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K. Tirupathi v. Government Of Andh. Pra. And Others
Structured Summary of the Provided Opinion
Factual and Procedural Background
The 2nd respondent, Sri Shankar Rao Bowgikar, was employed as a Lower Division Clerk in the Municipal Corporation of Hyderabad, is a law graduate, and held a Post-Graduate Diploma in LSGD. He was promoted to the post of Court Inspector on 10th May 1979 and conducted prosecutions in the VII Metropolitan Magistrate's Court (a court whose entire expenditure is borne by the Municipal Corporation of Hyderabad). While conducting S.T.C. No. 140/1981, an accused objected that the 2nd respondent had not been appointed as an Assistant Public Prosecutor under Section 25 of the Criminal Procedure Code (Cr. P.C.), and the learned VII Metropolitan Magistrate upheld that objection. The 2nd respondent and the Municipal Corporation of Hyderabad filed a revision in the High Court; that revision was allowed on 12th August 1982 by Punnayya, J. on the ground that the High Court in its inherent jurisdiction under Section 482 Cr. P.C. could not set aside the appointment.
Following the objection taken in the criminal case, the Government of Andhra Pradesh issued G.O.Ms No. 1152 Municipal Administration dated 24th October 1981 redesignating the post of Court Inspector as Assistant Public Prosecutor under sub-sections (4) and (5) of Section 137 of the Hyderabad Municipal Corporation Act and published a notification in the Andhra Pradesh Gazette appointing the 2nd respondent as Assistant Public Prosecutor under Section 25(1) Cr. P.C. On 2nd November 1981, the Special Officer of the Municipal Corporation appointed the 2nd respondent as Assistant Public Prosecutor to conduct all cases arising under the Hyderabad Municipal Corporation Act and the rules and bye-laws in the VII Metropolitan Magistrate's Court.
The petitioner, Sri K. Tirupati (an advocate), filed a writ petition under Article 226 of the Constitution seeking quo warranto to challenge the appointment of the 2nd respondent as Assistant Public Prosecutor.
Legal Issues Presented
- Whether the appointment of the 2nd respondent, a departmental employee (formerly Court Inspector), as Assistant Public Prosecutor under Section 25(1) Cr. P.C. is valid.
- Whether the Rules framed by the Governor under Article 309 of the Constitution (governing appointment of Assistant Public Prosecutors) apply to the 2nd respondent's appointment, and whether non-application invalidates the appointment.
- Whether the appointment of departmental persons to conduct prosecutions is contrary to Section 25 of the Cr. P.C. or to the Advocates Act (including the contention based on Section 29 of the Advocates Act that only advocates can be appointed as Assistant Public Prosecutors).
- Whether the State Government can redesignate an existing post (Court Inspector) to Assistant Public Prosecutor and appoint the incumbent without rules made under Article 309, and whether such executive action is permissible under Articles 162/309 and related precedents.
Arguments of the Parties
Petitioner's Arguments
- Appointment of Assistant Public Prosecutors is governed by Rules framed by the Governor under Article 309 of the Constitution, which (as argued) permit appointment only of advocates with three years' active practice; the 2nd respondent is not a practising advocate.
- Appointment of departmental persons to conduct prosecutions is contrary to Section 25 of the Cr. P.C.
- Under Section 29 of the Advocates Act only advocates could be appointed as Assistant Public Prosecutors.
Respondents' Arguments (Municipal Corporation and 2nd Respondent)
- The appointment of the 2nd respondent is made under Section 137 of the Hyderabad Municipal Corporation Act (sub-sections (4) and (5)) and accordingly Rules framed by the Governor under Article 309 do not apply to that appointment.
- The appointment of the 2nd respondent as Assistant Public Prosecutor is not contrary to Section 25 of the Cr. P.C.
- The State has issued Government Orders appointing departmental persons as Assistant Public Prosecutors under other special enactments (for example under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Andhra Pradesh Weights and Measures Act, 1958; and the Railway Property (Unlawful Possession) Act, 1966), and those serve as precedents for departmental appointments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Baban v. Sambamurthy, 1980 Cri LJ 248 (Andh. Pra.) | Held that Cr. P.C. does not totally prohibit entrusting prosecution to a police officer; subject to limitations, police officers may be appointed as Assistant Police Prosecuting Officers for specific cases. | The court relied on this decision to show that Section 25 of the Cr. P.C. permits, in certain contexts, appointment of non-advocate or departmental persons to conduct prosecutions in specific cases. |
| Jaipal v. State of U.P., 1976 Cri LJ 32 (Allahabad High Court) | Held that placing Assistant Public Prosecutors under administrative/disciplinary control of the Superintendent of Police/Inspector-General was inconsistent with Section 25 and liable to be set aside; sub-section (3) power is exceptional for particular cases, not for general appointments. | The court noted the distinction: Jaipal concerned general appointments and administrative control, whereas the present case involves a limited-purpose appointment; the principle was acknowledged but distinguished on facts. |
| State of Haryana v. Shamsher Jang, (1972) 2 SCC 188 : AIR 1972 SC 1546 | Shows that the Government is not competent to alter, by administrative instruction, conditions of service prescribed by rules made under Article 309. | The court observed these decisions (including this one) but found them inapplicable because no new post was created and the post was a sanctioned post on the Municipal Corporation's cadre; thus the State's redesignation/appointment was treated as valid executive action under the facts. |
| S.L. Sachdev v. Union of India, (1980) 4 SCC 562 : AIR 1981 SC 411 | Affirms the principle that the Government cannot alter service conditions fixed by rules under Article 309 by administrative instruction. | The court considered this authority but held it not to be decisive here because the appointment was of an existing sanctioned post on the Municipal Corporation cadre and made under the executive power (Article 162) in absence of rules. |
| B.N. Nagarajan v. State of Mysore, AIR 1966 SC 1942 | Authority cited for the proposition that even in the absence of rules, a post can be created and recruitment made by the State Government in exercise of executive power under Article 162. | The court relied on this principle to support the validity of redesignating the sanctioned post and appointing the incumbent in absence of rules framed under Article 309. |
| Sant Ram v. State of Rajasthan, AIR 1967 SC 1910 | Similar authority supporting executive power to create posts and make appointments even without rules. | The court cited this case alongside B.N. Nagarajan to show that appointment/recruitment can be validly made in absence of rules, under executive power. |
Court's Reasoning and Analysis
The court began by analysing the statutory regime of prosecutors under the Cr. P.C. It distinguished the provisions applicable to a "Public Prosecutor" (Section 24) from those applicable to "Assistant Public Prosecutors" (Section 25). Section 24 (Public Prosecutors and Additional Public Prosecutors) prescribes eligibility criteria (including practice as an advocate for seven years for Public/Additional Public Prosecutors and ten years for Special Public Prosecutors), but the court observed that Section 24 does not govern the appointment challenged in this case.
The court then examined Section 25 (Assistant Public Prosecutors). It noted that Section 25(1) empowers the State Government to appoint one or more Assistant Public Prosecutors in every district for Magistrates' Courts and that Section 25(3) permits, in certain circumstances, appointment of any person for a particular case (subject to provisos excluding certain police officers). Crucially, the court emphasised that Section 25 does not require Assistant Public Prosecutors to be practising advocates and, indeed, contemplates appointment of non-advocates and, under conditions, even police officers.
From this statutory reading the court drew the following conclusions:
- The Rules framed by the Governor under the proviso to Article 309 (governing appointment to certain posts) and the Advocates Act do not necessarily apply to every appointment under Section 25, because Section 25 itself permits non-advocates to be appointed.
- The 2nd respondent's appointment was made under Section 25(1) of the Cr. P.C. by the State Government and was expressly limited to conducting prosecutions arising under the Hyderabad Municipal Corporation Act within the municipal limits of Hyderabad and Secunderabad; he cannot conduct other classes of cases or act outside that territorial/subject-matter scope.
- Because the appointment was for a limited purpose under Section 25, the objections based on non-application of Article 309 rules and the Advocates Act lose significance in the facts of this case.
The court addressed the precedents cited by both sides. It acknowledged authorities limiting executive alteration of service conditions prescribed by Article 309 rules (State of Haryana v. Shamsher Jang; S.L. Sachdev) but held them inapplicable on the facts because no new post was created: an existing sanctioned post on the Municipal Corporation cadre (Court Inspector) was redesignated as Assistant Public Prosecutor and the State/Government was the sanctioning authority. The court relied on precedents allowing creation or recruitment for posts even in absence of rules (B.N. Nagarajan; Sant Ram) to support the executive action under Article 162.
The court also rejected the petitioner's contention that departmental appointment necessarily implies partiality, observing that the 2nd respondent is a law graduate who had previously conducted prosecutions as Court Inspector. The court noted examples (under special enactments) where departmental officials who are law graduates were appointed as Assistant Public Prosecutors, treating those practices as relevant analogies.
On the combined statutory reading, precedential analysis, and the factual limitation on the scope of appointment, the court concluded that the appointment of the 2nd respondent as Assistant Public Prosecutor under Section 25 of the Cr. P.C. was valid.
Holding and Implications
Holding: The court's final disposition was to dismiss the writ petition. The core ruling may be stated as: The appointment of the 2nd respondent as Assistant Public Prosecutor to conduct cases arising under the Hyderabad Municipal Corporation Act is valid.
Direct consequences and implications (as reflected in the opinion):
- The writ petition challenging the appointment (quo warranto) was dismissed; the court ordered the petition dismissed without costs and awarded Advocate's fee of Rs. 100/-.
- The appointment is limited in scope: the 2nd respondent may conduct prosecutions only for offences arising under the Hyderabad Municipal Corporation Act and only within the municipal limits of Hyderabad and Secunderabad, and only for the designated court (VII Metropolitan Magistrate's Court at Hyderabad) as notified.
Broader precedent or policy: The opinion reasons from the statutory text of Section 25 and from existing practice under special enactments, but it does not purport to set aside or directly challenge the vires of Section 25. The decision affirms the validity of a limited-purpose appointment under Section 25 in the factual matrix presented, and no wider alteration of statutory law or rule-making frameworks was declared by this opinion.
Disposition
Petition dismissed. Advocate's fee Rs. 100/-. The decision was rendered without costs to the parties.
1. The 2nd respondent, Sri Shankar Rao Bowgikar, was a Lower Division Clerk in the Municipal Corporation of Hyderabad. He is a law graduate. He has also a Post-Graduate Diploma in LSGD. A Court has been specially constituted to deal with the cases arising under the Hyderabad Municipal Corporation Act and the Prevention of Food Adulteration Act. In fact, its entire expenditure, including the pay and allowances of the Magistrate, is borne by the Municipal Corporation of Hyderabad. It is now called the VII Metropolitan Magistrate's Court. There was a Court Inspector in that Court appointed by the Municipal Corporation of Hyderabad to conduct cases arising under the Hyderabad Municipal Corporation Act, and one Madhava Rao was working as the Court Inspector. He was promoted as Superintendent. In his place the 2nd respondent was promoted as the Court Inspector by the Municipal Corporation of Hyderabad on 10th May, 1979. When he was conducting S.T.C No. 140/1981, the accused took an objection that the 2nd respondent was not appointed as Public Prosecutor under S. 25 of the Cr. P.C, 1973, and, therefore, he could not conduct the prosecution. The learned VII Metropolitan Magistrate upheld the objection. Aggrieved by his order, the 2nd respondent and the Municipal Corporation of Hyderabad preferred a revision to this Court. It was allowed on 12th Aug., 1982 by Punnayya, J. on the ground that the High Court in its inherent jurisdiction under Section 482, Cr. P.C could not set aside the appointment.
2. Here it may be noted that in view of the objection taken by the accused in that case, the Government of Andhra Pradesh, issued G.O.Ms No. 1152 Municipal Administration dated 24th Oct., 1981, redesignating the post of Court Inspector as Assistant Public Prosecutor with immediate effect under sub-sections (4) and (5) of S. 137 of the Hyderabad Municipal Corporation Act, as subsequently amended. In the same G.O a notification was issued, which was published in the Andhra Pradesh Gazette appointing the 2nd respondent as Assistant Public Prosecutor under S. 25(1) of the Cr. P.C, 1973, for the purpose of cases tried in any Criminal Court situated within the municipal limits of Hyderabad and Secunderabad in respect of offences punishable under the provisions of the Hyderabad Municipal Corporation Act, 1955 and the rules and bye-laws made thereunder. On 2nd Nov., 1981 the Special Officer, Municipal Corporation of Hyderabad, has appointed the 2nd respondent as the Assistant Public Prosecutor of Municipal Corporation of Hyderabad to conduct all cases in respect of the offences punishable under the provisions of the Hyderabad Municipal Corporation Act, 1955 and the rules and bye-laws made thereunder in the Court of the VII Metropolitan Magistrate, Hyderabad. The petitioner, Sri K. Tirupati, an advocate, has filed this writ petition for a quo warranto under Art. 226 of the Constitution questioning the appointment of the 2nd respondent as Assistant Public Prosecutor.
3. Sri B. Veerabhadra Rao, the learned counsel for the petitioner, has ably argued the case. He submitted that the appointment of Assistant Public Prosecutors is governed by the Rules framed by the Governor under Art. 309 of the Constitution according to which, only an advocate with three years' active practice could be appointed as Asstt. Public Prosecutor and the 2nd respondent is not a practising advocate. He further submitted that the appointment of departmental persons for the conduct of the prosecutions is contrary to S. 25 of the Cr. P.C He also urged that under S. 29 of the Advocates Act only advocates could be appointed as Assistant Public Prosecutors.
4. On the other hand, it was submitted by Sri Y. Suryanarayana, the learned counsel for the 2nd respondent, and Sri A.M Srinivasa Rangachary, standing counsel for the Municipal Corporation of Hyderabad that the appointment of the 2nd respondent is under Sec. 137 of the Hyderabad Municipal Corporation Act, that the rules framed by the Governor under Art. 309 of the Constitution relating to appointment of Assistant Public Prosecutors do not apply to him and the appointment of the 2nd respondent as Assistant Public Prosecutor is not opposed to the provisions of Sec. 25 of the Cr. P.C, 1973. They have also placed before me some G.O issued by the Government, whereunder departmental persons have been appointed as Assistant Public Prosecutors to conduct prosecutions in Magistrate's Court under special enactments, like the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Andhra Pradesh Weights and Measures Act, 1958 and the Railwaj Property (Unlawful Possession) Act, 1966.
5. There is no dispute about the facts. The 2nd respondent was an employee of the Municipal Corporation of Hyderabad. He was working as a Lower Division Clerk. He is a Law graduate. He was promoted as a Court Inspector which post was subsequently redesignated as Assistant Public Prosecutor. He was appointed under sub-sections (4) and (5) of S. 137 of the Hyderabad Municipal Corporation Act, which provides for appointment of officers and servants of the Corporation. Under sub-sections (4) and (5) of that section, the Government of Andhra Pradesh, redesignated the post of Court Inspector as Assistant Public Prosecutor and issued a notification under S. 25(1) of the Cr. P.C, 1973, appointing the 2nd respondent as Assistant Public Prosecutor to conduct cases arising under the Hyderabad Municipal Corporation Act and the rules and bye-laws made thereunder. Thus, he is an employee of the Municipal Corporation of Hyderabad and he is governed by the service conditions of the employees of the Municipal Corporation of Hyderabad. He was not appointed under the rules made by the Governor under the proviso to Art. 309 of the Constitution for appointment of Asstt. Public Prosecutors. His appointment is outside these rules. At the same time, he was appointed as Assistant Public Prosecutor by the Government under Section 25 of the Cr. P.C The question is whether in these circumstances his appointment is invalid?
6. Section 2(e) of the Cr. P.C, 1973, defines “Public Prosecutor” as meaning any person appointed under S. 24, and includes any person acting under the directions of a Public Prosecutor. Section 24 refers to Public Prosecutors. It says, that for every High Court, the Central Government or the State Government shall appoint a Public Prosecutor and may also appoint one or more additional Public Prosecutors. Similarly, the Central Government may appoint one or more Addl. Public Prosecutors for the purpose of conducting any case or class of cases in any district or local area. So also for every district the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the District. A person shall be eligible to be appointed as Public Prosecutor or Additional Public Prosecutor only if he has been in practice as an advocate for not less than seven years. So also the Central Government or the State Government may appoint for the purpose of any case or class of cases a person who has been in practice as advocate for not less than ten years as a Special Public Prosecutor. Obviously, the appointment of the 2nd respondent is not made under this section and it has no application to him. It is made under Sec. 25 of the Cr. P.C which reads as follows:
“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 Court 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.
(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”.
7. A reading of the section shows that the State Government can appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates. So, also, the Central Government can appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the Courts of Magistrates. Normally, no police, officer is eligible to be appointed as Assistant Public Prosecutor. But, 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, if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted, or if he is below the rank of Inspector.
8. Section 25 does not say like Section 24 that the Assistant Public Prosecutor should also be a practising advocate. In fact under Section 25, under certain conditions, even a Police Officer can be appointed as Assistant Public Prosecutor. Thus, for an appointment made under Section 25, the rules made by the Governor under the proviso to Art. 309 of the Constitution for appointment of Assistant Public Prosecutors, and the provisions of the Advocates Act, need not always apply. Consequently, if the appointment of the 2nd respondent is under Section 25 of the Cr. P.C, the argument that his appointment is not under the Rules made by the Governor under Article 309 of the Constitution for appointment of the Assistant Public Prosecutors and also that his appointment is contrary to the provisions of the Advocates Act, will lose all its significance.
9. Evidently, in this case, the 2nd respondent was appointed as Assistant Public Prosecutor under Section 25(1) of the Cr. P.C by the State Government to conduct cases arising under the Hyderabad Municipal Corporation Act in Criminal Courts within the Municipal limits of Hyderabad and Secunderabad. He cannot conduct any other cases and also in other Courts outside the Municipal limits of Hyderabad and Secunderabad. Thus, his appointment is for a limited purpose and he is appointed for that limited purpose only in one Court, that is, VII Metropolitan Magistrate's Court at Hyderabad. Since he is appointed under Section 25, even if he is a Departmental person and if he is not practising as an advocate, it does not matter, for Section 25 contemplates appointment of persons as Assistant Public Prosecutors who are not advocates and who can also be Departmental persons. I do not agree with the learned counsel for the petitioner that if a Departmental person is appointed as Assistant Public Prosecutor, he will be always interested in securing a conviction. That apart, if he could be validly appointed under Section 25 of the Cr. P.C, then this Court cannot set aside that appointment when the vires of Section 25 has not been challenged and when it also reflects the policy of the Legislature.
10. Now I will refer to the decisions cited by the learned counsel for both parties.
11. In Baban v. Sambamurthy, 1980 Cri LJ 248 (Andh Pra) the 1st respondent therein was appointed as Assistant Police Prosecuting Officer to conduct prosecution in the Criminal Courts in the State. It was contended that he was a Police Officer under the control of the Police Department, that he was not appointed by the State Government and as such he was not competent to conduct the prosecution. A bench of this Court held that the Cr. P.C does not totally prohibit the entrustment of the prosecution case to a Police Officer altogether, and does authorise, subject to certain limitations, the appointment of police officers as Assistant Police Prosecuting Officers to conduct prosecution in specific cases. They also distinguished the decision of the Allahabad High Court in Jaipal… v. State Of U.P…., 1976 Cri LJ 32.
12. In Jaipal… v. State Of U.P…., 1976 Cri LJ 32 it was held that the order of the U.P Government placing the Assistant Public Prosecutors under the administrative and disciplinary control of the Superintendent of Police at the District level, and the Inspector-General of Police at the State level, is inconsistent with Section 25 of the Criminal P.C and hence liable to be set aside. After referring to Section 25 of the Cr. P.C.K.N Singh, J., observed that the power conferred under sub-section (3) of that section can be exercised in exceptional cases for conducting a particular case and it cannot be exercised for making general appointments to conduct cases before the Magistrates' Courts. This is not a case of making general appointments to conduct cases in Magistrates' Courts.
13. State of Haryana v. Shamsher Jang, (1972) 2 SCC 188 : AIR 1972 SC 1546 was relied upon to show that the Government is not competent to alter by means of administrative instruction the conditions of service prescribed by the rules made under Article 309 of the Constitution. To the same effect is S.L Sachdev v. Union of India, (1980) 4 SCC 562 : AIR 1981 SC 411.
14. I do not see how these decisions are relevant. As stated by me already, no new post has been created. Only the existing post of a Court Inspector is redesignated as Assistant Public Prosecutor and it is a post borne on the cadre of Municipal Corporation. The Government is the sanctioning authority for that post and it has sanctioned it. No rules have been framed for the post under Section 139 read with 585 of the Hyderabad Municipal Corporation Act. It cannot be disputed that even in the absence of rules a post can be created and recruitment could be made for that post by the State Government in the exercise of its executive power under Article 162 of the Constitution. See B.N Nagarajan v. State of Mysore. AIR 1966 SC 1942 and Sant Ram v. State of Rajasthan, AIR 1967 SC 1910.
15. Since the 2nd respondent is an employee of the Municipal Corporation of Hyderabad, the rules made by the Government under Article 309 of the Constitution for appointment of Assistant Public Prosecutors do not apply to him. Further, his appointment is limited only to conduct prosecutions for offences arising under the Hyderabad Municipal Corporation Act and it is covered by Section 25 of the Cr. P.C, 1973. He is a law graduate. In fact, he has been conducting prosecutions as a Court Inspector. Because an objection was taken by the accused that he was not appointed as Asistant Public Prosecutor by the Government under Section 25 of the Cr. P.C, the Government issued the notification redesignating the post as Assistant Public Prosecutor and appointing him as Assistant Public Prosecutor under Section 25 of the Cr. P.C It is common knowledge that under some special enactments like Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, Andhra Pradesh Weights and Measures Act, 1958 and the Railway Property (Unlawful Possession) Act, 1966, departmental officials, who are law graduates, are appointed as Assistant Public Prosecutors to conduct prosecutions in cases arising under these enactments. Because the Hyderabad Municipal Corporation has administrative control over the 2nd respondent, I do not think that, on that score, he is disabled from conducting prosecutions in cases arising under the Hyderabad Municipal Corporation Act or that he will not conduct the prosecution fairly and impartially. In the result, I hold that the appointment of the 2nd respondent as Assistant Public Prosecutor to conduct cases arising under the Hyderabad Municipal Corporation Act is valid and I dismiss this writ petition, but in the circumstances of the case, without costs. Advocate's fee Rs. 100/-.
16. Petition dismissed.
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