State of Rajasthan Vs. Smt. Manbhar
[1981] INSC 65 (12 March 1981)
KOSHAL, A.D.
KOSHAL, A.D.
ISLAM, BAHARUL (J)
CITATION: 1981 SCR (3) 209 1981 SCC (2) 525
1981 SCALE (1)828
ACT:
Criminal Procedure Code, Section 378
(i)-Deputy Govt.
Advocate whether means Public
Prosecutor-Section 24 read with clause (u) of section 2-Authority of the
Advocate General.
HEADNOTE:
The Advocate General of the Appellant State
issued notification under section 94 read with clause (u) of section 2 of the
Code of Criminal Procedure published on 25th of September, 1974, directing that
three categories of various law officers of the Government including the Deputy
Govt. Advocate shall have the authority to act and, plead and argue in all
matters covered by the Code.
The High Court held that the Deputy Govt.
Advocate had no locus standi under the Code of Criminal Procedure to prefer an
application under section 378 thereof for leave to appeal against an order of
acquittal recorded by a lower Court in a murder ease. The respondent contended
that an application under Section 378 would be incompetent unless its contents
disclosed that it was being presented by a Public Prosecutor.
Accepting the appeals
HELD : (1) The High Court was not justified
in throwing out the application presented to it as one having been filed by a
person incompetent to do so. For the application to be treated as incompetent,
the High Court was bound to enquire into the status of the person presenting it
and could throw it out only if it was found as a fact that he did not enjoy the
status of a Public Prosecutor. Such a status is for all practical purposes
settled by the notification dated 25th September, 1974, of which after its
publication in the Government Gazette, the High Court could take judicial notice.
[211 G, 212 B-C] 2(i) The Advocate General being admittedly a Public Prosecutor
for the State High Court, he had the authority by virtue of the provisions of
clause (u) of section 2 of the Code to issue directions authorising other
persons to act;
and once a person was so authorised, he would
be Public Prosecutor for the purpose of the Code. [211E-F] (ii) A Deputy
Government Advocate being a person so authorised under the notification dated
25th September, 1974, is thus a Public Prosecutor having full competence to
present an application under section 378 of the Code. [211F- G]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 285 of 1977.
210 From the Judgment and Order dated
29.7.1974 of the Rajasthan High Court in D. B. Cr. Leave to Appeal No. 839/74.
AND Criminal Appeal Nos. 10 & 11 of 1976.
Appeals by special leave from the Judgment
and Order dated 29.7.1974 of the Rajasthan High Court in D.B. Criminal Misc.
Leave to Appeal No. 857/74 and D.B. Criminal Appeal No. 350/74.
Badri Dass Sharma for the Appellant in all
the Appeals.
S. Balakrishnan for RR in Criminal Appeal No.
10/76.
The Judgment of the Court was delivered by
KOSHAL, J. By this Judgment we shall dispose of three appeals, viz., Criminal
Appeals Nos. 10 and 11 of 1976 and Criminal Appeal 285 of 1977 in each of one
of which the question arising for determination by us is the same. The first of
them is by Special leave granted by this Court and the other two are by
certificate granted by the High Court of Rajasthan against its three orders
dated 29th July, 1974, all holding that the Deputy Government Advocate of
Rajasthan had no locus standi under the Code of Criminal Procedure thereinafter
referred to as the Code) to prefer an application under section 378 thereof for
leave to appeal on behalf of the State against an order of acquittal recorded
by a lower court in a murder case.
2. The relevant provisions of the Code are
sub-section (1) of section 378, sub-section (1) of section 24 and clause (u) of
section 2. The same are reproduced below in that order :- "378(1) : Save
as otherwise provided in sub- section (2) and subject to the provisions of sub-
sections (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 or an order of
acquittal passed by the Court of Session in revision.
24. (1) : For every High Court, the Central
Government or the State Government shall, after consultation with the High
Court, appoint a Public Prosecutor and may also appoint 211 one or more
additional Public Prosecutors, for conducting in such Court, any prosecution,
appeal or other proceeding an behalf of the Central Government or State
Government, as the case may be.
2(u) : "Public Prosecutor" means
any person appointed under section 24, and includes any person acting under the
directions of a Public Prosecutor." It will be seen that under sub-section
(1) of section 378, only a Public Prosecutor can present an appeal to the High
Court from an original or appellate order of acquittal passed by any court
subordinate to the High Court, if so directed by the State Government. Again,
for a person to be a Public Prosecutor, it is necessary that he is either
appointed as such under section 24 or acts under the directions of a Public
Prosecutor so appointed.
3 Learned counsel for the State has referred
to Notification No. F. 32(1) Judl/74 dated 30.3.1974 issued by the State
Government of Rajasthan appointing the Advocate General of the State to be a
Public Prosecutor under section 24 of the Code. Another notification on which
he relies is Notification No. P-36/AG/D dated 1.4.74 published on 25th
September, 1974 issued by the then Advocate General of Rajasthan under section
24 read with clause (u) of section 2 of the Code and directing that three
categories of various Law Officers of the Government including the Deputy
Government Advocate shall have the authority to act, plead and argue in all
matters covered by the Code. These two notifications read together in our
opinion, clinch the issue in favour of the State. The Advocate General being
admittedly a Public Prosecutor for the State High Court he had the authority by
virtue of the provisions of clause (u) of section 2 of the Code to issue
directions authorising other persons to act; and once a person was so
authorised, he would be a Public Prosecutor for the purpose of the Code.
A Deputy Government Advocate being a person
so authorised under the notification dated 25th September, 1974 above mentioned
is thus a Public Prosecutor having full competence to present an application
under section 378 of the Code. In this view of the matter, the High Court was
not justified in throwing out the application presented to it as one having
been filed by a person incompetent to do so.
4. Mr. Balkrishnan, learned Counsel for the
respondent in Criminal Appeal No. 10 of 1976 has contended that as the Deputy
Government Advocate did not specify his status as Public Prosecutor 212 in the
application rejected by the High Court, that application could not be regarded
as having been filed by a competent person. According to learned counsel, an
application under section 378 would be incompetent unless from its contents
disclosed that it was being presented by a Public Prosecutor. We do not agree
with this contention and that for two reasons. Firstly, no principle of law has
been brought to our notice that if the proper designation of a person does not
appear on a document authenticated by him, that document would lose its
authenticity, even though that person factually holds such designation. For the
application to be treated as incompetent, the High Court was bound to enquire
into the status of the person presenting it and to throw it out only if it was
found as a fact that he did not enjoy the status of a Public Prosecutor.
Secondly, such status is for all practical purposes settled by the notification
dated 25th September, 1974 of which, after its publication in the Government
Gazette, the High Court could take judicial notice. Had that been done, the
problem would not have arisen as the Deputy Government Advocate would have been
found to be holding the status of a Public Prosecutor.
5. For the reasons stated, we accept all the
three appeals and set aside the impugned orders with a direction that the
applications made under section 378 of the Code shall be heard and decided by
the High Court on merits.
N.K.A. Appeals allowed.
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