Andhra Pradesh High Court - Amravati
Katari Praveen, vs State Of Andhra Pradesh, on 18 January, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.21280 OF 2019
ORDER:
This writ petition is filed under Article 226 of the Constitution of India to declare G.O.Rt.No.1070 Home (Courts.A) Department dated 18.12.2019 (for short 'G.O.Rt.No.1070 dated 18.12.2019') issued by the first respondent as illegal, arbitrary and against principles of natural justice and consequently permit the cadre Public Prosecutor Grade-II appointed through G.O.Rt.No.977 Home (Courts.A) Department dated 15.11.2019 (for short 'G.O.Rt.No.977 dated 15.11.2019') to conduct prosecution of S.C.No.110 of 2016 pending on the file of VI Additional District and Sessions Judge, Chittoor.
The brief facts of the case are that, the petitioner is the son of Smt. Katari Anuradha (Deceased No.1) and Katari Mohan (Deceased No.2), who were murdered on 17.11.2015 in the office of Municipal Corporation Chittoor. Crime No.110 of 2016 was registered for the offences punishable under Sections 302, 307, 326 of Indian Penal Code and Arms Act. At that time, mother of the petitioner was Chairperson of the Municipal Corporation. The petitioner's parents were shot dead and brutally killed in the office. After investigation, the inspector of police filed charge sheet and in- turn the jurisdictional magistrate committed the case to sessions division and the same was registered as S.C.No.110 of 2016 pending on the file of VI Additional District and Sessions Judge, Chittoor. The petitioner is a victim within the definition of 'victim' under Section 2(wa) of Cr.P.C.
MSM,J WP.No.21280 of 2019 2 It is specifically contended that, when the sessions case was coming for enquiry for framing the charges, there was no regular public prosecutor attached to the Sessions Court. The first respondent through G.O.Rt.No.562 dated 06.07.2017 appointed Sri G. Raja Ram, advocate and former Additional Public Prosecutor as Special Public Prosecutor to conduct prosecution of the Sessions Case. Thoti Manjunath who was Accused No.4 in Sessions case filed W.P.No.25586 of 2018 and W.P.No.42523 of 2018 questioning the appointment of Special Public Prosecutor on the ground that the Special Public Prosecutor in earlier occasion appeared for his father as a defense counsel in a criminal case, on the ground of alleged bias. This Court vide interim order dated 19.11.2018 stayed the order of appointment.
The petitioner filed W.A Nos.1657 and 1658 of 2018 against the interim stay granted by the learned single Judge of this Court. But, in those appeals, writ petitioner expressed that he had no grievance if any other advocate other than Sri G. Raja Ram was appointed. These writ appeals were disposed of on 25.06.2019 directing Respondent Nos. 1 and 2 to appoint any person as Special Public Prosecutor to conduct the prosecution.
As there was no response from Respondent Nos. 1 and 2, and the sessions case was coming on for trial and being postponed from time to time, the petitioners submitted a representation to the Superintendent of Police, Chittoor, who is the district investigating authority, requesting to take steps to appoint the Special Public Prosecutor. Thereafter, the first respondent after obtaining report from the second respondent/Director of Prosecutions and on MSM,J WP.No.21280 of 2019 3 examination of the matter, issued G.O.Rt.No.977 dated 15.11.2019 entrusting the conduct of prosecution of the sessions case to Sri S. Venkata Narayana who is in the cadre of Additional Public Prosecutor-Grade-II, who can be called as Special Public Prosecutor. Thereafter, the sessions case came for trial, schedule was fixed for trial and it was postponed on account of delay in prosecution.
After appointment, Sri Venkata Narayana took charge to conduct prosecution in S.C.No.110 of 2016 on 28.11.2019, intimated the same to the Director of Prosecutions/second respondent. While the matter stood thus, the first respondent issued G.O.Rt.No.1070 dated 18.12.2019 entrusting conduct of prosecution in the sessions case to the third respondent herein. G.O.Rt.No.1070 dated 18.12.2019 appointing the third respondent as Special Public Prosecutor for conducting prosecution is challenged on the ground that the impugned G.O is contrary to law and it is in violation of principles of natural justice and without jurisdiction, as there was no whisper about earlier G.O.Rt.No.977 dated 15.11.2019, wherein the conduct of sessions case was entrusted to the cadre Public Prosecutor Sri Venkata Narayana. When the earlier entrustment is in subsistence, when Sri Venkata Narayana has already taken charge and conducting the prosecution, the first respondent/Government cannot entrust the prosecution of the case to the third respondent mechanically without application of mind even without cancelling earlier G.O.Rt.No.977 dated 15.11.2019.
MSM,J WP.No.21280 of 2019 4 It is further contended that, cadre Public Prosecutor is not only a public servant but also an experienced public prosecutor. Whereas, the third respondent was recently appointed as Additional Public Prosecutor for the Court of I Additional District and Sessions Judge, Chittoor through G.O.Rt No.752 dated 03.09.2019, thereby, appointment of the third respondent is without any justification.
It is contended that S.C.No.110 of 2016 is a double murder case and as many as 22 accused are facing trial and 130 witnesses are to be examined on behalf of the prosecution. The third respondent had no sufficient experience to conduct prosecution of such complicated case and the petitioner came to know that Accused Nos. 1 and 23 in S.C.No.110 of 2016 prevailed over Respondent Nos. 1 and 2 and got the third respondent appointed for conducting prosecution in the sessions case. It is contended that Accused No.23 supplied pistol to Accused No.1 who along with others killed the petitioner's parents. Accused No.23 threatened two Inspectors of Police for his arrest and filing charge sheet against him. These two officers submitted written reports which were registered as separate crimes.
Apart from that, in another case i.e. S.C.No.330 of 2010 on the file of IX Additional District and Sessions Judge, the father of this petitioner (Deceased No.2) was one of the accused. The third respondent herein filed petition on behalf of the defacto complainant to assist the Public Prosecutor during enquiry and trial. When the trial of the case was going on, the parents of the petitioner were brutally murdered. Therefore, the third respondent cannot conduct prosecution in S.C.No.110 of 2016.
MSM,J WP.No.21280 of 2019 5 The petitioner further contended that, one N. Sai Ganesh - LW-40 in S.C.No.110 of 2016 is the person who spoke about the conspiracy to commit murder of the parents of the petitioner. Sri N. Sai Ganesh filed contempt case C.C.No.810 of 2019 before this Court against the third respondent herein and others alleging that even though there is no stay from the High Court, the third respondent being the counsel for the accused in the complaint case, went on filing memos before the Judicial First Class Magistrate, as if stay granted by the High Court was subsisting. The petitioner came to know that the third respondent is facing disciplinary enquiry before the Andhra Pradesh Bar Council for committing misconduct, on a complaint filed by Sri B. Krishna Murthy who was his client.
It is further contended that, the petitioner being the son of the deceased, has been requesting Respondent Nos. 1 and 2 to appoint an experienced person as prosecutor for conducting the sessions case. The earlier G.O.Rt.No.977 dated 15.11.2019 says that the conduct of the prosecution was entrusted to the cadre public prosecutor as he has been requesting for appointment of Special Public Prosecutor without sufficient justifiable grounds and that, if the prosecution is allowed to be conducted by the third respondent, much prejudice would be caused to this petitioner and requested to declare G.O.Rt.No.1070 dated 18.12.2019 as illegal and arbitrary.
The first respondent/State filed counter affidavit admitting issue of impugned G.O i.e. G.O.Rt.No.1070 dated 18.12.2019 appointing the third respondent as Special Public Prosecutor to MSM,J WP.No.21280 of 2019 6 conduct prosecution in S.C.No.110 of 2016. The first respondent explained the reason for appointment of the third respondent as Special Public Prosecutor to conduct trial in the sessions case. It is the contention of the first respondent/State that the Government received letter dated 13.12.2019 from the Director of Proseuctions stating that, Sri S. Venkata Narayana, Additional Public Prosecutor Grade-II, Principal Assistant Sessions Judge Court, Tirupati, Chittoor is working as in-charge Additional Public Prosecutor, Additional Assistant Sessions Judge Court, Tirupati and in-charge to the Court of VI Additional Judicial First Class Magistrate Court, Tirupati; and due to attending various courts, Sri S. Venkata Narayana, Additional Public Prosecutor Grade-II, Principal Assistant Sessions Judge Court, Tirupati to conduct prosecution on every adjournment by going from Tirupati to Chittoor, causing dislocation of Court work in the Court of Principal Assistant Sessions Judge, Tirupati, Additional Assistant Sessions Judge, Tirupati and VI Additional Judicial First Class Magistrate Court, Tirupati. To avoid dislocation of Court work at Chittoor and Tirupati to conduct trial in S.C.No.110 of 2016 on the file of VI Additional District and Sessions Judge, Chittoor on regular basis, the second respondent/Director of Prosecutions sent the list of Prosecuting Officers working at Chittoor, they are:
(1) Smt. M. Vidyavathi, Public Prosecutor, Principal District and Sessions Judge Court, Chittoor (2) Sri V. Lokanath Reddy, Additional Public Prosecutor, I Additional District and Sessions Judge Court, Chittoor (3) Sri V.R. Rama Krishna, Additional Public Prosecutor, IX Additional District and Sessions Judge, Chittoor (4) Sri K. Rajendra, Additional Public Prosecutor, VIII Additional District and Sessions Judge Court, Chittoor and MSM,J WP.No.21280 of 2019 7 (5) Smt. G.S. Sailaja, Additional Public Prosecutor Grade-II, Principal Assistant Sessions Judge Court, Chittoor requested the Government for entrustment of trial in S.C.No.110 of 2016, to anyone of the Additional Public Prosecutor working in Chittoor.
On examination of the said letter in detail, the Government entrusted conduct of trial in S.C.No.110 of 2016 pending on the file of VI Additional District and Sessions Judge, Chittoor to Sri V. Loknath Reddy/third respondent herein, who is working as Additional Public Prosecutor, I Additional District and Sessions Judge Court, Chittoor vide G.O.Rt.No.1070 dated 18.12.2019, which is impugned in the writ petition. It is further submitted that, vie G.O.Rt.No.809 dated 14.08.2020, Smt. Tharigonda Nirmala is appointed as Additional Public Prosecutor (Tenure) to the Court of VI Additional District and Sessions Judge, Chittoor, where S.C.No.110 of 2016 is pending trial and that due to special circumstances in the district, conduct of trial in S.C.No.110 of 2016 is entrusted to third respondent for administrative reasons stated above and finally requested to dismiss the writ petition.
The third respondent/Sri V. Lokanadha Reddy filed independent counter affidavit and reiterated that his appointment as Special Public Prosecutor in different G.Os., including G.O.Rt.No.1070 dated 18.12.2019 entrusting conduct of trial initially to Sri G. Raja Ram, advocate and former Additional Public Prosecutor as Special Public Prosecutor to conduct prosecution of the Sessions Case. The same was challenged before this Court in W.P.No.25586 of 2018 and W.P.No.42523 of 2018 questioning the MSM,J WP.No.21280 of 2019 8 appointment of Special Public Prosecutor. This Court vide interim order dated 19.11.2018 stayed the order of appointment. The petitioner filed W.A Nos.1657 and 1658 of 2018 against the interim stay granted by the learned single Judge of this Court. The writ appeals were disposed of on 25.06.2019 directing Respondent Nos. 1 and 2 to appoint any person other than Sri G. Raja Ram as Special Public Prosecutor to conduct trial in the prosecution in S.C.No.110 of 2016. Thereafter, Sri S. Venkata Narayana was appointed as Special Public Prosecutor vide G.O.Rt.No.977 dated 15.11.2019 to conduct prosecution in sessions case. He was thereafter promoted as In-charge Deputy Director (Prosecution). Since he hailed from Tirupati which is far off place from Chittoor, therefore, it would be difficult for him to conduct cases in Chittoor District headquarters, as such, the third respondent was appointed by the Government as Public Prosecutor to conduct the sessions case on administrative grounds. It is further contended that, there is absolutely no illegality or irregularity in G.O.Rt.No.1070 dated 18.12.2019 issued by the first respondent.
The third respondent denied the allegation that he had no experience in conduct of prosecution in sessions case, while contending that he was appointed as Additional Public Prosecutor in the Court of Assistant Sessions Judge, Chittoor during the period 2012-2015 and he successfully conducted number of prosecution in sessions cases and even recently, he was appointed as Additional Public Prosecutor to conduct prosecution in cases registered under POCSO Act and successfully conducted several cases.
MSM,J WP.No.21280 of 2019 9 The third respondent denied pendency of contempt case and complaint, facing disciplinary enquiry before the A.P. Bar Council for his misconduct on a complaint filed by Sri B. Krishna Murthy. Only to throw mud on the integrity and honesty of the third respondent, allegations are made by the writ petitioner while contending that, the first respondent on considering the experience and character of the third respondent, was pleased to appoint as Special Public Prosecutor to conduct prosecution in S.C.No.110 of 2016 pending on the file of VI Additional District and Sessions Judge, Chittoor, as such, there is no illegality or irregularity committed by the third respondent and consequently prayed for dismissal of the writ petition.
During pendency of the writ petition, Memo dated 16.12.2020 was filed by the learned counsel for the petitioner intimating that Smt. T. Nirmala was appointed as regular Public Prosecutor for conducting prosecution in S.C.No.110 of 2016 pending on the file of VI Additional District and Sessions Judge, Chittoor and entrustment to conduct prosecution in the above sessions case to Smt. T. Nirmala who is a regular Public Prosecutor of VI Additional District and Sessions Judge, Chittoor where S.C.No.110 of 2016 is pending at the time of passing the order.
During hearing, Sri Posani Venkateswarlu, learned counsel for the petitioner mainly contended that, when conduct of prosecution in S.C.No.110 of 2016, pending on the file of VI Additional District and Sessions Judge, Chittoor was entrusted to Sri S. Venkata Narayana, who took charge of the sessions case was MSM,J WP.No.21280 of 2019 10 not removed by any order specifically and in fact, there is no reference in the impugned G.O about his removal, on this ground alone, appointment of third respondent cannot be sustained.
Yet, another contention raised by the learned counsel for the petitioner is that, differences between father of the petitioner (Deceased No.2) and third respondent herein to whom conduct of trial in S.C.No.110 of 2016 was entrusted specially by impugned G.O, as he appeared before the sessions court in S.C.No.330 of 2010 on the file of IX Additional District and Sessions Judge to assist the prosecution. Thus, there were serious differences between father of this petitioner (Deceased No.2) and the third respondent and in case, he is allowed to continue prosecution, there is every likelihood of causing prejudice to this petitioner. Fair trial is a fundamental right guaranteed under the Constitution of India, but on account of conducting prosecution in S.C.No.110 of 2016 by the third respondent, chances of conducting fair trial are bleak. Learned counsel for the petitioner also highlighted the enquiry pending against the third respondent including contempt case pending before this Court, while pointing out the honesty, integrity of the third respondent and the animosity between the petitioner's father and the third respondent due to his appearance in S.C.No.330 of 2010 pending on the file of VI Additional District and Sessions Judge, Chittoor, against father of this petitioner, more particularly, to assist the Public Prosecutor in the case. He also made a specific request to pass appropriate order for entrustment of conduct of prosecution to Smt. T. Nirmala, who is the regular Public Prosecutor appointed to conduct prosecution in MSM,J WP.No.21280 of 2019 11 VI Additional District and Sessions Judge, Chittoor, on tenure basis.
Learned Government Pleader for Home did not dispute about issue of G.Os and failure of the Government to refer G.O.Rt.No.977 dated 15.11.2019 in G.O.Rt.No.1070 dated 18.12.2019, while appointing the third respondent as Special Public Prosecutor to conduct prosecution in the sessions case. But, by necessary implication, G.O.Rt.No.977 dated 15.11.2019 is deemed to have been cancelled when the prosecution was entrusted to a particular Public Prosecutor. Therefore, on that ground, the G.O. cannot be set-aside. Learned Government Pleader for home highlighted that the third respondent is equally competent to conduct prosecution in the sessions case on par with Sri S. Venkata Narayana while pleading ignorance about pendency of contempt case before this Court and disciplinary enquiry before A.P. Bar Council, while admitting that Smt. T. Nirmala is also equally competent to conduct prosecution in sessions case before the VI Additional District and Sessions Judge, Chittoor. He further submitted that, the accused or the victim have no role in appointing a Public Prosecutor for conducting prosecution and it is for the State to appoint a competent Public Prosecutor to conduct trail in the sessions cases. At best, the victim/defacto complainant, if he want to take assistance of any other advocate to assist the Public Prosecutor, he can engage an advocate to assist the Public Prosecutor on behalf of the prosecution in terms of Section 24 of Cr.P.C, but it is not the choice of the victim or the defacto complainant to claim appointment of a particular person as Public Prosecutor to conduct prosecution. Finally, he submitted that MSM,J WP.No.21280 of 2019 12 Smt. T. Nirmala is also a competent Public Prosecutor to conduct prosecution.
Sri N. Ranga Reddy, learned counsel for the third respondent contended that the third respondent is honest advocate who had previous experience on civil and criminal side while discharging his duties as Additional Public Prosecutor in the Court of Assistant Sessions Judge, Chittoor during the period 2012-2015 and now appointed as Additional Public Prosecutor to conduct cases registered under POCSO Act, discharging his functions as effectively as possible. Hence, he is more competent than Sri S. Venkata Narayana, who is a Cadre Public Prosecutor. However, the petitioner or the accused have no choice to select their own men as Public Prosecutor(s) to conduct prosecution in the sessions case and denied the alleged pendency of contempt before this Court and complaint made by Sri B. Krishna Murthy before A.P. Bar Council and requested to dismiss the writ petition.
One Sriram Chandrasekhar @ Chintu, approached Supreme Court by filing S.L.P (Criminal) No.5490 of 2020, questioning the order passed by this Court in Crl.P.No.2032 of 2020. The Hon'ble Supreme Court on 17.11.2020 called for report from the Registrar of Andhra Pradesh High Court, as to when the W.P.No.21280 of 2019 can be taken up, considering the limited scope in which the matter has been filed. But, as seen from the record, no report was sent by the Registry. However, in view of limited question involved in the present writ petition, it is taken up.
Considering rival contentions, perusing the material available on record, the points that arise for consideration are:
MSM,J WP.No.21280 of 2019 13
1. Whether appointment of third respondent as Special Public Prosecutor vide G.O.Rt.No.1070 dated 18.12.2019 without cancelling G.O.Rt.No.977 dated 15.11.2019, entrusting conduct of prosecution to Sri Venkata Narayana (Grade-II Public Prosecutor) is legal?
2. Whether conduct of prosecution by the third respondent herein on the ground of alleged animosity/differences between the petitioner's father (Deceased No.2) and the third respondent is a ground to quash G.O.Rt.No.1070 dated 18.12.2019 on the ground of alleged bias and violative of fundamental right guaranteed under Article 21 of the Constitution of India. If so, whether G.O.Rt.No.1070 dated 18.12.2019 is liable to be quashed?
As both the points are interconnected, I find that it is appropriate to decide both the points by common discussion. POINT Nos. 1 & 2
Indisputably, Sri G. Raja Ram was appointed as Special Public Prosecutor for conducting prosecution in S.C.No.110 of 2016 pending on the file of VI Additional District and Sessions Judge, Chittoor. The same was challenged before this Court in W.P.No.25586 of 2018 and W.P.No.42523 of 2018 questioning the appointment of Special Public Prosecutor. This Court vide interim order dated 19.11.2018 stayed the order of appointment. W.A Nos.1657 and 1658 of 2018 were preferred against the interim stay granted by the learned single Judge of this Court. The writ appeals were disposed of by his Court on 25.06.2019 directing Respondent Nos. 1 and 2 to appoint any person other than Sri G. Raja Ram as Special Public Prosecutor to conduct trial in the prosecution in S.C.No.110 of 2016. After careful consideration MSM,J WP.No.21280 of 2019 14 of the material available on record, Sri S. Venkata Narayana, Additional Public Prosecutor Grade-II (cadre), working in Principal Assistant Sessions Judge Court, Tirupati, Chittoor, was entrusted conduct of prosecution in S.C.No.110 of 2016. Sri S. Venkata Narayana took charge of the trial of the case on 28.11.2019, intimated the same to the second respondent/Director of Prosecutions. However, within a month, G.O.Rt.No.1070 dated 18.12.2019 was issued entrusting conduct of prosecution to the third respondent. Since the appointment of Sri G. Rajaram as Special Public Prosecutor to conduct prosecution in the said case was set-aside by this Court in W.A Nos.1657 and 1658 of 2018 on 25.06.2019 directing Respondent Nos. 1 and 2 to appoint any person other than Sri G. Raja Ram as Special Public Prosecutor to conduct prosecution in S.C.No.110 of 2016, the second respondent/Director of Prosecutions addressed Letter No.993115/Legal/2019 dated 30.09.2019 to the first respondent, with a request to appoint Public Prosecutor for conducting prosecution in S.C.No.110 of 2016. Considering the request of the second respondent, the first respondent issued G.O.Rt.No.977 dated 15.11.2019 based on the letter referred in the reference of G.O for conduct of prosecution in sessions case. However, reference was shown in G.O.Rt.No.1070 dated 18.12.2019 i.e. a Letter No.1055669/Legal/2019 dated 13.12.2019 from second respondent/Director of Prosecutions to the first respondent entrusting to conduct prosecution to the third respondent on administrative ground. Thus, G.O.Rt.No.977 dated 15.11.2019 was issued on the request of the complainant, entrusting conduct of prosecution in S.C.No.110 of 2016 to Sri S. Venkata Narayana, MSM,J WP.No.21280 of 2019 15 Additional Public Prosecutor Grade-II, Principal Assistant Sessions Judge Court, Tirupati, whereas, the third respondent was appointed vide impugned G.O on administrative grounds. When a Public Prosecutor was appointed for conducting prosecution in sessions case, without cancelling G.O.Rt.No.977 dated 15.11.2019 either by separate order or in G.O.Rt.No.1070 dated 18.12.2019 while appointing the third respondent. But, for one reason or the other, no reference was made in the impugned G.O about appointment of Sri S. Venkata Narayana vide G.O.Rt.No.977 dated 15.11.2019. On the other hand, it is stated in the G.O that on administrative grounds, the third respondent was entrusted with conduct of prosecution in S.C.No.110 of 2016. The letter addressed by Director of Prosecution is the basis for the Government to appoint the third respondent. However, it is not placed on record by the State for one reason or the other. If, such letter is placed on record before this Court, the Court can find out whether there is any justification in appointing the third respondent on administrative grounds to conduct prosecution in sessions case. Therefore, question of cancellation of entrustment of conduct of prosecution in S.C.No.110 of 2016 to Sri S. Venkata Narayana cannot be inferred either by necessary implication by express cancellation. When entrustment was made by issuing G.O.Rt.No.977 dated 15.11.2019, cancellation must be by issuing independent order or atleast such entrustment shall be cancelled while appointing the third respondent as Special Public Prosecutor for conducting prosecution. But, the first respondent did no do so, obviously for the reasons best known to the first respondent.
MSM,J WP.No.21280 of 2019 16 Though a letter was addressed by the second respondent to the first respondent for appointment of Public Prosecutor, the second respondent did not file counter affidavit as to what lead him to address letter for appointment of Public Prosecutor. In the absence of any request from anyone, either by the accused or by the petitioner, addressing a letter by the second respondent without cancelling G.O.Rt.No.977 dated 15.11.2019 creates any amount of suspicion in appointing the third respondent as a Public Prosecutor to conduct prosecution in the sessions case. Therefore, in the absence of cancellation of entrustment of conduct of prosecution vide G.O.Rt.No.977 dated 15.11.2019, Sri S. Venkata Narayana is deemed to continue as Special Public Prosecutor to conduct prosecution, but on account of appointment of third respondent, two public prosecutors cannot conduct prosecution in one sessions case. Such appointment will lead to anomalous situation creating chaos in the mind of the victims. such appointment without cancelling the entrustment to Sri S. Venkata Narayana vide G.O.Rt.No.977 dated 15.11.2019 is illegal and this Court cannot infer that G.O.Rt.No.977 dated 15.11.2019 is cancelled on account of appointment of the third respondent vide impugned G.O. On this ground also, the impugned G.O cannot be sustained.
Yet, another contention raised by the learned counsel for the petitioner is that, the third respondent appeared against father of the petitioner in S.C.No.330 of 2010 on the file of IX Additional District and Sessions Judge to assist the Public Prosecutor by filing appropriate application. But, during pendency of the trial, father of the petitioner was murdered in a ghastly incident that MSM,J WP.No.21280 of 2019 17 took place in the chambers of Mayor's office, Municipal Corporation, Chittoor. Therefore, the third respondent is having interest on the victims in S.C.No.330 of 2010, though the third respondent denied any bias. However, justice must not only be done, but appears to have been done and on the basis of such principle, bias can be inferred taking into consideration of the circumstances of the case, since the third respondent conducted prosecution and assisted the Public Prosecutor in S.C.No.330 of 2010, thereby, possibility of bias cannot be ruled out. The third respondent did not deny his appearance to assist the prosecution in S.C.No.330 of 2010 on the file of IX Additional District and Sessions Judge, against the father of this petitioner (deceased No.2). In such circumstances, bias cannot be ruled out. So far as, other grounds regarding pendency of contempt case and disciplinary enquiry in A.P. Bar Council are concerned, they are not substantiated by any material.
An ideal Prosecutor must consider herself/himself as an agent of justice. In India, we have a public prosecutor who acts in accordance with the procedure. Normally, the control of entire trial is in the hands of the trial judge. Investigation is the prerogative of the police. However, it is generally believed that traditional right of "nulle prosequi" (we shall no longer prosecute) is available to the prosecutor. The public prosecutor in India does not seem to be an advocate of the state in the sense that the prosecutor is not supposed to seek conviction at any cost. The prosecutor must be impartial, fair and truthful, not only as a public executive but also because the prosecutor is a member of honourable profession of law, the ethics of which demand these qualities.
MSM,J WP.No.21280 of 2019 18 The role of the Prosecutor is not to single-mindedly seek a conviction regardless of the evidence but his/her fundamental duty is to ensure delivery of justice. The Indian judiciary interpreted role, responsibilities and duties of prosecution as follows:
a) The ideal Public Prosecutor is not concerned with securing convictions, or with satisfying departments of the State Governments with which she/he has been in contact. He must consider herself/himself as an agent of justice. The Courts have ruled that it is the duty of the Public Prosecutor to see that justice is vindicated and that he should not obtain an unrighteous conviction.
b) Public Prosecutor should not exhibit a seemly eagerness for, or grasping at a conviction" The purpose of a criminal trial being to determine the guilt or innocence of the accused person, the duty of a Public Prosecutor is not to represent any particular party, but the State. The prosecution of the accused persons has to be conducted with utmost fairness. In undertaking the prosecution, the State is not actuated by any motives of revenge but seeks only to protect the community. There should not therefore be "a seemly eagerness for, or grasping at a conviction.
c) A Public Prosecutor should not by statement aggravate the case against the accused, or keep back a witness because her/his evidence may weaken the case for prosecution. The only aim of a Public Prosecutor should be to aid the court in discovering truth. A Public Prosecutor should avoid any proceedings likely to intimidate or unduly influence witnesses on either side.
d) A Public Prosecutor should place before the Court whatever evidence is in her/his possession .The duty of a 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 the possession of the prosecution, whether it be in favour of or against the accused and to leave the court to decide upon all such evidence, whether the accused had or had not committed the offence with which he stood charged. It is as much the duty of the Prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice.
e) The duty of the Public Prosecutor is to represent the State and not the police. A Public Prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure, 1973. She/he is not a part of the investigating MSM,J WP.No.21280 of 2019 19 agency. She/he is an independent statutory authority. She/he is neither the post office of the investigating agency, nor its forwarding agency; but is charged with a statutory duty.
f) The purpose of a criminal trial is not to support at all cost a theory, but to investigate the offence and to determine the guilt or innocence of the accused and the duty of the Public Prosecutor is to represent not the police, but the State and her/his duty should be discharged by her/him fairly and fearlessly and with a full sense of responsibility that attaches to her/his position.
g) Time and again, the Courts have held that prosecution should not mean persecution and the Prosecutor should be scrupulously fair to the accused and should not strive for conviction in all these cases. It further stated that the courts should be zealous to see that the prosecution of an offender should not be given to a private party.
The Court also said that if there is no one to control the situation when there was a possibility of things going wrong, it would amount to a legalised manner of causing vengeance.
h) A Public Prosecutor cannot appear on behalf of the accused .It is inconsistent with the ethics of legal profession and fair play in the administration of justice for the Public Prosecutor to appear on behalf of the accused.
i) No fair trial when the Prosecutor acts in a manner as if he was defending the accused, It is the Public Prosecutors duty to present the truth before the court. Fair trial means a trial before an impartial Judge, a fair Prosecutor and atmosphere of judicial calm. The Prosecutor who does not act fairly and acts more like a counsel for the defense is a liability to the fair judicial system.
j) If there is some issue that the defense could have raised, but has failed to do so, then that should be brought to the attention of the court by the Public Prosecutor The Supreme Court stated that the duty of the Public Prosecutor is to ensure that justice is done. It stated that if there is some issue that the defense could have raised, but has failed to do so, then that should be brought to the attention of the court by the Public Prosecutor. Hence, she/he functions as an officer of the court and not as the counsel of the State, with the intention of obtaining a conviction. The District Magistrate or the Superintendent of Police cannot order the Public Prosecutor to move for the withdrawal, although it may be open to the District Magistrate to bring to the notice of the Public Prosecutor materials and suggest to her/him to consider whether the MSM,J WP.No.21280 of 2019 20 prosecution should be withdrawn or not. But, the District Magistrate cannot command and can only recommend.
To discharge the duties of Public Prosecutor as enumerated above, though elliptic, procedure is prescribed in Section 24 of the Cr.P.C which deals with appointment of public prosecutors in the High Courts and the district by the central government or state government. Sub-section (3) says down that for every district, the state government shall appoint a public prosecutor and may also appoint one or more additional public prosecutors for the district. Sub-section (4) requires the district magistrate to prepare a panel of names of persons considered fit for such appointment, in consultation with the sessions judge. Sub-section (5) explains an embargo against appointment of any person as the public prosecutor or additional public prosecutor in the district by the state government unless his name appears in the panel prepared under sub-section (4). Sub-section (6) provides for such appointment wherein a state has a local cadre of prosecuting officers, but if no suitable person is available in such cadre, then the appointment has to be made from the panel prepared under subsection (4). Subsection (4) says that a person shall be eligible for such appointment only after he has been in practice as an advocate for not less than seven years.
In R. Rathinam vs. State1 the Supreme Court permitted a lawyer to file an application for cancellation of bail. This view was approved by the Apex Court in Puran vs. Rambilas2. In R. Rathinam's case (supra) the Apex Court held that the frame of 1 AIR 2000 SCC 1851 2 (2001) 6 SCC 338 MSM,J WP.No.21280 of 2019 21 sub-Section 2 of Section 439 Cr.P.C. indicates that it is a power conferred on the court mentioned therein. It was held that there was nothing to indicate that the said power could be exercised only if the State or investigating agency or the Public Prosecutor moved an application. It was held that the power so vested in the High Court can be invoked by any aggrieved party he can addressed the court.
The Apex Court in Dawarika Prasad Agarwal vs. B.D. Agarwal3 held that party can not made to suffer adversely either directly or indirectly by reason of an order passed by any court of law which is not binding on him. The very basic upon which a judicial process can be resorted to is reasonableness and fairness in a trial. The fair trial is fundamental right of every citizen including the victim of the case under Article 21 of our Constitution as held in Nirmal Singh Kahlon vs. State of Punjab4.
On the careful scrutiny of the criminal procedure, I find that Legislature has not framed any section by which mechanism has been given that in what manner, the appeal and prosecution applications are to be conducted. However, the hallmark of criminal justice system is to conduct fair trial, which is a fundamental right guaranteed under the Constitution of India.
From the scheme of the Code, the legislative intention is manifestly clear that prosecution in a sessions court cannot be conducted by any one other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform 3 (2003) 6 SCC 230 4 (2009) 1 SCC 441 MSM,J WP.No.21280 of 2019 22 to fairness in the trial of an accused in a sessions court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial, the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.
It is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. The role which a private counsel in such a situation can play is, perhaps, comparable with that of a junior advocate conducting the case of his senior in a court. The private counsel is to act on behalf of the Public Prosecutor albeit the fact he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would become a combat between the private party and the accused which would render the MSM,J WP.No.21280 of 2019 23 legislative mandate in Section 225 of the Code a dead letter. (vide Shiv Kumar v. Hukam Chand5) The Full Bench of the Allahabad High Court in Queen Empress v. Durga6 has pinpointed the role of a Public Prosecutor as follows:
"It is the duty of a Public Prosecutor to conduct the case for the Crown fairly. His object should be, not to obtain an unrighteous conviction, but, as representing the Crown, to see that justice is vindicated: and, in exercising his discretion as to the witnesses whom he should or should not call, he should bear that in mind. In our opinion, a Public Prosecutor should not refuse to call or put into the witness box for cross examination a truthful witness returned in the calendar as a witness for the Crown, merely because the evidence of such witness might in some respects be favorable to the defence. If a Public Prosecutor is of opinion that a witness is a false witness or is likely to give false testimony if put into the witness box, he is not bound, in our opinion, to call that witness or to tender him for cross examination."
The Division Bench of the High Court of Andhra Pradesh in Medichetty Ramakistiah & Ors. vs. The State of Andhra Pradesh7 observed as follows:
"A prosecution, to use a familiar phrase, ought not to be a persecution. The principle that the Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing any anxiety to secure a conviction, is based upon high policy and as such courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the Court to obtain its decision thereon and not to obtain a conviction by any means fair or foul. Therefore, it is right and proper that courts should be zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman instructed by a private party."
Equally forceful is the observation of Bhimasankaram, J. for the Division Bench in Medichetty Ramakistiah (cited supra) which is worthy of quotation here:
5
(1999) 7 SCC 467 6 ILR 1894 Allahabad 84 7 AIR 1959 A.P. 659 MSM,J WP.No.21280 of 2019 24 "Unless, therefore, the control of the Public Prosecutor is there, the prosecution by a pleader for a private party may degenerate into a legalized means for wreaking private vengeance. The prosecution instead of being a fair and dispassionate presentation of the facts of the case for the determination of the Court, would be transformed into a battle between two parties in which one was trying to get better of the other, by whatever means available. It is true that in every case there is the overall control of the court in regard to the conduct of the case by either party. But it cannot extend to the point of ensuring that in all matters one party is fair to the other."
Keeping in view the role of Public Prosecutor to conduct fair prosecution, the Government may entrust conduct of prosecution in a particular case. Prosecution cannot be entrusted mechanically at the whim and caprice of any individual by the Government at the instance of any person who is interested over any conviction or acquittal of the accused.
Following the judgments of the Apex Court, Full Bench of Allahabad High Court and Division Bench of High Court of Andhra Pradesh, the Division Bench of Allahabad High Court in Suneel Kumar Singh v. State of Uttar Pradesh8 held as follows:
"22. Accordingly, we permit the learned counsel for the informant/complainant (victim) to make his argument after conclusion of the argument of Public Prosecutor."
In view of the above said discussion we held as under:-
(a) In any appeal filed under Section 374 Cr.P.C. by the accused persons challenging the conviction and sentence passed by trial Court and if a bail application filed under Section 389 Cr.P.C. is also filed, G.A./A.G.A. etc. on behalf of the State Government can file written objections and make arguments.
(b) If a person has already been engaged as G.A/A.G.A. etc. and subsequently, he has been discharging his duties from the said capacity, then there is no legal impediment in his way to appear on behalf of the complainant in an appeal which has been filed by the accused-appellant against his conviction under Section 374 Cr.P.C. or to oppose in the bail application filed under Section 389 Cr.P.C but only with the permission of the Court otherwise he shall only assists the State Government.
(c) If G.A./A.G.A. etc. who has been appointed as per under Section 24 (1) of Cr.P.C. by the State Government, filed any objections/ conduct of the case filed on behalf of the State in an appeal filed by the accused-persons against his conviction or in a bail application 8 Crl.Appeal No.724 of 2017 dated 18.02.2019 MSM,J WP.No.21280 of 2019 25 under Section 389 Cr.P.C., subsequently, disengaged from the said capacity, then in that circumstances, he cannot appear on behalf of the complainant."
In Zahira Habibullah vs State of Gujarat9, which is known as 'BEST BAKERY' case, the Supreme Court ordered retrial of the matter and observed that in Gujarat, ''The Public Prpsecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the Court''.
In Rajendra Kumar Jain vs. State through Special Police Establishment10, the Supreme Court held quoting Shamsher Singh v. State of Punjab11, as regards the meaning and content of executive powers tends to treat the public prosecutor's office as executive. But the conclusions of some courts create doubt as to its exact nature. To the suggestion that the public prosecutor should be impartial (a judicial quality), the Kerala High Court equated the public prosecutor with any other counsel and responded thus: Every counsel appearing in a case before the court is expected to be fair and truthful. He must of course, champion the cause of his client as efficiently and effectively as possible, but fairly truthfully. He is not expected to be impartial but only fair and truthful. (vide Aziz v. State of Kerala12) In Thakur Ram vs. State of Bihar13, the Hon'ble Apex Court held: "Barring a few exceptions, in criminal matters the party who is treated as aggrieved party is the State which is the custodian of the social interests of the community at large and so 9 2004 (4) SCALE 375 10 AIR 1980 SC 1510 11 (1974) 2 SCC 831 12 (1984) Cri. LJ 1060 (Ker) 13 AIR 1996 SC 911 MSM,J WP.No.21280 of 2019 26 it is for the State to take all steps necessary for bringing the person who has acted against the social interests of the community to book" The rationale behind the State undertaking prosecutions appears to be that no private person uses the legal apparatus to wreak private vengeance on anyone.
In Jitendra Kumar@ Ajju vs. State (NCT of Delhi)14, Delhi High Court observed that, in the Criminal Justice System this role is performed by the Public Prosecutor on behalf of the State. The Public Prosecutor has been described as a Minister of Justice who plays a critical role in maintaining purity and impartiality in the field of administration of criminal justice.
The Punjab & Haryana High Court in Krishan Singh Kundu v. State of Haryana15 has ruled that the very idea of appointing a police officer to be in charge of a prosecution agency is abhorrent to the letter and spirit of Sections 24 and 25 of the Code. In the same vein the ruling from the Supreme Court in S.B Sahana v. State of Maharashtra16 found that irrespective of the executive or judicial nature of the office of the public prosecutor, it is certain that one expects impartiality and fairness from it in criminal prosecution. The Supreme Court in Mukul Dalal v. Union of India17 also categorically ruled that the office of the public prosecutor is a public one and the primacy given to the public prosecutor under the scheme of the court has a social purpose. But the malpractice of some public prosecutors has eroded this value and purpose.
14 2000 (53) DRJ 707 15 1989 Cri. LJ 1309 (P&H) 16 (1995) SCC (Cri) 787 17 (1988 3 SCC 144 MSM,J WP.No.21280 of 2019 27 In view of the law declared by the Court in the judgments referred supra, the role of a Public Prosecutor is vital in conclusion of criminal trials and it is clear that it is not the duty of Public Prosecutors to quest conviction at all cost. Nor, is their duty to act as an avenging angle for the victim. On the contrary, their fundamental duty is to ensure that justice is delivered and in pursuance of this they should lay before the court all relevant evidence including the evidence that favours the accused. Corollary to this is the duty of a Public Prosecutor to bring to attention of the Court, any issue that the defense could have raised, but has failed to do. But, in doing so, they cannot act as if they are defending the victim, nor can they appear on behalf of the accused. When the Prosecutor acts in a manner as if she/he was defending the accused, then there is no fair trial. A Public Prosecutor is an independent entity from police and police cannot order her/him to conduct prosecution in a particular way. Police, politicians or any other extraneous party cannot influence her/his actions, including her/his discretion to decide withdrawal of a case. The Public Prosecutor represents the State but not the police and can only be influenced by public interest. In pursuance of their duties, public prosecutors should not use improper methods calculated to produce wrongful convictions and she/he must discharge her/his functions in a scrupulously fair and honest way. A fortiori, a Public Prosecutor has the responsibility of a minister of justice and not simply that of an advocate.
Keeping in view of the principles laid down by the judgments of the Apex Court, I would like to examine the issue in nut-shell.
MSM,J WP.No.21280 of 2019 28 The first grievance, as stated above, is that, G.O.Rt.No.977 dated 15.11.2019 entrusting to conduct of prosecution to Sri S. Venkata Narayana is not cancelled either by issuing any separate order or mentioning in G.O.Rt.No.1070 dated 18.12.2019 i.e. impugned G.O in the writ petition. At the same time, as the third respondent appeared against the interest of the father of this petitioner (Deceased No.2) in S.C.No.330 of 2010 on the file of IX Additional District and Sessions Judge, to assist the Public Prosecutor creates any amount of suspicion of conduct of fair trial. Apart from that, bias can be inferred in view of the allegations made in the counter affidavit filed by the third respondent, since the third respondent is an independent Public Prosecutor, he is expected to raise different pleas and therefore, appointment of third respondent to conduct prosecution in case if allowed, there will not be any fair trial which is a fundamental right guaranteed under the Constitution of India. On the other hand, appointment as Special Public Prosecutor to conduct trial appears to be tainted with illegalities, as the second respondent did not disclose the reason for addressing letter and the contents, either by placing the same before this Court or by filing independent counter by the second respondent. Thus, the second respondent intentionally suppressed material facts and addressed letter to the first respondent for appointment of Special Public Prosecutor without cancelling the entrustment of G.O.Rt.No.977 dated 15.11.2019. The cumulative effect of these circumstances creates any amount of suspicion in the mind of the petitioner that no fair trial would be conducted, if the third respondent is allowed to conduct MSM,J WP.No.21280 of 2019 29 prosecution in S.C.No.110 of 2016 pending on the file of VI Additional District and Sessions Judge, Chittoor.
It is the duty of the State to wipe of such impression in the mind of the victim and guarantee that a fair trial would take place by appointing any competent eligible Public Prosecutor to conduct fair trial which is a fundamental right guaranteed to the victim under the Constitution of India.
Curiously, during pendency of this writ petition, Smt. T. Nirmala was appointed as regular Public Prosecutor on tenure basis to conduct prosecution in the VI Additional Sessions Court, Chittoor, where S.C.NO.110 of 2016 is pending. The petitioner by filing a memo requested to entrust conduct of prosecution in S.C.No.110 of 2016 pending on the file of VI Additional District and Sessions Judge, Chittoor to Smt. T. Nirmala. Fairly, learned Government Pleader for Home did not object for entrustment of prosecution to Smt. T. Nirmala, for conducting prosecution in the Court where S.C.No.110 of 2016 is pending. But, this Court while exercising power under Article 226 of the Constitution of India cannot entrust conduct of prosecution to any Public Prosecutor, since it is for the State in view of Section 24 of Cr.P.C. Hence, taking into consideration of the facts and circumstances of the case, appointment of third respondent as Special Public Prosecutor and entrustment of conduct of prosecution in S.C.No.110 of 2016 pending on the file of VI Additional District and Sessions Judge, Chittoor is liable to be set- aside, as there is no possibility of conduct of fair trail without any bias in view of undisputed conflict of interest. Apart from that, MSM,J WP.No.21280 of 2019 30 earlier G.O.Rt.No.977 dated 15.11.2019 entrusting conduct of prosecution to Sri G. Rajaram was not cancelled.
In the result, writ petition is allowed, declaring G.O.Rt.No.1070 Home (Courts.A) Department dated 18.12.2019 appointing the third respondent as Special Public Prosecutor to conduct trial of prosecution in S.C.No.110 of 2016 pending on the file of VI Additional District and Sessions Judge, Chittoor, as illegal and arbitrary, consequently G.O.Rt.No.1070 Home (Courts.A) Department dated 18.12.2019 is set-aside. However, it is left open to the State to entrust the prosecution to any of the Public Prosecutors, subject to cancellation of G.O.Rt.No.977 Home (Courts.A) Department dated 15.11.2019 by specific order, if the State is not interested to continue Sri S. Venkata Narayana to conduct prosecution in S.C.No.110 of 2016 in accordance with law and entrust conduct of prosecution to a Public Prosecutor who has no conflict of interest and to conduct fair prosecution/trial without any bias. Respondent Nos. 1 and 2, at their discretion, may also consider entrustment of conduct of prosecution to the regular Public Prosecutor appointed to conduct prosecution in the Court where S.C.No.110 of 2016 is pending.
Consequently, miscellaneous applications pending if any, shall also stand dismissed. No costs.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:18.01.2021 SP