(1) The petitioner is Naganna who is a complainant in C. G, No. 17 of 1964 on the file of the learned Munsif-Magistrate, Narasipatnam. He has filed the revision petition to set aside the order of the learned Munsif-Magistrate dated 15-6-1964 rejecting a memo filed by him.
(2) The relevant facts are as follows:-
Naganna filed a private complaint against Krishnamurthy and Appa Rao, two police constables attached to Kottakota Police Station under S. 326 and S. 324 I. P. C. A. pleader filed appearance for the two accused constables. Subsequently, the A. P. P Grade 1 filed a memo dated 9-6-1964 as follows:- 'I am instructed by the Collector to defend the accused in this case. The accused are given state defence.'
Subsequently, the complainant filed a memo dated 15-6-1964 in which he contended as follows:-
'The above case is a private case and the allegation do not show that the accused did anything in course of their official capacity. The prosecutor (A. P. P. Grade 1) is appointed under the Cr. P. C. to conduct prosecution. He cannot be permitted to conduct defence in any case. The accused also engaged a private Advocate. As such the A. P. P. Grade-1 may not be permitted to cross-examine prosecution witnesses.'
The learned Munsif-Magistrate passed an order on 15-6-1964 as follows:-
'.................................................................. A. P. P. Grade-1 has urged that he was authorised by the District Collector to defend the accused that the Collector is competent to give such authorisation to A. P. Ps. to defend a Government servant who is an accused in a private case and that there are G. Os. also to that effect. He also filed a memo .................................................................................. I am of opinion that the contention of the A. P. P. Grade-1 is tenable. Hence the memo filed by the petitioner.
(3) Section 340 Cr. P. C. runs as follows:-
'340 (1). Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code in any such court, may of right be defended by a pleader.
Section 4(1)(r). Cr. P. C. runs as follows:-
'Pleader' used with reference to any proceeding in any court, means a pleader (or a mukhtar) authorised under any law for the time being in force to practice in such court, and includes,
(1) an advocate, a vakil and an attorney of a High Court so authorised, and
(2) any other person appointed with the permission of the court to act in such proceedings.'
Rules 80 and 81 of the Criminal Rules of Practice run as follows:-
'80. The Code of Criminal Procedure gives to every Magistrate a discretion to permit persons, other than legal practitioners authorised by any other law to practice in such court to act in Criminal Proceedings before him. This discretion is to be exercised by the Magistrate according to the circumstances of each case, and in deciding whether permission should be given or not, the character of the person appointed is one of the matters to be taken into consideration. It would be wrong use of the discretion to grant such permission to a person of bad character or to one who has been convicted of a criminal offence or whose character or conduct is such that he would have been suspended or dismissed if he had been regular pleader.'
81. The practice of allowing unlicensed person to appear as pleaders systematically and as a matter of course is reprehensible. Having regard to the large number of qualified practitioners now available in every part of the State, the discretion to permit 'private pleaders' to appear and argue cases should be exercised as sparingly as possible, and when such permission is granted the reasons for granting it must be recorded in writing. In general no person who is not a qualified legal practitioner should be permitted to act except to prevent a possible miscarriage of justice .............' The A. P. P. Grade-1 must obviously be a qualified legal practitioner in view of the system of recruitment to that office. But, when he was recruited as A. P. P. Grade-1 he cannot be in the position of an Advocate practising in the bar. Therefore, he cannot accept an engagement as a pleader to defend an accused like a practising pleader who had not suspended practice.
(4) Section 30 and 32 of the Advocates Act run as follows :
'Section 30. Subject to the provisions of this Act, every Advocate whose name is entered in the common roll shall be entitled as of right to practise throughout the territories to which this Act extends.
(i) in all courts including the Supreme Court ;
(ii) before any tribunal or person legally authorised to take evidence; and
(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.
Section 32. Notwithstanding anything contained in this chapter, any court, authority or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case.'
(5) In the present case, the A. P. P. Grade-1 cannot appear for the accused in his capacity as a practising advocate as his practice is suspended. Such being the case, he cannot lawfully appear for the accused merely on the ground that the Collector is competent to give authority to the A. P. P. Grade-1 to defend a Government servant who is an accused in a private case or on the ground that there are government orders to that effect, as contended by the A. P. P. Grade-1 before the learned Munsif-Magistrate. The finding of the learned Munsif-Magistrate accepting the contention of the A. P. P. Grade-1 is not tenable to the extent of holding that the A. P. P. Grade-1 was entitled to appear as of right to defend the accused on the grounds urged by the A. P. P. Grade-1.
(6) But, this does not affect the power of the court under S. 4(1)(r)(2) Cr. P. C. to grant permission to any person other than an Advocate etc. , mentioned in the Section. This power is available for being exercised by the learned Munsif-Magistrate and is guided by Rules 80 and 81 of the Criminal Rules of Practice. The order of the learned Munsif-Magistrate is passed apparently on the basis that the A. P. P. Grade-1 is provided with a right to appear in the case and not on the basis that permission of the Magistrate was sought under S. 4(1)(r)(2) Cr. P. C. or that the learned Munsif-Magistrate granted permission. If the Munsif-Magistrate were to grant permission to persons contemplated in Rule 81 of the Criminal Rules of Practice, reasons for granting permission have to be recorded in writing. Rule 81 of the Criminal Rules of Practice does not apply to the present case as it relates to unlicensed persons and private pleaders as distinct from qualified practitioners. The order of the learned Munsif-Magistrate is not, on the face of it, a permission under section 4(1)(r)(2) Cr. P. C. Therefore, it has to be set aside.
(7) My attention is drawn to the Government Memorandum No. 2422/ HCE/ 64-2 dated 14-8-1964. It runs as follows :
'I am directed to state that Sec. 340 of the Criminal Procedure Code provides that any person accused of an offence before a criminal court or against whom proceedings are instituted under the Code in any such court, may of right be defended by a 'Pleader'. The word 'Pleader' is defined in S. 4(1)(r)(2) as a pleader or mukhtar authorised under any law to practice in a court and an advocate, a vakil and an attorney of a High Court so authorised and any person appointed with the permission of the Court to act in such proceedings. An Advocate is entitled as of right to practice in any court by virtue of S. 14 of the Indian Bar Councils Act, 1926. An Assistant Public Prosecutor or Police Prosecuting Officer who might have been an advocate immediately before his appointment under the Government must be deemed to have suspended his practice upon entering Government service. Being a wholetime Government servant, it will be inconsistent with the nature of his appointment under the Government to say that he continues to be a practicing Advocate. Therefore when an Assistant Public Prosecutor is to appear for defending Government servants he may appear only as counsel engaged by the accused Government servants and not by virtue of his appointment as Assistant Public Prosecutor. An Assistant Public Prosecutor cannot therefore accept an engagement as a pleader to defend an accused Government servant whether serving under the State or the Central Government in a criminal case. It is no doubt true that an Assistant Public Prosecutor may with the permission of the court defend an accused Government servant just as any private person other than a legal practitioner may defend an accused in a criminal case with the Court's permission/. But such permission will have to be granted by the criminal court in its discretion which is regulated by rules 80-82 of the Criminal Rules of Practice. Rule 81 provides that the practice of allowing unlicensed persons to appear as pleaders systematically and as a matter of course is reprehensible.
In the above circumstances, Government are advised that both the part time and whole time Public Prosecutors who are Government Servants should not be asked to assist the Government servants in criminal cases and that such Government servants should engage private advocates.'
The memorandum of Government is of the nature of administrative instruction and guidance. If any application is filed before the Munsif-Magistrate under S. 4(1)(r)(2) Cr. P. C. he will have to dispose of it according to law after considering all the circumstances in the light of the relevant law.
(8) The revision petition is allowed and the order of the learned Munsiff-Magistrate is set aside.
(9) Petition allowed.