S.B. SHAHANE AND ORS.versusTHE STATE OF MAHARASHTRA AND ANR.

A                          S.B. SHAHANE AND ORS.
                                         v.
               THE STATE OF MAHARASHTRA AND ANR.

                                 APRIL 21, 1995

B             [KULDIP SINGH AND N. VENKATACHALA, JJ.J

          Code of Criminal Procedure, 1973:

          Section 25-Assistant Public Prosecutors-Appointment of-State
C Government's Notification--Personnel of Police Department-Appointment
  as Assistant Public Prosecutor without severance of administrative and dis-
  ciplinary control of Police Department-Held failure of statutory obligation
  imposed by Section 25(3 j-Court's Directions for setting up of separate cadre
  of Assistant Public Prosecutors-Creation of separate prosecution depart-
  ment-Exclusion of administrative and disciplinary control of Police Depart-
D ment over Assistant Public Prosecutors.

          Administration of Cn"minal Justice:                                       \-

         Criminal Trial-Investigating Department and Prosecution Depart-
E   ment-Separation of-Need and object.

          By a notification dated 1st April, 1974 issued under Section 25 of the
    Code of Criminal Procedure, 1973 the Government of Maharashtra ap-
    pointed the appellants, who were the personnel of its police department
    functioning under the control of its head, the Inspector General of Police,
F   as Assistant Public Prosecutors for condncting prosecutions in the Courts      L
    of Magistrates without bringing about their severance from the police
    department.

        The appellants filed an application before the High Court for a
  direction to the State for their exclusion from the Police Department so as
G to free them from the administrative and disciplinary control of the
  Inspector General of Police and to create a separate cadre of Assistant
  Public Prosecutors for them under a separate Prosecntion Department,             \. •
  making its head directly responsible to Government. The High Court
  dismissed the application against which the appellants preferred appeal
H before this Court.
                                        672
                      S.B SHAHANE v. STATE [VENKATACHALA, J.]                  673
              Allowing the appeal and setting aside the judgment of the High A
         Court, this Court

               HELD : 1. The Government of Maharashtra which made the ap-
         pointments of Assistant Public Prosecutors by issue of notification dated
         1st April, 1974 under Section 25 of the Code of Criminal Procedure could
         not have allowed the Assistant Public Prosecutors appointed thereunder       B
         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. [682-B, CJ

               2. The mandate of sub-section (3) of Section 25 of the Code of         C
         Criminal Procedure, 1973 implies that the State Governm_ent or Central
         Government which appoints Assistant Public Prosecutors for the purpose
         of conducting prosecutions in Magistrates' courts in District, must put
         them in an independent cadre and create a separate independent Prosecu-
         tion Department, having its own hierarchy of officers made directly
         responsible to the concerned Government. [678-H, 676-C, 675-E, F]            D
               3. When Assistant Public Prosecutors are appointed under Section 25
         of the Code of Criminal Procedure for conducting prosecutions in courts of
         l'ifoglstrates in a District fairly and impartially, separating them from the
         oflicers of the Police Department and freeing them from the administrative E
         or disciplinary control of officers of the Police Department, 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-sec-
         tion (3) thereof. When such consequentional actions are taken by the State
  ...J   Government in respect of large number of persons appointed as Assistant F
         Public Prosecutors, it becomes necessary for potting them on a separate
         cadre of Assistant Public Prosecutors and creating a separate prosecution
         department as suggested by the Law Commission in its 14th Report making
         those Assistant Public Prosecutors subject to control of their superiors in
         the heirarchy in matters of administration and discipline, mth the bead of G
         such Prosecution Department being made directly responsible to the State
         Government in respect of conduct of prosecutions by the Assistant Public
... j    Prosecutors of his department. [681-D to G]
 /
             4. Since the aforesaid notificatfon issued by the Government of
         Maharashtra merely appoints the appellants and others, as mentioned in H
    674                  SUPREME COURT REPORTS                 [1995] 3 S.C.R.

A Schedule to the notification, the prosecutors of the Police Department as
    Assistant Public Prosecutors without freeing such Assistant Public           1

    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 depart·
B   ment 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. (681-G, H, 682-A, BJ

          5. The Government of Maharashtra is directed to constitute a
C 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
D the Police Department or its officers. (682-H, 683-A]          ·
                                                                                 I.
          14th Report of the Law Commission of India, referred to.

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 676 of
E 1982.
         From the Judgment and Order dated 31.7.81 of the Bombay High
    Court in S.C.A. No. 317 of 1979.

          S.V. Deshpande and Mrs. Anuradha Rastogi for the Appellants.
F         S.K. Dholakia and A.S. Bhasme for the Respondents.

          The Judgment of the Court was delivered by

          VENKATACHALA, J. Judgment dated 31st July, 1981, by which a
G Division Bench of the High Court of Judicature at Bombay, Nagpur Bench,
    rejected the Special Leave Application No. 317 of 1979 filed under Article
    226 of the Constitution of India by the appellants herein, is appealed
    against by them in this Civil Appeal by special leave.

          The appellants and the Police Prosecutors appointed by the lnspec-
H tor General of Police or Commissioner of Police in the State of
                S.B SHAHANE v. STAIB [VENKATACHALA, J.]                    675

    Maharashtra under rule 60 of the Bombay Police Manual, 1959 - "the A
    Manual". On their appointment, they became the personnel of the
    Maharashtra State's Police Department (Establishment) under the control
    of the head of the Department, the Inspector General of Police, as
    provided for under rule 32 of the Manual. After the coming into force of
    the Code of Criminal Procedure, 1973 - "the Code", the Government of B
    Maharashtra issued a Notification dated 1st April, 1974, which read thus:

                "Jn exercise of the powers conferred by section 25 of the Code
            of Criminal Procedure. 1973 (II of 1974), the Government of
            Maharashtra hereby appoints, with effect from 1st April, 1974 the
            officers specifi.ed in columo (2) of the Schedule hereto appended,    C
            who are Police Prosecutors; to be Assistant Public Prosecutors
            also, for conducting prosecutions jn the Courts of Magistrates in
            the District (including Greater Bombay) or Districts; respectively,
            specified against them in columo (4) of the said Schedule."

        When the above notification was issued by the Government of D
)   Maharashtra under section 25 of the Code appointing the Police
    Prosecutors of its Police Department as the Assistant Public Prosecutors
    to conduct prosecutions in courts of Magistrates, without bringing about
    their severance from the Police Department, the appellants filed the
    aforesaid Special Leave Application seeking from the High Court issuance E
    of a direction to the Government of Maharashtra for their exclusion from
    its Police Department so as to free ·them from the administrative and
    disciplinary control of the Inspector General of Police, the head of the
    Police Department and create a separate cadre of Assistant Public
    Prosecutors for them under a separate Prosecution Department, making
    its head directly responsible to Government. When that application was F
    rejected by the Division Bench of the High Court, the judgment of that
    rejection is questioned by the appellant in this appeal by special leave.

          We have heard arguments of learned counsel for tqe parties. A short
    question which needs our answer for deciding this appeal in the light of      G
    the arguments is the following:

              · When by its notification dated 1st April, 1974 issued under
            section 25 of the Code, the Government of Maharashtra appointed
            the Police Prosecutors, who were the personnel of its Police
            Department functioning under the control of its head the Inspector H
    676                  SUPREME COURT REPORTS                  [1995] 3 S.C.R.

A           General of Police, as Assistant Public Prosecutors, could it have
            allowed such Assistant Public Prosecutors to be the personnel of
            the police Department and continue to function under the control
            of its head, the inspector General of Police?

          Section 25 of the Code whi~h has formed the basis for the Govern-
B   ment of Maharashtra to issue the notification adverted to in the above
    question, reads thus:

               Section 25 of the Code:

               "25. Assistant Public Prosecutors. - (1) The State Government
c           shall appoint in every district one or more Assistant Pubic
            Prosecutors for conducting prosecutions in the Courts of
            Magistrates.

               (1-A) The Central Government may appoint one or more
D           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.
E
               (3) Where no Assistant Public Prosecutor is available for the
            purposes of any particular case, the District Magistrate may ap-
            point any other person to be the Assistant Public Prosecutor in
            charge of that case:
F              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
G                (b) if he is below the rank of Inspector."

          As the above Section was undisputedly inserted by the Parliament in
    the Code because of the fault found by the Law Commission in the conduct
    of prosecutions in Magistrates' courts of the country by Police Prosecutors
H   and remedial suggestions made by it in its 14th Report, we can, to our
                      S.B SHAHANEv. STATE [VENKATACHALA,J.]                      677
         advantage, advert to them at the first instance, thus:                         A
     j


                     "Para 12. - Police Prosecutors and their functioning - 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 disc4arge in
                 bringing a case in emir~ it is not possible for them to exhibit that   B
                 degree of detachment which is necessary in a prosecutor. It is to
                 be remembered that a belief prevails amongst the Police Officers
                 that their promotion in the Department depends upon the number
                 of convictions they are able to obtain as prosecuting officers.
                 Finally, they only control or supervision of the work of these
                 prosecuting officers is that exercised by the Department Officials."   C

                     "Para 15. - Suggested remedial measure - We therefore suggest
                 that as a first step towards improvement, the prosecuting agency
                 should be completely separated from the Police Department. In
                 every district a separate prosecution department may be con- D
                 stituted and placed in charge of an official who may be called a
-!               'Director of Pubic Prosecutions'. The entire prosecution machinery
                 in the District should be under his control In order to ensure that
                 he is not regarded as a part of the Police Department he should
                 be independent official directly responsible to the State Govern-
                 ment. The departments of the machinery of the Criminal Justice, E
                 namely, the Investigation Department and the prosecuting depart-
                 ment should thus be completely separated from each other."

               It becomes clear from what is stated by the Law Commission in para
         12 above that the conduct of prosecutions in Courts in India, as prevailed     F
         then, was carried on by police officers who were designated as Police
         Prosecutors. Those Police Prosecutors were functioning under the ad-
         ministrative and disciplinary control of the superior officers of the police
         force or department itself. Since their promotions to the higher posts in
         the department depended on the number of convictions they were able to
         obtain from courts in the prosecutions conducted by them, they were not        G
         able to exhibit the needed degree of detachment expected of prosecutors.
         In other words, the Law Commission strongly felt the need of Prosecutors
         conducting the prosecutions in courts independently of the Police Depart-
         ment that had investigated the cases in respect of which prosecutions were
         launched or of officers of the Police Department who were very much            H -
    678                   SUPREME COURT REPORTS                   (1995] 3 S.C.R.

A   interested in such investigations so as to conform to the basic salutary rule
    of prosecution of criminal cases that the prosecutors must conduct the
    prosecutions fairly and impartially.

           Then, we find from para 15 above, the remedial measures suggested
    by the Law Commission for conduct;ng prosecutions by prosecutors fairly
B   and impartially. Firstly, it suggested that the Police Department shall not
    continue as the prosecuting agency as the practice prevailed. Secondly, the
    prosecuting agency must have its own prosecution department separate
    and distinct from the Police Department, of which it was a part. Thirdly,
    the Prosecutors of prosecution departments must have their own heads
C   who can exercise administrative and disciplinary control over them being
    directly responsible to the Government concerned. It is ultimately, sug-
    gested in unequivocal terms that the machinery of criminal justice though
    comprised of Investigation Department and the Prosecuting Department,
    there should be complete separation between them. The object of such
D   separation suggested is obviously to see that the officers of the Police
    Department who will have investigated the cases to be prosecuted in courts
    shall have no manner of control or influence over the prosecutors who
    conduct the cases in courts based on the investigations made by the Police
    Department.

E         We nave now to see whether the Parliament has sought to effectuate
    the aforesaid remedial measures relating to separation of prosecution
    agency from investigation agency, both of which formed parts of the Police
    Department, before enacting Section 25 of the Code. Section 25 pertains
    to Assistant Public Prosecutors, as becomes clear from its heading. The
F   mandate of sub-section (1) as seen therefrom, is that the State Government       \
    shall appoint for every district in the State one or more Assistant Public
    Prosecutors for conducting prosecutions in courts of Magistrates. In other
    words, a statutory obligation is imposed by that sub-section 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
G   conducting prosecutions in the courts of Magistrates in such district.
    Insofar as sub-section (1-A) is concerned, the obligation similar to that
    imposed on the State Government under sub-section ( 1) is imposed on the
    Central Government with regard to appointment of Assistant Public
    Proceutors for conducting its cases in courts of Magistrates in the districts.
H   Then, comes the mandate of sub-section (2) of Section 25 of the Code
                        S.B SHAHANE v. STATE [VENKATACHALA, J.]                   679

           which, as seen therefrom, makes police officers even ineligible, as a rule, A
           for appointment as Assistant Public Prosecutors. No doubt, an exception
           is made to that rule, as found in the proviso to sub-section "(3) thereo~
           because sub-section (3) permits appointment of any other person as Assis·
           tant Public Prosecutor in the district for the purpose of any particular case
           that may include a Police Officer. Since such appointment of a police B
           officer as Assistant Public Prosecutor is envisaged for want of other
       I   suitable person to meet some unavoidable contingency or due to un·
           availability of regularly appointed Assistant Public Prosecutor, as seen from
           the proviso to sub-section (3), special care is required to be taken to see
           that such officer is not below the rank of an Inspector who had not taken
           any part in the investigation into the offence with respect to which the C
           accused has to be prosecuted. Indeed, the proviso also emphasises the need
           of keeping the officer entrusted with the duty of conducting a prosecution,
           beyond the reach of police officers concerned with investigation of the case
           requiring prosecution. The mandate of sub-section (3), therefore, implies
           that the State Government or Central Government which appoints Assis- D
           tants Public Prosecutors for the purpose of conducting prosecutions in
           Magistrates' courts in District, must put them in an independent cadre and
           create a separate independent Prosecution Department, having its own
           heirarchy of officers made directly responsible to the concerned Govern·
           ment.
                                                                                        E
                 Thus, when all the sub-sections of Section 25 of the Code are seen
           as a whole, it becomes clear therefrom, that there is a statutory obligation
..-J
           imposed on the State or the Central Governments, as the case may be, to
           appoint one or more Assistant Public Prosecutors in every district for
           conducting the prosecutions in the Magistrates' co,;,ts concerned, and of. F
           making such Assistant Public Prosecutors 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, but constituting a
           separate cadre of such Assistant Public Prosecutors and creating a separate
           Prosecution Department for them, its head made directly responsible to
           the Government for ~uch department's work.                                    G

                 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 H
    680                  SUPREME COURT REPORTS                 (1995] 3 S.C.R.

A 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
B          the High Court, appoint a Public Prosecutor and may also appoint
           one or more Additional fublic Prosecutors, for conducting in such
           Court, any prosecuti~n; appeal or other proceeding on behalf of
           the Central Governlljient or State Government, as the case may be.

               (2) The Central Government may appoint one or more Public
c          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
D          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, i.s the
           case may be, for another district.
E
               (4) The District Magistrate shall, in consultation with the Ses-
           sions 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.

F              (5) No person shall be appointed by the State Government as
           the P11blic Procecutor or Additional Public Prosecntor 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),
G          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;

H               Provided that where, in the opinion of the State Government,
                 S.B SHAHANE v. STATE [VENKATACHALA, J.)                681

        no suitable person is available in such Cadre for such appointment A
        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 B
         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            C
         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."

      When Assistant Public Preosecutors are appointed under Section 25        D
of the Code for conducting prosecutions in courts of Magistrates in a
District fairly and impartially, separating them from the police officers of
the Pq)ice Department and freeing them from the administrative or dis-
ciplinary 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      E
actions are statutory obligations impliedly imposed upon it under sub-sec-
tion (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      F
Department as suggested by the Law Commission in its Report making
those Assistant Public Prosecutors subject to control of their superiors in
the heirarchy 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
Pwsecutors of his departmet. Since the aforesaid notification dated 1st        G
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 Depart-
ment as Assistant Public Prosecutors without freeing such Assistant Public
Prosecutors from the administrative and discriplinary control of the Police    H
    682                   SUPREME COURT REPORTS                  [1995] 3 S.C.R.

A Department to which they belonged earlier, and without creating a
  separate department of prosecution for them with the head of that depart-
  ment or departments being made directly responsible to the Government,
  the Government of Maharashtra has failed to discharge its statutory obliga-
  tion impliedly imposed upon it in that regard under sub-section (3) of
B Section 25 of the Code. We, therefore, answer the question, in the negative
  by holding that the Government of Maharashtra which made the appoint-
  ments of Assistant Public Prosecutors by issue of notification dated 1st
  April, 1974 under Section 25 of the Code, could uot have allowed the
  Assistant Public Prosecutors appointed thereun<!er to continue as person-
  nel of its Police Department and to continue to function under the control
C of the head of Police Department, the Inspector General of police.
          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
D   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 applcation of the appellants filed before the
    High Court, the judgment of the High Court under appeal becomes
    unsustainable.
E
           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
F   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 notifica-
    tion issued as far back as in the year 1974, we refrain from expressing our
    view on that question at this distance of time.

G         In the result, we allow this appeal, set aside the judgment of the High
    Court under appeal, make the rnle 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
H   Prosecution Department for them and making the head IQ be appointed
                  S.B SHAHANE v. STATE [VENKATACHALA, J.]                 683

      for such Department directly responsible to the State Government for their A
      discipline and the conduct of all prosecutions by them before the
      Magistrates' courts and further free such Prosecutors fully from the ad-
      ministrative and disciplinary control of the Police Department or its of-
      ficers, if they still continue to be under such control. No costs.

      T.N.A.                                                  Appeal allowed.   B


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.l.