Hon’ble Madurai Bench of Madras High Court dismisses petition challenging appointment of District Public Prosecutors. THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL W.P.(MD)No.29723 of 2023 R.Suresh Kumar Captioned WP, which has been filed as a PIL, is dismissed albeit with observations as above and aforementioned elucidation of the obtaining position of law with regard to the appointment of Public Prosecutors and Additional Public Prosecutors. We refrain from imposing costs. There shall be no order as to costs. [M.S.,J.] & [R.S.V.,J.] 19.12.2023 Neutral Citation : Yes Index : Yes vsm M.SUNDAR, J. and R.SAKTHIVEL, J. vsm To 1.The Principal Secretary to Government, Home Department, Secretariat, Chennai – 600 009. 2.The Director General of Police / Head of Police Force, Dr.Radhakrishnan Road, Chennai – 600 004. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. W.P.(MD)No.29723 of 2023 19.12.2023

2023/MHC/5503
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.12.2023
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
W.P.(MD)No.29723 of 2023
R.Suresh Kumar : Petitioner
Vs.
1.The Principal Secretary to Government,
Home Department,
Secretariat, Chennai – 600 009.
2.The Director General of Police /
Head of Police Force,
Dr.Radhakrishnan Road, Chennai – 600 004. : Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, directing the respondents herein to consider and issue necessary orders for appointing only regular cadre of Public Prosecutors / Additional Public Prosecutors in all District Courts also falling under the realm of Madurai Bench of Madras High Court as the State is empowered to do so as laid down in the said Code, on the lines of the petitioner’s representation dated 07.12.2023, within the time stipulated by this Honourable Court.
For Petitioner : Mr.S.I.Muthiah
For Respondents : Mr.Shunmugasundaram, Advocate General
instructed by
Mr.A.Thiruvadi Kumar, Additional Public Prosecutor assisted by Ms.Shakeena
Mr.Hasan Mohamed Jinnah, State Public Prosecutor
assisted by
Mr.A.Thiruvadi Kumar,
Additional Public Prosecutor and Mr.S.Santhosh, Government Advocate.
O R D E R
[Order of the Court was made by M.SUNDAR, J.]
Captioned matter was listed in the Admission Board on 15.12.2023 and this Bench made the following order:

2. Pursuant to the aforementioned 15.12.2023 proceedings / orders, captioned WP is before us today. Aforementioned 15.12.2023 Admission Board proceedings / orders shall now be read as an integral part and parcel of this order. This also means that the short forms, abbreviations and short references used in the aforementioned 15.12.2023 Admission Board order will continue to be used in the instant order also.
3. In the hearing today, Mr.S.I.Muthiah, learned counsel on record for PIL petitioner and Mr.Hasan Mohamed Jinnah, learned State Public Prosecutor, assisted by Mr.A.Thiruvadi Kumar, learned State Additional Public Prosecutor and Mr.S.Santhosh, Government Advocate (Crl. Side) are before us. Considering the limited scope of the captioned WP and the acute angle on which the bone of contention turns, main WP was taken up and heard out with the consent of both sides. In this regard, we deem it appropriate to write that in adopting this course we have resorted to second limb of sub-Rule (3) of Rule 19 of Madras High Court Writ Rules, 2021. {it is made clear that ‘Issue notice’ in paragraph 4 of admission Board order in this case means that Rule Nisi has been issued}
4. In continuation of his earlier proceedings (captued in Admission Board order dated 15.12.2023), learned State Public Prosecutor made the following submissions:
a) identical question came up for consideration before Hon’ble Supreme Court in K.J.John’s case (K.J.John Vs. State of Kerala and others) with regard to States of Kerala and Uttar Pradesh. This is vide a Writ Petition under Article 32 of the Constitution of India and the order made there at by a two member Hon’ble Bench has been reported in (1990) 4 SCC 191.

K.J.John’s case is one where Uttar Pradesh Public Prosecutor’s
Association and an individual by way of two separate Writ
Petitions brought up the controversy that regular cadre of Prosecuting officers exists and therefore, State Governments are bound to appoint Public Prosecutors and Additional Public Prosecutors only in this cadre vide Section 24(6) of Cr.P.C.
{Cr.P.C. denotes ‘the Code of Criminal Procedure, 1973 (2 of 1974)’}. After discussion and dispositive reasoning turning on sub-Section (6) as well as other sub-Sections of Section 24 of Cr.P.C., Hon’ble Supreme Court returned a categorical finding that State Governments are not bound to appoint Public Prosecutors or Additional Public Prosecutors only from among the persons constituting cadre under the Code of Criminal Procedure for conducting cases in the Sessions Court. In K.J.John’s case reported in (1990) 4 SCC 191 facts are captured in paragraph 3 and the ratio is set out in paragraph 21, which read as follows:
‘3.The Writ Petition under Article 32 of the Constitution has been filed by the Uttar Pradesh Public Prosecutors’ Association consisting the membership of Assistant Public Prosecutors, including Prosecuting Officers, Senior Prosecuting Officers, Deputy Director of Prosecution serving under the Government of Uttar Pradesh. Petitioner 2 is the President of the Association. In both the cases the controversy raised is that there exists a regular cadre of Prosecuting Officers and as such the State Government is bound to appoint Public Prosecutors and Additional Public Prosecutors only from among the persons constituting such cadre in view of Section 24(6) of the Code of Criminal Procedure, 1973.
……… ………
21.In view of these circumstances we find that the Kerala High Court is right in taking the view that the expression “regular cadre of Prosecuting Officers” comprised a service with Assistant Public Prosecutor at the lowest level and Public Prosecutors at the top. In case a regular cadre of Prosecuting Officers did not go into Public Prosecutor at the top, the State Government cannot be considered as bound to appoint Public Prosecutor or Additional Public Prosecutor only from among the persons constituting such cadre under the Code of Criminal Procedure for conducting cases in the Sessions Court.’
b) Adverting to Johri Mal’s (State of UP and another Vs. Johri Mal) case reported in (2004) 4 SCC 714 it was submitted that the distinction between tenure prosecutors and regular prosecutors was explained but it may really not be necessary to delve into that aspect of the matter, is learned
State Public Prosecutor’s say;
c) In Samarendra Das’s case (Samarendra Das, Advocate Vs. The State of West Bengal and others) reported in (2004) 2 SCC 274 (captured in paragraph 10 of our earlier Admission Board order dated 15.12.2023) a termination order terminating a Assistant Public Prosecutor came up for consideration and therefore, considering the crux and gravamen of the case on hand Samarendra Das’s case is not really of any aid to either side in the case on hand;
d) As regards Brijeshwar Singh Chahal’s case (State of Punjab and another Vs. Brijeshwar Singh Chahal and
another) reported in (2016) 6 SCC 1, though it has been placed before us as part of the compilation, it was not pressed into service and therefore, we refrain from embarking upon a discussion qua this case law;
e) Reiterating the earlier stand that any appointment under sub-Section ( 6-A) of Section 24 of Cr.P.C. will be as per the provisions of sub-Sections (4) and (5) of Section 24 of Cr.P.C., learned State Public Prosecutor, as an illustration placed before us one such appointment made vide G.O.
(MD)No.558, Home (Courts.VIA) Department, dated 26.04.2022 and a scanned reproduction of the same is as follows:

f) Attention of this Court was drawn to Section 15 of the ‘Schedule Castes and Schedule Tribe (Prevention of Atrocities Act), 1989 (33 of 1989)’ {hereinafter ‘SC/ST (PoA) Act’ for the sake of convenience and clarity} and Section 32 of ‘the Protection of Children from Sexual Offences Act, 2012 (No.32 of 2012)’ [hereinafter ‘POCSO Act’ for the sake of convenience and clarity] to say that these special statutes provide for appointment of Special Public Prosecutor / Exclusive Public Prosecutor. In this regard, attention of this Court was drawn to sub-Section (8) of Section 24 of Cr.P.C., which makes it clear that both the Central Government as well as the State Government may appoint Special Public Prosecutors for the purposes of any case or class of cases and the qualification is ten years of standing at the bar. There is a proviso to subSection (8) of Section 24 of Cr.P.C. (proviso inserted on 31.12.2009) which says that the Court may permit the victim to engage an advocate of his choice to assist the prosecution but this is in the realm of victimology and therefore, we are not going into that aspect. Suffice to say that sub-Section (8) of Section 24 of Cr.P.C. empowers the Central Government as well as the State Government to appoint Special Public Prosecutors for a specific case or for certain class of cases. This powers are intact / standalone and it is not controlled by any of the other sub-Section/s preceding or following sub-Section (8) ie., subSections (1) to (7) or sub-Section (9) of Section 24 of Cr.P.C.
5. In response to the aforementioned argument / submission of learned State Public Prosecutor, learned counsel on record for PIL petitioner submitted that his argument was predicated on sub-Section (6) of Section 24 of Cr.P.C. and learned counsel very fairly submitted that the Tamil Nadu amendment to Cr.P.C. kicked in on 01.12.1980 vide which inter alia subSection (6-A) has been introduced and subsection (6-A) clearly opens with a non-obstante clause vide sub-Section (6).
6. In the light of the narrative, discussion and dispositive reasoning set out supra, we find that sub-Section (6) of Section 24 of Cr.P.C. opens with a non-obstante clause but that non-obstante clause is limited to subSection (5) of Section 24 of Cr.P.C., and after the Tamil Nadu amendment, which kicked in on 01.12.1980, sub-Section (6) is clearly subject to subSection (6-A) (to be noted sub-Sections with requisite amendments post 01.12.1980 have been set out in paragraph 8 of our earlier proceedings dated 15.12.2023) and there is no disputation or contestation about the same. This means that the power of the State Government to resort to Section 6-A is intact. The sequitur means that it cannot be gainsaid that appointments of Public Prosecutor and Additional Public Prosecutor can be made only from the regular cadre. The further sequitur is the prayer of the PIL petitioner deserves to be dismissed.
7. Before we write the concluding paragraph ie., operative part of this order, we make it clear that the plain language of sub-Section (6-A) makes it clear that the provisions of sub-Sections (4) and (5) of Section 24 of Cr.P.C. have to be adhered to and the State Public Prosecutor has very fairly submitted that sub-Sections (4) and (5) of Section 24 of Cr.P.C. are / will be being diligently adhered to. To be noted, as an illustration one such order being G.O.(D)No.558, Home (Courts.VIA) Department dated 26.04.2022 has been scanned and reproduced supra.
8. We conclude by writing that the powers of the State Government to appoint Public Prosecutors or Additional Public Prosecutors under subSection (6-A) of Section 24 of Cr.P.C. is de hors the regular cadre and it can be resorted to and this is besides the powers of the State Government (as well as the Central Government) to appoint Special Pubic Prosecutors in a particular cases or for a class of cases vide sub section (8) which is a stand alone subsection which is also intact. Mandamus plea fails to cut the ice with us.
9. Captioned WP, which has been filed as a PIL, is dismissed albeit with observations as above and aforementioned elucidation of the obtaining position of law with regard to the appointment of Public Prosecutors and Additional Public Prosecutors. We refrain from imposing costs. There shall be no order as to costs.
[M.S.,J.] & [R.S.V.,J.]
19.12.2023
Neutral Citation : Yes Index : Yes vsm
M.SUNDAR, J. and R.SAKTHIVEL, J.
vsm
To
1.The Principal Secretary to Government,
Home Department,
Secretariat, Chennai – 600 009.
2.The Director General of Police /
Head of Police Force,
Dr.Radhakrishnan Road, Chennai – 600 004.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
W.P.(MD)No.29723 of 2023
19.12.2023