JUDGMENT 1. - The petitioners, who were initially working as Sub- Inspectors Gr. II in the Railway Protection Force, were appointed on the post of Assistant Public Prosecutor Gr. I and thereafter further promoted as Prosecuting Inspector Gr. II and to Gr. I and are continuing or the same post. The petitioners pray in the present writ petition for issuance of a direction to the respondents to provide for an independent and separate organisation and structure of the Prosecution branch of Railway Protection Force (hereinafter called `the R.P.E') providing, inter alia, for appointment, channel of promotion, disciplinary control, grant of leave, pay etc. to the members of the R.P.F. with a further direction that selection and appointment of Assistant Public Prosecutor. Public Prosecutor Gr. II, Public Prosecutor Gr. I up to highest post be made directly from amongst persons having atleast minimum qualifications of Law and no appointment on this post be made from amongst Inspectors, Sub-Inspectors, Assistant Security Commissioner (Prosecution) and other ranks of executive branch. 2. It is stated that under Section 492(1) Cr.P.C. the Central Government appointed officers of R.P.F., who are employed in the prosecution unit as Public Prosecutors, for prosecuting the cases under the Railway Property (Unlawful Possession) Act, 1966 and they are designated as Public Prosecutors. A fresh notification was issued on 1.4.1974 by the Central Government in this regard, copy of which is attached as Annex. R.I. It is submitted that the entire supervision and control of the prosecution wing in the R.P.F. is under the executive branch of the RPF. The petitioners are members of the RPF as defined in Section 2 of the Railway Protection Force Act, 1957. The Parliament had enacted the law in the year 1957 for providing for the constitution and regularisation of the Force in Railway Protection Force for the better protection and security of the railway property, namely, the Railway Protection Force Act, 1957 (referred to hereinafter as `the Act of 1957'), which had come into force on 1.9.1959. The rules were also framed thereunder. Certain Regulations were also framed along with the Standing Orders in the year 1967. The Railway Property (Unlawful Possession) Act, 1966 was passed and was enforced in the year 1968 and a prosecution branch was established by the Railway Board for the proper working of the Act and the Rules. The rules were also framed thereunder. Certain Regulations were also framed along with the Standing Orders in the year 1967. The Railway Property (Unlawful Possession) Act, 1966 was passed and was enforced in the year 1968 and a prosecution branch was established by the Railway Board for the proper working of the Act and the Rules. Under Rule 16 of the Railway Protection Force Rules, 1987, three branches have been established i.e. executive, prosecution and fire service branch. The duties of the prosecution branch were to render legal opinion and to conduct and prosecute the cases registered and investigated under Railway Property (Unlawful Possession) Act, 1966 and Railway Act, in the courts. The duties of the prosecutors have been enumerated in `Schedule A appended to the writ petition which relate to rendering of legal assistance to the superior officers, to assist the members of the force and to guide them in their practical legal difficulties, to scrutinise the cases, to prepare case briefs, to conduct the cases in the court and to represent the railways, to render legal opinion to the superior officers, to prepare acquittal report, to supervise and distribute the work of officers and members of the force attached to his office or the courts and working under him, to function as a link between the court and the investigating staff etc. All the three branches were under the control of same officers in regard to appointment, confirmation, promotion, resignation, dismissal, removal and compulsory retirement etc. The highest hierarchy in the executive is Director General, an I.P.S. Officer and the other channel of executive officers are Chief Security Commissioner-cum- Inspector General RPF (50% IPS officers and 50% departmental officers), Dy. Chief Security Commissioner, Divisional Security Commissioner and Assistant Security Commissioner. By the Amendment Act of 1985, the affair of the administration was placed under the control of Inspector General and Additional Inspector General and Dy. Inspector General of the Force. Under Rule 18 of the Rules 1987 there was a provision of prosecution branch which provided that the prosecution branch on each zonal railway shall have a separate cadre of Inspectors and Sub- Inspectors who are appointed as Public Prosecutors and Assistant Public Prosecutors respectively and the other members of the branch shall be drawn from the executive branch. The Chief Security Commissioner could attach enrolled members of the Force working in the prosecution branch with the divisions. The Chief Security Commissioner could attach enrolled members of the Force working in the prosecution branch with the divisions. The relevant Rule 1.8 with its sub-clauses is reproduced as under: "18. Prosecution Branch: 18.1. The prosecution branch on each zonal railway shall be a separate cadre of Inspectors and Sub-Inspectors who are appointed as Public Prosecutors and Assistant Public Prosecutors respectively. 18.2. Other members of the branch shall he drawn from Executive branch where they shall retain their respective seniority of their parent cadre while posted in this branch. 18.3. The Chief Security Commissioner may attach enrolled members of the Force working in the Prosecution branch with the divisions. Control over the staff shall be shared functionally between the division and the Security Commissariat as may be ordered by the Chief Security Commissioner.' 3. Under a circular issued by the Railway Board on 2.7.1977, attached as Scheduled B, the control of the prosecution branch had been vested in the hands of executive. As a matter of fact, Rules 18, 22, 23, 24, 25, 26, 27, 28, 29, 132 and 133 of the R.P.F. Rules, 1987 provide the total control of the prosecution branch in the hands of the executive. 4. It is submitted on behalf of the petitioners that the Law Commission of India in its XIVth report on judicial administration while dealing with the subject of prosecution agency had made certain recommendations in para 12 of Chapter 35 of Vol. II of the report that the public prosecutor being the members of the Police Force and in view of the nature of duties they have to discharge in bringing a case to the Court, the Commission had observed that it was not possible for them to exhibit that degree of detachment which is necessary in a public prosecutor. The Law Commission observed that it is to be remembered that a belief does prevail amongst the police officers that their promotion in the department depends upon the number of convictions they are able to obtain as prosecuting officers and finally they only control or supervision of work of these prosecuting officer is exercised by the departmental officials. The Law Commission observed that it is to be remembered that a belief does prevail amongst the police officers that their promotion in the department depends upon the number of convictions they are able to obtain as prosecuting officers and finally they only control or supervision of work of these prosecuting officer is exercised by the departmental officials. Therefore, the Law Commission had suggested that as a first step towards improvement, the persecution agency should be completely separated from the police department and it was recommended that in every district a separate prosecution department may be constituted and placed under a Director of Public Prosecution and the entire prosecution machinery should be placed under his control. It was further recommended that the Director of Public Prosecution should be an independent official directly responsible to the State Government. The departmental machinery of the criminal justice, namely, the investigation department should thus be completely separated from each other. It was so recommended by the Law Commission. The above said recommendations of the Law Commission were accepted by the Central Government and necessary provisions were incorporated in the Criminal Procedure Code in Section 24 and 25 Cr.P.C. which are reproduced as under: "24(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. (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 not appoint a Public prosecute, 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). (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 purpose 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. (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 period during which such person has been in practice as an advocate.' 25.(1) The Central Government may appoint one or more Assistant Public Prosecutors for the purposes of conducting prosecution in the Court of Magistrate. (1A) The Central Government may appoint one or ,more Assistant Public' Prosecutors for the purposes of conducting any case or class of cases in the Courts of Magistrates. (1A) The Central Government may appoint one or ,more Assistant Public' Prosecutors for the purposes of conducting any case or class of cases in the Courts of Magistrates. (2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor. (3) Where no Assistant Public Prosecutor is available for the purpose 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 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. The petitioners further submit that the National Police Commission has also in its IVth report submitted to the Government of India, recommended the minimum qualification and experience for various officers' of prosecution agency. The recommendations read as under : "The minimum qualification and experience that may be prescribed for various categories of prosecutors are suggested below: 1. Assistant Public Prosecutor Gr. II Three years of experience at the Bar 2. Assistant Public Prosecutor Gr.I Five years practice at the Bar or five years experience as a judicial officer. 3. Additional Public Prosecutor Seven years practice at the Bar orseven years experience as a judicial officer. 4. Public Prosecutor -Do- 5. Dy. Director of Prosecution Seven years practice at the Bar or seven years experience as ajudicial officer of which at least three years should be as a Sessions Judge or three years experience as Additional Public Prosecutor or Public Prosecutor. 6. Director of Prosecutor and Additional Director of Prosecution Ten years practice at the Bar or ten years experience as a judicial officer of which at least five years should be as a Sessions Judge or three years experience as Deputy Director. 6. 6. Director of Prosecutor and Additional Director of Prosecution Ten years practice at the Bar or ten years experience as a judicial officer of which at least five years should be as a Sessions Judge or three years experience as Deputy Director. 6. It is no doubt true that time and again the importance of office of the Public Prosecutors has been high-lighted by the courts in various judgments as far back as in the year 1957 in State of Bihar v. Ram Naresh Pandey, ( AIR 1957 SC 389 ) , the Supreme Court had cautioned about the interference in the work done by the public prosecutors and it was held that the executive function of Public Prosecution should not be interfered as he is an officer of the court and is bound to assist the court. This view was followed time and again by various High Courts i.e. in AIR 1969 Cal. 321 by the Calcutta High Court; in AIR 1970 Ker. 158 (FB) by the Kerala High Court and by Allahabad High Court in 1976 Cr. L.J. 32. It has been time and again held and observed that the existence of an independent prosecution agency free from influence of the executive and free in the matter of appointment, promotion, disciplinary control etc. is an integral part of the independent judiciary. 7. It is stated that the public prosecutors in the R.P.F. are appointed from amongst the Sub-Inspectors and Inspectors of the Protection Force of the Railways, which is equivalent to the Police Force of the State. Their designations before appointment are Inspectors and Sub-Inspectors and they are under the control and supervision of the officers of the executive branch in all respects and all disciplinary action completely vest in the Director General, Chief Security Commission, Additional/Deputy Chief Security Commissioner, Divisional Security Commissioner, Dy. Assistant Security Commissioner etc. It is further stated that for effecting promotion to the prosecuting inspector in the railways, the criterion is normally based on the convictions obtained by the public prosecutors and day to day proceedings of the court, conviction, acquittals. All these matters are reported to the Divisional Security Commissioner who is some times not even a law graduate. Even though the RPF Rules provide for separate cadre of prosecution branch but they are retained in the cadre of Inspector and Sub- Inspectors. All these matters are reported to the Divisional Security Commissioner who is some times not even a law graduate. Even though the RPF Rules provide for separate cadre of prosecution branch but they are retained in the cadre of Inspector and Sub- Inspectors. It is stated that the prosecution branch is locally controlled by the executive officers such as Director General, RPF etc. as mentioned above, A letter No. 752-E/0/1-RPF dated 2.10.1977 was issued by the Northern Railway attached as Schedule B to the petition to the effect that the control over the prosecution branch staff deployed in the divisions on railway between the Divisional Officers of the RPF and the A.S.O.R. (Prosecution) were provided and it was decided that the control is to be shared functionally between the two officers i.e. Divisional Security Officers and Asstt. Security Officers (Prosecution). While the Divisional Officers would be responsible for the day to day professional work and routine personnel matters such as control of short leaver pay, increments etc. major items such as policy matters, advice in technical work, supervision over prosecutions, cadre control, promotions etc. will be controlled by the A.S.O.R. (Prosecution). 8. Attention has also been invited to the letter Annex. R.1 dated 16.4.1975 issued by the Government of India in the Ministry of Railways to all the General Managers, wherein, it has been decided by the Board that the Inspectors and Sub-Inspectors in the prosecution branch of the RPF should continue and that the State Governments concerned be approached by the Railway Administrations for issuance of notifications appointing such RPF Inspectors and Sub-Inspectors as Assistant Public Prosecutors for conducting respective district cases under Railway Property (Unlawful Possession) Act, 1966 in the courts of magistrates in terms of Sections 25(1) of the criminal Procedure Code,1973. 9. In nutshell the petitioners submit that the prosecutors are being appointed from the Force of the RPF which were equal to the Force of the Police in the State and all the control is in the hands of the executive and it is necessary that a separate independent agency be constituted dealing with the prosecution side, independently on the analogous line as being done by the State Government where a separate wing of Director of Prosecution has been constituted. 10. A reply has been filed by the respondents and it is admitted that the prosecution agencies were under the control of the executive branch. 10. A reply has been filed by the respondents and it is admitted that the prosecution agencies were under the control of the executive branch. It is stated that the total strength of the prosecution branch on all Indian Railways is 169 i.e. Inspector (Prosecution) Gr. I 75, Inspector (Prosecution) Gr.II 79 and Sub-Inspector (Prosecution) 15 and the strength of the prosecution branch in the Western Railway where the petitioners are presently working is 24 i.e. Inspector (Prosecution) Gr.I 10, Inspector (Prosecution) Gr. II 12 and Sub-Inspector (Prosecution) 2. It has been stated that on all the railways the total strength of the executive branch is 64852 and thus, it would not be administratively viable to have a separate and independent prosecution branch. It is stated that the petitioners do not come under judiciary, therefore, they need not be separated from the executive branch. It is admitted that the RPF is an armed force of the Union of India as provided under Section 3 of the RPF Act. Even though it is an armed force but does not come under the purview of the police officer/department and, therefore, neither the recommendations of the Law Commission or any other commission nor Sections 24 and 25 Cr.P.C. have any bearing or applicability to the facts of this case. 11. To support of the proposition, the petitioners vehemently rely on the case of S.B. Shahane & ors. v. The State of Maharashtra, (JT 1995(4) SC 245) , wherein it was held that a statutory obligations imposed under the provisions of Sections 24 and 25 Cr.P.C. on the State Government in unequivocal terms that it shall appoint one or more Assistant Public Prosecutors in every district exclusively for the purpose of conducting prosecutions in the courts of Magistrates in each district and the mandate of sub-section (2) of Section 25 Cr.P.C. makes police officers even ineligible as a rule for appointment as Assistant Public Prosecutors. No doubt an exception is made to that rule wherein the appointment of any other person as Assistant Public Prosecutor in the district for the purpose of any particular case may include a police officer, but still it is provided that police officer should not be below the rank of an Inspector who had not taken any part in the investigation into the offence with respect to which the accused has to be prosecuted. It was further held that such, Assistant Public Prosecutors are to remain independent of the police department or its officers entrusted with the duty of investigations of cases on which prosecutions are to be launched in courts, by constituting a separate cadre of such Assistant Public Prosecutors and it had to be made directly responsible to the Government for such department's work. It was further held that for freeing such Assistant Public Prosecutors from the administrative and disciplinary control of the police department to which they belonged earlier and consequently the action is required to be taken by the State Government which appoints such Assistant Public Prosecutors. The Supreme Court had given a direction to the Government of Maharashtra to constitute a separate cadre of Assistant Public Prosecutors either on district wise basis or on state wise basis by creating a separate prosecution department for them and making the head to be appointed for such department directly responsible to the State Government for their discipline and the conduct of all prosecutions by them before the Magistrates' courts and further free such prosecutors fully from the administrative and disciplinary control of the police department or its officers, if they still continue to be under such control. 12. The import of the Supreme Court judgment was that there should be creation of separate cadre of Assistant Public Prosecutors and Public Prosecutors and they should not be under the control of the police force and there should be a separate prosecution department for the conduct of all prosecutions by them before the Magistrates' courts and making the head to be appointed for such department who shall be responsible to the State Government. 13. In the present case, Rule 18 of the Rules provides that the prosecution branch on each zonal railway shall have a separate cadre of Inspectors and Sub-Inspectors who are appointed as Public Prosecutors and Assistant Public Prosecutors respectively and the other members of the branch shall be drawn from the executive branch where they shall retain their respective seniority of their parent cadre while posted in this branch. It is very clear from the reading of Rule 18 as reproduced above that the public Prosecutors and Assistant Public Prosecutors shall be part and parcel of the cadre of Inspectors and Sub-Inspectors which admittedly is an armed force wing of the RPF. It is very clear from the reading of Rule 18 as reproduced above that the public Prosecutors and Assistant Public Prosecutors shall be part and parcel of the cadre of Inspectors and Sub-Inspectors which admittedly is an armed force wing of the RPF. The apprehension that such Public Prosecutors and Assistant Public Prosecutors who are part of the cadre of Inspectors and Sub-Inspectors of the RPF may not act independently as a Public Prosecutor or Assistant Public Prosecutor can be true in the present case. In view of the judgment of the Supreme Court in the case of S.B. Shahane (supra) it is necessary that the cadre of Public Prosecutors and Assistant Public Prosecutors should be separated and be kept different from the cadre of Inspectors and Sub-Inspectors of RPF. 14. Yet in another case a Division Bench of the Punjab and Haryana High Court in Krishan Singh Kundu v. State of Haryana and others, (1989 Cri.L.J. 1309) had declared the appointment of a police officer as Director of Prosecution agency by the State Government to be illegal and violative of Sections 24 and 25 of the Cr.P.C. and it was held as under: "Applying the principles laid down by the Supreme Court and having regard to the legislative history and the object and purpose which was sought to be achieved by the enactment of section 25 (2), there can be no manner of doubt that if administrative and disciplinary control over the public prosecutors was entrusted to the officers of the police department, the very purpose for which section 25 was enacted would be frustrated. This position is not altered merely because the State Government is invested with the powers of dismiss or remove a public prosecutor. The State Government appoints Assistant Public Prosecutors and it can alone dismiss or remove them but that does not mean that the police officers to whom immediate disciplinary control has been entrusted will cease to have any right to exercise powers over the Assistant Public Prosecutors. Once the police officers are entrusted with those powers they will have jurisdiction to regulate and control the working of Assistant Public Prosecutors. It is difficult to accept the contention that even though the Assistant Public Prosecutors would be subordinate to police officers in administrative and disciplinary matters, they would be independent in discharge of their duties and functions. Once the police officers are entrusted with those powers they will have jurisdiction to regulate and control the working of Assistant Public Prosecutors. It is difficult to accept the contention that even though the Assistant Public Prosecutors would be subordinate to police officers in administrative and disciplinary matters, they would be independent in discharge of their duties and functions. Once they - are liable to answer to the Superintendent of Police and Inspector General of Police, in substance they are subordinate officers to them and they would be liable to carry out their orders and directions. The State Government while exercising its power of dismissal or removal is bound to be affected by the reports and opinion of those polio officers who have administrative and disciplinary control over the Public Prosecutors, therefore, the contention that since the ultimate control vests.: with the State Government the immediate control of police officers would not affect the independence of the prosecuting agency is fallacious. Similar contention was rejected by the Supreme Court in Nripendra Nath Bagch case, AIR 1966 SC 477 ." "In view of the above factual and legal position, we find that the action of the respondent State of Haryana, in appointing a police officer as Director of Prosecution, that is, in charge of the Prosecution Agency of the State, is wholly illegal and violative of the very letter and spirit of Sections 24 and 25 of the Code of,. Criminal Procedure. We, therefore, by issuing a writ of certiorari, quash the' appointment of the Director of Prosecution, Haryana, who happens to be an officer of the Police Department, and by issuing further a writ of Prohibition, we forthwith restrain the State of Haryana from permitting any police officer to occupy the office of the Director of Prosecution. By issuing a writ of mandamus, we command the State of Haryana to fill the post of Director of Prosecution only by appointing a seniority officer belong to the Prosecution Agency, having sufficient experience of actual working as a Public Prosecutor. This writ petition is allowed with costs, which are quantified as Rs. 1000/- ." 15. By issuing a writ of mandamus, we command the State of Haryana to fill the post of Director of Prosecution only by appointing a seniority officer belong to the Prosecution Agency, having sufficient experience of actual working as a Public Prosecutor. This writ petition is allowed with costs, which are quantified as Rs. 1000/- ." 15. In view of the number of authorities wherein it has been repeatedly stressed that independence of the prosecution is as important as the independence of judiciary and to give a free hand to the Public Prosecutors to assist the judicial courts as per law, it is necessary that the cadre of Assistant Public Prosecutors and Public Prosecutors should be separated from that of Inspectors and Sub-Inspectors of the RPF and no person from the police force of the railways should head the prosecution agency. Following the judgment of the Supreme Court (supra) and a Division Bench judgment of the Haryana High and in view of the discussion made above it is necessary and essential that a direction be issued to the respondents in the same terms as has been issued to the respondents in the same terms as has been issued by the Hon'ble Supreme Court in S.B. Shahane and by a Division Bench of the Haryana High Court in Krishan Singh Kundu's case. 16. For the reasons contained in the above two cases, the respondents are, therefore, directed to constitute a separate cadre of Public Prosecutor and Assistant Public Prosecutors etc. either on divisional basis or zonal basis by creating a separate prosecution department for them and making the head of the department to be appointed for such department directly responsible to the higher authorities of the Railways for their discipline and control and the conducting of all the prosecutions by them before the Magistrates' court and for free administrative and discipline control of the Railway Police Force and its officers. It is further directed that no person belonging to the armed wing of the RPF shall be appointed as the Head of the Department of the Prosecution Agency.For the reasons contained in the judgment of the Division Bench of the Punjab and Haryana High Court in the case of Krishan Singh Kundu, the writ petition is allowed as per the above observations. No orders as to costs.Writ Petition Allowed. *******