Judgment:
B. Prakash Rao, J.
1. Since all these matters involve a common questions of law, they are being taken up together for disposal, though each varies on facts.
2. In W.A. 1215 of 2008 and W.A. (SR) 109236 of 2008 the State of A.P is the appellant, filed as against the interim orders of suspending the impugned proceedings by the learned Single Judge in W.P.M.P. No. 25088 and 25089 of 2008 in W.P. 19231 of 2008.
3. When these appeals came up for hearing, at the request and consent of the counsel on either side, the main writ petition in W.P. 19231 of 2008 itself was taken up for final disposal.
4. In W.P. 19231 of 2008 the petitioners are the Margadarshi Financers and Sri Ramoji Rao, who sought for Writ of Mandamus to declare the impugned proceedings in G.O.Rt. No. 315 Law (LA & J. Home-'A2') Department dated 19-02-2007 issued by the State Government purportedly in exercise of powers under Sub-section (8) of Section 24 of Code of Criminal Procedure 1973 appointing the respondent No. 2 as a Special Public Prosecutor under Section 45T(1) of the Reserve Bank of India Act, 1934 for the purpose of filing of applications and complaints under Section 58E of the said Act and prosecute them, as arbitrary, discriminatory and violative of Articles 14 and 21 of Constitution of India and Section 24 of Code of Criminal Procedure and quash C.C. No. 540 of 2008 on the file of the I Additional Chief Metropolitan Magistrate, Hyderabad.
5. The main thrust put forth on behalf of the petitioners in the writ petition was that the procedure as contemplated under Sub-clauses (4) and (5) of Section 24 of the Code of Criminal Procedure was not followed, while appointing the 2nd respondent as Special Public Prosecutor under Section 24(8) of the Code. In support reliance was placed on the decision of the learned Single Judge of this Court in Paramjit Singh Sadana v. State of A.P. 2008 (2) ALT (Crl.) 339 (A.P.) : 2008 (1) ALD (Crl.) 712. Further it was contended that the respondent being a designated Senior Advocate, it is not permissible to appoint him as a Special Public Prosecutor in view of the bar under the Rules applicable to Senior Advocates, and therefore, the entire proceedings are vitiated and liable to be set aside.
6. After hearing the learned Advocate General who sought to rely on the decisions reported in Jayendra Saraswati Swamigal @ Subramaniam v. State of Tamil Nadu : 2008CriLJ3877 and that of Patna High Court in Shankar Sinha v. State of Bihar 1995 Cri. L.J. 3743 the learned Single Judge initially granted interim orders suspending the impugned proceedings, pending disposal of the writ petition. Hence, the appeals.
7. During the course of hearing of these appeals, as stated above the main writ petition was taken up.
8. Learned Advocate General pointed out that as against the decision of the learned Single Judge in Paramjit Singh Sadana (supra 1) the State has preferred regular appeals in W.A. 1254 of 2008 and WA. 266 of 1999. Hence, at their request, these appeals also are taken up for disposal.
9. Sri C.Padbhanabha Reddy, learned Senior Counsel appearing on behalf of the writ petitioners submitted that the impugned proceedings appointing the respondent No. 2 as a Special Public Prosecutor warrants applicability of the procedure as contemplated under Sub-sections (4) and (5) of Section 24 of the Code of Criminal Procedure, and further Sub-clause (8) of Section 24 as such, does not prescribe any guidelines except prescribing a requirement of standing at the Bar. Therefore, without following the procedure provided in the preceding clauses, no such appointment can be made. Whereas the present appointment being done without following such procedure, is not sustainable. That apart, it was contended that the respondent No. 2 is a designated senior advocate and therefore having regard to the terms, conditions and restrictions imposed under the Rules framed under The Advocates Act, 1961, no such appointment can be made to the post, and therefore, either way the appointment of respondent No. 2 is vitiated and liable to be set aside. Further, it was contended that there being no request by the complainant in the Criminal Case prior to the appointment was made. Hence, there is absolutely no warrant for appointing a Special Public Prosecutor. Even otherwise, it was contended that there should be a proper consultation prior to the decision of appointing of a Special Public Prosecutor. The learned Senior Counsel placed reliance on the above referred decision of the learned Single judge in Paramjit Singh Sadana (supra 1) wherein it was held that in the absence of follow up procedure as contemplated under Sub-clauses (4) and (5), the appointment under Sub-clause (8) is not valid.
10. The learned Advocate General appearing on behalf of the State supporting the impugned proceedings submitted that all the pleas which are sought to be raised are not found place in the pleadings and there is no averment of any bias or prejudice by the writ petitioners, and therefore, nothing can be assailed against such appointment. Further, contending that the decision of the learned Single judge reported in Paramjit Singh Sadana (supra 1) requires reconsideration, the appeals of which are also being heard, it was submitted that the powers conferred under Sub-clause (8) is totally independent and nothing to do with the power or procedure as contemplated in the earlier sub-clauses under Section 24 of the Code of Criminal Procedure and therefore such procedure has no application, and the only requirement is of 10 years standing at the Bar, which is enough to consider for such appointment. There being no challenge as to the validity or vires of the Sub-clause (8) of Section 24 of the Code of Criminal Procedure, the petitioner cannot make any grievance for absence of any guidelines or procedure. The provisions of Section 45(S), 58(a), 58(b) and 58(e) and 45T(1) of the Reserve Bank of India Act also justifies such exercise. The learned Advocate General submitted that the present appointment is only for the purpose of special reasons and under a special enactment therefore the same is valid. It was pointed out that even though the seizure was effected long back against the petitioners and pending for quite some time and steps have been taken to effect seizure etc, yet no objection was taken by the petitioner against such appointment. Therefore the present plea apart from being a belated one is wholly unsustainable. Supporting the appointment of the respondent No. 2, the learned Advocate General contended that there is no specific bar or any prescription in appointing such designated senior advocates under the Rules framed under the Advocates Act by the Bar Council, nothing can be deduced nor the same would become invalid. Even other wise, if there is any violation, the petitioner has got an alternative remedy to approach the Bar Council for proper grievance. Therefore, it is contended that since the respondent No. 2 in spite of the fact that was designated as senior advocate remains as an advocate, which is the core for consideration for appointment of Special Public Prosecutor, hence, there is no illegality.
11. In reply, Sri C. Padbhanabha Reddy, the learned Senior Counsel once again reiterated the restrictions imposed under the provisions of the Advocates Act and the Rules made therein, especially, in regard to the designated senior advocates and contended that no such appointment would have been made and therefore the entire proceedings are invalid.
12. In the other two appeals arising against the Judgment of the learned Single Judge in Paramjit Singh Sadana (supra 1) on the point, the learned Advocate General reiterated the same submissions which have been repelled by the learned Senior counsel Sri T. Bali Reddy, though however pointing out that except for purpose of academic consideration of the question involved factually nothing remains to be interfered with having regard to the progress made in the case. However, Sri T. Bali Reddy, the learned Senior Counsel supported the contentions and stand taken by Sri C. Padmanabha Reddy.
13. Thus, considering the various submissions from the counsel on either side and on the perusal of the material on record, the point which arises for consideration, firstly, whether the procedure as contemplated under Sub-clauses (4) and (5) of Section 24 of the Code of Criminal Procedure would have any application and mandatory for the purpose of exercise of powers under Clause (8) of Section 24 of the Code of Criminal Procedure?, and Secondly is as to whether on the facts and circumstances the appointment of a designated senior counsel as a Special Public Prosecutor under Section 24(8) of the Code of Criminal Procedure is valid?
14. For the convenience of the question involved the relevant provision which requires to be considered is Section 24 of the Code of Criminal Procedure, which reads as follows:
(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutor for conducting in such court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.
(2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district, or local area.
(3) For every districts 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.
(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare, a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutor or Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section(4).
(6) Not withstanding anything contained in Sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting, such Cadre: Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by, the District Magistrate under Sub-section (4).
(7) A person shall be eligible to be appointed as a public Prosecutor under Sub-section (1) or Sub-section (2) or Sub-section (3) or Sub-section (6), only if he has been in practice as an advocate for not less than seven years.
(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.
(9) For the purposes of Sub-section (7) and Sub-section (8), the period during which a person has been in practice, is a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.]
15. Coming to the ground situation, de hors the facts involved, at the outset on a reading of the above provision, it falls in Chapter 2 of the code, referring to the constitution of the criminal Courts and offices and the contemplation is for appointing a Public Prosecutor and the Additional Public Prosecutors in the High Court, apart from the Public Prosecutors and Additional Public Prosecutors for the Districts. Sub-clause (1) and (2) take care of the procedure for appointing the Public Prosecutors and Additional Public Prosecutors in High Court for conducting the prosecution, appeal or other proceedings on behalf of the Central or State Governments. Similarly, Sub-clauses (3) to (7) take care of the appointments and certain other aspects in regard to the Public Prosecutors or Additional Public Prosecutors in the districts for the self-same reason of conducting the cases on behalf of the State. In the process of such an appointment for those posts, Sub-clause (4) envisages that appointment shall be made by the concerned District Magistrate in consultation of the Sessions Judge from the panel of names of the persons who are fit to be appointed as such. Sub-section (5) specifically bars any appointment of a person to the said office unless the name appears in the panel of the names prepared by the District Magistrate under Sub-clause (4) as mentioned above. Sub-clause (6) envisages for appointment to the office from the regular cadre of prosecuting officers de hors the bar prescribed under Sub-clause (5). Sub-clause (7) envisages a qualification of having a standing or practice as an advocate for not less than 7 years. Thus, from these above provisions, the process of appointment has to be only by means of panel, except to the extent of a regular cadre of prosecuting officers, even though, there is no such specific prescription provided for similar offices in the High Court under Sub-clauses (1) and (2). Now comes the Sub-clause (8) where it is contemplated for appointment of a person as a Special Public Prosecutor. The only qualification prescribed therefore is a standing or practice at the Bar as an Advocate for not less than 10 years. Sub-clause (9) is enabling provision for the purpose of calculating the practicing period in respect of those who already held similar such office. The other requirement under sub clause 8 is that such appointment of a Special Public Prosecutor can be for the purpose of any case or class of cases. The power to appoint a person to any of these three classes of offices at different situations and stages vests with the Government, the Central or the State and such power is a discretionary one. However, a clear distinction is apparent between the first of such type of office with that of the second one, viz., in regard to the appointment to an office in the High Court or as a Special Public Prosecutor, as evident from the Sub-clause (1) and (2) on the one side and Sub-clause (8) on the other, no consultation or preparation of a panel is envisaged. It is only in regard to the appointment to such office for a District, the consultation and panel is required to be followed and having regard to the expression 'shall' which is used, undoubtedly the same is mandatory, which gets further reiteration under Sub-clause (5) thereof. Therefore, such a condition precedent cannot be dispensed with. Further without following such procedure, any appointment made in the teeth of the said provision would be illegal. In respect of first two classes of offices viz., for the purpose of High Court and in the Districts, the office is described as Public Prosecutor, which is defined under Section 2(v) of the Code, which reads as follows;.
PUBLIC PROSECUTOR means any person appointed under Section 24, and includes any person acting under the directions of a public prosecutor.
16. Thus, it only relates to the nature of appointment of a person to such an office. However, the expression 'Special Public Prosecutor' as contemplated under Sub-clause (8) of Section 24 of the Code, does not get defined in the Code. Therefore, necessarily it need not tale in all the connotations of an office of a regular Public Prosecutor. The expression used 'Special' adjacent to 'Public Prosecutor' and the reasons required for such appointment as mentioned therein viz., for the purpose of any case or class of cases, necessarily shows it stands apart. In a given situation and facts and circumstances, as the exigencies may arise, the concerned Government may appoint an individual person as a Special Public Prosecutor at their choice and discretion. This appointment, naturally will be in addition to the regular Public Prosecutors functioning in the respective Courts, and for the reasons as the Government may feel necessary to appoint such Special Public Prosecutors. It is not necessary to dwell into or lay down any specific reasons for such appointment, since they may vary from case to case and facts to facts. Therefore, where it felt necessary, the option is left to the Government for appointing a Special Public Officer in respect of a special case or class of cases. Thus, this provision independently stands on its own and cannot and does not have any similarity with appointments to the offices as provided for in the preceding sub clauses. Apparently, the consultation and panel as prescribed for the purpose of District is not provided for. It shows that such procedure is not necessary for making an appointment to the post of Special Public Prosecutor. The discretion apparently is a total and absolute one with a complete option on the part of the State Government to virtually pick and choose. Though the duties of every Public Prosecutor runs on the same lines, but, however the restrictions vary from between these three offices. A person who has been appointed as Special Public Prosecutor for the purpose of any case or class of cases cannot claim as a regular Public Prosecutor, be it High Court or in the District, nor can he be permitted to prosecute the other cases on behalf of the State. Similarly, the built in area of operation gets restricted for all such regular Public Prosecutors in claiming any right to appear on behalf of the State in respect of such case or class of cases where a Special Public Prosecutor gets appointment. Having regard to such clear distinction laid down by the legislature in its wisdom it has dispensed with the consultation and processing through a panel. Having made into a separate class itself as a Special Public Prosecutor and prescribing its own procedure specifically, the other procedure in earlier clauses for other offices cannot be applied in toto. The intention of the legislature is quite clear and apparent. Therefore there cannot be any other interpretation of provision otherwise. It is now well established that when the legislature lays down the procedure in contradiction to the various situations, it cannot be said or interpreted to bring down the uniform procedure or bring forth with or apply the procedure applicable to that of the other situations. The exclusion of the consultation cannot be imported. While interpreting a provision in a statute, the expression and contents have to be read in the manner it is contemplated. Neither there is any permissibility of exclusion of the expressions or additions. Applying the criteria in one provision or from one end cannot be ushered in other provision or end. It virtually amounts to a clear legislation by the Courts, which is not permissible. In fact, it deviates the purpose and object under Sub-clause (8) in appointing a Special Public Prosecutor. Therefore, it cannot be said that there is any requirement of consultation or preparation of panel for appointment of a Special Public Prosecutor under Sub-clause (8) of Section 24.
17. The argument let on behalf of the petitioners that the power conferred under Sub-clause (8) is a whimsical and there are no guidelines and therefore such an appointment straightaway without following the procedure for the other offices is bad, cannot be accepted. Primarily there is no challenge as to the vices of the said provision either under the constitutional ground or otherwise by the petitioners. Therefore it is not necessary for this Court to go into the validity of the provision. Further, having regard to the nature of provision and the limited gamut within which the exercise of power has to be done by the Government, it cannot be said that there are no guidelines or any specific power. In the exigencies, it is left open for the Government, in a particular case or class of cases, wherever necessary and expedient to appoint a Special Public Prosecutor other than the regular office holder. Therefore, we do not find any merit in the aforesaid contentions.
18. Reliance is placed by the learned Counsel for the petitioner on the decision of a learned Single Judge of this Court in Paramjit Singh Sadana (supra 1), wherein, this Court while considering the Sub-clause (8) of Section 24 of the Code has held that the provisions of Section 24 are to be read as a whole thus the procedure as contemplated under Sub-section (4) and (5) has to be followed in its letter and spirit for the purpose of exercising the powers under Sub-section (8) of the said provision. We have carefully gone through the judgment of the learned Single Judge. As against the very same judgment, the State has preferred appeals in W.A. Nos. 1254 and 1498 of 2008. It was a case where a crime was registered in Crime No. 369 of 2006 on the file of the Police Station Panjagutta under Section 302 and 379 IPC at the instance of the defacto complainant. Subsequent to the laying of the charge sheet and committal thereof to the Metropolitan Sessions Court, Hyderabad, on a representation filed by the defacto complainant for appointing a private advocate as Special Public Prosecutor in place of the existing Public Prosecutor to conduct the trial in the said Sessions Case, the Government appointed a Private Advocate as Special Public Prosecutor. Assailing the same, writ petition was filed and the learned single Judge after considering the contentions of both the sides and provisions of Section 24 of the Code, proceeded on the basis that merely because Sub-section (8) in so many terms prescribe the eligibility criteria for appointment of Special Public Prosecutor, it is not permissible to ignore the sub Section 4 and 5 while making the appointments under Sub-section (7) or (8) of Section 24 of the Code and therefore it was held that Sub-section (8) shall not be read in isolation and Section 24 needs to be read as a whole, so as to discern what is the criteria for Public Prosecutor and Additional Public Prosecutor as the case may be in respect of the District and what is the criteria for appointment of a Special Public Prosecutor. Later on, the learned Single Judge proceeded to consider the procedural aspect as provided under subsections (4) and (5) in regard to the preparation of panel and the consultation. There is no serious dispute in regard to the interpretation to be given in respect of such procedure as provided for under Sub-clause (4) and (5) for a consultation and preparation of a panel. The learned single Judge has relied on the decision in Supreme Court Advocates-On-Record Association and Ors. v. Union of India : AIR1994SC268 , State of Utter Pradesh and Anr. v. Johri Mal : AIR2004SC3800 , and Ashok Tanwar and Anr. v. State of Himachal Pradesh and Ors. : AIR2005SC614 , wherein the Supreme Court was considering the scope and manner of expression the consultation. It may have relevance to refer or rely on, while considering the earlier sub-clauses of (4) and (5) of Section 24 but not for Sub-clause (8) thereof, whereas such process exist. Considering scope of Section 24 of Criminal Procedure Code, on question as to competency of transferor State to appoint Special Public Prosecutor to conduct the case in a transferee Court, in Jayendra Saraswati case (cited 2 supra) held as follows;
11..Section 24(1) deals with the appointment of Public Prosecutor or Additional Public Prosecutor for conducting any prosecution, appeal or other proceedings on behalf of the Central Government or state Government in the High Court. Sub-section (3) of Section 24 requires that for every district, the State Government shall appoint a Public Prosecutor and one or more Additional Public Prosecutors. Sub-sections (3) to (7) deal with the appointment of Public Prosecutor and Additional Public Prosecutor for the district. The power of appointment is given to the State Government and such appointment should be from a panel of names prepared by the District Magistrate in consultation with the Sessions Judge. Sub-section (7) of Section 24 provides that a person shall be eligible to be appointed as a Public Prosecutor or as an Additional Public Prosecutor under Sub-section (1) or Sub-section (2) or Sub-section (3) or Sub-section (6) only if he has been in practice as an advocate for not less than seven years. A conjoint reading of all these provisions would clearly show that the State Government has the power of appointment of Public Prosecutor or Additional Public Prosecutor for each district or Court of Session in the sessions division in the State to conduct any prosecution, appeal or other proceedings pending before the courts in that State. The power of the State Government to appoint a Public Prosecutor and Additional Public Prosecutor would extend only for conducting any prosecution, appeal or other proceedings in the courts within the State.
14..Sub-section (8) of Section 24 CrPC is a special provision regarding the appointment of a Special Prosecutor. This power can be exercised by the Central Government and the State Government for the purpose of any case of class of cases, and a person who has been in practice as an advocate for not less than ten years may be appointed as a Special Public Prosecutor. These powers are also to be exercised by the State Government of the transferee court where the sessions case is pending. Of course, the transferee state can appoint any person having qualification prescribed under Sub-section (8) of Section 24 CrPC.
16..The Public Prosecutor plays a key role during trial of a sessions case. Though the Sessions Judge has got a supervising control over the entire trial of the case, it is the Public Prosecutor who decides who are the witnesses to be examined on the side of the prosecution and which witness is to be given up, or which witness is to be recalled for further examination. For proper conduct of a criminal case the Public Prosecutor plays a vital role. It may also be noticed herein that under Section 225 CrPC during every trial before the Court of Session, the prosecution shall be conducted by the Public Prosecutor and as regards withdrawal also, the Public Prosecutor in charge of the case has to make the application for withdrawal of prosecution as per Section 321 CrPC. In case of acquittal of the accused the State Government may direct the Public Prosecutor to file an appeal.
19. The question is whether such procedure as provided under provisions of the (earlier) clause can be made applicable to the appointments made under later sub clauses. As pointed out, there exist distinct offices though the duties of which are virtually common. However, giving a go-by to the regular appointments and procedure prescribed thereto when the legislature did not think of importing such similar procedure for the later office, it cannot be said that the same can be applied. The later office i.e., office of the Special Public Prosecutor distinctly stands on its own and restricted for the purpose of case or class of cases but not a regular appointment. The very fact that a case or class of cases in the opinion of the Government requires such special attention and therefore there is a need for a Special Public Prosecutor itself sufficient enough to fall in a class of its own distancing (distinguishing) with the other offices though under the very same provision. Merely because the procedure is not contemplated, it cannot be said that the procedure applicable to the other office can be brought in and applied. In fact, such an attempt would only amount to putting and adding the words to the provision and the legislation. The well established principle is that any language or statute should be read as it is. However, even if there is any legislative defect, the Court cannot add or amend by construction making of deficiency. Certainly the situation does not also bring in the applicability of the cause of action as there is no omission as such, more so, when the scheme, object and the intention is tell tale.
20. The learned Single Judge felt that there is a need for applying uniform procedure and lay down the criteria. While interpreting, the Court has to see whether there is any distinction or a class, prima facie to differentiate. One such distinctive standing on its own clause and reason for nature of appointment is quite apparent, it cannot be said that one procedure can be applied to all. Therefore, we hold that the view taken by the learned Single Judge is not correct and same is liable to be set aside, accordingly, we further hold that procedure prescribed under Sub-clauses (4) and (5) for processing through a panel as contemplated therein is not applicable to the appointment made under Sub-clause (8) of Section 24 of the Code of Criminal Procedure.
21. The Supreme Court in Chairman and MD. BPL Ltd. v. S.P. Gururaja and Ors. : AIR2003SC4536 considering the Regulations 7 and 13 under Karnataka Industrial Areas Development Act, 1966 where two different procedures are contemplated, which is extracted below:
7. Inviting applications.- The Board shall notify the availability of land, the manner of disposal, the last date for submission of applications and such other particulars as the Board may consider necessary in each case by giving wide publicity through newspapers having circulation in and outside Karnataka State and invite applications from industries or persons intending to start industries.
13. Allotment of plots in special cases. -Notwithstanding anything contained in these Regulations the Board in consultation with the State Government may allot any plot or area other than those in respect of which applications are called for under Regulation 7 to any individual or company for the establishment of an industry or for the provision for any amenity required in the industrial area.
held that
Similar considerations were made in respect of colour television picture tube project of the Company and manufacture of batteries. The matter relating to allotment of land is a statutory function on the part of the Board. In terms of the provisions of the Act, consultations with the State Government are required it Regulation 13 of the Regulations in place of Regulation 7 is to be taken recourse to. Does it mean that consultations much be held in a particular manner i.e. by exchange of correspondence and in no other? Answer to the said question must be rendered in the negative. The High-Level Committee was chaired by the minister who in terms of the Rules of Executive Busniess framed under Article 166 of the Constitution of India was entitled to represent the State. Once a consultation takes place by mutual discussions and a consensus is arrived at between different authorities performing different functions under the statutes, the purpose for which consultation was to be made would stand satisfied. Under the Act or the Regulations framed thereunder, no procedure for holding such consultations had been laid down. In that situation it was open to the competent authorities to evolve their own procedure....
22. Now coming to the other aspect, which has been focused with greater attention by both the sides is in regard to the correctness of appointment of the second respondent herein, who is designated as Senior Advocate. It has been pointed out that in view of the bar as enunciated under the Rules governing the Advocates referring to restriction of Senior Advocates of Chapter I, no such appointment could have been made or permissible nor can be accepted by such designated senior advocate. For convenience sake, said rule is extracted;
Restrictions on Senior Advocates:
Senior Advocates shall, in the matter of their practice of the profession of law mentioned in Section 30 of the Act, be subject to the following restrictions:
(a) A Senior Advocate shall not file a vakalatnama or act in any Court, or Tribunal, or before any person or other authority mentioned in Section 30 of the Act.
Explanation : 'To act' means to file an appearance or any pleading or application in any court or Tribunal or before any person or other authority mentioned in Section 30 of the Act, or to do any act other than pleading required or authorised by law to be done by a party in such Court or Tribunal or before any person or other authorities mentioned in the said Section either in person or by his recognised agent or by an advocate or an attorney on his behalf.
(b)(i) A Senior Advocate shall not appear without an Advocate on Record in the Supreme Court or without an Advocate in Part II of the State Roll in any court or Tribunal or before any person or other authorities mentioned in Section 30 of the Act.
(ii) Where a Senior Advocate has been engaged prior to the coming into force of the rules in this Chapter, he shall not continue thereafter unless an advocate in Part II of the State Roll is engaged along with him. Provided that a Senior Advocate may continue to appear without an advocate in Part II of the Sate Roll in cases in which he had been briefed to appear for the prosecution or the defence in a criminal case, if he was so briefed before he is designated as a senior advocate or before coming into operation of the rules in this Chapter as the case may be.
(c) He shall not accept instructions to draft pleading or affidavits, advice on evidence or to do any drafting work of an analogous kind in any Court or Tribunal or before any person or other authorities mentioned in Section 30 of the Act or undertake conveyancing work of any kind whatsoever. This restriction however shall not extend to settling any such matter as aforesaid in consultation with an advocate in Part II of the State Roll.
(cc) A Senior Advocate shall, however, be free to make concessions or give undertaking in the course of arguments on behalf of his clients on instructions from the junior advocate.
(d) He shall not accept directly from a client any brief or instructions to appear in any Court or Tribunal or before any person or other authorities in India.
(e) A Senior Advocate who had acted as an Advocate (Junior) in a case, shall not after he has been designated as a Senior Advocate advise on grounds of appeal in a Court of Appeal or in the Supreme Court, except with an Advocate as aforesaid.
(f) A Senior Advocate may in recognition of the services rendered by an Advocate in Part-II of the State Roll appearing in any matter pay him a fee which he considers reasonable.
23. There is no dispute with regard to the changes brought under the provisions of The Advocates Act, 1961, especially where the distinction between the barrister and advocate was removed, apart from making substantial enabling provision for the legal practitioners. From the reading of the aforesaid provision it is quite clear that the designate senior advocate (though) stands totally on a different but on a higher pedestal than any other legal practitioner. The provision is very clear and object also quite apparent. The right to practice by all the legal practitioners is provided for under Chapter IV of the said Act. Section 30 thereof enables every advocate on the rolls as of right to practice, though of course, subject to the provisions of the Act. Section 34 of the said Chapter, provides for preparation of Rules. Similarly, Chapter 49 of the said Act also enables the Bar Council of India to make the Rules, whereunder sub-clause 'G' contemplates the preparation of rules in regard to the restriction in the matter of practice to which senior advocates shall be subjected. Accordingly, the aforesaid rules have been framed and it restricts and bars a senior advocate with certain conditions. Necessarily, the senior advocate has to appear only through an Advocate on Record and he has to be engaged as such, without whom he cannot straightaway make any appearance. It contemplates that he shall not file vakalat or act in any Court or Tribunal or before any person or authority as mentioned in Section 30. The expression 'to act' has been defined very comprehensively and takes in, every act as normally being expected or being done by a regular legal practitioner or advocate. It is this area where the senior advocate is restricted and cannot walk in. He has to necessarily appear only through another advocate on record. Therefore, it cannot be said that the senior advocates or even the second respondent is not bound by these Rules and therefore it can safely be held that no senior advocate can be appointed straightaway to any such office. Whereas, in the present case the impugned Government Order reads to the following effect;
The Government in exercise of its powers conferred under Section 24(8) of Criminal Procedure Code 1973 (Central Act 2 of 1974) hereby appoint Sri S Satyanarayana Prasad, Senior Advocate, High Court of Andhra Pradesh, Hyderabad as Special Public Prosecutor under Section 45T(1) for filing applications and for filing complaints under Section 58(E) of Reserve Bank of India Act, 1934, and to prosecute the same.
2. Government also, hereby appoint Ms. C Sindhu Kumari, Advocate as Assistant to the Special Public Prosecutor.
3. The above Special Public Prosecutors will be paid remuneration as per rules.
4. The Addl. Director General of Police, C.I.D., Andhra Pradesh, Hyderabad is requested to take necessary follow up action in the matter.
24. It thus specifically authorizes/enables him to file applications and complaints. It is this very action viz., filing of applications and filing complaints do fall well within the expression of 'the act' as provided for under the aforesaid Rule and therefore the impugned proceedings in appointing the second respondent as Special Public Prosecutor necessarily to be held with the same is in the teeth of the aforesaid mandatory provisions under the Advocates Act and the Rules made thereunder.
25. The Supreme Court of India in Indian Council of Legal Aid and Advice v. Bar Council of India : [1995]1SCR304 held:
It will be seen from the above provisions that unless a person is enrolled as an advocate by a State Bar Council, he shall have no right to practice in a Court of law or before any other Tribunal or authority. Once a person fulfils the requirements of Section 24 for enrolment, he becomes entitled to be enrolled as an advocate and on such enrolment he acquires a right to practice as stated above. Having thus acquired a right to practice he incurs certain obligations in regard to his conduct as a member of the noble profession. The Bar Councils are enjoined with the duty to act as sentinels of professional conduct and must ensure that the dignity and purity of the profession are in no way undermined. Its job is to uphold the standards of professional conduct and etiquette. Thus every State Bar Council and the Bar Council of India has a public duty to perform, namely, to ensure that the monopoly of practice granted under the Act is not misused or abused by a person who is enrolled as advocate. The Bar Councils have been created at the State level as well as the Central level not only to protect the rights, interests and privileges of its members but also to protect the litigating public by ensuring that high and noble traditions are maintained so that the purity and dignity of the professional are not jeoparadised. It is generally believed that members of the legal profession have certain social obligations, e.g., to render 'pro bono publico' service to the poor and the under-privileged. Since the duty of a lawyer is to assist the Court in the administration of justice, the practice of law has a public utility flavour and, therefore, he must strictly and scrupulously abide by the Code of Conduct behoving the noble profession and must not indulge in any activity which may tend to lower the image of the profession in society. That is why the functions of the Bar Council include the laying down of standards of professional conduct and etiquette which advocates must follow to maintain the dignity and purity of the profession.
26. The Supreme Court of India further in Haniraj L. Chulani v. Bar Council of Maharashtra and Goa : AIR1996SC1708 held:
The rules framed by the Bar Council of India especially relating to standards of professional conduct and etiquette clearly aim at securing high standards of competence in legal services and seek to strengthen professional relationships among its members and promote the welfare of the society as a whole. Specific norms have been laid down in respect of conduct of the persons practicing the profession visa-vis the public, the court, the client, the opposite lawyer and professional brethren.... Section 49(1) confers power on the Bar Council of India to make rules, inter alia, for discharging its functions under the Act. Section 49(1) confers power on the Bar Council of India to make rules, inter alia, for discharging its functions under the Act. Section 49(1)(ag) when read with Section 24 of the Act confers wide powers on the Bar Council of India to indicate the class or category of persons who may be enrolled as advocates which power would include the power to refuse enrolment in certain circumstances. The obligation to maintain the dignity and purity of the profession and to punish erring members carries with in the power to regulate entry into the profession with a view to ensuring that only profession-oriented and service-oriented people join the Bar and those not so oriented are kept out. The role of an advocate is essentially different from the role of any other profession. An advocate is said to belong to a noble profession. The Act itself envisages the State Bar Councils who are the elected peers of advocates themselves to lay down the standards for the professional conduct and etiquette. That would naturally bring in its wake the power to regulate entry to such a noble profession. It is said that law is a jealous mistress that calls for undivided loyalty and unflinching attention from her devotees. Dry drudgery of desks' dead wood is the essential requirement of an advocate aspiring to win laurels in the profession.
27. In V. Sudeer v. Bar Council of India : [1999]1SCR1048 the Supreme Court held:
A mere look at the provision of Sub-section (1) of Section 49 makes it clear that the rule making power entrusted to the bar Council of India by the legislature is an ancillary power for fructifying and effectively discharging its statutory functions laid down by the Act. Consequently, Rules to be framed under Section 49(1) must have a statutory pegon which is to hang. If there is no such statutory peg the rule which is sought to be enacted de hors such a peg will have no foothold and will become still born.
28. The submission of the learned Advocate General and by Mr. Mahmood Ali, the learned Counsel appearing for respondent No. 2 herein is that there is no bar or any prohibition in the Rules has no substance nor can it be accepted in view of the aforesaid specific rule mentioned above, which in all its propriety and maintenance of the professional ethics, restricts the appearance as such by a senior Advocate. The endeavour by the members of the fraternity should be not only to see that their own action is above the norms laid down, as pointed out above but also to uplift the dignity of the Courts.
29. The other contention urged by the learned Advocate General that the petitioners have alternative remedy to approach the Bar Council of India for appropriate relief. We are not impressed with the said submission, especially when the petitioners cannot assail the correctness of the proceedings in appointing/making any such appointment as Special Public Prosecutor before the Bar Council nor Bar Council is vested with any powers to sit over the judgment or correctness of such proceedings. If it amounts to any violation or misconduct it is always open for the Bar Council to take appropriate action. But, however the aggrieved cannot be remedied for any such entire process of trial where he undergoes, which is expected to be well within the four corners of law and any denial thereof would certainly makes inroads into vested lights conferred. Hence, we hold that the remedies, if any provided under the provisions of the Advocates Act or the Rules made thereunder cannot be a sufficient and efficacious remedy available to the petitioners not to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India.
30. For the foregoing reasons, we allow W.P. No. 19231 of 2008 only to the extent of setting aside the impugned proceedings in G.O.Rt. No. 315 Law (LA & J. Home-'A2') Department dated 19-02-2007 and dismiss the same in regard to the relief sought for quashing C.C. No. 540 of 2008 on the file of the I Additional Chief Metropolitan Magistrate, Hyderabad. The appeals filed by the State in W.A. No. 1215 of 2008 and (W.A. 415/2009) are dismissed since they arise out of interlocutory proceedings and no orders necessary in view of the final orders passed in the main Writ Petition No. 19231 of 2008. However, we reject the prayer for quashing the case in C.C. No. 540 of 2008 on the file of the I Additional Chief Metropolitan Magistrate, Hyderabad. Similarly, the orders passed in W.P. Nos. 21851 and 26699 of 2007 dated 8.2.2008 are set aside and impugned orders therein are held valid and appeals filed by the State in W.A Nos. 1254 of 2008 and W.A No. 1498 of 2008 are allowed. However, in the circumstances of the case, there shall be no orders as to costs.