Karnataka High Court
K Anbazhagan vs The State Of Karnataka on 19 January, 2015
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 19TH DAY OF JANUARY 2015
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION No.742 OF 2015 (GM-RES)
BETWEEN:
K. Anbazhagan,
General Secretary,
DMK Party, aged about 93 years,
"Anna Arivalayam",
Senior citizen not claimed any benefits,
367-369, Annasalai,
Teynampet,
Chennai - 600 018.
...PETITIONER
(By Shri. C.V.Nagesh, Senior Advocate for Shri. A. Saravana,
Advocate)
AND:
1. The State of Karnataka
By its Chief Secretary,
Government of Karnataka,
Vidhana Soudha,
Bangalore - 560 001.
2
2. The Secretary,
Law Department,
Vidhana Soudha,
Bangalore - 560 001.
3. State by Superintendent of Police,
Special Investigation Cell,
Directorate of Vigilance and
Anti-Corruption,
Chennai 600 028.
4. The Special Public Prosecutor,
In Special C.C.No.208/2004,
On the file of the XXXVI Additional,
Sessions Judge, (C.H.No.36),
Bangalore and
Criminal Appeal Nos.835 to 838 of 2014.
5. Mr. Bhavani Singh,
Special Public Prosecutor in
In Special C.C.No.208/2004
On the file of the XXXVI Additional
Sessions Judge, (C.H.No.36),
Bangalore and
Criminal Appeal Nos. 835 to 838 of 2014.
...RESPONDENTS
(By Prof. Raviverma Kumar, Advocate General along with
Shri. I. Tharanath Poojary, Additional Government Advocate
for Respondent Nos. 1, 2 and 4
Shri. D.L.N. Rao, Senior Advocate for Smt. S.R.Anuradha,
Advocate for Respondent No.3
Shri. Tomy Sebastian, Senior Advocate for Shri. K. Divakar,
Advocate for Respondent No.5)
*****
3
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to, praying to call for records
and direct the State of Karnataka to appoint any other Senior
Lawyer as Special Public Prosecutor in Crl.A.Nos.835 to
838/2014, pending on the file this Court Annexure-G by
following the letter and spirit of the judgment passed by the
Hon'ble supreme Court in K.Anbazhagan vs. Superintendent of
Police [2004] 3 SCC 767 to secure the ends of justice.
This petition coming on for Orders this day, the court
made the following:
ORDER
The petition coming on for Preliminary Hearing is considered for final disposal by consent of counsel for the parties, having regard to the narrow compass on which the petition turns.
2. Heard the learned Senior Advocate Shri C.V.Nagesh, appearing for the Counsel for the petitioner - Shri A.Saravana; the learned Advocate General Prof.Ravi Verma Kumar and the Additional Government Advocate Shri I.Tharanath Poojary for Respondents 1, 2 and 4; the learned Senior Advocate Shri D.L.N.Rao appearing for the Counsel for Respondent no.3 - 4 Smt.S.R.Anuradha; and the learned Senior Advocate Shri Tomy Sebastian, appearing for the Counsel for the respondent No.5, Shri K.Diwakar.
3. The petitioner is said to be the General Secretary of the Dravida Munnetra Kazhagam, the principal opposition party in Tamil Nadu who is said to have intervened in the criminal cases in Special CC No.208/2004 and connected cases before the Court of the Special Judge and XXXVI Additional Sessions Judge, Bangalore, involving Selvi J.Jayalalita and three others.
The petitioner claims to have assisted the prosecution at the trial and the higher courts, in the course of incidental proceedings, at several stages of the trial. Ultimately, a judgment was rendered convicting the accused. Appeals are preferred by the said Accused before this court, on its appellate side, in Criminal Appeal Nos.835-838/2014. The appellants had moved this court seeking bail, which was rejected. Consequent upon which, the appellants had approached the 5 Supreme Court. The Supreme Court had granted bail on 17.10.2014 and further extended bail by an order dated 18.12.2014, which reads as follows:
"O R D E R Pursuant to the directions issued by this Court dated 17.10.2014, the petitioners have been released on bail.
Petitioners have filed an affidavit dated 10.12.2014 to the effect that the entire records of the trial court has been filed before the High Court. From the affidavit, it is clear that necessary records have been filed and the appeals are ripe for hearing.
Keeping in view the peculiar facts of the case, we request the learned Chief Justice of High Court of Karnataka to constitute a Special Bench on the date of reopening of the High Court for hearing of the appeals exclusively on day-to-day basis and dispose of the same as early as possible at any rate within three months.
Bail granted by us earlier is extended by another four months from today.
Call these special leave petitions on
17.4.2015."
6
The proceedings are on, before a Special Bench constituted by the Chief Justice to hear the appeals, on a day to day basis. The prosecution is represented by the fifth respondent in this petition, namely, Shri G.Bhavani Singh in those appeals.
It is the case of the petitioner that Shri Bhavani Singh had been appointed as the Special Pubic Prosecutor to conduct the trial before the trial court, as was directed by the Supreme Court in the case of K.Anbazhagan vs. Superintendent of Police, (2004)3 SCC 767. The said appointment had been made in terms of the following directions, namely, "(a) The State of Karnataka in consultation with the Chief Justice of the High Court of Karnataka shall constitute a Special Court under the Prevention of Corruption Act, 1988 to whom CC No.7 of 1997 and CC No.2 of 2001 pending on the file of the XI Additional Sessions Judge (Special Court No.1), Chennai in the State of Tamil Nadu shall stand transferred. The Special Court to have its sitting in Bangalore.
(b) As the matter is pending since 1997 the State of Karnataka shall appoint a Special Judge within a month from the date of receipt of this order and the trial before 7 the Special Judge shall commence as soon as possible and will then proceed from date to day till completion.
(c) The State of Karnataka in consultation with the Chief Justice of the High Court of Karnataka shall appoint a senior lawyer having experience in criminal trials as Public Prosecutor to conduct these cases. The Public Prosecutor so appointed shall be entitled to assistance of another lawyer of his choice. The fees and all other expenses of the Public Prosecutor and the Assistant shall be paid by the State of Karnataka who will thereafter be entitled to get the same reimbursed from the State of Tamil Nadu. The Public Prosecutor to be appointed within six weeks from today.
(d) The investigating agency is directed to render all assistance to the Public Prosecutor and his Assistant.
(e) The Special Judge so appointed to proceed with the cases from such stage as he deems fit and proper and in accordance with law. "
The present representation of the prosecution by Shri G.Bhavani Singh however, is not by virtue of the appointment made by the State Government of Karnataka, but by the Principal Secretary to the Government of the State of Tamil Nadu, to represent the Directorate of Vigilance and Anti- Corruption, Chennai, which was the investigating agency and 8 the complainant. Therefore, the petitioner is before this court contending that such appointment runs counter to the very intent with which the above directions were issued.
In that, the case had been transferred from the State of Tamil Nadu, on a finding that the fairness of the trial was undermined when it was pending before the trial court in Tamil Nadu and therefore, the Supreme Court deemed it fit to transfer the matter to the State of Karnataka and it is in its wake the above directions were issued.
4. The learned Senior Advocate Shri Nagesh would point out that the directions issued however, were in respect of the trial. And the appointment made by the State Government of Karnataka insofar as the fifth respondent - Bhavani Singh was concerned, stood terminated with the conclusion of the trial and when the judgment of the trial court was rendered. The representation before this court in the pending appeals could not be made by Shri Bhavani Singh on the appointment 9 said to have been made by the State Government of Tamil Nadu, as the very object of transferring the matter to the State of Karnataka, was to ensure that the case was completely insulated from the State Government of Tamil Nadu and its agencies. It is contended that the appointment is not only counter to the directions of the Supreme Court, but would seriously prejudice the case on yet another count. The learned Senior Advocate would add that there were instances of serious omissions and commissions on the part of Shri Singh, in the conduct of the trial and even the trial court has expressed its displeasure regarding his conduct. The emphasis is on the aspect that in view of the specific directions of the Supreme Court, the State Government of Karnataka having appointed a Public Prosecutor, it would again be for the Supreme Court to indicate as to who should represent the prosecution before this court, as the directions issued in Anbazhagan's case, supra, is clearly with reference to the procedure in so far as the trial was concerned and hence would conclude that the respondent no.5 10 would have no locus standi to represent the prosecution, on the strength of the authorization issued by the State of Tamil Nadu.
5. The learned Advocate General would concur that the directions issued by the Supreme Court do not specify as to the procedure that is to be followed in the appointment of a Public Prosecutor before this court in the pending appeals. However, if the objective of the Supreme Court is to be understood in its broadest sense, it would have to be taken that the State Government of Karnataka, is entrusted with the task of conducting the case at all stages, till it attains finality.
The learned Advocate General would however, submit that after the judgment was pronounced by the trial court, there has been no further consultation between the State Government of Karnataka and the Chief Justice of the High Court of Karnataka, as directed by the Supreme Court in making any appointment of a Special Public Prosecutor and there is no appointment order issued in favour of respondent no.5, afresh; 11 he would further submit that if it is a formality to be complied with, the State Government, in consultation with the Chief Justice, shall take further steps. Since the State Government is not formally authorized to take any steps in so far as the appointment of the prosecutor or counsel to conduct the appeals, no steps have been taken.
6. The learned Senior Advocate Shri D.L.N.Rao, appearing for the Counsel for the respondent no.3, would submit that the Supreme Court's directions are categorical and would stop short of prescribing the procedure in so far as the appointment of a Special Public Prosecutor to conduct the trial is concerned. Therefore, it cannot be presumed that the appointment of a Special Public Prosecutor by the State Government, in consultation with the Chief Justice, should be at every stage of the proceedings. The State Government or the Central Government shall appoint a Public Prosecutor for every High Court to represent the cause of the State Government 12 under Section 24(1) of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'CrPC', for brevity). In the event of a transfer of a matter to any other High Court, it would again be open for the Central or State Government to appoint a Prosecutor to represent the State or Central Government, respectively, before that High Court, exercising power under Section 24(8) of the CrPC. It is hence contended that the present appointment having been made insofar as Shri Bhavani Singh is concerned, cannot be characterized as being illegal. It is in accordance with law. In the absence of specific directions by the Supreme Court, the said appointment was necessary, as there was no representation on behalf of the prosecution, given the peculiar circumstances. Hence, it is contended that no fault can be found in the appointment. In any event, it is pointed out that Shri Bhavani Singh was the very Special Public Prosecutor, who had conducted the trial and succeeded in securing conviction of the accused. Therefore, his appointment before this court in the appeals would not in any manner prejudice the 13 case and hence, the learned Senior Advocate would submit that there is no substance in this petition. If the petitioner is in doubt as to the legality or the validity of such appointment, his remedy is to approach the Supreme Court and it would not be for this court to modify Paragraph 34(c) of the above directions.
7. The learned Senior advocate Shri Tomy Sebastian, appearing for the Counsel for Respondent no.5, takes strong exception to the wild and baseless allegations made against Respondent no.5 and would submit that the learned Senior Advocate Shri C.V.Nagesh appears to be developing his case only in the course of his arguments, for the points canvassed are not even raised as grounds in the petition. The learned Senior Advocate would further submit that the fifth respondent has conducted the case to the best of his ability, notwithstanding any observations made by the trial court, and his appointment having been made in these proceedings, was very much to the 14 knowledge of all concerned and it was not raised as an issue before the Supreme Court when the matter was placed before it with reference to the bail applications and therefore, there is no infirmity and the petition ought to be dismissed.
8. In the light of the above contentions, insofar as the directions issued by the Supreme Court are concerned, it certainly is confined to the procedure that shall be followed in so far as the trial is concerned. It is also to be seen that the very object of transferring the case to be prosecuted in the State of Karnataka by the State Government of Karnataka, by adopting the special procedure prescribed, was on the Supreme Court having lost confidence of a fair trial being conducted within the State of Tamil Nadu and in any organ of the Government of Tamil Nadu being involved.
Therefore, there may be substance in the contention of the petitioner that the categorical directions by the Supreme Court, as to the procedure and the Prosecutor and his assistant 15 to be appointed in conducting the trial were categorical and could not be varied. Respondent no.3 seeking to invoke Section 24(8) of the CrPC would be out of place. It could then be implied that Respondent no.3 is now in a position to appoint a Prosecutor of its choice. Though it has only chosen respondent no.5, who may have been the Special Public Prosecutor before the trial court. However, Notwithstanding the validity or otherwise of the appointment of respondent no.5, as made by respondent no.3, through the State Government of Tamil Nadu, the fact that the very Special Public Prosecutor has now been appointed as the counsel to represent in the appeals as well, may not cause prejudice to the proceedings. It is therefore a matter of formality for the Supreme Court to clarify as to the procedure in appointing a counsel and his assistant, if any, and in the conduct of further proceedings.
To hazard a guess, the indication is that the proceedings in entirety, till the same attains finality, shall be taken to its 16 logical conclusion by the State of Karnataka. In any event, since this court would not be competent to interpret or expound on what is not spelt out in the directions issued by the Supreme Court, in so far as the procedure to be followed in the manner or terms of appointment of Prosecution Counsel, post, the judgment of the trial court, in the appeals now pending, it would be appropriate if the proceedings are allowed to continue notwithstanding the challenge as to the validity or otherwise of the appointment of respondent no.5, as there is no discernible prejudice caused by his continuance as the Special Public Prosecutor for the time being. This is especially so, when the proceedings are directed by the Honourable Supreme Court to be conducted on a day to day basis, before a Special Bench and with expedition. Hence, to pronounce on the validity of the disputed appointment and to hamper the proceedings would be counter productive and undesirable. It is open either for the State Government of Karnataka or the petitioner himself, to seek further clarifications from the Supreme Court as to the 17 procedure that is to be followed in making appointment of a Special Public Prosecutor and an assistant or assistants, if any, to represent the State of Karnataka.
With that observation, the petition stands disposed of.
Sd/-
JUDGE nv