Andhra Pradesh High Court - Amravati
B. Ramakoteswararao, vs The State Of Andhra Pradesh, on 5 August, 2021
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
HIGH COURT OF ANDHRA PRADESH
MAIN CASE NO: W.P. No.15377 of 2021
PROCEEDING SHEET
SL. DATE ORDER OFFICE
NO. NOTE
02. 05.08.2021 JB J & KSR, J
(Proceedings taken up through video conferencing)
Petitioner was holding the post of Additional
Director of Prosecutions and it is contended that in an
unfair manner he had been deputed to another post,
which has been set aside by this Court in W.P.No.3198 of
2021. Petitioner contends that he is otherwise eligible
for being appointed to the post of Director of
Prosecutions, which according to him ought to be
appointed from the cadre of Prosecuting Officers only. In
support of his contention, petitioner has relied on the
various Law Commission Reports and decisions of the
Hon'ble Apex Court.
Sri M.Ravindranath Reddy, learned Senior Counsel,
appearing on behalf of the petitioner submits that the
respondent authorities are acting contrary to the letter
and spirit of law and seeking to appoint persons outside the prosecuting cadre. In fact on 05.11.2019 a panel of advocates was sent for appointment to the post, which however, was not acted upon. Thereafter, the respondents have amended Rule 3(1) of the Andhra Pradesh Prosecution Service Rules, 1992 (for short, 'the Rules') and the zone of consideration was extended to various categories including Administrative Officers/ Police Personnel. Subsequently, another amendment to the rule provided for appointment of an advocate of not less than ten years practice without reference to the post in the prosecuting cadre. It is further contended the post is presently occupied by a member of the Indian Police Service.
2SL. DATE ORDER OFFICE NO. NOTE
Sri N.Ashwartha Narayana, learned Government Pleader for Services-I, submits that it is open to the petitioner to apply for appointment to the said post in light of Section 24(9) of Code of Criminal Procedure (for short, 'Cr.P.C.'). It is further submitted that amendment to Rule 3(1) of the Rules has been made in conformity to Section 25A(2) of Cr.P.C.
We have considered the materials on record. The necessity of creating a separate prosecuting cadre independent of the investigating cadre has been repeatedly reiterated by the Law Commission as well as in various judgments of the Hon'ble Apex Court. In consonance to such directions, Code of Criminal Procedure was amended and Section 25A of Cr.P.C. was incorporated therein. Section 25A of Cr.P.C. provided for appointment of a Director of Prosecutions and Deputy Director of Prosecutions by the State Government. Section 25A(2) of Cr.P.C. provides the eligibility for appointment to the said post.
Section 25A (2) of Cr.P.C reads as follows:
"25A. Directorate of Prosecution -
(1) ...............
(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."
Amendment to Rule 3(1) of the Rules vide G.O.Ms.No.56 dated 15.06.2021 appears to be in conformity to the aforesaid statutory requirement.
It is argued that the said amendment rules out exclusive appointment from the prosecuting cadre. Learned Senior Counsel, appearing for the petitioner relies on the decisions of the Apex Court in K.J.John Vs. State of Kerala [(1990) 4 SCC 191] and K.Anbazhagan Vs. State of Karnataka and others [(2015) 6 SCC 158] 3 SL. DATE ORDER OFFICE NO. NOTE and argues that the said rule runs counter to Section 24(6) of Cr.P.C. and the office of the Director of Prosecutions is a part of the composite scheme for prosecution of criminal cases.
Prima facie, we are of the view that the amendment to Rule 3(1) of the Rules which provides the eligibility to the post of Director of Prosecutions as a person, who has been an advocate for not less than ten years is in conformity to Section 25A(2) of Cr.P.C. Furthermore, such stipulation does not exclude the members regular prosecuting cadre from consideration in the light of Section 24(9) of Cr.P.C., which inter alia provides that the service rendered in the capacity of Public Prosecutor or Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officers by whatever name shall be deemed to be a period where such person was practiced as an advocate.
In K.J.John (supra 1), the Court was dealing with Section 24 of Cr.P.C. and not with the eligibility of a person, who may be considered for appointment as a Director of Prosecutions under Section 25A of Cr.P.C. K.Anbazhagan (supra 2) does not lay down a clear mandate that no eligible and competent advocate having requisite qualification as per Section 25(2) of Cr.P.C. may be considered for appointment to the post of Director of Prosecutions. Furthermore, there is nothing in Cr.P.C. to show that the eligibility criteria for appointment to the post of Director of Prosecutions under Section 25A of Cr.P.C., is regulated by sub-section (6) of Section 24 thereof. Nonetheless, such issue requires to be considered upon exchange of affidavits. Accordingly, counters be filed.
However, in the light of the aforesaid discussion, we are not inclined to grant interim relief as prayed for at this stage. Needless to mention the petitioner being otherwise eligible in terms of Section 25A(2) read with 24(9) of Cr.P.C. to be considered for appointment as 4 SL. DATE ORDER OFFICE NO. NOTE Director of Prosecutions may apply for the said post without prejudice to his rights and contentions in the writ petition. With regard to the submission at the bar that the office is presently held by a member of the Indian Police Service, we observe the said post cannot be occupied by a member of the Indian Police Service and if so, necessary and prompt remedial steps in the matter be taken.
Post on 30.09.2021.
____________________ JOYMALYA BAGCHI, J ________________ K.SURESH REDDY, J Ivd 5 SL. DATE ORDER OFFICE NO. NOTE 6 SL. DATE ORDER OFFICE NO. NOTE 7 SL. DATE ORDER OFFICE NO. NOTE 8 SL. DATE ORDER OFFICE NO. NOTE 9 SL. DATE ORDER OFFICE NO. NOTE 10 SL. DATE ORDER OFFICE NO. NOTE 11