Kerala High Court
P.P.Prabhakaran vs The Additional Chief Secretary To ... on 19 April, 2016
Author: B.Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
TUESDAY, THE 12TH DAY OF DECEMBER 2017/21ST AGRAHAYANA, 1939
WP(C).No. 5747 of 2017 (P)
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PETITIONER :
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P.P.PRABHAKARAN,
S/O.KUNHAPPA NAMBIAR, AGED 64 YEARS,
PRABHATHAM, MUKKUNNU, KUPPAM P.O.,
KANNUR DISTRICT.
BY ADV. SRI.SUNNY MATHEW
RESPONDENT(S):
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1. THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT,
HOME (C) DEPARTMENT, THIRUVANANTHAPURAM- 695 001.
2. THE STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM- 695 001.
BY DIRECTOR GENERAL OF PROSECUTION SRI.C.SREEDHARANNAIR
SR GOVERNMENT PLEADER SMT. REKHA C NAIR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12-12-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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WP(C).No. 5747 of 2017 (P)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT-P1: TRUE COPY OF THE LEGAL OPINION DATED 19.4.2016 SUBMITTED BY
THE DIRECTOR GENERAL OF PROSECUTIONS, KERALA TO THE 1ST
RESPONDENT.
EXHIBIT-P2: TRUE COPY OF THE NOTES PREPARED BY THE JOINT SECRETARY TO
GOVERNMENT, DATED 2.5.2016.
EXHIBIT-P3: TRUE COPY OF THE DRAFT NOTIFICATION PREPARED BY THE 1ST
RESPONDENT.
EXHIBIT-P4: TRUE COPY OF THE REPORT OF THE DIRECTOR GENERAL OF
PROSECUTIONS.
EXHIBIT-P5: TRUE COPY OF THE LETTER DATED 23.9.2016 ISSUED BY THE 1ST
RESPONDENT.
RESPONDENT(S)' EXHIBITS AND ANNEXURES:
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ANNEXURE R1(A) COPY OF THE CIRCULAR NO.95313/C4/2014/HOME
DATED 29/11/2014.
/TRUE COPY/
P.A.TO JUDGE
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[CR]
B. KEMAL PASHA, J.
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W.P.(C)No.5747 of 2017
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Dated this the 12th day of December, 2017
JUDGMENT
Crime No.324/2016 of the Pariyaram Medical College Police Station has culminated in S.C.No.401/2016 of the Sessions Court, Thalassery, for the offences punishable under Sections 143, 147, 148, 447, 427, 323, 324, 326, 307, 302 and 506(ii) read with Section 149 IPC.
2. The prosecution case is that on 13.05.2014 at 7 pm, the accused barged into the residential compound of the defacto complainant at Mookkunnu in Pariyaram and attacked the defacto complainant, his wife, and son, Prajul. Very serious injuries were inflicted on them with deadly weapons. Later, Prajul succumbed to the injuries while undergoing treatment.
3. The defacto complainant has got a case that the murder of Prajul and the attempt to murder on the defacto complainant and his wife was clearly politically motivated. The defacto complainant wanted to get a special Public Prosecutor W.P.(C)No.5747 of 2017 2 appointed for conducting prosecution before the court below in the case, evidently when he has no faith in the regular Public Prosecutor, who was conducting prosecution before the court below. The defacto complainant preferred an application before the Government for the same.
4. A report was called for by the Government from the then Director General of Prosecution, Kerala. Ext.P1 report dated 19.04.2016 was furnished by the learned Director General of Prosecution. In Ext.P1, the learned Director General of Prosecution has stated that he had meticulously analysed the facts of the case and on evaluation of the entire facts and circumstances, it appeared to him that this is a very sensational case, and public at large are closely watching the very result of the case. It was reported that any lapse in the conduct of the prosecution would invite public wrath and resentment and the same would badly affect the profile of the prosecution machinery in the State. Based on the said reasoning, he recommended for the appointment of Sri.C.K.Sreedharan, Advocate, Hosdurg, Kasaragod as Special Public Prosecutor to conduct the case, subject to the terms and W.P.(C)No.5747 of 2017 3 conditions relating to appointment and conditions of service.
5. Thereafter, Ext.P2 notes were prepared in which the Home Secretary, the then Chief Minister, the then Additional Chief Secretary and several other top officials, subscribed their signatures and approved the notes. As per the said notes, it was recommended that "Sri.C.K.Sreedharan, Advocate, Hosdurg, Kasaragod may be appointed as Special Prosecutor for conducting prosecution in Crime No.326/2014 of Pariyaram Police Station on regulation of fee prescribed in KGLO Rules, 1978." It was approved by the then Chief Minister. Based on Exts.P1 and P2, Ext.P3 draft notification was also prepared.
6. Prior to the publication of Ext.P3 notification, evidently there was a change in the Government. Thereafter, the things turned down. The newly formed Government again wanted to get a report from the Director General of Prosecution, Kerala. The present Director General of Prosecution, Kerala furnished a report, the last paragraph of which reads thus: "In the circumstances, after having applied my mind and after judicious scrutiny of the facts and W.P.(C)No.5747 of 2017 4 circumstances of the case, I am of the opinion that this is not a fit case wherein the appointment of Special Public Prosecutor is necessary."
7. According to the learned Public Prosecutor, the present circular dated 18.09.2017 prescribes certain norms for the appointment of the Special Public Prosecutor. The earlier circular was dated 29.11.2014, on the basis of which Ext.P1 recommendation was made by the then learned Director General of Prosecution. Circular dated 18.09.2017 cannot have any retrospective operation. Ext.P4 report of the present Director General of Prosecution does not show that the same has been furnished on the basis of circular dated 18.09.2017. When Ext.P4 is dated 11.08.2016, it could not have been furnished on the basis of circular dated 18.09.2017. Therefore, on the basis of Ext.P4, the Government could not have varied or reviewed the earlier decision.
8. When the then learned Director General of Prosecution had applied his mind and found that the case is of immense public importance and a sensational one based on the then circular that was prevailing, there was no change of W.P.(C)No.5747 of 2017 5 circumstance on 11.08.2016 to vary the earlier decision. Evidently, the circular that was in force on 11.08.2016 was circular dated 29.11.2014 on the basis of which Exts.P1 to P3 were prepared.
9. When the appointment of the Special Public Prosecutor once decided by the Government in the matter is going to be varied by the Government when there was a change of Government under the leadership of another political party, there is everything to suspect that it is aimed at some foul play. The cry of the victim should not be forgotten. The petitioner is none other than the defacto complainant, who also sustained very serious injuries and has marginally escaped. Same is the case with his wife also. Their son was brutally murdered. Their cries have to be given due weight. The discretion in appointing a special Public Prosecutor should not be merely left to be decided on political motives. Matters being so, this writ petition is only to be allowed, and I do so.
In the result, this writ petition is allowed and Ext.P5 is quashed. The Government is directed to publish Ext.P3 notification and appoint Sri.C.K.Sreedharan, Advocate, W.P.(C)No.5747 of 2017 6 Hosdurg, Kasaragod, as Special Public Prosecutor for conducting prosecution in S.C.No.401/2016 of the Sessions Court, Thalassery in Crime No.326/2014 of the Pariyaram Medical College Police Station, expeditiously.
Sd/-
B. KEMAL PASHA, JUDGE.
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// True Copy // P.A. to Judge