ANTONY Vs. STATE OF KERALA

JUDGEMENT

(1.) This Cr.M.P. has been filed by the respondent in the appeal challenging the maintainability of the appeal. The appeal is filed under S.378(1) Cr.P.C. against the order of acquittal by the Special Public Prosecutor.

(2.) The main contention urged by the petitioners' counsel is that the appeal filed by a Special Public Prosecutor under S.378(1) Cr.P.C. is not maintainable and under that Section an appeal to the High Court from an order of acquittal could be filed only by a Public Prosecutor pursuant to a direction given by the Government. The argument proceeds; the Special Public Prosecutor being not a Public Prosecutor, the appeal has been filed by an incompetent person and therefore, the same is liable to be struck off from the file. It is pointed out by the petitioners counsel that Public Prosecutor mentioned under S.378(1) Cr.P.C. could only mean Public Prosecutor appointed under sub-section (1) of S.24 of the Code and a Special Public Prosecutor appointed under sub-section 8 of S.24 of the Code is not a Public Prosecutor even though the definition of Public Prosecutor as given under S.2(u) of the Code would take in a special Public Prosecutor also within the definition of Public Prosecutor. S.378(1) of the Code is a safeguard guaranteed against unnecessary filing of the appeal against an accused who had been acquitted by a court and 'Public Prosecutor' mentioned under S.378(1) of the Code is the Public Prosecutor appointed for the High Court under sub-section (1) of S.24 of the Code.

(3.) The learned counsel for the respondent contended that the appeal has been filed by the Special Public Prosecutor as specifically directed by the Government and the Special Public Prosecutor appointed under sub-section (8) of S.24 of the Code is a Public Prosecutor and as such there is competency for him to file an appeal under S.378(1) Cr.P.C. It is also pointed by the respondent's counsel that the definition of "Public Prosecutor" takes in Special Public Prosecutor also and going by the definition of the term "Public Prosecutor" there is no inhibition for the Special Public Prosecutor to file an appeal under S.378 (1) provided he has been so directed by the Government.