M.D. Sigamani vs Vidyasagaran and Others

N. Krishnaswamy Reddy, J.—This revision petition has been filed by the petitioner, M. D. Sigamani, against the order of the District

Magistrate, Coimbatore, permitting the Additional Public Prosecutor, Coimbatore, Sri R. S. Gopal to appear for accused 13, and Assistant Public

Prosecutor-I for the Jail Department accused and Assistant Public Prosecutor-II for the other police accused, in C.C. 145 of 1966 on his file. The

accused in the said case appear to be officials.

So far as the appearance of the Additional Public Prosecutor is concerned, I do not think that any permission is required for him to appear

before the District Magistrate, if the Government permit him to do so during the period he serves as Additional Public Prosecutor for the State. An

Additional Public Prosecutor by virtue of his position as a Public Prosecutor appointed by the Government for a specific period and for specific

Courts does not cease to be an Advocate. There is no prohibition for an Advocate to appear for any party in any case if he can satisfy the Court

before which he appears that he is an Advocate as defined under the Advocates Act.

So far as the Assistant Public Prosecutor-I and Assistant Public Prosecutor-II are concerned, the position is different. They are full-time

Government servants. During the period they are under the employ of the Government, though they are qualified to be Advocates, they cease to be

Advocates, namely, that their practice as advocates is suspended during that period. It has been pointed out by this Court in an earlier decision in

Crl. R.C. Nos. 1290 of 1965 and 1049 of 1966 that the Assistant Public Prosecutors, who are full-time Government servants, cannot appear in

any case for any person as practising Advocate since their practice is suspended, and it has also been pointed out that they cannot appear on the

ground that they are authorised by the Collector or the Commissioner of Police as the case may be, to appear for the accused in a private case. It

is clear from the definition of Pleader in clause 2 of Section 4(1)(r) of the Criminal Procedure Code that a Pleader includes any person appointed

with the permission of the Court to act in such proceeding. Therefore there cannot be a bar for the Assistant Public Prosecutors who came under

the category of persons mentioned in Clause (2) of Section 4(1)(r), Criminal Procedure Code for appearing in any case if the Court before whom

they seek permission to act in any specific proceeding gives such permission. In the same decision, it has been made clear that the Court giving

permission under Clause (2) of Section 4(1)(r), Criminal Procedure Code, must apply its mind in each individual case before permitting such

persons to appear and also give reasons therefore .It appears that the decision in Crl.R.C. Nos. 1290 of 1965 and 1049 of 1966 was brought to

the notice of the District Magistrate, Coimbatore. In spite of this, I do not find anywhere from the records as to whether the District Magistrate has

applied his mind in giving permission to the Assistant Public Prosecutor-I and Assistant Public Prosecutor-II to appear for the defence. The Court

should not be merely persuaded by the fact that the Assistant Public Prosecutors were authorised by the Government to appear in the case, but

should consider independently taking into consideration the all-round circumstances of the particular case as to why such permission should be

granted to the Assistant Public Prosecutors, who are full-time Government servants. The Court must also give reasons for giving such permission.

This matter is sent back to the District Magistrate, Coimbatore, to re-consider whether the Assistant Public Prosecutors-I and II should be

permitted to appear for the defence. In doing so, as pointed out by me, he should not be influenced by the fact that the Collector or the

Government had authorised the Assistant Public Prosecutors to appear for the accused. But he must come to his conclusion independently whether

such permission should be granted, and if so, should give reasons therefore in writing. The District Magistrate will dispose of the matter according

to the directions given in this order. Orders passed accordingly.