JUDGMENT
Thulasidas, J.
1. In the appeal filed by the accused, the Advocate General filed Memo of appearance on behalf of the State of Kerala. The office pointed out that the memo of appearance by the Advocate General is not in order that he cannot appear for the State in view of the decision in State of Kerala v. Krishnan 1981 Ker LT 839 : 1982 Cri LJ 301. But then it was clarified in reply that the above decision is inapplicable since it was in connection with the question about the presentation of an appeal against acquittal Under Section 378, Cr.P.C. that the present case is not and further it was also pointed out that under Sub-rule (vi) of Rule 2 of the Rules framed under Article 165(2) and (3) of the Constitution, the Advocate General has a duty to represent the government in the High Court in proceedings of importance, civil or criminal, original or appellate, in which the Government is a party and he has been specifically directed to appear. The matter has come before us in view of the unresolved question about the competence of the Advocate General to appear for State in a Criminal Appeal, where the Government has specifically authorised him even though there is a Public Prosecutor appointed in terms of Section 24 of the Code of Criminal Procedure.
2. The appeal is still pending. It was in connection with the application the appellant/ petitioner filed for bail that the rival contentions between the Advocate General and the Public Prosecutor surfaced. On the date the petition was heard, it was represented that the dispute between them was resolved under an ad hoc arrangement that has however left open the fundamental question raised here, that we felt should be settled, so that the controversy is laid to rest.
3. We heard arguments.
4. Under Article 165(1): “The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate General for the State.” Under clause (2):
It shall be the duty of the Advocate General to give advice to the Government of the Slate upon such legal matters, and to perform such other duties of a legal character, as may from lime to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.
Clause (3) is not relevant and therefore is omitted. In pursuance of the duties conferred Under Clauses (2) and (3) of the Constitution, the Governor has formulated rules regarding duties, functions, remunerations etc. of the Advocate-General and Addl. Advocate General of the State. Rule (2) provides for the duties and functions of the Advocate General:
(i) omitted
(ii) omitted
(iii) to prepare brief for use of counsel engaged to represent Government in all proceedings, civil and criminal, original or appellate, before the Supreme Court to which Government is a parly.
(iv) omitted
(v) to arrange to represent Government in the High Court in all proceedings, civil or criminal, original or appellate, in which Government is a party.
(vi) to represent Government in the High Court in proceedings of importance, civil or criminal, original or appellate, in which Government is a party when specially directed by the Government:
Note : The Advocate General will ordinarily be instructed by a Government Pleader or Public Prosecutor:
(vii) to assist the High Court in cases of special importance or difficulty in which the Advocate General’s appearance is required by the High Court.
(viii) to represent Government in proceed ings civil or criminal, original or appellate, in which the Government is a party, in Courts subordinate to the High Court when specially directed,
Note : The Advocate General will ordinarily be instructed by a Government Pleader or Public Prosecutor.
(ix) omitted.
(x) omitted.
(xi) to give advice to the Law Officers attached to the High Court in all difficult cases handled by them and on which they may consult him and conversely to call upon them when to assist him incases in which he appears and also to supervise arid controltheir work.
(xii) to report to Government periodically about the progress of the proceedings in which Government is a party in the High Court or the Supreme Court and in such proceedings where the Advocate General has been directed specially t6 appear under Items (viii) and (ix).
(xiii) to report to Government the results of all proceedings mentioned in Items (iv) to (ix) promptly.
(xiv) in particular, in the said proceedings whenever a decision adverse to Government has been rendered to report to Government immediately and advice government about the further action to be taken, to apply on the very date of the decision for a copy thereof, to obtain the same expeditiously and to forward the copy to Government with this further advice.
(xv) to report to Government about the advisability of pursuing the matter further by way of appeal or otherwise in such cases where decisions have been rendered against Government and in such other cases where he considers it necessary to do so.
(xvi) to procure copies of any judgment or order passed by the High Court which may be required by Government or may contain comments on any action taken by Government or may contain any finding or comments which, in his opinion, should be brought to the notice of Government.
(xvii) omitted
(xviii) to perform such other duties of a legal character as may, from time to time, be referred or assigned to him by the Governor.
(xix) to discharge the functions conferred on him by or under the constitution or any other law for the time being in force.
Under Rule (2) of Part III:
The Advocate General may hot withdraw from a prosecution which he has been directed by Government to originate without first consulting the Department of Government which directed him to originate it nor may be withdrawn from a prosecution originated by him Suo Motu without first consulting Government in the Law Department.
5. Appointment of Government Officers is made under the provisions of the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978, formulated in exercise of the powers conferred by Sub-section (1) of Section 2 of the Kerala Public Service Act. l468 Rule 3 of Chapter II provides for the appointment of Government officers in the High Court and among them are the Public Prosecutor, Senior Government Pleader Government Pleader and Liaison officer. Under Rule 4, Government has to make appointment of Government Officers of the High Court from a panel of names of advocates furnished by the Advocate General and that in the case of the Public Prosecutor it shall be in consultation with the High Court, as required by Clause (1) of Section 24, Cr.P.C. Rule 19 in Chapter III states:
1. omitted.
2. omitted.
3. omitted.
4. assist the High Court: whenever required by the High Court in cases of special importance.
5. assist the Advocate General or the Additional Advocate General whenever such assistance is required by him.
6. instruct the Advocate General or the Additional Advocate General in proceedings in which the Advocate General or the Addl. Advocate General is required to appear on behalf of the Government.
7. in difficult cases, especially in cases where a question relating to the policy of the Government is involved, obtain the opinion of Advocate General or the Additional Advocate General before deciding-the strategy for the defence or prosecution of such cases.
8. omitted.
9. omitted
10. attend to case work and other duties in accordance with such instructions as may be given by the Advocate General and the Government from time to time.
11. attend to such other work as may from time to time, be assigned to him by the Advocate General or the Government.
Note :– The Public Prosecutor shall be responsible for the conduct of all criminal cases. The Senior Government Pleaders and Government Pleaders appearing in criminal cases shall act under and in accordance with the directions of the Public Prosecutor.
Under Rule 21 : —
21. All Government Officers in the High Court shall abide by all ordersand instructions that may be issued by the Advocate General from time to time in matter of conduct of cases and shall also follow such procedure in relation there to as may be laid down in that behalf.
6. That the Government is well aware of the primacy of the Advocate General vis-a-vis the Public Prosecutor in criminal matters seems to be clear from the provisions in Chapter VIII of the above Rules. Certain circulars also have been issued by the Government in this regard. Pursuant to a letter of the Director General of Prosecutions dated 3-9-1983, the Government issued a Circular dated 29-9-1983, by which the difficulties faced in the conduct of criminal cases in High Court due to delay in furnishing relevant records in time to the office of the Advocate General had been pointed out and the concerned officers in the districts have been directed to abide by the relevant rules strictly in the matter of furnishing records to the office of the Advocate General. By another Circular No. 20335/B3/83/Law dated 16-1-1984, issued after the Chief Secretary’s meeting with the Advocate General and Secretaries to the Government held on 24-9-1983, the District Government Pleaders and Public Prosecutors were directed to send a copy of the judgment in criminal cases also to the Director of Public Prosecutions as soon as the judgment is pronounced to enable him to examine the scope for filing criminal appeals and thereby reduce the delay in that behalf, which only sought to give effect to some of the provisions in Chapter VIII of the Rules. The Government also passed an order on 22-2-1J992 after consultation with the Advocate General assigning certain,’ duties and functions to the Director General of Prosecutions, whose vital position has also been noticed in the Circulardated 21-1-1982, issued in relation to the filing of appeals against judgments of Sessions Court. It is to him that notice of criminal appeal has to be given and has certain statutory rights and duties to perform.
7-8. True, the Advocate General is also a Law Officer of the State, but his position is distinct and separate from other law officers appointed from the panel submitted by him. He is the Chief Law Officer of the State and by virtue, of this primary, has control and supervision over the other law officers, who have a duty to help and assist him whenever he required Kelp and assistance.
9. In State of Kerala v. Krishnan 1981 Ker LT 839:(1982 Cri LJ 301), the scope of Sections 24( 1) and 378(1) came for consideration before a Division Bench of this court. Appeals against acquittal were presented by the Additional Advocate General as directed by the Government but who had not been appointed as Public Prosecutor and those appeals came up for grant of special leave Under Section 378, Cr.P.C. This court after referring to the relevant judicial precedents observed that (At pp. 303-03 of Cri LJ):
As per Section 378( 1) of the Code if the State has to file an appeal before the High Court against an order of acquittal the State has to direct the Public Prosecutor to present the same. Public, Prosecutor of a High Court is one who is appointed by the State Government or the Central, Government Under Section 24( 1 )of the Code for conducting in that High Court any prosecutiori appeal or other proceedings on behalf of that Government. In view of the definition contained in Section 2(u) of the Code a person acting under the direction of a Public Prosecutor appointed” Under Section 24 will also be a Public Prosecutor. The combined effect of all the above provisions of the Code is that if the State wants to file an appeal to the High Court from an order of acquittal, that has to be done only by a Public Prosecutor or a person acting under his direction presenting the appeal to the court. In other words, nobody else can present the appeal even if the State direct. Section 378 (1) being a provision which affects the liberty of the citizen it has to be construed strictly. Nothing short of its full compliance has also to be insisted. The procedure prescribed by the Code has to be complied with by all who invoke the criminal jurisdiction of a Court. It has to be followed by all who appear in such cases. The Advocate General or the Additional Advocate General of a State has no exemption. As per Article 165(2) of the Constitution it shall be the duty of the Advocate General to give advice to the Government of the State upon such legal matter and to perform such other duties of a legal character as may from time to time be referred or assinged to him. There is no indication in Article 165 that when an Advocate General appears before a civil or criminal court in the discharge of his duties as Advocate General he will not be bound by the procedure followed by that Court. Simply because the rules framed by the State Government under Article 165(2) and (3) and issued as per notification dated 1st Nov. 1956 insist that the Advocate General shall represent the Government in the High Court in important civil and criminal proceedings, it will not give him the status and clothe him with the powers of a Public Prosecutor of the High Court appointed Under Section 24( 1) of the Code. As long as the Advocate General is not appointed as a Public Prosecutor Under Section 24(1) of the Code he will not become a Public Prosecutor of the High Court. As far as the Advocate General is concerned, no question of acting under the direction of a Public Prosecutor arises as he is constitutional appointee and it will be awkward for him. If the Advocate General is appointed as a Public Prosecutor Under Section 24(1) of the Code acting under his direction the Addl. Advocate General can function as a Public Prosecutor. So long as the Advocate General or the Addl. Advocate General is not a Public Prosecutor of the High Court neither of them can present an appeal to the High Court from an order of acquittal even if the State Government directs. Hence it goes without saying that these appeals presented by the Addl. Advocate General cannot be treated as appeals filed in accordance with Section 378(1) of the Code.
Obviously this decision, which dealt with the presentation of appeals against acquittal by the Public Prosecutor duly appointed and by no-one else has no application to this case, where the appeal is not by the State, but by the accused and the question involved is whether the right of appearance for the State is only of the Public Prosecutor and not of the Advocate General, even if authorised in that behalf by the Government. In other words, the issue in question here between the Advocate General and the Public Prosecutor is not as regards the institutional aspect of the proceedings but as to the right of appearance on behalf of the State as between them with respect to which this decision is not an authority, that the office has misquoted.
10. Keeping in view the pre-eminance of the Advocate General in the hierarchy of law officers and respective functions and duties assigned to them under the rules referred to above, it seems to us to admit of no doubt that in a case-where the Advocate General appears for the State arid in a criminal appeal where he has been specifically empowered by the Government to appear, other law officers including the Public Prosecutor have no right to be heard except through him arid under his instructions. No doubt, the functions of the Advocate General and the Public Prosecutor are distinct. Occasions, where the Advocate General appears in criminal cases in the High Court will be few and far between. Only in rare and important cases that he should be expected to appear. In the generality of cases, the Public Prosecutor — the Director General of Prosecutions and Addl. Director General of Prosecutions, who is not his subordinate — will have freedom of action, though as law officers of the State they will have to abide by such instructions and directions as the Advocate General might give them and such occasions too would be rare. But where the Advocate General appears in a case as directed by the Government, he alone and not the Public Prosecutor will have a right to be heard. This is in keeping with the supremacy of the office of the Advocate General and his constitutional position as the Supreme law officer of the State, who gives advice to the State on legal matters and perform such other duties of a legal character as may from time to time be referred or assigned to him and discharge the functions conferred on him by or under the constitution or any other law for the time being in force.
11-12. In England, until 1899 the Attorney General was the only person who could be described as a Public Prosecutor. He is a member of the Government and also a member of the Bar of which he is ex officio the head. He decided on behalf of the Crown when not to prosecute. In 1908 a severance was made between civil and criminal matters and the prosecution of the latter was entrusted to a separate department headed by the Director of Public Prosecution. No doubt, the office of Director was created in 1879, but he actedd solely in an advisory capacity and between 1884 and 1908 the office was merged in that of the Treasury Solicitor. The Director is appointed by the Home Secretary in consultation with the Attorney General. He acts under the general superintendance and (direction of the Attorney General and in practice enjoyed a large measure of independence. For certain crimes, the prosecution could not be brought except by the Director of Public Prosecutions or with the consent of the Attorney General. He discharges the functions of the Crown’s solicitor in criminal matters and the Attorney General discharges the functions of the Crown’s barrister. But in all prosecutions initiated by the Director, the Attorney General either appears himself or nominates counsel to take the brief. But such occasions used to be very few.
13. A dispute almost similar to the one that we have here was considered by a Full Bench of the Andhra Pradesh High Court and in the decision reported in Thadi Narayanan v. State of Andhra Pradesh AIR 1960 Andh Pra 1 :(1960 Cri LJ 33) the Full Bench observed that (Para 17):
He is also to advice the Advocate General whenever in a case pertaining to his duties he is required to do so. The Advocate General is further to assist the High Court whenever required by the Hon’ble the Chief Justice in cases of Special importance or difficulty, on occasions of inquiries made by the Court into the conduct of legal practitioners. These standing orders made it clear that the Advocate General is the Chief Law Officer of the Government and the Public Prosecutor is regarded as the assistant to the Advocate General.
Therefore, where the Advocate General is called upon to appear in any case of importance, the Public Prosecutor cannot as is contended by him be considered as separately representing the State while the Advocate General is a mere Amicus Curiae. In these circumstances, we cannot appreciate this contention as, in our view, the responsibility to represwent the State would be upon the Advocate General assisted by the Public Prosecutor.
Respectfully we are in agreement with the above observations.
14. We are distressed by the unseemly controversy, which should never have arisen at all. In the course of the hearing many things said were in bad taste that we do not wish to recapitulate here. The Public Prosecutor should not have challenged the authority of the Advocate General to argue the criminal appeal in the context that he had been authorised by the Government to do so and rendered assistance as he is bound to instead of asserting and maintaining that it is his sole and exclusive right to appear for the State in the criminal appeal. We are certain that this unhappy episode will be forgotten and not allowed to recur to sully the image of the two offices, in whose fairness and efficiency the litigant public have a large stake.
The office is directed to register the Memo of Appearance filed by the Advocate General, who shall appear for the State in the Criminal Appeal.