AS PER CrPC, STATE GOVT PPs in HC SHALL BE SUBORDINATE TO DIRECTOR, PROSECUTION HOWEVER IN PRACTICE, THEY COME UNDER ADVOCATE GENERAL

Chandigarh (Subhash Jindal)

If the Public Prosecutors (PPs) or Additional Public Prosecutors (Addl PPs) or Special Public Prosecutors (SPPs0 as appointed by the Haryana Government in the Punjab & Haryana High Court for conducting any prosecution, appeal or other (criminal) proceeding etc. on behalf of State Government are subordinate to the State's Director of Prosecution or else respective State's Advocate-General (AG)

The question has been raised by an Hemant Kumar, an Advocate at Punjab & Haryana High Court who recently wrote to the Haryana Government alleging non-compliance of Section 25 A of Code of Criminal Procedure (CrPC) by the State not only in respect of composition and organizational structure of Haryana's Directorate of Prosecution but also in terms of subordination of PPs as appointed in the High Court by the State Government who as on date are actually under the administrative control of Haryana's AG although as per Section 25 A (5) of CrPC, they shall be subordinate to the Haryana's Director of Prosecution (DoP).

Elaborating the issue, the Advocate told that on 22 Sep 2020, the Administration of Justice Department of Haryana Government issued a Gazette Notification wherein after consultation with the High Court of Punjab and Haryana under Section 24(1) of CrPC, 11 Law officers as currently engaged in the Office of AG, Haryana viz. Anil Kumar Yadav, Vivek Saini ( Addl Advocate General), Saurabh Mohunta, Himmat Singh, Rahul Mohan, Abhinash jain, Apoorv Garg, Arun Beniwal (all Deputy Advocate General ), Saurabh Mago, Gaganpreet Kaur and Gaurav Bansal ( Assistant Advocate General) have been appointed Public Prosecutors (PPs) for Haryana Government in the High Court as long as they hold their offices.

Elaborating the issue, the Advocate told that on 22 Sep 2020, the Administration of Justice Department of Haryana Government issued a Gazette Notification wherein after consultation with the High Court of Punjab and Haryana under Section 24(1) of CrPC, 11 Law officers as currently engaged in the Office of AG, Haryana viz. Anil Kumar Yadav, Vivek Saini ( Addl Advocate General), Saurabh Mohunta, Himmat Singh, Rahul Mohan, Abhinash jain, Apoorv Garg, Arun Beniwal (all Deputy Advocate General ), Saurabh Mago, Gaganpreet Kaur and Gaurav Bansal ( Assistant Advocate General) have been appointed Public Prosecutors (PPs) for Haryana Government in the High Court as long as they hold their offices.

Hemant asserts as all the above appointed PPs are actually Law Officers engaged on purely contractual basis in the office of AG, Haryana and hence they are governed under the provisions of Haryana Law Officers (Engagement ) Act, 2016 and the Rules framed thereunder, as amended from time to time and hence they are not subordinate to the State's Director of Prosecution, Haryana since there is no such mention in the ibid 2016 Act as enacted by Haryana Legislative Assembly.

Even otherwise, as per recently amended, Haryana Prosecution Legal Service (Group B) Amendment Rules, 2022 as effective from Feb 25, 2022, only the Assistant District Attorneys (ADAs) working under Directorate of Prosecution in Haryana are subordinate to the Director of Prosecution in terms of inflicting only Minor Penalties. No other Government Advocate whether in regular service or else contractual Law Officer engaged in State AG Office is subordinate to Director, Prosecution.

When asked if Law Officers appointed in AG Office are exempted from provisions of Sec 25A of CrPC, Hemant asserts it is mentioned in sub-section (8) of Section 25A CrPC that its provisions shall not apply to the Advocate-General (AG) for the State (means only as regard BR Mahajan, incumbent AG, Haryana) while performing the functions of a Public Prosecutor. Thus, all the other Law Officers engaged in AG Office under different designations/nomenclatures including the above mentioned 11 Law Officers who have been appointed as PPs by the Haryana Government in the High Court are very much covered under sub-section (5) of Section 25A CrPC.

When asked about the possible remedy to resurrect the anomaly, Hemant suggests that two States in India viz. Karnataka in 2012 followed by Madhya Pradesh in 2014 amended Section 25 A CrPC via their State Legislatures so as to provide that PPs appointed in High Court, other than those Prosecuting Officers who are in regular service of State Government, shall be subordinate to their respective AGs and not State's Prosecution Director. Haryana should also toe the lines of above two States.