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Criminal Miscellaneous No. 196/T of 1971, decided on 14^th April 1971.

S.493‑Public Prosecutor‑Expression "shall act"‑Interpretation‑Conduct of prosecution‑Responsibility of Public Prosecutor‑Private Pleader, instructed by complainant of course to act under directions of Public Prosecutor.

Vaz v. Emperor 1930 M W N 769 ; Medichety Ramakistiah and others v. The State of Andhra Pradesh A I R‑1959 Andh. Pra. 659 and Malik Asad Khan v. The State. 1969 P Cr. L J 1058 ref.

Muhammad Akhtar for the State.

Having perused the report submitted by the learned trial Magistrate which appears to be quite fair and frank I find that the only point to be considered in deciding this transfer application is as to whether the learned trial Magistrate was justified in allowing a private counsel to conduct the case on behalf of the P. S. I. with the latter's permission and 9n his presence. The relevant statutory provision is contained in, section 493, Cr. P. C. which reads as follows:‑

"The Public Prosecutor may appear and plead without any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal, and if any private person instructs a pleader to prosecute in any Court any person in any such case, the Public Prosecutor shall conduct the prosecution, and the pleader so instructed shall act therein, under his direction."

From the plain reading of the above provision it is clear that the conduct of the prosecution is the responsibility of the public Prosecutor and of course a private Pleader instructed' by the complainant has to act under his directions. The expression "shall act under his directions has been interpreted in Vaz v. Emperor (1930 M N W 769) as also in Medichetty Ramakistiah and others v. The State of Andhra Pradesh (A I R 1959 Andh. Pra. 659). In both these authorities the view taken was that the Public Prosecutor cannot abdicate his functions being incharge of the prosecution but a private pleader can conduct the examination, cross‑examination etc. of witnesses under his directions. The same view was also adopted by Shaukat Ali. J. in Malik Asad Khan v. The State (1969 P Cr. L J 1058). I am in respectful agreement with this view. In the circumstances, therefore, the procedure adopted in the conduct of the pro secution and of course with the implied permission of the Court which is charged with the sacred duty of safeguarding the interest of the parties, is not open to question. The petition,, therefore, fails and is hereby dismissed.

Petition dismissed.

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