Kerala High Court
P.V. Antony And Anr. vs State Of Kerala on 8 September, 1989
Equivalent citations: 1989CRILJ2482
Author: K.G. Balakrishnan
Bench: K.G. Balakrishnan
ORDER K.G. Balakrishnan, J.
1. This Cr. M. P. has been filed by the respondent in the appeal challenging the maintainability of the appeal. The appeal is filed under Section 378(1) Cr. P.C. against the order of acquittal by the Special Public Prosecutor.
2. The main contention urged by the petitioners' counsel is that the appeal filed by a Special Public Prosecutor under Section 378(1), Cr. P.C. is not maintainable and under that Section an appeal to the High Court from an order of acquittal could be filed only by a Public Prosecutor pursuant to a direction given by the Government. The argument proceeds; the Special Public Prosecutor being not a Public Prosecutor, the appeal has been filed by an incompetent person and therefore, the same is liable to be struck off from the file. It is pointed out by the petitioners' counsel that Public Prosecutor mentioned under Section 378(1), Cr. P.C. could only mean Public Prosecutor appointed under Sub-section (1) of Section 24 of the Code and a Special Public Prosecutor appointed under Sub-section (8) of Section 24 of the Code is not Public Prosecutor even though the definition of Public Prosecutor as given under Section 2(u) of the Code would take in a special public prosecution also within the definition of Public Prosecutor. Section 378(1) of the Code is a safeguard guaranteed against unnecessary filing of the appeal against an accused who had been acquitted by a Court and 'Public Prosecutor' mentioned under Section 378(1) of the Code is the Public Prosecutor appointed for the High Court under Sub-section (1) of Section 24 of the Code.
3. The learned Counsel for the respondent contended that the appeal has been filed by the Special Public Prosecutor as specifically directed by the Government and the Special Public Prosecutor appointed under Sub-section (8) of Section 24 of the Code is a Public Prosecutor and as such there is competency for him to file an appeal under Section 378(1), Cr. P.C. It is also pointed by the respondent's counsel that the definition of "Public Prosecutor" takes in Special Public Prosecutor also and going by the definition of the term "Public Prosecutor" there is no inhibition for the Special Public Prosecutor to file an appeal under Section 378(1) provided he has been so directed by the Government.
4. In order to understand the rival contention advanced by the counsel on either side, it is necessary to analyse the nature of appointment of Public Prosecutors under Section 24 of the Code. Sub-section (1) of Section 24 lays down the manner in which Public Prosecutors are to be appointed for High Court for conducting cases in the High Court including any prosecution, appeal or other proceeding by the Central Government or by the State. Sub-section (2) of Section 24 says that the Central Government may appoint one or more Public Prosecutors, for the purpose of conducting any case or class of cases in any district or local area. Sub-section (3) of Section 24 empowers the State to appoint such Public Prosecutor for any district as Additional Public Prosecutors. Sub-sections (4), (5) and (6) of Section 24 state the manner in which Public Prosecutors or Additional Public Prosecutors are to be appointed for a district. Sub-section (7) deals with the qualification and eligibility of a person to be appointed as Public Prosecutor or Additional Public Prosecutor under Sub-sections (1), (2), (3) and (6) of Section 24. Sub-section (8) of Section 24 of the Code empowers the Central Government or the State Government to appoint for the purpose of any case or class of cases, an advocate for not less than ten years as Special Public Prosecutor. Sub-section (9) of Section 24 says that the period during which a person has been in practice as s Pleader, or has rendered service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer shall be deemed to be the period during which such person has been in practice as an advocate. We are concerned more with Sub-section (8) of Section 24 by which the Central Government and the State Government are authorised to appoint an advocate of not less than 10 years practice be appointed as Special Public Prosecutor for conducting any case or class of cases. No reference has been made to any particular type of Courts. The Special Public Prosecutor is being appointed for a case or class of cases. Therefore, it is clear that in a case pending before the High Court also a Special Public Prosecutor can appointed if the State Government or Central Government so choose. The definition of Public Prosecutor as given under Section 2(u) Cr. P.C. also is relevant, which runs thus:
2(u) "Public Prosecutor" means any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor.
The above definition would show that the term Public Prosecutor would include any person appointed under Section 24 of the Code. It is not specifically mentioned that the person appointed under Sub-section (1) of Section 24 alone would be known as Public Prosecutors. So, the definition as explained in Section 2(u) of the Cr. P.C. takes in a Special Public Prosecutor appointed under Section 24(8) of the Code,
5. The next point to be considered is whether such a Public Prosecutor is entitled to file an appeal under Section 378( 1) of the Code. It is not specifically mentioned under Section 378(1) that a person appointed under Sub-section (1) of Section 24 alone is entitled to file an appeal under the instructions of the Government. The term "Public Prosecutor" alone has been mentioned in Section 378(1), Cr. P.C. I am unable to accept the contention raised by the petitioners' counsel that an appeal under Section 378(1) could be filed only by a Public Prosecutor appointed under Sub-section (1) of Section 24 of the Code. The Special Public Prosecutor is appointed for a case or class of cases and his field of activity can be extended to any Courts including the High Court. If a Special Public Prosecutor could be appointed in respect of a case pending before the High Court there is nothing wrong in giving instruction to such a Special Public Prosecutor to file an appeal before the Court. That will not in any way whittle down the safeguard guaranteed to the accused persons who have been acquitted by the Courts subordinate to the High Court.
6. The learned Counsel for the petitioners cited two decisions of this Court. The first decision is reported in State of Kerala v. Krishnan 1981 Ker LT 839 : 1982 Cri LJ 301. That is a case where an Additional Advocate General has filed an application under Section 378(3) seeking leave to file an appeal against the order of acquittal. The Additional Advocate General took up the stand that he could file an appeal under instructions of the Government but this Court held that the Additional Advocate General was not Public Prosecutor appointed under Sub-section (1) of Section 24 of the Code and therefore, he has no competency to file an appeal under Section 378(1) or seek leave under Section 378(3) of the Code. In 1985 Ker LT 307 : 1976 Cri LJ 1287 Rajendran v. Ayyappan. His Lordship Justice Radhakrishna Menon followed the decision in State of Kerala v. Krishnan 1981 Ker LT 839 : 1982 Cri LJ 301 and held that unless Advocate General is appointed in the manner prescribed under Section 24, Cr. P.C. the Advocate General will not become a Public Prosecutor and as such an appeal filed by the Advocate General is not maintainable. The above two decisions are not strictly applicable to the facts of the present case. In the present case the appeal has been filed by the Special Public Prosecutor and on plain reading of Section 378(1) of the Code the Special Public Prosecutor also is Public Prosecutor and the appeal filed by him is maintainable.
7. Cri. M.P. fails and the same is dismissed.