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Deputy Legal Remembrancer Vs. Gaya Prosad - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported inAIR1914Cal560,(1914)ILR41Cal425
AppellantDeputy Legal Remembrancer
RespondentGaya Prosad
Excerpt:
public prosecutor - legal remembrancer--practice and procedure--criminal procedure code (act v of 1898), sections 4 (t) 417, 493--acquittal, appeal from--the legal remembrancer of bengal, as public prosecutor for bengal, incompetent to prefer an appeal from acquittal for the government of bihar and orissa. - .....the 17th november last. on the 2nd may 1918, this appeal was presented by mr. j. orr, the deputy legal remembrancer of bengal. a preliminary objection has been taken to the competency of the appeal so presented.2. section 417 provides that the local government may direct the public prosecutor to present an appeal to the high court from an original or appellate order of acquittal passed by any court other than a high court. the term 'public prosecutor' is defined in clause (t) of section 4 of the criminal procedure code, which lays down that 'public prosecutor' means any person appointed under section 492 and includes any person acting under the direction of a public prosecutor and any person conducting a prosecution on behalf of 'her majesty in any high court in the exercise of its.....
Judgment:

Mookerjee and Beachcroft, JJ.

1. This is an appeal by the Government of Bihar and Orissa under Section 417 of the Criminal Procedure Code. The accused was tried by a Magistrate for an offence under Section 193 of the Indian Penal Code, and was acquitted by him under Section 258 of the Criminal Procedure Code on the 17th November last. On the 2nd May 1918, this appeal was presented by Mr. J. Orr, the Deputy Legal Remembrancer of Bengal. A preliminary objection has been taken to the competency of the appeal so presented.

2. Section 417 provides that the Local Government may direct the Public Prosecutor to present an appeal to the High Court from an Original or Appellate order of acquittal passed by any Court other than a High Court. The term 'Public Prosecutor' is defined in Clause (t) of Section 4 of the Criminal Procedure Code, which lays down that 'Public Prosecutor' means any person appointed under Section 492 and includes any person acting under the direction of a public prosecutor and any person conducting a prosecution on behalf of 'Her Majesty in any High Court in the exercise of its Original Criminal Jurisdiction.' Section 492, to which reference is made in the definition, provides in Sub-section (1) that the Governor-General in Council or the Local Government may appoint, generally or in any case or for any specified class of cases, in any local area, one or more officers to be called Public Prosecutors. In the matter of the appeal now before us, Mr. Orr professes to act on behalf of the Legal Remembrancer of Bengal. It has not been suggested that Mr. Orr was appointed a Public Prosecutor either generally, or for this special case by the Government of Bihar and Orissa; nor has it been suggested that Mr. Orr was directed as a Public Prosecutor to present this appeal to the High Court. Consequently the authority of Mr. Orr, if any, must be taken to be derivative; in other words, he can act as Public Prosecutor only under the direction of a person who has been appointed Public Prosecutor within the meaning of Clause (t) of Section 4. It has been pointed out to us on behalf of the Crown that on the 24th June 1886, a notification was published in the Calcutta Gazette to the effect that the Legal Remembrancer of Bengal was to be ex officio Public Prosecutor in all cases before the High Court on its Appellate side except in a case coming from a Presidency or other Magistrate in Calcutta. If this notification is read subject to the notification published in the Bihar and Orissa Gazette on the 1st April 1912, the view may well be maintained that from that Sate the Legal Remembrancer of Bihar and Orissa became ex officio Public Prosecutor for that Province. This proposition, however, is of no assistance to the Crown, because the present appeal has hot been preferred by the Legal Remembrancer of Bihar and Orissa. As already stated, the appeal has been presented under the direction of the Legal Remembrancer of Bengal. The question consequently arises whether the Legal Remembrancer of Bengal has been constituted Public Prosecutor for Bihar and Orissa, either generally or specially for the purpose of the case before us. As there is no suggestion that the Legal Remembrancer of Bengal has been appointed Public Prosecutor generally for Bihar and Orissa, the question narrows down to this: Has the Legal Remembrancer of Bengal been constituted Public Prosecutor by the Government of Bihar and Orissa for the case now before us? On behalf of the Crown, it has been contended that he has been so appointed and in support of this position reference has been made to the letter addressed by the Secretary to the Government of Bihar and Orissa in the Judicial Department to the Superintendent and Remembrancer of Legal Affairs of Bengal on the 23rd April 1913. The passage in the letter upon which reliance is placed is in these terms. 'I am directed to request you to be so good as to file an appeal in the High Court on behalf of this Government under Section 417 of the Code of the Criminal Procedure against the order of Moulvi Saiyed Abdul Hayat, Deputy Magistrate, improperly acquitting the accused in the marginally noted case on a charge of perjury.' This passage in the letter no doubt authorises the Legal Remembrancer of Bengal to institute this appeal. But it does not appoint him Public Prosecutor within the meaning of Section 492 of the Code of Criminal Procedure. On behalf of the Crown it has been urged that this sentence by implication appoints the Legal Remembrancer of Bengal as Public Prosecutor for the purposes of the case mentioned. In our opinion, the construction suggested cannot reasonably be put upon the passage. Section 417 of the Criminal Procedure Code lays down that the Local Government may direct the Public Prosecutor to present an appeal to the High Court from an Original or Appellate order of acquittal passed by any Court other than a High Court. The direction must be given to a Public Prosecutor. Be it conceded that the direction may be given in a letter whereby the Public Prosecutor is appointed as such, yet it does not follow that the mere fact that a person has been directed to present an appeal to the High Court from an order of acquitted involves his appointment as Public Prosecutor for the purposes of the case. Indeed, in view of the fact that the Province of Bihar and Orissa has a Legal Remembrancer, it is extremely improbable that the Legal Remembrancer of Bengal could ever have been intended to be appointed Public Prosecutor in a case from that Province. In a case of this description, where the liberty of the subject is involved and an appeal is sought to be preferred against an order of acquittal, the statute must be strictly construed and full compliance with its provisions required. The learned Standing Counsel has urged us to put upon the passage in the letter what he calls a reasonable and common-sense construction; but it is plain that the construction which he has pressed us to adopt was never present to the mind of the framer of the letter, and that he has been constrained to take recourse to this argument because there is no escape from the preliminary objection. We hold accordingly that the appeal is incompetent, and dismiss it on that ground.


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