A Supreme Court Bench of Justices Deepak Gupta and Aniruddha Bose has framed the questions for final hearing on the issue concerning the appointment of Public Prosecutors/Assistant Public Prosecutors. The Writ Petition was filed by All India Prosecutors Association and another. The Supreme Court will hear the Case issue-wise. The Case is posted on February 26, 2020.
Appointment of public prosecutor/ additional public prosecutor
The Code of Criminal Procedure (Amendment) Act, 1978, has substituted a new provision, Section 24, for the same section of the principal Act. The new section provides that 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 the State Government, as the case may be. [Section 24 (1)] 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. 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 [Section 24 (2-3)]. 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 [Section 24 (4)].
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 the aforesaid provisions and sub-section (4) above. [Section 24 (5)]
Notwithstanding anything contained in sub-section (5) above 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) above [Section 24 (6)]. A person shall be eligible to be appointed as a Public Prosecutor or Additional Public Prosecutor under sub-section (1), sub-section (2), sub-section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years. 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.
For the aforesaid purposes, 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. [Section 24 (7-9)}.
Issues framed by the Hon’ble bench of Supreme Court
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?
2. Whether Section 24(6) of the Criminal Procedure Code, 1973 envisages that there should be a regular cadre of Public Prosecutors/Additional Public Prosecutors/Assistant Public Prosecutors? If so what should be the mode of recruitment for such officers?
3. If question No. 2 is answered in the negative, whether there is a need to have, as far as possible, a uniform system for appointment of Public Prosecutors/Additional Public Prosecutors/ Assistant Public Prosecutors all over the country?
4. Whether the posts of Public Prosecutors/ Additional Public Prosecutors/Assistant PublicProsecutors should be completely independent andnot be answerable to the Police in theirfunctioning?
5. Whether the amendments by the States to Section 24(6) and Section 25(2) of the Criminal Procedure Code, 1973 are ultra vires of the Criminal Procedure Code, 1973 and the Constitution of India?
6. What are the minimum facilities that need to be provided to Public Prosecutors/Additional Public Prosecutors/Assistant Public Prosecutors to enable them to perform their duties effectively?
Edited by Pragash Boopal
Approved & Published – Sakshi Raje