ORDER
Amaresh Roy, J.
1. This Rule was issued by my learned brother Niyogi, J. on November 5, 1962, upon an application for revision made in this Court on behalf of two accused persons V.K. Godhwani and Bahadur Singh who along with another person named Sankdhari have been complained against by Shri S.N. Banerjee, Assistant Collector of Customs and Superintendent, Preventive Service as having committed alleged offences under Section 167(81) of the Sea Customs Act, 1878, and Section 5 of the Imports and Exports (Control) Act, 1947. Prosecution allegations are that on April 24, 1962, the said Sankdhari arrived at Dum Dum Air Port from Singapore on a return-journey air-ticket with baggages consisting of two handbags and two suit-cases and one camera. On opening two handbags and one suit-case, it was found that those contained a quantity of doubtful consumer goods including a particular type of cigarette cases, On examination of the leather suit-case, it was found to contain card-board boxes each containing 50 pieces of wrist watches and also a packet containing white stones which were subsequently found to be synthetic stones. Sankdhari is alleged to have made a statement that, by an arrangement with the other accused persons, he had acted as carrier of smuggled goods to be brought from Singapore to Calcutta and certain documents including one envelope addressed to the Manager, Wedge Wood Hotel, 5A, Sadar Street, Calcutta was found on search of the person of Sankdharij Petitioner No. 1, V.K. Godhwani is the Manager and petitioner No. 2 Bahadur Singh is the proprietor of the Wedge Wood Hotel. On April 25, 1962, an application was made before the Chief Presidency Magistrate, Calcutta by Shri S. C. Mukherjee, Assistant Collector of Customs, praying for search warrants under Section 172 of the Sea Customs Act, 1878, and search warrants were issued by the learned Chief Presidency Magistrate. On the same day, accused Sankdhari and V. K. Godhwani were produced before that learned Magistrate under arrest and they were released on bail. On May 4, 1962, accused Bahadur Singh surrendered by making a petition before the learned Chief Presidency Magistrate and he was also released on bail.
2. The complaint for alleged offences under Section 167(81) of the Sea Customs Act, 1878, and Section 5 of Imports and Exports (Control) Act, 1947 was filed before the learned Chief Presidency Magistrate on June 22, 1962 and cognizance was taken by an order recorded on that date. On the same date, the case was transferred to Shri A. K. Chatterjee, Presidency Magistrate, for disposal. This complaint was filed before the learned Chief Presidency Magistrate by the complainant named above and with it was appended a document bywhich S.K. Sribastava, Chief Customs Officer at Port of Calcutta, authorised Shri Sachindra Nath Banerjee, Assistant Collector of Customs and Superintendent, Customs Office, Calcutta, to the a complaint in Court by virtue of Section 187-A of the Sea Customs Act, 1878. By his order dated June 22, 1962, the learned Presidency Magistrate Shri A.K. Chatterjee fixed I2th July and 13 July for evidence.
3. On July 12, 1962, an application was filed before the learned Presidency Magistrate by a learned Advocate Mr. S.C. Roy Choudhury describing himself as 'Public Prosecutor' stating that
'he had been engaged by the State as the Public Prosecutor to conduct the prosecution of that case and he wanted to withdraw from, the prosecution 'through' Sankdhari in that case in order that he may be examined as a prosecution witness in the case.'
This petition was made under Section 494 of the Code of Criminal Procedure praying for consent of the Court for such withdrawal necessary under that section of the Code of Criminal Procedure. That was opposed on behalf of the other two accused persons and prayer was made on their behalf for an adjournment to address the Court on the prayer made on behalf of the prosecution. The learned Magistrate did not grant the adjournment prayed for and made an order saying:
'I do not see any reason to adjourn for hearing on the petition for withdrawal and in the circumstances stated by the prosecution in the petition permission is given to withdraw the case and the accused Sankdhari is discharged under Section 494, Cri. P. C.'
Thereafter, on the same date, when the Magistrate on the prayer of the prosecution proceeded to examine the discharged accused Sankdhari, defence again prayed for adjournment. But that prayer was also disallowed and the discharged accusedSankdhari was examined-in-chief on that very day. Then only, August 1, 1962, was fixed for cross-examination. But that cross-examination has beenadjourned at several instances thereafter and hasnot taken place in the Court of the Presidency Magistrate, when on November 5, 1962, this Court was moved for quashing the order dated July 12,1962, and upon issue of the Rule the proceedingof the Presidency Magistrate was stayed. The Rulewas issued on the ground No. III in the petitionwhich is in the these terms:
'III. For that the learned Special Public Prosecutor having not been properly acquainted on the material date, the permission given by the learned Magistrate to withdraw the case under Section 494, Cri. P. C. was illegal and without jurisdiction,'
4. In support of the Rule, the learned Advocate for the petitioners Mr. Nikhil Chahdra Talukdar has raised the contention that the learned Advocate Mr. S.C. Roy Choudhury is neither a Public Prosecutor appointed generally nor has hebeen properly appointed a Public Prosecutor evenfor this particular case by any order under Section 492 of the Code of Criminal Procedure and he was not a Public Prosecutor on July 12, 1962, when he made the application and sought to withdrawfrom the prosecution of Sankdhari under Section 494 of the Code of Criminal Procedure which can be made only by a Public Prosecutor. In paragraph 10 of the petition, it has been stated that in reply to a letter dated August 17, 1962, addressed to the Superintendent and Remembrancer of Legal Affairs, Government of West Bengal, it has been stated that Shri S.C. Roy Chowdhury, Advocate, had been engaged by the Collector of Customs with the approval of the Legal Remembrancer's office to conduct the prosecution in the case. The original letter giving that information being No. 9591 dated August 31, 1962, has been annexed to the petition as Annexure A.
5. The Rule was opposed on behalf of the State of West Bengal by Mr. Harideb Chatterjee, Advocate, The second opposite party, that is, the Assistant Collector of Customs has entered appearance by filing a Vakalatnama through Mr. Bejoy Kumar Bhose Advocate. Mr. Bhose led by Mr. Gurupada Kar appeared to oppose the Rule on behalf of the second opposite party. On behalf of that opposite party No. 2, an affidavit-in-opposition has been filed in this Court. That affidavit has been sworn to by Shri Brajendralal Saha, who is a Preventive Officer of Calcutta Customs. In paragraph 1 of that affidavit-in-opposition, he has stated that
'I am acquainted with facts and circumstances of the case and the appointment of Sri S.C. Roy Chowdhury Advocate for the prosecution before the learned trial Magistrate.'
Then in paragraph 5 of that affidavit-in-opposition he has denied that Shri S.C. Roy Choudhury was not properly appointed a Public Prosecutor. In paragraph 6, he has referred to the letter by Shri S.N. Banerjee for Additional Collector of Customs, Calcutta, requesting the Legal Remembrancer, West Bengal, to appoint Shri S.C. Roy Choudhury as Public Prosecutor and in paragraph 7 he has mentioned the letter No. 6853, dated June 20, 1962, of Shri S.N. Roy Choudhury, Assistant Legal Remembrancer for the Legal Remembrancer Government, of West Bengal. Both these letters have been made annexures to that affidavit-in-opposition. It appears from those annexures that while the letter No. S12(IV) 398/62P dated June 15, 1962, was a request
'To appoint Shri S.C. Roy Choudhury Advocate as Public Prosecutor for conducting the above case and convey the same urgently as the complaint is required to be filed within a week hereof.'
The letter No. 6853 dated June 20, 1962, by S.N. Roy Choudhury for Legal Remembrancer, West Bengal, was in these terms:
'Sanction is accorded to the engagement of Shri S. C. Roy Choudhury Advocate to conduct the prosecution in the above noted case before the Court of the Presidency Magistrate, Calcutta.'
Yet, in the affidavit-in-opposition, the deponent has sworn as true to his knowledge even that part where he has spoken of 'appointment' of Sri S.C. Roy Choudhury. It was contended also by Mr. G.P. Kar for opposite party No. 2 that Shri S.C. Roy Choudhury Advocate has been appointed a Public Prosecutor under Section 492 of the Code of Criminal Procedure by the State of West Bengaland that information was given by the letter No. 6853 dated June 20, 1962, abovementioned. As that letter, however, spoke only of a sanction accorded to the engagement of Shri S.C. Roy Choudhury and did not at all mention that he had been appointed a Public Prosecutor to conduct the case, the learned Advocate for the State Mr. Harideb Chatterjee prayed for and obtained time to enquire and ascertain the kind of such, order as may have been made in that respect. That time being granted, at the resumed hearing of the case, the learned Deputy Legal Remembrancer Mr. S.N. Banerjee himself appeared on behalf of the State of West Bengal and produced in Court the relevant file of the Office of the Legal Remembrancer and drew my attention to page 3 of the notesheet of that File No. PU 16/62 (ii) part (ii) bearing the heading 'Engagement of lawyers for conducting Customs Cases.' The relevant entry at page 3 of that notesheet shows that with reference to letter requesting appointment of Public Prosecutor a note was made on June 15, 1963, in these terms:
'As requested, sanction may be accorded to the engagement of Shri S.C. Roy Choudhury Advocate to conduct the prosecution in the case of seizure of 301 wrist watches under Customs Act.
Fees of the lawyer will be borne by the Department. Draft put up.'
This note bears many signatures below it and in the margin, one of which bearing the date '18/6' is the signature of the then Joint Secretary, Law (Judicial) Department and ex-officio Joint Superintendent and Remembrancer of Legal Affairs, West Bengal. The very look and the manner of that signature below the note shows that it was neither an order nor an expression of any executive decision on behalf of the State Government by the Joint Secretary. That signature may very well be only for approving the draft of the letter that was put up, i.e., the letter No. 6853 dated June 20, 1962, of the Office of the Legal Remembrancer, West Bengal, sent to the Additional Collector of Customs, Calcutta, to which I have made reference above. Therein it is said that sanction was accorded to the engagement of Shri S.C. Roy Choudhury. In the notesheet of that file at p. 5 appears that, when on behalf of the petitioners, a letter was written asking for information on this subject, there was an order made by Shri K.K. Hazara the Legal Remembrancer himself by his own hand on August 29, 1962, saying:
'Reply that he has been engaged by the Collector of Customs with the approval of this office.'
In obedience to that direction, the letter No. 9591 dated August 31, 1962, of the Office of the Legal Remembrancer, West Bengal, was written. That letter is Annexure A to the petition on which Rule issued.
6. The question that arises in this case is whether the petition purported to have been made under Section 494 of the Code of Criminal Procedure before the learned Presidency Magistrate Shri A.K. Chatterjee on July 12, 1962, was an application by a Public Prosecutor. Answer to that question is depended on the answer to the other question equally important whether Shri S.C. Roy Choudhury Advocate was a Public Prosecutor under Section 492 of the Code of CriminalProcedure or was a person included in the definition of 'Public Prosecutor' in Section 4(1)(t) of the Code of Criminal Procedure. Section 492 of the Code of Criminal Procedure is in these terms:
'Section 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 person, 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.''
7. Section 4(1)(t) of the Code of Criminal Procedure defines Public Prosecutor thus:
' '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 High Court in exercise of its Original Criminal Jurisdiction.'
8. By the effect of these two provisions in the Code emerges the result that there are four categories of Public Prosecutors.
(1) Public Prosecutor may be appointed directly by State Government under Section 492(1) for a 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, District Magistrate or Sub-Divisional Officer may appoint any other person as Public Prosecutor for any case under Section 492(2).
(3) Public Prosecutor may engage any person to act under his directions and that person so engaged becomes a Public Prosecutor derivatively by the definition in Section 4(1) (t).
(4) Any person conducting a prosecution on behalf of Government in High Court in exercise, of its Original Criminal Jurisdiction.
9. Of these, the first and second are direct appointments under Section 492 of the Code of Criminal Procedure, and third is derivative engagement by Public Prosecutor and the fourth direct engagement by Government under the definition in Section 4(1)(t) of the Code of Criminal Procedure. This last category is only in High Court in its Original Criminal Jurisdiction.
10. Outside High Court besides Public Prosecutors appointed under Section 492 of the Code of Criminal Procedure, only other kind of Public Prosecutor recognised by law is a person who is engaged to act under the directions of the Public Prosecutor in that local area. It is also clear that engagement by the Government, either State Government or Central Government to conduct prosecution makes a person Public Prosecutor only in High Court in its Original Criminal Jurisdiction and not in any other Court. By Notification No. 125-J. D. dated May 7, 1915, published in Calcutta Gazette dated May 19, 1915, Part I page 934, the Superintendent and Remembrancer of Legal Affairs, Government of Bengal, is ex officioPublic Prosecutor, in all cases coming before the Calcutta High Court on its Appellate Side. This appointment was under Section 492 pf the Code of Criminal Procedure.
11. How important it is for the Court to be certain that a lawyer claiming to appear as a Public Prosecutor has been appointed or engaged by one or the other of the modes prescribed by law can be seen from what happened in this Court before the Special Bench (Jenkins C.J., Stephen and Mookerjee JJ.) in the celebrated case of Legal Remembrancer v. Matilal Ghose, reported in ILR 41 Cal 173 : (AIR 1914 Cal 69 (SB)).
12. In that case, a petition for committing Matilal Ghose Editor and Manager, and Tarini Kanta Biswas, Printer and Publisher of Amrita Bazar Patrika, for contempt of Court was made on June 6, 1913, by the Superintendent and Remembrancer of Legal Affairs as ex officio Public Prosecutor Bengal, to this High Court at first before the Division Bench and was moved by the Advocate General. When the locus standi of the Legal Remembrancer to maintain the application was doubted by the Division Bench, the Advocatd General stated to the Court that he was moving on behalf of His Excellency the Governor of Bengal in Council. Leave was accordingly given to the Advocate General to move on behalf of the Government of Bengal in Council, and not of the Officer described as Legal Remembrancer. At the hearing before the Special Bench, existence of such on Officer was questioned and reference was made to Reg. IX of 1798, Reg. VIII of 1816 and Reg. XIII of 1829, Act VIII of 1868. The ILR Report at p. 184 shows the doubts expressed by Jenkins C.J, and also by Mookerjee, J. in this way:
Jenkins C.J. If we are moved on our Original Jurisdiction, how can the Legal Remembrance move
I am appearing on behalf of the Government of Bengal on the instruction of the Legal Remembrancer, who is a public officer. But I can move your Lordships in your Appellate Jurisdiction. It does not matter how the contempt is brought to your notice, particularly when a public officer of law does it: Reg v. Parke, (1903) 2 KB 432.
(Jenkins C. J. The notice of motion does not exactly follow the order made by us. We wanted it to be an application by the Governor in Council,
I ask leave to amend accordingly.)
(Mookerjee, J. Who is the Legal Remembrancer? Can he be said to hold any statutory office?).
See Reg. VIII of 1816, Reg. XIII of 1829 (which repealed Reg. VIII of 1816) and Act VIII of 1868 (repealing Reg. XIII of 1829.).'
In his judgment, Chief Justice Jenkins said:
'The existence too of such an officer as 'a Superintendent and Remembrancer of Legal Affairs and ex officio Public Prosecutor, Bengal' has been questioned, and reference was made to Regulation IX of 1793, Regulation VIII of 1816 and Regulation XIII of 1829.
By way of reply certain Government notifications were brought to our notice. But in the events that have happened it is unnecessary to pursue thistopic further. Both sides being anxious to have a decision on the merits, we have permitted an amendment that would regularize these proceedings and bring them into conformity with the order of the 6th of June. The necessary authority for this has now been obtained and the required amendment will be treated as made, as though His Excellency the Governor in Council were added as an applicant.'
Mookerjee, J. said:
'In so far as the first of these questions is concerned, it is necessary to state that when the application was made on the 6th June last, it was observed by the Court that it purported, on the face of it, to be made by the Superintendent and Remembrancer of Legal Affairs and ex officio Public Prosecutor, The Court declined to entertain the application, till it was stated by the Advocate-General that he moved on behalf of His Excellency the Governor of Bengal in Council. Special leave was thereupon granted to the Advocate-General to serve notice of motion upon the two persons against whom the application was made. Notice was subsequently served, as well upon the alleged editor and manager as upon the printer and publisher. The application, however, it transpired at the hearing, was not amended, and even after special leave had been granted to the Advocate-General to move on behalf of His Excellency the Governor of Bengal in Council, the application stood as if it was made by the Superintendent and Remembrancer of Legal Affairs and the notice of motion ran in the same terms. Under these circumstances, the printer and publisher has urged that there is no proper application before the Court. This contention is manifestly well founded. It has been argued that the office of Legal Remembrancer, mentioned in Regulation IX of 1793 and formally created by Regulation VIII of 1816 was abolished by Regulation XIII of 1829 and the repeal of the Regulation last mentioned by Act VIII of 1868 did not operate to revive the office as a statutory office. To this argument, no serious answer has been attempted on behalf of the Crown, but it has been stated that by Resolution of Government in 1845, the office was revived and has since then been continued. It has also been stated that the Legal Remembrancer is, by executive order, Judicial Secretary to the Government and ex-officio Public Prosecutor for the Presidency of Bengal. This is obviously immaterial for our present purposes. Leave was explicitly granted to the Advocate General to move on behalf of His Excellency the Governor in Council, on the faith of the assurance that the application had been authorised by the Governor-in-Council. The application ought to have been drawn up accordingly, and notice of motion served in strict conformity therewith. It is indisputable that this has not been done. The Legal Remembrancer is not shown to be competent to appear and act on behalf of the Crown on the Crown Side of this Court; yet, as transpired at the hearing, no power of attorney had been filed till three days after leave to serve notice had been obtained from this Court. It would be a mistake to suppose that this is a mere matter of form; it is plainly a matter of vital importance for the party against whom the order is sought, to know theperson or persons at whose instance the application is made; if the application is refused, he is entitled to know who is responsible for his costs; if, on the other hand, the application is successful, he is entitled to know who is the respondent in a possible appeal by him. In view of these circumstances, and also in view of the fact that the proceeding is in the nature of a criminal proceeding, the Court is bound to insist that the application on behalf of the Crown would be made with some approach to regularity and accuracy.'
13. That case was decided fifty years ago in 1913 and the words of Mookerjee J. were recognised then as judicial thunder subdued though by dignified restraint. Those still resound not only within the walls of this Court but also in the heart of every one who has anything to do with law and law Courts where trials must be held under due process of law and every act must be performed not only 'with some approach to regularity and accuracy' but also with strict compliance of provisions enshrined in the statute for protection of the accused and to ensure fair trial on legal evidence. Echo of that thunder seems to have dulled in the Court of the Presidency Magistrate who has thwarted all attempts of the defence in the approach to regularity and accuracy of compliance with Section 494 of the Code of Criminal Procedure.
14. Importance of that approach to regularity and accuracy was again emphasised by that learned and eminent Judge. The Hon'ble Mr. Justice Ashutosh Mookerjee when presiding over a Division Bench that decided the case of Deputy Legal Remembrancer, Bengal, v. Gaya Prosad, reported in ILR 41 Cal 425 : (AIR 1914 Cal 560). In that case, an appeal against an order of acquittal by the Province of Bihar and Orissa was presented in this High Court not by the Legal Remembrancer of Bihar and Orissa who had been appointed already but at his request by Legal Remembrancer of Bengal under Section 417 of the Code of Criminal Procedure. It was held:
'Section 417 of the Criminal Procedure Code lays down that the Local Government may 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 direction must be given to a Public Prosecutor. Be it conceded that the direction may be given in a letter whereby the Public Prosecutor is appointed as such, yet it does not follow that the mere fact that a person has been directed to present an appeal to the High Court from an Order of acquittal involves his appointment as Public Prosecutor for the purposes of the case. Indeed in view of the fact that the Province of Bihar and Orissa has a Legal Remembrancer, it is extremely improbable that the Legal Remembrancer of Bengal could ever have been intended to be, appointed Public Prosecutor in a case from that Province. In a case of this description, whore the liberty of the subject is involved and an appeal is sought to be preferred against an order of acquittal, the statute must be strictly construed and full compliance with its provisions required.'
15. The appeal was held to be incompetent and was dismissed on that ground alone. Duringhearing of that case, when definition in Section 4 (1) (t) was quoted, Mookerjee J. observed:
'Mookerjee J. 'The words you quote mean acting either 'directly' under authority of Government by being appointed a Public Prosecutor, or 'derivatively' under authority from the Legal Remembrancer so appointed a Public Prosecutor'. It does not follow that, if a person acting under the authority of the Legal Remembrancer is a Public Prosecutor, a person acting under the authority of Government is also a Public Prosecutor. Then Section 417 of the Criminal Procedure Code may stand in your way.'
16. In the present case, the Presidency Magistrate was concerned with an application purported to have been made under Section 494 of the Code of Criminal Procedure. That Section is in these terms:
'494. Any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution of any person (either generally or in respect of anyone or more of the offences for which he is tried); and upon such withdrwal,--
(a) if it is made before a charge has been framed, the accused shall be discharged (in respect of such offence or offences);
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted (in respect of such offence or offences)'.
17. Even if it be conceded that an application under that section need not be by a Public Prosecutor 'directly' appointed by the State Government under Section 492 of the Code of Criminal Procedure, but can be made also by a Public Prosecutor engaged 'derivatively'' to conduct prosecution in a particular case under the direction of a Public Prosecutor as is mentioned in definition in Section 4 (1) (t) of the Code of Criminal Procedure, it was necessary for the learned Presidency Magistrate to be satisfied on some material produced before him that the learned Advocate who made his appearance in that case for the first time was such a Public Prosecutor. That is a prerequisite of the consent of the Magistrate being given and its importance cannot be overstated because it affects the liberty of the two co-accused and legality of the trial.
18. In course of his arguments, Mr. G.P. Kar contended that in the present case Mr. S.C. Roy Chowdhury was a person appointed under Section 492 of the Code of Criminal Procedure to be a Public Prosecutor for the purpose of this particular case before the Presidency Magistrate. The learned Deputy Legal Remembrancer Mr. Banerjee has also taken the position that, if at all, Mr. S.C. Roy Choudhury was a person appointed under Section 492 of the Code of Criminal Procedure for the purpose of this case and he does not come within the second part of the definition in Section 4 (1) (t) of the Code of Criminal Procedure. I have no hesitation in repelling these contentions of both the learned Counsel because not only there is nothing in the records in support of that contention but also none of the documents disclosed and produced before me can by any means be an order of appointment by the State Government under Section 492 of the Code of Criminal Procedure. I mention these documents in seriatim according to their dates below:
(1) The letter dated June 15, 1962, by the Additional Collector of Customs made a request to the Legal Remembrancer, West Bengal-
'To appoint Shri S.
C. Roy Choudhury Advocate as
Public Prosecutor.'
(2) In the notesheet sanction was accorded on, June 18, 1962, to the 'engagement of Shri S.C. Roy Choudhury' Advocate to conduct the prosecution in the case and the then Joint Secretary, Law (Judicial) Department and ex officio Joint Superintendent and Remembrancer of Legal Affairs, West Bengal, appended his signature to that note seeking approval of the draft of the letter that was put up. That was on June 18, 1962.
(3) The letter No. 6853 dated June 20, 1962 of the Office of the Legal Remembrancer, West Bengal said:
'Sanction is accorded to the 'engagement of Shri S. C. Roy Choudhury' to conduct the prosecution.'(4) In the petition filed before the PresidencyMagistrate by Mr. S.C. Roy Choudhury describinghimself as Public Prosecutor on July 12, 1962,said:
'The undersigned has been 'engaged by the State' as the Public Prosecutor to conduct the prosecution.' (5) The order dated August 29, 1962, Legal Remembrancer in the notesheet at page 5 said:
'He has been 'engaged by the Collector of Customs' with the approval of this office.' (6) The letter No. 9591 dated August 31, 1962 of the Office of the Legal 'Remembrancer, West Bengal, said:'Shri S.C. Roy Choudhury has been 'engagedby the Collector of Customs' with the approval ofthis office to conduct the prosecution in the abovementioned case.'
19. From all this, it appears clear that Mr. S.C. Roy Choudhury Advocate was not by any means appointed as a Public Prosecutor under Section 492 of the Code of Criminal Procedure as has been contended by the learned Deputy Legal Remembrancer on behalf of the State and by Mr. G.P. Kar on behalf of the Assistant Collector of Customs. Mr. S.C. Roy Choudhury was engaged by the Collector of Customs and sanction was accorded to that engagement by what appears in the notesheet of the file in Legal Remembrancer's Office.
20. Mr. Kar advanced an argument that the word 'engage' has the same connotation as the word 'appoint'. Not only this argument does violence to the English language but also neglects an essential part in the definition given in Section 4 (1) (t) of the Code of Criminal Procedure. The second part in that definition, as I have already mentioned, includes 'any person acting under the directions of a Public Prosecutor', as distinct fromthe first part in the same definition which mentions 'any person appointed under Section 492.' A person acting under the directions of a Public Prosecutor is obviously a person engaged by the Public Prosecutor. That it is so appears from the several provisions in the Legal Remembrancer's Manual, 1930. Particular mention may be made of
1. Sub-Rule (4) of Rule 5 in Chapter I of that Manual which says:
'When the Deputy Legal Remembrancer is unable to dispose of the work entrusted to him he 'may engage' a Barrister or a Pleader (including the Assistant Government Pleader)....' and 2. Sub-rule (9) of Rule 6 in Chapter II of that Manual which says:
Whenever the Public Prosecutor of the district is not available for the purpose of conducting prosecution in Magistrate's court the Magistrate of the district 'may engage' any Pleader of sufficient standing at the Bar to take the duties of the Public Prosecutor subject to the sanction of the Legal Remembrancer..........'
Those provisions in the Manual can only be understood as implementing the second part of the definition of 'Public Prosecutor' in Section 4 (1) (t) of the Code of Criminal Procedure. There cannot be any doubt in my view, therefore, that appointment under Section 492 of the Code of Criminal Procedure by the State Government is very much different from an engagement by the Public Prosecutor of another person to act under his directions to conduct the prosecution.
21. The learned Deputy Legal Remembrancer Mr. Banerjee has argued that what appears in the note-sheet of the Office File at p. 3 should be taken to be an 'order of appointment' by the Joint Superintendent and Remembrancer and Joint Secretary under Section 492 of the Code of Criminal Procedure. Mr. Banerjee referred to the Rules of Business of Government of West Bengal to show that a 'Joint Secretary' is included in the definition of 'Secretary' and contended that such an entry in the notesheet of the file when signed by the Joint Secretary should be taken as an order of the State Government of West Bengal, though it has not been made in a particular form. In making that submission, Mr. Banerjee had to endeavour to overcome Article 166 of the Constitution of India, because Mr. Banerjee could not get away from the fact that an act of appointment under Section 492 of the Code of Criminal Procedure is an executive function of the State that would require an order expressed in the name of the Governor. To overcome that difficulty, Mr. Banerjee sought aid from the decision of the Supreme Court in Dattatraya Moreshwar v. State of Bombay, reported in : 1952CriLJ955 and contended that every executive decision need not bs formally expressed and that an omission to make an authentic and executive decision in the form mentioned in Article 166 does not make the decision illegal. But the distinction of the facts in the present case from those in Dattatraya's case, : 1952CriLJ955 is obvious inasmuch as, in that case( there was an order signed by an Assistant Secretary to the Government of Bombay, Home Department, forthe Secretary of that Department contained in a confidential letter addressed to the District Magistrate, Surat, saying:
'Government is accordingly pleased to confirm.'
and that was accepted by the Supreme Court as sufficient expression of the executive decision of the Government though not expressed in the form mentioned in Article 166. But in the present case, there is nothing at all, in any form whatever, giving, an expression to executive decision to make an appointment. Moreover, Section 492 of the Code of Criminal Procedure requires not merely an executive decision but an executive action of appointment. I may also refer to the passage in the judgment of Das J. occurring at pp. 537-38 of that report (SCA) : (at p. 185 of AIR) where his Lordship said:
'Under Section 11 (1), as under Section 13, the appropriate Government has to apply its mind and come to a decision. Whether we call it an order or merely an executive action makes no difference in the legal incidents of the decision. Section 11 (1) plainly requires an executive decision as to whether the detention order should or should not be confirmed. The continuation, of the detention as a physical fact automatically follows as a consequence of the decision to confirm, the detention order and, for reasons stated above, does not require, any further executive decision to continue the detention. It follows, therefore, that the Preventive Detention Act contemplates and requires, the taking of an executive decision either for confirming the detention order under Section 11 (1) or for revoking or modifying the detention order under Section 13. But the Act is silent as to the form in which the executive decision, whether it is described as an order or an executive action, is to by taken. No particular form is prescribed by the Act at all and the requirements of the Act will be fully satisfied if it can be shown that the executive decision has in fact been taken. It is at this stage that learned counsel for the petitioner passes on to Article 166 of the Constitution and contends that all executive action of the Government of a State must be expressed and authenticated in the manner therein provided. The learned Attorney-General points out that there is a distinction, between the taking of an executive decision and giving formal expression to the decision so taken. Usually executive decision is taken on the office files by way of notings or endorsements made by the appropriate Minister or officer. If every executive decision has to be given a formal expression the whole governmental machinery, he contends, will be brought to a standstill, I agree that every executive decision need not be formally expressed and this is particularly so when one superior officer directs his subordinate to act or forbear from acting in a particular way, but when the executive decision affects an outsider or is required to be officially notified or to be communicated it should normally be expressed in the form mentioned in Article 166(1), i.e., in the name of the Governor.'* * * *
'Strict compliance with the requirements of Article 166 gives an immunity to the order in thatit cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that Article are not complied with, the resulting immunity cannot be claimed by the State. This, however, does not vitiate the order itself. The position, therefore, is that while the Preventive Detention Act requires an executive decision, call it an order or an executive action, for the confirmation of an order of detention under Section 11 (1) that Act does not itself prescribe any particular form of expression of that executive decision. Article 166 directs all executive action to be expressed and authenticated in the manner therein laid down but an omission to comply with those provisions does not render the executive action a nullity. Therefore, all that the procedure established by law requires is that the appropriate Government must take a decision as to whether the detention order should be confirmed or not under Section 11 (1). That such a decision has been in fact taken by the appropriate Government is amply proved on the record. Therefore, there has been, in the circumstances of this case, no breach of the; procedure established by law and the present detention of the petitioner cannot be called in question.'
22. In the judgment of Mukherjea J. in the same case, the point has been discussed in the passage occurring at page 544-45 of the report (SCA) : (at pp. 187-188 of AIR) :
'The other contention raised by the learned Attorney-General involves consideration of the question as to whether the provision of Article 166(1) of the Constitution is imperative in the sense that non-compliance with it would nullify or invalidate an executive action. The clause does not undoubtedly lay down how an executive action of the Government of a State is to be performed; it only prescribes the mode in which such act is to be expressed. The manner of expression is ordinarily a matter of form, but whether a rigid compliance with a form is essential to the validity of an act or not depends upon the intention of the legislature. Various tests have been formulated in various judicial decisions for the purpose of determining whether a mandatory enactment shall be considered directory only or obligatory with an implied nullification for disobedience. It is unnecessary for our present purpose to discuss these matters in detail. In my opinion, Article 166 of the Constitution which purports to lay down the procedure for regulating business transacted by the Government of a State should be read as a whole. Under Clause (3) the Governor is to make rules for the more convenient trails-action of such business and for allocation of the same among the Ministers in so far as it does not relate to matters in regard to which the Governor is required to act in his discretion. It is in accordance with these rules that business has to be transacted. But whatever executive action is to be taken by way of an order or instrument, it shall be expressed to be taken in the name of the Governor In whom the executive power of the State is vested and it shall further be authenticated in the manner specified in the rules framed by the Governor. Clauses (1) and (2) of Article 166 in my opinion are to be read together. Clause (r) cannot be taken separately as an independent mandatory provisiondetached from the provision of Clause (2). While Clause (1) relates to the mode of expression of an executive order or instrument, Clause (2) lays down the way in which such order is to be authenticated--and when both these forms are complied with an order or instrument would be immune from challenge in a court of law on the ground that it has not been made or executed by the Governor of the State. This is the purpose which underlies these provisions and I agree with the learned Attorney-General that non-compliance with the provisions of either of the clauses would lead to this result that the order in question would lose the protection which it would otherwise enjoy, had the proper mode for expression and authentication been adopted. It could be challenged in any court of law even on the ground that it was not made by the Governor of the State and in case of such challenge the onuswould be upon the State authorities to show affirmatively that the order was in fact made by theGovernor in accordance with the rules framed under Article 166 of the Constitution.'* * * *
'Even if Clause (1) of Article 166 is taken to foe independent provision unconnected, with Clause (2) and having no relation to the purpose which is indicated therein, I would still be of opinion that it is directory and not imperative in its character. It prescribes a formality for the doing of a public act. As has been said by Maxwell (Maxwell on Interpretation of Statutes, pp. 379-80), where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, pr in other words, as directory only. In the present case the order under Section 11 (1) of the Preventive Detention Act, purports to be an order of the Government of Bombay and is signed by the officer whowas, competent to sign according to the rules framed by the Governor under Article 166 of the Constitution, and in these circumstances I am unable to told that the order is a nullity even though it has not been expressed to be made in the name of the Governor.'
With this view Patanjali Sastri C.J. and Chandrasekhara Aiyar, J. concurred but Mahajan J. dissented. The majority view expressed in the passages I have quoted above clearly makes the distinction between an executive decision and executive action. The matter in issue in the case before the Supreme Court was a matter of confirmation of detention under the Preventive Detention Act. By interpretation of Section 11 (1) of that Act, the Supreme Court in that case held that it was a matter only of executive decision. But the matter of appointment of a Public Prosecutor under Section 492 of the Code of Criminal Procedure is more than an executive decision. It is a matter of executive action that requires to be made known. I have no doubt, therefore, that an act of appointment of a Public Prosecutor under Section 492 of the Code of Criminal Procedure which is an executive function of theState Government has to comply with the requirement of Article 166 (2) of the Constitution of India,
23. In any case, what appears in the note-sheet does not even give expression to any executive decision of the Government of West Bengal. It is not an order or decision to appoint a Public Prosecutor and is no more than a note in the Office of the Legal Remembrancer, West Bengal, according sanction to an engagement of a lawyer; the then Joint Secretary, Law (Judicial) Department and ex officio Joint Legal Remembrancer, Government of West Bengal may have only given approval to the draft of the letter that was put up. By its own language, that note does not give expression to any executive decision to appoint a Public Prosecutor but only affords sanction to engagement--a sanction which need not be of the State Government, but only of the Legal Remembrancer or the Joint Legal Remembrancer.
24. I hold, therefore, that Mr. Roy Choudhury was not appointed a Public Prosecutor by the State Government under Section 492 of the Code of Criminal Procedure. It has to be noticed, however, that Mr. Roy Choudhury, in the application that he filed before the learned Presidency Magistrate, said that he was 'engaged by the State as Public Prosecutor'. Therefore it is necessary to see whether that claim of his, though contrary to what the learned Deputy Legal Remembrancer, for the State of West Bengal and Mr. G.P. Kar for the complainant have contended before me, was the true state of facts. I have already referred to the definition of Public Prosecutor in Section 4 (1) (t) of the Code pf Criminal Procedure, By that definition, besides the Public Prosecutor appointed under Section 492 of the Code of Criminal Procedure, 'any person acting under the directions of Public Prosecutor' is also a Public Prosecutor. This part of the definition includes in it a person who may be engaged by a Public Prosecutor for conducting the prosecution of a case by acting under his directions. 'Engaged by the State', as claimed by Mr. S.C. Roy Choudhury in his application before the Presidency Magistrate, is not within the definition of 'Public Prosecutor'. That language may have been a mistake or even a loose expression for connoting that he had been engaged by a Public Prosecutor. Even if it could be found that the learned Advocate Mr. S.C. Roy Choudhury had been engaged by the Superintendent and Remembrancer of Legal Affairs, then it would be an engagement by a Public Prosecutor, because by notification No. 125 J.D. dated May 7, 1915, that high officer of the Government of West Bengal was appointed to be ex officio Public Prosecutor under Section 492 of the Code of Criminal Procedure, But that even would not make Mr. S. C. Roy Choudhury a Public Prosecutor in the Court of the Presidency Magistrate at Calcutta, because the notification above mentioned appointed the Superintendent and Remembrancer of Legal Affairs to be ex officio Public Prosecutor only 'in all cases coming before the Calcutta High Court on its Appellate Side', By that appointment, the Superintendent and Remembrancer of Legal Affairs, Government of West Bengal, is not a Public Prosecutor in relation to the Court of the Presidency Magistrate at Calcutta. Even if we assume that by dint of his appointment, a Joint Superintendent and Remembrancer of Legal Affairs, West Bengal, should be deemed also to be a Public Prosecutor, even then he will be a Public Prosecutor only in cases coming before the Calcutta High Court on its Appellate Side and not in the subordinate Court of the Presidency Magistrate at Calcutta. A further assumption that by appending his signature in the office-note in the file, the then Joint Superintendent; and Remembrancer of Legal Affairs engaged Mr. S.C. Roy Choudhury to conduct the prosecution, that also will not avail in the Court of the Presidency Magistrate at Calcutta. But these assumptions are overcome and set at naught by the other entry in the same file dated August 29, 1962, whereby the Superintendent and Remembrancer of Legal Affairs, Government of West Bengal Shri K.K. Hazara by his own pen said 'he has been engaged by the Collector of Customs with the approval of this office.' That settles all doubts and all controversies and establishes as a fact that engagement of Shri S.C. Roy Choudhury to conduct the prosecution in the Court of the Presidency Magistrate was neither by the State or by any Public Prosecutor, nor by the Superintendent and Legal Remembrancer Shri K.K. Hazara, nor by the then Joint Superintendent and Remembrancer of Legal Affairs. It was an engagement by an officer of the Government of India, that is, the Collector of Customs who by no means is a Public Prosecutor. Therefore, the claim of the learned Advocate Mr. S. C. Roy Choudhury that he has been engaged by the State was incorrect, and the description under which he appended his signature to that application describing himself as a Public Prosecutor is a misnomer. Mr. S.C. Roy Choudhury was not the Public Prosecutor, because he was neither appointed by the State Government as such under Section 492 of the Code of Criminal Procedure nor was he engaged by any Public Prosecutor in the Court of the Presidency Magistrate, Calcutta, to conduct the prosecution under his directions. Result has been that a learned lawyer, who was not a Public Prosecutor, made an application before the Presidency Magistrate purporting to act under Section 494 of the Code of Criminal Procedure as a Public Prosecutor and obtained an order of the Court giving consent to withdrawal of prosecution under that section. This not only reveals deplorable performance in that Court but also has entailed an illegality of the gravest magnitude in the proceeding itself, I have already mentioned that the complaint had been filed in the Court of the Chief Presidency Magistrate on June 22, 1962. Although that was two days after the day on which Mr. S. C. Roy Choudhury claims to have been engaged as a Public Prosecutor, that application was not filed through him but was filed by the complainant acting on his own. Not only so; from that day onwards until July 12, 1962, there is nothing in the whole of the record to show that Mr. S.C. Roy Choudhury was conducting the prosecution, far less that he was doing so as a public prosecutor. On July 12, 1962, which was the date for examination of witnesses, for the first time the application was made by Mr. Roy Choudhury describing himself as Public Prosecutor, When that application was made on behalf ofthe accused persons praying for adjournment it was pressed obviously because they were taken by surprise and they wanted to ascertain whether Mr. S.C. Roy Choudhury had properly been appointed as a Public Prosecutor or was engaged by a Public Prosecutor that could make him a Public Prosecutor by the definition in Section 4(1)(t) of the Code of Criminal Procedure. This prayer of the other two accused persons was turned down by the learned Presidency Magistrate and that with unseemly hurry without having anything before him that would satisfy him on that very material point. He accepted Mr. S.C. Roy Choudhury to be a Public Prosecutor and made an order under Section 494 giving consent to withdrawal from prosecution prayed for on that basis. Having made that order when the Magistrate was going to examine as a witness the erstwhile accused person, at that stage also defence prayed for an adjournment. With unseemly hurry, again, that prayer also was turned down and , the proceedings were rushed by having that accused person examined as prosecution witness No. 1 on that very day. Only at the conclusion of his examination-in-chief, the learned Presidency Magistrate granted the adjournment and postponed cross-examination, Defence utilised that interregnum to enquire by addressing a letter to the office of the Superintendent and Legal Remembrancer, Government of West Bengal, and reply elicited the letter No. 9591 by which for Legal Remembrancer, West Bengal it was said that Shri S.C. Roy Choudhury has been engaged by the Collector of Customs. That letter, which is based on the order of Shri K.K. Hazara on the notesheet dated August 29, 1962, knocks the bottom out of the claim of Mr. S.C. Roy Choudhury that he was 'engaged' by the State as 'Public Prosecutor' and also of the arguments advanced before me by the learned Deputy Legal Remembrancer for the State of West Bengal and by Mr. G.P. Kar for the complainant opposite party that Mr. Roy Choudhury was 'appointed' by the State Government as a Public Prosecutor. All those have been extravagant claims. In any event, it was only proper for the learned Magistrate to call for some material to satisfy himself that the application was by a person who was a Public Prosecutor; more so, when defence raised objection and wanted time to look into the matter. This was pre-eminently necessary before the learneds Presidency Magistrate gave his consent under Section 494 of the Code of Criminal Procedure. Nothing has been pointed out in the records or outside it that could provide justification or even a faint reason for such hurry by the Presidency Magistrate. That hurry has resulted in grave illegality. The application made on July 12, 1962, not having been made by a Public Prosecutor; withdrawal from the prosecution in respect of the first accused has been illegal. His examination as a witness has been illegal too. The entire order dated July 12, 1962, must, therefore, be set aside and the record of deposition of Sankdhari as P. W. 1 must be expunged from the records physically. For ends of justice, it is necessary that the case shall be dealt with by another Presidency Magistrate to be nominated by the Chief Presidency Magistrate of Calcutta. The case should be proceeded with from the stage immediately before July 12, 1962, in accordance with law and in the light of the observations made above.
25. The Rule is made absolute.
26. Let the records be sent down without delay.