- (1.)These State appeals against acquittal, presented by the Additional Advocate General at a time when admittedly there was no Public Prosecutor appointed for the High Court, have come up for grant of leave under S.378(3) of the Code of Criminal Procedure, 1973, for short the Code. The question is whether the State Government can direct the Advocate General or the Additional Advocate General to present an appeal under S.378(1) of the Code without appointing them as Public Prosecutors under S.24(1), in view of Art.165 of the Constitution of India and the rules framed by the Government under clauses (2) and (3) of Art.165 of the Constitution as per notification dated 1st November, 1956
(2.)S.378(1) of the Code of Criminal Procedure 1973 reads:
"378. Appeal in case of acquittal.- (1) Save as otherwise provided in sub-s.(2) and subject to the provisions of sub-s.(3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court or an order of acquittal passed by the Court of Session in revision."

S.24(1) of the Code reads:

"24. Public Prosecutors:- (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be,"

S.2(u) of the Code reads:

"(u) 'Public Prosecutor' means any person appointed under S.24, and includes any person acting under the directions of a Public Prosecutor."

Art.165 of the Constitution of India reads:

"165. Advocate General for the State.- (1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate General for the State.

(2) It shall be the duty of the Advocate General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions, conferred on him by or under this Constitution or any other law for the time being in force.

(3) ............................................."

R.2 of the Rules issued as per notification dated 1st November 1956 defines the duties and functions of the Advocate General. Clause (vi) of R.2, Part I reads:

"(vi) to represent Government in the High Court in proceedings of importance, civil or criminal, original or appellate, in which Government is a party when specially directed by the Government;

Note: The Advocate General will ordinarily be instructed by a Government Pleader or Public Prosecutor;"

Entry No. 2 in List III of the seventh Schedule to the Constitution of India is 'criminal procedure including all matters included in the Code of Criminal Procedure at the commencement of this Constitution. Under Art.246(2) Parliament has the power to legislate with respect to any of the matters enumerated in List III. The Code of Criminal Procedure, 1973 has been enacted by the Parliament by virtue of the above power. As per S.378(1) of the Code if the State has to file an appeal before the High Court against an order of acquittal the State has to direct the Public Prosecutor to present the same. Public Prosecutor of a High Court is one who is appointed by the State Government or the Central Government under S.24(1) of the Code for conducting in that High Court any prosecution, appeal or other proceeding on behalf of that Government. In view of the definition contained in S.2(u) of the Code a person acting under the direction of a Public Prosecutor appointed under S.24 will also be a Public Prosecutor. The combined effect of all the above provisions of the Code is that if the State wants to file an appeal to the High Court from an order of acquittal, that has to be done only by a Public Prosecutor or a person acting under his direction presenting the appeal to the court In other words nobody else can present the appeal even if the State directs S.378(1) being a provision which affects the liberty of the citizen it has to be construed strictly. Nothing short of its full compliance has also to be insisted. The procedure prescribed by the Code has to be complied with by all who invoke the criminal jurisdiction of a court. It has to be followed by all who appear in such cases. The Advocate General or the Additional Advocate General of a State has no exemption. As per Art.165(2) of the Constitution it shall be the duty of the Advocate General to give advice to the Government of the State upon such legal matters and to perform such other duties of a legal character as may from time to time be referred or assigned to him. There is no indication in Art.165 that when an Advocate General appears before a civil or criminal court in the discharge of his duties as Advocate General he will not be bound by the procedure followed by that court. Simply because the rules framed by the State Government under Art.165(2) and (3) and issued as per notification dated 1st November 1956 insist that the Advocate General shall represent the Government in the High Court in important civil and criminal proceedings, it will not give him the status and clothe him with the powers of a Public Prosecutor of the High Court appointed under S.24(1) of the Code. As long as the Advocate General is not appointed as a Public Prosecutor under S.24(1) of the Code he will not become a Public Prosecutor of the High Court As far as the Advocate General is concerned, no question of acting under the direction of a Public Prosecutor arises as he is a constitutional appointee and it will be awkward for him. If the Advocate General is appointed as a Public Prosecutor under S.24(1) of the Code acting under his directions the Additional Advocate General can function as a Public Prosecutor So long as the Advocate General or the Additional Advocate General is not a Public Prosecutor of the High Court neither of them can present an appeal to the High Court from an order of acquittal even if the State Government directs. Hence it goes without saying that these appeals presented by the Additional Advocate General cannot be treated as appeals filed in accordance with S.378(1) of the Code.

(3.)Art.165 of the Constitution which contains the provision for the Advocate General is a verbatim reproduction of sub-s.(1) and (2) of the Government of India Act, 1935. In Bhagwan Das v. The King ( AIR 1949 PC 263 ) the question that came up for consideration before the Privy Council was whether a State appeal from acquittal filed by the Advocate General in the High Court can be considered as presented in accordance with law. There was already a notification by the Governor of Punjab under S.492 of the Code Of Criminal Procedure, 1898 appointing the Advocate General as Public Prosecutor generally for the Punjab. The Privy Council said:
"Where by a notification the Governor appoints the Advocate General of the Province, to be a Public Prosecutor generally for the Province the Advocate General is a Public Prosecutor and is entitled to sign and file an appeal before the High Court."

In the same judgment the Privy Council further said:

"It is a part of the executive authority of the Province to make appointments to the post of Public Prosecutor and the executive authority of the Province being vested by S.49, Government of India Act, in the Governor, he is entitled to appoint the Advocate General a Public Prosecutor, under S.492, Criminal P. C."

In Emperor v. Gaya Prasad ( AIR 1914 Cal. 560 ) the Secretary to the Government of Bihar and Orissa requested the Legal Remembrancer of Bengal to file an appeal against an order of acquittal passed by a Deputy Magistrate and accordingly an appeal was filed by the Deputy Legal Remembrancer before the High Court. Holding that the appeal was incompetent the Calcutta High Court held:

"Under S.417, Criminal P.C. the direction by the Local Government to present an appeal to the High Court from an order of acquittal must be given to a Public Prosecutor. It may be given in a letter, whereby the Public Prosecutor is appointed as such; but it does not follow that the mere fact that a person has been directed to present such an appeal to the High Court involves his appointment as Public Prosecutor for the purposes of the case."

In Mansoor v. State of M.P. ( 1971 (2) SCC 369 ) the Supreme Court has held:

"Reading S.4(1)(t), Cr. P. C., which defines "Public Prosecutor" together with S.492, Cr. P. C. under which the State Government is empowered to appoint Public Prosecutors, the Additional Government Advocate when appointed as a Public Prosecutor for the High Court in respect of the cases arising in the State of Madhya Pradesh must, in our opinion, be held to be a Public Prosecutor lawfully empowered to present the appeals in the High Court against orders of acquittal."

In State of Rajasthan v. Smt. Manbhar (1981 CAR 183 (SC)) this question as to who should file an appeal against an order of acquittal before the High Court on behalf of the State again came up for consideration before the Supreme Court. The case arose from Rajasthan where the State Government by a notification dated 30-3-1974 appointed the Advocate General of the State to be a Public Prosecutor under S.24 of the Code. Then the Advocate General issued another notification under S.24 read with S.2(a) directing that Law Officers of the Government including Deputy Government Advocates shall have the authority to act, plead and argue in all matters covered by the Code. The Deputy Government Advocate accordingly presented the appeal from the order of acquittal. The High Court of Rajasthan refused leave under S.378(3) of the Code on the ground that the appeal was presented by one incompetent to do so. Setting aside the order refusing leave the Supreme Court held:

"It will be seen that under sub-s.(1) of S.378, only a Public Prosecutor can present an appeal to the High Court from an original or appellate order of acquittal passed by any court subordinate to the High Court, if so directed by the State Government. Again, for a person to be a Public Prosecutor, it is necessary that he is either appointed as such under S.24 or acts under the directions of a Public Prosecutor so appointed."

The Supreme Court further held:

"A Deputy Government Advocate being a person so authorised under the notification dated 25th September, 1974 above mentioned is thus a Public Prosecutor having full competence to present an application under S.378 of the Code. In this view of the matter, the High Court was not justified in throwing out the application presented to it as one having been filed by a person incompetent to do so."

A contrary view has been taken by the High Court of Mysore. In Government of Mysore v. Gulam Mohamad (AIR 1953 Mysore 42) a preliminary objection was taken by the counsel for the accused that an appeal from acquittal presented by the Advocate General of the State, who was authorised 'generally to appear before the High Court in all criminal cases', was incompetent. Rejecting the contention the High Court held:

"We are not impressed with the argument but it is not necessary for the purpose of this case to depend upon the provisions of the Code to decide the question, in view of the appeal being filed after the Constitution of India came into force and Art.165 states that the Advocate General has to perform such duties as are assigned to him. It is not and cannot be disputed that if the duties assigned to him enables his filing the appeal the objections must fail."

With respect we express our inability to accept the above view of the High Court of Mysore as correct. In view of the authorities already referred to we need not say anything more.