- (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, 1972, (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 of the Indian Penal Code 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 Remembrance 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 Remembrance and ex-officio Special 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 herein under : JUDGEMENT_40_TLCAL0_1977Html1.htm
(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. Section 378 (1) of the new Code provides : "save as otherwise provided in subsection (2) and subject to the provisions of subsections (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. " The term 'public Prosecutor' has been defined 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, 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.;