The Supreme Court has restored the right of Maharashtra Government to appoint public prosecutors of its choice after the Bombay High Court put an end to this practice by directing the State to promote assistant public prosecutors who are down in the ranks.
The Bench headed by Chief Justice Dipak Misra directed stay of the July 25 order passed by the Aurangabad bench of Bombay High Court saying, "the High Court judgment does not impress us." The State Government's appeal filed by advocate Kunal Cheema raised a substantial question of law which the HC overlooked that impressed the Court.
The HC's direction to appoint public prosecutors and additional public prosecutors was based on a set of Rules termed as Deputy Director, Assistant Director, and Public Prosecutors and Additional Public Prosecutors (Group A) in Directorate of Public Prosecution, Maharashtra State (Recruitment) Rules 1997. However, the State Government later amended the Criminal Procedure Code (CrPC) by introducing sub-section 6A to Section 24. It said, "Notwithstanding anything contained in sub-section 6m the State Government may…appoint a person who has been in practice as an advocate for not less than seven years as PP or Additional PP of the district."
Senior advocate Shekhar Naphade who argued the State appeal submitted to the apex court that Rules cannot override the statute. The appeal said, "The High Court failed to appreciate that sub section 6A of Section 24 of the Code is inserted in the year 2014 of later in point in time and is placed subsequent to Sub Section 6 in the statute.
Thus, by settled rules of interpretation, the High Court ought to have accepted overriding nature of sub section 6A over sub-section 6 of Section 24 of the Code and the 1997 Rules."
Further, the State submitted that the HC erred by assuming there existed a regular cadre of prosecuting officers for applying the 1997 Rules. To the contrary, the State appeal pointed out there no such cadre existed under the Rules in order to promote assistant public prosecutors to the rank of additional PP and PP.