Holding

A Deputy Government Advocate authorized by the Advocate General under the 25 September 1974 notification is a Public Prosecutor within the meaning of the Criminal Procedure Code and is competent to present an application under section 378.

Summary

The State of Rajasthan sought to file an application under CrPC section 378 for leave to appeal an acquittal in a murder case, which was filed by a Deputy Government Advocate (DGA). The Rajasthan High Court held that the DGA lacked locus standi as a Public Prosecutor and dismissed the application. On appeal, the Supreme Court examined the notifications issued under section 94 and section 24 read with clause (u) of section 2, which authorized the Advocate General to direct certain law officers, including the DGA, to act as Public Prosecutors. The Court held that once authorized, the DGA became a Public Prosecutor for the purposes of the Code and could validly file the section 378 application. It also ruled that the application need not expressly state the advocate’s status, and the High Court should have taken judicial notice of the notification. Consequently, the Supreme Court allowed the appeals, set aside the High Court’s orders, and directed that the applications be heard on their merits.

Issues considered

Whether a Deputy Government Advocate, authorized by a notification under the Criminal Procedure Code, qualifies as a Public Prosecutor for the purpose of filing an application under section 378.
Whether the application under section 378 must expressly disclose that it is filed by a Public Prosecutor.

Legislation cited

Code of Criminal Procedure, 1973s. 24, s. 2(u), s. 378(1)

Subjects

Public ProsecutorDeputy Government Advocatelocus standisection 378Criminal Procedure Codejudicial noticenotification

Judgment

209

STATE OF RAJASTHAN A
v.
SMT. MANBHAR ETC.

March 12, 1981
B
[A.D. KoSHAL AND BAHARUL ISLAM, JJ.J

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.
(

~--- 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
c
_).
_ 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 D
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 E
HELD : (I) The High Court was not justified in throwing out the appli-
cation 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 Prose-
cutor. Such a status is for all practical purposes settled by the notification dated F
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 pur- G
pose of the Code. [21JE-F]

(ii) A Deputy Government Advocate being- a person so 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]
H
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
285 of 1977.
210 SUPil.EME COURT REPORT (1981] 3 S.C.R.

A
From the Judgment and Order dated 29.7.1974 of the
Rajasthan High Conrt in D. B. Cr. Leave to Appeal No. 839/74.

AND

Criminal Appeal Nos. I 0 & I 1 of 1976.
B
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 AppelJant in all the Appeals.
c 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 Crimi-
D nal 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 Govern-
ment Advocate of Rajasthan had no locus standi under the Code of •
E 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 releunt provisions of the Code are sub-section (I) of
F 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 proTided in sub-section (2) and
subject to the provisions of sub-sections (3) and (5), the State

G
Government may, in any case, direct the Public Prosecutor to y
present an appeal to the High Court from an original or
appellate order of acqtiittal passed by any Court other than a
High Court or an order of acquittal passed by the Court of
Session in revision.
H 24. (J) : For every High Court, the Central Government
or the State Govefllment shall, after consultation with the
High Court, appoint a Public Prosecutor and may also appoint

•
RAJ AS THAN v. SMT. MA NB HAR ETC. (Kasha!, J.) 211

one or more additional Public Prosecutors, for conducting in A
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 actin~ under the B
directions of a Public Prosecutor."

It will be seen that under sub-section (I) 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 the1High Court, if so directed by the State Govern-
ment. Again, for a person to be a Public Prosecutor, it is necessary
c
that he is either appointed as suc11 under section 24 or acts under
the directions of a Public Prosecutor so appointed.

3 Learned counsel for the State has referred to Notification
D
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 l.4.74
published on 25th September, 1974 issued by the then Advocate
General of Rajasthan under section 24 read with clause (u) of
E
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 Advo-
cate General being admittedly a Public Prosecutor for the State High
F
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 G
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. IO of 1976 has contended that as the Deputy
H
Government Advocate did not specify his status as Public Prosecutor
212 SUPREME COURT REPORTS [1981) 3 S.C.R.

A 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 Puplic Prosecutor. We do not agree with this
contention and that for two reasons. Firstly, no principle of law
B 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 Prose- _J
C cutor. Secondly, such status is for all practical purposes settled by
the notification dated 25th September, 1974 of which, after its ~
publication in the Governmeut Gazette, the High Court could take
judicial notice. Had that been done, the problem would hot have
arisen as the Deputy Government Advocate would have been found
to be holding the status of a Public Prosecutor.
D
5. For the reasons stated, we accept all the three appeals and
set aside the impugned or'ders with a direction that the applications
made under section 378 of the Code shall be heard and decided by
the High Court on merits,

E N.K.A. Appeals allowed.