Loganathan vs Raj Mohan and Another

David Annoussamy, J.—This is a revision petition against an order rejecting an objection raised by the complainant in respect of the appearance of the Public Prosecutor for the defence.

A complaint was filed by the revision petitioner against the Railway Protection Force Sub Inspector, for an offence under S.500, I.P.C. The case was taken on file and the Assistant Public Prosecutor appointed by the Central Government for conducting cases arising out of Railway Property Unlawful Possessston Act and who also happens to be a member of the Railway Protection Force, filed a memo to appear on behalf of the accused. The same was objected to by the complainant for several reasons, namely, that being a Public Prosecutor, he cannot appear on behalf of the accused, that being a Central Government Servant, he is not entitled to practise, and therefore, cannot appear for the accused, that the permission of the court as required under S.2(q) of the Crl.P.C., was not obtained, and that as per Rr.69 and 70 of the Crl. Rules of Practice, he cannot be permitted by the Court to appear.

The trial Court overruled the objections observing that the Additional Public Prosecutor was appearing only as a private practitioner in this case that he was found to be a fit person as per the yardstick prescribed in Rr.69 and 70 of the Criminal Rules of Practice, and that though prior permission was not obtained from the court, ex post facto permission was granted by the court. Against that judgment dated 12.11.1982 the present criminal revision petition is filed.

Learned Counsel appearing for the Additional Public Prosecutor was fair enough to state that the case was closely covered by previous decisions and therefore, the order of the lower Court was wrong.

In support of his contention, Learned Counsel appearing for the revision petitioner placed before me two decisions, one decision of this Court in Kannappa v. Abbas and others 1985 L.W. Cri. 159 and another of the Supreme Court in Sunil Kumar Pal Vs. Phota Sheikh and Others, . It is obvious that the Assistant Public Prosecutor as such cannot appear on behalf of the accused. It is also obvious that the Assistant Public Prosecutor having suspended his practice, cannot appear as defence counsel. The trial court has admitted him as a private pleader. A private pleader as per the definition of R.69A of the Criminal Rules of Practice is a person other than the legal practitioner. The Assistant Public Prosecutor who is a legal practitioner and who has only suspended practice cannot be considered as a person other than legal practitioner, so as to appear with the mantle of a private pleader within the meaning of R.69A of the Criminal Rules of Practice. Therefore the trial court was obviously wrong in considering that the Assistant Public Prosecutor could appear as private pleader and as such, the order has to be set aside.

In the result, the revision petition is allowed and the order is set aside. The objection raised by the complainant for the appearance of the Assistant Public Prosecutor on behalf of the accused is acceptable.