Monoj Kumar Mukharjee, J.:—On a complaint filed by the petitioner the twelve accused/opposite parties were summoned by the learned Sub divisional Judicial Magistrate, Contai to stand trial under s. 95 read with s. 397 of the Indian Penal Code. In due course the case was committed to the Court of Session and the learned Session Judge, Midnapore made over the case to the learned Assistant Session Judge, Contai for trial Thereafter the petitioner filed an application before the learned Session Judge, Midnapore stating that he had engaged a senior Advocate of the Midnapore District Bar to conduct the case on his behalf but due to this old age he was unable to go to Contai to conduct the case and accordingly praying for transfer of the case from the Court of the Assistant Session Judge, Contai to any competent Court at Midnapore to enable the petitioner ??? avail of the services of the Advocate engaged by him. As the learned Session Judge rejected his application the petitioner has filed this application in revision.
2. At the time of hearing of this revisional application we raised a threshold question regarding maintainability of the application filed by the petitioner in the Court below by pointing out to his learned Advocate that every trial in a court of Session was statutorily required to be conducted by a Public Prosecutor and that necessarily meant that the lawyer engaged by the petitioner would have no right of audience notwithstanding the fact that the trial originated from his complaint. In answer thereto the learned Advocate for the petitioner drew our attention to a judgment delivered by a learned Single Judge of this Court in the case of Sk Lutfar Rahaman v. State reported in 1987 C Cr LR(Cal)52 and, relying upon the same, contended that the lawyer engaged by the petitioner could address the Court so long as he was acting under the directions of the Public Prosecutor.
Page: 4243. In the case of Lutfar (supra), which related to an offence of murder, the lawyer engaged by the brother of the deceased was permitted to address was permitted to address oral arguments by the learned trial Judge Besides, he entertained and allowed the prayer made by the said lawyer to summon three witnesses under s. 311 of the Code of Criminal Procedure (“Code” for short). Aggrieved by the above two steps taken by the learned dial Judge, the accused therein moved this Court in revision and contended, inter alia, that under s. 301(2) of the Code a lawyer engaged by a private person might assist the Public Prosecutor but had no authority to address the Court orally.
4. On behalf of the brother of the deceased, attention of this court was drawn to the definition of ‘Public Prosecutor’ as given in s. 2(u) of the Code and to the order of the learned trial Judge recording grant of permission to the lawyer for the private person to address the Court under the direction of the Public Prosecutor; and submission was made that in such a case the lawyer so engaged became the “Pubic Prosecutor.”
5. On hearing the submissions made by the parties the learned Single Judge observed as follows:
“….I am of the view that in view of the new provision of s. 301(2) if the learned Additional Sessions Judge permits the Advocate for the private party who has been given consent by the Pubic Prosecutor to submit the oral argument under his direction, then the spirit (emphasis supplied) of s. 301(2) is not in the least violated and if the private Advocate makes the arguments before the Court at the direction of the Public Prosecutor, I am of the view that there is no illegality committed.”
6. Having carefully gone through the relevant provisions of the Code we regret our inability to share the above quoted views expressed by the learned Judge and respectfully differ from the same.
7. Sub-section (1) of s. 301 of the Code entitles the Public Prosecutor, who is in charge of a case, to appear and plead without any writing authority before any Court in which the case in question is under enquiry, trial or appeal and sub-s. (2) thereof reads as under:
“If in any such case any private person Instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in-charge of the case shall conduct the prosecution, and the pleader so Instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the defence is closed in the case”
8. A plain reading of the above quoted provision makes it abundantly clear that if in a case which is in charge of a Public Prosecutor or Assistant Public Prosecutor a private person engages a lawyer then, notwithstanding such engagement, the Public Prosecutor or Assistant Public Prosecutor who Page: 425is in-charge of the case shall (emphasis supplied) conduct the prosecution and the lawyer engaged by the private person shall (emphasis supplied) act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor and he can only submit written arguments—and that too with the permission of the Court. To other words, lawyer engaged by a private person has no right of audience in a case which is in charge of a Public Prosecutor.
9. Law is now well settled that intention or object of the legislating authority is hardly relevant when the language of the statute is plain and unambiguous and when it does not admit of two possible interpretations. To put it differently, when the language of the statute is clear and unambiguous nothing can be added or subtracted so as to give a different meaning to the statute as the function of the Court is to interpret and not to legislate. When s. 301(2) specifically says that the lawyer engaged by the private person can submit written arguments there is no scope for going behind the letters of the law to hold that such a lawyer can address the Court orally also.
10. We reach the same conclusion regarding the role of such a lawyer in a sessions trial through a different route. Chapter XVIII of the Code lays down the procedure for trial before a Court of Session, and s. 225 thereof specifically lays down that in every trial before a Court of Session the prosecution shall be conduced by a Public Prosecutor. The other section in the said Chapter which is relevant for our present purposes, is s. 234. It states that after the examination of the witnesses, including that of the defence is complete, the Prosecutor shall sum up his case and the accused or his lawyer will then have a right of reply. Proviso thereof entitles the Prosecutor to make further submissions with regard to any point of law raised by the accused or his lawyer, if the Court so permits in view of the above two express provisions there is therefore no scope for the lawyer engaged by the private party to address the Court orally.
11. In our considered view the definition of ‘Public Prosecutor’ in s. 2(u) of the Code can not also be relied upon to contend—as was contended by the learned lawyer appearing for the brother of the deceased in the case of Lutfar (supra)—that the lawyer engaged by a private person answered to the description of ‘Public Prosecutor’ if he was acting under the direction of the Public Prosecutor. It is true that ‘Public Prosecutor’ under s. 2(u) Includes a person acting under the direction of a Public Prosecutor but it does not and can not mean a id include a lawyer engaged by a private party, who is acting under direction of a Public Prosecutor. If such an interpretation is taken to its logical conclusion it would mean that any private lawyer acting under the direction of Public Prosecutor would be the “Public Prosecutor” within the meaning of s. 2(u) and therefore will be entitled to conduct the prosecution in a sessions Page: 426trial by virtue of s. 225 and s. 301(1) of the Code. In such a case not only s. 301(2) of the Code would be redundant, but such a lawyer would be even entitled to withdraw from a case by virtue of s. 321 of the Code of Criminal Procedure
12. The reason why an inclusive definition of Public Prosecutor has been incorporated in 2(u) of the Code is not far to seek. For engagement on behalf of the State in the High Court and in the Courts below a panel of lawyers is maintained at the instance of the State and one or some of them are engaged by the Public Prosecutor to conduct some of the cases pending there as it is not possible for the Public Prosecutor himself to conduct all such oases Such lawyer has to act under the directions of the Public Prosector and is be treated as the Public Prosecutor in the case he is so engaged but by no stretch of imagination can it be said that a private lawyer noting under the direction of a Public Prosecutor is also the Pubic Prosecutor.
13. For the foregoing discussions we must hold that the application filed by the petitioner in the Court below was wholly misconceived. The instant application is therefore rejected.
Mukul Gopal Mukherji, J.:—I agree.
Application rejected.