LG bound to act on advice of ministers on SPP appointment: High Court

This ruling assumes significance, as of late various criminal matters in the high court and trial courts have witnessed heated arguments between prosecutors appointed by the Delhi government and the Lieutenant Governor, as to who would represent the state or police.

“...We are of the view that it is not open to the Lieutenant Governor to appoint the special public prosecutor on his own without seeking aid and advice of the Council of Ministers,” a Bench of Chief Justice G Rohini and Justice Jayant Nath said.

The Bench said the LG does not act ‘eo-nominee’ (by or under that name) but exercises the executive functions of the state.

“As a corollary, the exercise of the functions relating to the said subject by the LG under Article 239AA(4) of the Constitution shall be on the aid and advice of the Council of Ministers with the Chief Minister at the head,” it said.

“Hence, we are unable to accept the contention of the Union of India that the Council of Ministers have no role to play in exercise of the powers under Section 24(8) of CrPC.

“In our considered opinion, the LG under Section 24(8) of CrPC does not act eo-nominee but exercises the executive functions of the state. Hence, the said power has to be exercised on the aid and advice of the Council of Ministers in terms of Clause (4) of Article 239AA of the Constitution,” the Bench said.

Section 24(8) of CrPC empowers the state government to appointing an SPP for any case. The Bench decided the issue while disposing of a petition by the AAP government challenging a special judge order rejecting the Delhi government-appointed SPP to prosecute the accused in the Rs 100-crore CNG fitness scam case.