A Public Prosecutor or an Additional Public Prosecutor is not prohibited from appearing in private cases.

( 1 ) THIS appeal is directed against a judgment of the learned Additional Sessions Judge, Delhi whereby the appellant was convicted under Section 302 of the Indian Penal Code and sentenced to life imprisonment and a fine of Rs. 3. 000. 00 or in default to further imprisonment for two years Before we deal with the merits of the appeal, it is necessary to notice the preliminary objection raised by the counsel for the State. The objection was that Mr. I. U. Khan Advocate appearing for the accused being an Addl. Public Prosecutor could not appear for the accused in view of the judgment of a learned Single Judge of this Court, M. L. Jain, J. in the case of Lt. Col. K. 0. Sud v. S. C. Gudimani, Criminal Revision No. 224 of 1980 decided on February 13, 1981=vol. 20 DLT (1981) (SN) 30. Asimilar objection was taken before the learned Single Judge in that case. In order to decide that objection the learned Judge posed the following three questions :

(1) Whether a Public Prosecutor or an Addl. Public Prosecutor or a panel lawyer for that matter can appear, against the State?

(2) Whether it is permissible to the State or the Administration to permit a Public Prosecutor or an Addl. Public Prosecutor to appear, against the State?

(3) Whether a Public Prosecutor can appear on behalf of the accused person in the cases instituted on a complaint by a private party?the learned Judge held that in all prosecutions, the State is the Prosecutor and the proceedings are always treated as proceedings between the State and the accused. Reliance for this proposition was placed on certain judgments of various High Courts. The learned Judge also discussed the position of a District Attorney in U. S. A. and functions of a Crown s Solicitor in U. K. It was noticed that unlike U. S. A. the Treasury Counsel in Old Bailey, U. K. who were retained to prosecute in the Director s cases, had criminal practice and were entitled to appear for the defence and quite frequently they do so. The learned Judge also noticed certain provisions in the Criminal Procedure Code and came to the conclusion that the office of a Public Prosecutor was a public office and involved duties of public nature which were of vital importance to the Public. It was further noticed that the office of a Public Prosecutor was an office of responsibility and was more important than many others because the holder is required to prosecute with detachment on the one hand and yet with vigour on the other. Relying on certain observations in the case of Alfred Crompton Amusement Machines Ltd. v. Commissioner of Customs and Excise, (1972) 2 All H. R. 353 at page 376, the learned Judge held that the Public Prosecutor whether retained or salaried can work only for one client i. e. the State and to yield to any other position will be to damage the dignity, impartiality and efficiency of the office. The learned Judge also accepted the contention that the Public Prosecutor and along with him, his juniors have an access to official and confidential records and if they are allowed private practice, then there are many chances of this secret knowledge being used against the State. In view of these observations, the three questions posed by the learned Judge were answered, as under :

(1) The Public Prosecutor, the Addl. Public Prosecutor cannot appear against the State in criminal matters. That is so even where the party has carefully avoided to implead the State as a party in a revision or an appeal, or any other criminal proceedings. This applied to panel lawyers as well, because no panel lawyer can appear without being appointed as an Addl. Public Prosecutor.

(2) It is not permissible for the State or the Delhi Administration to allow the Public Prosecutor or the Addl. Public Prosecutor to appear against itself and it must provide so specifically in the terms of their appointment.

(3) The Public Prosecutor cannot appear on behalf of the accused even in cases instituted on a complaint by a private par