1. This is a State appeal against acquittal. The Chief City Magistrate, by judgment dated 30.12.1950, has acquitted the accused Ahmed Mohiuddin from a charge of criminal misappropriation under Section 339 of Asafia Penal Code. We have heard the arguments of the learned Advocate for the accused and the learned senior Government Advocate, Shri Mohd. Mirza. We record our opinion below.
2. The facts alleged by the prosecution are that the accused borrowed from the complainant Sayeed a gold chain weighing a little more than six tolas and of the value of Rs. 400 some time in Ardibehisht 1356 F. stating that it was required for the marriage ceremony of his sister and with the undertaking that he would return it to the complainant within four or five days as soon as the function was over; that instead of returning it, he pledged it with P. W. 10, Sriram Bagirathlal and that as the offence of criminal misappropriation was committed, the accused should be punished for the same and the gold chain returned to the complainant. The prosecution has adduced ten witnesses and the defence 14. We have carefully considered the whole record and put down our opinion below.
3. A preliminary objection is taken by the learned Advocate, Shri B.N. Chobey. He has argued that the appointment of Shri Gopalrao Tuljapurkar who has signed the memorandum of the State appeal' against the acquittal is not valid, and that his signature is invalid in view of Article 166 of the Constitution. He pointed out that Shri Gopalrao Tuljapurkar was appointed as a Public Prosecutor under Section 364, Hyderabad Criminal P.C. and notified in the Jareeda dated 11.2.1951 along with several other Public Prosecutors; that this is not correct as the appointment of a Public Prosecutor can only be for a local area and so many persons cannot be appointed for one area. We have carefully considered this argument and regret that we do not agree. We do not think that the signature of the Rajpramukh is necessary under Article 166 of the Constitution, for, in such matters, the direction in that article is only declaratory and not mandatory and, moreover, that article refers to executive acts and the filing of an appeal is evidently a judicial and not an executive act. Hence the article is quite irrelevant.
Regarding the argument that as the Indian Criminal Procedure Code is in force now and under its Section 492 a Public Prosecutor can only be appointed who has worked on the Original Side of the High Court, we are of the opinion that a perusal of the section will show that there are alternatives in the section under which a Public Prosecutor who has not worked on the Original Side of the High Court can also be appointed. We do not think that the appointment of a number of Public Prosecutors for a local area can in any way be deemed to be objectionable; and evidently, the needs of the area would he the determining factor. Thus, we do not think that we car, allow the preliminary objection and reject it.
Their Lordships then considered the merit? of the appeal and after considering the evidence dismissed the appeal.