JUDGMENT
N.D. Patnaik, J.
1. In this case, the Additional Public Prosecutor attached to the Court of the Second Additional Sessions Judge, Visakhapatnam, has authorised Sri S.L. Prasad, Additional Public Prosecutor of another Court, to conduct the prosecution in Sessions Case No. 17 of 1990 on the file of the Second Additional Sessions Judge, Visakhapatnam. The accused has filed a memo in that Court objecting to the prosecution being conducted by Sri S.L. Prasad. The learned Second Additional Sessions Judge, Visakhapatnam, has stated in his order dated 11-10-1990 that, in view of the memo filed by the Additional Public Prosecutor and a petition by the advocate for the accused, the memo is closed. This revision case is filed against the said order.
2. The contention of the learned counsel for the petitioners is that when there is a Public Prosecutor attached to the Court of the Second Additional Sessions Judge, Visakhapatnam, he alone shall conduct the prosecution in the cases arising in that Court, but he cannot delegate that function to any other Advocate. His further contention is that, if for any reason, the Public Prosecutor is incapacitated from conducting the prosecution, the State Government has, to appoint a Special Public Prosecutor under Sub-section (8) of Section 24 of the Code of Criminal Procedure.
3. Section 225 of the Code of Criminal Procedure lays down that in every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor. Public Prosecutor is defined in Section 2 (u) of the Code of Criminal Procedure as any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor”. Relying on this definition, the learned Additional Public Prosecutor has contended that the definition “Public Prosecutor” includes any person acting under the directions of a Public Prosecutor, and so, the person who is acting under the directions of the Public Prosecutor also well come within the definition.
4. Then the question to be considered is whether the Public Prosecutor can authorise any person to conduct the prosecution abdicating his functions, as contended by the learned counsel for the petitioner. Section 301 (2) of the Code of Criminal Procedure places a further restriction and says that if any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in-charge of the case, shall conduct the prosecution and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case. Therefore, this provision lays down that in cases where a party engages an advocate, it is only the Public Prosecutor that has to conduct the prosecution; but the pleader instructed by the party can only act under the directions of the Public Prosecutor. The learned counsel for the petitioner has brought to my notice two decisions of this Court. In re Bhupalli Mallaiah, a Division Bench of this Court has pointed out that the definition “Public Prosecutor” in Section 4 Sub-section (1) Clause (t) of the old Code of Criminal Procedure has got to be read with Section 493 of the Code of Criminal Procedure which leads to the inevitable conclusion that any person engaged and briefed by a private person in the case, to instruct the Public Prosecutor can only so instruct and act under the directions of the Public Prosecutor and in such a case the prosecution shall be conducted by the Public prosecutor himself. In another case reported in Ramakistiah v. State of A.P., another Division Bench of this Court has pointed out that, where the circumstances indicated that the Public Prosecutor had entirely effaced himself and given up his charge of the case to the counsel appearing for the private complainant leaving the entire conduct of the case to him, there was an irregularity in the trial which prejudiced the accused. In these two cases, as could be seen from the facts, the question was whether the counsel engaged by a private party can conduct the prosecution. As already referred to above, Section 301 Sub-section (2) of the Code of Criminal Procedure provides that it is only the Public Prosecutor that can conduct the prosecution and the pleader so instructed can only act under his instructions, but he cannot conduct the prosecution. So, there is a bar as regards the conduct of the prosecution by a counsel engaged by a private party independently. But it is not so in the present case. The counsel to whom the Public Prosecutor has authorised is not the counsel engaged by the complainant. He is an Additional Public Prosecutor attached to another Court. May be for some reasons, the Additional Public Prosecutor of the Second Additional Sessions Judge’s Court could not conduct the prosecution and authorised him. Section 2 (u) of the Code of Criminal Procedure says that Public Prosecutor includes any person acting under the directions of a Public Prosecutor. Therefore, Sri S.L. Prasad, Additional Public Prosecutor of another Court, who has been authorised by the regular public prosecutor to conduct the prosecution, can only-act under the directions of the regular Public Prosecutor. It is further contended that as far as Second Additional Sessions Judge’s Court is concerned, Sri S.L. Prasad is only an ordinary advocate. But it may be noted that he is not engaged by any party, but is authorised by the Public Prosecutor of that Court to conduct the case. In this view of the matter, there is no irregularity in the regular Public Prosecutor directing Sri. S.L. Prasad, Additional Public Prosecutor of another court, to conduct the prosecution. But it is clarified that he shall conduct the prosecution only under the directions of the regular Public Prosecutor of that court.
5. The learned counsel for the petitioner has expressed an apprehension that in all cases this may become a practice and the regular Public Prosecutors may authorise somebody else to conduct the prosecution. It is hoped that the regular Public Prosecutors authorise some other Public Prosecutors to conduct prosecutions on their behalf only where, on account of some reason, they are unable to attend the Court or conduct the prosecution in a particular case.
6. With the above observations, the Criminal Revision Case is dismissed.