The main legal point established is that only a Public Prosecutor or a person acting under his direction can present an appeal to the High Court from an order of acquittal, as required by S.378(1) of the Code.

1. These State appeals against acquittal, presented by the Additional Advocate General at a time when admittedly there was no Public Prosecutor appointed for the High Court, have come up for grant of leave under S.378(3) of the Code of Criminal Procedure, 1973, for short the Code. The question is whether the State Government can direct the Advocate General or the Additional Advocate General to present an appeal under S.378(1) of the Code without appointing them as Public Prosecutors under S 24(1), in view of Art.165 of the Constitution of India and the rules framed by the Government under clauses (2) and (3) of Art.165 of the Constitution as per notification dated 1st November, 1956

2. S.378(1) of the Code of Criminal Procedure 1973 reads:

"378. Appeal in case of acquittal. (1) Save as otherwise provided in subsection (2) and subject to the provisions of sub-sections (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 or an order of acquittal passed by the Court of Session in revision."

S. 24(1) of the Code reads:

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

S. 2(u) of the Code reads:

"(u) 'Public Prosecutor' means any person appointed under S.24, and includes any person acting under the directions of a Public Prosecutor."

Article 165 of the Constitution of India reads:

"165. Advocate-General for the State. (1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State.

(2) It shall be the duty of the Advocate-General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions, conferred on him by or under this Constitution or any other law for the time being in force.

(3)

Rule 2 of the Rules issued as per notification dated 1st November 1956 defines the duties and functions of the Advocate General. Clause (vi) of R.2, Part I reads:

" (vi) to represent Government in the High Court in proceedings of importance, civil or criminal, original or appellate, in which Government is a party when specially directed by the Government;

Note: The Advocate General will ordinarily be instructed by a Government Pleader or Public Prosecutor;"

Entry No. 2 in List III of the seventh Schedule to the Constitution of India is 'criminal procedure including all matters included in the Code of Criminal Procedure at the commencement of this Constitution. Under Art.246 (2) Parliament has the power to legislate with respect to any of the matters enumerated in List III. The Code of Criminal Procedure, 1973 has been enacted by the Parliament by virtue of the above power. As per S.378(1) of the Code if the State has to file an appeal before the High Court against an order of acquittal the State has to direct the Public Prosecutor to present the same. Public Prosecutor of a High Court is one who is appointed by the State Government or the Central Government under S.24(1) of the Code for conducting in that High Court any prosecution, appeal or other proceeding on behalf of that Government. In view of the definition contained in S.2(u) of the Code a person acting under the direction of a Public Prosecutor appointed under S.24 will also be a Public Prosecutor. The combined effect of all the above provisions of the Code is that if the State wants to file an appeal to the High Court from an order of acquittal, that has