Director Of Prosecution Has To Perform Substantive Functions, 'In-Charge' Arrangement Not Encouraged: Karnataka HC Removes HK Jagadish From Post

The Karnataka High Court has removed HK Jagadish as incharge 'Director of Prosecution and Government Litigation', holding his appointment to be illegal and contrary to the statutory provisions of Section 25A(2) of the Code of Criminal Procedure.

A division bench of Chief Justice N V Anjaria and Justice Krishna S Dixit said the provision prescribes specific qualifications and conditions for appointment to the august office and there is no dispute that Jagadish does not possess the same.

The bench went on to express dismay with the State government for periodically extending his term and discouraged "in-charge" arrangement for a post with substantive functions. It observed,

"When the incumbent on in-charge basis cannot discharge the substantive functions of the said office. No enabling rule or a ruling is cited to justify such an act.Therefore, we deprecate such an unhealthy practice of placing any official in charge of the office of the Director of PP."

Karnataka government had notified Prosecutions and Government Litigations (Recruitment) Rules, 2012, providing for appointment to the post of Director of Prosecution, by selection from amongst the eligible candidates in the cadre of Deputy Directors in the Directorate by way of promotion.

Advocate Sudha Katwa, who had approached the court last year seeking a writ of Quo Warranto, claimed that Jagadish had not worked as Assistant Public Prosecutor or Deputy Prosecutor in the department and that his appointment was on the strength on his political connections.

Finding force in these allegations, Court said,

"Admittedly, the present incumbent namely the fourth respondent herein does not fill the character prescribed by law. He is only an official in the Law Secretariat of the Government...The very object of creating a separate Directorate for the purpose of prosecution of criminal cases is to ensure a fair measure of autonomy and to enhance the efficacy level of the office...The DPP has significant powers to make decisions about how cases are to be conducted on normative basis and also to ensure fairness in the prosecution process. The office of Director of Prosecution plays a pivotal role in the prosecution of offenders under a plethora of criminal statutes. Independence of the prosecutor's function stands at the heart of the rule of law. They do not take orders from anyone, but do things at their discretion independent of the Executive."

The government submitted that since the appointment in question is not a regular one, therefore requirement of Section 25A need not be complied with. It defended the in-charge arrangement citing lack of eligible Deputy Directors in the department at the relevant time and submitted that now steps are being taken for making regular appointment to the post.

However, Court said Section 25A CrPC prescribes concurrence of the Chief Justice of the High Court, as a sine qua non for appointment to the post of Director.

"The object of prescribing such a condition is to ensure that only a worthy candidate is placed in the said office. The candidate should have a high standing in the occupation of law, and his credentials should be unimpeachable. Such a requirement cannot be dispensed with even whilst placing someone in the office by way of in-charge, independent charge or additional charge arrangement. An argument to the contrary would virtually strike the death knell of Section 25A of the Code,” it held.

Court said in-charge/independent arrangement can be made in exigencies of public administration however, its tenure should be too short to be little.

Accordingly, Court set aside Jagadish's appointment and directed the State to select and appoint an eligible and qualified candidate to the office in question with the concurrence of Chief Justice, within eight weeks.

Appearance: Advocate Umapathi S for Petitioner.

Advocate Arihant R Sungay for Advocate Sumana Naganand for R1.

AGA Niloufer Akbar FOR R2 TO R4.

Citation No: 2024 LiveLaw (Kar) 137

Case Title: Sudha Katwa AND The Registrar General & Others

Case No: WRIT PETITION NO. 11387 OF 2023

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