STATE OF KERALA Vs. KRISHNAN

JUDGEMENT

(1.) These State appeals against acquittal, presented by the Additional Advocate General at a time when admittedly there was no Public Prosecutor appointed for the High Court, have come up for grant of leave under S.378(3) of the Code of Criminal Procedure, 1973, for short the Code. The question is whether the State Government can direct the Advocate General or the Additional Advocate General to present an appeal under S.378(1) of the Code without appointing them as Public Prosecutors under S.24(1), in view of Art.165 of the Constitution of India and the rules framed by the Government under clauses (2) and (3) of Art.165 of the Constitution as per notification dated 1st November, 1956

(2.) S.378(1) of the Code of Criminal Procedure 1973 reads:

(3.) Art.165 of the Constitution which contains the provision for the Advocate General is a verbatim reproduction of sub-s.(1) and (2) of the Government of India Act, 1935. In Bhagwan Das v. The King ( AIR 1949 PC 263 ) the question that came up for consideration before the Privy Council was whether a State appeal from acquittal filed by the Advocate General in the High Court can be considered as presented in accordance with law. There was already a notification by the Governor of Punjab under S.492 of the Code Of Criminal Procedure, 1898 appointing the Advocate General as Public Prosecutor generally for the Punjab. The Privy Council said: