SABIR Vs. STATE

JUDGEMENT

(1.) This appeal is directed against a judgment of the learned Additional Sessions Judge, Delhi whereby the appellant was convicted under Section 302 of the Indian Penal Code and sentenced to life imprisonment and a fine of Rs. 3.000.00 or in default to further imprisonment for two years Before we deal with the merits of the appeal, it is necessary to notice the preliminary objection raised by the counsel for the State. The objection was that Mr. I.U. Khan Advocate appearing for the accused being an Addl. Public Prosecutor could not appear for the accused in view of the judgment of a learned Single Judge of this Court, M.L. Jain, J. in the case of Lt. Col. K. 0. Sud v. S. C. Gudimani, Criminal Revision No. 224 of 1980 decided on February 13, 1981=Vol. 20 DLT (1981) (SN) 30. Asimilar objection was taken before the learned Single Judge in that case. In order to decide that objection the learned Judge posed the following three questions :

(2.) Though much can be said for the conclusions arrived at by the learned Judge but after giving our careful consideration to the submissions made before us, we are unable to agree with the same. We proceed to record our reasons for not agreeing with the order of the learned Single Judge in the case of Lt. Col. K. C. Sud v. S. C. Gudimani (Supra). The Public Prosecutors or Addl. Public Prosecutors are appointed under Section 24 of the Code of Criminal Procedure. Chapter XXIV of the said Code contains certain provisions relating to the powers and functions of the Public Prosecutors. Under Section 301, the Public Prosecutor is entitled to appear and plead the case of which he is incharge without any written authority before any Court in which that case is under enquiry, trial or appeal. Under Section 302 he can appear before any Magistrate inquiring into or trying case without the permission of the Magistrate. Section 321 authorises a Public Prosecutor incharge of a case to withdraw from the prosecution of any case either generally or in respect of any one or more of the offences for which the accused is being tried with the consent of the Court. Sections 377 and 378 of the Code authorise the Public Prosecutors to file appeals etc. in the cases in which the State Government may direct them to do so. Besides these provisions, there is no other provision in the Code which deals with the functions and powers of Public Prosecutor. We do not find any general authority of a Public Prosecutor and authority or powers are confined in relation to the cases entrusted to him by the State Government or of which he is the incharge. There is no provision in the Code which prohibits a Public Prosecutor to appear in any private cases.

(3.) Chapter IV of the Advocates Act, 1961 deals with the right to practice of an Advocate. Section 30 of the said Act is, as follows :