S.B. SHAHANE AND ORS. versus THE STATE OF MAHARASHTRA AND ANR.

Citation: [1995] 3 S.C.R. 672 · Decided: 21-04-1995 · Supreme Court of India · Bench: KULDIP SINGH, N. VENKATACHALA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
S.B. SHAHANE AND ORS. 
v. 
THE STATE OF MAHARASHTRA AND ANR. 
APRIL 21, 1995 
B 
[KULDIP SINGH AND N. VENKATACHALA, JJ.J 
Code of Criminal Procedure, 1973: 
Section 25-Assistant Public Prosecutors-Appointment of-State 
C Government's Notification--Personnel of Police Department-Appointment 
as Assistant Public Prosecutor without severance of administrative and dis-
ciplinary control of Police Department-Held failure of statutory obligation 
imposed by Section 25(3 j-Court's Directions for setting up of separate cadre 
of Assistant Public Prosecutors-Creation of separate prosecution depart-
ment-Exclusion of administrative and disciplinary control of Police Depart-
D ment over Assistant Public Prosecutors. 
Administration of Cn"minal Justice: 
Criminal Trial-Investigating Department 
E ment-Separation of-Need and object. 
and Prosecution Depart-
By a notification dated 1st April, 1974 issued under Section 25 of the 
Code of Criminal Procedure, 1973 the Government of Maharashtra ap-
pointed the appellants, who were the personnel of its police department 
functioning under the control of its head, the Inspector General of Police, 
\-
F as Assistant Public Prosecutors for condncting prosecutions in the Courts 
L 
of Magistrates without bringing about their severance from the police 
department. 
The appellants filed an application before the High Court for a 
direction to the State for their exclusion from the Police Department so as 
G to free them from the administrative and disciplinary control of the 
Inspector General of Police and to create a separate cadre of Assistant 
Public Prosecutors for them under a separate Prosecntion Department, 
\. • 
making its head directly responsible to Government. The High Court 
dismissed the application against which the appellants preferred appeal 
H before this Court. 
672 
. ..J 
... j 
/ 
S.B SHAHANE v. STATE [VENKATACHALA, J.] 
673 
Allowing the appeal and setting aside the judgment of the High A 
Court, this Court 
HELD : 1. The Government of Maharashtra which made the ap-
pointments of Assistant Public Prosecutors by issue of notification dated 
1st April, 1974 under Section 25 of the Code of Criminal Procedure could 
not have allowed the Assistant Public Prosecutors appointed thereunder B 
to continue as personnel of its Police Department and to continue to 
function under the control of the head of Police Department, the Inspector 
General of Police. [682-B, CJ 
2. The mandate of sub-section (3) of Section 25 of the Code of C 
Criminal Procedure, 1973 implies that the State Governm_ent or Central 
Government which appoints Assistant Public Prosecutors for the purpose 
of conducting prosecutions in Magistrates' courts in District, must put 
them in an independent cadre and create a separate independent Prosecu-
tion Department, having its own hierarchy of officers made directly 
responsible to the concerned Government. [678-H, 676-C, 675-E, F] 
D 
3. When Assistant Public Prosecutors are appointed under Section 25 
of the Code of Criminal Procedure for conducting prosecutions in courts of 
l'ifoglstrates in a District fairly and impartially, separating them from the 
oflicers of the Police Department and freeing them from the administrative E 
or disciplinary control of officers of the Police Department, the inevitable 
consequential actions required to be taken by the State Government which 
appoints such Assistant Public Prosecutors, in as much as, taking of such 
actions are statutory obligations impliedly imposed upon it under sub-sec-
tion (3) thereof. When such consequentional actions are taken by the State 
Government in respect of large number of persons appointed as Assistant F 
Public Prosecutors, it becomes necessary for potting them on a separate 
cadre of Assistant Public Prosecutors and creating a separate prosecution 
department as suggested by the Law Commission in its 14th Report making 
those Assistant Public Prosecutors subject to control of their superiors in 
the heirarchy in matters of administration and discipline, mth the bead of G 
such Prosecution Department being made directly responsible to the State 
Government in respect of conduct of prosecutions by the Assistant Public 
Prosecutors of his department. [681-D to G] 
4. Since the aforesaid notificatfon issued by the Government of 
Maharashtra merely appoints the appellants and others, as mentioned in H 
674 
SUPREME COURT REPORTS 
[1995] 3 S.C.R. 
A Schedule to the notification, the prosecut

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