Kerala High Court
Susey Jose vs G. Janardhana Kurup And Ors. on 2 March, 1994
Equivalent citations: 1994(2)ALT(CRI)687, 1994CRILJ2780
Author: K.T. Thomas
Bench: K.T. Thomas
JUDGMENT K.T. Thomas, J.
1. First respondent was appointed as Special Public Prosecutor for conducting prosecution in a murder case in the Sessions Court. But when the trial in the Sessions Court was in full swing, Government rescinded his appointment as per G. O. dated 18-7-91 (Ext. P-3). Within a fortnight, Government directed an Assistant Public Prosecutor (for short 'the APP') to conduct prosecution in the said case (Ext. P-6). The widow of the deceased in the murder case now challenges Exts. P-3 and P-6 and prays for quashing them and also to issue necessary directions in the matter. (Ext. P-4 is also sought to be quashed which is substantially the same as Ext. P-3 and hence the former cannot remain alive if the latter is struck down).
2. The murder case relates to the death of a person in police custody on 12-11-85. There was public agitation for entrusting the investigation to a more specialised agency than the local police. Government, therefore, ordered the Crime Branch wing of the police to.take up investigation. Eventually, the case was charge sheeted against five police personnel - one Sub-Inspector, one Assistant Sub-Inspector, one Head Constable and two Constables. (They are arrayed as respondents 5 to 9 in this O.P.).
3. Petitioner has made an endeavour to impress that the case has gained sensation in the State and due to the special nature of the case the Government wanted to appoint a Special Public Prosecutor to conduct prosecution. Appointment of the first respondent was, according to the petitioner, the follow up of the aforesaid stand of the Government. First respondent took up the prosecution and the trial started in the Sessions Court on 15-7-91. P.Ws. 1 to 6 were examined for the prosecution. But abruptly the trial came to a stop as the counsel for the first accused produced a copy of Ext. P-3 order in open Court on 19-7-91 and informed the Court that first respondent lost the authority to continue with the prosecution.
4. Petitioner (widow of the deceased) alleges that the impugned orders were issued out of extraneous considerations and for helping the accused in the case. According to the petitioner, the impugned orders were passed by the Government as the accused in the murder case had moved the Government through an INTUC worker since the accused sensed from the evidence already adduced that the case was becoming strong against them. Petitioner claims to have reliable information that accused have intimate contacts with some of the leaders of the ruling front and hence they influenced the Government to cancel the appointment of the first respondent.
5. Petitioner has described the first respondent as an eminent senior lawyer of the Kerala High Court on the criminal side having 35 years experience at the Bar. She points out that the first respondent has conducted trials in "hundreds of cases" in Sessions Courts. Petitioner laments that in the place of such an experienced advocate as the first respondent Government have appointed "an inexperienced Deputy Director of Prosecutions" (the APP) who has not conducted any case in the Sessions Court.
6. Government filed a counter-affidavit sworn to by the Joint Secretary of Home Department. Government questioned the locus standi of the petitioner to challenge Exts. P-3 and P-6 orders. According to the deponent, if at all any person is aggrieved by the impugned orders, it should have been the first respondent and since the murder case is one between the State and the accused, the widow of the deceased has no right in the matter. Government justifies Ext. P-3 order as one issued in public interest. Government defends the action on the strength of Rule 11(4) of the Kerala Law Officers (Appointment and Conditions of Service and Conduct of Cases) Rules, 1978 (for short 'the Rules'). The said rule empowers the Government to terminate the services of a special public prosecutor at any time before the expiry of his normal term of appointment without assigning any reason therefore. "The appointment of the first respondent is thus governed by the Rules referred to above and thus the order rescinding the appointment of the first respondent is perfectly within the purview of Rule 11(4) of the Rules", pleaded for the Government. The deponent has further stated in the counter-affidavit that on receipt of a petition sent by a certain person on 8-7-1991 remarks were obtained from the law department in which the department pointed out the amplitude of Rule 11(4) of the Rules and the Government, in its bona fide exercise of the power, have issued the impugned orders. Government denied the contention that accused in the case had arranged an INTUC worker to represent before the Government.
7. Alternatively, Government contended that the impugned orders are not within the ambit of Article 226 of the Constitution and denied the allegations that extraneous considerations prevailed in passing the impugned orders. Government adopted the stand that the appointment of first respondent was purely on a contractual basis and it does not give rise to any public element and cancellation of the appointment order does not infringe any right of any person. Through an additional affidavit sworn to by the same deponent, Government defended the appointment of the APP as Special Public Prosecutor, contending that the APP has experience over 20 years as a Prosecutor.
8. Locus standi of the petitioner cannot be challenged as she, even apart from the fact that she is the widow of the deceased, has a right to express her grievance being a member of the public. Courts in India have recognised the practice of Government appointing Special Public Prosecutor at the instance of the aggrieved persons in criminal cases. A Division Bench of Bombay High Court said so. Sawant, J. (as His Lordship then was) speaking for the bench has observed in Vijay v. State of Maharashtra, (1986 Cri LJ 2093) thus (at Pp. 2097, 2098):
Criminal Prosecutions are launched not only by the State but also by private parties. The role of the Prosecutor in any criminal trial whether at the instance of the State or a private party is to safeguard the interests of both the complainant and the accused. The right to be heard includes the right to be represented by an able spokeman of one's confidence. This right belongs both to the accused and the complainant. It is not only the accused who is in need of assistance and protection of his rights but also the complainant. The prosecutor has therefore to discharge his duties diligently towards this end. In the discharge of his duties as a prosecutor he is ordained by law, by professional ethics and by his role as an officer of the Court, to employ only such means as are fair and legitimate, and to desist from resorting to unjust and wrongful means. This is so whether the prosecution is private or State. The duties of the prosecutor and the requirements of a fair trial do not vary from case to case. Besides, there is always the Court to safeguard the interests of the accused and the complainant, to control the proceedings and to check omissions and commissions of the prosecutor. The Court is not a silent spectator to the proceedings but an active participant in it. Hence it cannot be argued that where Special Public Prosecutors are appointed whether paid by the State or the private party, the prosecution and the trial must be presumed to be biased, partial or unfair.
It is opposite in this context to point out that Supreme Court has also recognised the right of the bereaved kith and kin of the victim in a murder to request the Government to appoint a Special Public Prosecutor for conducting prosecution in the murder case (vide Sunil Kumar Pal v. Phota Sheikh, . In that case the brother of a murdered person filed the appeal before Supreme Court expressing grievance, inter alia, that the person appointed by the State to conduct prosecution in that case was ineffective. The Supreme Court thereupon directed that "in order that there should be fair yet effective prosecution, the State Government should appoint a senior advocate as Special Public Prosecutor in consultation with the appellant and the complainant and any suggestion made by the appellant or the complainant shall be taken into consideration in making such appointment.
9. Thus the bereaved member of the family of a murdered person cannot be said to be totally alien to the prosecution of the case concerned or that he has no locus standi in the matter concerning the appointment of Special Public Prosecutor in the case. Bhat, J. has not stated otherwise in Narayanankutty v. State of Kerala, 1982 Ker LT'605 : (1982 Cri LJ 2085). The question raised therein was regarding the remuneration to be paid to the Special Public Prosecutor. Even regarding that question the Supreme Court has later adopted a slightly different approach (vide Mukul Dalai v. Union of India, .
10. That apart, it is idle to contend that the only person aggrieved in the removal of a Special Public Prosecutor is the Special Public Prosecutor so removed. Government cannot expect a senior lawyer as the first respondent to challenge such cancellation of his own appointment. He is not supposed to feel aggrieved on account of any personal involvement in such cancellation. Professional standards which he has to observe would deter him from challenging cancellation of his special engagement by himself. First respondent has done with propriety by not challenging the impugned orders.
11. It must be remembered that Government never disputed the factual position that first respondent is an eminent lawyer with vast experience in conducting sessions trials. Nor did the, Government dispute the petitioner's contention that the APP who is appointed as Special Public Prosecutor (as per Ext. P-6) has not conducted a single case in any Sessions Court, though it is claimed that he has experience over 20 years as a "prosecutor" (ostensibly such experience is only in the Magistrate courts).
12. Under Section 225 of the Code of Criminal Procedure (for short 'the Code') prosecution in a trial before the Sessions Court can be conducted only by a Public Prosecutor. Section 24 of the Code prescribes the qualifications of the person to be appointed as Public Prosecutor. It is imperative that such person has been in practice as an advocate for not less than seven years. The modality to be adopted in the appointment of Public Prosecutor is also specified in the same provision of law. Sub-section (8) provides that a person who has been in practice as an advocate for not less than ten years can be appointed as a Special Public Prosecutor for the purpose of any case or class of cases. The distinction evidently means that Parliament envisages that Special Public Prosecutor must be a more competent and more experienced person than a Public Prosecutor. In Abdul Khader v. Government of Kerala, (1992) 2 Ker LT 948 : (1993 Cri LJ 1249) this Court has pointed out that a special feature of the administration of justice in the field of Criminal Law in India is that an accused before a Sessions Court is conferred with a privilege that the case against him can be prosecuted only by a Public Prosecutor. The office of a Public Prosecutor carries very great public importance in the scheme of criminal trials in the country. Greater importance is attached to the Public Prosecutor in Sessions Courts. After referring to Sub-section (8) of the Code regarding appointment of Special Public Prosecutors, this Court has observed in Abdul Khader's case (1993 Cri LJ 1249) (cited supra) (at p. 1252):
the Philosophy involved which can be discerned from the sub-section is two fold. First is that there should be special circumstances for making such appointment. Second is that, when a situation arises for appointing a special public prosecutor, Government shall consider a more experienced advocate for the assignment.
13. A Division Bench of this Court comprising of Jagannadha Rao, C. J. and Sreedharan, J. has affirmed the said legal position in Writ Appeal No. 80 of 1993 The said appeal was filed in challenge of the same order passed by the single Judge in Abdul Khader's case (1993 Cri LJ 1249).
14. The Supreme Court has in a recent decision considered the position of a lawyer engaged by the State or a public body. (State of U. P. v. State Law Officers Association, Sawant, J. who spoke for the bench has stated that "the lawyers of the Government or a public body was not its employee but was a professional practitioner engaged to do the specified work...The lawyer in turn is not an agent, but the dignified and responsible spokesman of the client. He is not obliged to tell the Court every fact or urge every proposition of law which his client wants him to do, however irrelevant it may be....This relation ship between the lawyers and the Private Client is equally valid between him and the public body".
(Emphasis supplied)
15. Section 25 of the Code deals with the appointment of APP. A Public Prosecutor is distinctly different from an APP. The latter is intended for the Magistrate's Court alone. In the normal course no APP is experienced to conduct prosecution in trials before Sessions Court. It must be born in mind that an APP cannot be appointed as Public Prosecutor unless the Sessions Judge recommends him to be included in the panel of names prepared by the District Magistrate as envisaged in Section 24(1) of the Code. Government must be presumed to be aware of the above legal position and that must be the reason why Government have appointed the APP as a Special Public Prosecutor as per Ext. P-6.
16. Ext. P-6 reveals the Government view that a Special Public Prosecutor shall conduct prosecution in this particular case. This might be because of the special circumstances and special nature of the case. Then, why the Government preferred an APP who has not conducted a single case in the Sessions Court, in the place of first respondent who is described as "an eminent and experienced criminal lawyer" which position has not been disputed by Government. It is ununderstandable, looking from any angle, as to why the Government adopted such an unusual course when the trial in the Sessions Court was in full swing and examination of six witnesses for the prosecution was completed.
17. It is disquietening that Government marked a copy of the cancellation order to the person on whose petition the cancellation order was made and no copy of it was marked to the petitioner in this case at whose instance the Special Public Prosecutor was appointed. This petitioner has a further contention that Ex. P-3 order was passed by the Government without even affording an opportunity to the petitioner of being heard, despite the fact that the appointment of first respondent was made at his instance. There is no dispute that petitioner was not heard in the matter.
18. By the speedy cancellation of the appointment of first respondent's special public prosecutorship when the trial in the case progressed to a certain stage, Government have interfered with the schedule fixed by the Sessions Judge and compelled the Sessions Court to send away a large number of witnesses already summoned, and further caused dislocation of the work of the Court for the entire period already scheduled. All for what? In the counter-affidavit Government's only stand is that they have the legal power under Rule 11(4) of the Rules that "even without assigning any reason" Government can terminate the services of the Special Public Prosecutor "at any time".
19. On my direction, learned Advocate General made the file of the Government available to me for perusal. The file shows that one person styling himself as President of the INTUC of a local unit sent a petition to the Government on 8-7-91 urging for removal of the first respondent from Special Public Prosecutorship on the allegation that first respondent is a "renowned Marxist leader" and the accused are sympathisers of Marxist Party. It must be remembered that Government have no case that any one of the accused in the murder case is a follower of marxist party. All the accused are police personnel. Petitioner herein is the widow of the deceased and hence it does not stand to common sense that she would object the removal of a Special Public Prosecutor if he was helping the accused in the case. On the other hand she alleges that the person who sent the petition to the Government was deeply interested in the accused and Ext. P-6 order (appointing the APP as Special Public Prosecutor) was passed by the Government only to help the accused. At any rate, Government did not believe that first respondent would utilise his office as Special Public Prosecutor for securing acquittal of the accused.
20. This is an appropriate occasion to point out that it is inexpedient to appoint an APP as Special Public Prosecutor to conduct trial in Sessions Court. It is not out of place to mention that Judges of this Court have come across the consequences which ensued to the cause of justice in murder cases in which prosecution was allowed to be conducted by APPs. The reasons are obvious. Experience of an APP is confined to Magistrate Courts and an APP can, at best, be wellversed in trials before Magistrate courts. But trial Sessions Courts (particularly in murder cases) is vastly different from trials in Magistrate Courts, qualitatively and otherwise. Nuances involved in the various degrees of culpable homicide adumbrated in Chapter XVI of the Indian Penal Code, the implications involved in forensic medicine relating to many facets of death, the meticulousness involved in the establishment of the identity of corpus delicti in cases where the same is in dispute etc., are nomally outside the ken of APP's work in the Magistrate Courts. Government would be doing only disservice to the cause of justice by appointing an APP as Special Public Prosecutor in murder cases in Sessions Courts. At the most he can be considered for assisting a Public Prosecutor or Specail Public Prosecutor. Law department of the State has a duty to bring to the notice of the Home Department the possible consequences in appointing an APP as Special Public Prosecutor in Sessions trial.
21. Under the cover of the Rule which empowers the Government to terminate the service of a Special Public Prosecutor "at any time" and "without assigning any reason" Government cannot arbitrarily revoke or rescind the appointment .once made. The expression "without assigning any cause" does not mean without the existence of any cause. Hence Government cannot rescined the appointment without good and cogent reasons. The rule only permits the Government not to communicate the reasons if the Government would think that such communication would not be conducive to public interest. In Shrilekha Vidyarthi v. State of U.P., Supreme Court has dealt with this aspect and held that the expression "at any time" merely means that the termination may be made even during the subsistance of the term of appointment and 'without assigning any cause' means without communicating any cause to the appointee whose appointment is terminated. However, Supreme Court pointed out that the expression 'without assigning any cause' is not to be equated with 'without existence of any cause'. It merely means that the reason for which the termination is made need not be assigned or communicated to the appointee. "The non-assigning of reasons of the noncommunication thereof may be based on public policy, but termination of an appointment without the existence of any cogent reasons in furtherance of the object for which the power is given would be arbitrary and, therefore, against public policy". When the sub-rule is understood like that there is no scope for declaring it invalid.
22. What remains to be considered is whether the reliefs can be granted in exercise of Article 226 of the Constitution. Learned Advocate General submitted that petitioner's remedy was not under the above Article. I do not think it necessary to consider whether reliefs can be granted under Article 226 because this Court has inherent powers under Section 482 of the Code of Criminal Procedure "to make such orders as may be necessary to give effect to any order under this Code." First respondent's appointment as Special Public Prosecutor was by an order passed under Section 24(8) of the Code and the same has to be given effect to. By quashing Exts. P3 and P6 the order appointing first respondent as Special Public Prosecutor in the particular case can be restored. Hence the inherent powers of this High Court can be invoked for the purpose.
For the aforesaid reasons, I quash Exts. P3 and P6 and direct the first respondent to proceed with conducting prosecution in the Sessions case concerned.
Original Petition is disposed of accordingly.