N.C.TALUKDAR, J. - (1.) THIS Rule is at the instance of the complainant petitioner, Benoy Chakraborty against an order dated the 27th February. 1971, passed by Sri H. S. Barari. Additional Chief Presidency Magistrate, Calcutta refusing to issue process against the accused opposite -parties Nos. 2 and 3. in the absence of a sanction under Section 197(1) of the Code of Criminal Procedure, in case No. G/783 of 1970 under Section 302/34 I. P. C.
(2.) THE facts can be put in a short compass. On the 22nd December. 1970, the complainant -petitioner filed a petition of complaint in the court of the Additional Chief Presidency Magistrate, Calcutta under Sections 302/34. 201 and 379 I. P. C. against six named accused persons including the opposite -parties Nos. 2 and 3, and some others, whose names were not known but could be identified. The Additional Chief Presidency Magistrate examined the complainant and sent the matter to Sri R. P. Roy Chowdhury, Presidency Magistrate, 11th Court. Calcutta for a judicial enquiry and report. Several witnesses were examined by the learned enquiring magistrate and some documents were produced at the judicial enquiry and the enquiring magistrate, in his report dated the 18th February, 1970 held that a prima facie case under section 302/34 I. P. C. was made out against all the six accused persons and further held that no sanction under Section 197 (1) of the Code of Criminal Procedure was required for prosecuting the accused Nos. 1 and 6 who are the opposite parties Nos. 2 and 3 in the present Rule. After certain dates the Additional Chief Presidency Magistrate. Calcutta upon hearing the learned lawyer for the prosecution on certain points of law and on perusing the report of the judicial enquiry ultimately by his order dated -the 27th February, 1971, issued process under Section 302/34 I. P. C. against the accused Nos 2 to 5 but refused to issue process against the accused Nos. 1 and 6 in the absence of a requisite sanction under Section 197 (1) of the Code of Criminal Procedure. The order refusing to issue process against the opposite parties Nos. 2 and 3 has been impugned and forms the subject matter of the present Rule. Mr. Arun Prokash Chatterjee, Advocate (with Mr. Samar Kumar Dutt, Advocate) appearing in support of the Rule on behalf of the complainant -petitioner made a two -fold submission. one of law and the other a mixed question of law and fact. He contended in the first instance that the learned Advocate -General, appearing on behalf of the opposite -Parties Nos. 2 and 3. who were accused Nos. 1 and 6 in the court below, has indeed no locus standi to appear on their behalf in a Criminal proceeding instituted at the instance of a private complainant, wherein the State is also a party. He referred to Article 165(2) of the Constitution of India Sections 492 and 495 of the Code of Criminal Procedure and also relied on the observations made in D. Basu's 'Commentary on the Constitution of India' (5th Edition). Volume 3 at page 273 relating to the Statutory functions as well as the disabilites of the Advocate -General. Mr, Chatterjee next contended that no sanction under Section 197 (1) of the Code of Criminal Procedure is necessary to proceed against the opposite -parties Nos. 2 and 3 who, according to him, were not at the material time acting in the discharge of their official duties in an incident involving two murders. In this connection Mr. Chatterjee' referred to some decisions which will be considered in their proper context. With the permission of the learned Advocate -General appearing on behalf of the opposite parties Nos. 2 and 3, Mr. Dilip Kumar Dutt. Advocate, argued their case Mr. Dutt submitted that there is no legal bar to the learned Advocate -General's appearance on behalf of the two opposite -parties, who are officers of the State, on being engaged by the State Government in that behalf -more so, when there is no adverse interest. He next contended that the prosecution of the two opposite parties is clearly barred in the absence of a sanction under Section 197 (1) of the Code of Criminal Procedure inasmuch as they are public servants not removable from their offices, save by or with the sanction, of the Central Government and the State Government respectively and at the time, were acting or purporting to act in the discharge of their official duties. In support of his contention he referred to several cases which would be considered in their proper context. Mr. Deba Prosad Chowdhury, Advocate appearing on behalf of the State, opposite party No. 1 also joined issue. Mr. Chowdhury supported the submissions of Mr. Dutt relating to the locus standi of the learned Advocate -General and as to the second contention raised on behalf of the petitioner regarding sanction, he submitted that the same is unwarranted and untenable as the point at issue is now well -settled in a series of judicial decisions.
(3.) THE first point raised by Mr. Chatterjee is an intriguing one relating to the locus standi of the Advocate -General to appear on behalf of the opposite -parties Nos. 2 and 3 in a criminal case wherein the State is also appearing as the opposite -party No. 1. The first prong of his submission in this context is based on the provisions of sections 492. 494 and 495 of the Code of Criminal Procedure but it is difficult to understand as to how the same supports his proposition. Section 492 (1) relates to the powers of the State Government to appoint Public Prosecutor generally or for a specific case and under Sub -section (2). the District Magistrate or subject to his control the S. D. M. may in the absence of such an 'appointment or in the absence of the appointed Public Prosecutor, appoint any other person, as enjoined therein, to be the Public Prosecutor for a particular case. Section 495 of the Code refers to permission granted by the trying or enquiring magistrate to conduct prosecutions by any person other than an officer of police below the rank to be prescribed by the Government on this behalf. The Advocate -General however has been exempted under, this provision Section 494 also does not apply to the Advocate -General who has the right to enter Nolle Prosequi under Section 333 of the Code without the consent of the court - a right which belongs to the Attorney -General in England. In India the administration of justice is a state subject and so the power is not conferred on the Attorney -General. The second prong of Mr. Chatterjee's submissions is based on Clause (2) of Article 165 of the Constitution of India, whereby the duties of the Advocate -General are laid down. Nothing is contained in those provisions as such, to prevent the Advocate -General's appearance in such cases. The next prong of his contention is based on the observations made in D. Basu's 'Commentary on the Constitution of India' (5th Edn) Volume 3 at page 273 relating to the disabilities of the Advocate -General. The disabilities have been stated therein as follows : 'By reason of his office, the Advocate -General is (according to the Rules in force in West Bengali debarred from - (a) Advising or holding briefs against the State; (b) defending accused persons in criminal prosecution; (c) Advising private parties in cases in which he is likely to be called on to advise Government, (d) accepting appointment as Director in any company, without sanction of the Government.' Mr. Chatterjee pinpointed the provisions contained in Clause (b) and contended that an appearance on behalf of the opposite -parties Nos. 2 and 3 in this Rule is tantamount to 'defending accused persons in criminal prosecution', more so when the State is also a party and has put in appearance. Mr. Dilip Kumar Dutt joined issue and submitted that (a) the two opposite parties are no longer accused having not been summoned at all and (b) they are officers of the State involved in a case while discharging their official duty and as such they are entitled to be defended at the cost of the State and by counsel appointed by the government. The interest according to Mr. Dutt is not therefore adverse. Mr. Dutt next submitted that the aforesaid observations made in D. Basu's 'Commentary on the Constitution of India' are apparently based on the old provisions of the legal Remembrancers Manual since amended materially. He referred to Section 2, Sub -section (7) in Chapter I of the amended Legal Remembrancer's Manual, 1930 (Vol. 1) wherein the old provisions in Clause (ii) of Sub -section (8) of the Manual have been considerably extended by amendment as follows; 'Defending accused persons in criminal prosecutions; unless specially authorized by the Governor. (e. g. in a private prosecution in which government is not interested). Mr. Dutt finally submitted that the Government has specifically authorised the learned Advocate -General to appear for the two opposite -parties as would be borne out by the sanction of the Legal Remembrancer, West Bengal, recorded in the requisite file and if called upon to do so. undertook to produce it before the court.;