2008 (7) TMI 961 - SC - Indian Laws

State jurisdiction over appointment of Public Prosecutors clarified by Supreme Court ruling

The Supreme Court held that the State of Tamil Nadu lacked authority to appoint Public Prosecutors for a case transferred to Pondicherry. It was ... Transfer of trial in the interest of justice - appointment of Public Prosecutor under Section 24 of the Code of Criminal Procedure - power of transferee State to appoint Public Prosecutor - appointment of Special Public Prosecutor - effect of inter-State transfer on prosecutorial control - liability of transferor State to bear prosecution expensesAppointment of Public Prosecutor under Section 24 of the Code of Criminal Procedure - effect of inter-State transfer on prosecutorial control - Whether the Government of the transferor State retains the power to appoint the Public Prosecutor to conduct the trial after a criminal case is transferred to a court in another State. - HELD THAT: - A conjoint reading of Chapter II and Section 24 shows the power to appoint a Public Prosecutor or Additional Public Prosecutor is vested in the State Government for prosecutions before courts within that State. Once a sessions case is transferred under the power exercised in the interest of justice to a court situated in another State, the transferor State ceases to have control over prosecution in the transferee State's courts. While this Court may, when ordering transfer, direct which State should appoint the prosecutor in a particular case, absent such direction the statutory scheme in Section 24 governs and the appropriate (transferee) State Government has the authority to appoint the Public Prosecutor for trials held within its territorial jurisdiction. [Paras 7, 10]The transferor State (Tamil Nadu) does not retain the right to appoint the Public Prosecutor for the trial after the case is transferred; the State to whose territory the case is transferred (Pondicherry) is the appropriate appointing authority unless this Court directs otherwise.Appointment of Special Public Prosecutor - power of transferee State to appoint Public Prosecutor - Whether the transferee State may appoint a Special Public Prosecutor and whether the counsel so appointed must be a lawyer of that State. - HELD THAT: - Section 24(8) is a special provision enabling the Central Government or a State Government to appoint a Special Public Prosecutor for any case or class of cases, subject to prescribed qualification (ten years' practice). The transferee State has the power to make such an appointment for a case pending in its courts. The Court clarified that the transferee State may appoint any counsel meeting the statutory qualifications irrespective of whether the advocate ordinarily practices in that State. [Paras 8, 11]The State of Pondicherry may appoint a Special Public Prosecutor to conduct the trial and is not restricted to appointing a lawyer resident or ordinarily practising in Pondicherry, provided the appointee satisfies the statutory qualifications.Liability of transferor State to bear prosecution expenses - appointment of Public Prosecutor under Section 24 of the Code of Criminal Procedure - Which State bears the expenses of prosecution after a case is transferred inter-State. - HELD THAT: - Although the authority to appoint the Public Prosecutor for the trial in the transferee State rests with that State, the Court noted that where the case was registered by the transferor State and the transfer was effected for reasons of fair trial, the financial burden of conducting the prosecution (including advocate fees payable to the Public Prosecutor, Additional or Special Public Prosecutor) in the transferee State is to be borne by the transferor State. The Court recommended consultation between the Home Departments of the two States to implement this arrangement. [Paras 11]The expenses for conducting the trial in the transferee State shall be borne by the transferor State (Tamil Nadu), although the appointment is to be made by the transferee State (Pondicherry).Transfer of trial in the interest of justice - power of transferee State to appoint Public Prosecutor - Whether the High Court's order upholding the appointment by the transferor State should be sustained. - HELD THAT: - The Court examined the statutory scheme and the transfer order and found no direction in the transfer to preserve appointment rights for the transferor State. Applying the principles governing appointment under Section 24 and the territorial competence of State Governments to appoint prosecutors for courts within their States, the High Court's confirmation of the Sessions court order (which allowed Tamil Nadu to appoint the prosecutors) was inconsistent with the statutory scheme as interpreted. Consequently, the High Court order was set aside and the transferee State was directed to continue prosecution in accordance with law. [Paras 7, 10, 12]The High Court order is set aside; Pondicherry may continue the prosecution and appoint prosecutors in accordance with law.Final Conclusion: The appeal is allowed in part: on an inter-State transfer the transferee State (Pondicherry) is the appropriate authority to appoint the Public Prosecutor, Additional Public Prosecutor or Special Public Prosecutor under the statutory scheme, the transferee State may appoint any qualified advocate irrespective of State of practice, but the financial burden of prosecution in the transferee State shall be borne by the transferor State (Tamil Nadu); the High Court order upholding the transferor State's appointment is set aside and Pondicherry is directed to continue prosecution in accordance with these principles. Issues Involved:1. Jurisdiction to appoint Public Prosecutors.2. Authority of the State of Tamil Nadu to appoint Public Prosecutors for a case transferred to Pondicherry.3. Applicability of Section 24 of the Code of Criminal Procedure (Cr.P.C.).4. Ensuring a fair trial for the accused.Detailed Analysis:1. Jurisdiction to appoint Public Prosecutors:The appellant challenged the appointment of Public Prosecutors by the State of Tamil Nadu for a case transferred to Pondicherry. The court examined the provisions of Chapter II of the Cr.P.C., particularly Section 24, which deals with the appointment of Public Prosecutors. It was concluded that the State Government has the power to appoint Public Prosecutors for cases within its jurisdiction. Once a case is transferred to another state, the transferor state no longer has control over the prosecution in the transferee state.2. Authority of the State of Tamil Nadu to appoint Public Prosecutors for a case transferred to Pondicherry:The appellant contended that the State of Tamil Nadu had no right to appoint Public Prosecutors for a case pending in Pondicherry. The court held that the State of Tamil Nadu could not appoint Public Prosecutors for cases outside its jurisdiction. The power to appoint Public Prosecutors for the transferred case lies with the State of Pondicherry, as per Section 24 of the Cr.P.C.3. Applicability of Section 24 of the Code of Criminal Procedure (Cr.P.C.):Section 24 of the Cr.P.C. outlines the procedure for appointing Public Prosecutors. The court emphasized that the power to appoint Public Prosecutors for a district or sessions division rests with the state government where the trial is conducted. In this case, since the trial was transferred to Pondicherry, the State of Pondicherry has the authority to appoint Public Prosecutors.4. Ensuring a fair trial for the accused:The transfer of the case from Tamil Nadu to Pondicherry was based on the apprehension that the accused would not receive a fair trial in Tamil Nadu. The court noted that the role of the Public Prosecutor is crucial in ensuring a fair trial. Therefore, allowing the State of Tamil Nadu to appoint Public Prosecutors for a case in Pondicherry would undermine the purpose of the transfer. The court directed that the State of Pondicherry appoint the Public Prosecutor to ensure impartiality and fairness in the trial.Conclusion:The Supreme Court set aside the impugned order of the High Court, directing that the State of Pondicherry appoint the Public Prosecutor for the case. The expenses for conducting the trial, including the Advocate fees, are to be borne by the State of Tamil Nadu. The appeal was allowed to the extent indicated, ensuring that the prosecution of the case continues in accordance with the law under the jurisdiction of Pondicherry.