REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2008
(ARISING OUT OF SLP (CRL) NO. 1248 of 2006)
JAYENDRA SARASWATI SWAMIGAL
@ SUBRAMANIAM ...APPELLANT
VERSUS
STATE OF TAMIL NADU ...RESPONDENT
J U D G M E N T
K.G. BALAKRISHNAN, CJI. :
1. Leave granted.
2. The appellant herein is one of the accused in a Crime
registered by Vishnu Kanchi Police Station at Tamil Nadu.
The police after investigation filed final report on 21-1-2005
and the case was committed to the Principal Sessions Judge-
Chinglepet and was registered as Session Case No. 197/05.
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The appellant then moved this Court under Section 406 of
Code of Criminal Procedure, 1973 (hereinafter referred to as
Cr.P.C.) seeking transfer of the case to any other State. The
appellant alleged in the Transfer Petition that he was being
unnecessarily harassed by the State of Tamil Nadu and that
he would not get a fair trial. This Court in SRI JAYENDRA
SARASWATHI SWAMIGAL (II), T.N. v. STATE OF TAMIL
NADU (2005) 8 SCC 771 considered the matter in detail and
reached the following conclusion in paragraph 24 of the
judgment :-
"Taking into consideration the entire
facts and circumstances of the case and
the material on record, we have no
hesitation in holding that the petitioner
and other co-accused of the case have a
reasonable apprehension that they will
not get justice in the State of Tamil
Nadu. We would like to clarify here that
we are casting no reflection on the
district judiciary in the State of Tamil
Nadu. But it is the actions of the
prosecuting agency and the State
machinery, which are responsible for
creating a reasonable apprehension in
the mind of the petitioner and other co-
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accused that they will not get justice if
the trial is held in any place inside the
State of Tamil Nadu. We are, therefore,
of the opinion that the interest of justice
requires that the trial may be
transferred to a place outside the State
of Tamil Nadu."
Thus, the Sessions Case No. 197/2005, pending before the
Principal Sessions Judge, Chinglepet, was transferred to the
court of Principal District and Sessions Judge, Pondicherry
and was numbered as Sessions Case 94/2005.
3. The Home Department of the State of Tamil Nadu on
25-11-2005 appointed one Special Public Prosecutor and four
Additional Special Public Prosecutors for conducting the trial
of the Sessions case pending before the Principal District and
Sessions Judge, Pondicherry. The appellant herein filed a
petition before the Sessions court challenging the appointment
of the Public Prosecutors by the State of Tamil Nadu and
contended that the Special Public Prosecutor appointed by
State of Tamil Nadu has no right to conduct the prosecution of
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the Sessions case pending before the Pondicherry court,
outside the State of Tamil Nadu. The Principal Sessions
Judge, Pondicherry, by an order dated 25-1-2006, held that
under Section 24 of the Cr.P.C. the State of Tamil Nadu has
the power to appoint the Special Public Prosecutor for
conducting the trial of the case and the State had not lost its
right to appoint the Public Prosecutor, merely on account of
transfer of the case to the Sessions court at Pondicherry. The
court also noticed the fact that this Court, while transferring
the Sessions case at Pondicherry, had not specifically directed
that the State of Tamil Nadu shall not appoint a Public
Prosecutor to conduct the case.
4. The appellant preferred a Revision Petition challenging
the order passed by the Principal District and Sessions Judge,
Pondicherry. The High Court of Madras confirmed the
decision of the Sessions court and held that the offence had
been committed within the State of Tamil Nadu, the
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investigation was done by the Tamil Nadu police and the
committal proceedings had also taken place in the court at
Tamil Nadu and hence the Government of Tamil Nadu had the
domain over that sessions case and unless this Court,
considering the special circumstances, directs in a particular
case, appointment of 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 this Court. The High
Court was also of the view that it would be unjust to direct the
transferee State Government to open the purse stings to meet
out the expenditure for the appointment of a Special Public
Prosecutor.
5. The appellant has challenged the order passed by the
Sessions court as well as the High Court by which the Special
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Public Prosecutor and Additional Special Public Prosecutors
were appointed to conduct the trial of the case.
6. We heard the counsel for the appellant as well as counsel
for the State of Tamil Nadu. The counsel for the appellant
contended that the appointment of the Public Prosecutor is to
be made by the State as per the procedure prescribed under
Section 24 of Cr.P.C. It is pointed out that the Government
of Pondicherry has total authority to appoint a Public
Prosecutor or Additional Prosecutor or a Special Public
Prosecutor to conduct a criminal case pending before any of
the Sessions divisions of the State of Pondicherry which was
formerly a Union Territory, now being a separate State and the
Tamil Nadu Government has no right to appoint any
prosecutor - either a Public Prosecutor or a Special Public
Prosecutor - to conduct a trial of a case pending before the
Principal Sessions Judge, Pondicherry. The counsel for the
respondent on the other hand contended that this court while
ordering the case transfer to the State of Pondicherry had not
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specifically directed that trial should be conducted by the
prosecutor appointed by the Government of Pondicherry and
therefore, State of Tamil Nadu has got the authority to
appoint a Public Prosecutor to conduct the trial of such a
case. It was argued that the incident had taken place in the
State of Tamil Nadu and that being an offence committed
against the State of Tamil Nadu that State alone could
appoint the Public Prosecutor to conduct the prosecution of
the case unless specifically otherwise directed by this Court
while transferring the case under Section 406 of the Cr.P.C.
7. For the purpose of understanding the scheme of
appointment of a Public Prosecutor to conduct the trial it is
necessary to look into various provisions of Chapter II of the
Cr. P.C. Section 6 of Cr.P.C. prescribes that in every State
there shall be following classes of criminal courts : Courts of
Sessions, Judicial Magistrate of the First Class (and in any
Metropolitan area, Metropolitan Magistrate), the Judicial
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Magistrate of the second class and Executive Magistrate.
Section 7(1) prescribes that every State shall have a sessions
division or shall consist of several sessions divisions and every
sessions division shall, for the purposes of the Code, be a
district or consist of districts. It also prescribes that every
metropolitan area shall be a separate sessions division and
district. Sub-section (2) provides that the State may alter the
limits of such division and districts after consultation with
the High Court. Section 9 requires that the State Government
shall establish a court of sessions for every sessions division,
and every court of sessions shall be presided over by a Judge
to be appointed by the High Court. Section 10 deals with the
constitution of the Assistant Sessions Judge and Section 11
deals with the constitution of the court of Judicial
Magistrates. Section 12 deals with the appointment of Chief
Judicial Magistrate and Additional Chief Judicial Magistrate.
Sections 16, 17 and 18 deal with the constitution of the
various Metropolitan Magistrates' courts and Section 20 deals
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with appointment of Executive Magistrate. Section 24 deals
with the appointment of Public Prosecutors. "Public
Prosecutor" has been defined under Section 2(u) of the Cr.P.C.
:-
"Public Prosecutor" means any person
appointed under Section 24, and
includes any person acting under the
directions of a Public Prosecutor."
Section 24 (1) deals with the appointment of Public
Prosecutor or Additional Public Prosecutor for conducting any
prosecution, appeal or other proceedings on behalf of the
Central Government or State Government in the High Court.
Sub-section (3) of Section 24 requires that for every district,
the State Government shall appoint a Public Prosecutor and
one or more Additional Public Prosecutors. Sub-sections (3) to
(7) deal with appointment of Public Prosecutor, Additional
Public Prosecutor for the district. The power of appointment is
given to the State Government and such appointment should
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be from a panel of names prepared by the District Magistrate
in consultation with the Sessions Judge. Sub-section (7) of
Section 24 provides that a person shall be eligible to be
appointed as a Public Prosecutor or as an Additional Public
Prosecutor under sub-section (1) or sub-section (2) or sub-
section (3) or sub-section (6) only if he has been in practice as
an advocate for not less than seven years. A conjoint reading
of all these provisions would clearly show that the State
Government has the power of appointment of Public
Prosecutor or Additional Public Prosecutor for each district or
court of Sessions in the sessions division in the State to
conduct any prosecution, appeal or other proceedings
pending before the courts in that State. The power of the
State Government to appoint a Public Prosecutor and
Additional Public Prosecutor would extend only for
conducting any prosecution, appeal or other proceedings in
the courts within the State. As per the procedure prescribed
under Section 24, the State of Tamil Nadu can appoint a
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Public Prosecutor to conduct criminal cases in any of the
court in that State. Such powers cannot be exercised by the
State Government to conduct cases in any other State. Once
the case is transferred as per Section 406 of the Cr.P.C. to
another State, the transferor State no longer has control
over the prosecution to be conducted in a court situated in a
different State to which the case has been transferred. It is
the prerogative of the State Government to appoint a Public
Prosecutor to conduct the case which is pending in the
sessions division of that State. Of course, this Court while
passing order of transfer, can give an appropriate direction
as to which State should appoint the Public Prosecutor to
conduct that particular case. Such orders are passed having
regard to the circumstances of the case and the grounds on
which the transfer has been effected. This Court can
certainly give directions irrespective of the provisions
contained in Section 24 of the Cr.P.C. But so far as this case
is concerned, nothing had been stated in the order of the
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transfer. The provisions contained in the Section 24 of Cr.P.C.
shall prevail and it is for the appropriate State Government
within whose area the trial is conducted to appoint Public
Prosecutor under sub-sections (3) to (7) of Section 24 of the
Cr.P.C. is the Government of the State to which the case has
been transferred.
8. Sub-section (8) of Section 24 of Cr.P.C. is a special
provision regarding the appointment of a Special Prosecutor.
This power can be exercised by the Central Government and
the State Government for the purpose of any case or class of
cases, and a person who has been in practice as an advocate
for not less than ten years may be appointed as a Special
Public Prosecutor. These powers are also to be exercised by
the State Government of the transferee court where the
sessions case is pending. Of course, the transferee State can
appoint any person having qualification prescribed under
sub-section (8) of Section 24 of the Cr.P.C.
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9. The purpose of transfer of the criminal case from one
State to another is to ensure fair trial to the accused. In this
case, the main ground on which the transfer of the sessions
case was ordered from the Sessions court of Chinglepet in
Tamil Nadu to the Principal District and Sessions Judge,
Pondicherry, was that the action of the prosecution agency
had created a reasonable apprehension in the mind of the
accused-appellant that he would not get justice if the trial
was held in the State of Tamil Nadu. The Public Prosecutor
plays a key role during trail of a Sessions case. Though the
Sessions Judge has got a supervising control over the entire
trial of the case, it is the Public Prosecutor who decides who
are the witnesses to be examined on the side of the
prosecution and which witness is to be given up, or which
witness is to be recalled for further examination. For proper
conduct of a criminal case the Public Prosecutor plays a vital
role. It may also be noticed herein that under Section 225 of
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the Cr.P.C. during every trial before the court of Sessions, the
prosecution shall be conducted by the Public Prosecutor and
as regards withdrawal also, the Public Prosecutor in charge
of the case has to make the application for withdrawal of
prosecution as per Section 321 of the Cr.P.C. In case of
acquittal of the accused the State Government may direct the
Public Prosecutor to file an appeal.
10. As is evident from various provisions of the Cr.P.C., the
State Government of Tamil Nadu can only appoint a Public
Prosecutor or an Additional Public Prosecutor or a Special
Public Prosecutor under Section 24 of the Cr.P.C. to conduct
the prosecution and appeal, or other proceeding in any
criminal courts in respect of any case pending before the
courts of Tamil Nadu and in respect of any case pending
before the Courts at Pondicherry, the State Government of
Pondicherry is the appropriate Government to appoint Public
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Prosecutor, Additional Public Prosecutor or Special Public
Prosecutor.
11. However, we make it clear that the State of Pondicherry
can appoint any counsel as Public Prosecutor having
requisite qualifications as prescribed under sub-section (8) of
Section 24 of Cr.P.C. whether he is a lawyer in the State of
Pondicherry or any other State. As it is a criminal case
registered by the State of Tamil Nadu the expenses for
conducting the trial are to be borne by the State of Tamil
Nadu. The Advocate fees payable to the Public Prosecutor,
Additional Public Prosecutor or Special Public Prosecutor by
the State of Pondicherry shall be borne by the State of Tamil
Nadu and the Home Departments of the two States may
undertake consultations with each other and an appropriate
decision may be taken by the concerned authorities in this
regard.
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12. We set aside the impugned order passed by the High
Court and direct that the State of Pondicherry may continue
with the prosecution of the case in accordance with the law
and the Public Prosecutor or Special Public Prosecutor may
be appointed by the State of Pondicherry to conduct the
criminal proceedings in respect of Sessions Case No. 94 of
2005 pending before Principal & Sessions Judge of
Pondicherry.
13. The Appeal is allowed to the extent indicated above.
..........................................CJI
( K.G. BALAKRISHNAN )
.............................................J.
( R.V. RAVEENDRAN )
.............................................J.
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( Dr. MUKUNDAKAM SHARMA )
NEW DELHI;
JULY 22, 2008.
