ORDER
Jagannadha Rao, J.
1. This writ petition is filed by the accused No. 1 in Sessions Case No. 74 of 1988, Additional Sessions Court, Eluru, West Godavari District questioning the entrustment of the said case to the 2nd respondent - Assistant Public Prosecutor, for conducting the prosecution.
2. The regular Additional Public Prosecutor, Eluru appears to have expressed his difficulty in conducting the prosecution in the case and the question arose as to who should be entrusted with the task. Ultimately, the Government issued G.O.Rt.No. 60 (Law) dated 3-341988 'entrusting' the case to the 2nd respondent, who does not belong to West Godavari District, but who is an Assistant Public Prosecutor practising at Vishakapatnam. The petitioner states that when Eluru or West Godavari District has a large Bar with several seniors practising on the criminal side and when, even otherwise, there are ever so many criminal lawyers in the neighbouring districts and elsewhere in the State, the selection of an Assistant Public Prosecutor and particularly of the 2nd respondent was not justified. It is argued that the Public Prosecutor in the District Courts has a separate status in the rules relating to appointment of Law Officers and an Assistant Public Prosecutor cannot be appointed. It is submitted that the provisions of Rule 56 of the A.P. Law Officers (Recruitment & Conditions of Service and Remuneration) is not attracted to the facts of the case. It is also submitted that the appointment of the 2nd respondent is not bona fide. The above said aspects were urged by Sri E. Ella Reddi for the petitioner, during the arguments.
3. The State has filed a counter-affidavit justifying the appointment. The learned Additional Advocate-General has submitted during the course of arguments that Rule 56 of the Rules is applicable or alternately Rule 8-E of the Rules. It is also stated that in any event, the appointment can be justified under Section 24(8) of the Criminal Procedure Code, 1973. According to him, the fact that a wrong provision has been quoted in the impugned order makes no difference, and he also points out that throughout the file, shows that action was intended not for 'entrustment' of a case as per Rule 56 of the A.P. Law Officers (RCR) Rules, 1967 (hereinafter called the Law Officers's Rules 1967) but for 'appointment of a Special Public Prosecutor under Section 24(8) Cr.P.C. and that the reference to the said rules is wrong and the power of the Government can be traced to Section 24(8), Cr.P.C.
4. No counter has been filed by the 2nd respondent though he has been served on 24-2-89 through court and he has knowledge of the stay orders passed in this case.
5. The point for consideration is: Whether the entrustment of the Sessions Case to the 2nd respondent, Assistant Public Prosecutor, is valid and even if so, whether it is proper on the facts of the case?
6. I shall first deal with the applicability of Rule 56 of the Law Officers Rules 1957 and then Rule 8-B thereof. I shall then deal with Section 24(8) of the Cr.P.C, 1973. Ultimately, I shall deal with the propriety of the appointment of the 2nd respondent.
Rule 56 of the Rules reads thus:
'Entrustment of cases to Law Officers: The cases coming up before a particular court shall be conducted by the Law Officer attached to that Court, unless the Government having regard to the nature and importance of the case, decides to entrust it to the Advocate-General or any other advocate/Law Officer......'
Rule 2(vii) of the Rules defines a 'Law Officer' appointed to conduct cases for the Government and includes a Government Pleader, Public Prosecutor and a Standing Counsel in a State Public undertaking. Rule 2(viii) defines 'Public Prosecutor' as a person appointed under Section 24, Cr.P.C. 1973 for work on the criminal side and includes an Additional Public Prosecutor. I shall now refer to the relevant portion of Section 24, namely, Section 24(6) which reads as follows:
'Notwithstanding 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.....'
Construing the said provisions Ramaswami, J., in V. Ramachandra v. M.V. Jagadodhara Gupta, 1987 (2) ALT 587 held that though posts of Assistant Public Prosecutors Grade I or II are constituted into a service under the proviso to Article 309 of the Constitution of India, they are not entitled, as a matter of right, to appear and conduct prosecution on behalf of the State in the Court of either Session or Additional Sessions Judge. He also observed that the Assistant Public Prosecutors do not also have the requisite experience to conduct prosecution in sessions cases as required by the Cr.P.C. In the result the learned Judge declared that these officers cannot be treated as belonging to a 'regular cadre of Prosecuting Officers' for the purpose of Section 24(6) of the Code. He pointed out that by the amending Act of 1978, the Legislature intended a 'regular cadre of Prosecuting Officers' not including persons in the cadre of Assistant Public Prosecutors.
7. From the aforesaid provisions of Rule 56 read with Rule 2(vii) and (viii) and Section 24(6) Cr.P.C, it is clear that an Assistant Public Prosecutor cannot be 'entrusted', under Rule 56, with a criminal case triable by a Court of Session.
8. I shall then consider the case under Rule 8-B of the Law Officer Rules, 1967. That rule states that notwithstanding anything in the rules, the Government may, in respect of particular cases or particular class of cases in any court or tribunal and for any particular area, appoint Government Pleaders and Public Prosecutors, to be known as Special Government Pleaders and Special Public Prosecutors, on such terms and conditions as may be determined by the Government. The learned Additional Advocate-General, Sri N.Subba Reddi, stated fairly that the above rule is not also attracted to the facts of the case.
9. The next question then is whether the impugned order can be justified under Section 24(8) Cr.P.C. Under Section 24(8), it is provided that the Central Government or the State Government may appoint, for the purpose of any case or class of cases, a person who has been in practice as an Advocate for of less than ten years as a Special Public Prosecutor. It is clarified in Section 24(9) that the period during which a person has been in practice as a pleader, or has rendered (whether before or, after the commencement of the Code) service as a Public Prosecutor or as and 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.
10. I am of the view that the reference to service as Assistant Public Prosecutor inSection 24(9) has no bearing so far as the present case before me is concerned. It may be that for counting the period of 'practice' of ten years, we can reckon the period during which the person was in service as Public Prosecutor, Additional Public Prosecutor or Asst. Public Prosecutor but that is merely for purpose of computing the period of ten years. In the present case, it is true, that counting in the manner provided in Section 24(9), the 2nd respondent has practice of ten years. The question still remains whether the impugned order (expressly passed under Rule 56 of the Rules 1967) can be traced to Section 24(8), Cr.P.C?
11. In my view, on the facts of the present case, the impugned order cannot be traced to Section 24(8) of the Cr.P.C. It may be noted that while Rule 56 deals with 'entrustment of a case, the provisions of Section 24(8) Cr.P.C. refer to an 'appointment' as a 'Special Public Prosecutor'. The impugned G.O. nowhere speaks of any 'appointment' of any person as a 'Special Public Prosecutor'. In fact, not only are the words 'appointment' not mentioned in the order but even the words 'Special Public Prosecutor' are not used in the impugned order. In other words, it never purported to be an order of 'appointment' of a person to an office or post much less the office or post of a 'Special Public Prosecutor'. The impugned order is a mere order of entrustment of a case to a person working already as an 'Assistant Public Prosecutor'.
12. Further, in G.P. Singh's 'Principles of statutory Interpretation' (3rd Ed. 1983) it is stated (at p.302) that a power, purporting to be exercised under a wrong provision, could be treated as exercised under another provision, if such a provision in fact, conferred such a power. But the author states that there is an exception to this rule. It is stated as follows (atp.33).
'But the principle has no application when the provision to which the exercise of power is sought to be referred contains certain conditions which are not shown to have been satisfied (Amritsar Improvement Trust v. Baldeo Indu Singh, : [1972]2SCR386 ).
Applying the said principle, can it be said that when an authority merely 'entrusted' a particular case to a person already appointed as an Assistant Public Prosecutor, there is an exercise of a power of 'appointment' of that person as a 'Special Public Prosecutor'? In my opinion not. The scope and content of the power exercisable in the case of mere entrustment of a case is obviously different from appointing a person to a post. The final order was deliberately issued under Rule 56 thinking that Section 24(8) Cr.P.C. was not applicable. It is, therefore, not permissible for the respondent No. 1 to rely on Section 24(8), Cr.P.C.
13. In any case, I am of the view, that it was not 'proper' for the State to appoint an Assistant Public Prosecutor to deal with a Sessions case of this magnitude and importance. As pointed out by Ramaswami, J., in V. Ramachandra v. M.V. Jagadodhara Gupta (1 supra) above referred to, the Assistant Public Prosecutors have no experience whatsoever to conduct Sessions Cases in the District and Sessions Courts. The type of cases which they normally conduct are totally different and are small compared to cases in Sessions Court where, as in the present case, the accused is charged under Section 302, I.P.C. and other provisions. There are quite a large number of districts in the State and there are several experienced persons functioning as Public Prosecutors or Additional Public Prosecutors in the Courts in Session. There is equally no dearth of senior counsel in the State, who are having large experience or practice in cases triable by Courts of Session. In that context, the selection for appointment of an Assistant Public Prosecutor to deal with the case of the petitioner appears to me to be wholly inappropriate, and improper and therefore arbitrary - arbitrary, in the sense that the Government does not appear to have borne in mind the special position of trust which a Public Prosecutor is, under the law, supposed to carry. I have elaborately gone into duties of a Public Prosecutor to the State and to the accused in D. Brahmanandam v. State of A.P., 1986(1) APLJ 119 (HC). The accused cannot have the satisfaction that his case has been dealt with fairly and properly by the Government when the matter is entrusted to an Assistant Public Prosecutor. This does not mean any as person against the 2nd respondent. We are here concerned only with the validity and propriety of the exercise of power by the State in passing the impugned order. We are concerned with the grievance of the accused that he has not been treated fairly for being tried in a Sessions Court.
14. For all the above reasons, the writ petition is allowed and the impugned order is quashed. There will be no order as to costs.