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A reply was filed on behalf of the complainant on 16th March 1963, and it was inter alia stated therein that an application was made to Shri Baldev Raj, Magistrate, First Class, for grant of permission to Shri Anand to conduct the prosecution and Shri Baldev Raj announced an order that he had granted permission but the complainant was not aware that there was no such order in writing. It was not necessary that permission under Section 495 should have been granted in writing. The objections raised by the petitioner were belated and, therefore, could not be entertained. This reply has been signed by Shri I. M. Lal, Advocate, and submitted in reply to the written arguments filed in the Court on behalf of the petitioner. There is another reply which is, dated 15th March 1963 signed by Shri S. N. Anand, Advocate, on which reliance has been placed by both the sides. This reply is not available on the record and a copy thereof has been supplied by Shri S. N. Anand the learned counsel for the respondent. It is inter alia stated in the said reply that (a) Shri Ram Lal Anand had been handling the proceedings for the last over five years. On 15th February, 1958, the complainant, by an application sought the permission of the Court to have this case conducted by a counsel of his choice. He mentioned the name of Shri Anand and prayed for adjournment of the case as Shri Anand needed copies of the material under Section 173, Criminal Procedure Code, and the case was actually adjourned. Again on 17th February, 1958, the case was adjourned at the request of Shri Anand because he was busy in another case. The petitioner filed an application under Section 561-A, Criminal Procedure Code for quashing the proceedings pending in the trial Court and this application was also opposed by Shri Anand. In the circumstances the permission should be taken to have been granted to Mr. Anand to conduct the prosecution; (b) no order or permission could be shown to the Court because the record for the year 1958 was not available on the judicial file of the trial Court, but there was an irrebuttable presumption of law about the official acts having been regularly done; and (c) the Court Inspector was always present when the case was taken up but he did not take any active part in the proceedings because Shri Anand continued to be incharge of the prosecution case.

Shri Baldev Raj stated that he had not given any permission in writing or verbally to Shri Ram Lal Anand to appear for the prosecution. He also stated that he had given no permission to the complainant to engage Shri R. L. Anand as a counsel for the prosecution. I will, therefore, assume that no permission had been given to Mr. Anand as alleged in the reply. The learned Sessions Judge also considered the question of permission as crucial in the case. He said, "the crucial point that requires determination in this case is whether any permission was accorded to Shri Ram Lal Anand for conducting the case on behalf of the prosecution by Shri Baldev Raj and if not, whether the conducting of case by Shri Ram Lal Anand on behalf of the prosecution in the absence of any permission having been granted by the Court under Section 495, Criminal Procedure Code, would be an illegality or irregularity curable under Section 537, Criminal Procedure Code." From the various circumstances set out in the order of the learned Sessions Judge he carne to the conclusion that no prejudice had been caused to the accused and the proceedings could not be held to have been vitiated on the ground that the prosecution was conducted by Shri Anand. He accordingly dismissed the revision petition with an observation that it will be open to the learned Magistrate to exercise his discretion whether or not to allow Shri Ram Lal Anand, Advocate, to continue to conduct the prosecution, taking into consideration the provisions of Section 495, Criminal Procedure Code.

3. The learned counsel for the petitioner has raised the following contentions (a) having regard to the provisions of Section 495, Criminal Procedure Code, Mr. Anand could not appear for a private party, the complainant, without the express permission in writing by the Magistrate trying the case; (b) Mr. Anand filed his power of attorney on 6th March and all proceedings taken before that date stand vitiated because he had no written authority, on behalf of the complainant to appear in Court; (c) non-compliance with the provisions of Sections 493 and 495 constitutes an illegality which is not curable under Section 537, Criminal Procedure Code; and (d) even if non-compliance with the aforesaid provision be an irregularity a serious prejudice has been caused to the petitioner particularly because of the interference and the leading nature of questions by Mr. Anand and the trial is, therefore, vitiated. According to the learned counsel there would be non-compliance with Section 493, Criminal Procedure Code if a private counsel conducted the proceedings and the Public Prosecutor merely witnessed them as a silent spectator.

Applying these principles I am of the opinion that so long as the Public Prosecutor does not abdicate his functions and retains with himself control over the proceedings a private counsel can examine or cross-examine the witnesses or even address arguments. Comparison of Sections 493 and 495, Criminal Procedure Code, shows that it is only when a private counsel is entrusted with an independent charge of the case that permission is necessary under Section 495, Criminal P. C. So long as he acts under the supervision, guidance or control of the Public Prosecutor he can examine and cross-examine the witnesses. The dichotomy in Section 493, Criminal Procedure Code, is between "conducting the prosecution" and "acting under the directions of the Public Prosecutor". "Conducting the prosecution" therefore, must mean taking charge of the entire proceedings free from any guidance and control by anyone else. In my view the same meaning must be given to the words "prosecution to be conducted" in Section 495, Criminal Procedure Code. It follows, therefore, that if a private counsel is to be given a complete charge of the prosecution case so that lie can conduct the case independently of the Public Prosecutor a permission is necessary. So long as a private counsel acts under the guidance and control of the Public Prosecutor he is entitled to so act under Section 493, Criminal Procedure Code.