VARGHESE JOHN Vs. STATE OF KERALA

JUDGEMENT

(1.) This Original Petition came up before us on reference made by a learned Single Judge. The question referred is whether a Public Prosecutor can authorise any other advocate to conduct prosecution in a Sessions Court.

(2.) This Original Petition appears to be a public interest litigation. Petitioner claims to be a practising advocate, mainly in Criminal Courts at Ernakulam. Since he was interested in Sessions Case No. 63/1992, which is a murder case pending trial before the First Additional Sessions Judge, Ernakulam, petitioner was present in court on 21-11-1994. The case, according to the charge sheet, was that one Aliamma, wife of Joy, was murdered on 5-8-1991 at 9.00 p.m. by her husband. First witness was examined by the 5th respondent, Public Prosecutor who was in charge of the case. That witness turned hostile. According to the petitioner, 5th respondent then left the Court leaving the case to be conducted by her junior advocate, who was enrolled four months back (before Court learned counsel representing the petitioner fairly conceded that 5th respondent examined PW-2, the other eye witness in the case, who also turned hostile to the prosecution). It is the petitioner's case that the action of the 5th respondent was inconsistent with the ethics of the legal profession and fair play in the administration of justice inasmuch as 5th respondent as Public Prosecutor disowned the case entrusted with her. S.24 of the Code of Criminal Procedure, hereinafter referred to as "the Code", lays down the qualification and method of appointment of a Public Prosecutor. Only such a competent prosecutor can be entrusted with the trial of Sessions case. A raw junior should not have been entrusted with the conduct of the case as was done by the 5th respondent. With these averments, the petitioner approached this Court with the following prayers:

(3.) 5th respondent, the Public Prosecutor, has filed a detailed counter affidavit. According to her, PWs. 1 and 2 in S.C. 63/1992 were examined during forenoon of 21-11-1994 by her. During afternoon the case was called, her junior was present in Court and she conducted the examination of CWs.3 and 4 as PWs.3 and 4. PW-3 was the mother of the accused and PW-4 , the daughter of the accused. There was no likelihood of these witnesses giving evidence in favour of the prosecution. As per S.2(u) of the Code, she could entrust the examination of these witnesses with another on her directions. So, the examination of these witnesses by the junior under her direction was not inconsistent with the ethics of legal profession.