C B I Vs. P I BABU

JUDGEMENT

(1.) This is a petition to condone the delay of 187 days in filing the appeal. While opposing the delay petition the competence of counsel, who presented the Memorandum of Appeal, to prefer the appeal against the acquittal is also seriously questioned. Therefore, that aspect has to be considered.

(2.) It is contended by Sri. S. Vijayakumar that the counsel who presented the Memorandum of Appeal under S.378(2) of the Code of Criminal Procedure did not have the competence to do, as he had not been appointed as Public Prosecutor in terms of S.24 of the Code nor has he been directed by the Public Prosecutor to prefer such an appeal. A person shall be appointed as Public Prosecutor as per S.24 of the Code. In terms of the definition of the word 'public prosecutor' as contained in S.2(u) of the Code, the Public Prosecutor will include any other person acting under directions of a public prosecutor. So either the public prosecutor himself or any one else upon his direction alone can file an appeal under S.378 (2) of the Code of Criminal Procedure. The Memorandum of Appeal discloses that it has been filed by the special counsel for C. B. I. So the appeal itself is incompetent. In support of his contention the decisions in State of Kerala v. Krishnan ( 1981 KLT 839 ) and Rajendran v. Ayyappan ( 1985 KLT 307 ) are relied on. It is also submitted that the standing counsel for C. B. I. is not working under the Public Prosecutor appointed in terms of S.24 Cr. P. C. He also has never been appointed as a Public Prosecutor. The present contention raised in the reply affidavit that he had filed the appeal upon direction from the Public Prosecutor cannot be per se believed unless there is a written instruction in that regard, as an instruction from one office to another in the normal functioning of the Government Office will go only in written form and not as an oral direction. No written direction is produced in this case. There is no evidence to show that Advocate General had instructed the Public Prosecutor to file an appeal. Much less there is no direction from the Public Prosecutor to the counsel for the C. B. I. to prefer an appeal. So this appeal is totally incompetent. Consequently there arises no question of condonation of delay. It is further submitted that even going by the averment of the deponent of the affidavit in support of the application for condonation of delay, no sufficient cause has been shown. Each days delay is not explained. When did the C. B. I. get the certified copy and when the Government of India was addressed to obtain appropriate sanction for filing the appeal etc. are not disclosed in the affidavit. So no sufficient cause has been shown to condone the delay.

(3.) It is submitted by the counsel for the C. B. I. that immediately after the acquittal of the accused the Central Government was addressed to examine the scope of appeal and to file an appeal. The Central Government, as is revealed by Annexure 1 produced along with the reply affidavit, examined the case record and scope for appeal and requested Government of Kerala to direct the Public Prosecutor to file the appeal, as the appeal had to be filed by the Public Prosecutor in terms of S.378(2) of the Code. Appropriate direction shall be given by the State Government to the Public Prosecutor to file an appeal. Processing the same the Government of Kerala issued Annexure A2 letter to the Advocate General to instruct the Public Prosecutor to prefer an appeal. It is submitted that the Public Prosecutor directed C. B. I. counsel to prefer the appeal and it was in accordance with the said direction this appeal had been filed.