjab National Bank (2007) 2 SCC 230 for the proposition that that penal statutes should be strictly construed. In the present set of facts and the conclusion reached by us leaves no manner of doubt that these judgements are of no help to the respondents.
55. The next series of judgements relied by learned Addl. Advocate General are the judgements of Hon'ble Supreme Court in India Cement Ltd. Vs. State of Tamil Nadu (1990) 1 SCC 12, Kartar Singh Vs. State of Punjab (1994) 3 SCC 569, Union of India Vs. Shah Goverdhan L. Kabra Teacher's College (2002) 8 SCC 228, Atiabari Tea Co. Ltd. Vs. State of Assam AIR (1961) SC 232 and State of Karnataka Vs. State of Meghalaya (2022) SCC Online SC 350 for the proposition that pith and substance of the legislative enactment is to be looked while two entries of concurrent list are overlapping. We have already discussed in detail the provisions of Section 25A, the breakdown of this enactment, its enforceability in the State of U.P., own undertaking of the State of U.P. in the case of Sadhana Sharma (supra) and the various judgements of Hon'ble Supreme Court dealing directly with section 25A Cr.P.C. Thus the judgements relied by the learned Addl. Advocate General are of no help to the respondents.
(N) Brief Summary of Conclusions:-
56. The conclusions reached above by us are briefly summarised as under:-
(i) By office memorandum dated 27.11.1980, Directorate of Prosecution has been established in the State of U.P. as an administrative decision pursuant to the recommendations of the 14th report of the Law Commission and the report of Rishi Rai Committee.
(ii) Since, despite recommendations of the Law Commission and also despite judgement of Hon'ble Supreme Court in S.B. Shahane v. State of Maharashtra AIR 1985 SC 1628 several States have not established Directorate of Prosecution while some of the States including the State of Uttar Pradesh have established a Directorate of Prosecution therefore, so as to give statutory status to the Directorate of Prosecution, the Parliament inserted Section 25A in Cr.P.C. by Section 4 of the Code of Criminal Proseducre (Amendment) Act, 2005 (No. 25 of 2005) which received assent of the President on 23.6.2005 and was enforced by Notification No. S. O. 923(E) dated 21.6.2006 w.e.f. 23.6.2006.
(iii) The Chief Minister approved the proposal (reproduced in para-19 above) on 28.2.2014 not to amend Section 25A Cr.P.C. Statement of learned Additional Advocate General as noted in Para 21 above itself shows that the decision of the State Government dated 28.02.2014 dropping the proposed amendment and to implement Section 25A Cr.P.C. is undisputed.
(iv) Section 25A read with Section 1(2) Cr.P.C. has been enforced in the State of U.P. w.e.f. 23.6.2006 and the State of U.P. consciously took decision not to amend Section 25A Cr.P.C. The Legislature of the State of Uttar Pradesh has not enacted a law to amend Section 25A Cr.P.C. with assent of the President of India under Article 254 of the Constitution of India. By enactment of Section 25A Cr.P.C., the existing Directorate of Prosecution established by the aforesaid office memorandum dated 27.11.1980, has achieved statutory status. Thus, Section 25A Cr.P.C. would prevail over the aforesaid office memorandum dated 27.11.1980 including the eligibility for appointment on the post of Director of Prosecution and Dy. Director of Prosecution/ Additional Director General of Prosecution by whatever name called, to the extent the Office Memorandum 27.11.1980 is inconsistent with Section 25A Cr.P.C.
(v) As per sub-section (2) of Section 1 Cr.P.C. the provision of Section 25A Cr.P.C. are applicable in the State of Uttar Pradesh. The U.P. Legislature has not enacted any law to amend Section 25A Cr.P.C. with the assent of the President of India. The State Government gave an undertaking before the Hon'ble Supreme Court to implement the judgement of the High Court in the case of Sadhana Sharma (supra) in its entirety. Therefore, the stand taken by the respondents that Section 25A Cr.P.C. is not applicable in the State of U.P. is wholly baseless and infact it is a disrespect being shown by them to the Parliament, the binding judgment in the case of Sadhana Sharma (supra), the statement made on behalf of State of U.P. before Hon'ble Supreme Court and the constitutional provisions including Article 141.
(vi) Office Memorandum dated 27.11.1980 is not a law under Section 5 Cr.P.C. as it is neither a general law nor a special law as defined in Sections 41 and 42 I.P.C. read with Section 2(y) Cr.P.C., yet for the sake of argument if the office memorandum dated 27.11.1980 is presumed to be a law still Section 25A Cr.P.C. shall prevail over it. Article 254(2) of the Constitution of India deals with the question of legislative supremacy. If a State law is in conflict with the law made by Parliament in the field of legislation falling under the concurrent list, then the law enacted by Parliament shall prevail and to the extent of repugnancy the State law shall be void. Therefore, the essential qualification as provided in Section 25A(2) Cr.P.C. for the post of Director of Prosecution or Dy. Director of Prosecution shall prevail over the qualification for the said posts provided under the office memorandum dated 27.11.1980.
(vii) Sections 24, 25 and 25A are part of one singular Scheme which makes a perceptible demarcation and compartmentalization for the Public Prosecutor in the High Court and District Courts and administrative control and hierarchy in the Department of Prosecution i.e. Directorate of Prosecution.
(viii) Since the Office Memorandum dated 27.11.1980 is neither a special law nor a local law, as defined in Sections 41 and 42 I.P.C. read with Section 2(y) Cr.P.C., therefore, it shall not be covered by Section 5 Cr.P.C. The Office Memorandum dated 27.11.1980 was an administrative decision to establish a Directorate of Prosecution and Section 25A Cr.P.C. has given a statutory recognition to the already established Directorate of Prosecution.
(ix) Provisions of Section 25A(2) providing essential qualification/eligibility of a person and necessary condition for appointment on the post of Director of Prosecution or Dy. Director of Prosecution that he must be 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, are mandatory. The respondent No.5 neither possesses the essential qualification nor his appointment has been made with the concurrence of the Chief Justice of the High Court.
(x) Section 25A(3) Cr.P.C. provides that the Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the Head of the Home Department in the State. The respondent no. 5 has been appointed by the Head of the Home Department of the State Government by order dated 26.08.2019. As per particulars disclosed by him in paragraphs 8, 9 and 10 of his short counter affidavit he is functioning as Head of the Directorate of Prosecution under the administrative control of the Head of the Home Department of the State of Uttar Pradesh. There is no post named as A.D.G. Prosecution or A.D.G. Prosecution Police under the Office Memorandum dated 27.11.1980. Thus, the respondent no. 5 is functioning as the Director of Prosecution under the administrative control of the Head of the Home Department of the State of Uttar Pradesh, without any legal authority.
(xi) In paragraph-20 of the counter affidavit the State respondents have not denied the averments of paragraphs-24, 25 and 26 of the writ petition that the respondent No.5 is an usurper of the public office held by him without legal authority and without eligibility and suitability, a writ of quo warranto needs to be issued against the respondent No.5 holding his appointment as illegal and not in consonance with the statutory provisions of Section 25A Cr.P.C.
(xii) A writ of Quo Warranto will lie when the appointment is made contrary to the statutory provisions. Broadly stated, the quo warrant proceedings affords a judicial remedy by which any person, who holds an independent substantive public office or franchiese or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by a judicial order. Therefore, a person can effectiviely claim a writ of quo- warranto, if he satisfies the court that the office in question is a public office and is held by an usurper without legal authority. Thus a writ of quo-warranto can only be issued when a person holding a public office does not fulfill the eligibility criteria prescribed for appointment to such an office or when the appointment is contrary to statutory provisions.
(xiii) Since the appointment of the respondent no. 5 is without authority of law, illegal and contrary to the provisions of sub-section (2) of Section 25A Cr.P.C., therefore, it is declared that the respondent no. 5 is usurper of a public office and his appointment is illegal.
Relief Granted:-
57. For all the reasons aforestated, we issue a writ of quo warranto declaring that the appointment of respondent no. 5 as Addl. Director General of Police Prosecution, Uttar Pradesh, Lucknow as Head of the Directorate of Prosecution is without authority of law, illegal and contrary to the statutory provisions of Section 25A(2) of the Cr.P.C. The respondent Nos.1 and 2 are directed to ensure that Director of Prosecution under Section 25A(2) Cr.P.C. is appointed within six months from today. The writ petition is allowed.
Order Date :- 19.05.2023 O.K./NLY (Hon'ble Surya Prakash Kesarwani, J) Court No. - 3 Case :- WRIT - C No. - 27571 of 2022 Petitioner :- Kishan Kumar Pathak Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rahul Mishra,Sanjay Mishra Counsel for Respondent :- C.S.C.,Pankaj Rai Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Jayant Banerji,J.
(Per: Hon'ble Jayant Banerji, J.) (concurring)
1. I have had the privilege, benefit and advantage of reading the erudite draft judgment shared by my esteemed brother. However, I would like to add a few words of my own.
2. The office memorandum dated 27.11.19801, which is apparently made and issued in exercise of the executive power conferred under Article 162 of the Constitution of India, has been filed as enclosure to the affidavit filed by the respondents. The subject of the O.M. is: 'Establishment of Directorate of Prosecution, Uttar Pradesh'. The contents of the aforesaid O.M. have already been quoted above and are not being repeated for brevity.
3. The O.M. narrates that after implementation of the Criminal Procedure Code, 19732, for purpose of effective and impartial prosecution and for establishment of independent Directorate of Prosecution, the matter has been under consideration of the Government for some time and in this regard after seriously considering the recommendations made in the 14th Law Commission of India and the recommendations of the Rishi Rai Committee constituted by the Government, the Hon'ble Governor has granted approval for establishment of a separate Directorate of Prosecution with its Headquarters in Lucknow, for effective control and supervision of the entire work of Assistant Public Prosecutors, appointed under Section 25 of the Code, in the Courts of the Magistrates.
4. It is pertinent to refer to some provisions of the Code. Sections 24 and 25 of the Code read as under:
"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.
(2) The Central Government may appoint one or more Public Prosecutors, for the purpose of conducting any case or class of cases in any district, or local area.
(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.
(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion, fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4).
(6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre:
Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4).
Explanation.- For the purpose of this sub-section, -
(a) "regular Cadre of Prosecuting Officers" means a Cadre of Prosecuting Officers which includes therein the post of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post;
(b) "Prosecuting Officer" means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.
(7) A person shall be eligible to be appointed as a 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 seven years.
(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.
Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.
(9) For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.
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 or 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 that case:
Provided that a police officer shall not be so appointed -
(a) if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or
(b) if he is below the rank of Inspector."
5. Certain amendments in the aforesaid provisions of the Code having a bearing on this discussion are being mentioned. Section 24 was substituted and sub-section (1A) of Section 25 was inserted by the Code of Criminal Procedure (Amendment) Act, 1978. The Explanation in sub-section (6) of Section 24 was inserted by the Code of Criminal Procedure (Amendment) Act, 2005 with retrospective effect from 18.12.1978.
By the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1991 (U.P. Act No.18 of 1991), inter alia, the following amendment was introduced:
''2. In Section 24 of the Code of Criminal Procedure, 1973, hereinafter referred to as the said Code:-
(a) in sub-section (1), the words ''after consultation with the High Court'', shall be omitted;
(b) sub-sections (4), (5) and (6) shall be omitted;
(c) in sub-section (7), the word, ''or sub-section (6)'' shall be omitted.'' By U.P. Act 16 of 1976, in sub-section (2) of Section 25, the following proviso was inserted and deemed always to have been inserted, namely:
"Provided that nothing in this sub-section shall be construed to prohibit the State Government from exercising its control over Assistant Public Prosecutors through police officers."
6. Section 25-A of the Code was inserted by Code of Criminal Procedure (Amendment) Act, 2005 with effect from 23.6.2006 which reads as under:
"25-A. Directorate of Prosecution. - (1) The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit.
(2) A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court.
(3) The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the Head of the Home Department in the State.
(4) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution.
(5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (1), or as the case may be, sub-section (8), of Section 24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution.
(6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (3), or as the case may be, sub-section (8), of Section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of Section 25 shall be subordinate to the Deputy Director of Prosecution.
(7) The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify.
(8) The provisions of section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor."
7. In the matter of Sadhana Sharma v. State of U.P. and others3, which has been referred to at length by my esteemed brother hereinabove, the constitutional validity of Section 2 of U.P. Act No.18 of 1991 was challenged. After considering a gamut of case laws, the court referred to the importance of the recommendations made by the Law Commission of India in its Reports, and the Statement of Objects and Reasons mentioned in the Prefatory Note to the amending Act and observed that nothing was brought on record as to how the consultation of the District Judge causes delay and how the State is deprived to choose a counsel of its choice. This court referred to the judgment of Km. Shrilekha Vidyarthi and others v. State of U.P. and others4 and held that the State Legislation has not considered that judgment and recorded its dissent, as to why they wish to overrule it by legislation. This court held that the objects and reasons were based on unfounded facts having no nexus with the object sought to be achieved and hence the amendment suffers from unreasonableness and hit by Article 14 of the Constitution of India. In its discussion on this aspect this Court referred to the aforesaid amendment and Section 25-A of the Code, including the interplay of the provisions, and observed that:
"155. Apart from the above, as is evident from Section 25-A of CrPC and keeping in view the amendment done to make the prosecuting agency independent, it shall always be obligatory on the part of the State to make selection process more independent than enforcing the spoil system for the recruitment of District Government Counsels.
156. The letter and spirit of Section 25-A reveals that Parliament to its wisdom provides that Directorate of Prosecution shall be established and appointment of Director of Prosecution shall be with the concurrence of Chief Justice. Thus, it is evident that the intention of Parliament is to make the prosecuting agency more independent than what we possess.
......
170. Parliament has inserted Section 25-A (supra) to make the Prosecution Branch more independent than earlier was. Under sub-section (8) of Section 24 of CrPC, power was conferred on the State Government to appoint special counsel that too, without obtaining opinion from the District Judge or even the District Magistrate. Meaning thereby, special counsel were under the direct command and control of the State Government with regard to employment and discharge of duty.
By inserting Section 25-A, Parliament provided that even special counsel shall discharge their obligation under the Directorate of Prosecution. Though, the power of State Government to appoint special counsel has been maintained but he/she shall fall within the administrative control of Director of Prosecution. Thus, in case the special counsel is different class than the District Government Counsel appointed under sub-sections (4), (5) and (6) of Section 25 of Code of Criminal Procedure. Hence, so far as the supervisory or statutory control is concerned, by inserting Section 25-A, Parliament removed the difference between the counsel appointed on the recommendation of the District Judge and District Magistrate and a special counsel appointed by the Government straight away in a particular case. Accordingly, in case impugned amendment is sustained, then it shall be in derogation of letter and spirit of Section 25-A of CrPC and shall be repugnant to Central Act in view of proviso to Clause (2) of Article 254 of the Constitution. Both cannot stand together."
8. This court therefore, in Sadhana Sharma, while declaring Section 2 of the Act No.18 of 1991 ultra vires, unconstitutional, void and illegal, directed restoration of the original provision with natural consequences to the extent it relates to amendment done in Section 24 of the Code.
9. The Special Leave Petitions filed by the State Government against the aforesaid judgment of this Court in Sadhana Sharma were dismissed as withdrawn in view of the policy decision of the State Government that they wish to implement the judgment of the High Court in its entirety and would continue to adopt the same policy in future as well.
10. In this backdrop, the operation of the O.M. with respect to the provisions of Sections 24, 25 and 25-A of the Code would require consideration.
11. Section 5 of the Code reads as follows:
"5. Saving.- Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."
Section 5 thus provides that nothing contained in this Code shall in the absence of a specific provision to the contrary affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. Under the aforesaid O.M., for exercising effective control and supervision of the works of the Assistant Public Prosecutors who are pursuing matters in the Court of Magistrates appointed under Section 25 of the Code, the Directorate of Prosecution was set up with the posts of Director of Prosecution, Deputy Director of Prosecution and other posts. Therefore, by the O.M., jurisdiction and powers have been conferred on the Director of Prosecution for purpose of control and supervision as circumscribed therein.
12. In the judgment of the Union of India and others Vs. Somasundaram Viswanath and others reported in (1989) 1 SCC 175, while considering executive instructions made under Article 162 and rules made under Article 309 of the Constitution of India, the Supreme Court observed as follows:
"6. It is well settled that the norms regarding recruitment and promotion of officers belonging to the Civil Services can be laid down either by a law made by the appropriate legislature or by rules made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued under Article 73 of the Constitution of India in the case of Civil Services under the Union of India and under Article 162 of the Constitution of India in the case of Civil Services under the State Governments. If there is a conflict between the executive instructions and the rules made under the proviso to Article 309 of the Constitution of India, the rules made under proviso to Article 309 of the Constitution of India prevail, and if there is a conflict between the rules made under the proviso to Article 309 of the Constitution of India and the law made by the appropriate legislature the law made by the appropriate legislature prevails. ..............................
Unless there is anything in the Rules made under the proviso to Article 309 of the Constitution of India, which is repugnant to the instructions contained in the Office Memorandum, the Office Memorandum which is apparently issued under Article 73 of the Constitution of India is entitled to be treated as valid and binding on all concerned."
13. In a recent judgment of the Supreme Court in the case of SK Naushad Rahaman and others Vs. Union of India and others reported in 2022 SCC Online SC 297, the Supreme Court iterated certain basic precepts of service jurisprudence and observed as follows:
"29. Fourth, norms applicable to the recruitment and conditions of service of officers belonging to the civil services can be stipulated in:
(i) A law enacted by the competent legislature;
(ii) Rules made under the proviso to Article 309 of the Constitution; and
(iii) Executive instructions issued under Article 73 of the Constitution, in the case of civil services under the Union and Article 162, in the case of civil services under the States.
30. Fifth, where there is a conflict between executive instructions and rules framed under Article 309, the rules must prevail. In the event of a conflict between the rules framed under Article 309 and a law made by the appropriate legislature, the law prevails. Where the rules are skeletal or in a situation when there is a gap in the rules, executive instructions can supplement what is stated in the rules.
31. Sixth, a policy decision taken in terms of the power conferred under Article 73 of the Constitution on the Union and Article 162 on the States is subservient to the recruitment rules that have been framed under a legislative enactment or the rules under the proviso to Article 309 of the Constitution.
...........
34. There is a fundamental fallacy in the submission which has been urged on behalf of the appellants. Administrative instructions, it is well-settled, can supplement rules which are framed under the proviso to Article 309 of the Constitution in a manner which does not lead to any inconsistencies. Executive instructions may fill up the gaps in the rules. But supplementing the exercise of the rule making power with the aid of administrative or executive instructions is distinct from taking the aid of administrative instructions contrary to the express provision or the necessary intendment of the rules which have been framed under Article 309. . . . . . . . . "
14. At the time of making the O.M. the provisions of Section 25-A of the Code were neither comprehended nor contemplated. The content and tenor of the O.M. is exclusively for establishment of a separate Directorate of Prosecution for effective control and supervision of the entire work of Assistant Public Prosecutors, appointed under Section 25 of the Code, in the Courts of the Magistrates. The administrative structure of the Directorate of Prosecution has been elaborated in the aforesaid O.M. The establishment, pay scales, conditions of service, structure of Directorate, duties and responsibilities of the Director of Prosecution, etc. have been specified in the annexures to the O.M. Annexure-1 lists the sanctioned staff of the headquarters of the Directorate with the names of the posts, the number of posts and pay scales. Annexure-2 lists the number of posts, pay scales and names of posts of the sanctioned staff in the office of the Regional Deputy Director and in the office of the senior Prosecuting Officer/In-charge Prosecuting Officer at the district level. Annexure-3 is the estimate of expenses on the establishment of the Directorate of Prosecution. Annexure 4 lists the structure of the Directorate including creation of four regions, each under the control of a Deputy Director of Prosecution. Annexure-5 lists the duties and responsibilities of the Director of Prosecution, Deputy Director (Headquarters), Regional Deputy Directors of Prosecution, and of Senior Prosecuting Officers, and, also the duties of the Prosecuting Officers / Assistant Prosecuting Officers. Annexure-6 lists the number of permanent and temporary post of Senior Prosecuting Officers, Prosecuting Officers and Assistant Prosecuting Officers and the pay scales of the staff.
Clause 9 of the O.M. provides that for appointment to the post of Director of Prosecution, Deputy Director of Prosecution, delegation of powers and procedure for appointment to the newly created posts, a separate order would be issued. However, no separate order, as provided in clause 9 of the O.M., has been brought on record by the respondents.
It is pertinent to mention here that sub-clause 2 of Clause 12 of the O.M. provides that to the post of Director of Prosecution, an officer in the police service of the rank of Deputy Inspector General of Police would be appointed but he will not work under the control of the Inspector General of Police nor will he exercise the authority of police.
15. My esteemed brother has referred to the judgment of a three Judge bench of the Supreme Court in the case of K. Anbazhagan v. State of Karnataka5 in the discussion made in his judgment on whether Sections 24, 25 and 25-A of the Code need to be understood as a singular scheme. In K. Anbazhagan it was held that the State Government is under obligation to establish Directorate of Prosecution and that the scheme makes a perceptible demarcation and compartmentalisation for the Public Prosecutor in the High Court and the district courts.
16. Section 25-A of the Code is thus like an 'umbrella' provision that provides for establishment of an independent Directorate of Prosecution, which is an agency for effective and impartial prosecution, and which is separate from the investigation agency. This Directorate is to be headed by a duly qualified Director of Prosecution with a structured organisation. Public Prosecutors, Additional Public Prosecutors and Special Public Prosecutors appointed by the State Government under sub-section (1), or as the case may be, sub-section (8), of Section 24 to conduct cases in the High Court would be subordinate to the Director of Prosecution. Further, the Deputy Director of Prosecution, who is required to be duly qualified and appointed under sub-section (1) of Section 25-A of the Code, is subordinate to the Director of Prosecution. Public Prosecutors, Additional Public Prosecutors and Special Public Prosecutors appointed by the State Government under sub-section (3), or as the case may be, sub-section (8), of Section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of Section 25 shall be subordinate to the Deputy Director of Prosecution.
It is pertinent to note here that subordination of Assistant Public Prosecutors appointed by the District Magistrate under sub-section (3) of Section 25 of the Code is not within the ambit of Section 25-A.
17. The proviso inserted in sub-section (2) of Section 25 by U.P. Act No.16 of 1976 which provides that 'nothing in this sub-section shall be construed to prohibit the State Government from exercising its control over Assistant Public Prosecutors through police officers', appears to be in conflict with the provisions of Section 25-A of the Code, and therefore, the conflict / repugnancy would have to be viewed in light of the proviso to clause (2) of Article 254 of the Constitution of India. In the judgment of the Constitution Bench of the Supreme Court that has been cited by my esteemed brother being in the matter of Zaverbhai Amaidas v. State of Bombay6 it has been held that under the Constitution Parliament can, acting under the proviso to Article 254(2), repeal a State law, but where it does not expressly do so, even then, the State law will be void under that provision if it conflicts with a later "law with respect to the same matter" that may be enacted by Parliament.
18. Even otherwise, given the provision of Section 5 of the Code the O.M. would have to yield to the provisions of Section 25-A of the Code. That is to say, in view of the specific provision to the contrary in Section 25-A regarding the subordination of Assistant Public Prosecutors appointed under sub-section (1) of Section 25 to the Deputy Director of Prosecution, the provision of the O.M. providing for appointment of a high ranking serving police officer to the post of Director of Prosecution for control and supervision of the Assistant Public Prosecutors is not saved by Section 5 of the Code to that extent.
19. The emphasis made on the use of the word 'may' appearing in sub-section (1) of Section 25-A by the State Government for the purpose of not implementing the provisions of Section 25-A of the Code is illogical and irrational. The use of the word 'may' in sub-section (1) was also considered by the Division Bench of this Court in Sadhana Sharma wherein this Court opined that the purpose of Section 25-A of the Code is to make the prosecuting branch independent from the Government to optimum level. Therefore, in view of the existing provisions of law, in view of the stand taken by the State Government before the Supreme Court while withdrawing the Special Leave Petitions as aforesaid, and in view of the facts and circumstances, the State cannot take the stand that it will not constitute a Directorate of Prosecution under sub-section (1) of Section 25-A Code but would continue with the Directorate of Prosecution as established under the aforesaid O.M.. Accordingly, the adjudication of this case would proceed on the premise of the applicability of Section 25-A of the Code as it stands in its full depth and vigour. As such, inconsistencies to Section 25-A brought to the fore by State Government amendments and executive instructions by means of the O.M. would not be given credence by this Court.
20. There is another aspect of the matter. On 9 February 2023, Shri Ashutosh Pandey, the respondent no.5, swore an affidavit highlighting inter-alia, the initiatives taken by him in capacity as Director of Prosecution. Extracts of his statements in the affidavit are as follows:
"That as ADG Prosecution, I have tried to improve the coordination between different stakeholders of criminal justice system, and inform the government about the prosecution status regarding the Trial Cases against Mafia, as well as crime against women, etc, implementation of e-Prosecution and ICJS in U.P., monitoring of acquittal and conviction reports, provision of facilities to improve professional competence and working environment.
That to improve the welfare of prosecutors and staff so as to improve their morale and working conditions. Effort was made to make their work paperless by introducing e-Prosecution Portal, e-Prosecution Mobile App, e-Office and e- HRMS (Manav Sampada Portal) and training and grievance redressal through webinar.
That after posting as ADG Prosecution, a concerted and determined effort was made to bring dignity and glory to the work of prosecutors by coordinating and cooperating with all stakeholders of criminal justice system. The new work culture among prosecutors and its sharp impact on conviction and disposal was very much appreciated by the Hon. Supreme Court of India to the extent that during national seminar on the implementation of POCSO Act held in the auditorium of the Supreme Court of India from 10.12.2022 to 11.12.2022 where all the directors of prosecution and police officers from all the states of India were present, were advised to follow the model of prosecution being implemented by ADG Prosecution UP. Besides, the MHA of the Government of India awarded First Prize to UP Prosecution twice during last two consecutive years for the best performance in prosecution all over India.
Officers of different states of India visit UP to see and learn the exemplary work culture of UP Prosecution. Recently, officers of Karnataka, Madhya Pradesh and Sikkim made a visit to Lucknow to get the first hand information of functioning of UP Prosecution. The Director of Prosecution, Orissa also enquired to know about the functioning of UP Prosecution with reference to the advice of the Hon. Supreme Court of India. Telangana, Punjab, Chhattisgarh and Jammu & Kashmir also showed keen interest in knowing the strategies adopted by the UP Prosecution.
There are two systems of prosecution in UP-
i. First system is under the Law Department where DGCs, ADGCs and public prosecutors plead the trial cases where punishment is more than 7 years.
ii. Second system is under the Home Department where APOs, POs and SPOs plead the trial cases where punishment is less than 7 years.
There was wide gap among these two different sets of prosecutors in terms of mutual cooperation and respect which impeded the sharing of information and professional knowledge and spread of common work culture among them.
There was constant problem of not knowing which prosecutor is doing what in different courts in different cases. DGCs and ADGCs were treating themselves outside the purview of prosecution and functioning under LR manual. To bridge this fractured system of Prosecution, e-Prosecution portal under ICJS ( Interoperable Criminal Justice System) platform was started which is a part of Digital India Mission. This was to make their work easy, accurate and effective. All the prosecutors were given laptops and e-Prosecution mobile app so that they can feed their work from anywhere. Hands-on training was given to all prosecutors on computers with repetition at regular intervals in district itself by master trainers. This helped in monitoring and evaluation of prosecutors and tracking of cases. This has helped prosecutors to fetch FIR from Police ( CCTNS) and all case details or causelist from Court ( e-Court) at the click of the mouse and feed their own performances in courts on e-Prosecution portal which helped in speedy trial and effective prosecution. UP Prosecution is now the domain expert in developing and modifying e-Prosecution software of NIC. The number of prosecution officers using NIC digital platform themselves is highest compared to Police and Judiciary in UP.
This experiment created an environment where two different sets of prosecutors started functioning together on same platform. This emerged as the biggest surprise all over India. Technology became a great enabler and leveler.
To monitor and evaluate the performance of prosecutors, 12 point KPI (Key Performance Indicator) were fixed after due discussion with all prosecutors and a platform was developed by NIC on e-Prosecution portal. Both sets of prosecutors including DGCs, ADGCs, APOs, POs and SPOs have started feeding on it.
To implement this strategy, letters were issued from ACS Home to DMs and from Principal Secretary Law to DGSs, ADGCs and public prosecutors of UP after due discussion.
Prosecutors were awarded certificates in recognition of their effort towards speedy trial and effective prosecution.
Year 2021 Sl. No. Rank No. of certificates.
1. JD 29
2. SPO 21
3. PO 35
4. APO 127
5. DGC 20
6. ADGC 38
7. Special Public Prosecutor 3 Year 2022 Sl. No. Rank No. of certificates.
1. JD 5
2. SPO 23
3. PO 13
4. APO 35
5. DGC 5
6. ADGC 23
7. Special Public Prosecutor 7 This created a huge impetus in galvanizing the Prosecution in UP and the MHA, Government of India awarded the First Prize and trophy for the best performance in Prosecution among all states of India twice consecutively in 2021 and 2022.
For speedy trail and effective prosecution, with the coordination from Judiciary, Magistracy and Police, three important monthly meetings of districts (Monitoring Cell meeting headed by DJ, Prosecution meeting headed by DM and Crime meeting of Police SP) were made agenda based for tasking and monitoring officers of Prosecution and Police.
To make effective the Monitoring Cell meeting, by coordinating with ACS Home and Principal Secretary Law, a letter was issued from Registrar Hon. High Court Allahabad for keeping and discussing 'Process Register' so as to improve the production and examination of witness.
To make effective the DM's Prosecution meeting, by coordinating with ACS Home, a letter was issued for all DMs to hold such meeting on 13 point agenda and send monthly report to the Government and the Prosecution Department.
To make effective the SP's Crime meeting, by coordinating with DGP UP, a letter was issued to all SSPs SPs and Police Commissioners to improve the quality of investigation by getting legal opinion, service delivery of summons and adopt success stories of highly performing districts.
IMPACT OF SUCH INNOVATION EFFORTS:
Over last 3 years, there is pronounced significant result in convictions in crimes against women. During 2020 in POCSO cases, convictions were awarded in 535 such cases; while in 2021, convictions in 1230 cases and in year 2022, convictions in 2313 cases leading to leading to a jump of 332% in the year 2022 compared to 2020.
In cases of rape, conviction were 177 in year 2020, 370 in year 2021 and 671 in year 2022 leading to a jump of 280% in year 2022 compared to 2020.
Convictions in POCSO cases within 1 month from charge framed to judgement increased from 5 in year 2020 to 34 in year 2022.
During 2022, altogether 16 Mafia were convicted in 23 different cases. A campaign was launched to get charges framed in cases of listed mafias of UP.
Tracking and monitoring of cases and prioritizing the production and examination of witnesses has yielded profound result. Compared to 2021, the number of witness examined increased by 2 to 4 times in 22 districts and more than 4 times in 5 districts of UP. For example in district Ballia, 325 police witnesses were examined in 2021 while in 2022 this numbered increased to 987.
Except north-eastern states, Uttar Pradesh tops the list with the highest conviction rate of 59.1% in crime against women in 2021. It is 123% of national average of 26.5. UP is consistently number 1 in highest conviction rate in such cases over last 3 years.
Maximum number of convictions in shortest time by effective pairvi in courts Coordination by Police, Prosecution and Govt.
According to crime in India 2021 data published by the National Crime Records Bureau > Uttar Pradesh ranks first in the entire country for the completion of trial cases in the shortest period of time by various courts for IPC and SLL (Special and Local Law) offences.
> The maximum number of 1310 cases have been convicted in the District and Sessions Courts in just one month in Uttar Pradesh which is the highest in the entire country. At the second place is Kerala with 803 cases and at the third place is Maharashtra with 224 cases.
> Similarly, in awarding punishments in just one month in trial cases by the Fast Track Courts, Uttar Pradesh has the highest number of 202 such convictions in the entire country, which is 67 percent of the total such sentences awarded in the country. At the second place is Andhra Pradesh with 72 cases and at the third place is Tamil Nadu with 10 cases.
> In awarding punishments in 1 to 3 months in trial cases by the Fast Track Courts, Uttar Pradesh again ranks first in the country with convictions in 417 cases, followed by 72 convictions in Andhra Pradesh and 10 in Tamil Nadu.
> In awarding punishments only within 3 months in trial cases by the Special Courts, Uttar Pradesh ranks first in the country with convictions in 2195 cases followed by 998 convictions each in Madhya Pradesh and Maharashtra at the second place.
> In awarding punishments only within 3 months in trial cases by the SC/ST Courts, Uttar Pradesh ranks first in the country with convictions in 170 cases, followed by convictions in 106 cases in Madhya Pradesh and 40 in Rajasthan.
21. There appears to be no doubt, given the elaborate presentation made by the respondent No. 5 in his affidavit, who is a high ranking serving police officer, that landmark initiatives have been taken by him in monitoring and evaluating the performance of all prosecutors which led to creation of an environment where two different sets of prosecutors started functioning together on the same platform which created a huge impetus in galvanizing the prosecution in State of Uttar Pradesh.
It is stated in his narration that the impact of the initiatives made by him is that there is pronounced significant result in convictions in crimes against women. As regards POCSO cases, the convictions in the year 2022 led to a jump of of 332% as compared to the year 2020. In cases of rape, the conviction in year 2022, compared to the year 2020, recorded a jump of 280%. During 2022, altogether 16 mafias were convicted in 23 different cases. There has been a significant increase in examination of witnesses.
22. This Court would like to place on record the empathy and appreciation it has for devoted police officers who are discharging their duties with creativity and with holistic understanding of the ground realities of prosecution. However, the initiatives undertaken by the respondent no.5, in purported exercise of jurisdiction conferred under the O.M., evinces that he is exercising the lofty and overarching jurisdiction of a Director of Prosecution as envisaged in Section 25-A of the Code. The Parliament in its wisdom has framed Section 25-A of the Code precisely to bring about fundamental and comprehensive changes in prosecution in the country to uphold the rule of law. Alas! if only the appointment of respondent no.5 was in accordance with the provisions of Section 25-A of the Code.
23. Therefore, this Court cannot but grant the relief as directed by my esteemed brother.
Order Date :- 19.05.2023 A. V. Singh (Jayant Banerji, J)