The State Government has the authority to direct the Public Prosecutor to institute an application/appeal against an acquittal, and such decision/direction is not null and void unless it is arrived at in breach of any mandatory procedures.

ORDER

M.S. Sonak, J. - Heard the learned counsel for the parties.

2. This order disposes of an application under Section 378(3) of the Code of Criminal Procedure, 1973 (Cr.P.C.) seeking leave to appeal the judgment and order dated 21.05.2021 in Sessions Case No.10/2014 made by the learned Additional Sessions Judge, Mapusa Goa (impugned judgment and order). By this judgment and order, the Respondent was acquitted of the offenses punishable under Sections 354, 354A, 354B, 376(2)(f), 376(2) (k), 341, and 342 of the Indian Penal Code (I.P.C.).

3. Since the Respondent had objections to the maintainability and merits of such application, Mr. Amit Desai, learned Senior Advocate for the Respondent, was heard first. Mr. Desai argued the matter on 11.04.2022 and 12.04.2022. Mr. Tushar Mehta, learned Solicitor General of India, argued on 13.04.2022 and very briefly on 19.04.2022. Mr. Desai rejoined on the rest part of 19.04.2022. The matter was reserved for orders on the said date.

4. Mr. Desai made several submissions without prejudice to one another on maintainability. First, he submitted that there was no decision of the State Government to direct the Public Prosecutor to institute the application/appeal. If any, the decision/direction was null because the same was arrived at in breach of mandatory procedures prescribed under Section 378(1) of Cr.P.C., Home Department Order dated 03.01.2008 and the Citizen's charter of Directorate of Prosecution. Second, he submitted that the Public Prosecutor and the Director of Prosecution were bypassed in the decision-making process.

Instead, the Advocate General, a stranger to such a decision making process, initiated the process. Third, he submitted that the involvement of a Public Prosecutor and the Director of Prosecution are safeguards for protecting the Respondent who has been acquitted of an offense, and bypassing such statutory functionaries renders the decision/direction a nullity. The application based upon any such alleged decision/direction is therefore incompetent, and such application must be dismissed as not maintainable even without adverting to its merits.

5. Mr. Desai also submitted that the decision/direction, if any, is a nullity because it is a product of the non-application of mind and failure to take into account the relevant considerations. He pointed out that the impugned judgment and order was pronounced on 21.05.2021 by merely declaring that the Respondent was acquitted of the offenses. Even before any copy or certified copy of impugned judgment and order running into almost 527 pages could be obtained by the State Government or its officers, this application was lodged in a hurry on 24.05.2021. He pointed out that even the evidence, in this case, runs into over 6000 pages. He submits that the State Government and its officers could have never considered all this material given the time constraints, indicating non-application of mind and eschewing relevant considerations. He, therefore, submitted that the decision/direction, if any, is a nullity, and based thereon, this application was incompetent.

6. Mr. Desai, without prejudice to the above, submitted that the direction, if any, was not to the Public Prosecutor but the Additional Public Prosecutor. He submitted that such a direction is contrary to the scheme of Section 378 read with Section 2(u) and Section 24 of Cr.P.C. that contemplates a direction only to the Public Prosecutor and not to any other officer like the Additional Public Prosecutor. He submitted that neither the Public Prosecutor nor the State filed the application through its Public Prosecutor, nor was such an application signed by the Public Prosecutor. He referred to the cause title of the application in which the applicant/appellant is described as "THE STATE OF GOA through C.I.D. C.B., North Goa, Goa." He also submitted no valid material to establish that Mr. Pravin Faldessai was appointed as an Additional Public Prosecutor on 24.05.2021. He also submitted