The complainant in C.C. No. 177 of 1982, has filed this revision against the order of the Sub-Divisional Judicial Magistrate, Ponneri, permitting the Assistant Public Prosecutor Grade II, to defend the accused, who are police officers.


2. A few facts leading to this revision may be stated. The complainant and his men were charge-sheeted by the Thiruvottiyur Police for offences under Ss. 147, 148, 323, 324, 336, 341 and 307, I.P.C. in Crime No. 1046 of 1981 for the occurrence that took place in September, 1981. They were arrested and later released on bail. After release on bail, the complainant laid a private complaint before the Sub-Divisional Judicial Magistrate, Ponneri, on 2-1-1982, complaining that the respondents-accused, who are police officers, ill-treated him and his men and thereby committed offence under Ss. 323, 341 and 342, I.P.C. read with S. 34 and 109, I.P.C. The learned Magistrate took the complaint on file on 2-1-1982, and issued summons to the accused. The accused engaged a lawyer of their own choice and two witnesses were examined on the side of the complainant. Thereafter, the accused appeared to have moved the Superintendent of Police, Chengalpattu, who directed the Assistant Public Prosecutor, Grade I, to instruct the A.P.P. (II), Poonamallee to appear on behalf of the accused and defend them. Accordingly, the A.P.P. II, Poonamallee, filed his memo of appearance and the trial Court permitted him to defend the accused. Thereupon, the complainant filed a petition before the trial Court stating that the A.P.P. II should not be permitted to appear for the accused even though the latter are police officers, since it is contrary to the Code of Criminal Procedure and violative of Art. 14 of the Constitution of India. The learned Magistrate heard both parties, overruled the objections raised by the complainant and dismissed the application. Hence, the revision by the complainant seeking to set aside the order of the Sub-Divisional Judicial Magistrate, Ponneri, permitting the A.P.P. II, to appear for the accused.


3. The respondents-accused have filed a counter stating that this private complaint is only a counter blast to the police case in Crime No. 1046 of 1981 and that the private complaint is highly belated. On merits, the accused-respondents contend that the trial Court permitted the appearance of A.P.P. II, Poonamallee, to defend the accused and that the same is within his judicial discretion. According to the accused, the application objecting to the appearance of A.P.P. II, is vindictive, motivated and intended to harass the police officers in respect of an occurrence which took place in September, 1981. In the end, they would state that the police case against the complaint and others has ended in acquittal and that the present complainant is nothing but harassment.


4. I have heard learned counsel for the petitioner-complainant and the learned Government Advocate appearing for the respondents-accused. The point raised by the learned counsel for the complainant is of general importance in the conduct of criminal cases where the police officials figure as accused. The point in controversy is also not covered by any authority of our High Court and, therefore, this question has to be considered in depth and a ruling rendered for the guidance of the subordinate Courts.


5. It would appear that where the police officers happen to figure as accused in criminal cases, the present practice appears to be that they make an approach to the Collector or to the concerned Superintendent of Police, and get the A.P.P. to defend them in such criminal cases. No one has ever objected to this course, since the law, as it then stood, was in conformity with this practice. But the Criminal Procedure Code has been amended by Act 2 of 1974, which came into force from 1-4-1974, and the position is now different. S. 303 Cr.P.C. deals with the right of a person against whom criminal proceedings are instituted and it says that any person accused of an offence before a criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice. The term 'Pleader' is defined in S. 2(q) of the Cr.P.C. as follows.


"'Pleader' when used with reference to any proceeding in any Court, means a person authorised by or under any law for the time being in force, to practice in such Court, and includes many other person appointed with the permission of the Court to act in such proceeding."


Thus, the definition, 'pleader' includes not only registered practitioners or advocates, but also other persons appointed with the permission of the Court to act in such proceedings.


6. In the present case, we are faced with the question whether the A.P.P. can at all defend an accused under any circumstance. S. 24 Cr.P.C. defines the term 'Public Prosecutor' as a person appointed by the Central Government or the State Government for conducting any prosecution, appeal or other proceedings on behalf of the Government. Similarly S. 25 of Cr.P.C. deals with Assistant Public Prosecutors and it runs thus -


"The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates." *


Thus, A.P.Ps. are appointed by the Government only for conducting prosecutions in the Courts and they are full-time Government servants. In other words, they are not advocates or legal practitioners entitled to practice as advocates, and their duty, as their designation itself mentions, is only to conduct prosecutions on behalf of the State. To put it differently, they have no right to practise or take briefs to defend the accused in criminal cases. It is clear from the very scheme of the Code of Criminal Procedure that the A.P.P. cannot defend an accused as there is no provision for the same in the Code. Of course, R. 69 of the Criminal Rules of Practice gives the Magistrate a discretion to permit persons other than legal practitioners authorised by any law to practise in such Court to appear in the criminal proceedings before him. But, this rule deals with only 'private pleaders' and it has no application to the A.P.Ps. who are statutorily appointed under the provisions of the Code of Criminal Procedure, by the State Government. In the instant case, the learned trial Magistrate relied upon R. 69 of the Criminal Rules of Practice and referred to a ruling reported in Edward Jayakodi Muthuswami v. Muthuraj 1971 Mad LW (Cri) 260 and permitted the A.P.P. II, Poonamallee, to defend the accused in this case. I am of opinion that this conclusion of the learned Magistrate is erroneous and contrary to the provisions of the amended Code of Criminal Procedure. For one thing, the ruling cited by the learned Magistrate was prior to the amendment of the Code of Criminal Procedure by Act 2 of 1974. For another the A.P.Ps can by no stretch of imagination be termed as 'Private Pleaders' whom the Magistrate can permit or authorise to appear in criminal proceedings before him. It follows that the permission granted by the learned trial Magistrate allowing A.P.P. II, Poonamallee to defend the accused is not sustainable in law, since it is opposed to the specific provisions of the Code of Criminal Procedure.


7. The order of the learned Magistrate permitting the A.P.P. II, Poonamallee to appear for the accused cannot be sustained for another reason also. The accused, who are police officers, had engaged an advocate of their own choice to defend them they were duly represented. Two witnesses were also examined and cross-examined and it was only thereafter, A.P.P. II, Poonamallee, filed a memo of appearance before the trial Court stating that he was appearing on behalf of the accused. In other words, the criminal case was part-heard and the A.P.P. II, intervened only in the middle of the trial. Therefore, this is all the more the reason where the learned Magistrate should have exercised his discretion in a better way even if it is assumed for argument's sake, that he can permit anybody to defend the accused.


8. At this stage, the memo of appearance filed by the A.P.P. II, Poonamallee, has to be looked into in more detail. This memo of appearance recites that the A.P.P. was entering his appearance on behalf of the accused viz., the Inspector of Police and other

"to defend in the further proceedings of the case by virtue of the directions of the A.P.P. I, Chengalpattu, and on the request of the Superintendent of Police (East Chengalpattu)" *


. In this memo, the A.P.P. II has prayed that the trial Court may permit his appearance to defend the accused in the further proceedings. It is clear from the recitals in this Memo that the A.P.P. II intervened in the middle of the trial by virtue of a direction given by the Superintendent of Police, Chengalpattu, to A.P.P. I, who in turn directed the A.P.P. II, Poonamallee, to defend the accused police officers. This memo of appearance was implicitly accepted by the trial Court without a second thought. Now, the result of my discussion is this : The learned trial Magistrate has no jurisdiction to permit A.P.P. II, Poonamallee, appointed under S. 25 of the Code of Criminal Procedure, to defend the accused even though the accused may be police officers. Further, the memo of appearance itself reads as if the Superintendent of Police was the appointing authority of the A.P.P. In any event, the memo of appearance does not appear to have been filed under instructions from the accused persons, which is mandatory under the provisions in S. 303 Cr.P.C.


9. My conclusion is also supported by the observation of the Supreme Court in Sunil Kumar Pal v. Phota Sheikh. In that case, the accused persons were defended by the A.P.P. who earlier had the brief with him. The accused were supported by the ruling party of that State, and when the trial was going on, there was a hostile atmosphere in the Court in favour of the accused. In those circumstances, the Supreme Court observed that the trial could not be regarded as fair and just.


My attention was drawn to another decision of the Supreme Court in Harishankar Rastogi v. Girdhari Sharma, 1978 CrLJ 778 wherein it was held that the Court has got discretion to grant or with hold permission to a private person who is not an advocate to defend the accused. This case has no application to the facts of our case, since the A.P.P. is not a private person but he is an officer appointed under the statute for the purpose of conducting prosecutions on behalf of the State.


10. The learned Public Prosecutor strenuously contended that the complainant in the case on hand is harassing the accused police officers through his private complaint for the last four years and that this is nothing but a counter-blast to the police case filed against the complainant and his men for grave offences. He also pointed out that the offences complained of against the police officers are minor offences like Ss. 323 and 341, I.P.C. and that there was inordinate delay in laying the private complaint. There is lot of force in the arguments of the learned Public Prosecutor and it is noticed that the private complaint against the police officers is made by the complainant herein perhaps as a sort of retaliation for the police case filed against the complainant and his men. It is also true that this private complaint in respect of trivial offences was filed about 3-1/2 months after the complainant came out on bail. It is then pointed out that the complainant herein while in custody in connection with the police case did not complain of any ill-treatment by the police officers before the Magist

rate who remanded him and his men. In the circumstances and in the background of the case, the learned trial Magistrate could have very well rejected the complaint at the first instance and need not have taken it on file and issued summons. There is some force in the contention of the learned Public Prosecutor, that this counter complaint by the petitioner-complainant is only to harass the police officers who dare to charge-sheet him and his men for various offences. But then, this is a matter to be urged before the trial Court itself by way of defence. But, the falsity of the complaint or the motive of the complainant is irrelevant so far as the point in controversy before us is concerned. The question before us is whether the A.P.P. can appear for the accused in a criminal proceeding under any circumstance. My finding is, that under the provisions of the amended Code of Criminal Procedure, he cannot. 11. The result of my above discussion is, the order of the learned trial Magistrate permitting A.P.P. II, Poonamallee, to defend the accused police officers is without jurisdiction and therefore it is liable to be set aside and it is hereby set aside. The Criminal Revision case is allowed. The learned Magistrate will take up the trial of the case and dispose it of as expeditiously as possible.