HIGH COURT OF CHATTISGARH AT BILASPUR
W.A.No.86 of 2009
Chandrahas Kashyap and another
...Petitioners
Vs
The State of Chhattisgarh and Ors
...Respondents! Shri Parag Kotecha and Shri Raghvendra Pradhan,
counsel for the appellants
^ Shri Sumesh Bajaj, Government Advocate with Shri
Ajit Singh, Panel Lawyer for the
State/respondents no.1 & 3
Shri Ghanshyam Patel, counsel for respondent
No.2.
Honble Shri I.M. Quddusi,Honble Shri Prashant Kumar Mishra,JJ
Dated : 05/04/2010
: Judgment
Writ Appeal under Section 2 (1) of the Chhattisgarh
High Court (Appeal to Division Bench) Act, 2006
ORAL ORDER
(05.04.2010)
Per I.M. QUDDUSI, J
1. Heard counsel for the parties at length.
2. This Writ Appeal has been filed against the
impugned order dated 28/02/09 passed by learned
Single Judge in Writ Petition (S) No. 59/08.
3. It is alleged in the writ appeal that the writ
appellants were selected by the Public Service
Commission in a selection process conducted in
the year 2006 for the post of Assistant District
Public Prosecution Officer (ADPPO) vide
advertisement dated 21/09/06, issued by the
Chhattisgarh Lok Seva Ayog, in which the total
number of posts advertised was 32 with a
condition that the number of vacancies may vary.
Secondly their names were found place in the
merit list, but they were not given appointments
and the District Magistrates were directed by the
State Government to make appointment under
section 25 of the Cr.P.C. on contract basis.
Thereafter, the District Magistrate advertised
the vacancies for making contractual appointments
on 12/14.12.07 for a period of one year. It has
been mentioned that the post of ADPPO is a Class-
II Gazetted post and is within the purview of the
Public Service Commission, therefore in the year
2006, the Public Service Commission, after making
selection, made recommendations to the State
Government submitting merit list of 105
candidates in respect of all categories,
including reserved category candidates.
4. The learned Single Judge has in his judgment and
order observed that the State Government alone is
competent to appoint the Assistant Public
Prosecutors or ADPPOs. However, in accordance
with the above quoted provisions, in a situation
where no APP is available for the purpose of any
particular case, the District Magistrate may
appoint any other person to be the APP in charge
of that case alone. The District Magistrate
cannot appoint the ADPPOs, in general, on
contract basis under section 25 of Cr.P.C.
However, the learned Single Judge has directed
that the contract appointees may continue till
regular appointment is made through proper
selection by the Public Service Commission or
term of extension of the candidates appointed on
contract basis is over, whichever is earlier.
5. Before proceeding further, it is necessary to
peruse the provisions of section 25 of Cr.P.C.
which are quoted as under:
“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 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.
(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.
6. A perusal of the above quoted provisions of
section 25(3) Cr.P.C. would show that the
District Magistrate has been given powers to
appoint a person to be Assistant Public
Prosecutor in charge of that case with a
condition that where no Assistant Public
Prosecutor is available for the purpose of any
particular case. The expression of words “any
other person” shows that if a person in charge of
a particular case is not available, only in that
case any other person be appointed to be Public
Prosecutor in charge of that case. The
Legislature has taken care of writing the words
“any other person” and as such there is
difference between the phrases “any other person”
and “a person”. The phrase “any other person”
denotes the substitute of a person and as such if
any person appointed as Assistant Public
Prosecutor to conduct a case is not available,
only in that circumstance, the District
Magistrate can appoint any other person in his
place to act as Assistant Public Prosecutor in
charge of that case.
7. Therefore, a plain reading of section 25 Cr.P.C.
shows that the State Government in every District
of the State and the Central Government, are
empowered to make appointments of one or more
Assistant Public Prosecutors as a whole. The
difference in appointment by the State and the
Central Government is that the State Government
to appoint in each district of the State one or
more Assistant Public Prosecutors for conducting
the prosecution in the courts of Magistrates, but
it is not the obligation of the central
Government to appoint one or more public
prosecutors in each district and also the central
Government may appoint the Assistant Public
Prosecutor to conduct any case or class of cases
in the Courts of Magistrates. The above power of
the State Government cannot be exercised by the
District Magistrate under sub-section (3) of
section 25. Therefore, the District Magistrate
can exercise powers which are to be exercised in
emergent cases where the Assistant Public
Prosecutor to conduct a particular case is not
available.
8. It is also pertinent to mention here that “Public
Prosecutor” has been defined in 2(u) of the Code
of Criminal Procedure, according to which, the
“Public Prosecutor” means any person appointed
under section 24, and includes any person acting
under the directions of a Public Prosecutor.
Therefore, if the Public Prosecutor directs any
person to act as Public Prosecutor, the same is
valid appointment in view of section 2(u).
Hence, the Public Prosecutor appointed u/s 24 of
Cr.P.C., has power to direct any person to act as
Public Prosecutor which the District Magistrate
does not enjoy u/s 25 of Cr.P.C.
9. In view of the above discussion, we are in full
agreement with the view taken by the learned
Single Judge that the District Magistrate cannot
appoint ADPPOs in general on contract basis u/s
25(3) Cr.P.C. The learned single judge has also
directed that the appointments of ADPPOs on
contract basis shall continue till regular
selection is made or till the end of the period
of extension of appointment, whichever is
earlier.
10. The service of ADPPOs are essential service as
the Courts of Magistrates cannot remain without
prosecuting officer, and therefore, the Courts
may not remain without a prosecuting officer and
it was necessary to give some time to the State
Government to make some alternative arrangements
and as such the learned single judge specifically
directed that the contractual appointments shall
continue till the end of the period of extension
of these ADPPOs granted after the expiry of the
period of their initial appointments, but the
State Government has not made any alternative
arrangements and their appointments of ADPPOs
continued even after expiry of the period of
extension of their appointments, which appears to
be violative of the directions of the learned
single judge and we do not expect this action by
the State Government.
11. We have been informed by the learned State
Counsel that according to his instructions, the
total number of posts of ADPPOs are 193, out of
which, only 51 are working and thus there are 142
vacancies, out of which, selection was made by
the Public Service Commission against 99 posts by
issuing advertisement, but the said selection
process is under challenge in W.P(S).
No.6383/2008, in which, the final arguments have
been heard and the judgment has been reserved and
the interim order was also granted therein. The
statement of the learned counsel for the Public
Service Commission was also recorded in the court
proceedings by this Court that “learned counsel
appearing for the Public Service Commission
submits that no results shall be declared till
the next date of hearing.” Any how, since the
judgment has been reserved, the State had to make
an alternative arrangement complying with the
orders passed by the learned single Judge as
mentioned above.
12. Learned counsel for the appellants submits that
the State Government has acted upon the selection
list of 2006, in which, their names find place by
making appointments of Mr. Raj Kumar Mishra, Mr.
Slok Shrivastava, Mr. Krishna Kumar Chaturvedi
and Miss. Seema Jagdalla on 28.7.2009 and as
such once the select list of 2006 was being acted
upon in 2009, there was no occasion for the
District Magistrate to make appointments on
contract basis.
13. Though the above facts could be raised by the
writ appellants at the initial stage but the same
cannot be considered in the instant writ appeal
as those contentions are not available in the
writ petition. Therefore, for that purpose, it
will be open for the writ appellants to approach
the State Government or to take recourse to any
further provisions of law, if they are so
advised.
14. Learned counsel for the writ appellants states
that the appellants shall approach the State
Government by filing representations within a
week. If it is so, the State Government shall
consider the same in the light of the observation
made above, as early as possible, within a period
of one month from the date of moving such
representations.
15. The writ appeal stands disposed of with the above
direction.
16. No order as to costs.
JUDGE