M.L.JAIN - (1.) S. C. Gudimani lodged a complaint against six persons before the Metropolitan Magistrate, New Delhi, on February 21, 1980, under Ss. 120B, 420, 421, 422, 425 and 34 Indian Penal Code . Though there is nothing on record, but it is not denied that the accused were represented by Shri Mathur and Kumari Naresh Parmar, a junior colleague of Shri Dinesh Chand Mathur, and they did so without a Vakalatnama. The learned Metropolitan Magistrate by his order dated May 15, 1980, summoned only four of the accused including Lt. Col. K. C. Sud. under S. 420 read with S. 34 Indian Penal Code . and dismissed the complaint with regard to offences under Ss. 120B, 421, 422 and 425 IP.C.
(2.) Against the aforesaid order, the present petition under S. 397 Criminal Procedure Code . has been filed on behalf of Lt. Col. Sud by Shri D. C. Mathur and Kumari Naresh Parmar. The revision petition was admitted by this court on August 20, 1980. When the petition came up for hearing, Shri Balraj Trikha, the learaed Advocate for the respondent, objected that since Shri Mathur was the Public Prosecutor for the Delhi Administration, he could not appear on behalf of the accused person. The revision Therefore, filed by him was a nullity. He urged that no body has a right to be heard in a revision and yet in the ordinary coarse, the High Court does hear counsel appearing in revisions out that is always subject to the rights of the State. He relied upon Bisheshar and others v. Rex. (1949) 50 Cri. L. J. 322(1). He also quoted profusely Sardar Surinder Singh v. Comrade Ram Piara M.L.A. and another, Criminal Revisions Nos. 1161 and 1162 of 1964, decided on January 20, 1965(2). by a Division Bench of the High Court of Judicature at Allahabad. Complaints filed in the court of a Magistrate in Punjab against Surinder Singh Kairon and late Shri S. Pratap Singh Kairon and some others were transferred by the Supreme Court, for trial to a District Magistrate in Uttar Pradesh. The Kairons filed some revisions in the High Court of Allahabad. Pt. K. L. Misra the then Advocate-General of the State of Uttar Pradesh, put in appearance on behalf of the accused petitioners after obtaining permission of the Governor as the relevant Rules prevented the Advocate-General from appearing as a private counsel for am accused person. Yet an objection was raised to his appearance. The Division Bench which came to consider the issue, was presided over by Hon'ble V. Bhargava, J. (later on a Judge of the. Supreme Court and Hon'ble M. H. Beg, J. (later on the Chief Justice of India). They held that it was well established that in all criminal proceedings, the right to prosecute the offender vested in the Government and it was only in exceptional cases that a person aggrieved was also permitted to file a complaint in a criminal court under the Code of Criminal Procedure. Hence, the proper party in a criminal case was that State Govt. which was interested in prosecuting the case and not the State Govt. within whose territory the court was situate. And yet the State of Punjab was not a necessary party because in a criminal revision, there was no necessary party, but being an appropriate authority to appear as prosecutor. it could be impleaded as a party and given an opportunity of being heard at any stage of the proceeding arising out of the complaints, if the court considered it desirable to do so. Since the State of U.P. was not a party, there could be no bar against the Advocate-General of U. P. appearing in his capacity as an advocate for the accused. Yet, having won his stand, Pt. Misra withdrew. Why ? To keep his office above controversy. The court, however, did not decide the question whether it was incompetent or inappropriate for any Advocate- General even in his personal capacity to appear and represent a party opposed to the party which appointed him as Advocate- General. Shri Trikha submitted that in a criminal proceeding, the State was a necessary party or a natural party or a proper party on a desirable party whether impleaded or not, and in any case, the Public Prosecutor appointed by it could not appear against it. It would be against public interest if the Public Prosecutor began to play the role of a private prosecutor or a private defender.
(3.) Shri Mathur contended that in a petition like the present, such a question could not be raised; and the respondent if he so chooses, should resort to a petition for a writ of quo warranto. But, this contention has to be overruled because it is not his appointment as Public Prosecutor that is in question; what is being questioned is the legality and propriety of the Public Prosecutor to appear against the State. I have observed one Addl. Public Prosecutor opposing another Additional Public Prosecutor m the same case. To me that was an unusual sight but the learned Public Prosecutor and his Additionals claimed that they had a right to accept briefs from any of the parties to the prosecution as long as Administration did riot debar them from doing so. They, specially the Additional Public Prosecutors, further claim that they are lawyers empanelled to handle only such cases as are allocated to them and outside such allcation, they are free to practise as advocates in any case for any party which engages them. They also claim that their predecessors had been doing likewise. There are besides several lawyers who appear in the departmental complaints with the freedom to appear against the department in cases in which the department does not engage them. I, therefore, felt that the controversy raised was of general public importance and with a view to examine it in all its aspects, framed the following three questions : (1) Whether a Public Prosecutor or an Additional Public Prosecutor or a panel lawyer for that matter, can appear against the State ? (2) Whether it is permissible to the State or the Administration to permit a Public Prosecutor or an Addl. Public Prosecutor to appear against the State ? (3) Whether a Public Prosecutor can appear on behalf of the accused person in cases instituted on a complaint by a private party ? At this stage, Shri Sital A. K. Dar, Advocate, joined in. Notices were also issued to the Delhi Administration; the President of the Delhi High Court Bar Association; and the Chairman of the Bar Council of India. But, none of "the officers of the court" has cared to return the courtesy of appearing and putting forth what they considered to be the proper approach and assist me in reaching the correct conclusions. Perhaps, they did not wish to render 'the labour of love' and devote their 'valued' time to the exercise which it appears, seemed sterile to them. But unless I knew their views, I had no means of knowing if the controversy was non-productive. Alas, the Delhi Administration had chosen to remain reticent and ignore the notice of this court on a matter which pertinently and primarily affects public interest and which, was their immediate concern. The burden, therefore, was shared by Shri Balraj Trikha and Shri Sital A. K. Dar on the one side, and Shri D. C. Mathur and Shri R. B. Datar on the other, and I must record my appreciation and thanks for their unqualified assistance. I took time for consideration.;