The Jammu and Kashmir High Court dismissed the Public Interest Litigations (PILs) challenging the establishment of Directorate of Prosecution and creation of separate Prosecution Service to be known as Jammu & Kashmir Prosecution Service.
In anticipation of the enforcement of the Jammu & Kashmir Reorganization Act, 2019, the Government of Jammu and Kashmir vide order No. 1104-Home of 2019 dated 30.10.2019, accorded sanction to the establishment of Directorate of Prosecution and creation of separate Prosecution Service to be known as Jammu & Kashmir Prosecution Service, comprising of the members of the Jammu & Kashmir Police (Gazetted) Service (Prosecution Wing) and Prosecuting Officers (NonGazetted) as its members. By the impugned order No. 1104-Home of 2019 dated 30.10.2019, sanction was accorded to :
“6. Now, therefore, sanction is hereby accorded to:
(i) establishment of a Directorate of Prosecution, headed by a Director General (Prosecution), consisting of such posts as may be prescribed;
(ii) creation of a separate prosecution service, to be known as the „Jammu & Kashmir Prosecution Service‟, comprising the members of the Jammu and Kashmir Police (Gazetted) Service [Prosecution Wing] and the Prosecuting Officers (Non-Gazetted), as per Annexure, Thereupon, the said persons shall cease to be the Police Officers and, accordingly, excluded from the ambit of the Jammu and Kashmir Police (Gazetted) Service and the Police Rules;
(iii) provision of allowances, other facilities and benefits, as per their present entitlement, notwithstanding such exclusion. However, appropriate orders shall be issued separately, to provide for such allowances or equivalent thereto:
(iv) notification of recruitment rules, providing for method of recruitment and service conditions of the members of the Prosecution Service, after due consideration of the requirement for fresh creation of posts and promotional avenues, apart from provision of reserves to meet the requirement of the Anti Corruption Bureau, Vigilance Commission, Training Institutes and various Police formations, etc…”
The Government vide order No. 01-Home of 2019 dated 31.10.2019 issued the following orders:-
“In the interest of administration, it is hereby ordered that the following Deputy Directors (Prosecution) [DDsP] of the J&K Prosecution Service shall oversee the functioning of the Public Prosecutors (PPs)/Additional Public Prosecutors (APPs)/Assistant PPs in the areas of jurisdiction, as indicate against each, till further orders…..”
Accordingly, seven persons were appointed as Deputy Directors (Prosecution) [DDsP] for different Districts. Subsequently, the Government issued two notifications on 31.10.2019, in exercise of the powers conferred under Section 24 of the Code of Criminal Procedure, 1973 and vide S.O. 05 dated 31.10.2019, appointed Chief Prosecuting Officers (CPOs) of the Jammu & Kashmir Prosecution Service as Public Prosecutors (PPs)/Additional Public Prosecutors (APPs) and posted them in different Districts in Courts of Sessions Judge and Additional Sessions Judge as mentioned in the notification. By this order, 39 persons were appointed on the post of Public Prosecutors (PPs)/Additional Public Prosecutors (APPs).
By another notification i.e., S.O. 06 of even date, in exercise of the powers conferred under Section 25 of the Code of Criminal Procedure, 1973, Senior Prosecuting Officers and Prosecuting Officers of the Jammu and Kashmir Prosecution Service were appointed as Assistant Public Prosecutors (APPs). By this order, as many as 54 persons were appointed in the Courts of Chief Judicial Magistrates and Sub-Judges, who were exercising the powers of the Judicial Magistrates and 82 persons were posted in the Courts of Munsiff Magistrate as well as Munsiff Mobile Magistrate.
The grievance of the petitioners (practicing Advocates) are; that there was no regular cadre of Prosecution Service in the erstwhile State of Jammu & Kashmir and, therefore, the benefit of Subsection (9) of Section 24 of Cr.P.C. cannot be extended to those, who have been appointed as Public Prosecutors and Additional Public Prosecutors. It is further argued that since Sub-section (9) of Section 24 of Cr.P.C. has no independent existence because the same was introduced along with Sub-section (6) of Section 24 of Cr.P.C as there is no regular cadre of prosecuting officers as contemplated by the Criminal Procedure Code, therefore, benefits of the same cannot be granted to the erstwhile prosecutors, as they do not form a regular cadre.
It is also submitted that in “K. J. John, Assistant Public Prosecutors vs. State of Kerala and others”, 1994 SCC 191, the Apex Court has held that a combined reading of Sub-section (6) and Subsection (9) of Section 24 of Cr.P.C. gives a clue to the intention of the legislature in determining the scope of the expression “regular cadre of Prosecuting Officers” occurring in sub-section (6). The intention of introducing sub-section (6) and the deeming fiction in sub-section (9) was in order to safeguard the promotional rights of Prosecuting Officers in such of the States where there is already in existence regular cadre consisting of a hierarchy of Prosecuting Officers going to the top level of Additional Public Prosecutors and Public Prosecutors.
The Division Bench of Chief Justice Pankaj Mithal and Justice Sindhu Sharma noted from sub-section (6) of Section 24 of Cr.P.C. that the word „regular cadre‟ has been omitted by using the words „from amongst those persons constituting the cadre of prosecution for the State of Jammu & Kashmir‟. Since, in the State of Jammu & Kashmir, the Prosecution Wing of Police comprised of Prosecuting Officers, Senior Prosecuting Officers and Chief Prosecuting Officers by using expression from the cadre of Prosecuting Officer in the State from amongst the persons constituting the cadre of State of Jammu & Kashmir shows that the judgment in the case of K. J. John (supra) has no application in so far as sub-section (6) is concerned.
Similar amendments were made in respect of the State of Tamil Nadu by substituting sub-Section (6A). So far as application of Sub-section (9) of Section 24 of Cr.P.C. is concerned, it is, as such, applicable to the Prosecuting Officers. Sub-section (9) of Section 24 of Cr.P.C. reads as under:-
“(9) For the purposes of sub- section (7) and sub- section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.”
In view of the above and considering the observations of their lordships made in the judgment of K. J. John (supra), when the High Court consider the provisions of Sub-section (6) of Section 24 of Cr.P.C. which makes it incumbent to appoint Public Prosecutors and Additional Public Prosecutors only from regular cadre of Prosecuting Officers, it can only be applied in case of such regular cadre which may go up to the level of Public Prosecutors, is not applicable in the present case, because subsection (6) of Section 24 of Cr.P.C. has been substituted by sub-Section (6A) in the Union Territory of Jammu & Kashmir and reference is specifically made to the persons constituting the cadre of prosecution for the State of Jammu & Kashmir.
Further the High Court observed that it is also not correct to say that Public Prosecutors could be appointed only if they possess seven years practice as an Advocate as provided in sub-sections (7) and (8) because sub-section (9) of Section 24 Cr.P.C. cannot be ignored, which provides that a person who has rendered service as Public Prosecutor, Additional Public Prosecutor, Assistant Public Prosecutor or other Prosecuting Officer by whatever name called, shall be deemed to be the period during which such person has been in practice as an Advocate. Moreover, the expression “there exists a regular cadre” has been omitted in sub-section 6(A), therefore, all appointments have been made as per the amended provision.
The High Court have considered all the submissions with reference to the amended provisions and are of the considered view that none of the submissions are justified in view of the amended provisions of the Code of Criminal Procedure, 1973, as applicable to the Union Territory of Jammu and Kashmir and all appointments have been made as per the amended provisions.
The High Court has referred to the earlier petition which has been filed by those appointed as Assistant Public Prosecutors under Section 25 of the Cr.P.C., 1973. Their main grievance is that they are Police Officers governed by the Police Rules and by virtue of their appointment as Assistant Public Prosecutors, their condition of service has been changed without offering them any opportunity to say whether they want to continue as Prosecuting Officers and Senior Prosecuting Officers or preferred to join as Assistant Public Prosecutors. However the High Court held that it is not possible to say how the condition of their service has changed because they were appointed as Public Prosecutors by the State and the nature of the job remained the same. Though nomenclature has been changed even their allowances and perks have remained same by virtue of order constituting the Jammu and Kashmir Prosecuting Service.
Moreover, in rest of the Country, Code of Criminal Procedure, 1973 was enforced in 1974 and in Jammu & Kashmir with effect from 31.10.2019, so the Prosecution Service came only after the Reorganization Act.
It has been organized by establishing the Directorate of Prosecution. Even otherwise, it is the command of Sections 24, 25 and 25A of Cr.P.C., 1973. The nomenclature has been changed because of statutory conditions prescribed in the Cr.P.C. Whether there will be change in their conditions of service or increase in pay scale, is a matter which is yet to be decided by the department and in case, they suffer from any disadvantage, at the time of fixation of their pay scale or seniority, they will be entitled to challenge the same.
“At present, this writ petition is premature, as there is nothing to show how they are likely to suffer because the change in their status from the Police Officers to Assistant Public Prosecutors, which is, in fact, for their betterment. This petition is, therefore, premature and does not hold any merit at this stage”, the order reads.