ORDER
M. Jeyapaul, J.
1. The petition is filed challenging the order passed by the learned Principal District and Sessions Judge, Pondicherry, dismissing the plea of the petitioner to declare that the Special Public Prosecutors, appointed by the Government of Tamil Nadu, have no right to conduct the prosecution in S.C. No. 94 of 2005 and that the Special Public Prosecutor appointed by the Union Territory of Pondicherry alone has the right to conduct the prosecution in the case.
2. The petitioner is the second accused in a case of murder. For an occurrence of murder which allegedly took place at Kancheepuram in Tamil Nadu, a case in Crime No. 914 of 2004 was registered by B.2, Vishnu Kanchi Police Station. The Investigating Officer in the case laid chargesheet against the petitioner herein and 23 other accused for offences under Sections 120-B read with Section 302, 449, 213, 214, 201, 109 and 34 of the Indian Penal Code before the learned Judicial Magistrate No. I, Kancheepuram in Tamil Nadu. On a committal by the said learned Judicial Magistrate, the case was taken on file in S.C. No. 191 of 2005 for further proceedings by the learned Principal Sessions Judge, Chinglepet.
3. It was at that stage a transfer application for transfer of the case from the State of Tamil Nadu was filed in Transfer Petition (Crl.) No. 134 of 2005, seeking transfer of the said sessions case from the file of the Principal Sessions Court, Chinglepet in Tamil Nadu to some other State. The Hon’ble Supreme Court was pleased to transfer S.C. No. 191 of 2005 pending on the file of the learned Principal Sessions Judge, Chinglepet to the Principal Sessions Judge, Pondicherry for disposal of the said sessions case according to law.
4. When the Principal Sessions Judge, Pondicherry was about to commence the proceedings after renumbering the said case in S.C. No. 94 of 2005 on its file, the second accused chose to file an application under Section 24(8) of the Code of Criminal Procedure praying to declare that the Special Public Prosecutors, appointed by the Government of Tamil Nadu, have no right to conduct the prosecution and that the Special Public Prosecutors appointed by the Government of the Union Territory of Pondicherry alone has the right to conduct the prosecution of the case.
5. The learned Principal Sessions Judge, Pondicherry, after elaborate discussion of the issues arisen in the application, dismissed the application filed by the second accused observing therein that though the case is now being tried by a Court established by the Government of the Union Territory of Pondicherry, it has no power to appoint a Special Public Prosecutor to conduct the case originated from Tamil Nadu and was transferred to Pondicherry just for the purpose of conducting the trial by the Hon’ble Supreme Court in a transfer application.
6. Learned counsel for the petitioner would submit that though the case did originate from the State of Tamil Nadu, the Government of Tamil Nadu has no power to appoint the Special Public Prosecutors to conduct the case which has been taken up for disposal by the Court situate within the Union Territory of Pondicherry. The next submission made by him is that as there is no provision under Section 24(8) of the Code of Criminal Procedure, the Government of Tamil Nadu cannot legally appoint Additional Special Public Prosecutors to conduct the case. The third submission made by the learned counsel for the petitioner is that the Government of Tamil Nadu cannot pass an administrative order, by issuing Government Order, to relax the basic requirement for the appointment of a Special Public Prosecutor as contemplated under Section 24(8) of the Code of Criminal Procedure.
7. Learned Special Public Prosecutor would submit that the Union Territory of Pondicherry can appoint a Public Prosecutor or a Special Public Prosecutor only for conducting the cases which arise in the Union Territory of Pondicherry. The Government of Tamil Nadu has every right to appoint Special Public Prosecutor to conduct the case which has been transferred from its territorial domain, it is contended. In addition to the Special Public Prosecutor, Additional Special Public Prosecutors have been appointed just to assist the Special Public Prosecutor considering the voluminous work involved in the sensational case of murder and that, therefore, the relaxation in the matter of appointment of Additional Special Public Prosecutors cannot be termed as illegal. Though Section 24(8) of the Code of Criminal Procedure speaks of appointment of a Special Public Prosecutor, there is nothing wrong in appointing Additional Special Public Prosecutors to assist the Special Public Prosecutor on account of the enormous home work involved in the matter of preparation of the case.
8. It is very much relevant to incorporate the text of Section 24(8) of the Code of Criminal Procedure for better appreciation of the case on hand:
Section 24. Public Prosecutors.–
(8) The Central Government or the State Government may 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.
To deal with a specific case or class of cases, a Special Public Prosecutor who has ten years of practice as an advocate in the Bar can be appointed by the State Government or the Central Government as the case may be as per the above provision of law.
9. Section 24 of the Code of Criminal Procedure does not specifically debar appointment of Additional Special Public Prosecutors. Here is a case where the State will have to scan voluminous documents, examine a lot of witnesses after doing sufficient home work to prove the case to the hilt. The mammoth task cannot be executed by one Special Public Prosecutor to perform the uphill task. When there is no specific bar enshrined in Section 24 of the Code of Criminal Procedure to appoint Additional Special Public Prosecutors, the Court finds that there is nothing wrong in appointing Additional Special Public Prosecutors simply for the purpose of assisting the Special Public Prosecutor to conduct the prosecution case.
10. On a perusal of the Government Order passed by the Government of Tamil Nadu, it is found that two persons by name Mr. P.S.Nagarajan and Mr. K.S.Ramasamy, who have been appointed as Additional Special Public Prosecutors to assist the Special Public Prosecutor do not have the required Bar experience of ten years. The Government of Tamil Nadu has chosen to relax the provision relating to minimum Bar experience required under the provision of Section 24(8) of the Code of Criminal Procedure.
11. In this context, some authorities were cited by the learned counsel for the petitioner. The Delhi High Court in Tanvir Ahmed Mir v. Govt. of NCT of Delhi 2004 CRI. L.J. 3777 observed as follows:-
It is well settled that the administrative instructions cannot override and contradict clear-cut statutory provisions. When the statute prescribes a minimum eligibility criteria, an administrative instruction, cannot prescribe a different minimum. If it does, it would be in conflict with the statutory provisions and clearly the statute would override.
The Delhi High Court has thus held that administrative instructions cannot override statutory mandates.
12. The Allahabad High Court in Virendra Singh v. State of U.P. 2002 CRI. L.J. 4625 declared as illegal, the State Government notification purporting to amend the Code of Criminal Procedure even without the assent of the President of India. The relevant paragraphs in the aforesaid judgement reads as follows:-
Section 10 of the Criminal Law Amendment Act, 1932 does not give power to the State Government to amend by a notification any part of the Criminal Procedure Code 1973. Since the Cr.P.C. of 1898 has been repealed by Section 484 of the Cr.P.C. Act, 1973 we are of the opinion that Section 10 of the Criminal Law Amendment Act, 1932 has become redundant and otiose. Hence in our opinion no notification can now be made under Section 10 of the Criminal Law Amendment Act, 1932. Any such notification is illegal for the reason given above. Hence we declare notification No. 777/VIII-9 4(2)-87, dated July 31, 1989, published in the U.P.Gazette, Extra Part 4, Section (kha), dated 2nd August, 1989 by which Section 506, I.P.C. was made cognizable and non bailable to be illegal. Section 506, I.P.C. has to be treated as bailable and non-cognizable offence.
There is another reason also why the aforesaid notification of 1989 is illegal. The Cr.P.C. of 1973 is a Parliamentary enactment. An act can only be amended by another Act or by an Ordinance, not by a simple notification. Moreover, a Central Act cannot be amended even by a U.P. Act unless the assent of the President is taken vide Article 254(2) of the Constitution. The notification of 1989 purports to amend a Central Act (the Cr.P.C. of 1973) even without the assent of the President.
13. It has been made clear that the State Government has no authority to modify the procedures engrafted in the Code of Criminal Procedure by simply issuing a Government notification.
14. Section 24(8) of the Code of Criminal Procedure mandates that a Special Public Prosecutor should have Bar experience of not less than ten years. The Governor of Tamil Nadu has issued G.O.(D) No. 734/Home (Courts-VI)/Department dated 22.7.2005 appointing Mr. P.S.Nagarajan and Mr. K.S.Ramasamy, who do not have the required Bar experience of ten years, as Additional Special Public Prosecutors relaxing the minimum Bar experience required under Section 24(8) of the Code of Criminal Procedure. Though the Government has every authority to appoint any number of Additional Special Public Prosecutors proportionate to the volume of work involved in a particular case, it has no power to relax the minimum Bar experience required under Section 24(8) of the Code of Criminal Procedure just by issuing a notification. Such procedure adopted by the State Government is found not legal. Unless the provision of Section 24(8) of the Code of Criminal Procedure is amended by the procedure known to law, the Government cannot relax the requirement to suit its convenience. Therefore the State Government will have to now appoint some other competent Additional Special Public Prosecutors with required minimum experience as contemplated under Section 24(8) of the Code of Criminal Procedure in the place of Mr. P.S.Nagarajan and Mr. K.S.Ramasamy who do not have the minimum Bar experience of ten years, if the State Government prefer to have some Additional Special Public Prosecutors.
15. The Andhra Pradesh High Court in Brahmanandam v. State of A.P. 1986 (1) ALT 141 has observed that the accused can very well object to the appointment of a person as Special Public Prosecutor on the ground of reasonable apprehension of bias.
16. In this context, the learned Special Public Prosecutor submitted two authorities. The Kerala High Court in R. Balakrishna Pillai v. State of Kerala 1999 CRI. L.J. 1286 has held thus:-
In this case, the third respondent was specifically authorised to conduct the special case on behalf of the State. Though the word ‘appoint’ is used in Section 24(8) of the Code, the use of the word ‘authorised’ will not stand in the way of the third respondent in discharging his duties as a Special Public Prosecutor in the conduct of the case. He will have all the powers of a Special Public Prosecutor to conduct the case as per law. This apart, the very same point was urged by the appellant before the Special Court and the Special Judge, by order dated 27.5.1998, rejected the said contention which was not challenged by the appellant before this Court at the appropriate time. We are of the view that Ext.P.1 appointment order has been issued in accordance with the provisions of the Code and the Special Public Prosecutor will have all the powers of Public Prosecutor for conducting the prosecution on behalf of the State Government. The accused in this case cannot object to the appointment of a particular person, namely, the third respondent as Special Public Prosecutor on the ground of apprehension of bias. This contention, therefore, fails.
When the appointment has been made in accordance with the procedure contemplated under Section 24(8) of the Code of Criminal Procedure, the accused cannot challenge such appointment of Special Public Prosecutor with imaginary apprehension of bias.
17. In the very same line of the above ratio, the Karnataka High Court in Gulzar Khan v. State of Karnataka 2001 CRI. L.J. 3586 has observed as follows:-
Further it is not in dispute that the petitioner has got more than 10 years of service, and further the appointment of the 2nd respondent as S.P.P. is only with a view to safeguard the interest of the prosecution and conduct the same in the better manner to find out the truth or otherwise of the charges made against the petitioner and other accused persons. Therefore the accused persons have no say in the matter of appointment of the second respondent as Spl. P.P.
18. It is not as if the accused cannot voice his grievance over the appointment of a particular Special Public prosecutor when he can establish with materials that the Special Public Prosecutor was completely biased against the accused, but with imaginary apprehension without any basis, the accused cannot validly question the appointment of Special Public Prosecutor in a case.
19. In this case no bias has been attributed against the Special Public Prosecutor, but the genesis of the appointment alone has been questioned. Therefore, the Court does not like to enter into an enquiry of a matter which is not in dispute.
20. It was argued by the learned counsel for the petitioner that a case of murder does not require appointment of Special Public prosecutor. He cited an authority in A.K. Musliar v. Govt. of Kerala 1993 (2) CrI. L.C. 87. In that case, it appears that the High Court appointed a Special Public Prosecutor in a case of murder accepting the plea of the father of the deceased. Such an appointment by the High Court was cancelled by the Government of Kerala. When such a cancellation of appointment of Special Public Prosecutor by the High Court was challenged before the very same High Court, it is observed in the aforesaid judgment that the Special Public Prosecutor need not be appointed in each and every murder case where the accused engages a competent senior counsel. At the risk of repetition, the Court observes that there is enormous power for the Central Government and the State Government under Section 24(8) of the Code of Criminal Procedure to appoint Special Public Prosecutor to handle a particular case or class of cases. The above authority of the Kerala High Court cited by the learned counsel for the petitioner does not apply to the facts and circumstances of this case where the appointment of a Special Public Prosecutor has been done by the State Government in the background of Section 24(8) of the Code of Criminal Procedure.
21. Coming to the core issue as to whether the Government of Tamil Nadu has the power to appoint a Special Public Prosecutor to conduct the case which had slipped out of its territorial domain, as already pointed out by this Court, the occurrence had taken place, the investigation has been done, the case was taken on file, committal proceedings were conducted and the case was taken up for further proceedings only within the sessions division of Tamil Nadu. The Government which has domain over that sessions division has the authority to engage a Public Prosecutor or appoint a Special Public Prosecutor to conduct the cases arising within its jurisdiction. Unless the Hon’ble Supreme Court directs, considering the special circumstances in a particular case, to appoint 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 the Supreme Court. Further, it would be unjust to direct the transferee State Government to open the string of its purse to meet out the expenditure for the appointment of a Special Public Prosecutor.
22. In a case in K. Anbazhagan v. Superintendent of Police 2004 CRI. L.J. 583, the Hon’ble Supreme Court accepting the contention made by the petitioner therein directed the State of Karnataka, the transferee State, to appoint a Special Public Prosecutor at the cost of the State of Tamil Nadu from where the case was transferred.
23. Likewise in the famous Best Bakery case in Zahira Habibulla H. Sheikh v. State of Gujarat 2004 CRI. L.J. 2050, the Hon’ble Supreme Court considering the allegation levelled against the Public Prosecutor who conducted the case before it was transferred, directed that the same Public Prosecutor shall not be permitted to continue the trial.
24. In the light of the above decisions, this Court is of the definite conclusion that unless the Hon’ble Supreme Court directs the transferee State to appoint a Special Public Prosecutor to conduct the case transferred to its territory, the State Government within whose jurisdiction the whole case has originated has every authority to appoint Special Public prosecutor as per the mandates of Section 24(8) of the Code of Criminal Procedure.
25. It is very relevant to refer to the following dictum of a Division Bench of the Calcutta High Court in State v. Golam Rasul :-
The Calcutta High Court under the Act 41 of 1953 exercises jurisdiction as the High Court for the Andaman and Nicobar Islands. The State Government of West Bengal has not been authorised to perform the functions of the State Government of the Central Territory in Andaman and Nicobar Islands. That being so, the Legal Remembrancer of Government of West Bengal has no connection with the appeal from acquittal preferred by the Chief Commissioner of the Islands through the Public Prosecutor and therefore, has no authority to appoint any lawyer either for the appellant State or for the accused-respondent in the appeal. A provision in the Legal Remembrancer’s Manual under which there is an arrangement between Central Government and the State Government of West Bengal for appointing lawyers does not enable the Government of West Bengal to appoint any Public Prosecutor in respect of the Central Territory under Section 492 Cr.P.C. In an appeal against an order of acquittal it is the appellant-State, which is the Central Government in the case, that has the right to prosecute the appeal by appointing a properly authorised lawyer.
In an appeal preferred by the Central Territory in Andaman and Nicobar Islands, the Government of West Bengal chose to appoint a counsel for the said Central Territory. Objecting to such appointment, the Calcutta High Court has observed that the Government of West Bengal has no authority to appoint any lawyer either for the appellant State or for the accused respondent in the appeal relating to the Central Territory in Andaman and Nicobar Islands.
26. Learned counsel for the petitioner would submit that the above authority was completely misconstrued by the trial Court while passing the impugned order. On a perusal of the aforesaid judgment, this Court finds that the trial Court has rightly relied upon that decision and there was no mis-interpretation as regards the ratio laid down therein by the trial Court.
27. From the foregoing discussion, it is clear that the trial Court has rightly held that the Government of Tamil Nadu has every authority to appoint Special Public Prosecutor, but the trial Court has left open the issue as to whether the Government of Tamil Nadu has the authority to relax the requirement of Bar experience for the Additional Special Public Prosecutors to be appointed for determination by the Forum concerned. This Court, on the said issue holds that the Government of Tamil Nadu has no authority to relax the requirement by issuing a notification and appoint ineligible persons as Additional Special Public Prosecutors, but the Government of Tamil Nadu is at liberty to replace the ineligible Additional Special Public Prosecutors, viz., Mr. P.S.Nagarajan and Mr. K.S.Ramasamy with eligible and competent Additional Special Public Prosecutors to assist the Special Public Prosecutor appointed in this case.
28. With the above observations, the criminal revision case stands dismissed. Consequently, connected criminal miscellaneous petitions are also dismissed.