Anil Kumar Sen, J.
1. A point of some importance as to maintainability of certain appeals presented by the State under Section 378(1), of the Code of Criminal Procedure, 1973, (hereinafter referred to as the new Code) having arisen for consideration at the earliest stage of granting the necessary leave under Section 378(3) of the said Code, we have heard it as a preliminary issue in the above appeal. Such a point has arisen in this particular case under the following circumstances.
2. The two respondents were tried on a charge under Section 302/109, I.P.C. by the learned Sessions Judge, Purulia, in Sessions Trial No. 24 of 1976 and were acquitted. The State felt aggrieved by the said order of acquittal and has preferred the above appeal. The appeal has been filed by the Superintendent and Remembrancer of Legal Affairs (hereinafter referred to as the L. R) on behalf of the State. The petition of appeal has been signed by one Shri Dilip Mitra, who, we are told, is the Special Legal Remembrancer ex-officio Spl. Secretary, Judicial Department of the State Government. Obviously in presenting the above appeal Shri Mitra was purporting to act as the L. R, and as such, the ex-officio Public Prosecutor in all cases coming before the Calcutta High Court in its. Appellate Side under the notification dated October 11, 1974, which is set out hereunder:
No. 12050-J Cal., the 11th Oct. 1974.
In exercise of the power conferred by Sub-section (1) of Section 24, of the Code of Criminal Procedure, 1973 (Act 2 of 1974) the Governor, after consultation with the High Court, Calcutta, is pleased hereby to appoint the Superintendent and Remembrancer of Legal Affairs, West Bengal, to be ex-officio Public Prosecutor in all cases coming before the Calcutta High Court on its Appellate Side.
II. The Notification No. 125-JD. dated the 7th May, 1915, issued under Section 492 of the Cri.P.C. 1898, and published at page 934 of Part I of the Calcutta Gazette is hereby cancelled.
By order of the Governor,
Sd/- B.N. Maitra,
Secretary to the Govt. of West
3. Such an ex-officio appointment by the State of the L.R. as the Public Prosecutor for this Court offends the provision of Section 24 of the said new Code and as such makes the appointment invalid. Consequently, the appeal having been filed by the invalidly appointed authority is not maintainable in law. Thus, the question of maintainability of the appeal really hinges on the validity of the appointment of the Public Prosecutor under the notification, as aforesaid.
4. Section 378(1) of the new Code provides:
Save as otherwise provided in sub-s.
(2) and subject to the provisions of sub-ss.
(3) and (5), the State Government may, in any case, 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.
5. The term 'Public Prosecutor' has been denned by Section 2(u) to mean any person appointed under Section 24 and includes any person acting under the directions of a Public Prosecutor. Section 24 is the material provision which would require consideration and as such it is necessary to set out the said provision itself which is in the following terms:
24. (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.
6. This section replaces Section 492 of the old Code of 1898. Material changes have been brought about by the new provision since under Section 492 of the old Code the State Government could appoint generally or in any case or in specified class of cases in any local area one or more officers to be called Public Prosecutors. Under the new provision, appointment of a Public Prosecutor has been made mandatory. Such appointment again in case of Public Prosecutor for the High Court is to be made after consultation with the High Court and those for the District in consultation with the Sessions Judge. It has further been provided that a person to be eligible to be appointed as a Public Prosecutor must be in practice as an advocate for not less than 7 years. These are the innovations which were not there in the Code of 1898 but have been brought about by the legislature in the new Code.
7. The first question that arises for consideration is as to whether there had been a valid appointment of a public prosecutor by the notification dated October 11, 1974, set out hereinbefore. The notification as it reads purports to provide that the existing L.R. is ex-officio appointed the Public Prosecutor in all cases coming before the Calcutta High Court on its Appellate Side and further purports to recite that such an appointment had been made after consultation with the High Court. It is, however, quite clear that on the provisions of Section 24 no such ex-officio appointment can be validly made, if not for any other reason, at least' for the reason that such an appointment cannot be made consistently with eligibility test introduced by Sub-section (5) of Section 24. It is not in dispute and this Court can take judicial notice of the fact that L. Rs. are appointed from amongst the Members of the Higher Judicial Service many of whom do not possess the qualification of being in practice as an advocate for not less than 7 years. As a matter of fact, the learned Advocate General appearing on behalf of the State has fairly conceded that the present L.R. who had been made the ex-officio Public Prosecutor does not possess the qualification prescribed by Section 24(5). Furthermore, the notification has been drawn up in the same form as that of the notification dated May 7, 1915, which also was being repealed without appreciating the fact that such terms are not in consonance with the new provision in Section 24(1) of the new Code. Under Section 492 of the old Code the State Government could appoint generally or for any specified class of cases in any local area one or more officers as Public Prosecutors. Such a provision, therefore, authorised the State Government to appoint a Public Prosecutor to conduct cases in the Appellate Side as a specified class of cases. But under Section 24(1) the State Government is to appoint a Public Prosecutor to conduct any prosecution, appeal or other proceedings in the High Court. Under this provision, the State Government could not have appointed a Public Prosecutor only for conducting cases in the Appellate Side. The purported appointment was not an appointment under the provisions of Section 24(6) of the new Code. This is how it is quite evident that the appointment of the Public Prosecutor for the High Court under the aforesaid notification dated October 11, 1974, was not in consonance with the provision of Section 24.
8. One other aspect requires to be considered in this connection. Though the notification recites that such an appointment had been made after consultation with the High Court we entertained a doubt as to how the High Court could have consented to such an appointment which is ex facie not in consonance with Section 24 of the new Code. We called for the necessary file from the Office of this Court but to our utter surprise we found the file not to contain the relevant documents. On the other hand, the Government file produced by the learned Advocate-General showed that on October 5, 1974, the State Government wrote a letter to the Registrar, Appellate Side of this Court enclosing a copy of the draft notification for appointment of a Public Prosecutor for this Court (the draft being in the same terms as the notification referred to hereinbefore) and an approval of this Court was sought for. The Registrar, Appellate Side of this Court in his reply dated October 9, 1974, informed the Government that this Court has no objection to the! issue of the proposed notification and that is how the notification was issued on October 11, 1974. These communications very strangely are missing from the relevant file maintained by this Court and called for by us. It is not only strange but very distressing that such material document-would be missing from the file of this Court, a court which is a court of record. This is nothing but the result of disorganisation, chaos and lack of proper supervision prevailing in the office administration of this Court which we have been noticing from some time past and to which; we have been drawing the notice of appropriate authorities. We had no other alternative in such circumstances but to examine the Registrar, Appellate Side of this Court on this issue and particularly for ascertaining the circumstances In which he conveyed the approval of this Court in his letter dated October 9, 1974. In his evidence before this Court he admitted receipt of the Government letter dated October 5, 1974, containing the proposal for appointment of the Public Prosecutor and he further admitted having conveyed this Court's approval by his letter dated October 9, 1974. He. however, admitted that he conveyed such approval on his own and not on the approval of or to the knowledge of the Full Court. He does not even remember to have consulted the learned Chief Justice in conveying such an approval. It is really unfortunate that the learned Registrar failed to appreciate the true implication of the approval he was conveying which he could not have done except on the approval of the Full Court as the law required such an approval. These facts, therefore, well establish the further fact that the disputed appointment of the Public Prosecutor for this Court was not made after consultation with the High Court as required by Section 24(1) of the new Code. We are at a loss to understand as to how the requirements of Section 24 which are so clear and express could have been lost sight of by the legal advisers to the State Government and the Registrar of this Court, Be that as it may, the fact remains that the appointment of the Public Prosecutor for this Court under the notification dated October 11, 1974, was not a valid appointment at all and this position has fairly been conceded by the learned Advocate-General.
9. Faced with this situation, the learned Advocate-General had raised four points to sustain the appeal as validly filed in spite of the invalidity of the appointment of the Public Prosecutor. Firstly, he has contended that the right of appeal vests in the State and such a right is not lost only because there is no validly appointed Public Prosecutor to present the appeal. Such an appeal can as well be presented in accordance with Section 382 of the new Code by the appellant or his pleader. According to the learned Advocate-General even if the L.R. was not competent to present the appeal as the Public Prosecutor he as the ex-officio Secretary to the State Government could file the appeal on behalf of the State, the appellant. Secondly, the learned Advocate-General has contended that that part of Section 378 of the new Code which prescribes that the appeal is to be presented by the Public Prosecutor prescribes a procedure which is directory in nature and non-compliance thereof would not invalidate the filing of the appeal, Thirdly, the learned Advocate-General has contended that when the L.R. filed the appeal as the de facto Public Prosecutor the act of his filing should be taken to be valid even if he was not validly appointed Public Prosecutor. Lastly, it has been contended by the learned Advocate-General that even if presenting such an appeal by the Public Prosecutor be considered to be mandatory it being impossible for the State to comply with the said mandatory requirement at a particular time the default should be excused and the appeal should not be thrown out only on that account.
10. We would consider the four points thus raised by the Learned Advocate General. We are indeed greatly indebted to Mr. Balai Chandra Roy who appeared before us amicus curiae and rendered invaluable assistance to this Court in deciding the important issue which has arisen for our consideration in this case. Mr. Roy has taken pains to take us through the scheme of Code and has contended that on the scheme of the Code the office of the Public Prosecutor has not only its importance but has its necessity. On such scheme it has been pointed out by Mr. Roy, the prosecution at every stage has been sought to be left in the hands of an independent authority like Public Prosecutor to ensure a fair prosecution. Referring to the changes brought about by the new Code Mr. Roy has pointed out that (i) the word 'may' (in Section 492) has been altered to 'shall' (ii) vagueness of local area (in Section 492) has been removed and courts where the Public Prosecutors are to be appointed have been specified (iii) process of consultation with the court for appointment of public prosecutors has been innovated and (iv) a strict qualification has been laid down by the Statute itself. These have been brought about, Mr. Roy contends, in order to strengthen the office of a Public Prosecutor, and ensure his independence and that too only because the Public Prosecutor is intended to discharge the functions vested in him or with which he is associated as an independent institution on a sound discretion of his own. Judging in that context, he contends, an appeal against an acquittal can be presented only through the Public Prosecutor as the legislature clearly intended that such an officer should be associated in arriving at the conclusion whether an order of acquittal should further be challenged in an appeal or not. According to Mr. Roy where the Public Prosecutor exists none but the Public Prosecutor himself or any person acting under his direction can either present the appeal against the order of acquittal or prosecute the same. Mr. Roy contends further that the objection as to the maintainability of the appeal having arisen at the initial stage it would not be correct to overrule the objection by invoking the principle that the appeal having been filed by a de facto Public Prosecutor, must be taken to have been validly filed.
11. We would consider the first two points raised by the learned Advocate-General together as those in our opinion are inter-linked. Chapter XXIX of the new Code provides for appeals, The first section in this Chapter, namely, Section 372 provides that there shall be no appeal from any judgment or order of a criminal court except as provided by the Code or by any other law for the time being in force. Section 373 provides for an appeal by a person bound by an order made under Section 117 or aggrieved by any order made under Section 121 of the Code while Section 374 (subject to the exceptions under Sections 375 and 376) provides for appeals from convictions by persons convicted. Sections 377 and 378 provide for appeals by the State Government, one against the sentence and the other against the acquittal. Both these sections provide that such an appeal should be presented through the Public Prosecutor. Both these two sections, that is, Sections 377 and 378 in conferring a substantive right of appeal prescribe that the State Government in preferring the appeal must present it through the Public Prosecutor. It is necessary to consider why such a requirement was engrafted in the provision providing for the substantive right of appeal itself.
12. To appreciate the true implication of such a provision it would be necessary to bear in mind the historical background which was considered by the Supreme Court though in another context in the case of U.J.S Chopra v. State of Bombay : 1955CriLJ1410 . In England there is no provision for an appeal by the Crown against an order of acquittal though the person convicted has such a right. The Code of 1861 followed the English procedure and prohibited any appeal from an order of acquittal. Departure was made from this position by the Code of 1872, Section 272 whereof provided for an appeal by the Government from an order of acquittal. That provision was re-enacted in Section 417 of the Code of 1882 and 1889. Those provisions incorporated a similar requirement as in the present provision under consideration, viz., that an appeal against an order of acquittal is to be presented through the Public Prosecutor. In our opinion, it was not a mere procedural requirement that such appeals are to be presented through the Public Prosecutor. 'An appeal against an acquittal which was not favoured at one time was provided for but clearly the intention of the legislature was that such a right should be exercised very cautiously and in imperative cases and not in the same manner as the appeals by the persons convicted. To ensure this, the law associated the Public Prosecutor with the presentation of the appeal as a statutory requirement. Sections 377 and 378 of the Code when it provides that the State Government shall direct the Public Prosecutor to present the appeal, it does not mean that the Public Prosecutor would act as a mechanical agent to carry out the direction of the State Government. Had that been the intention of the legislature it would have left it to the choice of the State Government to determine the authority for presentation of such appeals. That, however, was not done and the authority determined by the legislature itself was the Public Prosecutor.
13. The learned Advocate-General has contended that when this appeal is to be filed by the Public Prosecutor on the direction of the State Government, it would certainly not be consistent to think that though directed the Public Prosecutor can still-refuse to file the appeal if in his opinion it is not a fit case for an appeal. Check, if any, against undesirable appeals is in Section 378(3) when leave of the court is made a condition precedent to the entertainment of the appeal. Hence he contends that filing the appeal through the Public Prosecutor is not a mandatory or invariable requisite infringement whereof would invalidate the appeal. We cannot accept such a contention without some reservation. On the scheme of the Code and in view of the object behind such a provision, we cannot but accept the contention of Mr. Roy that where the Public Prosecutor exists, it is a mandatory requirement that he must be associated with the filing of such an appeal so that his independent view must bear on the subject. In view of the nature of the office held by the Public Prosecutor we ere unable to accept the contention of the learned Advocate-General that the Public Prosecutor is such a subordinate agent that he has to mechanically comply with every direction of the State Government in this regard. Leave of the court is an additional safeguard introduced fay the new Code which was not there in parallel provisions of the old Code (in case of appeals by the State) and that too in case of appeals under Section 378(1) and (2) and not in case of appeals under Section 377. Associating the Public Prosecutor, therefore, is a safeguard which was introduced when conferring a right of appeal against an acquittal to ensure that such appeals are not lightly filed or are not filed only on the decision of the departmental authorities prosecuting the accused who had been acquitted.
14. It would be pertinent to note that the Law Commission of India in its report regarding Judicial Administration clearly emphasised the need of ensuring a degree of detachment for the Prosecutor from the prosecuting police authorities. It recommended that the prosecuting agency should be completely separated from the police department and the prosecution should be left in charge of on independent authority like Direction of Prosecution. Such separation of the prosecuting agency and leaving it in the hands of an independent authority was accepted as a principle when the new Code was adopted and that clearly explains why not only the prosecution was left in charge of Public Prosecutor but such prosecutor is expressly associated with filing of appeals against acquittal and inadequate sentences. The Code at the same time provides how such Public Prosecutors are to be appointed and lays down a high standard of experience as the minimum qualification for such appointment so that the object behind the creation of such an office is duly fulfilled.
15. Even prior to the recommendations of the Law Commission, it was well settled that though the Public Prosecutor is an executive officer appointed by the State yet he has an independent position of his own. He may represent the State but not always the executive authorities. This Court as early as in the case of Ram Ran-jan v. Emperor, (1915) ILR 42 Cal 422 : 16 Cri LJ 170 pointed out:
The purpose of a criminal trial is not to support' at all costs a theory but to investigate the offence and to determine the guilt or innocence of the accused and the duty of a Public Prosecutor is to represent not the police but the Crown and his duty should be discharged by him fairly and fearlessly and with full sense of responsibility that attaches to his. position.
16. Supreme Court in the case of State of Bihar v. Ram Naresh : 1957CriLJ567 while considering the scope of Section 494 of the Code observed:
In this context it is right to remember that the Public Prosecutor is in a larger sense also an officer of the Court and that he is bound to assist the Court with his fairly considered views and the Court is entitled to have the benefit of the fair exercise of his function.
17. This Court in the case of Raj Kishare Rabidas v. State : AIR1969Cal321 again observed:
It would be, therefore, apposite to say that a Public Prosecutor for the State is not such a mouth-piece for his client the State, to say what it wants or is a tool to do what the State directs. He owes allegiance to higher cause. He must not consciously misstate the facts nor knowingly conceal truth. Despite his undaunted duty to his client, the State, he must sometimes disregard his client's most specific instructions if they conflict with his duty to the Court to be fair, independent and unbiased in his views. As an advocate for the State, he may be ranked as a Minister of Justice equally with the Judge.
18. Such being the position of the Public Prosecutor when the legislature in Sections 377 and 378 of the Code provided that the appeals by the State are to be presented through the Public Prosecutor it clearly intended that the Public Prosecutor must be actively associated in the matter of presentation of such an appeal and independent mind of his must be made to bear upon the desirability or otherwise of preferring such an appeal. In such an institution, like the Public Prosecutor, the legislature sought an assurance that such appeals are to be filed only in an unbiased manner. It was, therefore, not a mere procedural requirement that the appeal should formally be filed through him. This being the position, we are unable to accept the contention of the learned Advocate-General that the State has an independent right of appeal, independent in the sense that the State could prefer the appeal independent of the Public Prosecutor where the Public Prosecutor exists. Section 382 merely prescribes the procedure for filing an appeal and though this section provides that the appeal should be presented in the form of a petition by the appellant or his pleader that provision surely does not override the requirement of Section 378 which is a special provision in respect of an appeal against an acquittal, The legislature having made a special provision for such appeals by prescribing that such an appeal is to be presented through the Public Prosecutor that has to be fulfilled and the State cannot fall back on Section 382 and itself file the appeal excluding the Public Prosecutor from the field altogether.
19. The learned Advocate-General has no doubt very strongly contended that that part of Section 378 which provides that the appeal is to be filed through the Public Prosecutor is merely directory. He has contained unlike the provision of Section 195 or 196 of the Criminal Procedure Code, Section 15(1) of the Contempt of Courts Act or Section 92 of the Code of Civil Procedure consent or concurrence of the Public Prosecutor is not a condition precedent to the filing of an appeal. There is nothing in the section either to suggest that if the procedural requirement is not fulfilled it would render the filing of the appeal invalid. According to the learned Advocate General no real mischief follows from the non-compliance with this part of the provision of Section 378 and hence we should interpret this part to be merely directory so that the non-compliance thereof would not invalidate the action. Strong reliance is placed by the learned Advocate-General on the principles enunciated by Maxwell 2nd Edition Page 459. which had been consistently approved by different courts. The principle so relied on is to the effect that-
Where the prescription of a statute relate to the performance of a public duly and to affect with invalidity act's done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, without promoting the essential aims of the legislature, they seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or in other words as directory only. The neglect of them may be penal indeed but it does not affect the validity of the act done in disregard of them.
20. The learned Advocate-General relied on the decisions in the case of Montreal Street Railway Co. v. Normandy, 1917 AC 170 at p. 174 : AIR 1917 PC 142 at p. 143 and Dattatraya Moreshwar v. State of Bombay : 1952CriLJ955 and State of U.P. v. Manbodhan Lal : (1958)IILLJ273SC in so far as these decisions approved the above principle, But in our considered opinion though there can be no dispute as to the principle as aforesaid such principle would be of no avail in the matter of interpretation of Section 378(1) of the Code. One has to remember at the same time another well-settled principle, viz., that provisions regulating the procedure in Courts are to be construed as imperative even where the observance of the formalities in question is not a condition exacted from the party seeking the benefit of the statute but a duty imposed on a Court or public officer when no general inconvenience or injustice seems to call for a different construction (See Maxwell 12th Edition p. 320), Moreover, for reasons given hereinbefore, we are clearly of the opinion that the legislature associated the Public Prosecutor with the filing of the appeal not merely as a matter of procedure. Its aim was otherwise. That aim, in our opinion would be frustrated if we accept the contention of the learned Advocate-General and hold that this requirement of Section 378(1) is merely directory. Further invalidating acts done in non-compliance with this requirement would certainly not result in serious general inconvenience or injustice to persons who have no control over the authority entrusted with the duty. That being the position, on the scheme of the legislation and the intent of the legislature it was clearly obligatory on the part of the State to associate the Public Prosecutor in the matter of preferring an appeal against an order of acquittal and not associating him where the Public Prosecutor exists would certainly invalidate the act of filing the appeal.
21. Principles underlying two decisions of this Court in the cases of Emperor v. Gayaprosad AIR 1914 Cal 560 : 15 Cri LJ 46 and State v. Golam Rasul : AIR1970Cal162 , support the above view of ours. In the case of Gayaprasad an appeal under Section 417 of the old Code by the Government of Bihar and Orissa was presented by J. Orr Deputy Legal Remembrancer of Bengal. Though the Deputy Legal Remembrancer was acting under the direction of L.R. of Bengal since L.R. Bengal had not been appointed Public Prosecutor by the State of Bihar and Orissa, the appeal so filed was held not maintainable and was dismissed. Similarly in the case of Golam Rasul an appeal from the Union Territory of Andaman & Nicobar Islands was held to be incapable of being presented by an advocate appointed by L.R. of West Bengal who was not the Public Prosecutor appointed by the Central Government for the Union Territory.
22. Incidentally the learned Advocate General wanted to contrast the provision of Section 225 of the new Code (which corresponds to Section 270 of the old Code) with the provision of Section 24. According to him while Section 225 makes a mandatory provision that a prosecution before a court of Session shall be presented by the Public Prosecutor necessarily implying that none but a Public Prosecutor can so prosecute, Section 24 merely provides that there shall be a Public Prosecutor in the High Court for conducting any prosecution, appeal or other proceeding; it does not make it mandatory that such a Public Prosecutor alone and none else can conduct the prosecution, the appeal or the other proceeding. In our view the two provisions are not capable of such distinct interpretation. Section 24 also makes it mandtory that a Public Prosecutor is to be appointed for conducting, prosecution, appeal or other proceeding before the High Court. The only and necessary implication is that such a Public Prosecutor alone can conduct such a prosecution, appeal or other proceeding. In High Court too, there may be sessions trials as well. That being the position, it does not stand to reason why when such trials in courts of session cannot be conducted by any person other than the Public Prosecutor, it can be so done in cases of sessions trials by the High Court. We find no reasonable ground for such a distinction.
23. Next we proceed to consider the third point raised by the learned Advocate-General. He seeks to invoke the de facto doctrine. He contends that the L.R. may not have the requisite qualification to be appointed the Public Prosecutor and may not also have been so appointed in accordance with law but since he acted as the Public Prosecutor under a colour of title on the basis of the notification dated October 11, 1974, his right to act as such and accordingly the validity of the act of his filing the appeal on behalf of the State cannot be challenged collaterally as proposed to be done in the present case. He relies on the well-known decision of this Court in the case of Pulin Behari v. King Emperor, (1912) 15 Cal LJ 517 : 13 Cri LJ 609. In that case the appellants challenged the legality of their conviction by disputing the validity of the sanction under Section 196 of the Criminal Procedure Code granted by the de facto local Government and the cognizance of the case taken by the de facto Sessions Judge irregularly appointed. This Court ruled that in challenging the conviction and the sentence it was not open to the appellants to challenge collaterally the authority of the local Government to grant the sanction or the authority of the Sessions Judge to try them. It was obvious, therefore, that the challenge thrown was collateral in character, Moreover, it was not a case of any lack of any statutory qualification possession whereof alone could invest the authority with the power or the jurisdiction as such, A learned single Judge of this Court, however, extended the same doctrine in case of an authority acting as such though not possessed of the statutory qualification in the case of Shree Hanuman Foundries Ltd. v. Hem Ranjan Deb, (1963) 67 Cal WN 437 but the correctness of such extension of the doctrine is somewhat debatable (See Woollett v. Minister of Agriculture, (1954) 3 All ER 529). But this contention of the learned Advocate-General must, in our view, be overruled on the ground that the challenge in the present case is not a collateral one. The respondent who has been acquitted by the Court of Session has been put to the risk of his acquittal being set aside in the appeal presented by the L.R. acting as the Public Prosecutor. Presentation of such an appeal is only a part of the process of conducting the appeal which is yet to be so conducted (See Mansoor v. State of M P. : 1971CriLJ1445 Thus, when the appeal itself is being sought to be prosecuted against the respondent and the respondent raises an objection that the appeal cannot be so prosecuted as it had not been competently filed by the competent authority, the challenge thrown, in our opinion, is not coliateral but a frontal one. Such a challenge, in our opinion, cannot be thrown out by invoking the de facto doctrine as proposed by the learned Advocate-General. Cooley on the Constitutional Limitations had observed:
But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by someone claiming the office de jure or except when the person himself attempts to build up some right, or claims some privilege or emolument, by reason of being the officer which he claims to be.
The case we are now considering clearly comes within the second exception since the person in authority acts on his right to prosecute the appeal and when he acts as such it is open to the other side to meet him throwing a challenge to his authority to so act. In this view, we are unable to sustain the third point raised by the learned Advocate-General.
24. So far as the last point raised by the learned Advocate-General is concerned, we feel no hesitation in accepting the principle that non-compliance with any statutory requirement, however, mandatory it may be, may be condoned if in the facts and circumstances its compliance was impossible. On the view we have taken hereinbefore an appeal under Section 373 of the Code can be presented only by the Public Prosecutor and that there shall be a Public Prosecutor to conduct such an appeal too. This requirement of the statute in our view is mandatory for reasons given hereinbefore though it is not a condition precedent in the strict sense of the term. We are, however, quite conscious of the fact that there may arise a situation where a Public Prosecutor may not be available for either of the purposes referred to hereinbefore. If the Public Prosecutor in office suddenly dies or relinquishes his office the State may not get the services of a Public Prosecutor forthwith since the procedure laid down for appointment of a Public Prosecutor is bound to take sometime for such appointment. Where such is the situation it can certainly be said that fulfilment of the statutory requirement of presenting an appeal through the Public Prosecutor or conducting the same through a Public Prosecutor would be an impossibility for the time being. The State may not be able to await appointment of a Public Prosecutor for presenting the appeal because of the limitation prescribed nor can always the cases be adjourned for the said purpose. In such circumstances, it would be legitimate to invoke the maxim Lex non cogit ad impossibilia which means dispensing performance of what is prescribed when performance of it is impossible.
25. Mr. Roy also is not disputing the proposition that in certain circumstances where it would be impossible to have a Public Prosecutor either for presenting the appeal or for conducting the case;;, the statutory requirement in that respect, however mandatory, may be dispensce with. In the facts of the present case or rather the cases in which the L.R. had been made to act as the Public Prosecutor under the appointment impugned herein, the learned Advocate-General has invited us to invoke and apply the above principle and excuse the non-compliance of the statutory requirement. He has contended, that the State did make an appointment, however erroneous it may be, believing it to be a good appointment and the Legal Remembrancer by virtue of such an appointment had proceeded to act as the Public Prosecutor, filed these appeals and conducted the same. Now when the appointment is adjudged to be not in accordance with law it is not possible to rectify the defect. He has pointed out that when the default arose in spite of the fact that the State had bona fide taken reasonable steps to comply with the statute, this Court should excuse the default for acts already done. We feel inclined to accept this contention of the learned Advocate-General in the particular facts of the present case. As we have made it clear hereinbefore the true implication of Section 24 of the new Code was lost sight of not only by the legal advisers to the State of West Bengal but also by the Registrar of this Court when he accorded on behalf of this Court approval to the proposed appointment. We feel no hesitation in holding that this Court itself contributed much to the irregular appointment of L.R. as the Public Prosecutor. We agree with the learned Advocate-General that the State though misled by the legal advice of its advisers did exercise due and reasonable care as to the performance of its duties in this respect when it consulted this Court by forwarding the draft notification for its approval. Approval of this Court was accorded, however, irregularly it may be, by the Registrar purporting to act on behalf of this Court and thus leading the State to believe that there would be due compliance with the statutory requirement as and when the Public Prosecutor so appointed assumes office and discharges his duties. Judged from this aspect we uphold the contention of the learned Advocate-General that in such facts and circumstances due performance of the statutory requirement was rendered impossible and hence the non-compliance which resulted therefrom should be excused.
26. In the result, we hold that L. R was not validly appointed the Public Prosecutor by the notification dated October 11, 1974, and his presenting the petition of appeal under Section 378 of the new Code as the Public Prosecutor was not a valid Act. Since, however, the L.R. is also the ex-officio Secretary and is duly authorised under the Rules of Business to take on behalf of the State the executive act of filing the appeal on behalf of the State, the appeal must be held to have been presented by the appellant-State itself and so long a Public Prosecutor is not validly appointed (which, however, must be done within a reasonable time) the State will be at liberty itself to prosecute the appeal or prosecute it through any lawyer duly authorised in this behalf. Any lawyer if and so appointed must file an appropriate power since exemption Under Section 301(1) of the Code would not be available to him. The State must, at the same time, take immediate steps to appoint a Public Prosecutor in accordance with law and unless such an appointment is made within a reasonable time after this pronouncement it cannot have the protection under the maxim lex non cogit ad impossibilia which we have extended in its favour in the facts and circumstances of the case. The preliminary issue is thus disposed of.
27. Let a plain copy of this judgment be handed over to Mr. P.R. Roy, learned Advocate appearing for the appellant.
A.P. Bhattacharya, J.
28. I agree