BENOY CHAKRAVARTY Vs. THE STATE

JUDGEMENT

(1.) THIS Rule is at the instance of the complainant petitioner, Benoy Chakraborty against an order dated the 27th February. 1971, passed by Sri H. S. Barari. Additional Chief Presidency Magistrate, Calcutta refusing to issue process against the accused opposite -parties Nos. 2 and 3. in the absence of a sanction under Section 197(1) of the Code of Criminal Procedure, in case No. G/783 of 1970 under Section 302/34 I. P. C.

(2.) THE facts can be put in a short compass. On the 22nd December. 1970, the complainant -petitioner filed a petition of complaint in the court of the Additional Chief Presidency Magistrate, Calcutta under Sections 302/34. 201 and 379 I. P. C. against six named accused persons including the opposite -parties Nos. 2 and 3, and some others, whose names were not known but could be identified. The Additional Chief Presidency Magistrate examined the complainant and sent the matter to Sri R. P. Roy Chowdhury, Presidency Magistrate, 11th Court. Calcutta for a judicial enquiry and report. Several witnesses were examined by the learned enquiring magistrate and some documents were produced at the judicial enquiry and the enquiring magistrate, in his report dated the 18th February, 1970 held that a prima facie case under section 302/34 I. P. C. was made out against all the six accused persons and further held that no sanction under Section 197 (1) of the Code of Criminal Procedure was required for prosecuting the accused Nos. 1 and 6 who are the opposite parties Nos. 2 and 3 in the present Rule. After certain dates the Additional Chief Presidency Magistrate. Calcutta upon hearing the learned lawyer for the prosecution on certain points of law and on perusing the report of the judicial enquiry ultimately by his order dated -the 27th February, 1971, issued process under Section 302/34 I. P. C. against the accused Nos 2 to 5 but refused to issue process against the accused Nos. 1 and 6 in the absence of a requisite sanction under Section 197 (1) of the Code of Criminal Procedure. The order refusing to issue process against the opposite parties Nos. 2 and 3 has been impugned and forms the subject matter of the present Rule.

(3.) THE first point raised by Mr. Chatterjee is an intriguing one relating to the locus standi of the Advocate -General to appear on behalf of the opposite -parties Nos. 2 and 3 in a criminal case wherein the State is also appearing as the opposite -party No. 1. The first prong of his submission in this context is based on the provisions of sections 492. 494 and 495 of the Code of Criminal Procedure but it is difficult to understand as to how the same supports his proposition. Section 492 (1) relates to the powers of the State Government to appoint Public Prosecutor generally or for a specific case and under Sub -section (2). the District Magistrate or subject to his control the S. D. M. may in the absence of such an 'appointment or in the absence of the appointed Public Prosecutor, appoint any other person, as enjoined therein, to be the Public Prosecutor for a particular case. Section 495 of the Code refers to permission granted by the trying or enquiring magistrate to conduct prosecutions by any person other than an officer of police below the rank to be prescribed by the Government on this behalf. The Advocate -General however has been exempted under, this provision Section 494 also does not apply to the Advocate -General who has the right to enter Nolle Prosequi under Section 333 of the Code without the consent of the court - a right which belongs to the Attorney -General in England. In India the administration of justice is a state subject and so the power is not conferred on the Attorney -General. The second prong of Mr. Chatterjee's submissions is based on Clause (2) of Article 165 of the Constitution of India, whereby the duties of the Advocate -General are laid down. Nothing is contained in those provisions as such, to prevent the Advocate -General's appearance in such cases. The next prong of his contention is based on the observations made in D. Basu's 'Commentary on the Constitution of India' (5th Edn) Volume 3 at page 273 relating to the disabilities of the Advocate -General. The disabilities have been stated therein as follows : 'By reason of his office, the Advocate -General is (according to the Rules in force in West Bengali debarred from - (a) Advising or holding briefs against the State; (b) defending accused persons in criminal prosecution; (c) Advising private parties in cases in which he is likely to be called on to advise Government, (d) accepting appointment as Director in any company, without sanction of the Government.' Mr. Chatterjee pinpointed the provisions contained in Clause (b) and contended that an appearance on behalf of the opposite -parties Nos. 2 and 3 in this Rule is tantamount to 'defending accused persons in criminal prosecution', more so when the State is also a party and has put in appearance. Mr. Dilip Kumar Dutt joined issue and submitted that (a) the two opposite parties are no longer accused having not been summoned at all and (b) they are officers of the State involved in a case while discharging their official duty and as such they are entitled to be defended at the cost of the State and by counsel appointed by the government. The interest according to Mr. Dutt is not therefore adverse. Mr. Dutt next submitted that the aforesaid observations made in D. Basu's 'Commentary on the Constitution of India' are apparently based on the old provisions of the legal Remembrancers Manual since amended materially. He referred to Section 2, Sub -section (7) in Chapter I of the amended Legal Remembrancer's Manual, 1930 (Vol. 1) wherein the old provisions in Clause (ii) of Sub -section (8) of the Manual have been considerably extended by amendment as follows; 'Defending accused persons in criminal prosecutions; unless specially authorized by the Governor. (e. g. in a private prosecution in which government is not interested). Mr. Dutt finally submitted that the Government has specifically authorised the learned Advocate -General to appear for the two opposite -parties as would be borne out by the sanction of the Legal Remembrancer, West Bengal, recorded in the requisite file and if called upon to do so. undertook to produce it before the court.