STATE OF KERALA Vs. GOVINDA KURUP KARUNAKARA

JUDGEMENT

(1.) This appeal against the order of acquittal in C.C. 332 of 1977 on the file of the Judicial First Class Magistrate, Sherthallai was filed on behalf of the appellant State by the Advocate General and the question for consideration is whether the appeal is competent.

(2.) Section 378(1) of the Code provides that in an appeal from an original or appellate order of acquittal passed by any court other than the High Court or from an order of acquittal passed by the Court of Session in revision it is the public prosecutor who has to present the appeal as directed by the State Government. This remedy is subject to the provision for special leave under section 378 (3) and limitation provided under section 378(5). Section 24(1) of the Code provides that for every High Court, the Central or State Government shall appoint a public prosecutor and one or more additional public prosecutors for conducting any prosecution, appeal or other proceeding on behalf of the concerned Government. Public Prosecutor as defined under section 2(u) includes any person acting under the direction of a public prosecutor also. The appeal in this case is filed on behalf of the State by the Advocate General and the contention of the respondent is that the Advocate General is not a public prosecutor or a person acting under the direction of a public prosecutor and hence the appeal is incompetent and has to be dismissed on that ground alone without going into the merits.

(3.) The position of law in this respect is well settled and I need not express anything except to extract the principles laid down by a Division Bench of this court in State of Kerala v. Krishnan, which reads thus: As per section 378(1) of the Code if the State- has to file an appeal before the High Court against an order of acquittal the State has to direct the public Prosecutor to present the same. Public Prosecutor of a High Court is one who is appointed by the State Government or the Central Government under section 24(1) of the Code for conducting in that High Court any prosecution, appeal or other proceeding on behalf of that Government. In view of the definition contained in section 2(u) of the Code a person acting under the direction of a Public Prosecutor appointed under section 24 will also be a Public Prosecutor. The combined effect of all the above provisions of the Code is that if the State wants to file an appeal to the High Court from an order of acquittal, that has to be done only by a Public Prosecutor or a person acting under his direction presenting the appeal to the court. In other words nobody else can present the appeal even if the State direct. Section 378(1) being a provision which affects the liberty of the citizen it has to be construed strictly. Nothing short of its full compliance has also to be insisted. The procedure prescribed by the Code has to be complied with by all who invoke the criminal jurisdiction of a court. It has to be followed by all who appear in such cases. The Advocate General or the Additional Advocate General of a State has no exemption. As per Article 165(2) of the Constitution it shall be the duty of the Advocate General to give advice to the Government of the State upon such legal matters and to perform such other duties of a legal character as may from time to time be referred or assigned to him. There is no indication in Article 165 that when an Advocate General appears before a civil or criminal court in the discharge of his duties as Advocate General he will not be bound by the procedure followed by that court. Simply because the rules framed by the State Government under Article 165(2) and (3) and issued as per notification dated 1st November 1956 insist that the Advocate General shall represent the Government in the High Court in important civil and criminal proceedings, it will not give him the status and clothe him with the powers of a Public Prosecutor of the High Court appointed under I section 24(1) of the Code. As long as the Advocate General is not appointed as a Public Prosecutor under section 24(1) of the Code he will not become a Public Prosecutor of the High Court. As far as the Advocate General is concerned, no question of acting under the direction of a Public Prosecutor arises as he is a constitutional appointee and it will be awkward for him. If the Advocate General is appointed as a Public Prosecutor under section 24(1) of the Code acting under his directions the Additional Advocate General can function as a Public Prosecutor. As long as the Advocate General or the Additional Advocate General is not a Public Prosecutor of the High Court neither of them can present an appeal to the High Court from an order of acquittal even if the State Government directs. Hence it goes without saying that these appeals presented by the Additional Advocate General cannot be treated as appeals filed in accordance with section 378(1) of the Code.