STATE Vs. BRINDAWAN

JUDGEMENT

(1.) This is an appeal against the decision of the Ses. J., of Gwalior acquitting the respondent Bindrawan of the charge preferred against him under S. 292, Gwalior Penal Code. A preliminary objection has been taken on behalf of the respondent that the appeal is not competent as Mr. Kaul who presented the appeal on behalf of the State was not a Public Prosecutor within the meaning of S. 417, Cr. P. C. and his appointment as a Public Prosecutor was not in accordance with the provisions of S. 492 of the Code.

(2.) On 20-11-1948 the Indian Code of Criminal Procedure, 1898, was for the first time brought into force in Madhya Bharat with certain adaptations and modifications by the Madhya Bharat Criminal Procedure Adaptation Ordinance, No. 31 of Samvat 2005. On 26-2-1949 a notification was published in the Gazette with regard to the continuance as Public Prosecutors of all those persons who until that date were appearing in the High Court and in the Courts of Session as Prosecuting Inspectors or Public Prosecutors. The notification reads as follows : Until the date of the issue of this notification, Mr. Kaul used to appear in criminal cases heard by this Court at Gwalior in his capacity as Chief Prosecuting Inspector. The objection of the learned Counsel for the respondent is that under S. 417 an appeal from acquittal can be filed under the direction of the Government either by a person who has been appointed as a Public Prosectuor under S. 492 or by any person acting under the direction of a Public Prosecutor so appointed; that the notification purporting to appoint Mr. Kaul and other Prosecuting Inspectors as Public Prosecutors under S. 492 was not a valid notification and that in filing the appeal Mr. Kaul did not act under the direction of any person who had been appointed Public Prosecutor under S. 492, and that, therefore the appeal was incompetent. It was contended that under S. 492 the appointment of any person as Public Prosecutor may be general or may be with reference to any case or any specified class of cases. But it must in any event be with reference to a local area within which the person so appointed is to exercise the powers of a Public Prosecutor, and that as the notification in question does not mention the local area or areas of the Public Prosecutors, the appointment of the persons referred to in the notification as Public Prosecutors is not valid in Law. On behalf of the State it was contended by the learned Deputy Government Advocate that the words 'in any local area' which occur in S. 492 only qualify the preceding words "for any specified class of cases" and that where the appointment of a person as Public Prosecutor is general without reference to any particular case or class of cases, it is not incumbent on the Govt. to define the local area within which the Public Prosecutor is to exercise his powers. The learned Deputy Govt. Advocate further said that the Govt. Notification No. 200 published in the Govt. Gazette of 6-2-1949 appointing the persons who were Prosecuting Inspectors and Public Prosecutors in the various Courts as Prosecuting Inspectors under S. 492, must be read as appointing them Public Prosecutors for the territorial limits of the Courts in which until the issue of the notification they were appearing as Prosecuting Inspectors or Public Prosecutors and as Mr. Kaul was the Chief Prosecuting Inspector for the High Court, it must be presumed that the local area for which he was appointed Public Prosecutor extended to the whole of Madhya Bharat over which this Court exercises jurisdiction. It was said Mr. Kaul's appointment as Public Prosecutor was in accordance with S. 492, Cr. P. C. and that he was, therefore, competent to file the appeal.

(3.) In my opinion, the objection raised by the learned Counsel for the respondent, as to the competency of the appeal must be upheld. Sub-s. (1) of 492 of the Code is as follows :