JAYENDRA SARASWATI SWAMIGAL @ SUBRAMANIAM versus STATE OF TAMIL NADU

Citation: [2008] 11 S.C.R. 161 · Decided: 22-07-2008 · Supreme Court of India · Bench: K.G. BALAKRISHNAN · Disposal: Case Allowed

Judgment (excerpt)

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[2008] 11 S.C.R. 161 
JAYENDRA SARASWATI SWAMIGAL 
@ SUBRAMANIAM 
v. 
STATE OF TAMIL NADU 
(Criminal Appeal No. 1132 of 2008) 
JULY 22, 2008 
[K.G. BALAKRISHNAN, CJI, R.V. RAVEENDRAN AND 
DR. MUKUNDAKAM SHARMA, J~ 
Code of Criminal Procedure, 1973: 
s. 24 rlw s. 406 -Appointment of Public Prosecutor to con-
duct a transferred case - HELD: It is the State to which the 
case has been transferred which has the power to appoint 
Public Prosecutor/Additional Public Prosecutor/ Special Pub-
lie Prosecutor to conduct prosecution of the case - Transferee 
State can appoint any counsel as Special Public Prosecutor, 
who has requisite qualifications as prescribed under sub-sec-
tion(B) of s.24 whether he is a lawyer in that State or in any 
other State - Expenses for conducting the trial and fees of 
Public Prosecutors are to be borne by the State wherein crimi-
nal case was registered - The two States may undertake con-
sultations with each other and may take an appropriate deci-
sion in this regard. 
s. 406 rlw s. 24- Power of Supreme Court, while transfer-
ring a case, regarding appointment of Public Prosecutor -
f-!ELD: The Court while passing order of transfer of a case, 
can, irrespective of the provisions contained in s.24, give an 
appropriate direction as to which State should appoint Public 
Prosecutor to conduct that case - In case no such direction is 
given, provisions of s.24 would prevail. 
The appellant was one of the accused in a case pend-
ing before a Court of Session in the State of Tamil Nadu. 
At his instance the said case was transferred by the Su-
161 
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B 
c 
D 
E 
F 
G 
H 
162 
SUPREME COURT REPORTS 
[2008] 11 S.C.R. 
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A 
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preme Court1 to the Court of the Principal District and 
Sessions Judge, Pondicherry. The State of Tamil Nadu 
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appointed one Special Public Prosecutor and four Addi-
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tional Special Public Prosecutors to conduct the trial of 
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the said case. The appellant filed an application before 
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B the trial court challenging the said appointments on the 
ground that the Public Prosecutors appointed by the 
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State of Tamil Nadu had no right to conduct prosecution 
of the case pending before a court outside the State of 
Tamil Nadu. The appellant having remained unsuccess-
c fut before the trial court, as also the High Court, filed the 
instant appeal. 
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Allowing the appeal, the Court 
HELD: 1.1 As is evident from various provisions of 
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D the Code of Criminal Procedure, 1973, the State Govern-
ment of Tamil Nadu can only appoint a Public Prosecutor 
or an Additional Public Prosecutor or a Special Public 
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Prosecutor under Section 24 of the Code to conduct the 
prosecution and appeal, or 9ther proceeding in any crimi-
E. nal 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 Prosecutor, Additional Public Prosecutor or Spe-
F cial Public Prosecutor. Once the case is transferred as 
per Section 406 of the Code, to another State, the transf-
eror 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 
G of the State Government to appoint a Public Prosecutor 
to conduct the case which is pending in the sessions di-
vision of that State. [para 7 and 10] [169-8,C, 170-E,F,G] 
1.2 The purpose of transfer of a criminal case from 
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one State to another is to ensure fair trial to the accused. 
H In the instant case, the main ground on which the trans-
AYENDRA SARASWATI SWAMIGAL @SUBRAMANIAM 163 
v. STATE OF TAMIL NADU 
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A 
fer of the case was ordered from the Court of Session in 
Tamil Nadu to the Court of the Principal District and Ses-
sions Judge, Pondicherry, was that the action of the pros-
ecution 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. For B 
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proper conduct of a criminal case the Public Prosecuto~ 
plays a. vital role, as is indicated by the provisions of sec-
tions 225 and 321 of the Code. [para 9] [170-A,B,C, D,E] 
1.3 This Court while passing order of transfer can, c 
irrespective of the provisions contained in Section 24 of 
the Code, give an appropriate direction as to which State 
should appoint the Public Prosecutor to 

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