Allahabad High Court Suneel Kumar Singh vs State Of U.P. on 18 February, 2019 HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. 10 Crl. Misc. Application No.22715 of 2019 In re; Case : CRIMINAL APPEAL No. 724 of 2017 Appellant : Suneel Kumar Singh Respondent : State Of U.P. Counsel for Appellant : Indrajeet Shukla,Brij Mohan Sahai Counsel for Respondent : Govt. Advocate,Arun Sinha,Siddhartha Sinha Hon'ble Anil Kumar,J. Hon'ble Vikas Kunvar Srivastav,J. Heard Sri Brij Mohan Sahai, learned counsel assisted by Sri Indrajeet Shukla for the appellant, Sri Chandra Shekhar Pandey, learned Additional Government Advocate and Sri Sharad Dixit, learned counsel for the complainant on short term bail application pending in appeal. This short term bail application has been moved on behalf of the accusedappellant/ Suneel Kumar Singh, who involved in Gangster Case No. 448 of 2012 arising out of Case Crime No. 717 of 2003 under Sections 147,148,149,504,506,307/34, 302 IPC & 3(1) U.P. Gangster & Anti Social Activities Act,1986 and Gangster Case No.451 of 2012 arising out of Case Crime No. 726 of 2003 under Section 25/27 Arms Act, Police Station Gosaiganj ,District Sultanpur Sri Brij Mohan Sahai, learned counsel for the accused appellant while pressing the present application submits that the marriage of his niece is fixed on 22.2.2019 , so accused appellant may be released on short term bail. Learned Additional Government Advocate does not dispute the fact that marriage is fixed on 22.2.2019. Sri Sharad Dixit, learned counsel for the complainant has opposed the short term bail on the ground that previously when the accusedappellant was released on bail, misused the same, so he is not entitled for short term bail. Sri Brij Mohan Sahai, learned counsel for the appellant , in rebuttal, submits that Sri Sharad Dixit, learned counsel for the complainant has no authority to oppose the short term bail on the ground that initially he had argued the matter in the capacity of Additional Government Advocate, so he cannot be permitted to argue and oppose the matter on behalf of the complainant/victim in view of the provisions under section 301 read with Section 302 Cr.P.C.. We have heard learned counsel for the parties on the short term bail application as well as the point whether an Advocate initially argued the cae in the capacity of Government Advocate/ Additional Government Advocate/ Assistant Government Advocate/ Brief Holder in an appeal and if he has been disengaged in the aforesaid capacity , can argue the case on behalf of the complainant or not? In order to decide the above said point, it will be appropriate to consider the following things: Definition of Public Prosecutor as given under Section 2 (u) of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) Section 2 (u) : "Public Prosecutor" means any person appointed under Section 24, and includes any person acting under the disrection of a Public Prosecutor. And Section 24 of Cr.P.C. has been amended in 1978 and there are following categories of Public Prosecutor : (a) A Public Prosecutor for the High Court appointed by the Central Government or the State Government, after consultation with the High Court. (b) A Public Prosecutor appointed by the Central Government for conducting any case or classes of cases in any district or local area. (c) A Public Prosecutor for each District, appointed by the State Government. Besides the above categories of Public Prosecutors, the State Government or the Central Government may appoint Assistant Public Prosecutor for conducting prosecution in the Courts of Magistrates But they would not be regarded as "Public Prosecutors" for the purposes of Code, because the definition in the instant clause refers only to those persons who are appointed under Section 24. Functions of a Public Prosecutor Unless a person comes with the instant definition, he cannot discharge any of the following functions which are entrusted, inter alia, to a Public Prosecutor, by various provisions of the Code : (i) Section 199 (2) complainant for the offence of defamation against President, VicePresident, Governor, Administrator or public servant. (ii) Section 225 conduct of prosecution, in sessions cases. (iii) Section 301 (1) Cr.P.C. power to appear and plead in any Court, without written authority and to conduct prosecution without permission of Court. (iv) Section 308 (1) certificate of Public Prosecution necessary for trial of approver who has not complied with conditions of tender of pardon. (v) Section 321 withdrawal of prosecution. (vi) Section 378 (1) appeal against acquittal. (vii) Section 407 (5) notice of application for transfer of case to be given to the Public Prosecutor. Duty in conducting prosecuti