B.P. Beri, J.
1. This is an appeal under Section 417 of the Criminal P. C. against the judgment and order of acquittal passed by the First Class Magistrate, Nasirabad on 18th June, 1983 in a case of rash driving and causing hurt thereby.
2. Facts leading up to the present appeal are these : On 2nd May, 1982 at about 8 in the morning accused Pukhraj, respondent before me, is said to have been driving his car bearing No. MSW 105 which collided with a truck bearing No. RJZ 209 and thereby caused hurt to the occupants of his own car, namely, his wife, his son and his daughter. For that reason a report was presented against the respondent in the Court of the Munsiff Magistrate First Class, Nasirabad, who framed a charge on 2-1-1963 against the respondent under Section 338, Penal Code (causing grievous hurt by an act endangering life or personal safety of others) read with Section 279, Penal Code (rash driving on a public way). The case was then adjourned to 12th March, 1983, but no prosecution witness was present. The Prosecuting Sub-Inspector sought time and he was allowed an opportunity to produce the prosecution witnesses on 24th April, 1963 and on that date as well no prosecution witness was present. Accordingly the learned Magistrate issued bailable warrants in the sum of Rs. 101/-each against the prosecution witnesses Niranjansingh and Bachan Singh. Dr. Sharma, the medical witness was also summoned. On the next date of hearing, namely, the 18th June, 1963 none of the prosecution witnesses was present. The learned Magistrate by his order of the same date held that Section 251A of the Criminal P.C. does not require a Magistrate to issue process for the prosecution witnesses or to grant time for their production. It is the duty of the prosecution to produce its evidence and since ample opportunity had already been given the prosecution was not entitled to any further indulgence and as there was no evidence against the accused he acquitted him. It is against this judgment and order of acquittal that the State has come up in appeal.
3. A preliminary objection has been raised by the learned Advocate for the respondent that this appeal is not maintainable, firstly, because it has not been presented on the direction of the State and secondly, it has not been presented by a Public Prosecutor as required by Section 417 of the Criminal P. C. It will be proper, therefore, to consider and decide this preliminary objection first.
4. Learned Deputy Government Advocate has produced a letter from the Legal Remembrancer to the Government of Rajasthan, Jaipur addressed to the Government Advocate, Jodhpur, bearing No. F. 14 (393) LA/63/Gr. I dated the 12th September, 1963. The Legal Remembrancer along with the letter aforesaid forwarded the record received from the District Magistrate, Aimer, to the Government Advocate and has added that the Government Advocate was requested 'to file an appeal if found fit'. Another letter which has been produced by the Deputy Government Advocate is No. F. 14 (393) LA/83/Gr. I dated the 7th October, 1983 in which the ex post facto sanction of the Governor of Rajasthan under Section 417 of the Criminal P. C. to prefer an appeal in this ease against the order of acquittal dated 18th June, 1963 as recommended by the Government Advocate is conveyed. The appeal before me was preferred on 16-9-1983.
The learned counsel for the respondent argues that while the letter of the 12th September, 1963 was no categorical direction to the Government Advocate to prefer an appeal the letter of the 7th October, 1983 was an ex post facto direction, and neither of them, therefore, fulfilled the requirements of Section 417 of the Criminal P. C. Let me read here the provisions of Section 417 of the Criminal P. C.,--
'417 (1).--Subject to the provisions of Sub-section (5), the State Government may, in any ease, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.'
The first question which emerges for consideration, therefore, is whether the State Government of Rajasthan directed that the present appeal may be preferred. Learned counsel for the respondent placed strong reliance on Union Territory of Tripura v. Marfat Ali, AIR 1958 Tripura 26. The learned Judicial Commissioner has made two observations which are appropriate to the question which I have set out above. The 8rst is that the power to prefer an appeal against the acquittal has been given under Section 417(1), Criminal P. C., to an authority no less than the State Government with an obvious object that such appeals will be preferred only in cases where there has been a miscarriage of justice so grave as would induce the Government to move in the matter and thereby prevent harassment of the accused which might otherwise be the result of the matter is left to others or treated lightly. The proposal to prefer an appeal against an acquittal, therefore, should have the approval of the State Government because the liberty of a subject is involved and the statute requires to be strictly construed. He placed reliance on Emperor v. Gaya Prosad, AIR 1914 Cal 560. The second observation is that a letter of approval several months after the appeal was filed and when a fresh appeal would have been time barred if preferred, is of no avail.
5. I am in respectful agreement with the learned Judicial Commissioner when he has observed that statute has been cautious in conferring right to prefer appeals against acquittals. Prior to the amendment of the Code of Criminal Procedure in 1955 such a right was available only to a Government. After the amendment the right of appeal has been also conferred in a case instituted upon a complaint on the complainant as well provided he obtains special leave to appeal from the order of acquittal. In this provision (Section 417 (3)) an intention to proceed against an order of acquittal with due caution is clearly noticeable. The point which remains still to be considered in the case before me is whether the first letter of the 12th September, 1963, amounts to such direction as is envisaged by Section 417 of the Code of Criminal Procedure. The language of that letter indicates that the Legal Remembrancer in the Government of Rajasthan directed the Government Advocate Jodhpur to. present an appeal against the acquittal of respondent Pukhraj provided the Government Advocate, Jodhpur, found the case fit. In other words, subject to the expert advice of the Government Advocate so far as the State Government was concerned the direction is clear, namely, to present an appeal, whether such a direction fulfils the requirements of Section 417. The answer, in my opinion, must be in the affirmative.
A party to a litigation is entitled to express its desire and will to prefer an appeal and still leave the matter to his legal advisers to take action. In the present case there can be no doubt that the State Government had decided to prefer an appeal but as a matter of caution, which indeed is an advantage to an acquitted accused, it desired its decision to be reinforced by the advice of its legal advisor, namely, the Government Advocate, Jodhpur, before launching action. The clause 'if found fit' does not appear to me to be inappropriate and has not the effect of detracting or eating up the directions of the State Government contained in the letter of the 12th September, 1983. I am, therefore, of opinion that in the case before me the Government did direct the preferring of an appeal against the order of acquittal passed by the learned Magistrate, Nasirabad. In this view of the matter, it is not necessary for me to consider the letter of the 7th October, 1983.
6. The second objection is that the present appeal was presented before this Court by Shri B.C. Chatterji, Deputy Government Advocate, Jodhpur, who according to the learned counsel for the respondent is not a Public Prosecutor and this appeals therefore, is not maintainable. Mr. B.C. Chatterji has produced no notification before me evidencing his appointment as a Public Prosecutor under Section 492, Criminal P. C. His argument, however, is that according to the rules framed under Article 309 of the Constitution of India (vide notification No. F.2(27)L.R./58-dated 18-12-1951) the Advocate General of Rajasthan under Rule 5 (1) is a Public Prosecutor for the High Court and under Rule 5 (2) (c) (v) his duties include the presentation of appeals against acquittals. Rule 8, inter alia, provides that the Government is authorised to appoint Deputy Government Advocates who are made liable to perform the same duties as are specified for the Advocate General, and, therefore, argues Mr. B.G. Chatterji that as Deputy Government Advocate of Rajasthan he could present an appeal which he did in the present case,
7. In order to appreciate the weight of rival contentions it will be necessary to notice the material provisions of law having a bearing on the question. Section 4 (1) (t) of the Code of Criminal Procedure defines a Public Prosecutor as follows :
'4(1)(t).--'Public Prosecutor' means any person appointed under Section 492, and includes any person acting under the directions of a Public Prosecutor and any person conducting a prosecution on behalf of Government in any High Court in the exercise of its original criminal jurisdiction.'
Section 492, Criminal P. C. empowers the State Government to appoint Public Prosecutors. It reads as follows :
'492 (1) The 'State Government' may appoint, generally, or in any case, or for any specified class of cases in any local area, one or more officers to be called Public Prosecutors.
2. The District Magistrate, or, subject to the control of the District Magistrate, the Sub-divisional Magistrate, may, in the absence of the Public Prosecutor, or where no Public Prosecutor has been appointed, appoint any other parson, not being an officer of police below such rank as the 'State Government' may prescribe in this behalf to be Public Prosecutor for the purpose of any case.'
Section 493 of the Code of Criminal Procedure lays down that the Public Prosecutor may appear and plead without any written authority before any Court in which any case of which he has charge, is under inquiry, trial or appeal, and if any private person instructs a pleader to prosecute in any Court any person in any such case, the Public prosecutor shall conduct the prosecution, and the pleader so instructed shall act therein under his directions. Section 494 lays down that any Public Prosecutor, may, with the consent of the Court withdraw from the prosecution of any person and the consequences of such withdrawal are also indicated. Section 495 authorises any Magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person other than an officer of police below the rank to be prescribed by the ''State Government' in this behalf, but adds that no person, other than the Advocate General Standing Counsel, Government Solicitor, Public Prosecutor or other officer generally or specially empowered by the 'State Government' in this behalf, shall be entitled to do so without such permission.
8. The combined effect of Section 4 (1) (t) and Section 492, Criminal P. C. is that there are four categories of Public Prosecutors: (1) A Public Prosecutor directly appointed by the State Government under Section 492 (1) for a given local area either (a) generally or (b) in any case, or (c) for any specified class of cases; (2) in the absence of a Public Prosecutor a District Magistrate or a Sub-Divisional Officer is authorised to appoint any other person as Public Prosecutor for any lease under Section 492 (2); (3) Public Prosecutor may engage any person to act under his direction and that person so engaged becomes a Public Prosecutor by virtue of the definition of Section 4 (1) (t) and (4) any person conducting a prosecution on behalf of Government in High Court in exercise of its original criminal jurisdiction.
9. It cannot be controverted that Mr. B. C. Chattarji, Deputy Government Advocate, does not fall within the categories Nos. (1), (2) and (4) of the Public Prosecutors as enumerated by me above. The only claim that he makes is that he falls in the category (3) of Public Prosecutors because he derives his powers from the Public Prosecutor, namely, the Advocate General.
10. Before I examine his claim I might deal with another argument raised before me that the clause 'any person acting under the directions of the Public Prosecutor' employed in Section 4 (1) (t) Cr. P. C. which defines the term 'Public Prosecutor' is limited to the law officers mentioned in Section 495, Cr. P. C. viz., Advocate General, Standing Counsel, Government Solicitor, Public Prosecutor, or other officer generally or specially empowered by the State Government in this behalf and does not extend to a Deputy Government Advocate. I find no force in this contention. The object of Section 495 is to authorise a Magistrate inquiring into or trying a case to permit the prosecution to be conducted by any person, but no such permission is necessary in the case of an Advocate General, Standing Counsel, Government Solicitor, etc. Section 495 does not control the definition of a Public Prosecutor as contained in Section 4 (1) (t), Cr. P. C.
11. Let me, now closely examine the claim of the Deputy Government Advocate by reference to the relevant rules relied upon by him. Rule 5 (1) of the above notification lays down as follows :--
'5. Duties--(1) The Advocate General is appointed under Section 4.92 of the Code of Criminal Procedure to be Public Prosecutor for all cases before the High Court.'
Rule 5 (2) (c) (v) lays down as follows,--
'Under Clause (2) of Article 165 read with Article 238 of the Constitution of India, the Rajpramukh has assigned in addition to the duties arising under Sub-rule (1) the following duties to the Advocate General, namely :_ (v) appeals by Government against orders of acquittal.'
Rule 8 (1) reads as follows : --
'8. Appointment and conditions of service.--(1) The Government Advocate or Advocate, Deputy Government Advocate and Assistant Government Advocates, shall be appointed by Government. They shall be liable to perform the duties of the Advocate General specified in Rule 5 and shall perform such duties as the Government may assign to them.'
12. These rules are framed under Article 309 of the Constitution of India and have been published in the Rajasthan Gazette dated 9th February, 1952. Rule 5 (1) clearly shows that the Advocate General is appointed under Section 492, Cr. P. C., to be Public Prosecutor for all cases before the High Court. Reference in this connection may be made to Bhagwan Das v. The King, AIR 1963 P C 263. Their Lordships of the Judicial Committee expressed the opinion that the Advocate General can be appointed as a Public Prosecutor for the whole of the Province under S, 492, Cr, P. C. There can be also no doubt that the Advocate General is entitled to present appeals against acquittals by virtue of his office and further as specified by Rule 5 (2) (c) (v). The only question which survives for consideration is whether under Rule 8 Government Advocate or Advocates, Deputy Government Advocates and Assistant Government Advocates by virtue of their office are entitled to prefer appeals against acquittals being the extended hands of the Advocate General, who is the Public Prosecutor, and acting under his directions. Under Rule 8 a Deputy Government Advocate is liable to perform the duties which are specified to be the duties of the Advocate General in Rule 5.
The learned counsel for the respondent urges that the use of the word 'liable' does not confer a right on the Deputy Government Advocate to prefer an appeal. The plain grammatical meaning of the word 'liable' is to be under an obligation. Where a statute or statutory rule, as in the case before me, confers a duty as an obligation on a public functionary to discharge certain functions then he has an implied right to perform such duty. On this principle under Rule 8 the Government Advocates and the Deputy Government Advocates are authorised to act as Public Prosecutor under the direction of the Pub-lie Prosecutor, namely, the Advocate General. The learned Deputy Government Advocate has stated at the Bar that he and his colleagues act under the directions of the Advocate General. The rule does not require that such direction must be in writing and the presumption being that official acts are performed properly, I am of the view that the Deputy Government Advocate under the direction of the Public Prosecutor, namely, the Advocate General was entitled to submit the present appeal.
13. Learned counsel for the appellant submitted that the learned Magistrate was in error when he said that the Magistrate was not bound to issue process for such witnesses or to grant time for their production. According to the Code of Criminal Procedure, section 251-A (7) the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. This provision of law creates an obligation on the part of the Magistrate in the interests of justice to enforce the attendance of witnesses which the prosecution seeks to produces Learned counsel for the respondent relied on Sm. Jyotimoyee Bose v. Birendra Nath Pradhan, AIR 1960 Cal 263 and another judgment of the Allahabad High Court in State v. Ramlal 1961 (2) Cri L J 331 (All.) and urged that no such duty is imposed by Section 251A (7).
14. The question which emerges for consideration is whether under the Criminal Procedure Code as amended by the Act No. 26 of 1955 a Magistrate should assist the prosecution in the production of its witnesses. This question besides the cases cited by the learned counsel for the respondent also came to be considered in some other cases. Reference in this connection may be made to State of Orissa v. Sib Charansingh AIR 1982 Orissa 157, Nathuram Darjee v. Panualal Agarwala AIR 1961 Assam 97, Public Prosecutor v. M. Sambangi Mudaliar AIR 1965 Mad 31, the State of Bihar v. Poli Mistry, AIR 1964 Pat 351 and State v. John Abraham 1961 (2) Cri L J 92 (1) (Ker). All these cases and the relevant provisions came to be considered in a judgment of this Court delivered by Bhargava J. in S.B. Cri Appeal No. 668 of 1963 and No. 667 of 1963 D/- 19-2-1963 (Kaj) and the learned Judge after examining the statutory provisions and the law bearing thereon has observed as follows-
'However, in ray view Section 251A does not in any way limit the general powers of a Court to issue summons to witnesses if such request is made on behalf of the prosecution.
Besides in the administration of criminal justice a duty is also cast upon the court to arrive at the truth by all lawful means though the primary responsibility of prosecuting cognisable offences is on the executive authorities. Section 540, Criminal Procedure Code gives ample power to a court to summon any person as a witness or recalled or re-examine any person already examined at any stage of enquiry or trial even though the prosecution has failed to produce such persons for evidence. It is also the duty of the court to summon and examine any persons if his evidence appears to it essential to the just decision of the case. Looking to the scheme of 251 (A) it is clear that the stage of passing an order of acquittal under Sub-section 11 is reached only when compliance with the other sub-sections i.e. 8, 9 and 10 has been made. Under Section 251A the Magistrate can discharge the accused if after perusing the documents referred to in Section 173 he finds the charge to be groundless. But in case he finds that there is ground for presuming that the accused has committed an offence he has to frame a charge against the accused. It would be defeating justice if in cases where a charge has been framed against the accused by the Magistrate he is to be acquitted merely on this ground that the prosecution has failed to produce any evidence in the case. The Magistrate should not feel himself helpless in such situation and should exercise his inherent powers under section 540 of the Code to summon such witnesses as he thinks necessary for the ends of justice.'
15. The learned Judge placed reliance on and preferred the view contained in AIR 1985 Mad 31, 1961 (2) Cri LJ 92(1) (Ker) and AIR 1962 Orissa 157.
16. I am in respectful agreement with the view expressed by Bhargava J , and I cannot usefully add any thing to it. In the ease before me it would appear that the case was registered on 13-8-1982 but the documents under Section 173 (4) were examined and a charge was framed on 2-1-1963. On 13-3-1963 no prosecution witness was present and as the Prosecution Sub Inspector was new he wanted an opportunity to produce the prosecution evidence which was given to him. On 24-4-1963 which was the next date of hearing no prosecution witness was present and the attendance of two prosecution witnesses Niranjansingh and Bachansingh was to be effected by means of warrant in the sum of Rs. 101/- each and the rest of the witnesses were also to be present. On the next date of hearing i.e. 18-6-1963 none of the witnesses for the prosecution were present and thereupon the learned Magistrate acquitted the accused. The Police officers of course had power under Section 170 (2) Criminal Procedure Code to bind the witnesses to appear and give evidence in the case. Their presence could be enforced by Section 92 of the Criminal Procedure Code in the event of their failing to appear. The difficulty arose because no recognizance was taken by the Police from the witnesses and the Prosecutor found himself unable to produce them and apply to the court to issue summons. Should the Court refuse to do it after having issued warrants at least against the two witnesses The answer in view of the observations made by Bhargava J., must be in the negative. Once the process was issued ends of justice required that it should have been enforced and the evidence of the witnesses recorded. The Magistrate was in error in refusing to assist the prosecution in the production of the witnesses and in acquitting the accused.
17. I, therefore, set aside this acquittal and direct the learned Magistrate to dispose of this casein accordance with law.