1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION(MAIN) NO. 190 OF 2009 1. Shri Saleem Shaikh, Police Inspector presently posted at Traffic Cell, Ponda, Goa. 2. State of Goa, through the Public Prosecutor (High Court) Panaji, Goa. ... Petitioner versus Dr. Joe D'Souza, Retired Professor, R/o Opposite Customs House, Panaji, Goa. ... Respondent Shri C. A. Ferreira, Public Prosecutor for the Applicants. Shri R. Satardekar, Advocate for the Respondent. CORAM : N. A. BRITTO, J. DATE : 3RD AUGUST, 2009. ORAL ORDER Heard Shri R. Satardekar, learned Counsel on behalf of the Respondent. The first Petitioner herein had filed the present petition along with the State of Goa as second Petitioner. The petition was filed through 2 Shri C. A. Ferreira, learned Public Prosecutor. Thereafter, an objection was taken by Shri R. Satardekar that Shri C. A. Ferreira as a Public Prosecutor could not file this petition. However, in my view, it is not necessary to deal with the said objection considering the controversy which was involved before the trial Court as well as before the first appellate Court. 2. There is no dispute that the Applicant herein was in charge of Agacaim Police Station. The Respondent herein had filed a first information report against certain persons and that was registered as Crime No.104/03 under Sections 143, 452, 353, 427 r/w 149 IPC. On completion of the investigations he thought it fit not to file charge-sheet against the accused involved in the case and sent the case as A summary which was not accepted by the learned J.M.F.C. and who directed Applicant No.1, the Officer in charge of the said Police Station, to re-investigate the case and file charge-sheet. That not having happened, the Respondent filed an application, to take appropriate action for contempt. The Applicant No.1 sought legal assistance from the Government and that was given to him by appointing Shri P. Kirtani as a Government Advocate and who filed a memo of appearance. 3. The Respondent objected to the said Shri Kirtani representing Applicant No.1. That objection came to be dismissed by the learned trial Court by Order dated 25-4-2008. The Respondent herein challenged the said Order before the Court of Sessions and the learned Additional Sessions Judge by his Order 3 dated 13-8-2008 allowed the revision and set aside the Order dated 25-4-2008. In doing so, the learned Additional Sessions Judge referred to two cases, namely the case of Kannappan v. Abbas(1986 Cri. L. J. 1022) and Sudhir M. Vohra v. Commissioner of Police for Greater Bombay(2004 Cri. L. J. 2278). There is no dispute that both the said cases pertained to appearances for the accused by a Public Prosecutor and not a Government Pleader and also not in any proceedings for contempt. 4. Shri R. Satardekar, learned Counsel appearing on behalf of the Respondent has not been able to bring to my notice any decided case that the Government could not appoint a pleader to defend another Government servant who was issued with a notice for contempt. However, Shri Satardekar, learned Counsel appearing on behalf of the Respondent, submits that a Government Pleader could not be appointed for Applicant No.1 who was a statutory functionary as defined under Section 2(4) of the Code of Criminal Procedure, 1973. Learned Counsel further submits that Applicant No.1 is a statutory functionary and that is evident from Section 154 of the said Code which also requires him to register a cognizable complaint. Learned Counsel further submits that the Government might have been able to appoint a Government Pleader to defend him in case he was an ordinary executive officer of the Government and not otherwise. It is the submission of Shri Satardekar that the Government Pleader is being appointed at the costs of the public exchequer which will result in wastage of public funds. 4 5. I am unable to accept any of the submissions made by Shri Satardekar, learned Counsel appearing on behalf of the Respondent. Applicant No.1 was required to file a charge-sheet and he would have been doing so at the behest of the State Government whose duty is to prosecute all offenders. There is no dispute that Applicant No.1 as an Officer in charge of the Police Station as such was a functionary of the State Government and if as a functionary of the State Government he had received a notice to show cause as to why contempt proceedings should not be initiated against him, and he approached the State Government to provide for legal assistance, no fault could be found with the State Government in appointing a pleader, as Government Pleader, to defend him. That being the position, no fault could be found in the action of the State Government appointing a pleader to defend Applicant No.1 who was a functionary of the State Government as an Officer in charge of the Police Station. 6. As already stated, the learned Additional Sessions Judge has proceeded on the assumption that the advocate appointed was a Public Prosecutor and also on the basis of certain observations made with reference to a Public Prosecutor which is certainly not relevant in the case of appointment of a Government Pleader. Incidentally, it may be mentioned that the Apex Court in S. K. Shukla v. State of U.P.(2006(1) SCC 314) quoted with approval its decision in S. Paswan v. State of Bihar((1987) 1 SCC 288) that a Public Prosecutor is appointed by the Government for conducting in Court any prosecution or other proceedings on behalf of the Government concerned. So 5 there is the relationship of counsel and client between the Public Prosecutor and the Government. 7. In the above view of the matter, the application is bound to succeed. The impugned Order of the learned Additional Sessions Judge dated 13-8-2008 is hereby set aside and both the parties are hereby directed to remain present before the learned J.M.F.C. on 17-8-2009 at 10.00 a.m. for further proceedings. N. A. BRITTO, J. RD