Anil K. Sen, J.:- A point of some importance as to maintainability of certain appeals presented by the State under S. 378 (1), of the Code of Criminal Procedure, 1973, (hereinafter referred to as the new Code) having arisen for consideration at the earliest stage of granting the necessary leave under S. 378 (3) of the said Code, we have heard it as a preliminary issue in the above appeal. Such a point has arisen in this particular case under the following circumstances. he two respondents were tried on a charge under S. 302/109, I. P. C. by the learned Sessions Judge, Purulia, in Sessions Trial No. 24 of 1976 and were acquitted. The State felt, aggrieved by the said order of acquittal and has preferred the above appeal. The appeal has been filed by the Superintendent Remembrancer of Legal Affairs (hereinafter referred to as the L. R) on behalf of the State. The petition of appeal has been signed by one Shri Dilip Mitra, who, we are told, is the Special Legal Remembrancer ex officio Spl. Secretary, Judicial Department of the State Government: Obviously in presenting the above appeal Shri Mitra was purporting to act as the L. R. and such, the ex officio Public Prosecutor m all cases coming before the Calcutta High Court in its Appellate Side under the notification dated October 11, 1974, which is, set out hereunder:

"Notification

No. 12050-J Cal. the 11th Oct.1974.

In exercise of the power conferred by sub-s. (1) of S. 24,,of the Code of Criminal Procedure, 1973 (Act 2 of 1974) the Governor, after consultation with the High Court, Calcutta, is pleased hereby to appoint the Superintendent and Remembrancer of Legal Affairs, West Bengal, to be ex officio Public Prosecutor in all cases coming before the Calcutta High Court on its Appellate Side.

II. The Notification No. 125-JD. dated the 7th May, 1915, issued under S. 492 of the Cri. P. C., 1898, and published at page 934 of Part I of the Calcutta Gazette is hereby cancelled.

By order of the Governor,

Sd/- B. N. Maitra,

Secretary to the Govt. of West Bengal."

3. Such an ex officio appointment by the State of the L. R. as the Public Prosecutor for this Court offends the provision of S. 24 of the said new Code and as such makes the appointment invalid. Consequently, the appeal having been filed by the invalidly appointed authority is not maintainable in law. Thus, the question of maintainability of the appeal really hinges on the validity of the appointment of the Public Pr06ecutor under the notification, as aforesaid.

4. Section 378 (1) of the new Code provides:

"Save as otherwise provided in sub-s. (2) and subject to the provisions. of sub-ss. (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal, passed by any court other than a High Court,"

5. The term 'Public Prosecutor' has been defined by S. 2 (u) to mean any person appointed under S.24 and includes any person acting under the directions of a Public Prosecutor, Section 24 is the material provision which would require consideration and as such it is necessary to set out the said provision itself which is in the following terms:-

"24, (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor for conducting, in such Court, any prosecution, appeal or other proceeding on behalf of the Central or State Government, as the case may be.

(2) For every district the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district.

(3) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons who are, in his opinion, fit to be appointed as the Public Prosecutor or Additional Public Prosecutor for the district.

(4) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prose