Supreme Court of India
JAYENDRA SARASWATI SWAMIGAL @ SUBRAMANIAMversusSTATE OF TAMIL NADU
- Citation
- 2008 INSC 852
- Decided
- 22 July 2008
- Disposal
- Case Allowed
- Bench
- K G BALAKRISHNAN
Holding
After a criminal case is transferred under Section 406 of the CrPC, the power to appoint the Public Prosecutor or Special Public Prosecutor vests in the government of the State where the trial is to be conducted, unless the transfer order expressly directs otherwise.
Summary
The appellant, an accused in a criminal case registered in Tamil Nadu, obtained a transfer of the case to the Principal District and Sessions Court in Pondicherry under Section 406 of the CrPC, alleging bias by the Tamil Nadu prosecution. After transfer, the Tamil Nadu government appointed a Special Public Prosecutor and four Additional Special Public Prosecutors to conduct the trial in Pondicherry, which the appellant challenged on the ground that only the Pondicherry government could appoint prosecutors for a case pending in its courts. The Supreme Court examined the scheme of Section 24 of the CrPC, which vests the power to appoint public prosecutors in the state where the trial is being held, and held that the transferor state loses jurisdiction to appoint prosecutors once a case is transferred. It further clarified that the Supreme Court may, in a transfer order, direct which state should appoint the prosecutor, but in the absence of such a direction the provisions of Section 24 apply. The Court also noted that the expenses of the trial remain the responsibility of the state where the offence was registered (Tamil Nadu). Consequently, the Court set aside the High Court’s order and directed that Pondicherry appoint its own public prosecutor, while Tamil Nadu bears the trial expenses. The appeal was allowed.
Issues considered
- The power to appoint a Public Prosecutor or Special Public Prosecutor after a criminal case is transferred under Section 406 of the CrPC.
- Whether the transferor State (Tamil Nadu) retains the right to appoint prosecutors for a case pending in the transferee State (Pondicherry).
- The effect of a transfer order that does not expressly direct which State should appoint the prosecutor.
- Responsibility for payment of prosecution expenses after transfer of a case.
Legislation cited
- Code of Criminal Procedure, 1973s. 10, s. 11, s. 12, s. 16, s. 17, s. 18, s. 20, s. 225, s. 24, s. 2(u), s. 321, s. 406, s. 6, s. 7, s. 9
Subjects
transfer of criminal casepublic prosecutor appointmentSection 24 CrPCSection 406 CrPCjurisdictionspecial public prosecutorinter‑state transferprosecution expenses
Judgment
[2008] 11 S.C.R. 161
JAYENDRA SARASWATI SWAMIGAL A
@ SUBRAMANIAM
v.
STATE OF TAMIL NADU
(Criminal Appeal No. 1132 of 2008)
B
JULY 22, 2008
[K.G. BALAKRISHNAN, CJI, R.V. RAVEENDRAN AND
DR. MUKUNDAKAM SHARMA, J~
Code of Criminal Procedure, 1973: c
s. 24 rlw s. 406 -Appointment of Public Prosecutor to con-
duct a transferred case - HELD: It is the State to which the
case has been transferred which has the power to appoint
Public Prosecutor/Additional Public Prosecutor/ Special Pub-
lie Prosecutor to conduct prosecution of the case - Transferee D
State can appoint any counsel as Special Public Prosecutor,
who has requisite qualifications as prescribed under sub-sec-
tion(B) of s.24 whether he is a lawyer in that State or in any
other State - Expenses for conducting the trial and fees of
Public Prosecutors are to be borne by the State wherein crimi- E
nal case was registered - The two States may undertake con-
sultations with each other and may take an appropriate deci-
sion in this regard.
s. 406 rlw s. 24- Power of Supreme Court, while transfer-
F
ring a case, regarding appointment of Public Prosecutor -
..; f-!ELD: The Court while passing order of transfer of a case,
can, irrespective of the provisions contained in s.24, give an
appropriate direction as to which State should appoint Public
Prosecutor to conduct that case - In case no such direction is
given, provisions of s.24 would prevail. G
The appellant was one of the accused in a case pend-
ing before a Court of Session in the State of Tamil Nadu.
""" At his instance the said case was transferred by the Su-
161 H
162 SUPREME COURT REPORTS [2008] 11 S.C.R.
;-
A """'
preme Court1 to the Court of the Principal District and
Sessions Judge, Pondicherry. The State of Tamil Nadu
'
appointed one Special Public Prosecutor and four Addi- I
1--
tional Special Public Prosecutors to conduct the trial of r-
I
the said case. The appellant filed an application before
B the trial court challenging the said appointments on the
ground that the Public Prosecutors appointed by the
,. r '
State of Tamil Nadu had no right to conduct prosecution
of the case pending before a court outside the State of
Tamil Nadu. The appellant having remained unsuccess-
c fut before the trial court, as also the High Court, filed the
instant appeal.
~
Allowing the appeal, the Court
HELD: 1.1 As is evident from various provisions of ,-
the Code of Criminal Procedure, 1973, the State Govern-
"\
D
ment of Tamil Nadu can only appoint a Public Prosecutor
or an Additional Public Prosecutor or a Special Public ·'
Prosecutor under Section 24 of the Code to conduct the
prosecution and appeal, or 9ther proceeding in any crimi-
E. nal courts in respect of any case pending before the courts
of Tamil Nadu; and in respect of any case pending before
the Courts at Pondicherry, the State Government of
Pondicherry is the appropriate Government to appoint
Public Prosecutor, Additional Public Prosecutor or Spe-
cial Public Prosecutor. Once the case is transferred as
F per Section 406 of the Code, to another State, the transf-
....
eror State no longer has control over the prosecution to
be conducted in a court situated in a different State to
which the case has been transferred. It is the prerogative
of the State Government to appoint a Public Prosecutor
G to conduct the case which is pending in the sessions di-
vision of that State. [para 7 and 10] [169-8,C, 170-E,F,G]
1.2 The purpose of transfer of a criminal case from >-
one State to another is to ensure fair trial to the accused.
H In the instant case, the main ground on which the trans-
AYENDRA SARASWATI SWAMIGAL @SUBRAMANIAM 163
v. STATE OF TAMIL NADU
.~
fer of the case was ordered from the Court of Session in A
Tamil Nadu to the Court of the Principal District and Ses-
sions Judge, Pondicherry, was that the action of the pros-
ecution agency had created a reasonable apprehension
in the mind of the accused-appellant that he would not get
justice if the trial was held·in the State of Tamil Nadu. For B
~ proper conduct of a criminal case the Public Prosecuto~
plays a. vital role, as is indicated by the provisions of sec-
tions 225 and 321 of the Code. [para 9] [170-A,B,C, D,E]
1.3 This Court while passing order of transfer can,
irrespective of the provisions contained in Section 24 of
c
the Code, give an appropriate direction as to which State
should appoint the Public Prosecutor to conduct that
particular case. Such orders are passed having regard to
the circumstances of the case and the grounds on which
the transfer has been effected. But, so far as the instant D
case is concerned, nothing was stated in the order of
transfer. The provisions contained in Section 24 of the
Code shall prevail and it is for the appropriate State Gov-
ernment within whose area the trial is conducted to ap-
point Public Prosecutor under sub-sections (3) to (7) of E
Section 24. [para 7] [169-C,D,E]
2.1 Sub-section (8) of Section 24 of the Code is a spe-
cial provision regarding the appointment of Special Pub-
lie Prosecutor. This power can be exercised by the Cen-
tral Government and the State Government for the pur-
F
~· pose of any case or class of cases. These powers are
also to be exercised by the State Government of the trans-
feree court where the case is pending. Of course, the
transferee State can appoint any person having qualifi-
cation prescribed under sub-section (8) of Section 24 of G
the Code, whether he is a lawyer in that State or any other
..., State. [para 8 and 11] [169-E,F,G 170-G, 171-A]
2.2 As it is a criminal case registered by the State of
Tamil Nadu the expenses for conducting the trial are to H
164 SUPREME COURT REPORTS [2008] 11 S.C.R.
A be borne by the State of Tamil Nadu. The Advocate fees
payable to the Public Prosecutor, Additional Public Pros-
ecutor or Special Public Prosecutor by the State of
Pondicherry shall be borne by the State of Tamil Nadu ~
and the Home Departments of the two States may under-
B take consultations with each other and an appropriate
~
decision may be taken by the authorities concerned in
this regard. [para 11] [171-A,B]
Sri Jayendra Saraswathi Swamigal (//}, TN. V. State of
Tamil Nadu (2005) 4 Supp. SCR 556=(2005) 8 SCC 771
c
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
NO. 1132 of 2008
From the Judgment and final Order dated 7/2/2006 of the
High Court of Judicature at Maoras in Crl. R.C. No. 140/2006
D and Crl. M.P. Nos. 764 and 765 of 2006
J.
U.U. Lalit, P.S. Narasimha, Krishna Kumar and Pradeep
Kar. for the Appellant.
Altaf Ahmed, T.L.V. Lyer (N.P.) V.G. Pragasam, S.J.
E Aristotle, Prabhu Ramasubramanian, S.S. Khanduja and Yash
Pal Dhingra for the Respondent.
The Judgment of the Court was delivered by
K.G. BALAKRISHNAN, CJI. : 1. Leave granted.
F
2. The appellant herein is one of the accused in a Crime +
registered by Vishnu Kanchi Police Station at Tamil Nadu. The
police after investigation filed final report on 21-1-2005 and the
case was committed to the Principal Sessions Judge-
Chinglepet and was registered as Session Case No. 197/05. ~
G The appellant then moved this Court under Section 406 of Code
of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.)
seeking transfer of the case to any other State. The appellant ).
alleged in the Transfer Petition that he was being unnecessarily
harassed by the State of Tamil Nadu and that he would not get a
H fair trial. This Court in SR/ JAYENDRA SARASWATHI
AYENDRA SARASWATI SWAMIGAL @SUBRAMANIAM 165
v. STATE OF TAMIL NADU [K.G. BALAKRISHNAN, CJI.]
SWAM/GAL (//), TN. v. STATE OF TAMIL NADU (2005) 8 A
sec 771 considered the matter in detail and reached the fol-
lowing conclusion in paragraph 24 of the judgment :-
"Taking into consideration the entire facts and
circumstances of the case and the material on record, we
B
have no hesitation in holding that the petitioner and other
co-accused of the case have a reasonable apprehension
that they will not get justice in the State of Tamil Nadu. We
would like to clarify here that we are casting no reflection
on the district judiciary in the State of Tamil Nadu. But it is
the actions of the prosecuting agency and the State
c
machinery, which are responsible for creating a
reasonable apprehension in the mind of the petitioner and
other co-accused that they will not get justice if the trial is
held in any place inside the State of Tamil Nadu. We are,
therefore, of the opinion that the interest of justice requires D
that the trial may be transferred to a place outside the
State of Tamil Nadu."
Thus, the Sessions Case No. 197/200~, pending before
the Principal Sessions Judge, Chinglepet, was transferred to
E
the court of Principal District and Sessions Judge, Pondicherry
and was numbered as Sessions Case 94/2005.
3. The Home Department of the State of Tamil Nadu on
25-11-2005 appointed one Special Public Prosecutor and four
Additional Special Public Prosecutors for conducting the trial F
of the Sessions case pending before the Principal District and
-+
Sessions Judge, Pondicherry. The appellant herein filed a peti-
tion before the Sessions court challenging the appointment of
the Public Prosecutors by the State of Tamil Na du and contended
that the Special Public Prosecutor appointed by State of Tamil G
Nadu has no right to conduct the prosecution. of the Sessions
case pending before the Pondicherry court, outside the State
~ of Tamil Nadu. The Principal Sessions Judge, Pondicherry, by
an order dated 25-1-2006, held that under Section 24 of the
Cr.P.C. the State of Tamil Nadu has the power to appoint the H
166 SUPREME COURT REPORTS [2008) 11 S.C.R.
A Special Public Prosecutor for conducting the trial of the case
and the State had not lost its right to appoint the· Public Pros-
ecutor, merely on account of transfer of the case to the Ses-
sions court at Pondicherry. The court also noticed the fact that
this Court, while transferring the Sessions case at Pondicherry,
B had not specifically directed th~t the State of Tamil Nadu shall
not appoint a Public Prosecutor to conduct the case.
4. The appellant preferred a Revision Petition challenging
the order passed by the Principal District and Sessions Judge,
C Pondicherry. The High Court of Madras confirmed the decision
of the Sessions court and held that the offence had been com-
mitted within the State of Tamil Nadu, the investigation was done
by the Tamil Nadu police and the committal proceedings had
also taken place in the court at Tamil Nadu and hence the Gov-
ernment of Tamil Nadu had the domain over that sessions case
D and unless this Court, considering the special circumstances,
directs in a particular case, appointment of a Special Public .I•
Prosecutor by the State to which the case has been transferred
in the interest of justice, the transferee State cannot normally
venture to appoint any Special Public Prosecutor to handle the
E case which it received as per the orders of this Court. The High
Court was also of the view that it would be unjust to direct the
transferee State Government to open the purse stings to meet
out the expenditure for the appointment of a Special Public Pros-
ecutor.
F
5. The appellant has challenged the order passed by the
Sessions court as well as the High Court by which the Special
Public Prosecutor and Additional Special Public Prosecutors
were appointed to conduct the trial of the case.
G 6. We heard the counsel for the appellant as well as coun-
sel for the State of Tamil Nadu. The counsel for the appellant
contended that the appointmunt of the Public Prosecutor is to
be made by the State as per the procedure prescribed under ~-
Section 24 of Cr.P.C. It is pointed out that the Government of
H Pondicherr; has total authority to appoint a Public Prosecutor
AYENDRA SARASWATI SWAMIGAL@SUBRAMANIAM 167
v. STATE OF TAMIL NADU [K.G. BALAKRISHNAN, CJI.]
or Additional Prosecutor or a Special Public Prosecutor to con- A
duct a criminal case pending before any of the Sessions divi-
sions of the State of Pondicherry which was formerly a Union
Territory, now being a separate State and the Tamil Nadu Gov-
ernment has no right to appoint any prosecutor - either a Public
Prosecutor or a Special Public Prosecutor - to conduct a trial of B
a case pending before the Principal Sessions Judge,
Pondicherry. The counsel for the respondent on the other hand
contended that this court while ordering the case transfer to the
State of Pondicherry had not specifically directed that trial should
be conducted by the prosecutor appointed by the Government c
of Pondicherry and therefore, State of Tamil Nadu has got the
authority to appoint a Public Prosecutor to conduct the trial of
such a case. It was argued that the incident had taken place in
the State of Tamil Nadu and that being an offence committed
against the State of Tamil Nadu that State alone could appoint o
the Public Prosecutor to conduct the prosecution of the case
j
unless specifically otherwise directed by this Court while trans-
ferring the case under Section 406 of the Cr.P.C.
7. For the purpose of understanding the scheme of ap-
pointment of a Public Prosecutor to conduct the trial it is neces- E
sary to look into various provisions of Chapter II of the Cr. P.C.
Section 6 of Cr.P.C. prescribes that.in every State there shall
be following classes of criminal courts : Courts of Sessions,
Judicial Magistrate of the First Class (and in any Metropolitan
area, Metropolitan Magistrate), the Judicial Magistrate of the F
second class and Executive Magistrate. Section 7(1) prescribes
that every State shall have a sessions division or shall consist
of several sessions divisions and every sessions division shall,
for the purposes of the Code, be a district or consist of dis-
tricts. It also prescribes that every metropolitan area shall be a G
separate sessions division and district. Sub-section (2) pro-
vides that the State may alter the limits of such division and
districts after consultation with the High Court. Section 9 re-
quires that the State Government shall establish a court of ses-
sions for every sessions division, and every court of sessions H
168 SUPREME COURT REPORTS · [2008] 11 S.C.R.
A shall be presided over by a Judge to be appointed by the High
Court. Section 10 deals with the constitution of the Assistant Ses-
sions Judge and Section 11 deals with the constitution of the
court of Judicial Magistrates. Section 12 deals with the appoint-
ment of Chief Judicial Magistrate and Additional Chief Judicial
B Magistrate. Sections 16, 17 and 18 deal with the constitution of
the various Metropolitan Magistrates' courts and Section 20 deals
with appointment of Executive Magistrate. Section 24 deals with
the appointment of Public Prosecutors. "Public Prosecutor" has
been defined under Section 2(u) of the Cr.P.C. :-
c ."Public Prosecutor" means any person appointed under
Section 24, and includes any person acting under the
directions of a Public Prosecutor."
Section 24 (1) deals with the appointment of Public Pros-
D ecutor or Additional Public Prosecutor for conducting any pros- .
ecution, appeal or other proceedings on behalf of the Central
Government or State Government in the High Court. Sub-sec-
tion (3) of Section 24 requires that for every district, the State
Government shall appoint a Public Prosecutor and one or more
E Additional Public Prosecutors. Sub-sections (3) to (7) deal with
appointment of Public Prosecutor, Additional Public Prosecu-
tor for the district. The power of appointment is given to the
State Government and such appointment should be from a panel
of names prepared by the District Magistrate in consultation
with the Sessions Judge. Sub-section (7) of Section 24 pro-
F vides that a person shall be eligible to be appointed as a Pub-
lic Prosecutor or as 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. A conjoint reading of all these provisions would
G clearly show that the State Government has the power of ap-
pointment of Public Prosecutor or Additional Public Prosecutor
for each district or court of Sessions in the sessions division in
the State to conduct any prosecution, appeal or other proceed-
ings pending before the courts in that State. The power of the
H State Government to appoint a Public Prosecutor and Addi-
AYENDRA SARASWATI SWAMIGAL@SUBRAMANIAM 169
v. STATE OF TAMIL NADU [K.G. BALAKRISHNAN, CJI.]
tional Public Prosecutor would extend only for conducting any A
prosecution, appeal or other proceedings in the courts within
the State. As per the procedure prescribed under Section 24,
the State of Tamil Nadu can appoint a Public Prosecutor to con-
duct criminal cases in any of the court in that State. Such pow-
ers cannot be exercised by the State Government to conduct B
cases in any other State. Once the case is transferred as per
Section 406 of the Cr.P.C. to another State, the transferor State
no longer has control over the prosecution to be conducted in a
court situated in a different State to which the case has been
transferred. It is the prerogative of the State Government to ap- c
point a Public Prosecutor to conduct the case which is pending
in the sessions division of that State. Of course, this Court while
passing order of transfer, can give an appropriate direction as
to which State should appoint the Public Prosecutor to conduct
that particular case. Such orders are passed having regard to D
the circumstances of the case and the grounds on which the
l
transfer has been effected. This Court can certainly give direc-
tions irrespective of the provisions contained in Section 24 of
the Cr.P.C. But so far as this case is concerned, nothing had
been stated in the order of the transfer. The provisions con- E
tained in the Section 24 of Cr.P.C. shall prevail and it is for the
appropriate State Government within whose area the trial is con-
ducted to appoint Public Prosecutor under sub-sections (3) to
(7) of Section 24 of the Cr.P.C.
8. Sub-section (8) of Section 24 of Cr.P.C. is a special F
provision regarding the appointment of a Special Prosecutor.
This power can be exercised by the Central Government and
the State Government for the purpose of any case or class of
cases, and a person who has been in practice as an advocate
for not less than ten years may be appointed as a Special Pub- G
lie Prosecutor. These powers are also to be exercised by the
State Government of the transferee court where the sessions
case is pending. Of course, the transferee State can appoint
any person having qualification prescribed under sub-$ection
(8) of Section 24 of the Cr.P.C.
H
170 SUPREME COURT REPORTS [2008] 11 S.C.R.
A 9. The purpose of transfer of the criminal case from one
State to arJother is to ensu~e fair trial to the accused. In this
case, the main ground on which the transfer of the sessions
case was ordered from the Sessions court of Chinglepet in Tamil
Nadu to the Principal District and Sessions Judge, Pondicherry,
B was that the action of the prosecution agency had created a
'
I-
reasonable apprehension in the mind of the accused-appellant
that he would not get justice .if the trial was held in the State of
Tamil Nadu. The Public Prosecutor plays a key role during trail
of a Session$ case. Though the Sessions Judge has got a su-
e pervising control over the entire trial of th.e case, it is the Public
Prosecutor who decides who are the witnesses to be exam-
ined on the side ofthe prosecution and which witness !s to be
given up, or which witness is to be recalled for further examina-
tion. For proper conduct of a criminal ca.se the Public Prosecu-
D tor plays a vital role. It may also be noticed herein that under
Section 225 of the Cr.P.C. during every trial before the court of
Sessions, the prosecution shall be conducted by the Public
Prosecµtor and as regards. withdrawal also, t~e P.ublic Pros-
ecutor in charge ofthe case has to make the application for
E withdrawal of prosecution as ·per Section 321 of the Cr. P. C. In
case of acquittal bf the accused the State Government may di-
rect the Public Prosecutor to file an appeal.
10. As is· evident fr.om various provisions of the Cr.P.C.,
the State Government of Tamil Nadu can only appoint a Public
F Prosecutor or an Additional Public Prosecutor or a Special
Public Prosecutor under Section·24 of the Cr:P.C. to conduct
the pro~ecution and ;::ippeal; orcother proceeding in any crimi-
nal courts in respect of any case pending before the courts of
Tamil Nadu and in respect of any case pending before the
G Courts at Pondicherry, the State Government of Pondicherry is
the appropriate Government to appoint Public Prosecutor, Ad-
ditional Public Prosecutor or Special Public Prosecutor.
11. However, we make it clear that the State of Pondicherry
can appoint any counsel as Public Prosecutor having requisite
H qualifications as prescribed under sub-section (8) of Section
AYENDRA SARASWATI SWAMIGAL@SUBRAMANIAM 171
v. STATE OF TAMIL NADU [K.G. BALAKRISHNAN, CJI.]
24 of Cr.P.C. whether he is a lawyer in the State of Pondicherry A
or any other State. As it is a criminal case registered by the
State of Tamil Nadu the expenses for conducting the trial are to
be borne by the State of Tamil Nadu. The Advocate fees pay-
able to the Public Prosecutor, Additional Public Prosecutor or
· Special Public Prosecutor by the State of Pondicherry shall be B
borne by the State of Tamil Nadu and the Home Departments
of the two States may undertake consultations with each other
and an appropriate decision may be taken by the concerned
authorities in this regard.
12. We set aside the impugned order passed by the High C
Court and direct that the State of Pondicherry may continue with
the prosecution of the case in accordance with the law and the
Public Prosecutor or Special Public Prosecutor may be ap-
pointed by the State of Pondicherry to conduct the criminal pro-
ceedings in respect of Sessions Case No. 94 of 2005 pending D
J
before Principal & Sessions Judge of Pondicherry.
13. The Appeal is allowed to the extent indicated above._
R.P. Appeal allowed .
...
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