K.P. Radhakrishna Menon, J.
1. The Advocate General for the State is appointed by the Governor in exercise of the powers conferred on him under Clause (1) of Article 165 of the Constitution. Clause (2) of Article 165 provides that it shall be the duty of the Advocate General to give advice to the Government 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 the Constitution or any other law for the time being in force.
2. In pursuance of the above power under Clauses (2) arid (3) of Article 165, the Government of Kerala has made 'the Rules' regarding the duties, remuneration etc. of the Advocate General, contained in the Notification, No. LD(A)l-3006/56/Law, dt. 1st Nov. 1956. Clause 18 of the Rules stipulates that the Advocate General is bound to perform such other duties of a legal character as may, from time to time, be referred or assigned to him by the Governor.
3. Pursuant to the power conferred by Clause 18 (referred to above) of the Rules, the Governor has directed the Advocate Geneal Sri. P.V. Ayyappan to 'appear and defend C.C. No. 18/85 on the file of the Chief Judicial Magistrate, Trivandrum and all further and connected proceedings arising therefrom in other courts, on behalf of Sri K. Karunakaran, the Chief Minister of Kerala' (vide G.O. (MS) 26/85/Law dt. 11-2-1985).
4. In view of the above Government Order directing the Advocate General to defend Sri Karunakaran in C.C. No. 18/85 before the Chief Judicial Magistrate, Trivandrum, and connected proceedings arising therefrom in other courts, it cannot be said that the Advocate General was not justified in filing M.C. 137/85 before this Court on behalf of Sri. Karunakaran.
5. However, a question would arise whether there is any inhibition in the Advocate General defending the case on behalf of Sri. Karunakaran. According to the petitioner the Advocate General, in view of the provisions contained in the Rules, should be held to have acted illegally and with mala fide intention in prosecuting M.C. 137/85, on behalf of Sri. Karunakaran and as such he is entitled to the reliefs prayed for in the Original Petition.
6. An investigation into these aspects of the matter has therefore become necessary. The petitioner in this connection has referred to Clauses 5,6 and 19 in Part I and Clauses 1, 5 and 6 in Part III of the Rules. They read:
Part I- 'The duties of the Advocate General are:
Clause 5. To arrange to represent Government in the High Court in-all proceedings, civil or criminal, original or appellate in which Government is a party.
Clause 6. Himself 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.
Clause 19. To discharge the functions conferred on him by or under the Constitution or any other law for the time being in force. Part III.
Clause 1. The Advocate General is debarred from accepting a brief from any private person in any criminal case in any court.
Clause 5. He shall not give legal advice to private persons on matters in which the interests of those persons are adverse to Government.
and Clause 6. He shall not give advice in any case to private persons if, in his opinion, he is likely to be called upon to advise Government in the same case.
7. Placing reliance on these clauses, the petitioner submitted that inasmuch as these provisions inhibit the Advocate General in defending/prosecuting criminal cases in the High Court on behalf of an accused person, the Advocate General should be declared to have acted illegally in filing M.C. 137/85 in this Court on behalf of Sri Karunakaran. He further submitted that the Advocate General acted mala fide in not impleading the State as a party to the above M.C. Not only that, the Advocate General by the said intentional act has effectively circumvented the above provisions contained in Clauses 5, 6 and 19 of Part I and Clauses 1, 5 and 6 of Part III, of the Rules, he submits. These arguments at the first blush are attractive. But on a deep probe into them, it can be seen that they are hollow, without any substance. The provisions aforesaid do show that the Advocate General has the duty to represent the Government in the High Court in proceedings, civil or criminal, original or appellate, in which Government is a party provided of course', he has been so directed specially by the Government. It is equally true, that the Advocate General is debarred from accepting a brief from any private person in any criminal case in any court. These provisions in the 'Rules' thus have created a taboo in the Advocate General accepting a brief from any private person in any criminal case in any court of his own accord. But it should be remembered that the Advocate General is bound to perform such other duties of a legal character, the Governor would assign to him from time to time. He is also bound to discharge the functions conferred on him by or under the Constitution or any other law for the time being in force. These are constitutional duties, the Advocate General is bound to discharge; And therefore, if the Advocate General is specifically authorised by the Governor to appear on behalf of a person who is an accused in a criminal case notwithstanding the above provisions in the Rules, I am of the view, that the Advocate General is bound to perform that function because that is a constitutional duty fastened on him under Article 165 of the Constitution. The general taboo created by the Rules thus get temporarily eclipsed until the specific order issued by the Governor in the exercise of power under Article 165 of the Constitution and Clause 18 of Part I of the Rules, is vacated.
8. In exercise of the said power, the Governor by G.O. (MS) 26/85/Law dt. 11-2-1985 has directed the Advocate General to appear and defend Sri Karunakaran in C.C. No. 18/85 on the file of the Chief Judicial Magistrate, Trivandrum and all further and connected proceedings arising therefrom in other courts. This order of the Governor is not under challenge. In the light of the above G.O., issued by the Governor in exercise of the constitutional powers vested in him, it cannot be said that the Advocate General acted either illegally or with mala fide intention in filing M.C. 137/85 in this Court on behalf of Sri Karunakaran.
9. A lawyer on being appointed Advocate General, will not automatically become a Public Prosecutor within the meaning of Section 2(u) of the Cri. P.C. A Public Prosecutor means any person appointed as such under Section 24 of the Cr. P.C. and includes any person acting under the directions of a Public Prosecutor. The Public Prosecutor for the High Court is appointed (by the Central or the State Government) only after consultation with the High Court. It is only such a Public Prosecutor who could be authorised by the Government to file appeal before the High Court (Section 378, Cr. P.C). Unless appointed in the manner indicated in Section 24, Cr. P.C., the Advocate General will not become a Public Prosecutor. The Advocate General therefore has no functions to be discharged which are attributable to a Public Prosecutor, considering the scope of Sections 24 and 378, Cr. P.C. vis-a-vis Article 165 of the Constitution. This Court in State of Kerala v. Krishnan 1981 Ker LN 738, has expressed the same view as the one indicated above. In the said decision this Court has held thus :
Simply because the rules framed by the State Government under Article 165(2) and (3) and issued as per notification dt. 1st Nov., 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 Section 24(1) of the Code. As long as the Advocate General is not appointed as a Public Prosecutor under Section 24(1) of the Code he will not become a Public Prosecutor of the High Court. (Head Note)
10. This decision, though relied on by the petitioner, in no way supports any of the contentions raised by the petitioner.
11. Relying on the decision of the Supreme Court in Sunil Kumar Pal v. Phota Sheikh : AIR1984SC1591 , the petitioner contended that the 1st respondent is liable to be removed from the office of Advocate-Generalship. In this connection he made particular reference to the following passage:
It would be inconsistent with the ethics of the legal profession and fair play in the administration of justice if Public Prosecutor appears on behalf of the accused persons. Such appearance would lend support to the allegation that the accused were supported by the ruling political party in the State and this would naturally give rise to apprehension in the minds of the witnesses that in giving evidence against the accused, they would be not only incurring the displeasure of the Government but would also be fighting against it.(Head Note)
12. This decision has no application to the case on hand in view of my finding that Advocate General is not a Public Prosecutor within the meaning of Section 2(u), Cr. P.C. Unlike a Public Prosecutor appointed under Section 24, Cr. P.C., the Advocate General is always bound to perform the functions or discharge the duties, the Governor would assign to him from time to time.
13. For the reasons stated above, the petitioner is not entitled to any of the reliefs, prayed for in the Original Petition.
The Original Petition is without merits. Accordingly the same is dismissed.