JUDGMENT 1. In S.T.C. No. 379 of 1979 the Judicial First Class Magistrate, Kasaragod acquitted the accused by judgment, dated 13th February 1981. The case was instituted on the complaint of the Food Inspector, Kasaragod Circle, for offences punishable under the Prevention of Food Adulteration Act in having exposed for sale and sold adulterated toor dhal on 17th January 1979. Against the acquittal the Public Prosecutor filed application for special leave to file appeal on 20th August 1981. Leave was granted on 6th April 1982. The appeal was also filed by the Public Prosecutor and not by the complainant. The preliminary objection is that the special leave application and the appeal are in competent on account of the fact that the Public Prosecutor was not competent to do so. 2. S.378 of the Code of Criminal Procedure reads as follows: "378. Appeal in case of acquittal (1) Save as otherwise provided in sub-s.(2) and subject to the provisions of sub-s.(3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court or an order of acquittal passed by the Court of Session in revision. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-s.(3), to the High Court from the order of acquittal. (3) No appeal under sub-s.(1) or sub-s.(2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub-s.(4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If in any case, the application under sub-s.(4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-s.(1) or under sub-s.(2)." Under S.378(1), the State Government will have to direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any court other than the High Court. A direction by the State Government is a condition precedent to the authority of the Public Prosecutor to file an appeal in that respect. Sub-s.(3) of S.378 says that no appeal under sub-s.(1) or sub-s.(2) shall be entertained except with the leave of the High Court. That means in appeals coming under sub-s.(1) and (2) also, it is a condition precedent for the filing of the appeal that there must be a special leave from the High Court for that purpose. Sub-s.(4) of S.378 provides that if such an order of acquittal is in any case instituted upon complaint, the appeal is maintainable only if the complainant files an application for special leave and the High Court grants the same. Sub-s.(5) of S.378 prescribes the period of limitation for filing special leave. In cases coming under sub-s.(4), if the complainant is a public servant, the period of limitation is six months from the date of the judgment or order. In other cases, the period of limitation is only sixty days from the order of acquittal. Sub-s.(6) provides that in a case coming under sub-s.(4) if the special leave application of the complainant is rejected, no appeal shall lie by the State under sub-s.(1). 3. In other cases, the period of limitation is only sixty days from the order of acquittal. Sub-s.(6) provides that in a case coming under sub-s.(4) if the special leave application of the complainant is rejected, no appeal shall lie by the State under sub-s.(1). 3. S.2(d) of the Code of Criminal Procedure defines complaint: " 'complaint' means any allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report; Explanation. A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant." S.2(r) defines Police report as follows: " ' police report' means a report forwarded by a police officer to a Magistrate under sub-s.(2) of S.173;" In S.2(u) Public Prosecutor is defined as: " 'Public Prosecutor' means any person appointed under S.24, and includes any person acting under the directions of a Public Prosecutor." Sub-s.(1) of S.24 of the Code of Criminal Procedure reads: "For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be." 4. According to sub-s.(1) of S.378 of the Code of Criminal Procedure, the Public Prosecutor may present an appeal provided the State Government directs him to do so. Under sub-s.(4) of S.378, the complainant alone can file an appeal to the High Court after obtaining leave to appeal. The Public Prosecutor can file an appeal only if the State Government directs him. In this case, there is no direction to the Public Prosecutor from the State Government. Therefore leave to appeal filed by the Public Prosecutor is evidently incompetent. In this connection the definition of complaint under S.2(d), police report under S.2(r) and Public Prosecutor under S.2(u) and S.24 are relevant. In this case, there is no direction to the Public Prosecutor from the State Government. Therefore leave to appeal filed by the Public Prosecutor is evidently incompetent. In this connection the definition of complaint under S.2(d), police report under S.2(r) and Public Prosecutor under S.2(u) and S.24 are relevant. Under sub-s.(1) of S.24, the Central or State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for conducting in such court, any prosecution, appeal or other proceeding on behalf of the Central Government or the State Government as the case may be. In such cases, the authorisation to the Public Prosecutor or the Additional Public Prosecutor shall be the appointment under S.24. Such appointment authorises the Public Prosecutor to conduct such cases only on behalf of the State Government. It does not authorise the Public Prosecutor to conduct cases on behalf of complainants other than the Government, except in cases where there is a direction from the Government as contemplated under S.378(1) of the Code. 5. In this case the contention is that there is no such authorisation. It is also admitted that there was no such authorisation by the State Government at the time when the special leave application was filed. 6. S.20 of the Prevention of Food Adulteration Act provides that no prosecution for an offence under the Act, not being an offence under S.14 or under S.14A shall be instituted except by, or with the written consent of the Central Government or the State Government or a person authorised in that behalf, by general or special order, by the Central or State Government. At the same time prosecution for an offence under the Act can be instituted by a purchaser referred to in S.12 if he produced in court a copy of the report of the public analyst along with the complaint. Cognizance of an offence is permissible under the Prevention of Food Adulteration Act only if the prosecution is instituted by or with the written consent of the Central or State Government or a person authorised in that behalf by a general or special order by the concerned Government. In this case, the complaint was instituted by the Food Inspector by virtue of the authorisation which has been produced and proved in the case. In this case, the complaint was instituted by the Food Inspector by virtue of the authorisation which has been produced and proved in the case. Therefore, evidently this is not a prosecution instituted by the State Government, but only a complaint by an officer authorised for that purpose by the State Government. In such a case, the Public Prosecutor is not entitled, except with the direction of the State Government, to file an appeal against the acquittal. 7. The complaint filed by the Food Inspector cannot answer the definition of police report under S.2(r) of the Code. It is only a complaint as defined under S.2(d) of the Code. So also it is evidently a case instituted on a complaint by a person other than the State Government. If so the appeal against the order of acquittal has to be filed by the complainant. It could be filed by the Public Prosecutor only if directed by the State Government. In this case there was no such direction. Therefore the only question that has to be considered is whether the Public Prosecutor could have filed the appeal in view of the provisions of S.378(1). The answer is in the negative. In the absence of such a direction the Public Prosecutor cannot act. In this case the special leave application and the appeal had to be filed by the complainant. In the absence of a direction by the State Government under S.378(1), the Public Prosecutor could have signed the special leave application or the appeal memorandum on behalf of the complainant only on the basis of a vakalat or authorisation validly executed in his favour. That there was no authorisation or vakalat is not disputed. Then the question is whether that defect could be rectified by a vakalat executed subsequently or by an authorisation given by the State Government subsequently. In that connection, the bar under S.378(5) of the Code will come into play. The period of limitation of six months from the order of acquittal is available only in cases where the special leave application is filed by the complainant who is a public servant. In other cases the period of limitation is only sixty days from the date of the order of acquittal. The period of limitation of six months from the order of acquittal is available only in cases where the special leave application is filed by the complainant who is a public servant. In other cases the period of limitation is only sixty days from the date of the order of acquittal. If a subsequent authorisation given by the Government under S.378(1) is taken into account, then the special leave application and the appeal could be taken as having been filed only under the provisions of S.378(1) and it must be within sixty days. At the time when the special leave application was filed in this case by the Public Prosecutor the period of limitation under S.378(5) was almost over even if it is taken that the special leave was applied for by the complainant. The special leave application was filed on the last day of expiry of six months even granting margin for the time taken for obtaining copy. If sixty days is taken as the time limit under S.378(1) read with S.378(5) the special leave application was barred even at that time. After the special leave application was filed on 20th August 1981, the Government issued G.O. (Rt.) 1795/81, dated 21st August 1981 authorising the Public Prosecutor. By that time the period of limitation has already expired. Special leave was granted by this Court only on the basis of special leave application which was filed without authorisation. S.378(5) provides that no application under sub-s.(4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant and sixty days in any other case, computed from the date of the order of acquittal. Rectification of any defect in the presentation of the appeal will only mean filing of a fresh appeal. Therefore the bar of limitation under S.378(5) cannot be got over. 8. Along with the application for special leave no vakalat of the complainant has been filed. The application for special leave could have been filed by the complainant himself. That was not done. The defect in the presentation of the application for special leave cannot now be cured. 9. This aspect of the matter came up for consideration before Justice V. Sivaraman Nair in an unreported decision in Crl. A. No. 326 of 1980. The application for special leave could have been filed by the complainant himself. That was not done. The defect in the presentation of the application for special leave cannot now be cured. 9. This aspect of the matter came up for consideration before Justice V. Sivaraman Nair in an unreported decision in Crl. A. No. 326 of 1980. It was found in that case, for the reasons already stated by me, that the appeal is incompetent and the defect cannot be cured. In State of Kerala v. Sunder Raj ( 1985 KLT 368 ) it was held: "Admittedly Food Inspector is the complainant. It was he who initiated the complaint. As the appeal was allowed reversing the conviction entered against the appellant by the trial court, Food Inspector ought to have filed the appeal instead of the appeal being filed by the State of Kerala. Under S.378(4) it is. for the complainant to apply for special leave to appeal from the order of acquittal. As the Food Inspector is the complainant it is for him to file the appeal by getting sanction for special leave. Under S.378(1) the State Government may direct the Public Prosecutor to appeal to the High Court from an order of acquittal. But in the case in hand, the Public Prosecutor has signed the appeal memorandum but no vakalath or memo of appearance is seen filed on behalf of the complainant. As the appeal has not been filed by the Food Inspector, the complainant, it has to be held that it is not maintainable." 10. An identical case came up for consideration before the Supreme Court in Registrar of Cos., W.B. v. S. P. Works ( AIR 1971 SC 1115 ). It was held therein: "Art.114 of the Limitation Act, 1963 requires appeal under sub-s.(3) of S.417 of the Code of Criminal Procedure to be filed within 30 days from the date of the grant of special leave. No application for the grant of special leave to appeal from acquittal was made within 60 days from that order of acquittal. The orders of acquittal were passed on 4th April, 1968. The petitions of appeal were presented on 1st July 1968. No application for the grant of special leave to appeal from acquittal was made within 60 days from that order of acquittal. The orders of acquittal were passed on 4th April, 1968. The petitions of appeal were presented on 1st July 1968. The appeals were rightly not entertained by the High Court because first there was no application for grant of special leave under S.417(3) of the Code of Criminal Procedure; secondly, the appeals were incompetent without grant of special leave, and thirdly these were barred by limitation. An appeal under S.417(3) against acquittal is incompetent only when there is special leave granted by the High Court. On obtaining special leave the appeal is thereafter filed within 30 days of the grant of leave to escape the mischief of the period of limitation under Art.114 of the Limitation Act, 1963." 11. It follows, therefore that the Public Prosecutor who filed the application for special leave and the appeal on behalf of the complainant without an authorisation or vakalat from him and without an authorisation from the State Government under S.378(1) of the Code of Criminal Procedure was not competent to do so and that the subsequent authorisation given by the State Government out of time is not capable of curing the defect with retrospective operation. The result is that the Crl. Appeal is dismissed as incompetent.