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Mallikarjuna Sharma and ors. Vs. the State of A.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1978CriLJ1354
AppellantMallikarjuna Sharma and ors.
RespondentThe State of A.P. and ors.
Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5..........1973 lays down certain qualifications for a person to be eligible for appointment as a special public prosecutor and the respondents do not possess the requisite qualifications prescribed by the said provision. it is on that ground that they challenge the appointments of the respondents.3. the 1st respondent, sri k. v. l. narasimharao, was enrolled as a first grade pleader in october 1947 under the pleaders act (act no. 6 of 1318 fasli). he practised until his appointment as a district munsif in the then hyderabad judicial service on 23-9-1949. he retired as a district judge on 29-11-1973. he got his name entered on the rolls of the advocates in january 1974 under the provisions of the advocates act, 1961. the government appointed him as a special public prosecutor by g. o. ms. no......
Judgment:

S. Obul Reddi, C.J.

1. The petitioners, who were accused in Sessions Case No. 10 of 1975 on the file of the Additional Metropolitan Sessions Judge, Hyderabad, have filed this petition under Article 226 of the Constitution for the issue of a writ of quo warranto against respondents 1, 2 and 3, who have been appointed as Special Public Prosecutors for prosecuting the petitioners in the said sessions case.

2. According to the petitioners, Section 24(6) of the Criminal Procedure Code, 1973 lays down certain qualifications for a person to be eligible for appointment as a Special Public Prosecutor and the respondents do not possess the requisite qualifications prescribed by the said provision. It is on that ground that they challenge the appointments of the respondents.

3. The 1st respondent, Sri K. V. L. Narasimharao, was enrolled as a First Grade Pleader in October 1947 under the Pleaders Act (Act No. 6 of 1318 Fasli). He practised until his appointment as a District Munsif in the then Hyderabad Judicial Service on 23-9-1949. He retired as a District Judge on 29-11-1973. He got his name entered on the rolls of the Advocates in January 1974 under the provisions of the Advocates Act, 1961. The Government appointed him as a Special Public Prosecutor by G. O. Ms. No. 1392, Home (Courts-C) Department, dated 4th October, 1975. In so appointing him as Special Public Prosecutor, the Government exercised the power conferred upon it under Sub-section (6) of Section 24 of the Criminal Procedure Code, 1973. He was appointed as Special Public Prosecutor to conduct prosecution in the present Sessions case, which was then at a preliminary enquiry stage.

4. The 2nd respondent,' Sri V. Satyanarayana Raju, was enrolled as an Advocate of the Madras High Court on 3-11-1947. He was appointed as a Police Prosecuting Officer on 9-6-1952.

5. The third respondent, Sri M. V. Chalapathi Rao, was enrolled as an Advocate of the Madras High Court in 1941 and was appointed as an Assistant Police Prosecutor Grade-II in June 1945.

6. The 2nd and 3rd respondents continued to hold the Office of Police Prosecuting Officer or Assistant Public Prosecutor, as the case may be, until they were appointed as Special Public Prosecutors under G. O. Ms. No. 1131, Home (Courts-C) Department, dated 17-8-1974.

7. The case of the 1st respondent is that his judicial service should be taken into account for purposes of the qualifications prescribed in Section 24(6), Cr. P.C. 1973 and the case of respondents 2 and 3 is that their service as Police Prosecuting Officer or as Assistant Police Prosecutor, as the case may be, should be counted towards the period of practice prescribed in Section 24(6),

8. Mr. Kannabiram, the learned Counsel appearing for the petitioners contended that the mandatory requirement of Section 24(6) is that a person to be appointed as a Special Public Prosecutor must be an Advocate who has been in practice for not less than ten years and that the period of service either as a Judicial Officer or as an employee of the Government working as a Police Prosecuting Officer or as an Assistant Public Prosecutor has to be excluded for computing the requisite period of not less than ten years' practice as an Advocate.

9. The learned Advocate-General appearing for the respondents contended that a Police Prosecuting Officer or an Assistant Public Prosecutor does not cease to be an Advocate merely by reason of his appointment as a Police Prosecuting Officer or as an Assistant Public Prosecutor, as he is empowered by virtue of the rules which govern his service conditions to appear and plead in the Magistrates' Courts. In other words, a person, who discharges the functions of an Assistant Public Prosecutor in the Magistrates' Courts and who, day in and day out, conducts cases on behalf of the prosecution, cannot be equated to a Government employee, who does not appear or plead in a Court, although he may have enrolled himself as an Advocate.

10. Therefore, the sole question that falls for determination is whether the respondents satisfy the mandatory requirements of Section 24(6), Cr. P.C., 1973 for being appointed as Special Public Prosecutors. Under the Criminal Procedure Code 1898, no qualifications were prescribed for appointment of a Public Prosecutor. Section 492 of that Code empowered the State Government to appoint generally or in any case or for any specified class of cases in any local area one or more Public Prosecutors. The District Magistrate or a Sub-Divisional Magistrate may, in the absence of the Public Prosecutor or where no Public Prosecutor has been appointed, appoint any other person, not being on officer of Police below such rank as the State Government may prescribe in that behalf to be Public Prosecutor for the purpose of any case. But the Criminal Procedure Code, 1973 prescribes the qualifications and procedure for the appointment of Public Prosecutors. Section 24(6) 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 for conducting, in such Court, any prosecution, appeal or other proceeding on behalf of the Central or State Government, as the case may be,

(2) For every District the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the District.

(3) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons who are, in his opinion, fit to be appointed as the Public Prosecutor or Additional Public Prosecutor for the District.

(4) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the District unless his name appears on the panel of names prepared by the District Magistrate under Sub-section (3).

(5) A person shall only be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under Sub-section (1) or Sub-section (2), if he has been in practice as an Advocate for not less than seven years.

(6) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, an Advocate who has been in practice for not less than ten years, as a Special Public Prosecutor.

11. Section 25 of the same Code provides for the appointment of Assistant Public Prosecutors and it reads;

25. Assistant Public Prosecutors : - (1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates.

(2) Save as otherwise provided in Sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor.

(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in-charge of that case:

Provided that a police officer shall not be so appointed -

(a) if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or

(b) if he is below the rank of Inspector.

12. A reading of Section 24(6) would make it obvious that the qualification prescribed for the post of a Special Public Prosecutor is not the same as the qualification prescribed for the post of a Public Prosecutor or Additional Public Prosecutor, while it would be sufficient if a person has been in practice as an Advocate for not less than seven years for appointment as a Public Prosecutor or Additional Public Prosecutor, for purposes of appointment as a Special Public Prosecutor, only an Advocate, who has been in practice for not less than ten years, would be eligible for appointment. In other words, the intent of the Legislature was that a person, who could be appointed as a Special Public Prosecutor, must put in more number of years as a practising Advocate than a person eligible to be appointed as a Public Prosecutor.

13. For purposes of computing the practice of a person as an Advocate, we cannot take into account the judicial service of the 1st respondent. Article 217 of the Constitution relied upon on behalf of the 1st respondent does not come to his rescue at all. Explanation to Article 217 only says that, for purposes of qualifications for appointment as a Judge of the High Court, in computing the period during which a person has been an Advocate of the High Court, the period of! judicial office held by him shall be included. Nowhere do we get in Section 24(6) of the Code that, in computing the period of practice as an Advocate, the period of service as a judicial officer should be included. Therefore, Article 217 of the Constitution does not render any assistance to the 1st respondent for purposes of computing the period prescribed by Sub-section (6) of Section 24(6).

14. Respondents 2 and 3 are governed by the Special Rules framed by the Governor in exercise of his powers under Article 309 of the Constitution. The Assistant Police Prosecutors and the Assistant Police Prosecuting Officers belong to the Andhra Pradesh General Subordinate Service Class XXX. The constitution of the service prescribes the mode of appointment, the appointing authority, the qualifications, the period of probation and training. The appointment to Grade-II Assistant Public Prosecutors is made by direct recruitment by the State Government on the recommendation of the District Collector concerned. The unit of appointment is the district. Rule 4 (a) of the Andhra Pradesh General Subordinate Service Class XXX (a), Rules says; 'For the purposes of appointment, discharge of probationers and approved probationers for want of vacancies, re-appointment, appointment as full members and promotion, the district shall be the Unit.' Rule 4 (c) says : 'Transfer of Assistant Public Prosecutors, Grade-I and II, from one district to another shall be made by the State Government. The transfer of Assistant Public Prosecutors Grade II within the same district shall be made by the District Collector concerned. A period of probation of two years within a continuous period of three years is prescribed under Rule 6. They are also to undergo training. Police Prosecuting Officers and Assistant Police Prosecuting Officers belong to the Andhra Pradesh General Subordinate Service Class XXX (b). The appointing authority is the Inspector-General of Police. They too have a period of probation of two years within a continuous period of three years and training. For appointment to the post of Police Prosecuting Officer, a person must have put in not less than five years service as Assistant Police Prosecuting Officer, and for appointment to the post of Assistant Police Prosecuting Officer, a person must be a law graduate of a University in the State and must have had not less than three years active practice in Criminal Courts. The rules therefore make it abundantly clear that respondents 2 and 3 belong to the Andhra Pradesh General Subordinate Service Class XXX and were full-time Government servants and their service conditions were governed by the Special Rules. The question is whether, by reason of the fact that they were enrolled as Advocates, their period of service as Police Prosecuting Officer or Assistant Public Prosecutor can be counted towards practice as an Advocate for not less than ten years. We may in this connection also refer to the Advocates Act, 1961. Section 29 says : 'Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, Advocates.' Section 30 entitles an Advocate to practise in all Courts including the Supreme Court, before any tribunal or person legally authorised to take evidence and 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. It is by virtue of these two provisions that it is contended on behalf of respondents 2 and 3 that, once they were enrolled as Advocates, they do not cease to be Advocates and the further fact that they are conducting prosecutions in the Magistrates' Courts does not take them out of the category of Advocates. Section 49 of the said Act empowers the Bar Council of India to make rules. Under Section 49(b), the Bar Council of India may prescribe the conditions subject to which an Advocate shall have the right to practise and the circumstances under which a person shall be deemed to practise as an Advocate in a Court. In accordance with this rule-making power, the Bar Council of India has made rules and Rules 42 and 44 of the Bar Council of India Rules lay down restrictions on certain employments. Rule 42 says : 'An Advocate shall not personally engage in any business but he may be a sleeping partner in a firm doing business provided that, in the opinion of the appropriate State Bar Council the nature of the business is not inconsistent with the dignity of the profession.' Rule 44 says:

An Advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise and shall, on taking up any such employment intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practise as an Advocate so long as he continues in such employment.

Nothing in this rule shall apply to a Law Officer of the Central Government or the Government of a State or of any Public Corporation or body constituted by statute who is entitled to be enrolled under the rules of his State Bar Council made under Section 28 (2) (d) read with Section 24(6) of the Act despite his being a full-time salaried employee.

15. The learned Advocate-General placed reliance upon the proviso to Rule 44 to contend that Rule 44 does not apply to a Law Officer and that respondents 2 and 3 are Law Officers of the State Government. We are unable to agree with the learned Advocate-Genaral that Assistant Public Prosecutors and Police Prosecuting Officers come within the expression 'Law Officer' as they are full-time salaried employees governed not by any rules prescribed for Law Officers, that is to say, the Advocate-General, the Public Prosecutor and the Government Pleaders of the High Court. We are therefore not prepared to agree with him that respondents 2 and 3 are 'Law Officers' within the meaning of that expression. Further, even assuming that they come within the meaning of the expression 'Law Officers', the proviso to Rule 44 only removes the restriction on their employment. There is nothing in Rule 44 which says that the period of service as a Law Officer shall be included for purposes of the qualifications prescribed under Section 24(6) Cr. P. C, 1973.

16. A single Judge of this Court, in Naganna v. Krishna Murthy : AIR1965AP320 had occasion to consider whether A.P.P. Grade-I, who has suspended his practice, can be said to be acting as an Advocate when he was asked to defend a Govt. servant. The learned Judge, Anantanarayana Ayyar, J., opined that the A. P. P. Grade-I 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-I, he must have suspended his practice upon entering Government service as a whole-time Government servant. When he is functioning as A.P.P. Grade-I, he cannot be in the position of an Advocate practising in the Bar. Therefore, he cannot appear for the accused in the capacity as a practising advocate as his practice is suspended. The learned Advocate-General invited our attention to the decision of the Supreme Court in Aswini Kumar v. Arabinda Bose : [1953]4SCR1 , to contend that the word 'Practise' means appear, act and plead. That was a case where an Advocate of the Supreme Court sought to exercise his right to practise on the original side of the Calcutta High Court by virtue of the Supreme Court Advocates (Practice in High Courts) Act, 1951. The meaning of the words 'entitled to practise as of right' came to be considered by the Supreme Court. Patanjali Sastri, C. J., speaking for the Court, observed:

This statutory right, which is conferred on the Supreme Court Advocates in relation to other Courts and which they did not have before, cannot as a matter of construction, be taken to be controlled by reference to what they are allowed or not allowed to do in the Supreme Court under the Rules of that Court. Such rules are liable to be altered at any time in exercise of the rule-making power conferred by Article 145 of the Constitution.

The learned Chief Justice approved the meaning given to the word 'Practise' by Kumaraswami Sastri, J. in a Full Bench decision of the Madras High Court in Powers of Advocates, In Re ILR 52 Mad 92 : AIR 1928 Mad 1182 (FB) where it was observed by Kumaraswami Sastri, J.:

The word 'practise' ordinarily means 'appear, act and plead', unless there is anything in the subject or context to limit its meaning.... I am of opinion that where an Act confers rights to a party in general terms and entitles him to perform more than one function, the cutting down of those rights by a rule would make that rule repugnant to the provisions of the Act.

The right conferred upon respondents 2 and 3 by virtue of their appointment either as Police Prosecuting Officer or as Assistant Public Prosecutor cannot be equated to the right of an Advocate. What is required under Sub-section (6) of Section 24(6), Cr. P.C. 1973 is that an Advocate must have been in practice for not less than ten years. The emphasis is on his being an Advocate in practice and not in practice as a Government servant. The underlying object in enacting Sub-section (6) is that only an Advocate of certain standing and experience at the Bar should be chosen for appointment as a Special Public Prosecutor. It cannot be attributed to the Legislature that, when it employed the language 'an advocate who has been in practice for not less than! ten years', it intended that even a full-time employee of the Government governed by the service rules would also be eligible or would satisfy the requirement of Sub-section (6) viz., 'an advocate who has been in practice for not less than ten years' for appointment as a Special Public Prosecutor. The fact that respondents 2 and 3 were enrolled as Advocates is not sufficient compliance with the requirement of Sub-section (6). The further requirement is that the Advocate must have been in practice for not less than ten years. We do not think that the Legislature used the expression 'an advocate who has been in practice for not less than ten years' so as to take within its sweep the Government servants who had suspended their practice by reason of their employment. Rule 3 in Chapter III of the Bar Council of India Rules relating to conditions for right to practise enjoins on every Advocate, who voluntarily suspends practice for any reason whatsoever, to intimate such suspension to the State Council on the roll of which his name is entered. Respondents 2 and 3 cannot be said to be in practice as Advocates when they were appointed as Special Public Prosecutors for prosecuting the petitioners. An Advocate should be entitled to practise independently without any fetters of the service rules. A full-time salaried Government servant is not an 'Advocate' within the ambit of Rule 44 of the Bar Council Rules. He should be at liberty to appear in any Court for any client whomsoever he chooses. Respondents 2 and 3 had denied themselves the freedom to practise as Advocates by reason of their being full-time employees of the Government. We are therefore of the opinion that respondents 2 and 3 also do not satisfy the requirement laid down in Sub-section (6) of Section 24, Cr. P.C. 1973.

17. In the result, we hold that the three respondents are unable to show by what right or authority they hold the office of Special Public Prosecutors. The appointments of respondents 1, 2 and 3 are therefore declared null and void. A writ of quo warranto shall accordingly issue. No costs.

18. In view of our judgment in Writ Petition No. 155 of 1978 no orders are necessary in Crl. Revision Case No. 664/77. In this view, it is dismissed.


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