STATE OF RAJASTHAN versus SMT. MANBHAR ETC.

Citation: [1981] 3 S.C.R. 209 · Decided: 12-03-1981 · Supreme Court of India · Bench: A.D. KOSHAL · Disposal: Appeal(s) allowed

Judgment (excerpt)

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209 
STATE OF RAJASTHAN 
v. 
SMT. MANBHAR ETC. 
March 12, 1981 
[A.D. KoSHAL AND BAHARUL ISLAM, JJ.J 
Criminal Procedure Code, Section 378 (i}-Deputy Govt. Advocate whether 
means Public Prosecutor-Section 24 read with clause (u) of section 2-Authority 
of the Advocate General. 
The Advocate General of the Appellant State issued notification under 
section 94 read with clause (u) of section 2 of the Code of Criminal Procedure 
published on 25th of September, 1974, directing that three categories of various 
law officers of the Government including the Deputy Govt. Advocate shall have 
the authority to act and, plead and argue in all matters covered by the 
Code. 
A 
B 
c 
The High Court held that the Deputy Govt. Advocate had no locus standi 
D 
under the Code of Criminal Procedure to prefer an application under section 
378 thereof for leave to appeal against an order of acquittal recorded by a 
lower Court in a murder ease. The respondent contended that an application 
under Section 378 would be incompetent unless its contents disclosed that it was 
being presented by a Public Prosecutor. 
Accepting the appeals 
E 
HELD : (I) The High Court was not justified in throwing out the appli-
cation presented to it as one having been filed by a person incompetent to do 
so. 
For the application to be treated as incompetent, the High Court was bound 
to enquire into the status of the person presenting it and could throw it out 
only if it was found as a fact that he did not enjoy the status of a Public Prose-
cutor. Such a status is for all practical purposes settled by the notification dated 
25th September, 1974, of which after its publication in the Government Gazette, 
the High Court could take judicial notice. 
[211 G, 212 B-C] 
2(i) The Advocate General being admittedly a Public Prosecutor for the 
State High Court, he had the authority by virtue of the provisions of clause (u) 
of section 2 of the Code to issue directions authorising other persons to act; and 
once a person was so authorised, he 
would be Public Prosecutor for the pur-
pose of the Code. [21JE-F] 
(ii) A Deputy Government Advocate being- a person so authorised under 
the notification dated 25th September, 1974, is thus a Public Prosecutor having 
full competence to present an application under section 378 of the Code. [211F-G] 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 
285 of 1977. 
F 
G 
H 
A 
B 
c 
D 
E 
F 
G 
210 
SUPil.EME COURT REPORT 
(1981] 3 S.C.R. 
From the Judgment and Order dated 
29.7.1974 of the 
Rajasthan High Conrt in D. B. Cr. Leave to Appeal No. 839/74. 
AND 
Criminal Appeal Nos. I 0 & I 1 of 1976. 
Appeals by special leave from the Judgment and Order dated 
29.7.1974 of the Rajasthan High Court in D.B. Criminal Misc. 
Leave to Appeal No. 857/74 and D.B. Criminal Appeal No. 350/74. 
Badri Dass Sharma for the AppelJant in all the Appeals. 
S. Balakrishnan for RR in Criminal Appeal No. 10/76. 
The Judgment of the Court was delivered by 
KosHAL, J. 
By this Judgment we shall dispose of three 
appeals, viz., Criminal Appeals Nos. 10 and 11 of 1976 and Crimi-
nal Appeal 285 of 1977 in each of one of which the question 
arising for determination by us is the same. 
The first of them is 
by Special leave granted by this Court and the other two are by 
certificate granted by the High Court of Rajasthan against its three 
orders dated 29th July, 1974, all holding that the Deputy Govern-
ment Advocate of Rajasthan had no locus standi under the Code of 
Criminal Procedure thereinafter referred to as the Code) to prefer 
an application' under section 378 thereof for leave to appeal on 
behalf of the State against an order of acquittal recorded by a lower 
court in a murder case. 
2. 
The releunt provisions of the Code are sub-section (I) of 
section 378, sub-section (1) of section 24 and clause (u) of section 2. 
The same are reproduced below in that order:-
"378(1) : Save as otherwise proTided in sub-section (2) and 
subject to the provisions of sub-sections (3) and (5), the State 
Government may, in any case, direct the Public Prosecutor to 
present an appeal to the High Court from an original or 
appellate order of acqtiittal passed by any Court other than a 
High Court or an order of acquittal passed by the Court of 
Session in revision. 
H 
24. (J) : For every High Court, the Central Government 
or the State Govefllment shall, after consultation with the 
High Court, appoint a Public Prosecutor and may also appoin

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