Jayendra Saraswati Swamigal Alias Subramaniam vs State Of Tamil Nadu

court also noticed the fact that this Court, while transferring

the Sessions case at Pondicherry, had not specifically directed

that 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,

Pondicherry. The High Court of Madras confirmed the

decision of the Sessions court and held that the offence had

been committed within the State of Tamil Nadu, the 5

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 Government of Tamil Nadu had the

domain over that sessions case and unless this Court,

considering the special circumstances, directs in a particular

case, appointment of a Special Public 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 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

Prosecutor.

5. The appellant has challenged the order passed by the

Sessions court as well as the High Court by which the Special 6

Public Prosecutor and Additional Special Public Prosecutors

were appointed to conduct the trial of the case.

6. We heard the counsel for the appellant as well as counsel

for the State of Tamil Nadu. The counsel for the appellant

contended that the appointment 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 Pondicherry has total authority to appoint a Public

Prosecutor or Additional Prosecutor or a Special Public

Prosecutor to conduct a criminal case pending before any of

the Sessions divisions of the State of Pondicherry which was

formerly a Union Territory, now being a separate State and the

Tamil Nadu Government has no right to appoint any

prosecutor - either a Public Prosecutor or a Special Public

Prosecutor - to conduct a trial of 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 7

specifically directed that trial should be conducted by the

prosecutor appointed by the Government 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 the Public Prosecutor to conduct the prosecution of

the case unless specifically otherwise directed by this Court

while transferring the case under Section 406 of the Cr.P.C.

7. For the purpose of understanding the scheme of

appointment of a Public Prosecutor to conduct the trial it is

necessary 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 8

Magistrate of the 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 districts. It also prescribes that every

metropolitan area shall be a separate sessions division and

district. Sub-section (2) provides that the State may alter the

limits of such division and districts after consultation with

the High Court. Section 9 requires that the State Government

shall establish a court of sessions for every sessions division,

and every court of sessions shall be presided over by a Judge

to be appointed by the High Court. Section 10 deals with the

constitution of the Assistant Sessions Judge and Section 11

deals with the constitution of the court of Judicial

Magistrates. Section 12 deals with the appointment of Chief

Judicial Magistrate and Additional Chief Judicial Magistrate.

Sections 16, 17 and 18 deal with the constitution of the

various Metropolitan Magistrates' courts and Section 20 deals 9

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.

:-

"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

Prosecutor or Additional Public Prosecutor for conducting any

prosecution, appeal or other proceedings on behalf of the

Central Government or State Government in the High Court.

Sub-section (3) of Section 24 requires that for every district,

the State Government shall appoint a Public Prosecutor and

one or more Additional Public Prosecutors. Sub-sections (3) to

(7) deal with appointment of Public Prosecutor, Additional

Public Prosecutor for the district. The power of appointment is

given to the State Government and such appointment should 10

be from a panel of names prepared by the District Magistrate

in consultation with the Sessions Judge. Sub-section (7) of

Section 24 provides that a person shall be eligible to be

appointed as a Public 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 clearly show that the State

Government has the power of appointment 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 proceedings

pending before the courts in that State. The power of the

State Government to appoint a Public Prosecutor and

Additional Public Prosecutor would extend only for

conducting any 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 11

Public Prosecutor to conduct criminal cases in any of the

court in that State. Such powers cannot be exercised by the

State Government to conduct 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 appoint 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 the circumstances of the case and the grounds on

which the transfer has been effected. This Court can

certainly give directions 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 12

transfer. The provisions contained in the Section 24 of Cr.P.C.

shall prevail and it is for the appropriate State Government

within whose area the trial is conducted to appoint Public

Prosecutor under sub-sections (3) to (7) of Section 24 of the

Cr.P.C. is the Government of the State to which the case has

been transferred.

8. Sub-section (8) of Section 24 of Cr.P.C. is a special

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

Public 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-section (8) of Section 24 of the Cr.P.C.

13

9. The purpose of transfer of the criminal case from one

State to another is to ensure 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, was that the action of the prosecution 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. The Public Prosecutor

plays a key role during trail of a Sessions case. Though the

Sessions Judge has got a supervising control over the entire

trial of the case, it is the Public Prosecutor who decides who

are the witnesses to be examined on the side of the

prosecution and which witness is to be given up, or which

witness is to be recalled for further examination. For proper

conduct of a criminal case the Public Prosecutor plays a vital

role. It may also be noticed herein that under Section 225 of 14

the Cr.P.C. during every trial before the court of Sessions, the

prosecution shall be conducted by the Public Prosecutor and

as regards withdrawal also, the Public Prosecutor in charge

of the case has to make the application for withdrawal of

prosecution as per Section 321 of the Cr.P.C. In case of

acquittal of the accused the State Government may direct the

Public Prosecutor to file an appeal.

10. As is evident from various provisions of the Cr.P.C., the

State Government of Tamil Nadu can only appoint a Public

Prosecutor or an Additional Public Prosecutor or a Special

Public Prosecutor under Section 24 of the Cr.P.C. to conduct

the prosecution and appeal, or other proceeding in any

criminal 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 15

Prosecutor, Additional 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 qualifications as prescribed under sub-section (8) of

Section 24 of Cr.P.C. whether he is a lawyer in the State of

Pondicherry 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 payable to the Public Prosecutor,

Additional Public Prosecutor 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

undertake consultations with each other and an appropriate

decision may be taken by the concerned authorities in this

regard.

16

12. We set aside the impugned order passed by the High

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 appointed by the State of Pondicherry to conduct the

criminal proceedings in respect of Sessions Case No. 94 of

2005 pending before Principal & Sessions Judge of

Pondicherry.

13. The Appeal is allowed to the extent indicated above.

..........................................CJI

( K.G. BALAKRISHNAN )

.............................................J.

( R.V. RAVEENDRAN )

.............................................J. 17

( Dr. MUKUNDAKAM SHARMA )

NEW DELHI;

JULY 22, 2008.