ORDER
1. These two revision cases are directed against the order in Crl.M.P. No. 1383 of 1981 in S.T.C. No. 140 of 1981 passed by the VII Metropolitan Magistrate, Hyderabad, filed by the first respondent herein (Mohd. Mustafa).
2. The facts which are not in controversy are that the revision petitioner was appointed as the Assistant Public Prosecutor for conducting the prosecution in any criminal Court situated within the Municipal limits of Hyderabad and Secunderabad in respect of offences punishable under the provisions of the Hyderabad Municipal Corporation Act, 1955 (Hyderabad Act II of 1956), and the rules and bye-laws made thereunder. The petitioner was not a practising advocate nor did he practice in any Court of law. He was an employee in the Municipal Corporation but was appointed under the G.O.Ms. No. 1152 Housing and Municipal Administration and Urban Development (M-A.) dated October 24, 1981 as Assistant Public Prosecutor under S. 25(1) of Cr.P.C., 1973.
3. In S.T.C. No. 140 of 1981 the respondent herein is the accused. He filed Crl.M.P. No. 1383 of 1982 questioning the competency of the petitioner to conduct the prosecution in S.T.C. No. 140 of 1981 on the file of the VII Metropolitan Magistrate, Hyderabad against the accused therein, Several contentions were raised before the Magistrate during the course of arguments. The main contention in support of the petition was that the petitioner was not a practising advocate and as such his appointment as Assistant Public Prosecutor under S. 25 of Cr.P.C., 1973 is illegal.
4. The learned Magistrate accepted this contention of the accused and held that as the petitioner was not having the requisite period of standing as an advocate, he cannot be appointed as the Assistant Public Prosecutor under S. 25 of Cr.P.C. and his appointment as Assistant Public Prosecutor is, therefore, illegal. With regard to the objection that the petition filed under S. 482 Cr.P.C. is not maintainable, the learned Magistrate observed that the petition cannot be rejected merely because the petition was filed under S. 482 Cr.P.C., as wrong mention of provision of law under which it was filed is of no consequence. The learned Magistrate thought that as the appointment of the petitioner is not valid and legal, inasmuch as it is contrary to the provisions of S. 25 Cr.P.C. an objection to that effect can be raised. The learned Magistrate allowed the petition and prohibited the petitioner from conducting the prosecution.
5. Assailing the legality and correctness of the impugned order passed by the Magistrate, Sri Y. Suryanarayana contends that the Magistrate has no jurisdiction to exercise power under S. 482 Cr.P.C. and it is the High Court alone that can invoke the inherent powers under S. 482 Cr.P.C. He also contends that the Magistrate has no power to question the validity of the G.O. appointing the petitioner as the Assistant Public Prosecutor and the accused should impugn the validity of the G.O. appointing the petitioner as Assistant Public Prosecutor by way of writ under Art. 226 of the Constitution but not by filing Crl.M.P. under S. 482 Cr.P.C. He further contends that even on merits the order of the Magistrate is illegal.
6. I am impressed with the argument of Sri Y. Suryanarayana on the question of maintainability of the petition filed on behalf of the accused.
7. It is well settled that the inherent powers contemplated under S. 482 Cr.P.C. can be exercised only by the High Court but not by a Magistrate or even a Sessions Judge. The order appointing the petitioner as Assistant Public Prosecutor under S. 25 Cr.P.C. is an administrative order and not a quasi judicial order. Whether the said order is valid or not, can be examined only by the High Court in exercise of its special jurisdiction conferred on it under Art. 226 of the Constitution. It cannot be examined even by the High Court in exercise of its powers under S. 482 Cr.P.C.
8. Narasimham, J., in Mallikarjunarao v. State ILR (1962) Andh Pra 755 had an occasion to consider the question whether the validity of appointment of a person as a Special Public Prosecutor in a Sessions Court under S. 492 of Cr.P.C., 1898, can be questioned under S. 561-A of Cr.P.C., 1898 (corresponding to S. 482 of Cr.P.C. 1973). The learned Judge observed that even the High Court has no jurisdiction to give a decision under S. 561-A of Cr.P.C., 1898 as to the validity of the order of appointment of a person as Public Prosecutor under S. 492 of Cr.P.C. 1898. The learned Judge observed, “The inherent power of the Court under S. 561-A of the Code cannot be exercised in regard to matters specifically covered by the other provisions of the Code. The appointment of a Special Public Prosecutor is a matter which is expressly provided under the Code under S. 492 and the exercise of the inherent power in respect of such an appointment falls within the interdiction. Further, the order under S. 492 is an administrative order and not a quasi judicial order and therefore not subject to interference under the inherent powers of the courts.”
9. The learned Judge relied upon a decision of the Supreme Court in Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 SC 309 for considering the question whether the G.O. issued by the Government is an administrative order.
10. It is, therefore, clear that where an administrative order was passed by the Government in pursuance of a particular provisions of law, the legality or validity of such an order cannot be questioned in a criminal court even under the provisions of S. 482 of Cr.P.C. 1973 and it can only be questioned by way of writ under Art. 226 of the Constitution of India impleading the Government which issued the G.O. Since the G.O. cited above appointing the petitioner as Assistant Public Prosecutor in pursuance of S. 25 of Cr.P.C., 1973 is an administrative order, an objection as to the legality or validity of such an order cannot be raised in the Criminal Courts. Hence the Magistrate has no jurisdiction to pass the impugned order. The order is, therefore, vitiated by illegality. It is open to the respondent to challenge the impugned G.O. in appropriate writ proceedings. In view of my finding that the order is vitiated by illegality, inasmuch as it was passed by the Magistrate, who has no jurisdiction to pass such an order, I set aside the impugned order. I need not go into the merits of the case.
11. In the result, the two revision cases are allowed.
12. Revisions allowed.