A Public Prosecutor is precluded from appearing for the accused in a criminal case after ceasing to be the Public Prosecutor, if he has taken steps in furtherance of the prosecution of the case.

( 1 ) THIS criminal miscellaneous petition is presented by the Government of Andhra Pradesh under Section 126 of the Indian Evidence Act and Section 561-A of the Criminal Procedure Code, for directing Shri R. V. Rama Rao, Ex-Public Prosecutor to withdraw his appearance for respondents 1 to 5 (A-1, A-6, A-7, A-9 and A 10) and also to refrain from appearing for any of the respondents 6 to 10) (A-2 to A-5 and A-8) on the ground that Shri Rama Rao was the Public Prosecutor up to the forenoon of 21-1-1960; that in his capacity as such filed a memo of appearance on behalf of the Government in Crl. Appeal No. 86/1959 filed by respondents 1 to 5 (A-1, A-6, A-7, A-9 and A-10); that in the said capacity he also advised the Government to prefer appeals against the acquittal of respondents 6 to 10 herein, namely A-2 to A-5 and A-8; that the Government accepted his advice and asked him to prefer an appeal which he did (being Cr. Appeal No. 296/1959), and that both the appeals Cr. Appeal No. 86/1959 and 206/1959 arise out of the same Sessions Case.

( 2 ) IN the counter which Shri R. V. Rama Rao filed on behalf of the respondents, it was stated that the provisions of law under which the application was made were not applicable inasmuch as there are no confidential communications which can be divulged in this case and in any case the opinion given by Shri Rama Rao is already divulged by the State itself which waived its privilege under Section 126 of the Indian Evidence Act and that Section 561-A applies only to matters specified therein and to none else. It is further stated that the accused have fundamental right to be defended by any counsel not retained by the State and that no counsel may refuse an engagement without being guilty of professional misconduct and that every advocate has fundamental right to practice his profession and no restriction is imposed by law curtailing his right. The counter further stated that since the engagement of Shri Rama Rao is terminated and a new Public Prosecutor was appointed, he is not bound under law to seek permission from Government to appear against the State : yet out of courtesy he wrote on 26-1-1960 offering his service as Special Public Prosecutor and requesting a reply before 1-2-1960, but the Government had not the decency to send a reply even to this date. In that counter it was however, admitted that Shri Rama Rao tendered some advice on a perusal of the judgment of the trial court which is public juris, but the Public Prosecutor is not merely within his right but has a sacred duty not to press the appeal if after studying the entire case, he finds that the appeal is not maintainable and that he is entitled to change his earlier opinion in the same way as the High Court which may give a notice of enhancement is not bound to enhance the sentence. The further contention was that though Shri Rama Rao filed a. memo of appearance for the Government in Cr. Appeal 86 of 1959 the appearance is only as a Public Prosecutor and not as Shri R. V. Rama Rao; that"if the contention of the State is correct that it is personal, Shri Rama Rao alone would be competent to represent the State which is admittedly not the case nor could he be superseded without his consent under the rules framed under the Legal Practitioners Act"; that he is not appearing for the respondents in Cr. Appeal 2cc/1959 though he is entitled to appear if he were to be engaged, and that in a criminal case, the case of each of the accused is separate as laid down by the Supreme Court and the observations of the State that both appeals arise out of the same case have no significance. In the circumstances it was prayed that the petition of the Government should be dismissed.

( 3 ) HAVING regard to the importance of the question involving the rights and duties of an advocate and the high standards that have to be maintained in the profession, we gave notice to the Advocate General; but before we deal with the arguments submitted be