Radhakrishnan and Another Vs. Anilkumar and Others

Radhakrishnan and Another vs Anilkumar and Others

Type Court Judgment Court Kerala Decided Nov 27, 2015

~3 min read

https://sooperkanoon.com/case/1181600

Citation: sooperkanoon.com/1181600
Court: Kerala High Court
Judge: B. Kemal Pasha
Decided On: Nov 27, 2015
Case Number: WP(C).No. 34786 of 2015 (W)

Parties & Advocates

Appellant / Petitioner

Radhakrishnan and Another

Respondent

Anilkumar and Others

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Excerpt

.....conduct a prosecution in a case before a court of a magistrate. there cannot be an appointment of a special assistant public prosecutor as per the code. what is permitted as per section 24(8) of cr.p.c. is the appointment of a special public prosecutor. 7. as per section 302(1) cr.p.c. any magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than police officer below the rank of inspector; but no person, other than the advocate-general or government advocate or a public prosecutor or assistant public prosecutor, shall be entitled to do so without such permission. therefore, it is evident that when the advocate-general or government advocate or public prosecutor or assistant public prosecutor, is appearing before a court of a magistrate for conducting a prosecution, any permission from the court of a magistrate is not required. only in cases wherein persons other than the aforesaid persons are appearing before a court of a magistrate for conducting a prosecution, such permission is required. that provision clearly shows that a public prosecutor also can conduct a prosecution before a court of a magistrate and in such case,.....

Full Judgment

1. Can the prosecution in a case before the Court of a Magistrate be conducted by a Special Public Prosecutor appointed by the Government for the said case?

2. The Government has appointed an Advocate as a Special Public Prosecutor under Section 24(8) Cr.P.C., for conducting the prosecution in C.C.No.617/2001 of the Judicial First Class Magistrate's Court-I, Neyyattinkara. The same is under challenge here.

3. According to the learned counsel for the petitioners, the appointment has been made as a 'Special Public Prosecutor' and not as a 'Special Assistant Public Prosecutor' and therefore, he cannot conduct the prosecution before a Magistrate's Court.

4. Section 24(3) Cr.P.C. says:

For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:

Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.

5. When such an appointment of a Public Prosecutor is for a district, it cannot be said that such a Prosecutor cannot conduct a prosecution in a case before a Court of a Magistrate. At the same time, going by the scheme of the Code, it can be said that an Assistant Public Prosecutor cannot conduct a prosecution in a Sessions case before the Sessions Court.

6. As per Section 25(1) Cr.P.C. the State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates. It does not mean that a Public Prosecutor, who is appointed by the Government, cannot conduct a prosecution in a case before a Court of a Magistrate. There cannot be an appointment of a Special Assistant Public Prosecutor as per the Code. What is permitted as per Section 24(8) of Cr.P.C. is the appointment of a Special Public Prosecutor.

7. As per Section 302(1) Cr.P.C. any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission. Therefore, it is evident that when the Advocate-General or Government Advocate or Public Prosecutor or Assistant Public Prosecutor, is appearing before a Court of a Magistrate for conducting a prosecution, any permission from the Court of a Magistrate is not required. Only in cases wherein persons other than the aforesaid persons are appearing before a Court of a Magistrate for conducting a prosecution, such permission is required. That provision clearly shows that a Public Prosecutor also can conduct a prosecution before a Court of a Magistrate and in such case, even the permission of the Court of a Magistrate is not required. Matters being so, there is no merit in the present arguments resorted to by the learned counsel for the petitioners. Therefore, this Writ Petition is devoid of merits and it is only to be dismissed, and I do so.

In the result, this Writ Petition is dismissed. Being an old case, the court below shall expedite the proceedings and see that the matter is disposed of expeditiously.