Can a Senior Advocate be appointed as Special Public Prosecutor ?

The Kerala High Court on 20 June, 2012 in Kuriachan Chacko Vs. Secretary to Government held that “there is no specific interdiction either under the Advocates’ Act, 1961 or the Bar Council of India Rules or the Rule framed by the Supreme Court or the High Court restraining a senior advocate from being appointed as Special Public Prosecutor under sub-section (8) of Section 24 of the Code.

However, Justice S.S. Satheesachandran pointed out that, such a challenge is set forth on the premise that when a senior advocate is appointed as Special Public Prosecutor by the Government his discharge of functions thereunder would come within the mischief of “act” which he is restricted by the Rules framed by the Bar Council of India.

# Appointment of Special Public Prosecutor

To examine the challenge raised against the appointment of a senior advocate as Special Public Prosecutor, it is necessary to look into the restriction purportedly imposed under the relevant rule of the Bar Council of India Rules. That rule reads thus:

“Senior Advocates shall, in the matter of their practice of the profession of law mentioned in Section 30 of the Act, be subject to the following restrictions:-

(a) A Senior Advocate shall not file a Vakalatnama or act in any Court or Tribunal, or before any person or other authority mentioned in Section 30 of the Act.

Explanation: “To Act” means to file an appearance or any pleading or application in any Court or Tribunal or before any person or other authority mentioned in Section 30 of the Act, or to do any act other than pleading required or authorised by law to be done by a party in such Court, or Tribunal or before any person or other authorities mentioned in the said section either in person or by his recognized agent or by an advocate or an attorney on his behalf.

(b) (i) xx xxx

(ii) Where a Senior Advocate has been engaged prior to the coming into force of the rules in this Chapter, he shall not continue thereafter unless an advocate in Part II of the State Roll is engaged along with him. Provided that a Senior Advocate may continue to appear without an advocate in Part II of the State Roll in cases in which he had been briefed to appear for the prosecution or the defence in a criminal case, if he was so briefed before he is designated as a senior advocate or before coming into operation of the rules in this Chapter as the case may be.”

(c) He shall not accept instructions to draft pleading or affidavits, advice on evidence or to do any drafting work of an analogous kind in any Court or Tribunal, or before any person or other authorities mentioned in Section 30 of the Act or undertake conveyancing work of any kind whatsoever. This restriction however shall not extend to settling any such matter as aforesaid in consultation with an Advocate in part II of the State Roll.”

In State of Andhra Pradesh v. Margadarsi Financiers {2009 Crl.L.J. 2705} a Division Bench of the Andhra Pradesh High Court has taken a view that no senior advocate can be appointed as Special Public Prosecutor under Section 24(8) of the Code in view of the bar imposed by the Bar Council of India Rules.

Examining the relevant rule of the Bar Council of India Rules it is stated that no senior advocate can be appointed ‘straight away’ to any office of Special Public Prosecutor. The expression ‘to act’ defined under the relevant rule of the Bar Council of India Rules takes in ‘every act’ as normally being expected or done by a regular practitioner or advocate and as such, he has necessarily to appear only through another advocate on record, is the reasoning formed to hold that senior advocate cannot be appointed ‘straight away’ to such office.

The above decision would indicate that if another counsel who is not a designated senior advocate is also appointed along with the Senior Advocate when making an order of appointment of Special Public Prosecutor under sub-section (8) of Section 24 of the Code the mischief falling under the rule, the restriction to ‘act’ covered under the relevant rules of the Bar Council of India Rules against the senior advocate from functioning as Special Public Prosecutor will not be applicable.

Is it logical and reasonable to take such a view in examining the appointment of a senior advocate as Special Public Prosecutor with reference to the restriction imposed to ‘act’ under the Bar Council of India Rules calls for scrutiny.

So long as there is no legal bar in appointing a senior advocate as Special Public Prosecutor, which, no doubt, may be required in the larger public interest involved under special circumstances, is it reasonable to hold that a senior advocate so appointed cannot take up that post and function since he would be violating a restriction imposed under the rules framed by the Bar Council of India.

If the expression ‘to act’ under the Bar Council of India Rules referred to above is to be interpreted as placing any restriction in the appointment of a senior advocate as Special Public Prosecutor, then it has to be stated that so far as the trial of the criminal cases and more so, in criminal appeals, where the power of the appellate court to take evidence, if found so necessary, is unquestionable, in the event of any step taken to record additional evidence, no senior counsel can continue to appear on behalf of the appellant.

Restriction imposed by the Bar Council of India Rules in the practice of senior advocate, at the most, may demand appointment of another counsel on record also as a Special Public Prosecutor when a senior advocate is appointed as Special Public Prosecutor under sub-section (8) of Section 24 of the Code.

But, it can never be stated that the Government is not empowered to appoint a senior advocate as Special Public Prosecutor; and, to place any impediment thereof will defeat the very purpose for which specific provision has been carved out to meet special circumstances in the interests of justice to secure fair trial with the assistance of an experienced advocate appointing him Special Public Prosecutor for conducting the prosecution on behalf of the State.

In that view of the matter, challenge canvassed against the order against the appointment of Special Public Prosecutor for the reason that he is a designated senior advocate is only to be turned down.

Appointment of Special Public Prosecutor is prescribed by its own procedure specifically made under sub- section (8) of Section 24 of the Code, and in such appointment procedures under sub-sections (4) and (5) of Section 24 of the Code, which is applicable to the case of Public Prosecutor/Additional Public Prosecutor has no role.

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