State Govt Has Power To Appoint Public Prosecutors Besides Regular Cadre: Madras HC Dismisses Plea Challenging Prosecutors' Appointment

“We conclude by writing that the powers of the State Government to appoint Public Prosecutors or Additional Public Prosecutors under sub[1]Section (6-A) of Section 24 of Cr.P.C. is de hors the regular cadre and it can be resorted to and this is besides the powers of the State Government (as well as the Central Government) to appoint Special Pubic Prosecutors in a particular cases or for a class of cases vide sub-section (8) which is a stand alone subsection which is also intact,” the court said.

The bench of Justice M Sundar and Justice R Sakthivel was hearing a plea by Advocate, Suresh Kumar challenging the appointment of Public Prosecutors and Additional Public Prosecutors in District courts within the territorial jurisdiction of the Madurai bench. It was contended that the Government was appointing District Public Prosecutors and Additional Public Prosecutors without taking recourse to recruitment of cadre Public Prosecutors/Additional Public Prosecutors.

The State Public Prosecutor, relied upon the decision of the Apex Court in K.J.John Vs. State of Kerala and others wherein the Supreme Court had made a definite finding that State Governments are not bound to appoint Public Prosecutors or Additional Public Prosecutors only from among the persons constituting cadre under the Code of Criminal Procedure for conducting cases in the Sessions Court.

The prosecutor also pointed to the SC/ST (Prevention of Atrocities) Act, the POCSO Act, etc which provided for the appointment of Special Public Prosecutors/Exclusive Public Prosecutors. It was submitted that as per Section 24(8) of CrPC, the Central and the State Governments may appoint Special Public Prosecutors with ten years standing at the bar for any case or class of cases. The proviso to the above section also allows the victims to engage an advocate of their choice to assist the prosecution.

The court observed that after the Tamil Nadu amendment to Section 24 of CrPC, sub-section 6A was added which gave powers to the State Government to appoint Public Prosecutors/Additional Public Prosecutors besides the regular cadre. The court thus upheld the State's power and added that the provisions of sub section (4) and (5) of Section 24 of the CrPC would have to be diligently adhered to.

Thus, the court opined that the petition deserved to be dismissed as the plea failed to cut ice.

Counsel for the Petitioner: Mr.S.I.Muthiah

Counsel for the Respondent: Mr.Shunmugasundaram Advocate General, instructed by Mr.A.Thiruvadi Kumar Additional Public Prosecutor, assisted by Ms.Shakeena, Mr.Hasan Mohamed Jinnah State Public Prosecutor, assisted by Mr.A.Thiruvadi Kumar Additional Public Prosecutor and Mr.S.Santhosh Government Advocate.

Citation: 2023 LiveLaw (Mad) 411

Case Title: R Suresh Kumar v The Principal Secretary to Government

Case No: W.P.(MD)No.29723 of 2023