Das Gupta, J.
1. This Rule is directed against an order of the Sub-Divisional Officer, Alipore, dated 24-6-1950, by which he rejected ,an application of the petitioner Anurupa Debi, praying that she might be allowed, under Section 495, Criminal P. C, to conduct the prosecution of the case instituted by her through her own lawyers, & directed that the State must be represented by the Court, Inspector, in the prosecution of the case, unless the District Magistrate appointed a separate Public Prosecutor, & that the complainant be allowed to engage her own lawyers, provided they agreed to act in a subordinate role in relation to the Public Prosecutor, allowed to work on behalf of the State, including the Court Inspector.
2. The petitioner is the widow of Subodh Chandra Sarkar, an employee of the Texmaco Factory, who was killed by firing, on 12-8-1949. On 15-9-1945, she filed a complaint in the Court of the Sub-Divisional Magistrate Barrackpore, in which she alleged among other things, that under the order of Ramlal Rajgharia, Gprak Singh shot her husband with his gun, & when Subodh threw himself in the jhil nearby, Gorakh Singh & other persons fell upon him, assaulted him with lathis & further shot at him, & that shortly after 9 A. M. her husband was dead. She alleged that she had good reason to believe that the police did not take necessary steps for bringing the culprits to book, that it was useless for her to wait any longer in a state of suspense, & so she sought 'the protection of the Court'. She prayed that warrants of arrest be issued against Ramlal Rajgharia, Gorakh Singh & the other accused persons mentioned in her petition of complaint & prayed that they be dealt with according to law. The learned Sub-Divisional Magistrate took cognizance of the case under Section 190(1) (a), Criminal P. C. examined 'the complainant on solemn affirmation & sent the case to Mr. N. Mazumdar, a 1st class Magistrate, for enquiry & report.
3. Mr. Mazumdar examined several witnesses & submitted his report on 18-10-1949 that a prima facie case under Section 302, Penal Code had been made out against Gorakh Singh & a 'prima facie' case under Section 302/114, Penal Code against Ramlal Rajgharia had also been made out.
4. On 22-12-1949, the Sub-Divisional Magistrate ordered the issue of summons under Section 302, Penal Code, against Gorakh Singh & under sub-section 302/114, Penal Code against Ramlal Rajgharia. The case was thereafter transferred by a Bench of this Court on an application of the accused to Alipore Sadar for enquiry preliminary to commitment. It was ordered that the case should be heard by such Magistrate as the District Magistrate might appoint in this behalf. On 3-5-1950, the District Magistrate passed an order 'making over the case to Mr. A. B. Mukherji, Sadar Sub-Divisional Magistrate, Alipore, for favour of disposal.
5. On 23-5-1950, the learned Magistrate passed an order fixing 5-6-1950, 'for the prosecution to submit a list of prosecution witnesses.' On 5-6-1950, he passed the following order:
'The complainant party is not ready with a list of witnesses as already asked. Ask that party to submit the list in consultation with the P. P. if any such has been engaged by the State. This by 17-6-1950. Accused as before.'
6. On 17-6-1950, the complainant filed the application which has already been mentioned in which she prayed that she might be allowed to have the case conducted by her lawyers to the exclusion of the Court Inspector. The learned Magistrate rejected this application on 24-6-1950 & passed the order already mentioned which has been challenged before us in this application for revision.
7. When this case was called on for hearing, nobody appeared on behalf of the State. Mr. A. K. Basu, appearing on behalf of the opposite party Ramlal Rajgharia, filed a petition praying that notice of the Rule be served on the Legal Remembrancer of the State of West Bengal & this revision case heard & disposed of in the presence of the State as a party duly impleaded.
8. There can be no doubt that the State is vitally interested in a matter of this nature & it is, in my opinion, absolutely clear that the question, whether the order passed by the learned Magistrate directing the prosecution to be conducted by the Court Inspector should be revised or not should not be decided without giving the State an opportunity to be heard. I am unable to accept, however, as correct Mr. Basu's argument that in order to give the State such an opportunity it is necessary that the State should be formally impleaded as a party to the proceeding & that notice of the Rule should be served upon the Legal Remembrancer of the State of West Bengal. In spite of the fact that the State of West Bengal had not Been mentioned as a party in the application for revision, this Court directed issue of the Rule not only on the accused opposite parties but also on the District Magistrate of 24 Par-ganas. It is in fact an invariable practice of this Court to issue a rule on all applications for revision under Section 439 Cr. P. C. on the District Magistrate of the district, in addition to the private party, whether complainant or accused - named as opposite party in the application. This is done for the very good reason that the District Magistrate represents the State in all such matters. In my opinion, Mr. Basu completely misunderstood the position when he said that the Rule is issued on the District Magistrate only as a post office between this Court & the trying Court. When a Rule is issued on the District Magistrate, he does inform the trying- Court of the same & very often forwards to this Court any observations & explanations that may be submitted by the trying Court. But that is only a part of his duty. It is equally his duty to decide whether the State should be represented in the hearing of the matter before this Court & if he decides that it should be done, to take necessary steps for the same. In my experience in the criminal bench of this Court, I have seen many cases where after a Rule was issued on the District Magistrate, the Deputy Legal Remembrancer appeared in this Court, on behalf of the State. The novel doctrine, put forward by Mr. Basu that in order to give the State a proper opportunity to be heard in the matter, the State should be formally impleaded as a party, or at least notice of the Rule should be served on the Legal Remembrancer, cannot, In my opinion, be accepted. In my judgment, the State has had full opportunity of being heard by reason of the service of the Rule on the District Magistrate, 24 Parganas, & there is no necessity of serving notice of the Rule on the Legal Remembrancer to the State of West Bengal. The petition on behalf of Ramlal Rajgharia praying that this should be done must, therefore, be rejected.
9. Mr. Banerjee, who appeared on behalf of the petitioner contended that on 24-6-1950, when the learned Magistrate passed the order directing the Court Inspector to conduct the prosecution till a Public Prosecutor had been appointed by the District Magistrate, there was already in existence an order by the Additional District Magistrate appointing Girija Bhusan Mukherji, an Advocate of this Court, as special Public Prosecutor to conduct this case. He has argued that the learned Magistrate acted improperly in ignoring this appointment of Mr. Girija Bhusan Mukherji.
10. It is important to notice that in sub-paras. XVI & XVII of para. 5 of the affidavit in reply filed on behalf of Ramlal Rajgharia the following statements appear:
'(xvi) That on 27-12-1949, the complainant Anurupa Debi filed a petition before Sri M. K. Sen, the Additional District Magistrate, 24 Parganas, for appointing her own lawyer Sri Girija Bhusan Mukherji, Advocate, as a special Public Prosecutor, to conduct the prosecution case.
(xvii) That on 13-2-1949, Sri M. K. Sen, the learned Additional District Magistrate, appointed the said Girija Bhusan Mukherji, Advocate, Public Prosecutor, as prayed for, but at the cost of the complainant.'
11. In course of his argument, Mr. A. K. Basu produced before us certain copy of the letter which was written by the present petitioner to the , Additional District Magistrate praying for the appointment of Sri Girija Bhusan Mukherji as a Public Prosecutor to conduct the case & also a copy of the order passed by the learned Additional District Magistrate. I have since discovered from the record of this case the original letter by Sm. Anurupa Debi & the order passed thereupon by the learned Additional District Magistrate. I entirely agree with the learned Counsel on both sides that this order amounts to an order appointing Mr. Girija Bhusan Mukherji as Public Prosecutor to conduct this case on the terms that his fees would be paid by the complainant petitioner & that Govt. would not be in the least responsible for such fees.
12. It appears that sometime after this order was passed by the learned Additional District Magistrate, the Legal Remembrancer to the Govt. of West Bengal wrote to Mr. Girija Bhusan Mukherji on 3-3-1950, by his letter No. 818 engaging Mr. Mukherji as the Public Prosecutor in this case
'to conduct it both before the Magistrate at Barrackpore & at the Court of Session (if the case is committed) on a daily fee of Rs. 32/-(Rupees thirty two only) plus the usual 2nd class Travelling Allowance & Rs. 25/- (Rupees twenty five only) at Alipore with usual reservations.'
A copy of this letter appears to have been sent to the Additional District Magistrate & by the Additional District Magistrate a copy was sent to the Sub-Divisional Officer, Barrackpore, for information. On 12-4-1950, another letter was written by the. Legal Remembrancer to Mr. Mukherji saying that his appointment as Public Prosecutor to conduct the case in the committing Court' & the Court of Session conveyed in this office letter No. 8-18 dated 3-3-1950, is hereby cancelled.
13. Mr. Basu has argued that the effect of the Legal Remembrancer's letter, dated 3-3-1950, was that the appointment by him was 'superimposed' on the appointment by the Additional District Magistrate & the effect of his letter dated 12-4-1950 cancelling the appointment by his previous letter was that no appointment of Mr. Girija Bhusan Mukherji as Public Prosecutor remained in force after 10-4-1950.
14. In my judgment this contention is not correct. The appointment by the Additional District Magistrate was on condition that the fees should be paid by the petitioner complainant. The appointment by the Legal Remembrancer was on the term that the fees would be paid by the Govt. So long as the appointment by the Legal Remembrancer remained, it is clear that the condition mentioned in the appointment of the Additional District Magistrate could not operate. In my opinion, the effect of the appointment by the Legal Remembrancer on the order of appointment by the Additional District Magistrate was that the operation of the latter order was suspended & not that the latter order was cancelled. When, therefore, on 12-4-1950, the Legal Remembrancer cancelled the appointment made by him on 3-3-1950, the order of appointment by the Additional District Magistrate, -- to use the words used by Mr. Basu, -- that was cancelled by the letter of 12-4-1950 & as soon as the superimposition disappeared, the original appointment by the Additional District Magistrate became operative, -- as operative as if the appointment by the Legal Remembracer on different terms had never been made.
15. I am, therefore, of opinion that on 24-3-1950, when the learned Sub-Divisional Magistrate passed the order under consideration, Mr. Girija Bhusan Mukherji was holding the office of Public Prosecutor appointed by the Additional District Magistrate on 20-2-1950, under Section 492 (2), Criminal P. C.
16. The learned Sub-Divisional Magistrate does not appear to have considered this position at all in spite of the fact that it was definitely mentioned in the application made by the petitioner on 17-6-1950.
17. In my judgment, the learned Sub-Divisional Magistrate did not use his discretion ideally in passing an order for the conduct of the prosecution without applying his mind to the question whether a Public Prosecutor' had already been appointed for this case specially under Section 492 (2), Criminal P. C.
18. I can find nothing which would justify the conclusion that the appointment made by the Additional District Magistrate was not in accordance with law. No facts which would justify such a conclusion appear from the records of this case. In my judgment it was an appointment made in accordance with law & as this appointment was in force on 24-6-1950 Mr. Mukherji ought to have been allowed to remain in charge of the conduct of the prosecution. The order passed by the learned Sub-Divisional Magistrate directing the Court Inspector to be in charge thus superseding the Public Prosecutor already appointed by the District Magistrate was passed without a proper consideration of the matter & should, in my opinion, not be allowed to stand.
19. In the view I have taken as regards the appointment of Mr. Girija Bhusan Mukherji being .operative on 24-6-1950 it is, in my opinion, unnecessary to go into the bigger question whether the State is ready & willing to conduct the prosecution of a murder case in the Magistrate's Court, it is still open in special circumstances, to the Magistrate acting under Section 495, Criminal P. C. to permit a private person to conduct the prosecution, - a question on which much argument was addressed by the learned counsel on both sides on this question.
20. In view of the above it is not necessary also in my opinion to refer to several decisions cited by Mr. Basu before us, for none of these affect the operation of Section 492, Criminal P. C.
21. I would, therefore, set aside the order of the learned Sub-Divisional Magistrate directing the representation of the State in this case by the Court Inspector in his Court & direct that Mr. Girija Bhusan Mukherji who has been already appointed by the Additional District Magistrate as a Public Prosecutor for this case be allowed to conduct the prosecution. The Rule is disposed of in these terms.
22. I agree.