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PETITIONER: STATE OF RAJASTHAN

       Vs.

RESPONDENT: SMT. MANBHAR ETC.

DATE OF JUDGMENT12/03/1981

BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. ISLAM, BAHARUL (J)

CITATION:  1981 SCR  (3) 209        1981 SCC  (2) 525  1981 SCALE  (1)828

ACT:      Criminal Procedure  Code, Section  378 (i)-Deputy Govt. Advocate whether  means Public  Prosecutor-Section  24  read with clause  (u) of  section  2-Authority  of  the  Advocate General.

HEADNOTE:      The Advocate  General of  the  Appellant  State  issued notification under  section  94  read  with  clause  (u)  of section 2  of the  Code of  Criminal Procedure  published on 25th of  September, 1974, directing that three categories of various law  officers of the Government including the Deputy Govt. Advocate  shall have  the authority  to act and, plead and argue in all matters covered by the Code.      The High  Court held that the Deputy Govt. Advocate had no locus  standi under  the Code  of Criminal  Procedure  to prefer an application under section 378 thereof for leave to appeal against  an order  of acquittal  recorded by  a lower Court in  a murder  ease. The  respondent contended  that an application under  Section 378  would be  incompetent unless its contents  disclosed that  it was  being presented  by  a Public Prosecutor.      Accepting the appeals ^      HELD : (1) The High Court was not justified in throwing out the application presented to it as one having been filed by a  person incompetent to do so. For the application to be treated as  incompetent, the High Court was bound to enquire into the  status of the person presenting it and could throw it out  only if it was found as a fact that he did not enjoy the status  of a Public Prosecutor. Such a status is for all practical purposes  settled by  the notification  dated 25th September, 1974,  of which  after  its  publication  in  the Government Gazette,  the  High  Court  could  take  judicial notice. [211 G, 212 B-C]      2(i) The  Advocate General  being admittedly  a  Public Prosecutor for the State High Court, he had the authority by virtue of  the provisions  of clause (u) of section 2 of the Code to  issue directions  authorising other persons to act; and once  a person  was so  authorised, he  would be  Public Prosecutor for the purpose of the Code. [211E-F]      (ii) A  Deputy Government  Advocate being  a person  so

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authorised under  the  notification  dated  25th  September, 1974, is  thus a Public Prosecutor having full competence to present an application under section 378 of the Code. [211F- G]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 285 of 1977. 210      From the  Judgment and  Order dated  29.7.1974  of  the Rajasthan High  Court in  D. B.  Cr.  Leave  to  Appeal  No. 839/74.                             AND            Criminal Appeal Nos. 10 & 11 of 1976.      Appeals by  special leave  from the  Judgment and Order dated 29.7.1974 of the Rajasthan High Court in D.B. Criminal Misc. Leave  to Appeal  No. 857/74  and D.B. Criminal Appeal No. 350/74.      Badri Dass Sharma for the Appellant in all the Appeals.      S. Balakrishnan for RR in Criminal Appeal No. 10/76.      The Judgment of the Court was delivered by      KOSHAL, J.  By this  Judgment we shall dispose of three appeals, viz.,  Criminal Appeals  Nos. 10 and 11 of 1976 and Criminal Appeal  285 of  1977 in  each of  one of  which the question arising  for determination  by us  is the same. The first of  them is by Special leave granted by this Court and the other  two are  by certificate granted by the High Court of Rajasthan against its three orders dated 29th July, 1974, all holding that the Deputy Government Advocate of Rajasthan had no  locus standi  under the  Code of  Criminal Procedure thereinafter  referred   to  as   the  Code)  to  prefer  an application under section 378 thereof for leave to appeal on behalf of  the State  against an order of acquittal recorded by a lower court in a murder case.      2. The  relevant provisions of the Code are sub-section (1) of section 378, sub-section (1) of section 24 and clause (u) of  section 2.  The same  are reproduced  below in  that order :-           "378(1) :  Save  as  otherwise  provided  in  sub-      section (2)  and subject  to  the  provisions  of  sub-      sections (3)  and (5), the State Government may, in any      case, direct the Public Prosecutor to present an appeal      to the  High Court  from an original or appellate order      of acquittal  passed by  any Court  other than  a  High      Court or  an order  of acquittal passed by the Court of      Session in revision.           24. (1)  :  For  every  High  Court,  the  Central      Government  or   the  State   Government  shall,  after      consultation with  the High  Court,  appoint  a  Public      Prosecutor and may also appoint 211      one  or   more  additional   Public  Prosecutors,   for      conducting in  such Court,  any prosecution,  appeal or      other proceeding an behalf of the Central Government or      State Government, as the case may be.           2(u)  :   "Public  Prosecutor"  means  any  person      appointed under  section 24,  and includes  any  person      acting under the directions of a Public Prosecutor."      It will  be seen  that under sub-section (1) of section 378, only  a Public  Prosecutor can present an appeal to the High Court  from an original or appellate order of acquittal passed by  any court  subordinate to  the High  Court, if so directed by  the State Government. Again, for a person to be

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a Public  Prosecutor, it  is necessary  that  he  is  either appointed as  such  under  section  24  or  acts  under  the directions of a Public Prosecutor so appointed.      3  Learned  counsel  for  the  State  has  referred  to Notification No.  F. 32(1) Judl/74 dated 30.3.1974 issued by the State  Government of  Rajasthan appointing  the Advocate General of the State to be a Public Prosecutor under section 24 of  the Code.  Another notification on which he relies is Notification No.  P-36/AG/D dated  1.4.74 published  on 25th September, 1974  issued by  the  then  Advocate  General  of Rajasthan under section 24 read with clause (u) of section 2 of the  Code and  directing that three categories of various Law  Officers   of  the   Government  including  the  Deputy Government Advocate  shall have  the authority to act, plead and argue  in all  matters covered  by the  Code. These  two notifications read together in our opinion, clinch the issue in  favour   of  the   State.  The  Advocate  General  being admittedly a  Public Prosecutor  for the State High Court he had the  authority by virtue of the provisions of clause (u) of section  2 of  the Code  to issue  directions authorising other persons  to act;  and once a person was so authorised, he would be a Public Prosecutor for the purpose of the Code. A Deputy  Government Advocate  being a  person so authorised under the  notification dated  25th  September,  1974  above mentioned is thus a Public Prosecutor having full competence to present  an application under section 378 of the Code. In this view of the matter, the High Court was not justified in throwing out  the application  presented to it as one having been filed by a person incompetent to do so.      4. Mr.  Balkrishnan, learned Counsel for the respondent in Criminal  Appeal No. 10 of 1976 has contended that as the Deputy Government  Advocate did  not specify  his status  as Public Prosecutor 212 in  the   application  rejected  by  the  High  Court,  that application could  not be regarded as having been filed by a competent  person.   According  to   learned   counsel,   an application under  section 378  would be  incompetent unless from its contents disclosed that it was being presented by a Public Prosecutor.  We do not agree with this contention and that for  two reasons. Firstly, no principle of law has been brought to  our notice  that if  the proper designation of a person does  not appear  on a document authenticated by him, that document  would lose its authenticity, even though that person factually holds such designation. For the application to be  treated as  incompetent, the  High Court was bound to enquire into  the status  of the person presenting it and to throw it  out only if it was found as a fact that he did not enjoy the  status of  a Public  Prosecutor.  Secondly,  such status  is   for  all  practical  purposes  settled  by  the notification dated  25th September, 1974 of which, after its publication in  the Government Gazette, the High Court could take judicial  notice. Had that been done, the problem would not have arisen as the Deputy Government Advocate would have been found to be holding the status of a Public Prosecutor.      5. For  the reasons  stated, we  accept all  the  three appeals and  set aside  the impugned orders with a direction that the  applications made  under section  378 of  the Code shall be heard and decided by the High Court on merits. N.K.A.                                    Appeals allowed. 213