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2017 DIGILAW 312 (GAU)

Pallavi Phukan v. State of Assam

2017-03-14

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT : Ajit Singh, J. In the present Public Interest Litigation, the main prayer of the petitioner is for a direction against Respondent Nos.1 and 2 to appoint Director of Prosecution as provided under Section 25 A of the Code of Criminal Procedure, 1973 (in short “Code”). Section 25 A of the Code reads as under:- “25A. 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 the section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor.” 2. It was on the recommendation made by the Law Commission in its 14th Report on Judicial Administration to separate Prosecuting Agency from Police Department, the above quoted 25-A was introduced in the Code by amendment which came into force w.e.f. 23rd June, 2005. It was on the recommendation made by the Law Commission in its 14th Report on Judicial Administration to separate Prosecuting Agency from Police Department, the above quoted 25-A was introduced in the Code by amendment which came into force w.e.f. 23rd June, 2005. Admittedly, there is a Directorate of Prosecution in the State of Assam, but it is reportedly under the Police Department. Although this petition is pending since 2014, and despite decision of the Cabinet in its meeting held on 30.6.2015 for creation of Directorate of Prosecution, no effective steps have been taken till this date. On 16.11.2016 also a statement was made in the Court by learned Advocate General, Assam regarding creation of Directorate of Prosecution as well as for notification of Assam Prosecution Service Rules, 2010 within 3 weeks, but nothing substantial is reported to have been done. 3. This being the situation of the case, we are left with no option but to direct the State Government particularly Respondent Nos.1 and 2 to establish a Directorate of Prosecution consisting of Director of Prosecution and as many as Deputy Director of Prosecution as deemed proper without any further delay but not later than 3 months from today. 4. A copy of the order be supplied to the learned Advocate General, Assam, for information and compliance. 5. With the above direction, the petition is allowed.