1950 Supreme(Cal) 151

HIGH COURT OF CALCUTTA
Das Gupta, Lahiri
ANURUPA DEBI - Appellant
Versus
RAMLAL RAJGHORIA - Respondent
Criminal Revn.  633  Of  1950
Decided On : JULY 31, 1950

An order passed by a Magistrate directing the Court Inspector to conduct the prosecution is improper if there is already in existence an order by the Additional District Magistrate appointing a special Public Prosecutor to conduct the case.

Headnote:

CRIMINAL PROCEDURE CODE - Section 492(2) - Appointment of Public Prosecutor - Cancellation of appointment by Legal Remembrancer - Effect on appointment by Additional District Magistrate.

Fact of the Case:

The petitioner, a widow whose husband was killed by firing, filed a complaint in the Court of the Sub-Divisional Magistrate, Barrackpore, alleging that the accused persons were responsible for her husband's death. The Sub-Divisional Magistrate took cognizance of the case and sent it to a 1st class Magistrate for enquiry and report. The Magistrate examined several witnesses and submitted his report that a prima facie case under Section 302, Penal Code had been made out against one of the accused persons and a prima facie case under Section 302/114, Penal Code against the other accused person had also been made out. The Sub-Divisional Magistrate ordered the issue of summons against the accused persons. The case was thereafter transferred to Alipore Sadar for enquiry preliminary to commitment. The District Magistrate passed an order making over the case to the Sadar Sub-Divisional Magistrate, Alipore, for disposal. The complainant filed an application praying that she might be allowed to have the case conducted by her lawyers to the exclusion of the Court Inspector. The learned Magistrate rejected this application and passed an order directing the prosecution to be conducted by the Court Inspector.

Finding of the Court:

The court held that the order passed by the learned Magistrate directing the Court Inspector to conduct the prosecution till a Public Prosecutor had been appointed by the District Magistrate was improper as there was already in existence an order by the Additional District Magistrate appointing a special Public Prosecutor to conduct this case. The court further held that the appointment of the Public Prosecutor by the Additional District Magistrate was in accordance with law and was operative on the date when the learned Magistrate passed the impugned order.

Issues: 1. Whether the order passed by the learned Magistrate directing the Court Inspector to conduct the prosecution was proper? 2. Whether the appointment of the Public Prosecutor by the Additional District Magistrate was in accordance with law?

Ratio Decidendi: 1. The court held that the order passed by the learned Magistrate directing the Court Inspector to conduct the prosecution was improper as there was already in existence an order by the Additional District Magistrate appointing a special Public Prosecutor to conduct this case. The court observed that the learned Magistrate did not use his discretion ideally in passing an order for the conduct of the prosecution without applying his mind to the question whether a Public Prosecutor had already been appointed for this case specially under Section 492 (2), Criminal P. C. 2. The court held that the appointment of the Public Prosecutor by the Additional District Magistrate was in accordance with law and was operative on the date when the learned Magistrate passed the impugned order. The court observed that the appointment by the Additional District Magistrate was on condition that the fees should be paid by the petitioner complainant. The appointment by the Legal Remembrancer was on the term that the fees would be paid by the Govt. So long as the appointment by the Legal Remembrancer remained, it is clear that the condition mentioned in the appointment of the Additional District Magistrate could not operate. In the opinion of the court, the effect of the appointment by the Legal Remembrancer on the order of appointment by the Additional District Magistrate was that the operation of the latter order was suspended and not that the latter order was cancelled. When, therefore, on 12-4-1950, the Legal Remembrancer cancelled the appointment made by him on 3-3-1950, the order of appointment by the Additional District Magistrate, to use the words used by Mr. Basu, that was cancelled by the letter of 12-4-1950 and as soon as the superimposition disappeared, the original appointment by the Additional District Magistrate became operative, as operative as if the appointment by the Legal Remembracer on different terms had never been made.

Final Decision: The court set aside the order of the learned Sub-Divisional Magistrate directing the representation of the State in this case by the Court Inspector in his Court and directed that the Public Prosecutor who had been already appointed by the Additional District Magistrate as a Public Prosecutor for this case be allowed to conduct the prosecution.