The period of service as a Judicial Officer or as an employee of the Government working as a Police Prosecuting Officer or as an Assistant Public Prosecutor cannot be counted towards the requisite period of not less than ten years practice as an advocate for appointment as a Special Public Prosecutor.

( 1 ) THE petitioners, who were accused in Sessions Case No. 10 of 1975 on the file of the Additional Metropolitan sessions Judge, Hyderabad, have filed this petition under Article 226 of the Constitution for the issue of a writ of quo wananto against respondents 1, 2 and 3, who have been appointed as Special public Prosecutors for prosecuting the petitioners in the said sessions case.

( 2 ) ACCORDING to the petitioners, section 24 (6) of the Criminal Procedure Code, 1973, lays down certain qualifications for a person to be eligible for appointment as a special Public Prosecutor and the respondents do not possess the requisite qualifications prescribed by the said provision. It is on that ground that they challenge the appointments of the respondents.

( 3 ) THE 1st respondent, Sri K. V. L. Narasimha Rao, was enrolled as a First grade Pleader in October, 1947 under the pleaders Act (VI of 1318 Fasli ). He practised until his appointment as a district Munsif in the then Hyderabad judicial Service on 23rd September,1949. He retired as a District Judge on 29th november, 1973. He got his name entered on the rolls of the Advocates in january, 1974 under the provisions of the advocates Act, 1961. The Government appointed him as a Special Public Prosecutor by G. O. Ms. No. 1392, Home (Courts-C) Department, dated 4th October, 1975. In so appointing him as special Public Prosecutor, the Government exercised the power conferred upon it under sub-section (6) of section 24 of the Criminal Procedure Code, 1973. He was appointed as Special Public prosecutor to conduct prosecution in the present sessions case, which was then at a preliminary enquiry stage.

( 4 ) THE 2nd respondent, Sri V. Satya- narayana Raju, was enrolled as an advocate of the Madras High Court on 3rd November, 1947. He was appointed as a Police Prosecuting Officer on 9th June, 1952.

( 5 ) THE third respondent, Sri M. V. Chalapathi Rao, was enrolled as an advocate of the Madras High Court in 1941 and was appointed as an Assistant public Prosecutor Grade II in June, 1945.

( 6 ) THE 2nd and 3rd respondents continued to hold the office of Police Prosecuting officer or Assistant Public Prosecutor, as the case may be, until they were appointed as Special Public Prosecutors under G. O. Ms. No. 1131, Home (Courts-G) Department dated 17th august, 1974.

( 7 ) THE case of the 1st respondent is that his judicial service should be taken into account for purposes of the qualification prescribed in section 24 (6), Criminal Procedure Code, 1973 and the case respondents 2 and 3 is that their service as Police Prosecuting Officer or as Assistant Public Prosecutor, as the case may be, should be counted towards the period of practice prescribed in section 24 (6 ).

( 8 ) MR. Kannabiran, the learned Counsel appearing for the petitioners, contended that the mandatory requirement of section 24 (6) is that a person to be appointed as a Special Public Prosecutor must be an Advocate who has been in practice for not less than ten years and that the period of service either as a Judicial Officer or as an employee of the Government working as a Police prosecuting Officer or as an Assistant public Prosecutor has to be excluded for computing the requisite period of not less than ten years practice as an advocate.

( 9 ) THE learned Advocate-General appearing for the respondents contended that a Police Prosecuting Officer or an assistant Public Prosecutor does not cease to be an Advocate merely by reason of his appointment as a Police prosecuting Officer or as an Assistant public Prosecutor, as he is empowered by virtue of the rules which govern his service conditions to appear and plead in the Magistrate s Courts. In other words, a person, who discharges the functions of an Assistant Public Prosecutor in the Magistrates Courts and who, day in and day out, conducts cases on behalf of the prosecution, cannot be equated to a Government employee, who does not appear or plead in a Court, alt