The Public Prosecutor is responsible for conducting the prosecution in Sessions Cases and cannot abdicate his duty to a private counsel.

( 1 ) THESE appeals arise out of Sessions Case No. 11/8 of 1958 on the file of the Sessions Judge, Khammam division. As two of the appellants have been sentenced to death, the sentences have been submitted to us by that Court for confirmation. We have not heard these appeals on the merits because in our opinion, an objection taken by the learned counsel for the appellants as to the manner in which the trial was conducted must prevail and there should be a retrial of the case.

( 2 ) WE may state however that our decision to direct a re-trial has not been reached without reluctance. A re-trial does not only involve fresh expenditure of public time and money; it also occasions considerable hardship to the accused by prolonging the period of uncertainty as to their fate and entailing, at least in cases where they retain counsel of their own, extra expenditure of money for them too. There will be, besides, considerable inconvenience caused to the witnesses, an inconvenience so graphically described by Bose J. , in Sangram Singh v. Election Tribunal, 1955 SCJ 431 at p. 439: ( (S) AIR 1955 SC 425 at p. 432 ). Fully aware as we are of these undesirable consequences, we need hardly state that we are ordering a re-trial of the case because we are convinced that it is the only course to adopt in the interests of justice.

( 3 ) MR. Chinnappa Reddys objection shortly stated is that contrary to the relevant provisions of the Code of Criminal Procedure, the Public Prosecutor abdicated his duty to conduct the prosecution and that a pleader, privately briefed and instructed, took complete charge of the case and effectively determined its course and that, as a consequence, there was grave prejudice to the appellants. It is frankly conceded by him that no objection to the procedure adopted was taken by his clients in the trial Court.

( 4 ) BEFORE we take up the question of prejudice, we shall consider what the requirements of the Code are in regard to this matter.

( 5 ) UNDER Section 270, Cr. P. C. , "in every trial before a Court of Session the prosecution shall be conducted by a Public Prosecutor", who is defined in Section 4 (I) (t) of the Code. According to that part of the definition which is relevant to our purpose, he is "only person appointed under Section 492 and includes any person acting under the directions of a Public Prosecutor". Section 492, Cr. P. C. , empowers the State Government to 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. It is also necessary to refer to Section 493 of the Code which is in these terms: "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. " The last section, in our opinion, while it does not interfere with the generally recognised right of a counsel to depute another professional gentleman with instructions to plead and act in a case of which he is in charge, provides for the special case-where a pleader is appointed by a private party. Such pleader, it says, may act therein, subject to the superintendence and control of the Public Prosecutor. The mere fact therefore that a, pleader privately instructed has acted for the prosecution in a Sessions Case does not involve the violation of Section 270 if the conduct of the prosecution could be said to have been in the hands of the Public Prosecutor. Now what is the meaning of the words "conduct the prosecution" and how is it to be distinguished from what is meant by act therein? Is the word act in the section used in contradistinction to the word plead earlier used? At the first blush one is apt to think that the Legislature used

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