Senior police officer’s appointment as head of directorate of prosecution illegal: Allahabad high court

The Allahabad high court said the appointment is contrary to the statutory provisions of CrPC, which provides a person holding this post must be in practice as an advocate for not less than 10 years

The Allahabad high court on Friday declared the appointment of senior police officer Ashutosh Pandey as head of the Directorate of Prosecution, U.P, illegal and without authority of law.

The Allahabad high court directed the state government to ensure that director of prosecution is appointed as per rules within six months. (REPRESENTATIVE IMAGE)

The court said it is contrary to the statutory provisions of criminal procedure code (CrPC), which provides a person holding this post must be in practice as an advocate for not less than 10 years and such appointment shall be made with the concurrence of the chief justice of the high court.

Besides, the Allahabad high court directed the state government to ensure that director of prosecution is appointed as per rules within six months from today.

Allowing a writ petition filed by Kishan Kumar Pathak, a division bench comprising Justice Surya Prakash Kesarwani and Justice Jayant Banerji observed, “Provisions of section 25A (2) of criminal procedure code (CrPC) providing essential qualification/eligibility of a person and necessary condition for appointment on the post of Director of Prosecution or Deputy Director of Prosecution that he must be in practice as an advocate for not less than 10 years and such appointment shall be made with the concurrence of the chief justice of the high court, are mandatory. In the present case, Ashutosh Pandey, who is respondent number five in the present case, neither possesses the essential qualification, nor his appointment has been made with the concurrence of the chief justice of the high court.”

During the hearing, the counsel for the petitioner contended that the state government is bound by the provisions of Section 25A of criminal procedure code (CrPC) enacted by parliament, in the absence of any specific provisions of law to the contrary enacted by the state legislature.

Since Ashutosh Pandey is holding a public office and he does not have eligibility to hold the post, therefore, he has incurred disqualification to continue to occupy the post, the counsel for the petitioner said.

However, it was pleaded on behalf of the state government that firstly, section 25A of the CrPC has not been enforced in Uttar Pradesh. Secondly, this provision is not mandatory but directory and therefore, it is not compulsory obligation of the state government to abide by the provision of section 25A.

“Since section 25A has not yet been enforced in the state of Uttar Pradesh, therefore, the qualification of Director of Prosecution, as provided under sub section (2) of section 25A of CrPC shall not be attracted,” added the counsel representing the state government.