Jayendra Saraswati
Swamigal Alias Subramaniam Vs. State of Tamil Nadu [2008] INSC 1202 (22 July
2008)
Judgment
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
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.
1.
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.
2.
2
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- 3 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 4 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 5 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 6 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 7 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 8 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 9 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 10 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
11 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 12
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.
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 14 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 15 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.
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.
17
( Dr. MUKUNDAKAM SHARMA ) NEW DELHI;
JULY
22, 2008.
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