Karnataka High Court
Sri. Pampapathi S/O Doddabasappa vs The State Of Karnataka on 5 July, 2018
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 5th DAY OF JULY 2018
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
Writ Petition Nos.104234-104235 of 2018 (GM-RES)
BETWEEN:
1. SRI. PAMPAPATHI
S/O. DODDABASAPPA
AGE: 47 YEARS,
OCC: AGRICULTURE,
R/O: MOKA HOBALI, K.K. HAL VILLAGE
TAL & DIST:BALLARI
2. SRI SADAKALI S/O LINGAPPA
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O: MOKA HOBALI, K.K.HAL VILLAGE,
TAL & DIST: BALLARI. ... PETITIONERS
(BY SRI SRINAND A. PACHHAPURE, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS I ADDITIONAL
SOLICITOR AND EX. OFFICIO,
DEPUTY SECRETARY TO GOVERNMENT,
DEPARTMENT OF HOME,
M.S. BUILDING, BENGALURU.
2. THE STATE OF KARNATAKA,
THROUGH DEPUTY SUPERINTENDENT OF POLICE
H & B SQUAD, C.O.D, BENGALURU,
NOW REP. BY ADDL. STATE PUBLIC PROSECUTOR,
OFFICE OF THE ADVOCATE GENERAL,
DHARWAD UNIT,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
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3. THE SPECIAL PUBLIC PROSECUTOR
SRI L.S.SULYAD,
RETD. DEPUTY DIRECTOR OF
PROSECUTIONS, SENIOR LAW OFFICER,
DHARWAD.
4. SMT. SUSHILAMMA,
W/O RAMANAGOUDA PATIL
AGE: 41 YEARS
OCC: HOUSEHOLD WORK,
R/O: K.K.HAL VILLAGE,
TAL & DIST: BALLARI.
5. SMT. RADAMMA,
W/O NAGARAJGOUDA PATIL
AGE: 41 YEARS,
OCC: HOUSEHOLD WORK,
R/O: K.K.HAL VILLAGE,
TAL & DIST: BALLARI. ... RESPONDENTS
(BY SRI RAVI V. HOSAMANI, ADDITIONAL GOVERNMENT
ADVOCATE FOR R-1 AND R-2)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE NOTIFICATION BEARING NO.HD:5061:HCP-1:2018
DATED 30.06.2018 PASSED BY RESPONDENT NO.1 MARKED AT
ANNEXURE-A.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioners have assailed Notification bearing No.HD:5061:HCP-1:2018 dated 30/06/2018 passed by the first respondent (Annexure-A). By the said notification, the State Government, Department of Home-the first 3 respondent has appointed Sri L.S. Sulyad, Advocate, Hubli- Dharwad, as a Special Prosecutor for conducting certain Criminal Appeals mentioned therein before this Bench of the High Court. He is arrayed as respondent No.3 in this writ petition.
The impugned Notification reads as under:
GOVERNMENT OF KARNATAKA No.HD:5061:HCP01:2018 Karnataka Government Secretariat Vidhana Soudha, Bengaluru, dated 30-06-2018 NOTIFICATION In exercise of the powers conferred by the proviso to sub-section (8) of section 34 of the code of Criminal Procedure 1975 (Central Act No.2 of 1974) as amended by the Karnataka Law Officers (Appointment Conditions of Services) Rules 1977, Sri L.S. Sulyad, Advocate, Hubli-Dharwad, is hereby appointed as a Special Public Prosecutor for conducting Criminal Appeal Nos.100345/2016 & 100346/2016, 100276/2016, 100283/2016 & 100253/2016, 100024/2017, 100127/2017 & 100128/2017, 100193/2018 and 100194/2018 on the file of Hon'ble High Court of Karnataka, Dharwad Bench, arising out of S.C. No.55/2008, 56/2008, 132/08, 133/08 and 134/08 (Crime Nos.107/07, 108/07, 109/07, 110/07 & 4 111/07 of Moka Police Station, Ballari district) on behalf of the State of Karnataka.
The remuneration of the above said Spl. Public Prosecutor shall be borne by the applicant Smt. P. Susheelamma W/o Late P. Ramanagouda and Smt. P. Radhamma, W/o Late P. Nagarajagouda, Kallukutaginahala, Ballari Taluk and district.
The Special Public Prosecutor shall have no claim with the Government regarding his remuneration.
By Order and in the name of the Governor of Karnataka Sd/-
I Additional Solicitor and Ex.Officio, Deputy Secretary to Government, HOME DEPARTMENT
2. I have heard learned counsel for the petitioners and learned Additional Government Advocate appearing for respondent Nos.1 and 2 on advance notice and perused the material on record.
3. Learned counsel for the petitioners submitted that the State could not have decided to appoint a Special Public Prosecutor for conducting the aforesaid criminal appeals pending before this Court at the stage of final 5 hearing of the matter. He submitted that it could have done so at the time of initiation of the proceedings before this Court i.e., when the appeals were filed and not at the stage when the final hearing is to commence. He further submitted that the impugned order states that the Special Public Prosecutor shall have no claim with the Government regarding his remuneration and the same would have to be borne by the applicants, who are respondent Nos.4 and 5 herein. He further submitted that the appointment of Special Public Prosecutor, at this stage, would prejudice the case of the petitioners, who are the accused in the said criminal appeals, as they apprehend that there would not be a fair hearing of the matter and that their apprehensions are serious and grave. He further submitted that having regard to the fact that fairness in criminal proceedings is one of the aspects of Article 21 of the Constitution of India, petitioners have been constrained to approach this Court assailing Notification dated 30/06/2018 (Annexure-A). 6
4. Learned counsel for the petitioner places reliance on the decision of this Court in the case of Sri K.V.Shiva Reddy vs. State of Karnataka, Rep. by its Secretary and others reported in ILR 2005 KAR 4780 [K.V.Shiva Reddy] to buttress his submission with pointed references to paragraphs 32, 36 and 37.
5. Learned counsel for the petitioners also contended that there are no reasons forthcoming in the impugned Notification dated 30/06/2018 as to why the State decided to appoint third respondent as a Special Public Prosecutor and that there is no consultation with the Department of Prosecution.
6. Per contra, learned Additional Government Advocate appearing for respondent Nos.1 and 2 on advance notice contended that firstly, the petitioners have no locus standi to assail the impugned Notification. That it is within the powers of the State to appoint a Public Prosecutor or a Special Public Prosecutor for facilitating trial or for appearing on behalf of the State in criminal appeals. That 7 the Special Public Prosecutor could be appointed at any stage of the proceedings and it would not be necessary that it should be done so only at the initial stage. He further submitted that the petitioners have not made out any semblance of a case to allege that there is violation of any Principles of Law much less any material has been produced to show, prima facie that there would be bias or prejudice against the petitioners herein, in the event the third respondent is appointed as a Special Public Prosecutor. He further submitted that in view of there being no substance in the contentions raised by the petitioners, worthy of consideration to be made by this Court, the petition, which lack any merit, may be dismissed.
7. Having heard learned counsel for the petitioners, at the outset, it would be useful to refer to the relevant paragraphs of K.V.Shiva Reddy since heavy reliance has been placed on the said judgment by him. In the case of K.V.Shiva Reddy, the following questions were considered:
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"10. From the aforesaid material and the submissions made the following points arise for consideration:-
(1) What is the status, responsibilities of a public prosecutor in a criminal trial? (2) How and under what circumstances a Special Public Prosecutor could be appointed?
(3) How, the remuneration is to be paid to the Special Public Prosecutor?
(4) Whether the accused has a right to challenge the order of appointment of a Special Public Prosecutor?
(5) Whether the impugned order appointing the second respondent as the Special Public Prosecutor is liable to be quashed?
(6) Whether this Writ Petition is liable to be dismissed on the ground of delay, laches, suppression of material facts, etc.,?"
While answering the said questions, the learned Single Judge of this Court observed as follows in paragraphs 36 and 37 as under:
36. The impugned order is an administrative order by the Government under Section 24(8) of 9 the Code. It is a statutory order. If all State actions must be just, fair and reasonable, the Special Public Prosecutor would be under less duty as a functionary of the State to discharge his functions as a Public Prosecutor in an equally just, fair and reasonable manner irrespective of the outcome of the trial. In that sense, he is a part of the judicature system and an upright Public Prosecutor has no friends and foes in Court. He has no prejudices, preconceived notions, bias hostility or his own axe to grind. He represents public interest, but is not a partisan in the narrow sense of the terms.
37. The accused has no say in the matter of appointment of the Special Public Prosecutor under the scheme of the Code. But the accused has a right of fair trial, which is a part of the fundamental right guaranteed by the Constitution under Articles 14 and 21 of the Constitution of India. The assurance of a fair trial is the first imperative of the dispensation of justice. It is well known position in criminal jurisprudence that the State is the prosecutor and that is why the primary position is assigned to the public prosecutor, who is a part of fair trial. If his appointment is not made in public interest, not made in accordance with law, made for extraneous considerations, made with any mala fide intentions, made with intention to persecute 10 the accused, such appointment offends the concept of fair trial, a fundamental right guaranteed to the accused. Fairness to the accused who faces prosecution is the raison d'etre of the legislative insistence on that score. Therefore, the accused has a right to challenge the appointment on any such grounds, though he has no say in the appointment. The Court is concerned only with the decision making process and not the decision."
8. In the matter of remuneration payable to State Public Prosecutor, learned Single Judge has observed at paragraph No.32 as under:
"REMUNERATION:
32. In the mater of remuneration payable to the Special Public Prosecutor, ordinarily the Special Public Prosecutor should be paid out of the State funds even when he appears in support of a private complainant. But there may be some special cases where Special Public Prosecutors remuneration may be collected from private source. The rate of fees should be prescribed and the complainant should be called upon to deposit the fees in advance to the Government and the Special Public Prosecutor be paid out of the said amount by the Government.
To leave the complainant to pay to the Special Public Prosecutor would indeed not be appropriate. 11 If he looks to a private party for his remuneration, his capacity and ability to perform his role as Public Prosecutor properly will be endangered. Government cannot appoint Special Public Prosecutor on such terms, abdicating their financial responsibility or directing him to receive his remuneration from any private individual. Then it introduces an advocate-client relationship, a personal element from which the Public Prosecutor must be considered immune. He is above the persona loyalty. He does not have a dual capacity.
9. Learned counsel for the petitioners as well as learned Additional Government Advocate submit that the aforesaid observations as well as the order have been affirmed by the Division Bench of this Court.
10. It is noted that the accused has no say in the matter of appointment of a Special Public Prosecutor and under the scheme of the Code. But the accused has a right of fair trial, which is a fundamental right under Articles 14 and 21 of the Constitution. So as to ensure right of fair trial in the context of appointment of a Special Public Prosecutor to prosecute on behalf of the State, if the 12 accused are able to make out a case that the Special Public Prosecutor has prejudices, bias, hostility against the accused, then his appointment could be assailed. Otherwise, the appointment of a Special Public Prosecutor, being an administrative order based on the satisfaction of the State Government, cannot be assailed as such. Even otherwise, if the appointment of a Special Public Prosecutor is not in the public interest or is made for extraneous considerations or with an intention to persecute the accused, then that would be a ground to consider the validity of his appointment. In the instant case, none of the above grounds have been raised by the petitioners. As already noted, the contention is that, at the time of commencement of the final hearing of the appeals, the Special Public Prosecutor could not have been appointed. It is a matter for the State to decide as to when there is a need for appointment of a Special Public Prosecutor to facilitate trial and prosecute the criminal appeals or to change the existing Special Public 13 Prosecutor/Prosecutor in-charge of the particular proceeding.
11. Further the other ground sought to be made out is that the impugned order does not disclose reasons for appointment of third respondent as a Special Public Prosecutor. The said requirement is wholly unnecessary as the petitioners are not entitled to know the reasons for appointment of a Special Public Prosecutor. That is a matter left to the Department of prosecution and the wisdom of the State Government.
12. The other aspect is with regard to the Special Public Prosecutor not having any claim with the Government regarding his remuneration. In that regard para 32 of the aforesaid order states that ordinarily the Special Public Prosecutor should be paid out of the State funds even if he appears in support of a private complainant. But there may be some special cases where Special Public Prosecutors remuneration may be collected from private sources. In the instant case, taking note of 14 the said observations of this court, the State Government has stated in the impugned Notification that the Special Public Prosecutor would have no claim with the Government regarding his remuneration as he has been appointed at the instance of the applicants-respondent Nos.4 and 5 herein. As already noted, in the case of K.V.Shiva Reddy, it has been held that the complainant should be called upon to deposit the fees in advance to the Government and the Special Public Prosecutor be paid out of the said amount by the Government. By such a condition being prescribed in the impugned order, I do not think that there is any violation of the right of the accused towards a fair trial in the proceedings before this Court.
In the circumstances, there is no merit in the writ petitions. The writ petitions are, hence, dismissed.
Sd/-
JUDGE Kmv