Sreedharan, J.:— This Original Petition came up before us on reference made by a learned Single Judge. The question referred is whether a Public Prosecutor can authorise any other advocate to conduct prosecution in a Sessions Court.
2. This Original Petition appears to be a public interest litigation. Petitioner claims to be a practicing advocate, mainly in criminal Courts at Ernakulam. Since he was interested in Sessions Case No. 63/1992, which is a murder case Page: 282pending trial before the First Additional Sessions Judge, Ernakulam, petitioner was present in Court on 21-11-1994. The case, according to the charge-sheet, was that one Aliamma, W/o. Joy, was murdered on 5-8-1991 at 9.00 p.m by her husband. First witness was examined by the 5th respondent, Public Prosecutor who was in charge of the case. That witness turned hostile. According to the petitioner, 5th respondent then left the Court leaving the case to be conducted by her junior advocate, who was enrolled four months back (before Court learned counsel representing the petitioner fairly conceded that 5th respondent examined PW-2, the other eye witness in the case, who also turned hostile to the prosecution). It is the petitioner's case that the action of the 5th respondent was inconsistent with the ethics of the legal profession and fair play in the administration of justice in as much as 5th respondent as Public Prosecutor disowned the case entrusted with her. Section 24 of the Code of Criminal Procedure, hereinafter referred to as “the Code”, lays down the qualification and method of appointment of a Public Prosecutor. Only such a competent Prosecutor can be entrusted with the trial of Sessions case. A raw junior should not have been entrusted with the conduct of the case as was done by the 5th respondent. With these averments, the petitioner approached this Court with the following prayers:—
“i) to call for the records of the case leading to Ext. P5 along with the report dated 7-4-1994 of the 2nd respondent and the 1st respondent may be directed to take action on the basis of the report,
ii) to issue orders to the 1st Additional Sessions Judge, Ernakulam to conduct trial in S.C No. 63/92 denovo by invoking powers under Article 227 of the Constitution,
iii) to issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents 1 to 3 to conduct an enquiry to the irregularities shown in Ext. P5,
iv) to stay further proceedings in S.C No. 63/92 on the file of the 1st Additional Session's Court, Ernakulam since the continuance of trial could result in abuse of process of law,
v) to grant such other reliefs which may be prayed for which this Hon'ble Court deems fit to grant, and
vi) to award the cost of these proceedings to the petitioner”.
3. 5th respondent, the Public Prosecutor, has filed a detailed counter affidavit. According to her, PWs. 1 and 2 in S.C 63/1992 were examined during Page: 283forenoon of 21-11-1994 by her. During afternoon the case was called, her junior was present in Court and she conducted the examination of CWs. 3 and 4 as PWs. 3 and 4. PW 3 was the mother of the accused and PW 4, the daughter of the accused. There was no likelihood of these witnesses giving evidence in favour of the prosecution. As per Section 2(u) of the Code, she could entrust the examination of these witnesses by the junior under her direction was not inconsistent with the ethics of legal profession. Even though petitioner had raised many allegations against the 5th respondent in the Original Petition and they have been countered in the affidavit filed by the 5th respondent, we do not think it necessary to deal with any of those matters in this judgment. They are matters outside the purview of this Original Petition. These averments, according to us, lead to the inference that the petitioner was trying to settle his personal vengeance against the 5th respondent in this Court. This Court cannot be made an arena for such an action.
4. Section 2(u) defines “Public Prosecutor” in the following terms:—
“‘Public Prosecutor’ means any person appointed under section 24, and includes any person acting under the directions of a Public Prosecutor”.
5. So, as per this provision, a person appointed as Public Prosecutor under Section 24 is a Public Prosecutor. So also the person who is acting under the directions of the Public Prosecutor so appointed is also a Public Prosecutor. In the definition, the legislature used the words “means” and “includes”. When such a course is adopted by the legislature while defining a term, it is settled rule of interpretation that such definition is to be given a wider meaning and is not exhaustive or restricted to the items contained or included in such definition (vide Krishi Utpadan Mandi Samiti v. Shankar Industries, 1993 AIR SCW 762). When such a wide interpretation is to be given to the definition under Section 2(u), the effect will be. that not only the person appointed as Public prosecutor under Section 24 is to be treated as Public Prosecutor, but also by other person acting under the direction of that Public Prosecutor to be a Public Prosecutor.
6. Section 24(3) of the Code states that for every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more additional Public Prosecutors for the district. The qualification and method of appointment of such Public Prosecutor or Additional Public Prosecutor is also prescribed by the other clauses of that section. Petitioner has no case that 5th respondent was not appointed as Public prosecutor in conformity with the provisions contained in Section 24 of the Code. So, 5th respondent is the Public Page: 284Prosecutor appointed by the Government in accordance with the provisions of the Code.
7. Section 225 of the Code provides that in every trial before a Sessions Court, the prosecution shall be conducted by a Public Prosecutor. The word “Public Prosecutor” seen in Section 225 is to be understood as defined in Section 2(u) of the Code. Therefore, the prosecution should be conducted by a Public Prosecutor as defined therein. It means that the trial should be conducted by the Public Prosecutor who has been appointed in conformity with Section 24 of the Code or by the person acting under the direction of such a Public Prosecutor.
8. Section 301 deals with appearance by Public Prosecutors. Clause (1) of that Section states that the Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal. Clause (2) of that Section deals with the circumstances under which a pleader can be instructed by any private person to prosecute any person in any court. If any private person instructs a pleader to prosecute another in any court, the Public Prosecutor in charge of the case shall conduct the prosecution and the pleader so instructed shall act therein under the direction of the Public Prosecutor with the permission of the Court. It is also provided that such pleader can submit written arguments after the evidence is closed in the case. Thus, the pleader so instructed by the private person cannot of his own accord assume the role of the Public Prosecutor. The pleader so instructed by the private person should act under the directions of the Public Prosecutor who shall conduct the case. Prosecutor mentioned in the Section is to be understood as defined in Section 2(u). The Public Prosecutor can require any other person to act for and on his behalf under his direction. If a person is so directed by the Public Prosecutor, that person gets the status and power of the Public Prosecutor. When a private party wants to take part in the inquiry, trial or appeal of a case and instructs a pleader to prosecute another in Court, that pleader cannot act except under the direction of the Public Prosecutor, or of the person who acts under the direction of the Public Prosecutor. If the Public Prosecutor directs the pleader so instructed by the private person to prosecute the accused, then such pleader will come under the ambit of the definition under Section 2(u) of the Code and thereby can be treated as a Public Prosecutor. This can happen only if the pleader instructed acts under the direction of the Public prosecutor.
9. Section 302 of the Code deals with the conduct of the case before Magistrate. It inter-alia states that no person, other than Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to conduct the prosecution without the permission of the Court. Page: 285Clause (2) of that Section further states that any person conducting the prosecution may do so personally or by a pleader. It means that Advocate General, Government Advocate or a Public Prosecutor or Assistant Public Prosecutor who is entitled to conduct the prosecution without the permission of the Magistrate may conduct prosecution by authorising another pleader. As per this provision Government law officer can arrange for the conduct of the prosecution through a pleader. In other words, the Government law officer can conduct the prosecution only by authorising an advocate. This also shows that over and above the persons co nomine mentioned in Clause (1) of Section 302, pleaders authorised by them is also entitled to conduct the prosecution.
10. This Court in Hamsa v. Assistant Public Prosecutor, 1978 KLT 816, had to consider whether the accused can oppose the counsel engaged by a private person to conduct the examination of witnesses for prosecution under the direction of the Assistant Public Prosecutor. While answering the question in the affirmative, Subramonian Poti, J. (as His Lordship then was) observed:—
“When a senior counsel engaged in a case permits his junior counsel to act for him it does not mean that the responsibility is not on the senior counsel. So is the case with a Public Prosecutor permitting a pleader or a private person to act in the case. The responsibility for questions put to the witnesses cannot be disowned later by the Public Prosecutor, and in so far as the matter in which the pleader is allowed to act by the Public Prosecutor is concerned that will be taken to be the act of the Public Prosecutor or Assistant Public Prosecutor as the case may be. In the circumstances of this case, where the Assistant Public Prosecutor has agreed to the conduct of examination of the witnesses by the pleader of a private person, it is necessarily within his competence under S. 301(2) of the Act”.
11. We are in respectful agreement with the above observations and we hold that the Public Prosecutor can direct another to conduct the case and when the said another so conducts the case at the direction of the Public prosecutor, he will be a “Public Prosecutor” coming within the purview of the Code.
12. A question has arisen as to whether the Public Prosecutor can direct any other person other than a pleader or an advocate to conduct the case under his direction. Definition in Section 2(u) does not contain any such restriction. Parliament in its wisdom has not imposed any such restriction. Any person whom the Public Prosecutor considers competent to conduct the case at his Page: 286direction, can be required to conduct the case. Such a person so directed by the Public Prosecutor will certainly be “Public Prosecutor” as defined in the Code.
13. In the instant case, the petitioner has no case that the trial of S.C 63/1992 on the file of the Sessions Court, Ernakulam was not conducted by a person duly authorised and directed by the 5th respondent, the Public Prosecutor. The person who thus conducted the trial by examining PWs. 3 and 4, was “Public Prosecutor” coming within the purview of Section 2(u) of the Code. The trial so conducted by such a Public Prosecutor is not open to challenge by anyone.
14. Viewed in this light, the trial of Sessions Case No. 63/1992 can never be considered to have been vitiated by any irregularity or illegality. The trial was properly held. One of the prayers made by the petitioner herein is for a de novo trial of the case. By ordering a de novo trial, the party who will be adversely affected is the accused in the case. Accused has not been made a party to this proceeding. That is a serious flaw in this case. We do not consider it proper to allow the petitioner to implead the accused either. So, under no circumstance this court can direct a de novo trial of S.C 63/1992 on the file of Sessions Court, Ernakulam.
15. On going through the averments made by the petitioner in the case, we are clear in our mind that he was not trying to ventilate any Public grievance. He was trying to wreak vengeance against the 5th respondent. On an appreciation of the entire circumstances of this case, we are of the view that this is not a public interest litigation, but it is only a private vengeance litigation. Parties are not to be allowed to approach this Court with such ulterior motives to wreak vengeance against persons who are holding high offices. We are very much pained to say that the petitioner has approached this Court without any bonafides. His attempt can certainly be termed as an abuse of process of this Court. Even though this is a fit case where he should be mulcted with heavy costs, we refrain from doing so on account of the fact that petitioner seems to be a budding advocate, who has recently entered the profession. Before parting with this case, we would like to impress upon all Public Prosecutors that they are the representatives of the State and their office is one of trust and responsibility. That being so, they should do nothing to lower the dignity of the office by effacing themselves or by being content to play second fiddle in the trial of Sessions Cases.
16. Original Petition is disposed of in the above terms.