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Lt. Col. K.C. Sud, New Delhi Vs. S.C. Gudimani, New Delhi - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberCriminal Revn. No. 224 of 1980
Reported in1982CriLJ2779; 20(1981)DLT302; ILR1981Delhi680
ActsConstitution of India - Article 39A; Indian Penal Code (IPC), 1860 - Sections 34, 120B, 420, 421, 422 and 425; Code of Criminal Procedure (CrPC) , 1973 - Sections 397, 401 and 403
AppellantLt. Col. K.C. Sud, New Delhi
RespondentS.C. Gudimani, New Delhi
Cases ReferredIn S. Naganna v. Krishna Murthy
indian penal code--complaint under sections 120b, 420, 421, 422, 425 & 34--code of criminal procedure, sections 397, 401 & 403--revision--no person has a right to be heard in criminal revision unless an order to the prejudice of the accused is made or the court deems fir--whether a public prosecutor can appear against the state in a revision.; the respondent lodged a complaint before the metropolitan magistrate, new delhi against six persons under sections 120b, 420, 421, 422, 425 and 34 of the indian penal code. the accused were represented in the court of the magistrate by the public prosecutor in the high court for the delhi administration and his junior without a power of attorney. the metropolitan magistrate summoned 4 of the accused including the petitioner under section.....order1. s. c. gudimani lodged a complaint against six persons before the metropolitan magistrate. new delhi, on february 21, 1980 under sections 120b, 420, 421, 422, 425 and 34 i.p.c. though there is nothing on record, but it is not denied that the accused were represented by shri mathur and kumari naresh parmar, a junior colleague of shri dinesh chand mathur, and they did so without a vakalatnama. the learned metropolitan magistrate by his order dated may 15, 1980, summoned only four of the accused including lt. col. k. c. sud, under section 420 read with section 34 i.p.c. and dismissed the complaint with regard to offences under sections 120b, 421, 422 and 425 i.p.c. 2. against the aforesaid order, the present petition under section 397 cr.p.c. has been filed on behalf of lt. col. sud.....

1. S. C. Gudimani lodged a complaint against six persons before the Metropolitan Magistrate. New Delhi, on February 21, 1980 under Sections 120B, 420, 421, 422, 425 and 34 I.P.C. Though there is nothing on record, but it is not denied that the accused were represented by Shri Mathur and Kumari Naresh Parmar, a junior colleague of Shri Dinesh Chand Mathur, and they did so without a Vakalatnama. The learned Metropolitan Magistrate by his order dated May 15, 1980, summoned only four of the accused including Lt. Col. K. C. Sud, under Section 420 read with Section 34 I.P.C. and dismissed the complaint with regard to offences under Sections 120B, 421, 422 and 425 I.P.C.

2. Against the aforesaid order, the present petition under Section 397 Cr.P.C. has been filed on behalf of Lt. Col. Sud by Shri D. C. Mathur and Kumari Naresh Parmar. The revision petition was admitted by this court on August 20, 1980. When the petition came up for hearing, Shri Balraj Trikha, the learned Advocate for the respondent objected that since Shri Mathur was the Public Prosecutor for the Delhi Administration, he could not appear on behalf of the accused person. The revision thereforee, filed by him was a nullity, He urged that nobody has a right to be heard in a revision and yet in the ordinary course, the High Court does hear counsel appearing in revisions but that is always subject to the rights of the State. He relied upon Bisheshar v. Rex. : AIR1949All213 . He also quoted profusely Sardar Surinder Singh v. Comrade Ram Piare M.L.A. Criminal Revisions Nos. 1161 and 1162 of 1964 decided on January 20, 1965, by a Division Bench of the High Court of Judicature at Allahabad.

Complaints filed in the court of a Magistrate in Punjab against Surinder Singh Kairon and late Shri S. Partap Singh Kairon and some others were transferred by the Supreme Court for trial to a District Magistrate in Uttar Pradesh. The Kairons filed some revisions in the High Court of Allahabad. Pt. K. L. Misra, the then Advocate-General of the State of Uttar Pradesh, put in appearance on behalf of the accused petitioners after obtaining permission of the Governor as the relevant Rules prevented the Advocate-General from appearing as a private counsel for an accused person. Yet an objection was raised to his appearance. The Division Bench which came to consider the issue, was presided over by Hon'ble V. Bhargava J. (later on a Judge of the Supreme Court) and Hon'ble M. H. Beg, J. (later on the Chief Justice of India.)

They held that it was well established that in all criminal proceedings, the right to prosecute the offender vested in the Government and it was only in exceptional cases that a person aggrieved was also permitted to file a complaint in a criminal court under the Code of Criminal Procedure. Hence, the proper party in a criminal case was that State Govt. which was interested in prosecuting the case and not the State Govt. within whose territory the court was situate. And yet the State of Punjab was not a necessary party because in a criminal revision, there was no necessary party, but being an appropriate authority to appear as prosecutor, it could be imp leaded as a party and given an opportunity of being heard at any stage of the proceedings arising out of the complaints, if the court considered it desirable to do so.

Since the State of U.P. was not a party, there could be no bar against the Advocate-General of U.P. appearing in his capacity as an advocate for the accused. Yet, having won his stand. Pt. Misra withdraw, why To keep his office above controversy. The court, however, did not decide the question whether it was incompetent or inappropriate for any Advocate-General even in his personal capacity to appear and represent a party opposed to the party which appointed him as Advocate-General. Shri Trikha submitted that in a criminal proceeding, the State was a necessary party or a natural party or a proper party or a desirable party whether imp leaded or not, and in any case, the Public Prosecutor appointed by it could not appear against it. It would be against public interest if the Public Prosecutor began to play the role of a private prosecutor or a private defender.

3. Shri Mathur contended that in a petition like the present, such a question could not be raised; and the respondent if he so chooses, should resort to a petition for a writ of quo warranto. But, this contention has to be overruled because it is not his appointment as Public Prosecutor that is in question; what is being questioned is the legality and propriety of the Public Prosecutor to appear against the State. I have observed one Addl. Public Prosecutor opposing another Addl. Public Prosecutor in the same case. To me that was an unusual sight but the learned Public Prosecutor and his Additional claimed that they had a right to accept briefs from any of the parties to the prosecution as long as Administration did not debar them from doing so. They specially the Addl. Public Prosecutor, further claim that they are lawyers empanelled to handle only such cases as are allocated to them and outside such allocation, they are free to practices as advocates in any case for any party which engages them. They also claim that their predecessors had been doing likewise. There are besides several lawyers who appear in the departmental complaints with the freedom to appear against the department in cases in which the department does not engage them. I, thereforee, felt that the controversy raised was of general public importance, and with a view to examine it in all its aspects, framed the following three questions :-

(1) Whether a Public Prosecutor or an Addl. Public Prosecutor or a panel lawyers for that matter, can appear against the State

(2) Whether it is permissible to the State or the Administration to permit a Public Prosecutor or an Addl. Public Prosecutor to appear against the State

(3) Whether a Public Prosecutor can appear on behalf of the accused person in cases instituted on a complaint by a private party

4. At this stage Shri Sital A. K. Dar, Advocate, joined in. Notices were also issued to Delhi Administration the President of the Delhi High Court Bar Association : and the Chairman of the Bar Council of India. But, none of 'the officers of the court' has cared to return the courtesy of appearing and putting forth what they considered to be the proper approach and assist me in reaching the correct conclusions. Perhaps, they did not wish to render 'the labour of love' and devote their 'valued' time to the exercise which it appears, seemed sterile to them. But unless I knew their views. I had no means of knowing if the controversy was non-productive. Alas, the Delhi Administration had chosen to remain reticent and ignore the notice of this court on a matter which pertinently and primarily affects public interest and which was their immediate concern. The burden thereforee, was shared by Shri Balraj Trikha and Shri Sital A. K. Dar on the one side, and Shri D. C. Mathur and Shri R. B. Datar on the other and I must record my appreciation and thanks for their unqualified assistance. I took time for consideration.

5. Blackstone divided wrongs into private and public. The former are termed civil injuries; the latter, crimes, because a crime is an act harmful to the public. Yet, at certain level this classification breaks down and crime remains incapable of precise juristic definition. But the General Clauses Act and the Code of Criminal Procedure have made the task easier for us. Crime is nothing but an offence and an offence is an act or omission which is made punishable by any law for the time being in force and subject to any specially enacted modification, is capable of being investigation, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure currently prevalent. Any person can set this procedure into motion, because if he otherwise arrogates it to himself, to deal with it in his own manner, he will himself most likely commit an offence. It sounds so simple but it has taken the human civilisation centuries to reach this stage when the modern State has come to acquire a monopoly to adjudicate and use force when fights between private individuals take place. That is why justice is represented by scales and sword.

In all prosecutions the State is the prosecutor and a proceeding is always treated as a proceeding between the State and the accused. State alone has the interest in peace and security and has the right to prosecute and the complainant has no independent right to have the guilty person punished; see Queen-Empresses v. Murarji Gokuldas, 2nd (1889) 13 Bom 389, Atmaram Mahadeo Ghosale v. State : AIR1965Bom9 ; In Re Malavi Kottavil Koyassan Kutty, 1917 (18) Cri LJ 329 : AIR 1918 Mad 494 and Gulli Bhagat v. Narain Singh, : AIR1924Pat283 . That is so because the society has so far found no better device to combat crime in keeping with the needs of peace and ideals of liberty and yet, as in case of civil litigation, it was the criminal and his victim who were required to settle their scores in the court. It took a long time for the society to realise that it should largely take over the prosecution functions because it is neutral interceptor it never loses, it never wins. But the court affairs call for expertise and hence conduct of prosecution is entrusted to prosecutors appointed by the State.

6. But the defense is still laissezfaire. Our criminal justice system is cracking under the oppressive weight of (1) delay and (2) costs. Of course, the amount of work in the courts has got to be large in view of the twin explosion of population and legislation. Delay is there because it suits one of the contestants. In crimes inviting severe penalties, delay has proved to be of immense advantage because, as the time rolls by the initial indignation of the victim and the society wears off, witnesses are persuaded by threat or temptation to resile or their recollections genuinely faint or fail, the legislature may alter the law or the courts reverse their rulings or reduce or relieve the severity of the consequences, or non-prosecution or composition may take place. In cases of vexatious prosecution, it suits the complainant because he can subject his adversary to continued harassment with regard to any supposed or genuine grievance; so, one party has always a vested interest in delay backed by expert and tactical management of the case in its passage through one court and from one court to the other.

The other malaise of costs in criminal cases comprises mainly the price of the legal services which continue to spiral along with general inflation. Without a heavy price, best service is not accessible in a temple of justice. Our present legal apparatus is nothing but a legal priesthood. Efficient judiciary is available only to those who can afford to buy. In Mundrika Prasad Sinha v. State of Bihar, : [1980]1SCR759 the Supreme Court posed the question 'what in essence is the orientation of the bar ?' 'Geared to the people' or 'a conspiracy against the laity ?' It approved the remarks of Joel Gersti and Glenn Jacobs at p. 3 of 'Introduction' to their compilation 'Professions for the People', that 'one could carry on commerce by sleight of hand while donning the vestments of professional altruism'. Having recognised that the systems itself prevents justice from being accessible to those who are without resources. Article 39A of the Constitution of India directed that 'the State shall secure that the operation of the legal system promotes justice, one a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.' But nothing is no the anvil to implement the first and more important part.

More emphasis is laid on the second, that is, free legal aid. Though that second part has got to be implemented, yet it is a symptomatic treatment while the system calls for a courageous operation. In the countries where the State has adopted public defender system, it has tended to speed up court procedure, yet there are people who refuse to support it as they regard it as a step towards socialisation of law. Even the Royal Commission on Legal Services in U.K., rejected for no solid reason the suggestion for a national legal service, vide its Report, Vol. II, P. 251 paras 5, 7. But the objective of the first part of Article 39A cannot be achieved by periodical tinkering with procedural laws or by providing free legal aid. Time has come when it must seriously be considered whether the purpose of the Constitution can best be fulfillled only if a national legal service is constituted. But more of it on some other occasion. Suffice to say for the present that while the defense is still in the private sector, investigative and prosecuting services stand nationalised to a great extent at least in the area of major crimes and that is why efforts should be made to preserve the integrity, impartiality and efficiency of these services.

7. In U.S.A. the District Attorney whether elected or appointed is a lawyer, politician, law-enforcement official, administrator, reform advocate, 'architect of fair trial', local 'minister of justice', all rolled into one. He is bound by the ethics both of his office and profession. His office demands and the public expects him, to accord basic fairness to all persons, to protected the innocent and to safeguard the rights guaranteed to all including the guilty; (see Donald J. Newman, Introduction to Criminal Justice, Ed. 2. pp. 207-209). If a public prosecutor in one State defends a person accused of crime in another State, it is considered that it would undermine confidence in him and his office. A former prosecutor cannot represent, on appeal, a party prosecuted. The partner of a prosecuting attorney cannot defend one accused of crime in another country; (see Henry J. Drinker, Legal Ethics, pp. 118-119). As early as 1704, a Connecticut Statute provided, 'Henceforth there shall be in every counties a sober, discreet and religious person appointed by the counties courts to be attorney for the queen to prosecute and implead in the laws all criminals and to do all other things necessary or convenient as an attorney to suppress vice and immoralities'.

8. In U.K. there is nothing like a District Attorney of U.S.A. - a law-year who is engaged simply and solely in the work of prosecution. The Director of Prosecutions discharges the functions of the Crown's solicitor in criminal matters. The Attorney-General continues, himself or by his nominees, to discharge the functions of the Crown's barrister. In all prosecutions that are initiated by the Director, the Attorney-General either appears himself or nominates counsel to take the brief. Actually, he appears himself in only two or three of the very important cases each years. In courts where there is a great deal of work done by the Director, for example, the central criminal court in London the 'Old Bailey', there is a panel of counsel appointed by the Attorney General as Treasury counsel who are retained to prosecute in the Director's cases. At the Old Bailey, there are six such counsel. Each of them has a criminal practice and rarely does not work; but they are entitled to appear for the defense and quite frequently do so. But it is well established that the prosecuting counsel is to act as a minister of justice assisting in its administration rather than as an advocate; he is not to press for a conviction but is to lay all the facts, those that tell for the prisoner as well as those that tell against him; see Patrick Devlin. The Criminal Prosecution in England, Ed. 1966, pp. 20-23 (Regina v. Puddick, (1865) 4 E & F. 497 and Rex. v. Banks (1916) 2 K.B. 621.

9. In India, according to the Code of Criminal Procedure, 1973, Sections 190, 2(d) and 2(r), the prosecutions are instituted, -

(a) on complaints by private persons;

(b) by the police, (i) on police report in case of cognizable offences, and non-cognizable offences investigated under S. 155, and (ii) on a complaint in cases in which after investigation a non-cognizable offence is disclosed;

(c) on complaints by specified public servants or courts;

(d) on other information or personal knowledge of the Magistrate.

10. The law has taken care that the prosecutions which are brought by the State agencies are properly and impartially monitored and thereforee has created the office of the Public Prosecutor under S. 24 of the Code and any other person appearing is required to act under his directions. The Code provides, -

(a) for the High Court, a Public Prosecutor and Addl. Public Prosecutors appointed by the Central Govt. or the State Govt. for conducting in such court, any prosecution, appeal, or other proceedings on behalf of the Central or State Governments, as the case may be, after consultation with the High Court.

(b) for the District (i) one or more Public Prosecutors appointed by the Central Govt. for the purpose of conducting any case or class of cases; (ii) a Public Prosecutor and one or more Addl. Public Prosecutor, if any appointed by the State Govt. out of a regular cadre of Prosecuting Officers where such cadre exists, otherwise out of a panel of advocates prepared by the District Magistrate in consultation with the Sessions Judge :

(c) Special Public Prosecutor appointed by the Central or State Governments for any case or class of cases; and

(d) Asstt. Public Prosecutors appointed by the State of the Central Governments in the Courts of Magistrate; no police officer can be appointed as an Asstt. Public Prosecutor. When no Asstt. Public Prosecutor is available for any particular case, the District Magistrate may appoint any person as Asstt. Public Prosecutor including a police office if he is not below the rank of an Inspector or if he has not taken part in the investigation into the offence with respect to which the accused is being prosecuted. A Magistrate may, however, permit the prosecution to be conducted by any person or his pleader but the Advocate-General, Govt. Advocate, or a Public Prosecutor or Asstt, Public Prosecutor will require no permission. (Ss. 25 and 302 Cr.P.C.). The Public Prosecutor in charge of a case may appear and plead without any written authority before any court of inquiry, trial or appeal (S. 301 Cr.P.C.). In every trial before the High Court or a Court of Session, the prosecution shall be conducted by a Public Prosecution (Ss. 26, 225 and 474 Cr.P.C.) Public Prosecutors' present appeals (Ss. 377 and 378 Cr.P.C.) and can withdrawn prosecution (S. 321 Cr.P.C.).

11. In the State or Bihar v. Ram Naresh Pandey, : 1957CriLJ567 , the court has observed that in this country, the scheme of the administration of criminal justice is that the primary responsibility of prosecuting cognizable offences is on the executive authorities and thereforee, the Public Prosecutor though an executive officer is in a larger sense also an officer of the court. He is bound to assist the court with his fairly considered view and the court is entitled to have the benefit of the fair exercise of his function. According to Subhash Chander v. State. (Chandigadh Admn.), : 1980CriLJ324 , in certain respects (such as while exercising the power of withdrawal) the Public Prosecutor acts as a limb of the judicative process. He must work as a minister of justice assisting the State in the administration of justice and not as a representative of a party; see Roop K. Shorey v. State, .

The office of the Public Prosecutor is a public office and involves duties of public nature and of vital importance to the public and he is not just an advocate engaged by the State to conduct its prosecutions; see A. Mohambaram v. M. A. Jayavelu : AIR1970Mad63 . Even the Govt. pleaders under the Code of Civil Procedure were held to be holders of public offices; vide Smt. Kanta Kathuria v. Manak Chand Surana : [1970]2SCR835 and Mundrika Prasad Sinha : [1980]1SCR759 (supra). In Mahadeo v. Shanti Bai (Criminal Appeal No. 1832 of 1967 decided on 15-10-1968) : [1969]2SCR422 the Supreme Court held that a panel lawyer engaged to conduct cases on behalf of the Railway Administration held an office of profit. In Statesman (P) Ltd. v. H. R. Deb : [1968]3SCR614 , it was observed that an office is a position to which certain duties were attached. A public office was one which entitled a man to act in the affairs of others without their appointment or permission.

According to Great Western Railway Company v. Bater, (1922) 8 TC 231, if a man was engaged on whatever terms to do duties which are assigned to him, his employment to do these duties did not create an office to which these duties are attached. He was merely employed to do certain things and that is an end of it and if there was no office or employment existing in the case as a thing, the so-called office or employment was merely an aggregate of the activities of the particular man for the time being. An office on the other hand is a substantive thing that existed apart from the holder which went on and was filled in succession by successive holders. The should thereforee be no doubt that the Public Prosecutor holds a public office created by law right from the court of a Magistrate to the High Court. It exists apart from the incumbent. The position by itself is of permanency and continuity and even involves exercises of some portion of sovereign functions of the State.

12. There was no Public Prosecutor in the High Court but upon the recommendation of the Joint Committee, the 1973 Code created such an office in the High Court. It was upon the suggestion of the Law Commission that it was enacted that the incumbent of this office both in the High Court and the Court of Session should be recruited from the bar. The Code has attempted to completely separate the prosecution from investigation and to secure the independence of the office of the public prosecutor from executive by providing that he shall be appointed in consultation with the High Court or the Court of Session, as the case may be. The system of engagement of lawyers in the High Court was eliminated.

13. Upon a short survey of precedents practice and scheme of public prosecutions one can safely say that the Public Prosecutor, the Addl. Public Prosecutor and Asstt. Public Prosecutor, hold an office. It largely differs from the practice prevalent in U.K. where the Treasury solicitor holds a public office but the barristers briefed by him float from one side to the other as they do not hold any office. It differs from a district Attorney in U.S.A. who has far more powers than his Indian counter-part does. It is public office of trust and thereforee like any other public office, is susceptible to misuse and corruption if not properly insulated. It is an office of responsibility more important than many others because the holder is required to prosecute with detachment on the one hand and yet with vigour on the other. When advocates are recruited to these offices, they have certain professional and official obligations and privileges. Some State Governments have appropriately made it an express term of their appointment that they shall not accept any brief in criminal matters and shall not even in civil matters appear in any case in which the interests of the State appear to be involved. Lord Denning described their position in Alfred Crompton Amusement Machines Ltd. v. Commr. of Customs and Excise, (1972) 2 All ER 353, like this.

'Many barristers and solicitors are employed as legal advisers, whole time, by a single employer. Sometimes that employer is a great commercial concern. At other times it is a government department or a local authority. It may even be the government itself, like the Treasury Solicitor and his staff. In every case these legal advisers do legal work for their employer and for no one else. They are paid, not by fees for each piece of work, but a fixed annual salary. They are, no doubt, servants or agents of the employer.

xx xx xx They are regarded by the law as in every respect in the same position as those who practice on their own account. The only difference is that they act for one client only, and not for several clients. They must uphold the same standards of honour and of etiquette. They are subject to the same duties to their client and to the court. They must respect the same confidence. They and their clients have the same privileges.'

14. Even if their remuneration is described a retainer, it is not much distinguishable from salary. Retainer means a fee not only for the rendition of professional services when requested but also for taking the case making himself available to handle in and refusing employment by the adversary. When a client retains an attorney to act for him, he thereby prevents him from acting for his adversary. Vide Balck's Lae Dictionary, Ed. 5, p. 1183. thereforee, the Public Prosecutor whether retained or salaried, can work for only one client, that is, the State. To yield to any other position, will be to damage the dignity, impartiality and efficiency of the office. If there has been a practice to the contrary, it has to be discarded after such an office has been created for the High Court by the new Code.

15. The Lt. Governor of Delhi issued the following notification on April 14, 1980. -

'In exercise of the powers conferred by sub-section (1) of Section 24 of the Code of Criminal Procedure, 1973, the Lt. Governor with prior consultation of the Delhi High Court, is pleased to appoint the following advocates. Public Prosecutor/Additional Public Prosecutors, for criminal work in the High Court of Delhi with effect from the date they resume charge.

Standing counsel (Criminal)/Public Prosecutor :

Shri Dinesh Chand Mathur, 3 Ansari Road, Daryaganj, N. Delhi.

Panel Lawyers/Addl. Public Prosecutors.

1. Shri Dilbagh Raj Sethi.

2. Shri I. U. Khan

3. Shri Teja Singh Sodhi

4. Shri Harish Gulati.

This administration's Notifications No. F. 3(13)/74-Lit, dated 22-12-77, 1-6-79 and 2-1-80 are hereby cancelled

16. It appears that Shri Mathur is a Standing Counsel (Criminal) and the other four are panel lawyers for the same purpose. They have been appointed as Public Prosecutor and Addl. Public Prosecutors under the Code. We do not know what their terms of appointment are; nothing has been placed on record, perhaps they treat them as confidential. But Shri Dar informs that there is an office of the Public Prosecutor which carries a fixed salary of Rs. 2500.00 per month with an office establishment, naib court and telephones provided by the Administration. To this office belong the Addl. Public Prosecutors. The Public Prosecutor is responsible for the entire criminal litigation in the High Court and also tenders advice on matters referred to him. All criminal work is allocated by the Administration to Shri Mathur who in turn allocates work to the Addl. Public Prosecutors, who are paid case-wise, subject to some maximum per day. All of them claim that they are required to handle whatever case-work is allotted to them by the Administration and they are free to take up private work and even have the right to oppose the State and its prosecutions if the same is not allocated to them.

They contend that they are not government servants who cannot take up any other assignment. They are legal practitioner first and public prosecutors afterwards and are not required to suspend their practice under Rule 51 of Chap. II of the Bar Council of India Rules. They continue to remain advocate and can, unless specifically disbarred by law or by the Administration, accept briefs against the State not only in private complaints but even in cases in which the prosecution has been lodged by the police or the State or any other departmental officer. They rely upon M. D. Sigamani v. Vidyasagaran, : (1969)1MLJ99 , in which it was held that though an Asstt. Public Prosecutor being a full-time Government servant could not, even upon permission of the Collector or the Commissioner of Polices, appear for any person in any case as a practicing advocate, but an Addl. Public Prosecutor appointed for a specified period or specified cases did not cease to be an advocate and there was no prohibition for his appearance in any case for a party as an advocate if the Government permitted him to do so during his period of service as Addl. Public Prosecutor.

They further point out that S. 321 of the Code as construed in Ratanshah Kavasji v. Keki Behramsha, 1945 (46) Cri LJ 434 : AIR 1945 Bom 147, clearly indicated that in order that a prosecution be withdrawn, the prosecution must be one which is already being conducted by the Public Prosecutor. Unless the Public Prosecutor is already in charge of the prosecution, he cannot withdraw from it; vide State of Punjab v. Surjit Singh, : 1967CriLJ1084 . And, thereforee, until a Public Prosecutor is put in charge of a case, he cannot act or plead in that case (S. 301 Cr.P.C.) and he shall be deemed to have been appointed case-wise and not generally for all cases, and that leaves him free to accept private briefs in any other case; indeed he is bound to accept a brief from a person who offers it first to him, vide Rule 11 of the Bar Council of India Rules, Chap. II.

17. On the other hand, Shri Dar took up the extreme position that a Public Prosecutor ceases to be an advocate. In S. Naganna v. Krishna Murthy, : AIR1965AP320 , in a private complaint filed against two police officers, A.P.P. claimed the right to appear to defend the accused, which was rejected. A public prosecutor though a qualified legal practitioner is a whole-time Government servant must suspend his practice upon entering Government service. He cannot thereforee appear for the accused in his capacity as a practicing advocate. That apart it was urged that in all criminal cased at all stages the State is a party either express or implied.

thereforee, an officer be he an advocate, appointed as Public Prosecutor or an Addl. Public Prosecutor is retained by the State and cannot appear against the State during his term of office either here or below on behalf of the accused. That is the spirit of the Code the that is the requirement of professional propriety and ethics. If this were not so held, the result will be that it will be left to the sweet-will of the Public Prosecutor to appear in a case or cases as an advocate for a private party specially lucrative one and leave the State in lurch and in search for a new Public Prosecutor in that case or cases, but the law does not envisage more than one Public Prosecutor. It was urged vehemently that the Public Prosecutor and along with him his juniors, have an access to official and confidential records and if they are allowed private practice, then there are many chances of this secret knowledge being used against the State. Moreover, if these officers are allowed to do private practice, then every accused will run to retain them because of the benefit that the Public Prosecutor will get better audience in the courts and that is bound surely to lead to corruption and abuse of the office.

I think there is considerable force in these submissions and I am of the view that the office of the Public Prosecutor has to be kept above such suspicious and its purity and perfection have to be protected. The office of the Public Prosecutor includes the Addl. Public Prosecutor and the Asstt. Public Prosecutor. The Code envisages that these officers should be exclusive ones. They are not expected and cannot be permitted to appear against the prosecution, whatever be the mode of payment for their services. To do otherwise, will be the very antithesis of the functions involved in public prosecution. Same conclusion should apply to department counsel. To my mind, except a difference of procedure with regard to trial, complaints by courts or public servants or departmental officers are also prosecutions launched by the State and such counsels should not be allowed to alternate their sides; rather they must be designated as Public Prosecutors or Addl. Public Prosecutors, as the need may dictate.

18. The Public Prosecutor assert that if the State has to obtain the services of the experienced men in profession it has to allow them such freedom, otherwise they cannot be available on the meagre emoluments that the State can offer. But then, it is for the State to pay the Public Prosecutor properly and adequately and not permit him to look for private briefs. But it cannot pay heavily. It must not be forgotten that men of eminence accept a public office not for but in the spirit of sacrifice. Act any rate, it is better to have a men of common merit than to allow the office being exploited. It has been the experience that many a judge and leaders in politics and profession have earlier been public or departmental prosecutors : (vide Henry Elnner Barnes and Negley K. Teeters, New Horizons in Criminology, Ed. 3, Chap. 16, p. 241). One norm of fixing the reasonable payment could be to follow the pattern adopted in the States in the neighborhood of Delhi.

19. I, thereforee, answer the three questions as follows :

(1) The Public Prosecutor, the Addl. Public Prosecutors cannot appear against the State in criminal matters. That is so even where the party has carefully avoided to implead the State as a party in a revision or an appeal or any other criminal proceedings. This applies to panel lawyers as well, because no panel lawyer can appear without being appointed as an Addl. Public Prosecutor.

(2) It is not permissible for the State or the Delhi Administration to allow the Public Prosecutor or the Addl. Public Prosecutors to appear against itself and it must provide so specifically in the terms of the their appointment.

(3) The Public Prosecutor cannot appear on behalf of the accused even in cases instituted on a complaint by a private party.

20. Now, the present revision petition. These proceedings occupy a peculiar position in criminal procedure. No party has a right to be heard, either in person or by pleader except where (1) an order to the prejudice of the accused or other person is made, or (ii) the court thinks it fit to do so; Sections 401 and 403 Cr.P.C. But at the same time, any person including the Public Prosecutor even where he considers some injustice has occurred to an accused person, can bring to the notice of the court any illegality or irregularity or impropriety. thereforee, though Shri Mathur cannot be heard as of right and that will be the position even if it were a revision by the State but the revision filed by him cannot be held to be a nullity. Further, I see no objection to appearance of Kumari Parmar on behalf of the petitioner on the sole ground that she has been working in the chambers of Shri Mathur.

21. The revision petition may now be listed for hearing.

22. Order accordingly.

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