Tripura High Court
Smt. Ananta Banik vs The State Of Tripura on 30 May, 2022
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 30
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
Crl. Petn. No. 17 of 2022
1. Smt. Ananta Banik, wife of Dr. Satyajit Das, daughter of Sri Alok
Banik, resident of West Joynagar (Banik para), P.S. West Agartala,
Dist: West Tripura, Pin-799001.
.....Petitioner
-V E R S U S-
1. The State of Tripura.
2. Dr. Satyajit Das, son of Sri Sunil Das,
3. Smt. Anima Baidya (Das), wife of Sri Sunil Das,
Both are resident of Durgapara, Hapania, P.S. Amtali, Tripura West,
Pin-799130.
..... Respondents.
B_E_F_O_R_E HON'BLE MR. JUSTICE T. AMARNATH GOUD For Petitioner(s) : Mr. S. Kar Bhowmik, Sr. Advocate.
Mr. A. Bhattacharjee, Advocate.
For Respondent(s) : Mr. P. K. Biswas, Sr. Advocate.
Mr. S. Ghosh, Addl. P.P.
Mr. P. Majumder, Advocate.
Date of hearing : 23.05.2022
Date of delivery of
Judgment & order : 30.05.2022
Whether fit for reporting : YES
JUDGMENT & ORDER
Heard Mr. S. Kar Bhowmik, learned senior counsel assisted by Mr. A. Bhattacharjee, learned counsel appearing for the petitioner. Also heard Mr. P. K. Biswas, learned senior counsel assisted by Mr. P. Majumder, learned counsel and Mr. S. Ghosh, learned Addl. P.P. appearing for the respondents.
[2] This Criminal Petition has been filed under Section-482 of the Code of Criminal Procedure, 1973 (for short „Cr.P.C.‟), read with Page 2 of 30 Article-226 of the Constitution of India to quash the orders dated 04.08.2021 (Annexure-10) and 20.08.2021 (Annexure-11) passed by the learned Additional Sessions Judge, West Tripura, Agartala, Court No.5.
[3] The facts which set the criminal law in motion, in short, are that on 07.06.2019, the father of the petitioner namely, Alok Banik lodged a written ejahar to the O.C. Amtali P.S. to the effect that three months prior to the lodging of FIR, on 13.03.2019 his daughter, the petitioner herein was married with Dr. Satyajit Das, respondent No.2. After the marriage, the respondent No.3 i.e. the mother-in-law started torturing her in various ways. On 06.06.2019, the torture became unbearable for her and the family members of her in-laws attempted to murder her by administering excess medicine at around 9.00pm. The family members tried to destroy the original fact and informed them on 07.06.2019 around 9.00am that she was suffering from food poisoning. The son in law did not attend his wife for better treatment from which it was clear that he was also involved with the matter. The daughter of the informant was lying admitted in ICU of TMC Hospital, Hapania.
[4] Based on the aforesaid written complaint, Amtali P.S. Case No.2019/AMT/085 dated 07.06.2019 under Sections-498(A)/307/201/34 of IPC was registered against the respondent No.2 and his mother, the respondent No.3 and thereafter the investigation was commenced. Subsequently, after completion of investigation, charge-sheet No.107/2019 dated 30.08.2019 under Sections-498(A)/307/201/34 was submitted against Dr. Satyajit Das and Smt. Anima Baidya (Das) and the case was re-registered as PRC case No. PRC(WP) 371 of 2019 and transferred to the Court of learned J. M. 1st Class, West Tripura, Agartala, Court No.6. Thereafter, vide order dated 15.02.2019, cognizance of offence under Sections-498(A)/307/201/34 of IPC was taken against both the charge sheeted accused persons i.e. the respondents No.2 and 3.
Page 3 of 30[5] However, being prayed by the petitioner, the Law Department, Govt. of Tripura vide memo dated 19.06.2020 appointed senior advocate, Sri Samrat Kar Bhowmik as Special P.P. to conduct prosecution after the case of the victim is committed to the Court of Sessions, since charge-sheet was filed under Section-498(A)/307/201/34 of IPC. In the meantime, on 18.10.2020, the petitioner executed Vakalatnama favouring learned senior counsel Sri Kar Bhowmik to recover her "Stridhan". Pending the petition for stridhan pending on 23.11.2020, the case was committed to the Court of learned Sessions Judge, Agartala, wherefrom the case was transferred to Addl. Sessions Judge, Court No.5, Agartala. The learned Addl. Sessions Judge vide orders dated 29.01.2021 and 03.04.2021 directed the accused persons to return the Stridhans. Subsequently, vide impugned orders dated 04.08.2021 (Annexure-10) and 20.08.2021 (Annexure-11), the learned Addl. Sessions Judge, Court No.5, firstly disposed the petition for Stridhan, as the same was triable by the Appellate Court under Section- 29 of the D.V. Act and by order dated 20.08.2021 precluded the learned Spl. P.P. Sri S. Kar Bhowmik to appear on behalf of the prosecution as Vakalatnama was executed in his favour by the victim for recovery of Stridhans.
[6] Further, the impugned order dated 20.08.2021 (Annexure-
11) is also bad in law since firstly the learned Trial Court did not consider that there was no conflict of interest as the victim herself wanted her petition under Section-26 read with Section-19(8) of the D.V. Act for recovery of her Stridhans to be filed before the learned Court of J.M. 1 st Class, Court No.6 on 21.10.2020, was not in force as the appointment was issued for conducting the case before the learned Sessions Court after commitment.
Page 4 of 30[7] On 20.08.2021, a petition was filed by the learned Special P.P. wherein, it was prayed to call for the status report of further investigation of the case by the I.O. Subsequently, vide order dated 20.08.2021 the learned trial Court observed that "in my opinion learned Spl. P.P. and P.P. must be independent having no connection or relation either with the accused or with the victim. Acceptance of Vakalatnama for victim appears to be just not proper and therefore cannot be allowed to conduct prosecution as Spl. P.P. for justice not only should be done but, seems to have been done. Therefore, in my view learned Sr. counsel Mr. S. Kar Bhowmik, may not appear as Spl. P.P." Thereafter, on the same date without hearing the appointed Spl. P.P. and hearing the regular Addl. P.P. charge was framed under Sections-498(A)/307/201/34 of IPC and next date was fixed on 23.09.2021 for premptory hearing for making schedule of the witnesses.
[8] Being aggrieved by and dissatisfied with the orders dated 04.08.2021 and 20.08.2021, the instant petition has been filed as the learned Addl. Sessions Judge, Court No.5, Agartala passed effective orders dated 29.01.2021 and 03.04.2021 in adjudicating the petition for return of Stridhans of the petitioner under D.V. Act and as such, the impugned order dated 04.09.2021 passed by the learned Addl. Sessions Judge, Court No.5, Agartala, is bad in law since being a criminal Court, it reviewed its own order.
[9] Mr. S. Kar. Bhowmik, learned senior counsel assisted by Mr. A. Bhattacharjee, learned counsel appearing for the petitioner has submitted that the orders passed by the Court below are bad in law and liable to be quashed. He has further submitted that there was total non- application of mind by the learned trial Court, causing grave miscarriage of justice much to the prejudice of the petitioner/victim, for which the orders are liable to be quashed.
Page 5 of 30[10] Mr. Bhowmik, learned senior counsel has submitted that the impugned order dated 04.08.2021 at Annexure-10, the learned Court below did not consider that his predecessor, the learned Addl. Sessions Judge, Court No.5, Agartala passed effective orders dated 29.01.2021 and 03.04.2021 in adjudicating the petition for return of Stridhans of the petitioner under D.V. Act and as such the impugned order dated 04.09.2021 passed by the learned Addl. Sessions Judge, is bad in law since being a criminal Court, it reviewed its own order. The impugned order dated 20.08.2021 is also bad in law since firstly the learned trial Court did not consider that there was no conflict of interest as the victim herself wanted her petition under Section-26 read with Section-19(8) of the Protection of Women from Domestic Violence Act, 2005 for recovery of her Stridhans to be filed before the learned Court of J. M.1 st Class, Court No.6 on 21.10.2020 (Annexure-4).
[11] He has submitted that by passing the impugned order, the learned trial Court exceeded its jurisdiction as allowing to conduct prosecution by regular prosecutor or by special public prosecutor is not within the domain/purview of the learned trial Court and the same is guided by Legal Remembrancer Manual, issued by the Govt. of Tripura. As per Chapter-9, Part-I of the criminal rules under Legal Remembrancer Manual, the only bar for the Public Prosecutor is that " he will be precluded from accepting any criminal case in his private capacity on behalf of an accused, the State being the prosecutor in criminal cases." As in the present case, Vakalatnama was received from the victim, there was no breach of any conditions, for which, the impugned order being bad in law liable to be quashed.
[12] He has further argued that on 20.08.2021, the learned trial Court committed further illegality by framing charge without hearing the Spl. P.P. in record. It is submitted that as reflected in the order dated Page 6 of 30 20.08.2021, the regular Addl. P.P. was heard during framing of charge but, infact the learned Addl. P.P. did not have any case docket with him, since the whole case file along with the police docket is lying till date with the Spl. P.P. As such, the learned Addl. P.P. was an empty formality for which the same needs to be interfered with this Court.
[13] He has argued that on 20.08.2021 when it was informed to the Court below about the fact of further investigation, without framing the charge in haste, it was imperative on the Court below to call for the status of further investigation for fair ends of justice. According to Mr. Kar Bhowmik, learned senior counsel, the law is trite that the appointment of party‟s counsel as a Spl. P.P. does not by itself militate against the principle that State action must be just, and reasonable, and would not, without anything more, either vitiate trial or deprive the trial for the reason alone the appearance of a fair trial. Such appointment is not liable to be voided on that ground alone whether its legality or propriety is viewed from the Constitutional perspective of a fair trial tested at the touchstone of the statutory requirements.
[14] Mr. Kar Bhowmik, learned senior counsel appearing for the petitioner has relied upon a decision of the High Court in paragraphs-7, 8, 21 and 25 of R. Balakrishna Pillai v. State of Kerala & Others, reported in (1991) 1 KLJ 383, where it has been held thus:
"7. The second instance as narrated by the appellant is that when he was in the Cabinet, the third respondent represented to the Government his apprehension that his life is at risk for conducting effectively the Idamalayar investigation on behalf of Mr. Achuthanandan against the appellant. This issue was also raised in the Assembly by the CPI (M). Consequently police protection was given to the third respondent by the government which appeared in the prominent newspapers also. According to the appellant, this will show the bitter animosity of the third respondent against the appellant. The third contention is that as per Section-24(8) of the Code, which provides for appointment of a Special Public Prosecutor, the government, instead of appointing the third respondent as a Special Prosecutor, has authorized him to conduct the prosecution in the Court of Special Judge at Ernakulam. Section-24 Page 7 of 30 of the Code provides for appointment of Public Prosecutors which includes Special Public Prosecutors as well. Under the said Section, the State Government, after consultation with the High Court, shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for conducting in such court any prosecution, appeal or other proceedings on behalf of the Central Government or State Government to appoint for the purposes of any case or class of cases a person, who has been in practice as an advocate for not less than then years, as a Special Pubic Prosecutor. The expression used in Section- 24(8) of the Code is "appoint". According to the appellant, third respondent was not appointed as per Section-24(8) and, therefore, he is not empowered to conduct the prosecution by virtue of Ext. P1 notification since he is not "appointed", but only "authorized" to conduct the prosecution. It is represented that the said objection was rejected by order dated 27.05.1998 by the Special Judge. However, this order was not challenged by the appellant before this Court.
8. Fourthly, it is submitted that it is not open to the Government to appoint a person who has already appeared for a private party in the same proceedings against the accused persons as a Special Prosecutor. In the instant case, the third respondent has clearly shown his interest by appearing for a third party in the very same proceedings which has been disallowed by this Court. Therefore, he cannot be appointed as a Special Public Prosecutor with a view to secure conviction. According to the appellant, third respondent has been appointed only to vindicate the grievance of the party for whom he had been appearing in the very same proceedings. This apart, it is clear from Ext. P2 that the third respondent has great interest in the case and that he has been appearing for a private person in the very same proceedings. According to the appellant, he is not having an unbiased mind.
21. The word „appoint‟ means to assign authority to a particular use, task, position or office. Likewise, the word „authorise‟ means to empower or to give a right or authority to act or effective legal power. So, in our view, both the words „appoint‟ and „authorise‟ have to be considered as equivalent.
22. In this case, the third respondent was specifically authorised to conduct the special case on behalf of the State. Though the word „appoint‟ is used in Sec. 24(8) of the Code, the use of the word „authorised‟ will not stand in the way of the third respondent in discharging his duties as a Special Public Prosecutor in the conduct of the case. He will have all the powers of a Special Prosecutor to conduct the case as per law. This apart, the very same point was urged by the appellant before the Special Court and the Special Judge, by order dated 27-5-1998, rejected the said contention which was not challenged by the appellant before this court at the appropriate time. We are of the view that Ext. P1 appointment order has been issued in accordance with the provisions of the Code and the Special Public Prosecutor will have all the powers of a Public Prosecutor for conducting the prosecution on behalf of the State Government. The accused in this case cannot object Page 8 of 30 to the appointment of a particular person, namely, the third respondent as a Special Public Prosecutor on the ground of apprehension of bias. This contention, therefore fails.
24. Third respondent's appearance in court on behalf of a third party and obtaining police protection will not be a ground for removing him, who was appointed by the State for the conduct of this case. In fact, the case put forward by Mr. Achuthanandan against the discharge of the appellant was accepted by the court and the police protection was given to the third respondent by the State considering his apprehension that his life is at risk for conducting effectively the Idamalayar Investigation on behalf of Mr. Achuthanandan. There was nothing wrong or illegal on the part of the Government in granting police protection to the third respondent considering his claim. Likewise, the allegation made by the appellant of the third respondent's personal bias against him cannot also be accepted as a ground for quashing Ext. P1. It is expected of any Public Prosecutor to adopt fairness in exercise of his power as a Prosecutor. If the Prosecutor exceeds his authority and acts unfairly, the court will always come to the aid of the party who is likely to be affected. We are of the opinion that we have not reached that stage. We are still on the beginning stage. The judgment of the Special Court has to be rendered by it in an unbiased manner. The Special Court is expected to hold the scale even. In the event of the case being decided either way, it is always open to any party to the proceedings to knock at the doors of this court for redressal of their grievance and may also approach the Apex Court in the event of their being not satisfied with the verdict.
25. We are of the opinion that the State Government has made the appointment of the third respondent under the statutory powers conferred on it. It is the discretionary power vested in the Government. The government is the largest litigant in the country. The government, like any other private party, can choose and appoint/authorise any advocate to appear on their behalf in any court of law. It is not open to an accused in the case to suggest to the Govt. that it should not appoint/authorise the third respondent as their counsel since there is enmity between him and the third Respondent which has nothing to do with the conduct of the case by the third respondent. It is also not in dispute that in no proceedings in the Idamalayar case the third respondent appeared against the interest of the State/prosecution. There is no basis for the allegation that the third respondent has been appointed to vindicate the grievance of the third party for whom he had been appearing. The said allegation is not only baseless but also unsupported by any materials on record."
[15] Mr. Kar Bhowmik, learned senior counsel appearing for the petitioner has further relied upon a decision of the High Court in paragraphs-8, 15-17 and 20, 22-24 of Ajay Kumar v. State and another Page 9 of 30 respondents, reported in 1986 CRI. L.J. 932, wherein it has been held thus:
"8. It may be useful to dispose of a preliminary question as to the maintainability of the petition under Section 482. While there is considerable divergence between the comparative scope of Article 226 and 227 of the Constitution, on the one hand, and of the inherent powers of this Court u/s. 482 of the Code, on the other, there is a measure of convergence in that the two may, in certain situations overlap. The preliminary question was not raised on behalf of the Administration, presumably because it would only lead to unnecessary duplicity of proceedings, and if the Administration has to defend the appointment and the conduct of the trial by the Special Public Prosecutor, whether on a challenge under Article 226 of the Constitution or Section 482 of the Code, it might as well meet the challenge, whichever pedestal it has been counted on rather than raise a technical question as to the appropriate proceedings for the purpose. In any event, where a Special Public Prosecutor has been appointed for a particular trial and there is either a challenge to the validity of the appointment or a controversy is raised as to whether the conduct of the trial by such a Public Prosecutor would tend to vitiate the trial, the validity of the order or the conduct of the trial by the Special Public Prosecute could no doubt be assailed in proceedings under Article 226 of the Constitution. But that by itself would not be a ground to oust the inherent powers of the Court u/s 482 so long as such powers could be invoked to secure "the ends of justice". If the fair trial of an accused is within the legitimate parameters of "ends of justice" or, of the proper process of any criminal court, and if conduct of the trial by a Public Prosecutor is capable of lending a taint of illegality or unfairness to a trial, it would be the legitimate concern of this Court under Section 482 of the Code, as distinct from Article 226 of the Constitution, to consider the challenge so as to ensure that the ends of justice would be secured. While the concession on behalf of the Administration relieves me of the obligation to subject this aspect to any elaborate treatment, I have little doubt in my mind that any matter, which is likely to vitiate the trial, whether the bias of a Presiding Officer or that of a Public Prosecutor, or the likelihood of any of these, this Court could give appropriate directions to ensure a fair trial. True, the validity of a trial could be tested on the conclusion of the trial in appropriate proceedings under the Code. including the invocation of the inherent powers of the Court, but that by itself would be no ground to throttle, at the threshold, a petition based on the allegations that the conduct of the trial by a Special Public Prosecutor, in certain circumstances, may vitiate the trial or that such Public Prosecutor was not entitled to have the conduct of the trial, whatever may be the ultimate decision of the Court in the petition on the various questions in controversy.
(15) What then is the position of a public prosecutor in the criminal court system and how far can his association with one or the other of Page 10 of 30 the parties be capable of lending vitiating element to the trial. The public prosecutor is a functionary of the State appointed to assist the court in the conduct of a trial, the object of which is basically to find the truth and to punish the accused if he is found guilty according to the known norms of law and procedure. It is no part of his obligation to secure conviction of an accused, in any event, or at all costs. Nor is he intended to play a partial role or become party to the persecution of the accused or lends support, directly or indirectly, to a denial of justice or of fair trial to the accused. His plain task is to represent the State's point of view on the basis of the material which could be legitimately brought before the Court at the trial. If all State actions must be just, fair and reasonable, he would be under no less duty as a functionary of the State to discharge his functions as a public prosecutor in an equally just, fair and reasonable manner irrespective of the outcome of ther trial. In that sense, he is part of the judicature system, and an upright public prosecutor has no friends and foes in Court. He has no prejudices, pre-
conceived notions, bias hostility or his own axe to grind. He represents public interest, but is not a partisan in the narrow sense of the term.
(16) Is the position of a public prosecutor any different than of counsel, who appears for parties in a court of law. The answer is both in the affirmative and the negative. An advocate of the court is in theory an officer of the Court and whatever be the side he is engaged to represent he has his higher duty to the court in assisting the court in finding out the truth and in placing before the Court the point of view of his client honestly and fairly and to desist from making any misrepresentation or attempt to mislead the court. The advocate's duty to the court transcends the limited and narrow loyalty to the client, who engages him to protect his interest. Every advocate, therefore, has a dual capacity. He represents his client but that does not dilute his higher duty to the court. He is, however, partisan counsel in a sense not only because he is paid for the work by the client but also because an advocate, in actual practice, does not necessarily conform to the noble theory by which his conduct is sought to be disciplined. The duty of an ordinary advocate and a public prosecutor are, therefore, co-extensive to the extent that both have a common duty to the court and must, therefore, place their respective points of view before the Court in a fair and reasonable manner but the similarity ends there. A public prosecutor has no client or constituency apart from the State and State is not a party like any other party. He is not paid by an individual who may be aggrieved or by the accused who is on trial. He, therefore, does not have the disability of a dual personality, which is certainly true of an ordinary advocate, who is torn, in the thick of his practice in Court, between the wider loyalty to public interest, to the court system, claim of straight and rigid adherence to truth and discipline on the one hand, and his narrow, as also monetary, association with the individual litigant or the institution, whom he represents on the other. An advocate-client relationship introduces a personal element from which the public prosecutor must be considered immune. He is above the personal loyalty. He does not have a dual capacity.
Page 11 of 30(17) Is the position of a public prosecutor any different merely because he is not the ordinary functionary of the State. but has been supplanted either at the instance of an aggrieved party, or a fending faction, or even if appointed independently of the aggrieved party had prior association with the party, and has been amply rewarded by it, as in the present case ? Can such a public prosecutor be said to be as well insulated against pressure of an aggrieved party as an ordinary public prosecutor would be or is at least expected to be but, what is more important would his background not give the appearance of partiality or generate an apprehension of hostility in an Impartial observer of the scene, as indeed, in the accused, who is so vitally interested in the fairness of a trial ? Would this feature of the public prosecutor be capable of vitiating the trial or create an atmosphere which may smack of likelihood of or reasonable probability of bias. In seeking answers to these questions, it is necessary to keep in mind the clear distinction between the "reality" of affair trial and the "appearance" that it is just, fair and reasonable. The concept of equality before the law and equal protection of the laws is in practice fairly diluted when it comes to the right of representation in a court of law. Money and influence do play more than their due roles, The decision of a cause in a court of law is essentially determined by the law, as indeed, the facts of the case. Nevertheless, where an over- burdened special public prosecutor is pitched against eminent, competent, and influential members of the bar with better training, specialized skills, able research and other faculties and aids, the fight cannot but be described as unequal. What make the position worse, is the declining moral standards of some of the services. There is, therefore, a wide feeling among the public that the representation for the Stat is comparatively less effective and may also be easily tampered with through a variety of nefarious influences. If in that kind of an environment an influential or well-to-do aggrieved family feels impelled to engage a counsel of their own choice in whose competence and probity they have full faith and approach the State to engage such a counsel without any burden on the exchequer, it would be difficult to fault such an appointment even though one may not be happy that the State is unable to pay for proper legal services. The accused is no doubt vitally interested in the trial for it may result not only in his condemnation but even of deprivation of his freedom. The accused and the victim are not at par and a criminal trial is not a forum for personal vengeance. It is essentially a State action to punish crime. There is, therefore, no other party involved but with all the concern for a fair trial and humane and civilized conditions in which the accused is treated, both during the investigation in the course of trial, and after conviction., it is difficult to ignore the claim of the victims or of the aggrieved party to ensure that the crime is detected, properly investigated, and the accused is effectively tried, and suitably punished. A fair trial does not necessarily mean that it must be fair only to the accused. It must be fair to the victim also. It must be fair for all. A fair trial is a concept which is much higher than the claims or ends of parties to it. If the accused has a right to counsel of his choice why should not the victims of the crime be entitled to a say in the matter of representation of the State at the trial.
Page 12 of 30The motive of the State and of the victim may be different but the object is common. Moreover a party's counsel who is engaged by the State at the cost of the aggrieved party is equally bound by the higher duty to the court as also to his discipline as an advocate, and is expected to rise to the occasion and discharge his duties as a just and fair public prosecutor unmindful of the source from which the funds are made available for payment to him. The material placed on record by the investigating agency places its own limitations on such a public prosecutor should be nevertheless carry a prejudice or a bias. Above all, there is institutional safeguard against any prejudice or bias or any vitiating elements flowing from such a public prosecutor or his association with a party or a faction in the judicial duty to shift the material and provide the necessary insulator cover against any irrelevant, improper influencing of the trial. While there is no doubt that the association of such public prosecutor may perhaps disturb or dislodge the appearance of a fair trial or create a reasonable apprehension in the mind of the accused that with a hostile and partisan counsel in the garb of special public prosecutor he would perhaps be denied justice or that trial would neither be just nor reasonable. But such fear must not be allowed to blur the judicial mind because of the institutional safeguard. It follows, therefore, that the appointment of party's counsel as a special public prosecutor does not by itself militate against the principle that State action must be just, fair and reasonable and would not, without anything more, either vitiate a trial or deprive the trial for that reason alone of the appearance of a fair trial.
(20) While it appears to be the measure of legislative concern for a Sessions trial, because it involves comparatively graver offences, trial in such court has to be conducted by a public prosecutor but the moment a person, who is qualified for such appointment, is appointed Special (Public Prosecutor under Sub-section (8) of Section 24, he is a Public Prosecutor by virtue of Section 2(u) of the Code. Once he has been validly appointed, even a party's counsel is clothed in the garb of a public prosecutor he is entitled to conduct the trial. If he had not been so appointed he could have acted only under the direction of the public prosecutor, and may. with the permission of the Court, submit written arguments after the evidence is closed in the case as provided in Section 301(2). But ordinarily even such a private counsel, who acts under the directions of the Public Prosecutor, and may only, with the permission of the court, submit written argument after the evidence is closed in the case, nevertheless would be within the definition of the term public prosecutor" in Section 2(u) because the expression "public prosecutor', as defined there includes any person who is "acting under the direction of a public prosecutor". The status of such a counsel as Public Prosecutor is nevertheless dependent on his acting under the direction of a Public Prosecutor. He is unable to have complet (21) That leaves for consideration the numerous decisions cited at the bar by the learned Counsel on both sides.
Page 13 of 30(22) The case of The King vs. Sussex Justice (1) was cited on the question of bias. In this case, the Justices' clerk was present at the Justices' consultation and the clerk was interested professionally in Civil Proceedings arising out of subject-matter of the complaint. It was in these circumstances that the conviction was quashed as it was felt that it was improper for the acting clerk having regard to his firm's relations to the case to be present with the Justices when they were considering their decision. It was, however, a matter purely internal to the Justices and the presence of a Justice's clerk in the circumstances with the Justices could not possibly be equated to the appearance of a Public Prosecutor, One is part of the internal system of justice while the other is only a part ' of the larger judicature system. This case is of no assistance to the petitioner on the question of bias. The case of The King vs. Essex Justices (2) was cited in support of the plea of likelihood of bias. In this case, a solicitor was clerk to justices and left his business at a branch office almost entirely to his own clerk. One of the parties to the proceedings had consulted the solicitor's clerk and it was held that there was a right to take objection to the presence of the solicitor as clerk to the Justices because it would create in his mind the reasonable impression that justice was not being done. The facts of the case are, however, distinguishable because the clerk to the Justices was not merely a part of the larger judicature system, but was immediately concerned with the work of the Justices. The clerk to the Justices could have the ear of the Justices. The position of a Public Prosecutor is clearly distinguishable. The clerk to the Justices is part of the internal court system. The Public Prosecutor could also influence the mind of the Court but, like any other counsel, in the open court and not in the privacy of the chamber of a Presiding Officer. The principle of this decision could not. therefore, be extended to the Public Prosecutor. In the case of Bhupalli Malliah and ors, (3) a Division Bench of the Andhra Pradesh High Court was called upon to construe the provisions of Section 270, 492, 493 and 4(t) of the Code of 1898 to determine the functions of the Public Prosecutor and of Counsel engaged by the complainant in a Sessions trial. It was held that having regard to the language of the Code, Section 493 merely required that the Public Prosecutor should guide the prosecution and direct the private party's advocate and that no legal principle or purpose of criminal administration was involved in excluding a counsel merely on the ground that the complainant had briefed him if he conforms to the normal standards of advocacy. It was, however, observed that on practical consideration, the office of the Public Prosecutor is not a sine- cure appointment audit is an undesirable practice to allow him unless it be on grounds of personal inconveniences or other necessity to get his duties performed by a proxy whenever a private person engages a pleader for that purpose. It was further held that the procedure followed by the Sessions Judge in that case in allowing the prosecution to be conducted by counsel engaged and briefed by the complainant in the case and not by the Public Prosecutor was in violation, of the express and mandatory provisions of the Code contained in Section 270 and that it was clear from the provisions of Section 492(2) and 493 that the Page 14 of 30 counsel engaged by a private party could not plead although he could act under the directions of the Public Prosecutor. Reading clause (t) of Section 4(1) with Section. 493, it was further held that it led to the inevitable conclusion hat any person engaged and briefed by private person in the case to instruct the Public Prosecutor can only so instruct and act under the directions of the Public Prosecutor and in such a case, the prosecution shall be conducted by the Public Prosecutor himself. This case. however, appears to have no relevance because the private counsel in the present case had been given an official status by his appointment as Special Public Prosecutor u/s 24 of the Code. There is a clear distinction between a private counsel engaged to assist a Public Prosecutor and a private counsel, who has been appointed as a Special Public Prosecutor by the State. In the latter case. he is a Public Prosecutor because he has been appointed as such while in the former case. he is a Public Prosecutor because he has been acting under the direction of a Public Prosecutor. In the present case, the complainant's counsel was not merely acting under the direction of a Public Prosecutor, but had been appointed as a Special Public Prosecutor. This case is therefore, of no assistance in deciding the questions in controversy. In the case of Chenna Reddi Vtera Reddi and Anr. vs. Chillakuru Rama Chandra Reddi and anr.(4), the question before the Andhra Pradesh High Court was, if the Court had no power under the Advocates Act to prohibit the counsel appearing as an Advocate, because it was alleged by the other side that his interest would be adversely affected if the counsel was allowed to appear for the opposite party. The court declined to exercise its inherent power on the ground that the Advocates were members of a highly honourable and learned profession and it was expected that they would do nothing which would affect the reputation and good name of the profession. A hope was, however, expressed that on ethical and professional ground, if it appeared that continuance on the part of an advocate in a case was liable to objection, "the advocate should dissociate himself keeping in view the highest traditions of the professions, and that the court must desist from any action which was likely to injure or jeopardise the interests of the profession". This case to my mind, has no relevance to the question in controversy before me except as embodying a rule of caution and prudence. In the case of Roop K. Shorey v. The State (5), it was held by the Punjab High Court in its Circuit Bench at Delhi that Public Prosecutors were expected to act in a "scrupulously fair manner" and present the" case "with detachment and without anxiety to secure a conviction" and that the courts trying the case "must not permit the Public Prosecutor to surrender his functions completely in favor of a private counsel." It was further held on the interpretation of Sections 493 and 495 of the Code of 1898, that a private counsel could be given complete charge of the prosecution case only with the permission of the court but if a private counsel acted under the guidance and control of the Public Prosecutor, he was entitled to act u/s 493 of the Code and that the comparison of the two provisions revealed that it was only when a private counsel was entrusted with an independent charge of the case that permission of the court was necessary and that Page 15 of 30 so long as he acted "under the supervision, guidance or control of the Public Prosecutor", he could examine and cross-examine the witnesses and address arguments. This case is also of no assistance either way because in the present case, a private counsel had been appointed a Special Public Prosecutor. I am however, in respectful agreement with the observation as to what is expected of a Public Prosecutor in the conduct of a trial. In the case of Surjit Singh and another(6) the question before the Supreme Court was, if a Public Prosecutor could withdraw a case pending before a Magistrate on a private complaint which was being conducted by the complainant. On an interpretation of Section 494, of the earlier Code, it was held that a Public Prosecutor can file an application u/s 494 only if he is already "in charge of the particular case" in which the application is filed, and that if a Public Prosecutor was not in charge of a particular case, and was not "conducting the prosecution", he would not be entitled to ask for withdrawal from prosecution. The prosecution in this case was being conducted by the complainant and the prosecuting Deputy Superintendent of Police was nowhere in the picture when he filed as application u/s 494 of the Code. The view expressed by the Punjab High Court that such a Public Prosecutor was not entitled to file an application for withdrawal was accordingly confirmed. This case appears to have no relevance to the questions in the present petition. The case of Rohtas Industries Ltd. (7), was cited to highlight the principle that statutory power is conferred on the faith that it will be exercised in a "reasonable manner". Reliance was placed on the observations in para 37 of the Judgment that in public regulation of this sort, there is no such thing as absolute and untrammeled "discretion" that is that action can be taken on any ground or for any reason that can be suggested to mind of the administrator. It was further pointed out that fraud and corruption in the commission may not be mentioned in such statutes but they are always implied as exceptions, and that "discretion" necessarily implies good faith in discharging public duty; and that there is always a perspective within which a statute is intended to operate and any clear departure from its lines or objects is just as objectionable as fraud or corruption. There is, however, no quarrel with these propositions which, with respect, underscore the basis of the concept of rule of law. In the case of Raj Kishore Rabidas (8) a Division Bench of the Calcutta High Court held that neither under Section 492 nor under Section 4(e) of the old code was any authority given either to the State Government or to the District Magistrate under Section 10(2) to engage a lawyer, far less to make a lawyer by such engagement a Public Prosecutor. It was held that the power to appoint a Public Prosecutor can be exercised by a District Magistrate in the absence of Public Prosecutor or where no Public Prosecutor had been appointed and that the absence did not obviously include the situation when Public Prosecutor appointed in the District was not available to conduct a particular case but could only mean that he is either on leave or by vacancy in the office. It was further held that in trials in court of Sessions, Section 270 of the old Code was required to be strictly adhered to and it was pointed out that it was the duty of the Sessions Judge not to Page 16 of 30 allow prosecution to be conducted by a person who is not properly appointed public prosecutor. Elsewhere, it was held that a Public Prosecutor for the State was not such a mouthpiece for his client the State, to say what it wants or its tool to do what the State directs. "He owes allegiance to higher cause." He must not consciously "misstate the facts", nor "knowingly conceal the truth". Despite his undoubted duty to his client, the State "he must sometimes disregard his client's most specific instructions if they conflicted with his duty in the Court "to be fair, independent and unbiased in his views." As an Advocate for the State, he may be ranked "as a Minister of Justice equally with the Judge". It was further held that there was "failure of justice" because of the illegal appointment of a Public Prosecutor. The defense lawyer was not able to carry out his duties properly and the Judge failed to wait the prosecution evidence properly, which had caused prejudice to the accused but mere illegal appointment of Public Prosecutor would have been accruable irregularity u/s. 537 of the Code. This case turns on its own peculiar facts. The matter was before the High Court on a murder reference u/s 374 of the Criminal Code and the Court examined various facets of the trial to see if there had been failure of justice. The duly appointed Public Prosecutor had kept away from the Court and the trial had been conducted by alawyer, who had not been properly appointed as a Public Prosecutor. While the observations of the Court with regard to the role of a Public Prosecutor are entitled to utmost respect, I see no other parallel in this case which may be of any assistance to-this Court in the present case. In the present case, a special Public Prosecutor had been validly appointed and there was no illegality or irregularity in the manner of that appointment. The Calcutta High Court relied on the observations of the Supreme Court in the case of Ram Naresh Pandey (9), where while dealing with the function of a Public Prosecutor, the Court observed that public prosecutor though an executive officer is in larger sense also "an officer of the Court and that he is bound to assist the court with his fairly considered view and the Court is entitled to have the benefit of the fair exercise of his function". This proposition is scarcely in doubt. The case of P. Sirajuddin (10) was cited in support of the proposition that before a public servant is publicly charged with acts of dishonesty, there must be a suitable preliminary enquiry into the allegations by a responsible officer and such enquiry must proceed in a "fair and reasonable manner". The enquiring officer must not act under an "preconceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon curing the conviction of the said person by adopting measures which are of doubtful validity or sanction". The "means" adopted no less than the "end to be achieved"
must be "impeccable". These observations of the Supreme Court are entitled to greatest respect and are an extension of the principle that all State action must be just, fair, and reasonable and there is no quarrel with this proposition. The case of S. Parthasarathi, (11) was cited in support of the proposition that even a domestic enquiry conducted against a public servant by a biased officer vitiates the order passed on its conclusion. In paras 13 to 17 of this Judgment, Mathew J, who spoke Page 17 of 30 for the Supreme Court, dealt with the question as to the test of likelihood of bias and held that if right minded persons would think that there is real likelihood of bias on the part of an enquiring officer, he must not conduct the enquiry. Nevertheless, there must be a "real likelihood of bias" and that a "surmise or conjecture would not be enough". There must exist circumstances from which a reasonable man would think it "probable or likely that the enquiring officer would be prejudiced against the delinquent". The Court will not enquire whether he was really prejudiced. "If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision". This decision is, however, of no assistance in the present case because the apprehension with regard to bias is not directed against the Judge but is attributed to the Public Prosecutor. I have already dealt with at length with the distinction. This decision is nevertheless of considerable importance in that it gives due weight, with respect, and is based on the extension of the principle that justice must not only be done but must appear to have been done.
(23) The case of Sunil Batra, (12) was cited to highlight the importance of the due process and the procedural safeguards and to reinforce the principle that the salutary requirement of these and the constitutional guarantee against any unfair treatment transcends the physical barrier of a court room and extends right inside the prison walls expanding the requirement of a fair trial even after conviction in the manner in which a convict is detained and treated. It was, inter alia, observed in that case that under Article 21, procedural fairness is badge of constitutionally if life and liberty are to be leashed or extinguished. The case of Maneka Samav Gandhi was cited to bring out the requirements of a fair and impartial trial. Speaking for the Court, Krishna lyer, J. pointed out that the assurance of a fair trial was the "first imperative of, the dispensation of justice" and the central criterion for the court to consider when a motion for a transfer is made is not the "hypersensitivity" or relative convenience of a party or easy availability of legal services or like mini-grievances. Something "more substantial, more compelling, more imperilling, from the point of public justice and its attendant environoient, is necessitous if the Court is to exercise its power to transfer". It was further pointed out that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried, although the process of justice should not harass the parties. It was further pointed out that the sophisticated process of a criminal trial certainly required competent legal service to present a party's case. If an accused person, for any particular reason, was virtually deprived of this facility, an essential aid to fair trial fails. The contention that in the prevailing environment. the petitioner in that case would not be able to get proper "legal service" in Bombay was dispelled. The further contention that mob frenzy or public agitation in the court may deprive the petitioner of a fair trial was also dispelled and it was pointed out that "the Magistrate was the master of the orderly conduct of all court proceedings and his authority shall no bang limp if his business is Page 18 of 30 stalled by brow-heating and it was his duty to clear the court of confusion yelling and nerve racking gesture which mar the serious tone of judicial hearing". In the case of Russainara Khatoon it was pointed out that a procedure prescribed by law for depriving a person of his liberty cannot be reasonable, fair or just unless that procedure ensures a "speedy trial" for determination of the guilt of such person and that "no procedure which does not ensure a reasonably quick trial can be retarded as reasonable, fair just and it would fall foul of Article 21". It was further observed that "speedy trial, and by speedy trial we mean reasonably expedition trial, is an integral and essential part of the fundamental right to Life and Liberty enshrined in Article 21 of the constitution." These observations were made in the context of a dicta that under the law, as it stood today, the Court must abandon the antiquated concept under which pre-trial release is ordered only against bail with sureties. That concept, it was pointed out, was outdated and experience has shown that it has done more harm than good. It was pointed out that new insight into the subject to pre-trial release winch has been developed in socially advanced countries, and, particularly, the United States, should now inform the decisions of our courts in regard to pre-trial release and that if the court was satisfied after taking into account the various material factors that the "accused has his roots in the community and is not likely to abscond, it can safely release the accused on his personal bond. The case of Bachan Singh, was cited in support of the proposition that Article 21 expanded and read for interpretation purposes clearly brings out the implication that the founding fathers recognised the right of the State to deprive a person of his life or personal liberty in accordance With the "fair, just and reasonable procedure established by valid law." This decision was also an authority for the proposition that the State duty to be Just fair and reasonable in the matter of treatment of crime 'did not end with the conviction but continued to regulate the manner in which the sentence Imposed on a convict was to be carried out." In the case of Sabir, by which a Division Bench of this Court overruled the decision of a Single Judge in the case of K. C. Sood, it was laid down that there was on general authority of a Public Prosecutor and the authority or powers are confirmed in relation to the cases entrusted to him by the State Government or of which he is in charge and that there was no provision in the Code which prohibited in Public Prosecutor to appear in private cases. The learned Single Judge had held that in all prosecutions, the State was the prosecutor and the proceedings were always treated as proceedings between the State and the accused. It had been further held that the office of a Public Prosecutor was a public office and involved duties of public nature which were of vital importance to the public. The learned Single Judge had further expressed the view that the office of a public prosecutor was an office of responsibility and was more important than any others because the holder was required to "prosecute with detachment on the one hand and yet with vigour on the other". The learned Judge had consequently held that the Public Prosecutor whether retained or salaried, "could only work for one client i.e. the State, and to yield to any other position will be to damage the Page 19 of 30 dignity, impartiality and efficiency of the office". The Division Bench overruled the decision on an examination of the scheme of the Code. In the case of P.G. Narayanankutty, the learned Single Judge of the Kerala High Court was, inter alia, concerned with the question as to the propriety of a Special Public Prosecutor being appointed either without remuneration or being remunerated by a private party and observed that a Special Public Prosecutor cannot be appointed "with a view to secure conviction at all costs". Special Public Prosecutor could be appointed only when public interest demands it and "not to vindicate the grievances of a private person such as close relation of the deceased". It was further observed that in order that he discharges his duty properly, "he should look to the State for remuneration for his services and if he looks to a private party for remuneration, his capacity and ability to perform his role as Public Prosecutor properly will be endangered". It was held that the Government cannot appoint Special Public Prosecutor on such terms "abdicating their financial responsibility or directing him to receive his remuneration from any private individual or expecting him to work without remundration". It was further observed that it could not be said that in every case, where one of the parties involved was of a particular political persuasion, no Public Prosecutor who shared the particular persuasion, should be allowed to conduct the prosecution. To accept such a state of affairs as an invariable rule would not only be contrary to sound practice, but would seriously offend the dignity of the Bar as such. In this case, the Court was really relieved of the obligation of pronouncing upon the validity of the appointment as a Special Public Prosecutor because the appointee "gracefully withdrew his consent for such appointment". In this case, the learned Judge further observed that it was unfortunate that Public Prosecutors and Additional Public Prosecutors in that State were "so ill-paid that the posts do not always attract talented lawyers and that there was a feeling that merit, talent and experience are not always the criteria behind appointments made to these posts". It was further pointed out that "the Public Prosecutors in the discharge of their duties had to face talented and experienced members of the Bar and complaints were not rare that at times the Prosecutors suffered from serious handicap". It was feared that the public confidence in the institution, as indeed, even the confidence of the Government, may also be shaken at times but nevertheless, earnestness in making these posts which are sensitive posts in the field of administration of criminal justice attractive or in making proper choice of personnel, seem to be lacking which has to some extent "affected the dignity and status of the office of the Public Prosecutor".
It was further observed that whenever the Government was satisfied that in a particular case or class of cases, appointment of a Special Public Prosecutor was necessary they must not only so appoint but also "bear the financial burger involved in the appointment', and Government are "not justified in abdicating their responsibility to meet the financial commitment. It was pointed out that the prosecutor was an officer of the Court expected to assist the Court in arriving at the truth in a given case. The prosecutor no doubt had to vigorously and conscientiously prosecute the case so as to serve the high public interest of finding out Page 20 of 30 the truth and in ensuring adequate punishment to the offender. "At the same time, it was no part of his duty to secure by fair means or foul conviction in any case". He has to "safeguard public interest" in prosecuting the case. Public interest also demands that the trial should be conducted in a fair manner, needful of the rights granted to the accused under the laws of the country, including the Code. The Prosecutor while being fully aware of his duty to prosecute the case vigorously and conscientiously, must also be prepared to respect and protect the rights of the accused. In the case of Kadra Pahadiya, it was held that a "speedy trial" was a fundamental right implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution and that an accused "who was denied the right of speedy trial was entitled to approach the Supreme Court for the purpose of enforcing such right and the Supreme Court in discharge of its constitutional obligation has the power to give necessary directions to the State Government and other appropriate authorities to secure this right to the accused". The dictum of the Supreme Court laid in the case of Hussainara Khatoon (supra) was affirmed. In the case of T. V. Vatheeswaran, it was held that prolonged detention to await the execution of a sentence of death was an "unjust, unfair and unreasonable procedure" and that the only way to undo the wrong was to quash the sentence of death. It was held that the "dehumanising factor of prolonged delay in the execution of a sentence of death has the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way as to offend the constitutional guarantee that no person shall be deprived of his life or personal liberty except according to procedures established by law, and that the appropriate relief in such case was to vacate the sentence of death". It was further observed that delay exceeding 2 years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death, the cause of delay being immaterial. It was further held that Articles 14, 19 and 21 were not mutually exclusive and that they "sustain, strengthen and nourish each other and were available to prisoners as well as free men". "Prison walls", it was pointed out, "do not keep out fundamental rights and person lender sentence of death may also claim the benefit of these rights'. The fiat of Article 21, it was pointed out, was that any procedure which deprives a person of his life or liberty must be just, fair and reasonable. "It implies, inter alia, a right to speedy trial". It also implied humane conditions of detention, preventive or punitive, and the procedure established by law did not end with the pronouncement of sentence. It includes the carrying out of the sentence also. In the case of Decna, the question was as to the constitutionality of hanging a convict by rope and whether this was a "cruel and barbarous method of executing a death sentence and was violative of Article 21 of the Constitution." It was pointed out by the majority that it was lawful to impose the sentence of death in appropriate cases. It would be equally lawful to execute a sentence in an appropriate manner. Article 21 undoubtedly has much relevance on the passing of a sentence as on the manner of executing it. Therefore, a Page 21 of 30 twofold consideration has to be kept in mind in the area of sentencing, Substantively, the sentence has to meet the consitutional prescription contained especially in Articles 14 and 21. Procedurally, the method by which the sentence is required by law to be executed has to meet the mandate of Article 21. The mandate of Article 21 is not that the death sentence shall not be excused but that it shall not be executed in a "cruel, barbarous or degrading manner". In the case of Sheonandan Paswan, the Court was concerned with the scopes of the Public Prosecutors discretion in the matter of withdrawal from prosecution and the nature and scope of the trial court's power in the matter, under Section 321 of the Code of Criminal Procedure. This case was apparently cited to bring out the importance of the office of the Public Prosecutor in that the Supreme Court laid down that the withdrawal from prosecution was an "executive function of the Public Prosecutor"
and the ultimate decision to withdraw from prosecution was his and before an application under Section 321 of the Code was made to the Court, "it is the Public Prosecutor who was to apply his mind to the facts of the case independently without being subjected to any outside infiuence". Government may suggest to the Public Prosecutor that a particular case may not be proceeded with "but nobody can compel him to do so". Although there is no bar in Section 321 on the Public Prosecutor to receive any instruction from Government before he files an application, if the Public Prosecutor receives such instrument, he cannot be said to act under extraneous influence. On the contrary, the Public Prosecutor cannot file an application for withdrawal of a case on his own without instruction from Government, since Public Prosecutor cannot conduct a case absolutely on his own or contrary to the instruments of his client, namely, the Government. Unlike the Judge, the Prosecutor is not an absolutely independent officer. He is appointed by the Government for conducting in Court any prosecution or other proceedings on behalf of Government and, there is therefore, "a relationship of Counsel and client between the two", If the Government gives instructions to a Public Prosecutor to withdraw from the prosecution, the latter "after applying his mind to the facts of the case may agrees with the instructions and file a petition or disagree therewith and refuse to file it". In the latter event, the Public Prosecutor will have to return the brief and perhaps to resign because "it is the Government and not the Public Prosecutor who is in the know of the larger interest of the State". In the case of A.R. Antulay, the question was as to the procedure to be adopted by the Judge in the trial of the two cases transferred to the High Court and as to who should be in charge of the prosecution. It was pointed out that if the cognizance of an offence was taken u/s 8(1) of the Criminal Law (Amendment) Act, 1952 and the trial had to be held according to the procedure prescribed therein, under Section 8(3), the learned Advocate engaged by the complainant to conduct the prosecution will be deemed to be a Public Prosecutor. In such a situation there was no question of the State appointed Public Prosecutor conducting the prosecution and that it would be for the complainant to decide who would be the Advocate in charge of the prosecution and the Advocate so appointed would be deemed to be a Page 22 of 30 Public Prosecutor. In the case of Sunil Kumar Pal, the accused persons were defended by the Public Prosecutor who earlier had the brief of the case with him. It was also found that the accused were supported by the ruling party in the State and when the trial was going on and the witnesses were giving evidence, there were a large number of supporters of the party who were allowed to assemble in the Court compound and who created a hostile atmosphere by shouting against the prosecution in favor of the accused Though the brother of the deceased and the complainant as also the witnesses were intimated no steps were taken for according protection to them so that they may be able to give evidence truly and fearlessly in proper atmosphere consistent with the sanctity of the Court. Quite a few witnesses turned hostile. It was further found that when the trial was commenced, the Special Public Prosecutor who was appointed only 2 days earlier was granted adjournment for one day to prepare the case. There was in these circumstances held that the "trial could not be regarded as fair and Just so far as the prosecution was concerned". The entire course of events show that the conduct of the trial was "heavily loaded in favor of the accused persons". The trial was "vitiated " and acquittal of the accused was set aside. This is what the Court observed : "The order passed by the learned Additional Sessions Judge acquitting respondents Nos. 1 to 9 obviously suffers from a serious infirmity and we do not think it is possible to sustain it on any view of the matter. There can be little doubt that the trial culminating in the acquittal of respondents Nos. 1 to 9 was appallingly unfair so far as the prosecution is concerned and was heavily loaded in favor of respondents Nos. 1 to 9. It is difficult to understand how consistently with ethics of the legal profession and fair play in the administration of justice, the Public Prosecutor of Nadia could appear on, behalf of respondents Nos. 1 to 9. The appearance of the Public Prosecutor, Nadia on behalf of the defense does lend support to the allegation of the appellant that respondents Nos. 1 to 9 were supported by the Communist Party of India (Marxist) which was at the material time the ruling party in the Slate of West Bengal and this would naturally give use to apprehension in the minds of the witnesses that in giving evidence against respondents Nos. 1 to 9, they would be not only marring the displeasure of the government but would also be fighting against it. Moreover, it cannot be disputed that when the trial was going on and the witnesses were giving evidence, the Communist Party (Marxist) who were allowed to assemble in the court compound and who created a hostile atmosphere by shorting against the prosecution and in favor of the accused. Though the appellant and the complainant as also the witnesses were intimidated, no steps were taken for according protection to them so that they may be able to give evidence truly and fearlessly in proper atmosphere consistent with the sanctity of the court. It is significant to note that quite a few witnesses turned hostile and that obviously must have been due to the fact that they apprehended danger to their life at the hands of respondents Nos. 1 to 9 and their supporters. It is also regrettable that though at the time when the trial commenced on 22nd May. 1978, Shri S. N. Ganguly, who was appointed Special Public Prosecutor to conduct the prosecution, Page 23 of 30 asked for an adjournment of the trial in order to enable him to prepare the case particularly since he was appointed only on 20-5-1978, the trial was adjourned only for one day, with the result that S. N. Ganguly had to return the brief. Then late in the evening of 22nd May, 1978 Shri S. S. Sen, Additional Public Prosecutor was asked to conduct the prosecution and he had to begin the case on the very next morning on 23rd May, 197? Without practically any time for effective preparation. We have no doubt that under these circumstances the trial could not be regarded as fair and just so far as the prosecution was concerned. The entire course of events shows that the conduct of the trial was heavily Loaded in favor of respondents Nos. 1 to 9. The trial must in the circumstances be held to be vitiated and the acquittal of respondents Nos. 1 to 9 are a result of such trial must be set aside. It is imperative that in order that people may not lose faith in the administration of criminal justice, no one should be allowed to subvert the legal process. No citizen should go away with the feeling that he could not get justice from the Court because the other side was socially, economically or politically powerful and could manipulate the legal process. That would be subversive of the rule of law. We, therefore, allow the appeal, set aside the judgment and order of the learned Additional Sessions Judge acquitting respondents Nos. 1to 9 as also the order passed by the High Court rejecting the application of the appellant and direct that there shall be a re-trial of respondents Nos. 1to 9 on the self-same charges for which they were tried before the learned Additional Sessions Judge. It is necessary in the interest of justice that the trial should not be conducted in Krishna Nagar because the atmosphere there appears to be surcharged against the appellant and the complainant and we would accordingly direct that the sessions case shall stand transferred to the City Civil and Sessions Court. Calcutta and it shall be tried by a City Civil and Sessions Judge to be appointed by the Chief Judge of the City Civil & Sessions Court. We would also direct that in order that there should be fair yet effective prosecution, the State Government should appoint a senior advocate practicing on the criminal side in the City Civil & Sessions Court, Calcutta as Special Public Prosecutor in consultation with the appellant and the complainant and any suggestions made by the appellant or the complainant shall be taken into consideration in making such appointment. The trial shall commence within a period of four months from today and as far as possible, it shall be completed within a further period of three months. Respondent Nos. 1 to 9 shall be arrested and produced before the police before the Chief Judge of the City Civil and Sessions Court and it will be for the learned Chief Judge or any other Judge of the City Civil and Sessions Court whom the sessions case may be assigned to decide whether bail should be granted to respondent Nos. 1 to 9 or not. Appeal allowed"
(24) I have, therefore, no hesitation in holding that whatever may be my reaction as to the wisdom of the policy in appointing partisan counsel as a Special public Prosecutor, the appointment is not liable to be voided on that ground along, whether its legality or propriety is viewed from the Page 24 of 30 constitutional perspective of a fair trial or tested at the touchstone of the statutory requirements. It is also not possible to justify its annulment on any principle that could be culled out of any of the precedents, from which support was sought on. behalf of the petitioner, but this conclusion should not be taken to mean either this court's approval of the policy underlying the appointment or even of the propriety of it, or to preclude the court, now seized of the trial, or any court ' winch may eventually deal with the matter, on the conclusion of the trial, to consider the question if the conduct of the trial by the Special Public Prosecutor, who had been retained and paid by the aggrieved party, caused such prejudice to the accused at the trial as may be capable of vitiating it. The casual observations made by me on the conclusion of the earlier proceedings, which became a catalyst for the present proceedings, appear to me to be fully confirmed by the precedents, which were brought out by learned Counsel for both the part's ^er an assiduous research, and I am convinced that the practice of appointing a artisan counsel as a Special Public Prosecutor or of payment to a Special Public Prosecutor by the aggrieved party deserves to be given a second look at the highest level. It certainly smacks of abdication of its obligation by the Administration and I am in respectful agreement with the observations made by the Kerala Hight Court in somewhat similar circumstances. In that case, the High Court was relieved of the obligation to rule on the validity of the appointment because the appointee "gracefully" opted out of it. In the present case, the Administration appears to me to have compounded its earlier impropriety by asking the Special Public Prosecutor to defend the validity of his own appointment in this Court rather than leave it to the Standing Counsel for the Administration ration to do it. If the appointment of a Special Public Prosecutor was justified because of any lack of faith in the normal prosecuting channel in the Sessions Court, or because the ordinary Public Prosecutors would not have been a fit match for the eminent defense counsel, I do not know what was found wanting by the Administration in the Standing Counsel to induce him to abdicate his functions in favor of the Special Public Prosecutor. If the Standing Counsel did not inspire the confidence of the Administration, for something that may be wanting in his ability or integrity, one would wonder why the appointment was made and as to how it passed muster roll stage of the consultation with this Court. If the Standing Counsel was fit enough, to defend the appointment, I am sure, the Special Public Prosecutor could have been saved the embarrassment of doing it. The examination of the matter by this Court also brought out an anomaly in Section 24 of the Code which would perhaps deserve some legislative thought. For appointment of a Public Prosecutor for every Hight Court, consultation with the High Court concerned is mandatory, whatever that consultation may mean. If it is to be construed as concurrence, it is a complete safeguard against improper appointment or an appointment based on an improper policy, but if it is a mere consultation it may perhaps be illusory safeguard but it is nevertheless on occasion where the State Government or the Administration could have the benefit of the reaction of the Court on the pro- posed appointment or the policy Page 25 of 30 underlying it. For appointment of Public Prosecutor, for the district courts, there is a provision for consultation with the Sessions Judge because the appointment has to be made from a panel to be prepared by the District Magistrate, only after such consultation. There is, however, no provision in sub-section (8) of Section 24 for consultation with the High Court or the Sessions Court, before making appointment of a Special Public Prosecutor. I am unable to see what is so "special" about this appointment which would justify this immunity. I have no doubt in my mind that for an appointment like the present, if there was consultation with any court, there would certainly have been a second thought on the propriety of the policy which permits the appointment of a counsel on the basis that the monetary burden falls on the aggrieved party, which would be morally wrong and against public policy. If it is the obligation of the State to prosecute a criminal. I do not see why an aggrieved party, rich or poor, should be burdened with the heavy costs, even if the State is at present unable to provide any relief to the victims of crime. While parting with this case, I must express my unqualified disapproval of the policy and make a strong recommendation to the authorities that be, for a dispassionate reassessment of the policy as also for the need to streamline the Court system generally, at all levels, so as to safeguard against manipulation of proceedings from within by the various factors and devices, to which I have drawn attention in the course of the judgment, and of mending fences so that the system is able to withstand external pressures as well from any centre of power, executive or economic."
[16] Mr. Kar Bhowmik, learned senior counsel appearing for the petitioner has further relied upon a decision of the High Court in paragraph-18 of Omprakash Baheti v. State of Maharashtra, reported in 2006 CRI. L.J. 3105, wherein it has been held thus:
"18. The next argument advanced by Mr. Madkholkar is regarding the appearance of Advocate Gupta on behalf of the complainant even prior to his appointment as Special Public Prosecutor. In our opinion, the mere fact that Advocate Gupta had appeared on behalf of the complainant prior to his appointment to assist the Public Prosecutor does not bar respondent No. 1 from appointing him as Special Public Prosecutor in the case. The records disclose that there has been application of mind by respondent No. 1 before appointing Advocate Gupta as Special Public Prosecutor and therefore, it cannot be said that respondent No. 1 has appointed Advocate Gupta as Special Public Prosecutor mechanically at the request of the complainant. No doubt it is expected of Advocate Gupta who has been appointed as Special Public Prosecutor in the case to discharge his duties in the true spirit and in the manner expected of a Special Public Prosecutor. Therefore, in our opinion, we find no merit in the submission made by Mr. Madhkolkar. In our opinion the impugned order has been passed in terms of Rule 22 Page 26 of 30 of the Rules and the same has not been made contrary to the observations/directions given in Mukul Dalal's case."
[17] Refuting the arguments of the learned senior counsel Mr. S. Kar Bhowmik, Mr. P. K. Biswas, learned senior counsel assisted by Mr. P. Majumder, learned cousnel appearing for the respondents has submitted that extent of assistance by victim‟s counsel to Public Prosecutor and manner of giving it, would depend on the facts and circumstances of each case. Though all possible scenarios that may arise during a criminal prosecution cannot be detailed and discussed, a victim‟s counsel should ordinarily not be given the right to make oral arguments or examine and cross-examine witnesses. In this context he has relied upon a decision of the Apex Court in Rekha Murarka v. State of West Bengal and Another, reported in (2020) 2 SCC 474, wherein, the Apex Court has dealt with the matter as under:
"10. Contrary to the argument made by learned Senior Counsel for Respondent No. 1, we do not find that the use of the words "under this subsection" in the proviso to Section 24(8) implies that a victim‟s counsel can only be engaged to assist a Special Public Prosecutor. Such an interpretation would go against Section 301(2), which makes the pleader instructed by a private person subject to the directions of the Public Prosecutor or the Assistant Public Prosecutor. In our considered opinion, a harmonious reading should be given to these provisions to give them full effect. Furthermore, credence should be given to the overall emphasis on victimology underlying the 2009 Amendment Bill, as reflected in its Statement of Objects and Reasons:
"Statement of Objects and Reasons.- The need to amend the Code of Criminal Procedure, 1973 to ensure fair and speedy justice and to tone up the criminal justice system has been felt for quite sometime. The Law Commission has undertaken a comprehensive review of the Code of Criminal Procedure in its 154 th Report and its recommendations have been found very appropriate, particularly those relating to provisions concerning... victimology...
2. ... At present victims are the worst sufferers in a crime and they don‟t have much role in the Court proceedings. They need to be given certain rights and compensation so that there is no distortion of the criminal justice system." In view of this context and the provisions of the CrPC, there appears to be no justifiable basis for applying the provision only with respect to Special Public Prosecutors. Thus, we find that the Page 27 of 30 assistance given by the victim‟s counsel is meant to be given to the prosecution in general.
11.1 The use of the term "assist" in the proviso to Section 24(8) is crucial, and implies that the victim‟s counsel is only intended to have a secondary role qua the Public Prosecutor. This is supported by the fact that the original Amendment Bill to the CrPC had used the words "co- ordinate with the prosecution". However, a change was later proposed and in the finally adopted version, the words "coordinate with" were substituted by "assist". This change is reflective of an intention to only assign a supportive role to the victim‟s counsel, which would also be in consonance with the limited role envisaged for pleaders instructed by private persons under Section 301(2). In our considered opinion, a mandate that allows the victim‟s counsel to make oral arguments and cross-examine witnesses goes beyond a mere assistive role, and constitutes a parallel prosecution proceeding by itself. Given the primacy accorded to the Public Prosecutor in conducting a trial, as evident from Section 225 and Section 301(2), permitting such a free hand would go against the scheme envisaged under the CrPC."
[18] Mr. P. K. Biswas, learned senior counsel has further relied upon a decision of the Apex Court in Sheshrao and Others v. The State, reported in 2001 CRI L.J. 3805, wherein the Court has observed thus:
"25. In Hitendra Vishnu Thakur v. State of Maharashtra , the Apex Court held that the Public Prosecutor is not a part of the investigating agency. He is an independent statutory authority. It is held by the Apex Court in Mukul Dalai v. Union of India that the office of the Public Prosecutor is a public one and the primacy given to the Public Prosecutor under the Scheme of the Code has a social purpose.
26. The role of Public Prosecutor in conducting the trial of a warrant case before the Sessions Judge is highlighted by a number of judgments of various High Courts in this country. The pronouncements on the point are unanimous. There should be on the part of the Public Prosecutor no unseemingly eagerness for or grasping at conviction. His duty as Public Prosecutor is not merely to secure the conviction of the accused at all costs but to place before the Court whatever evidence is in his possession, whether it be in favour or against the accused and to leave it to the Court to decide upon all such evidences whether the accused had or had not committed the offence with which he stood charged. The Public Prosecutor is not supposed to go out of his way to secure a conviction. He has to be truthful and impartial. A Public Prosecutor is not a mouth-piece for the State. He must not consciously mis-state the facts, nor knowingly conceal the truth. The Public Prosecutor must not suppress or keep back from the Court evidence relevant to the determination of the guilt or innocence of the accused. He must present a complete picture and not be partial. He has to be fair to both sides in the presentation of the case. The ideal Public Prosecutor Page 28 of 30 is not concerned with securing convictions, or with satisfying the departments of the State Government, with which he has to be in contact. He must consider himself as an agent of justice."
[19] According to this Court, even if Ld. Sr. Counsel Mr. S. K. Bhowmik is appointed as Spl. PP for this case, Ld. Sr. Counsel cannot accept the vokalatnama executed by victim as, PP or Spl. PP must be independent and should not accept engagement from the victim or accused. In this case, I find, on 21.10.2020 the victim filed an application under Section-93 of Cr.P.C. for recovering of Stridhan and on 04.11.2020, the victim filed a petition under Section-26 R/W Section 19(8) of the Protection of Women from Domestic Violence Act for return of Stridhan along with list of Stridhan.
[20] Even though as per Section-26 of the D.V. Act, the relief available under Section-18 to 20 may be sought in any legal proceeding before a Civil Court, Family Court or criminal court but, as per Section 29 of the D.V. Act, this court being the appellate court should not decide the original petition for return of disputed claim of stridhan. In my view, as Ld. Sr. Counsel Mr. S. Kar Bhowmik accepted the Vokalatnama on behalf of the victim, even though may be for recovery of Stridhan, but it will not be proper to conduct prosecution as Spl. PP.
[21] In my opinion Ld. Spl. PP and PP must be independent having no connection or relation either with the accused or with the victim. Acceptance of vokalatnama for victim appears to be just not proper and therefore cannot be allowed to conduct prosecution as Spl. PP for justice not only should be done but seems to have been done.
[22] The Court below rejected on the ground that Mr. S. Kar Bhowmik, learned senior counsel cannot be permitted to deal with the matter as a Spl. P.P. since, he has filed his personal Vakalatnama in favour of the complainant and also the same is pending. In view of the same, he cannot be performed his duties as Spl. P.P. Page 29 of 30 [23] During the course of argument Mr. S. Kar Bhowmik, learned senior counsel in all fairness submitted before this Court that in view of the objection raised as designated senior advocate, it is unwelcoming him for continue with this matter. He has represented before this Court that the matter be decided on merits but, however, he will not be appearing in this matter any longer under the capacity of Spl. P.P. before the learned Court below.
[24] The point for consideration before this Court is that Mr. S. Kar Bhowmik, learned senior counsel has admittedly filed a Vokalatnama without charging any fee, in favour of the complainant before the J. M. 1st Class and now, in the subject matter involved in this criminal petition, he is also in the file of the Sessions Judge though, the matters are different but ultimately, interest involved is the client and the advocate relationship. Whether the advocate has received fee or not is not relevant. Having accepted Vakalatnama an automatic bondage and relationship develops and for a lawyer the clients‟ interest is paramount. Hence, his conduct cannot be said it would be unbiased towards his client. It would be unjustified. Even though, he has not received any amount/fee towards consideration. It cannot be said that he has no interest in this matter. The client and the advocate relationship itself create interest irrespective of any monitory consideration. In that view of the matter, it cannot be said that he will be performing his duties as Spl. P.P. unbiased or without any interest.
[25] It is seen that Mr. S. Kar Bhowmik, learned senior counsel appearing for the petitioner is the beneficiary of the appointment order as Spl. P.P. by the Government of Tripura. He represented his case on his behalf for retaining his post as a Spl. P.P. and to proceed with the matter. Further, he himself represented before this Court questioning the said Page 30 of 30 impugned order to retain him as Spl. P.P. and further prayed for appropriate relief before this Court.
[26] All these goes to show that Mr. S. Kar Bhowmik, learned senior counsel is having interest in the matter and it cannot be ruled out that he has no interest and fair prosecution will be conducted. The judgments as cited by Mr. S. Kar Bhowmik, learned senior counsel are not relevant to the facts and circumstances of the case as the cases which are referred are appointment of Special Public Prosecutor but, here is the case where the appointment of a Special Public Prosecutor pertains to a person who is holding Vakalatnama in respect of the complainant. More so, the said counsel argued for himself for retaining him as the Special Public Prosecutor before the Court below as well as in the High Court falls for serious considerations before this Court and this Court has no hesitation to reject the argument of the counsel for the petitioner and thus, upheld the orders passed by the Courts below.
[27] In view of above observations, this Court is not inclined to consider the prayer of the petitioner as prayed for in the present petition and thus, the same stands dismissed confirming the orders of the learned Courts below. As a sequel, miscellaneous applications pending, if any, shall stand closed.
JUDGE A.Ghosh