Andhra HC (Pre-Telangana)
Paramjit Singh Sadana vs State Of A.P. Rep. By The Secretary ... on 8 February, 2008
Equivalent citations: 2008(3)ALT74
Author: N.V. Ramana
Bench: N.V. Ramana
ORDER N.V. Ramana, J.
1. Since these two writ petitions filed by the accused in S.C. No. 218 of 2007 on the file Metropolitan Sessions Court, Hyderabad, assail the orders issued in G.O. Rt. No. 1239, dated 03.08.2007 by respondent No. 1-Government of Andhra Pradesh under Section 24(8) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') appointing Sri. P. Satya Murthy, Advocate, as a "Special Public Prosecutor" for conducting prosecution in the said Sessions Case, as being illegal and arbitrary, they are heard together and are being disposed of by this common order.
Brief Facts of The Case
2. The facts that gave rise to the filing of these two writ petitions are - At the instance of one Smt. Reena Sadna (hereinafter called as the 'de facto complainant') a case in Crime No. 369 of 2006 on the file of the Police Station, Punjagutta, under Sections 302 and 379 I.P.C. was registered. In the said complaint, the complainant alleged that her husband Sri Jasbir Singh was murdered on the intervening night of 27/28.04.2006, and she suspected her servants namely A2 to A5, who are Nepalies, to be the culprits. During the course of investigation, she gave a statement that she suspected that the brother of the deceased (petitioner in W.P. No. 21851 of 2007) to be the main conspirator for the murder in view of existence of property disputes between them.
3. While so, basing on the confessional statements, said to have been made by A1 and his Car Driver A6, the petitioner in W.P. No. 26699 of 2007 was arrayed as accused No. 7 in the sessions case on the ground that he facilitated A2 to A5 to flee away from Hyderabad, and provided them with money on the instructions of A1. Later, A6 having been arrested and remanded in judicial custody. After completing the investigation, the police laid the charge sheet in the month of October, 2006. Thereafter, the matter was committed to the Metropolitan Sessions Court, Hyderabad. While the case was pending, the de facto complainant made a representation to the Government for appointing a private Advocate as Special Public Prosecutor in the place of the existing Public Prosecutor to conduct trial in S.C. No. 218 of 2007. Basing on the said representation, the Government issued the impugned G.O. appointing Sri. P. Satya Murthy, Advocate, as the Special Public Prosecutor.
Defence of the Respondents
4. Respondent No. 1-Government represented by the Secretary to Government, Law (Legislative Affairs and Justice) Department, has filed a common counter affidavit in both the writ petitions stating that the appointment of Special Public Prosecutor was made strictly in accordance with the provisions of Section 24(8) of the Code; that the murder of the husband of the de facto complainant caused great sensation in the city; while the investigation was in progress, the Commissioner of Police, Hyderabad, formed a special team to nab the accused, and they have arrested the accused, completed the investigation and filed the charge sheet. It is stated that the entire case depends on circumstantial evidence and the police have cited about 90 witnesses to prove the case. There is also scientific and expert evidence to be considered at the time of trial, and the case also involves certain important questions of law to be decided, and therefore, prosecution has to be conducted by an eminent and experienced counsel. Basing on the representation of the de facto complainant, the Government have examined the issue in the light of the remarks of the Director of Prosecutions, and appointed Special Public Prosecutor, to conduct prosecution in the case.
5. The de facto complainant has also filed a counter affidavit along with a vacate stay petition inter alia stating that after the murder of her husband, she learnt from reliable sources that the brother of her husband, namely A1 is the main culprit for the ghastly murder, and she intimated the same to the Police, who after investigation, arrested him on 01.08.2006, and he was subsequently enlarged on bail, and that he is threatening her and her children as well as the witnesses with dire consequences. She further stated that the witnesses who were threatened by A1, have also made complaints to the police, which were registered as Crime Nos. 141 and 298 of 2007. Since there are number of witnesses to be examined, and with a view to ensure that the trial does not get delayed, she made representation to respondent No. 1 -Government to appoint a Special Public Prosecutor, and after considering the same, respondent No. 1-Government has issued the impugned G.O., appointing Sri. P. Satya Murthy, Advocate, as Special Public Prosecutor for conducting trial in the case.
Submissions of the Counsel
6. Sri. T. Bali Recldy, learned Senior Counsel appearing for the petitioner in W.P. No. 21851 of 2007 submits that the Puolic Prosecutor while conducting prosecution is expected to assist the Court in an unbiased manner, and an elaborate procedure is contemplated under Section 24 of the Code for appointment of a regular Public Prosecutor for conducting prosecution on behalf of the State for each Court, and in the instant case, even though there are no special reasons or circumstances, yet respondent No. 1 acting on the representation of the de facto complainant, has issued the impugned G.O., appointing Sri. P. Satya Murthy, Advocate, as Special Public Prosecutor, which is illegal and arbitrary.
7. He submitted that perceptions of third parties have no role to play in the matter of appointing Special Public Prosecutors. In the absence of any allegations made against the existing Public Prosecutor with regard to his integrity, honesty and expertise, there was no necessity to appoint Sri. P. Satya Murthy, Advocate, as Special Public Prosecutor. He submitted that the de facto complainant in her representation to respondent No. 1-Government has requested to appoint an experienced and Senior Advocate as Special Public Prosecutor, but respondent No. 1-Government has appointed an Advocate, who is much junior to the present Public Prosecutor, which amounts to abuse of discretionary jurisdiction conferred on the State under Section 24(8) of the Code.
8. He submitted that the Office of the Public Prosecutor is of special significance, and he is not supposed to act in a partisan manner, with an endeavour to procure conviction of the accused. A Public Prosecutor assisting the Court has to discharge sacred duties, and should assist the Court in bringing about justice. Therefore, appointment of an Advocate as Special Public Prosecutor at the instance of de facto complainant, with the sole aim of procuring conviction of the accused cannot be sustained. That apart, a perusal of the impugned G.O., issued by respondent No. 1-Government makes it clear that the Government has not applied its mind, and no reasons have been assigned for appointing Special Public Prosecutor, except reproducing a part of the representation made by the de facto complainant in the G.O., and since the said G.O. adversely affects the right of the accused to be defended, the same cannot be sustained. In support of his arguments, the learned Senior Counsel, placed reliance upon judgment of the apex Court in Mukul Dalai v. Union of India and of this Court in D. Brahmanandam v. State of Andhra Pradesh 1986 (1) ALT 141.
9. Sri. Posani Venkateswarlu, learned Counsel appearing for the petitioner in W.P. No. 26699 of 2007 has adopted the arguments of the learned Senior Counsel and submits that respondent No. 1 -Government issued the impugned G.O. appointing Sri. P. Satya Murthy, Advocate, as Special Public Prosecutor only at the instance of the de facto complainant. He submits that since there are no adverse remarks against the existing Public Prosecutor doubting his integrity or honesty or of his being related to any of the accused, the impugned G.O. appointing Sri. P. Satya Murthy, Advocate, as Special Public Prosecutor, cannot be sustained and has to be set aside.
10. Sri. C.B. Ram Mohan Reddy, the learned Counsel appearing for the de facto complainant submits that respondent No. 1-Government have the power under Section 24(8) of the Code to appoint Advocates as Special Public Prosecutors, to conduct a case or cases depending upon his merit, suitability, exigency and the complexity of the cases. He submitted that the accused have neither the right to question the appointment of Sri. P. Satya Murthy, Advocate, as Special Public Prosecutor nor can they contend that only the regular Public Prosecutor should proceed with the conduct of the case. He submitted that Special Public Prosecutor was appointed by respondent No. 1 -Government only after obtaining the view of the Director of Prosecutions as required, and therefore, it cannot be said that the de facto complainant, has sought for appointment of a Special Public Prosecutor of her choice. He submitted that the regular Public Prosecutor is already over burdened with many cases, and since the case required speedy trial, appointment of Special Public Prosecutor, to conduct the case is very much necessary, and as such, neither any right of the accused nor their defence is adversely affected.
11. Sri. 0. Kailashnalh Reddy, the learned Counsel appearing for respondent No. 3 in W.P. No. 21851 of 2007, the existing Public Prosecutor submitted that the de facto complainant has made a representation to respondent No. 1 -Government stating that she wants an eminent and experienced Prosecutor to conduct prosecution in the case, and considering the said request of the de facto complainant, respondent No. 1-Government have issued the impugned G.O. appointing Sri. P. Satya Murthy, Advocate, as Special Public Prosecutor. He submitted that since the said appointment, had affected his credibility and has thrown a negative impression on his capability of handling the cases and caused lot of embarrassment to respondent No. 3, he prayed that the impugned G.O., appointing Sri. P. Satya Murthy, Advocate, as Special Public Prosecutor, be set aside.
Questions That Arise For Consideration
12. In the light of the arguments advanced on behalf of the respective parties, the following questions do arise for consideration in the writ petitions:
1. What is the procedure that governs the appointment of Public Prosecutors/Additional Public Prosecutors/Special Public Prosecutors/Assistant Public Prosecutors, to the various Courts?
2. Whether the accused in a criminal case have any locus standi to question the appointment of Special Public Prosecutor?
3. What is the amount of discretion that is vested in the Government in the matter of appointment of Public Prosecutors/Additional Public Prosecutors/Special Public Prosecutors/Assistant Public Prosecutors, to the various Courts?
4. Whether respondent No. 1-Government was justified in appointing Special Public Prosecutor on the request made by the de facto complainant?
In Re question No. 1:
13. Sections 24 and 25 Cr.P.C. deal with Public Prosecutors and Assistant Public Prosecutors. The procedure that has to be followed in the matter of making appointments to the posts of Public Prosecutors and Assistant Public Prosecutors, is laid under the said Sections. For the present case, it would be appropriate to refer to the provisions of Section 24 Cr.P.C, which reads as follows:
24. Public Prosecutors:
(1) For every High Court, the Central Government or the State Government, shall, after consultation with the High Court, appoint a public prosecutor and may also appoinl one or more Additional Public Prosecutors for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.
(2) The Central Government may appoint one or more public prosecutors for the purpose of conducting any case or class of cases in any district or local area.
(3) For every district, the State Government shall appoint a public prosecutor and may also appoint one or more Additional Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.
(4) The District Magistrate shall, in consultation with the Sessions Judge prepare a Panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under Sub-section (4).
(6) Notwithstanding anything contained in Sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre;
Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment then Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the Panel of names prepared by the District magistrate, under Sub-section (4).
(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under Sub-section (1) or Sub-section (2) or Sub-section (3) or Sub-section (6), only if he has been in practice as an advocate for not less than seven years.
(8) The Central Government or the State Government may appoint for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.
(9) For the purposes of Sub-section (7) and Sub-section (8), the period during which a person has been in practice as a Pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.
14. A glance at the above provision would disclose that the State Government shall appoint a Public Prosecutor for every district, and may also appoint one or more Additional Public Prosecutors for every district. Similarly, the Central Government or the State Government, as the case may be, may appoint for the purposes of any case or class of cases a Special Public Prosecutor. Thus, it is obvious that the State Government may appoint a Public Prosecutor for the District and the State Government may also appoint for the purposes of any case or class of cases a Special Public Prosecutor. It may be mentioned here that while it is the requirement for the State to appoint a Public Prosecutor for the District, discretion seems to have been conferred upon the State to appoint a Special Public Prosecutor for the purposes of any case or class of cases.
15. While Sub-section (3) is the enabling provision for the State to appoint a Public Prosecutor, Sub-sections (5) and (7) postulate the eligibility criteria. Sub-section (8), however, embraces in itself the enabling provision and the eligibility criteria as well. Sub-section (4) however mandates that the District Magistrate shall in consultation with the Sessions Judge prepare a panel of names of persons who are in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the District. As can be seen from Sub-sections (5) and (7) no person shall be appointed by the State Government as Public Prosecutor or Additional Public Prosecutor, as the case may be, unless he has been in practice as an Advocate for not less than seven years and his name appears in the panel of names prepared by the District Magistrate in accordance with the mandate contained in Sub-section (4). However, for appointment as Special Public Prosecutor Sub-section (8) mandates that a person who has been in practice as an Advocate for not less than 10 years alone is eligible to be appointed. Ex facie, Sub-section (8) in so many terms does not envisage any consultation process or preparation of a panel except the requirement of ten years standing at the Bar. i The standing at the bar, which makes an Advocate eligible to be considered for the appointment of a Public Prosecutor or Additional Public Prosecutor, as the case may be, obviously differs from the appointment of Special Public Prosecutor. Merely because Sub-sections (7) and (8), as discussed hereinabove, in so many terms prescribe eligibility criteria (standing at the bar) for the appointment of Special Public Prosecutor, it is not permissible to ignore Sub-sections (4) and (5) while making appointments under Sub-sections (7) or (8) of Section 24 of the Code. In my considered view, Sub-section (8) shall not be read in isolation, and Section 24 of the Code needs to be read as a whole so as to discern what is the criterion for the appointment of a Public Prosecutor or Additional Public Prosecutor, as the case may be, in respect of a District and what is the criterion for the appointment of a Special Public Prosecutor.
16. As discussed above, Sub-sections (4) and (5) mandate the consultation process, the preparation of the panel and the existence of a name of an Advocate (in the panel) for the appointment of a Public Prosecutor. This procedure envisaged under these two provisions shall have to invariably be followed even in respect of an appointment of a Special Public Prosecutor. Therefore, a reading of Section 24 of the Code as a whole makes it obvious that whether it is a case of appointment of a Public Prosecutor or Additional Public Prosecutor, as the case may be, or it is a case of appointment of a Special Public Prosecutor, the consultation process, the preparation of the list and the existence of the name of an Advocate in the list are common, the only difference being the standing at the bar. Sub-section (4) of Section 24 mandates that the District Magistrate shall in consultation with the Sessions Judge prepare a panel of names of persons who are in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors, as the case may be, although the provision enables the District Magistrate to prepare a panel containing the names of the persons who are in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors, as the case may be, such preparation of the panel is conditioned and it was made obligatory for the District Magistrate to consult invariably the Sessions Judge. Therefore, the preparation of the panel of names although it is the obligation of the District Magistrate to do, he must do it only in consultation with the Sessions Judge.
17. The expression "consultation" as used in Sub-section (4) cannot be given its generic or etymological meaning. Indeed, the expression "consultation" has been subject matter of discussion before the apex Court in many a judgment. The apex Court in Supreme Court Advocates-on-Record Association and Ors. v. Union of India (known as "Second Judges' Case") at para 433, held as follows:
It is with this perception that the nature of primacy, if any, of the Chief Justice of India, in the present context, has to be examined in the constitutional scheme. The hue of the word 'consultation', when the consultation is with the Chief Justice of India as the head of the Indian Judiciary, for the purpose of composition of higher judiciary, has to be distinguished from the colour the same word 'consultation' may take in the context of the executive associated in that process to assist in the selection of the best available material.
18. That expression used in the provisions of the Constitution of India and as used in various other statutes is similar although interpretation process differs when it comes to interpret the expressions used in the Constitution qua the similar provisions elsewhere in various other statutes. Having regard to the context here, it shall have to be construed akin to the expression used in the provisions of the Constitution of India. The consultation of the Sessions Judge is envisaged under Section 24 of the Code by the District Magistrate for the purpose of preparing the panel obviously because the Sessions Judge shall be in a position to assess the merit and ability of the Advocate than the District Magistrate. That is the reason why, the Parliament in its wisdom made the consultation of the Sessions Judge by the District Magistrate as mandatory. In this context, therefore, consultation shall have to be given its due meaning. The apex Court has gone a step further in Ashok Tanwar and Anr. v. State of Himachal Pradesh and Ors. , when it held that the initiation must be from the Judiciary. Therefore, although the District Magistrate is expected to prepare a panel consisting of the names of the persons who are in his opinion fit to be appointed as Public Prosecutors since he is obliged to consult the Sessions Judge, the preparation of the panel must be initiated by the Sessions Judge himself. The Code has not envisaged any special reason, which necessitates the appointment of a Special Public Prosecutor by the State. Although discretion is conferred upon the State to appoint a Special Public Prosecutor for the purposes of any case or class of cases, it is always expedient more significantly to avoid the element of arbitrariness to evolve and prescribe an intelligible criterion so that the same can be followed uniformly as and when the necessity arises. In State of Uttar Pradesh and Anr. v. Johri Mal , the State of Uttar Pradesh amended Section 24 of the Code in terms whereof, the requirements to consult the High Court for appointment of Public Prosecutors for the High Court as contained in Sub-section (1) of Section 24 as also Sub-sections (4), (5) and (6) thereof were deleted. Finding fault with such action of the State of Uttar Pradesh, a three-Judge Bench of the Supreme Court speaking through S.B. Sinha, J, held as follows:
While making appointments of District Government Counsel, the State should give primacy to the opinion of the District Judge. Such a course of action would demonstrate fairness and reasonableness of action and, furthermore, to a large extent the action of the State would not be dubbed as politically motivated or otherwise arbitrary. The State of Uttar Pradesh alone had amended Sub-section (1) of Section 24 and deleted Sub-sections (3), (4) and (5) of Section 24 of the Code of Criminal Procedure. Evidently, the said legislative step had been taken to overcome the decision of the Supreme Court in Ku. Shrilekha Vidyarthi (supra). There is no rationale in the said action because a law cannot be substituted by executive instructions contained in Manual, which may be subjected to administrative vagaries. There does not exist any rationale behind deletion of the provision relating to consultation with the High Court in the matter of appointment of the Public Prosecutors in the High Court. The said provision being a salutary one, it is expected that the State of U.P. either would suitably amend the same or despite deletion shall consult the High Court with a view to ensure fairness in action.
19. Thus, from the above it becomes clear that in the matter of making appointments to the posts of Public Prosecutors/Additional Public Prosecutors/ Special Public Prosecutors, as the case may be, the provisions of Section 24 of the Code, should be read as a whole and not the Sub-sections thereof in isolation. This becomes further evident from the fact that even the Government of Andhra Pradesh by way of Instruction No. 6 of the Instructions issued in G.O. Ms. No. 187, dated 06.12.2000, known as "Andhra Pradesh Law Officers (Appointment and Conditions of Service) Instructions, 2000", has made it clear that appointment of Public Prosecutors/Additional Public Prosecutors/ Special Public Prosecutors, as the case may be; shall be made as per the provisions of Section 24 of the Code. Hence, it has to be held that in the matter of making appointments to the posts of Public Prosecutors/Additional Public Prosecutors/Special Public Prosecutors, as the case may be, the procedure as contemplated under Section 24 of the Code, particularly Sub-sections (4) and (5) thereof has to be followed in its letter and spirit.
In Re question No. 2:
20. The petitioners, admittedly, are accused in S.C. No. 218 of 2007 on the file of the Metropolitan Sessions Court, Hyderabad. None can dispute the fact that the valuable right of liberty of the accused is always at stake in criminal cases, for in the event of his/her being convicted, he/she will have to undergo imprisonment, the period of imprisonment may vary depending upon the graveness of the offence for which he/she is convicted. When such a valuable right of liberty of the accused is at stake, it is always expected that he/she should be given free, fair and speedy trial. Since it is the specific case of the petitioners that the Special Public Prosecutor has been appointed at the instance of the de facto complainant, it is but appropriate to hold that the petitioners who would have to face trial at the hands of the Special Public Prosecutor so appointed, have locus standi to question his appointment. In D. Brahmanandam v. State of Andhra Pradesh (2 supra), this Court, held that an accused has locus standi to challenge the appointment of a Special Public Prosecutor if the circumstances warrant, and that such locus standi was conferred on the accused on the principle that fairness in the prosecution should also appear to exist. A genuine and reasonable apprehension in the mind of the accused as regards independence of Special Public Prosecutor cannot be brushed aside. Justice Jagannadha Rao, as he then was, while referring to the attributes of the Office of the Public Prosecutor, as observed in various English and Indian decisions, summed them up as under:
The prosecuting counsel stands in a position different from that of an advocate who represents the complainant. He does not represent either the de facto complainant or the police. He is a representative of the State and is part of the Court and in that sense called a Minister of Justice. His function is to assist the Court in arriving at the truth. It is not his duty to obtain a conviction at any cost but simply to lay before the Court the whole of the facts of the case and the law. The State too has no interest in procuring a conviction. Its only interest is that the guilty must be punished and justice should be done. It is regarded as information that the defence may have the opportunity to use it if they so desire and so that no unfairness is meted out to the accused. The position of the prosecutor is thus quasi-judicial and of trust.
21. In view of the above, it cannot be said that the petitioners, who are accused in the sessions case, have no locus standi to question the appointment of Special Public Prosecutor, and more so it is their specific case such appointment has been made at the instance of the de facto complainant, despite existence of the regular Public Prosecutor. Accordingly, question No. 2 is answered in the affirmative.
In Re question No. 3:
22. There cannot be any dispute that under Section 24(8) of the Code, the Central or the State Government can appoint a Special Public Prosecutor in a case or class of cases. It is also not in dispute that the Government can also appoint a Special Public Prosecutor on the representation of private individuals, but all such appointments, as observed in re question No. 1, have to made as per the procedure contemplated in Section 24(4) and (5) of the Code, in that the District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district, and no person shall be appointed by the Government unless his name finds place in the panel prepared by the District Magistrate, in consultation with the District Judge. Thus it is clear that the discretion of the Government in the matter of appointment of Public Prosecutors/Additional Public Prosecutors/Special Public Prosecutors, as the case may be, is very limited, in that they have to select and appoint a person from the panel of names sent by the District Magistrate in consultation with the District Judge, and any panel of names sent by the District Magistrate without the consultation of the District Judge, for appointment as Public Prosecutor/Additional Public Prosecutor/Special Public Prosecutor, as the case may be, are of no value, for the Government will have no benefit of the opinion of the Sessions Judge. Thus any appointment made by the Government of the Public Prosecutors/Additional Public Prosecutors/Special Public Prosecutors, as the case may be, in exercise of its discretion under Section 24 of the Code shall be by reading the said provision as a whole, and not a particular sub-section thereof in piecemeal. Accordingly, question No. 3 is answered.
In Re question No. 4:
23. It is the contention of the learned Senior Counsel for the petitioners that various sub-sections of Section 24 of the Code do not permit appointment of Special Public Prosecutor just on the request made by the complainant. Per contra, the learned Government Pleader for Home as well as the learned Counsel for the de facto complainant that it is the prerogative of the Government to appoint Public Prosecutors, Additional Public Prosecutors basing on the ability and competence of the incumbent. It is their case that even though the de facto complainant has made representation for appointment of Special Public Prosecutor, but the person who is appointed as Special Public Prosecutor is of their choice and not of the de facto complainant, and in fact, it was made after consulting the Director of Prosecutions.
24. The Public Prosecutor holds a public office. The primacy given to him under the Code has a special purpose. He has an independent and responsible character. Public Prosecutor is not a part of investigating agency, but is an independent statutory authority. There is no doubt that the Government have the power to appoint a Special Public Prosecutor on the representation of private individuals, but such appointment cannot be made on the mere asking by a complainant, and request for such appointments must be examined on the basis of the guidelines prescribed or to be prescribed and the decision shall be taken accordingly.
25. In Mukul Dalai v. Union of India (1 supra), the apex Court considered the question whether the request made by a private complainant for appointment of a Special Public Prosecutor should be accepted as a rule, observed as follows:
In most of the States, as we have already observed, the Remembrancer of Legal Affairs looks after the State litigations. He is a responsible officer and normally with judicial experience. When an application for the services of a Special Public Prosecutor or an Assistant Public Prosecutor is made in a given case, the power would be vested in him to examine the facts and take decision as to whether the case merits the appointment of a Special Public Prosecutor or an Assistant Public Prosecutor. It would not be appropriate to accept the position that whenever an application is made it should be allowed and a Special Public Prosecutor should be appointed; this would be contrary to the spirit of the scheme of the Code. There may be cases where a power complainant may have begun a proceeding to victimize his opponent. If in such a case the State concedes to the request for appointment of a Special Public Prosecutor, there will be travesty of justice. Without screening on the basis of guidelines prescribed or to be prescribed, the services of a Special Public Prosecutor should not be made available to a private complainant.
26. Observing so, the apex Court held that the request for appointment of a Special Public Prosecutor should be properly examined by the Remembrancer of Legal Affairs in the light of the facts of the case, and only when he is satisfied that the case deserves the support of a Public Prosecutor or Special Public Prosecutor, then a person can be appointed to be in-charge of the said case.
27. This Court in Devineni Shshagiri Rao v. Government of A.P. 2004 (7) ALT 988 : 2004 Crl. L.J. 52 (A.P.), considered similar issue, and held as follows:
Before the State Government resorts to the appointment of a Special Public Prosecutor, it has to satisfy as to the special nature of the case or class of cases in respect of which the Special Public Prosecutor is sought to be appointed. As per Section 24(8) Cr.P.C, a case does not become special just on the request by or persistence of a complainant. The State Government is required to apply its mind and arrive at a conclusion that the concerned case has special significance and that the regular Public Prosecutor or Additional Public Prosecutor attached to the Court cannot effectively prosecute the matter. This satisfaction is purely subjective in nature. The Government does not owe an obligation to record reasons in support of this conclusion. However, satisfaction as such has to exist. It cannot be inferred only from an order appointing Special Public Prosecutor. It has to precede that.
28. Similar issue was also considered by a Division Bench of the Rajasthan High Court in Bhopal Singh v. State of Rajasthan 2001 Crl. L.J. 912 (D.B.) (Rajasthan), and it held thus:
Thus, in all prosecutions, the State is the prosecutor and a proceeding is always treated as proceeding between the State and the accused. The complainant has no independent right to have guilty persons punished. It is felt necessary in the larger public interest to save the people from prosecution by a private party. Once the offence is committed, it is not against an individual but is against the entire society.... The society has realized that the privilege of the prosecution should be of the State alone because it is neutral interceptor as it never loses and never wins. The Court calls for expertise and hence the conduct of the prosecution is entrusted to the Prosecutors appointed by the State. This will save innocent persons from vexatious prosecution and also harassment during the trial. Complainant has also been given limited right to speak during trial by way of submitting written arguments under Section 301(2) and assist the Public Prosecutor through private counsel with permission of the Court if the facts so permit under Section 302 Cr.P.C. Thus, the foundation of Sections 225, 301 and 302 Cr.P.C. is a well reasoned public policy. A balance is struck between public interest and private interest that while keeping the management of the prosecution with Public Prosecutor, the provision is made to take care of complainant's view, on legal and factual aspect.
29. Thus from the above quoted decision, it is clear that the Government can appoint Special Public Prosecutor in a given case or class of cases, but only on its being satisfied with the necessity of such appointment, and that such appointments cannot be made only on the asking of the complainant. Therefore, it may be noticed whether respondent No. 1-Government was justified in issuing the impugned G.O. appointing Special Public Prosecutor on the request of the de facto complainant.
30. Admittedly, respondent No. 1-Government issued G.O. Rt. No. 1239, dated 03.08.2007, appointing Sri. P. Satya Murthy as Special Public Prosecutor on the basis of the request made by the de facto complainant in the month of March, 2007. The said G.O. reads thus:
In the reference 1st read above, Smt. Reena Sadana w/o. Late Jasbeen Singh Sadana has submitted a representation stating that her husband Sardar Jasbeen Singh Sadana was brutally murdered by his brother Pramjit Singh Sadana (A1) along with his Nepali servants A2 to A5 on the intervening night of 27/28.04.2006 at her residence. She also stated that the entire case depends on circumstantial evidence and the police have cited about 90 witnesses to prove the case. There is also scientific and expert evidence, which has to be considered at the time of trial. The case also involves certain important questions of law for proper appreciation. Therefore, the prosecution of the case has to be conducted by an eminent and experienced counsel, who is well versed with the procedures of the law practicing at Nampally Courts and requested the Government to appoint senior and experienced counsel practicing in the Sessions Courts at Nampally as Special Public Prosecutor in SC No. 218 of 2007 and its split up cases on the file of the Metropolitan Sessions Judge, Hyderabad as the case is coming up shortly for consideration.
In the above circumstances and in consultation with the Director of Prosecutions, A.P. Hyderabad, Government hereby appoint Sri. P. Satya Murthy, Advocate, Hyderabad as Special Public Prosecutor, to conduct prosecution in S.C. No. 218 of 2007 and split of the cases on the file of the Metropolitan Sessions Judge, Hyderabad with a honorarium of Rs. 500/- for appearance per day in terms of G.0.1st read above.
31. From a reading of the above, it becomes clear that respondent No. 1-Government except reiterating the contents of the representation made by the de facto complainant seeking appointment of Special Public Prosecutor, have not assigned any reasons. Though respondent No. 1-Government have justified the appointment on the ground that it is their choice, a reading of the representation of the de facto complainant would disclose that she sought the appointment of Sri. P. Satya Murthy, Advocate as Special Public Prosecutor on the ground that she has faith in his skills and efficiency; that he worked as Additional Public Prosecutor in the Sessions Court for nearly a decade and conducted several sessions cases; that he was also appointed as Special Public Prosecutor in some important cases, which resulted in conviction. Though in the first representation, the de facto complainant apart from naming Sri. P. Satya Murthy, Advocate, has also named two other Advocates, the fact remains, the record produced by the respondents discloses, that the de facto complainant in her representations made in succession dated 02.04.2007, 11.04.2007, 09.05.2007 and 04.07.2007 disclose that the petitioner named only Sri. P. Satya Murthy, Advocate, to be appointed as Special Public Prosecutor. The fact that the de facto complainant, cannot name a person of her choice, to act as Special Public Prosecutor, was highlighted by the Director of Prosecutions, in his opinion sent by him to respondent No. 1 -Government vide letter dated 30.04.2007 when his remarks were called for by respondent No. 1, and the same reads thus:
I invite the attention of the Government to the reference cited while enclosing a copy of representation dated -3-2007 of Smt. Reena Sadana w/o Jasbeer Singh Sadana, Government have requested me to furnish my remarks in the matter.
It is stated that Govt., in their Memo No. 11786/Cts. A2/2005-1, dated 13.05.2005, while rejecting the application of the applicant therein to appoint a Spl. Public Prosecutor for conduct a case such request cannot be considered without cogent reasons. The said view was expressed basing on the decision reported in D. Seshagiri Rao v. Govt. of A.P. 2004 Crl. L.J. 52 wherein it was stated that the office of Public Prosecutor is a unique in its nature and status and it cannot be permitted to be controlled by, or slipped into the hands of private individual.
In this instant case, the case is not committed to Court of Sessions and not numbered. There is no cogent and specific reasons to appoint a Spl. Public Prosecutor. Request can be made by a complainant. However, it shall not be open to complainant to name a person of her choice. Whether it is necessary or not to appoint a Special Public Prosecutor is within the discretion and prerogative of the State.
32. However, the Director of Prosecutions, again in response to the remarks called for by respondent No. 1-Government vide their Memo dated 11.07.2007, sent his remarks vide letter dated 18.07.2007, and they read thus:
With reference to the subject cited above, I am to state that the Government of Andhra Pradesh have called for my remarks on the representation given by Smt. Reena Sadana dated 20.04.2007 and in reply to that dated 30.04.2007 in letter No. 563/A2/2007, I expressed my opinion that it was not the stage to consider the application as by then the case was not committed to the Sessions Court.
As it appears, it is a grave offence and feud involved between the families of the deceased and the accused, who are own brothers involved huge property leading to civil dispute also and further at the relevant point of time the incident attracted attention of media, press and the public due to ghastly nature of the incident and also the relationship between the accused and the deceased. Since the wife of the deceased is keen to have special public prosecutor on the hope that he would do more exercise and labour on the case as he will have much time to spare to prepare the case, I feel it is desirable to consider the request of the de facto complainant.
33. From the above, it is clear that respondent No. 1 -Government have appointed Sri. P. Satya Murthy, Advocate, as Special Public Prosecutor, on the request made by the de facto complainant. The said appointment, admittedly, has been made on the basis of the opinion of the Director of Prosecutions. In the matter of appointment of Public Prosecutors/Additional (sic. Special) Public Prosecutors/Additional Public Prosecutors, as the case may be, the procedure as contemplated under Section 24 of the Code, has to be followed. The said provision, nowhere requires the Government to obtain opinion of the Director of Prosecutions while making appointments. The learned Government Pleader for Home except stating that the Government have issued the impugned G.O. appointing Sri. P. Satya Murthy, Advocate, as Special Public Prosecutor, in exercise of power under Section 24(8) of the Code, have not produced any material to show that the opinion of the Director of Prosecutions, is to be taken before making any appointments and that the procedure contemplated under Section 24(4) and (5) of the Code has been dispensed with. Though Sub-section (8) of Section 24 of the Code, provides the qualification of standing at the bar for appointment of Special Public Prosecutor thereunder, the fact remains, in the matter of making such appointment, the procedure as contemplated under Section 24(4) and (5) of the Code, has to be followed, which in clear and crystal terms states that the District Magistrate shall make consultations with the District and Sessions Judge, and prepare panels, and only one of the persons whose name finds in the panel, has to be appointed as Public Prosecutor/ Additional Public Prosecutor/Special Public Prosecutor, as the case may be. Admittedly, in the appointment of Sri. P. Satya Murthy, Advocate, as Special Public Prosecutor, the said procedure has not been followed.
34. The fact that the Government cannot act at the instance of a particular individual, and such action, would not be in the public interest, was considered by this Court in Devineni Seshagiri Rao v. Government of Andhra Pradesh (6 supra). In the said case, this Court following the judgment of this Court in D. Brahmanandam v. State of A.P. (2 supra) and of the apex Court in Mukul Dalai v. Union of India (1 supra), and various other judgments, held as follows:
The office of the Public Prosecutor is unique in its nature and status and it cannot be permitted to be controlled by or slipped into the hands of private individuals. Request can certainly be made by a complainant in a given case for appointment of Special Public Prosecutor. However, it shall not be open to the complainant to name a person of his/her choice for such appointment. No doubt, the question as to whether or not it is necessary to appoint a Special Public Prosecutor in a case and if so the person to be appointed as such shall be within the discretion and prerogative of the State. But the State cannot act at the instance of an individual. The exercise and the conclusion arrived at in this regard are required to be evident from the order of appointment itself and they cannot be inferred from silence or supported by remarks in the note files.
35. In Madho Singh and Anr. v. State of Rajasthan 2002 Crl. L.J. 1694 (Rajasthan), the Rajasthan High Court considered the question as to whether Special Public Prosecutor can be appointed at the instance of the complainant on the ground that the Public Prosecutor appointed in the Court was preoccupied with pending work. The Rajasthan High Court observed that such appointment can be made only when public interest so demands, held as follows:
The appointment of a Public Prosecutor cannot be made automatically on the application of the complainant. There have to be special reasons which should be recorded in writing as to why deviation from the General Rule is made appointing the Special Public Prosecutor. The application has to be properly examined by the authority and on being satisfied on the basis of the material on record, the special Public Prosecutor can be appointed. Without application of mind, if an order is passed, it may amount to arbitrariness. Such appointment can be made only when public interest so demands.
There can be no quarrel with the settled legal proposition that even in administrative matters, 'State action must be informed by reasons' as it follows that an 'act uninformed by reasons is arbitrary'. Authority is not permitted to take any irrelevant or irrational factor into consideration or appear arbitrary in its decision. 'Duty to act fairly' is part of fair procedure envisaged under Articles 14 and 21 of the Constitution. Every State action must be received and guided by the public interest.
36. A Division Bench of the Madhya Pradesh High Court in Sunil Kumar v. State of M.P. 1992 MPLJ 772 (M.P.) (D.B.), held that only in exceptional cases and for reasons to be recorded, the State Government can exercise its powers under Section 24(8) of the Code and appoint a Special Public Prosecutor. The Court was also of the opinion that the appointment order did not disclose any reasons for appointment of the Special Public Prosecutor and the order further read that the Government would not pay any fee to the Special Public Prosecutor would show that the Special Public Prosecutor was appointed not for any necessity, but just to please and satisfy the relations of the deceased. The Court was also of the opinion that a Special Public Prosecutor cannot be appointed just for the sake of making, but the order must stand on a proper foundation.
37. Since respondent No. 1-Government issued the impugned G.O. appointing Sri. P. Satya Murthy, Advocate, as Special Public Prosecutor, at the instance of the de facto complainant who has been named by her, and such appointment having been made without consulting the District Sessions Judge, as is required under the provisions of Section 24 of the Code, I am of the considered opinion that respondent No. 1 was not justified in issuing the impugned G.O. and the same is liable to be set aside. Accordingly, question No. 4 is answered.
38. Before parting with the judgment, I would like to place on record, the displeasure of the Court about the manner and conduct in which the regular Public Prosecutor appearing in the Metropolitan Sessions Court, who has been arrayed as respondent No. 3 in W.P. No. 21851 of 2007, sought to assail the impugned G.O. contending that in the appointment Sri. P. Satya Murthy as Special Public Prosecutor, he is facing embarrassment, and that the said appointment has cast a doubt on his capacity to deal with the case.
39. Even though, I am setting aside the impugned G.O., but having regard to the conduct of the present Public Prosecutor, I am the considered opinion that it would not be proper to entrust the case to him, and direct respondent No. 1 -Government to entrust this case to any other Public Prosecutor, who is working in the City Criminal Courts or to appoint any Special Public Prosecutor after following the procedure as contemplated in Section 24 of the Code, particularly Sub-sections (4) and (5) thereof, as expeditiously as possible, preferably within a period of four weeks from the date of receipt of a copy of this order.
40. Accordingly, the writ petitions are allowed and the impugned G.O. is set aside with directions as above. No costs.