CHACKO Vs. STATE OF KERALA

JUDGEMENT

(1.) THOUGH a Division Bench of this Court, in the decision reported in 1997 (1) KLT 788 expressed their displeasure and sorrow by the unseemly controversy between the Advocate General (hereinafter referred to as "the ag" ) and the Director General of Prosecution (hereinafter referred to as "the DGP") and disposed of the said case with a fond hope that the unhappy episode will be forgotten and not allowed to recur to sully the image of the two officers, the controversy, which appears to have been simmering has come to the surface again.

(2.) THE root cause for the current controversy is the office direction issued by the Director General of Prosecution under Ext. P1 dated 5. 2. 1998 informing the Kerala High Court Advocates Association and the high Court Advocate Clerks Association that copies of all criminal case may be directly forwarded to his office with memo (after the cases are numbered in the registry section of the High Court and before sent to the Bench for admission)and such copies will be entered in the registrar kept in his office and acknowledgment of the same will be noted in the memo with the seal of his office and under his signature or of any person duly authorised by him. Ext. P2 is the directions issued by the Office of the Advocate General dated 7. 2. 1998, which is also sought to be quashed in these proceedings. Exts. P1 and P2 are reproduced hereunder: "ext. P1 Copies of criminal cases filed in the High Court in which state of Kerala is respondent are now being served to the Public Prosecutor. High Court (re-designated by Government as Director General of Prosecution) through the office of the advocate General. Delay or omissions caused in transmitting/ receiving of copies of such criminal cases in my office in time has very often caused dislocations and difficulties in arranging timely defence of the criminal cases representing the State, particularly when the cases are posted for admission in the Court. It was because of the lack of sufficient staff facilities in the office of the Director General of Prosecution, the arrangement for directly receiving copies of Criminal cases could not be made. On my request, Government have sanctioned additional staff in my office to facilitate the normal work in my notice including the handling of files relating to conduct of Criminal cases in the High Court In the circumstances, I have made the arrangements to receive copies of Criminal cases in my office with effect from 5. 2. 98 during office hours on all working days. I have informed the President and Secretary of the High Court Advocates Clerks Association, that copies of all Criminal cases maybe directly forwarded to my office with a memo (after the cases are numbered in the registry section of the High Court and before sent to the Bench for admission) and such copies will be entered in the registrar kept in my office and acknowledgment of the same will be noted in the memo with the seal of my office and under my signature or of any person duly authorised by me. I would request your assistance and co-operation in the matter representing the high Court Advocates' Association. It has come to my notice that the Director general of Prosecution has sent a letter dated 5. 2. 1998 to the President of the kerala High Court Advocates' Association, Ernakulam stating that the practice hitherto being followed for serving copies of criminal cases filed in the High court in which State of Kerala is a respondent, on the office of the Advocate general should be discontinued and that the Director General of Prosecution has made arrangement to receive copies of Criminal cases in his office with effect from 5. 2. 1998 and that hereafter copies of all criminal cases may be directly forwarded to the office of the Director General of Prosecution with a memo to be dealt with in the manner indicated in that letter. This is to inform you that as per the provisions contained in R. 2 (v) of the Rules regulating Conditions of Service, Duties, remuneration etc. , of the Advocate General (issued by the Governor in exercise of the powers conferred under Art. 165 (2) and (3) of the Constitution of India)only the Advocate General is competent and authorised to arrange to represent the Government in the High Court in all proceedings, civil or criminal, original or appellate, in which the Government is a parry. It may also be noted that G. O. Ms. 249/96/ Law dated 26. 5. 1996 and G. O. Ms. 117/96/home dated 29. 6. 1996 referred to in letter No. 251/98/dgp dated 5. 2. 1998 of the Director general of Prosecution addressed to you, do not contain any provision authorising the Director General of Prosecution to arrange to represent government in the High Court in Criminal matters. I am writing this letter to bring to your notice that service of copies of criminal case in the High Court on the office of the director General of Prosecution will not amount to proper service of copies of such cases where the Government or Government Officers are respondent.

(3.) THOUGH arguments were advanced by Mr. P. K. Kurien, senior Advocate questioning the validity of certain provisions in the Kerala government Law Officers (Appointment and Conditions of service) and Conduct of cases Rules, 1978, (hereinafter referred to as "the Law Officers' rules")which were framed in exercise of powers conferred by sub-s. (1) of S. 2 of the kerala Public Services Act, 1968 (19 of 1968) we do not propose to go into the correctness of the arguments in this Writ Petition since, as already noticed, the substantial prayer in this Writ Petition is to declare as to which is the proper/ competent authority to receive copies of criminal proceedings. Our attention was drawn to Ss. 24, 321, 378, 407 (5) and 439 of the Code of Criminal procedure (for short 'the Code') and R. 173 of the Rules of the High Court of kerala, 1971 which is complementary to S. 407 (5) of the Code.