State of Rajasthan v. SMT. Manbhar et al.

Case Details & Bench

Court: High Court
Hon'ble Judges: A. D. Koshal
Baharul Islam
Judgment Date: 1981-03-12
Court Decision / Holding: Appeals allowed; High Court’s orders set aside and the applications under section 378 to be heard on merits.
Final Disposition: Appeals allowed; High Court’s orders set aside; applications to be heard on merits for CrPC section 378 appeal against acquittal.

Parties to the Case

Appellants / Petitioners

State of Rajasthan

Respondents

SMT. MANBHAR et al.

Legal Representation & Advocates

Counsels for Petitioners

• Badri Dass Sharma

Counsels for Respondents

• S. Balakrishnan

Case Synopsis & Summary

State of Rajasthan v. SMT. Manbhar et al. concerns whether a Deputy Government Advocate could file an appeal under Section 378(1) of the Code of Criminal Procedure against an order of acquittal in a murder case. The Rajasthan High Court had held that the Deputy Government Advocate lacked locus standi to invoke the appellate remedy on behalf of the State, because under Section 378(1) only a Public Prosecutor may present an appeal if directed by the State Government. The State contended that through two notifications—the Advocate General’s appointment as Public Prosecutor under Section 24 and the September 25, 1974 notification directing Deputy Government Advocates to plead and argue under Clause (u) of Section 2—these officers become Public Prosecutors for CrPC purposes. The Court held that the Advocate General, being a Public Prosecutor for the State High Court, could by virtue of Clause (u) authorize others to act, and once so authorized, such persons are Public Prosecutors for CrPC. Therefore the Deputy Government Advocate is a Public Prosecutor with full competence to present a Section 378 application. The High Court’s dismissal on the basis of lack of locus standi was unjustified. The Court allowed all three appeals and directed the High Court to hear the applications on merits. The Court also rejected the respondents’ contention that the applicant’s status must be expressly disclosed in the filing, holding that status is established by the notification and can be inferred by judicial notice.

Provisions of Law Cited

CrPC Section 378(1)CrPC Section 24(1)CrPC Section 2(u) (clause (u))

Legal Doctrines & Maxims

Locus standi

Submissions & Arguments

Contentions of Appellants / Petitioners

The Deputy Government Advocate, authorised by the notification dated 25 September 1974 under clause (u) of section 2, is a Public Prosecutor for CrPC purposes and therefore fully competent to present an application under section 378 for leave to appeal against an order of acquittal. The High Court’s requirement that the status of the presenter be explicitly stated is contrary to the statutory framework and the notification’s effect.

Contentions of Respondents

The applicant’s status as Public Prosecutor must be explicit in the filing; otherwise the application cannot be regarded as filed by a competent person. The Deputy Government Advocate’s designation was not disclosed in the application, raising questions about locus standi.

Extracted Judgment Text

Exact text extracted from official judgment records.

( ~-- __ _)._ 209 STATE OF RAJASTHAN _v._ SMT. MANBHAR ETC. _March_ _12,_ _1981_ [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 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. A B # c 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 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. [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] CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 285 of 1977. ###### F G H A ###### B # c D E ###### F G 210 SUPil.EME COURT REPORT (1981] 3 S.C.R. 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. 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. _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 releunt provisions of the Code are sub-section (I) 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 proTided 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 acqtiittal passed by any Court other than a High Court or an order of acquittal passed by the Court of Session in revision. #### _y_ 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 that he is either appointed as suc [1] 1 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 l.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. IO of 1976 has contended that as the Deputy Government Advocate did not specify his status as Public Prosecutor ## c D E F G H 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 D 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. _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.