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2019 DIGILAW 167 (ORI)

Sanjay Kumar Das v. State of Odisha

2019-03-01

K.R.MOHAPATRA, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. In this writ petition, the petitioners who are practicing lawyers have challenged the Orissa Act 6 of 1995 amending provisions under Section 25 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C."). 2. Learned counsel for the petitioners states that the Code of Criminal Procedure (Orissa Amendment) Act, 1994 received the assent of the President on 10th March, 1995 and published in the Orissa Gazette vide notification on 13th April, 1995 (Annexure-1), whereby a proviso to subsection (2) of Section 25 has been inserted. Section 25 of Cr.P.C. along with Orissa Amendment is reproduced hereunder: "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 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. ORISSA AMENDMENT In Section 25, to Sub-section (2), the following proviso shall be 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" [Vide Orissa Act 6 of 1995 (w.e.f. 10.3.1995), Published in O.G.E. No.437 dated 13.4.1995] (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." 3. Learned counsel for the petitioners contended that the very observations of the Law Commission in its fourteenth report at para-3, which are part of this writ petition at Annexure-2, clearly states that the Public Prosecutors are not subordinate to police. Para-3 of the Law Commission Report which is relevant for our discussion, is reproduced hereunder: "3. There was a time when the Public Prosecutor was inclined to regard himself as the right-hand man of the Superintendent of the Police. Para-3 of the Law Commission Report which is relevant for our discussion, is reproduced hereunder: "3. There was a time when the Public Prosecutor was inclined to regard himself as the right-hand man of the Superintendent of the Police. Occasionally complaints are still heard that some Public Prosecutors function as though they are a part of the police machinery. But we believe that this tendency has now largely disappeared. Fairly senior members of the Bar are now appointed Public Prosecutors and it is unlikely, that they would sacrifice their independence and self-respect and conduct themselves as subordinate of the District Superintendent of Police." (emphasis supplied) 4. Learned counsel for the petitioners has also brought to our notice the averments made in paras-5 and 6 of the writ petition, which read as under: "5. That the rate of convictions in criminal cases having diminished gradually, the Police department who are the investigating agency became worried to secure the maximum conviction rate as the usual concept in the department is that the efficiency is gauged from the rate of conviction which is to a large extent fallacious. The major contributing factors in the fall of conviction rates being poor knowledge of law of the investigating officers, witnesses turning hostile to the prosecution in the Courts, being gained over by accused persons, general fall in the moral standard of the public to speak the truth in the courts general apathy of the public to become witnesses in a criminal case to avoid the harassment meted out to them in the police station at the investigation stage and on account of repeated attendance in the Court at the cost of their valuable time and wages. But without taking these parameters for securing higher convictions into consideration, the State came out with the impugned amendment bringing the Assistant Public Prosecutors under the control of the Police Department. The issue/cause of grievance here is not to choose, the controlling authority in between the judiciary and the Police Department but the fallibility of the commitment to which all the advocates in general are bound i.e. the effective administration of law in securing conviction as well to secure justice to the innocents. Thus the A.P.Ps. The issue/cause of grievance here is not to choose, the controlling authority in between the judiciary and the Police Department but the fallibility of the commitment to which all the advocates in general are bound i.e. the effective administration of law in securing conviction as well to secure justice to the innocents. Thus the A.P.Ps. who share one side of the judicial system to prove the offence of the accused being trained to pursue the case with all sincerity and required detachment, the discipline which comes out of long practice in the Bar, for an unbiased proceeding, is being foraged by the pressure of the State in making the Police control, the same only with a view to enhancing convictions by any means. The purpose of criminal jurisprudence being "the means to achieve the end has to be sacrosanct", but this is going to be reversed to achieve better and, the means adopted are pressure and bias. In Section 25 of the Code of Criminal Procedure, 1973, to sub-section (2), the following proviso shall be 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" Copy of the Gazette notification dated 13.04.95 is Annexure-1. 6. That the Law Commission of India had also taken this aspect of prosecution wherein in their fourteenth report, they have envisaged a total separation of prosecuting agency should be separated from and made independent of its administrative counterpart that is the Police department and that it should not only be responsible for the conduct of the prosecution in the court but it should also have the liberty of scrutinizing the evidence particularly in serious and important cases before the case is actually filed in Court. Such a measure would ensure that the evidence in support of a case is carefully examined by a properly qualified authority before a case is instituted so as to justify the expenditure of public time and money on it. It would also ensure that all the evidence needed for the establishment of the guilt of the accused has been obtained. The actual conduct of the prosecution by such an independent agency will result in a fairer and more impartial approach by the prosecutor to the case. The aforesaid suggestion of the Law Commission was based on indentifying the limitations of a Police prosecutor. The actual conduct of the prosecution by such an independent agency will result in a fairer and more impartial approach by the prosecutor to the case. The aforesaid suggestion of the Law Commission was based on indentifying the limitations of a Police prosecutor. A Police Officer is generally one sided in his approach. The Police department is charged with the duty of the maintenance of Law and order and for the responsibility for the prevention and detection of offences. It is naturally anxious to secure convictions. Not infrequently, relevant witnesses are kept back by the prosecution. Intimidation of defence witnesses is also not unusual. These are the result of an excess of zeal by the Police Officers and a want of a realization of their true function. But, if the purity of judicial administration is to be maintained, such conduct must be sternly checked. It is also told of Police Officers of the lower grade in charge of the prosecution deliberating weakening their cases out of corrupt motives. It is obvious that by the very fact of their being members of the police force and the nature of the duties they have to discharge in bringing a case to Court, it is not possible for them to exhibit that degree of detachment which is necessary in a prosecutor. It is to be remembered that a belief prevails among police officers that their promotion in the department depends upon the number of convictions they are able to obtain as prosecuting officers. Copy of the 14th report of the Law Commission of India is submitted as Annexure-2." 5. Learned counsel for the petitioners has also contended that the proviso inserted in sub-Section (2) of Section 25 is violative of the very independence of Public Prosecutor. It has also been pointed out that the impugned provision is violative of Articles 14 and 16 of the Constitution. Therefore, he contended that with a view to conduct a fair trial the Public Prosecutors/APPs are required to be independent and should not be under the administrative control of police administration. 6. It has also been pointed out that the impugned provision is violative of Articles 14 and 16 of the Constitution. Therefore, he contended that with a view to conduct a fair trial the Public Prosecutors/APPs are required to be independent and should not be under the administrative control of police administration. 6. Learned counsel for the petitioners lastly submitted that the issue involved in this writ petition is now squarely covered by a decision of the Hon'ble Supreme Court in the case of S.B. Shahane and others vs. State of Maharashtra and another, (1995) Supp3 SCC 37 : AIR 1995 SC 1628 , wherein at paras-11, 12, 13, 14 and 15, it is held as under: "11. The independence of Assistant Public Prosecutors sought to be achieved under the Scheme of the provisions in Section 25 of the Code is also sought to be achieved in respect of Public Prosecutors, becomes obvious from the scheme of the provisions in Section 24 of the Code which runs, thus: Section 24 of the Code: "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). (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 or 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). (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 subsection (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." 12. When Assistant Public Prosecutors are appointed under Section 25 of the Code for conducting prosecutions in courts of Magistrates in a District fairly and impartially, separating them from the police officers of the Police Department and freeing them from the administrative or disciplinary control of officers of the Police Department, are the inevitable consequential actions required to be taken by the State Government which appoints such Assistant Public Prosecutors, in as much as, taking of such actions are statutory obligations impliedly imposed upon it under sub-section (3) thereof. When such consequential actions are taken by the State Government in respect of large number of persons appointed as Assistant Public Prosecutors, it becomes necessary for putting them on a separate cadre of Assistant Public Prosecutors and creating a separate Prosecution Department as suggested by the Law Commission in its Report making those Assistant Public Prosecutors subject to control of their superiors in the hierarchy in matters of administration and discipline, with the head of such Prosecution Department being made directly responsible to the State Government in respect of conduct of prosecutions by the Assistant Public Prosecutors of his department. Since the aforesaid notification dated 1st April, 1974 issued by the Government of Maharashtra under Section 25 of the Code merely appoints the appellants and others, as mentioned in Schedule to the notification, the police prosecutors of the Police Department as Assistant Public Prosecutors without freeing such Assistant Public Prosecutors from the administrative and disciplinary control of the Police Department to which they belonged earlier, and without creating a separate department of prosecution for them with the head of that department or departments being made directly responsible to the Government, the Government of Maharashtra has failed to discharge its statutory obligation impliedly imposed upon it in that regard under sub-section (3) of Section 25 of the Code. We, therefore, answer the question, in the negative by holding that the Government of Maharashtra which made the appointments of Assistant Public Prosecutors by issue of notification dated 1st April, 1974 under Section 25 of the Code, could not have allowed the Assistant Public Prosecutors appointed thereunder to continue as personnel of its Police Department and to continue to function under the control of the head of Police Department, the Inspector General of police. 13. Since the High Court has failed to hold that there was an obligation on the part of the Government of Maharashtra, which issued the aforesaid notification under Section 25 of the Code, appointing officers or prosecutors of the Police Department as Assistant Public Prosecutors to free them from the administrative and disciplinary control of the Police Department and its officers, by creating a separate cadre and department for them, as was sought in the application of the appellants filed before the High Court, the judgment of the High Court under appeal becomes unsustainable. 14. 14. No doubt, when the scheme of the provision in Section 25 of the Code as also the scheme contained in Section 24 of the Code are seen, a police prosecutor cannot even become eligible for being appointed as Assistant Public Prosecutor on regular basis, but that question has since not been raised for our consideration in this appeal and further since the appointments of the appellants and other similarly situated police prosecutors as Assistant Public Prosecutors are made under the notification issued as far back as in the year 1974, we refrain from expressing our view on that question at this distance of time. 15. In the result, we allow this appeal, set aside the judgment of the High Court under appeal, make the rule nisi issued on the application of the appellants before the High Court absolute and direct 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. No costs." 7. It is submitted that in the case of S.B. Shahane (supra), the Hon'ble Supreme Court elaborately discussing the scope and ambit of Sections 24 and 25 of Cr.P.C., has clearly held that the public prosecutors are not required to be kept under the control of the police administration. 8. Mr. Mohapatra, learned Government Advocate for the opposite parties, however, has tried to justify the amendment citing the example of Uttar Pradesh and submitted that the pari materia provision are still in vogue in the State of Uttar Pradesh. The opposite parties have also drawn our attention to Section 25-A, Cr.P.C. and contended that in view of Section 25-A of Cr.P.C. the amendment in question has to be read down instead of declaring it ultra vires. He further contended that the APPs are being appointed in Odisha under two special statutes namely, (1) State Prosecution Service Rules, 1997 and (2) Law Officers' Rules, 1971 (Vol.10.7775). He further contended that the APPs are being appointed in Odisha under two special statutes namely, (1) State Prosecution Service Rules, 1997 and (2) Law Officers' Rules, 1971 (Vol.10.7775). It has now been contended that the APP are directly appointed by the Odisha Public Service Commission (OPSC) under 1997 Rules, and by the Law Department under the provisions of 1971 Rules. They are under the scanner of Director of Prosecution. As such, the prayer made in the writ petition has essentially become academic. 9. We have heard learned counsel for the petitioner as well as learned counsel for the opposite parties. It appears that Section 25-A was not in existence on 10th March, 1995 when the impugned Orissa Amendment brought into the statute book. Section 25 A has been brought into effect from 23rd June, 2006. As such, the impugned amendment necessitated reconsideration after Section 25-A brought into the Cr.P.C. 10. The language of the impugned amendment Act is very clear that the APP will be under the administrative control of police officer. The very object of Section 25-A, Cr.P.C. will be frustrated if proviso to Section 25(2) is not reconsidered in view of the recommendation in the fourteenth report of the Law Commission as well as the ratio decided in S.B. Shahane (supra). 11. In that view of the matter, the impugned amendment i.e. proviso to Section 25(2), Cr.P.C. is contrary to the very object of the principal section as well as the provision under Section 25-A of Cr.P.C. Accordingly, the same is required to be struck down and it is struck down. The Public Prosecutors including Addl. Public Prosecutors and Asst. Public Prosecutors may at best be under the control of the Director of Prosecution but not under the police officer. 12. The writ petition stands disposed of to the extent indicated above. All connected Misc. Cases/I.A. are disposed of accordingly.