Gujarat High Court
Dhirubhai Kalabhai Singhal vs State Of Gujarat & 2 on 1 December, 2014
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/824/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 824 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the
Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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DHIRUBHAI KALABHAI SINGHAL....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR HRIDAY BUCH, ADVOCATE for the Applicant(s) No. 1
MS ANUJA S NANAVATI, ADVOCATE for the Respondent(s) No. 3
MS. HANSA PUNANI, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 01/12/2014
CAV JUDGMENT
1. By this writ application under Article-226 of the Constitution of India, the petitioner- original accused of the offence of murder seeks to challenge the order dated 29th January, 2014 passed by the learned Sessions Judge, Junagadh below Exh.7 in Sessions Case No.61/2012 as well as the resolution/order dated 2nd July, 2012 passed by the respondent no.2 State Government appointing Shri D.R. Karkar as the Page 1 of 33 R/SCR.A/824/2014 CAV JUDGMENT Special Public Prosecutor in the Sessions Case No.61/2012.
2. The facts giving rise to this writ application may be summarized as under :-
2.1 On 16th May, 2012, a First Information Report was lodged by one Dhirubhai Sarmanbhai Sutreja against the petitioner herein and one other person of the offence of murder punishable under Sec. 302 of the Indian Penal Code. The First Information Report was lodged on the very same date of the incident i.e. 16th May, 2012. The case of the prosecution is that the petitioner herein along with a co-accused intercepted the brother of the first informant, namely, Sarmanbhai (deceased) with the intention to commit his murder. When the deceased tried to make good his escape, the accused persons ran after him and inflicted injuries on the body of the deceased with knives within the precincts of an Orthopedic Hospital of one Dr. Lakhani.
2.2 The accused persons were arrested. On conclusion of the investigation charge-sheet was filed of the offence of murder. The case was committed to the Court of Sessions and the same was registered as Sessions Case No.61/2012. The sessions case is pending for trial. It appears that the original first informant i.e. the brother of the deceased appeared through his advocate Shri Dipendra Desai. The learned Trial Judge granted permission to the first informant to engage his advocate in support of the case of the prosecution. In short the Trial Judge seems to have permitted the advocate of the first informant to watch the proceedings and assist the Public Prosecutor.
2.3 It also appears that thereafter the brother of the deceased requested the State Government that having regard to the serious nature of the offence a Special Public Prosecutor be appointed to Page 2 of 33 R/SCR.A/824/2014 CAV JUDGMENT conduct the sessions trial. The State Government seems to have accepted the request of the brother of the deceased and vide order dated 2nd July, 2012 appointed Mr.Dahyabhai R. Karkar as a Special Public Prosecutor in exercise of powers under sub-Sec. 8 of Sec. 24 of the Code of Criminal Procedure,1973.
2.4 The petitioner herein being aggrieved by such appointment of a Special Public Prosecutor filed an application Exh.7 praying to quash and set aside the order passed by the State Government dated 2 nd July,2012. The learned Sessions Judge, Junagadh vide order dated 29th January, 2014 rejected the application.
2.5 The petitioner, therefore, has come up with this application.
3. Submissions on behalf of the petitioner :
3.1 Mr. Hriday Buch, the learned advocate appearing on behalf of the accused vehemently submitted that the State Government has passed a resolution dated 18/6/2012 laying down certain guidelines to be followed for the purpose of making appointment of a Special Public Prosecutor in the State of Gujarat. According to the said guidelines, no such appointment of the Special Public Prosecutor shall be made unless cogent reasons are recorded by the Legal Secretary and Remembrancer about his satisfaction as to the necessity of the appointment. Mr.Buch submits that no such reasons are found on plain reading of the impugned order.
3.2 Mr. Buch submits that the appointment of a Special Public Prosecutor can be made only if public interest demands and not on just a request made by the complainant. He further submits that all crimes are serious as they are against the society at large. There is nothing special about the present Sessions Trial.
Page 3 of 33 R/SCR.A/824/2014 CAV JUDGMENT3.3 Mr.Buch submits that without any application of mind and valid justification the State Government has passed an order of an appointment of a Special Public Prosecutor. He further submits that it is not even the case of the State Government that the regular public prosecutor is not competent or fit enough to conduct a trial. If that be so, then without any cogent and justifiable grounds, the State Government ought not to have appointed a Special Public Prosecutor. The status of the deceased or his high profile personality is no ground for appointment of a Special Public Prosecutor.
3.4 In such circumstances Mr.Buch submits that the petition deserves consideration and the order of the State Government appointing Mr.Karkar as a Special Public Prosecutor be quashed.
4. Submissions on behalf of the State Government :
4.1 Ms. Hansa Punani, the learned A.P.P. appearing on behalf of the State, has vehemently opposed this petition. Ms. Punani submits that no prejudice worth the name could be said to have been caused to the accused by appointment of a Special Public Prosecutor.
Therefore, the accused has no right or locus to challenge the resolution passed by the State Government for appointment of a Special Public Prosecutor. Ms. Punani further submits that the State Government after being satisfied that the appointment of a Special Public Prosecutor would be necessary, the impugned order was passed.
In such circumstances, Ms. Punani therefore, prays that there being no merit in this petition, the same deserves to be rejected.
5. Submissions on behalf of the respondent no.3 - original First informant:
Page 4 of 33 R/SCR.A/824/2014 CAV JUDGMENT5.1 Mr. S.I.Nanavati, the learned Senior Advocate appearing on behalf of the original first informant has also vehemently opposed this petition. Mr.Nanavati submits that the order passed by the State Government appointing a Special Public Prosecutor is an administrative order. He submits that the scope of judicial review of an administrative order is extremely limited and the case in hand is not one where any interference is called for.
5.2 Mr.Nanavati further submits that the Court cannot be called upon to undertake the Governmental duty and function. The court should not ordinarily interfere with a policy decision of the State.
5.3 Mr.Nanavati further submits that no prejudice could be said to have been caused to the Accused if the State Government has thought fit to appoint a Special Public Prosecutor to conduct the Sessions Trial. Mr.Nanavati, therefore, submits that there being no merit in this petition, the same deserves to be rejected.
5.4 Mr.Nanavati, the learned Senior Advocate appearing on behalf of the first informant, has placed strong reliance on the following decisions :
i) State of Maharashtra & ors. Vs. Prakas Prahallad Patil & others
- AIR 2010 SC -463.
ii) Lalji alias Lalo Chhaganbhai Dabhi Vs. State of Gujarat & others
- 2013(1) G.L.R. -452.
iii) Amrutbhai Bholidasbhai Patel Vs. State of Gujarat 2001(1) G.L.H. -317.
Analysis:
6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration in this petition is whether the appointment Page 5 of 33 R/SCR.A/824/2014 CAV JUDGMENT of a Special Public Prosecutor by the State Government warrants any interference.
7. Before adverting to the rival submissions canvassed on either sides, I deem it necessary to look into the impugned order. The order dated 2nd July, 2012 in the form of a Resolution issued by the Legal Department of the State Government reads as under :
"Appointment of Mr. D. R. Karkar, Advocate as a Special Public Prosecutor for conducting the cases arising out of Junagadh B Division Police Station I.C.R. No.114/2012 at Junagadh.
GOVERNMENT OF GUJARAT Legal Department, Resolution No.apt/332012/VIP/34/H, 4, Sardar Bhavan, Sachivalaya, Gandhinagar.
Dated the July 2, 2012.
RESOLUTION :-
In exercise of the powers conferred by Sub-Section (8) of Section 24 of the Code of Criminal Procedure, 1973 (II of 1974) the Government of Gujarat is pleased to appoint Mr. Dayabhai R. Karkar, Advocate as a Special Public Prosecutor for conducting the cases arising out of Junagadh B Division Police Station I.C.R.No.114/2012 at Junagadh.
The terms and conditions decided later on :-
1. He shall be liable to report about the progress of the cases from time to time..
2. He shall have to send the certified copy of the judgment/order along with his opinion to Legal Department and concerned Department..
By order and in the name of the Governor of Gujarat.
Sd/-
( B. G. Dave ) Deputy Secretary to Government, Legal Department"
Page 6 of 33 R/SCR.A/824/2014 CAV JUDGMENT8. It also appears from the materials on record that the State Government has framed some guidelines to be followed for the appointment of a Special Public Prosecutor in the State of Gujarat. Such guidelines are as under :
"Guidelines to be followed for the appointment of Special Public Prosecutor/s in the State of Gujarat.
GOVERNMENT OF GUJARAT Legal Department, Resolution No.LOR/102012/4/h 4, Sardar Bhavan, Sachivalaya, Gandhinagar.
Dated the 18th June, 2012
Read: (i) Section 24(8) of the Code of Criminal
Procedure, 1973
(ii) Sanction by Government in File No. APJ-332004-
1032-H
(iii) Orders passed by Hon'ble High Court of Gujarat in Special Criminal Applications No.8 of 1971
(iv) Orders passed by the Hon'ble High Court of Gujarat in Special Criminal Application s No. 705/2004 RESOLUTION :
The Government of Gujarat is hereby pleased to frame the following guidelines to be taken into consideration at the time of appointment of Special Public Prosecutors in the criminal matters w.e.f. 1-4-2012.
1. The Government in Legal Department, either suo motu or on the request of any aggrieved party or the concerned department in the government may engage an advocate who has been in practice as an advocate for not less than ten years; and having regard to his general repute, legal acumen and suitability, by appointing him as a Special Public Prosecutor in any criminal case or class of cases, as the case may be;Page 7 of 33 R/SCR.A/824/2014 CAV JUDGMENT
Provided that, no such order regarding appointment of Special Public Prosecutor shall be made unless, for reasons to be recorded in writing by the Remembrancer of Legal Affairs about his satisfaction as to the necessity of such appointment, having regard to the nature of the case and gravity of the matter.
2. On the request of a private complainant not being the aggrieved party, the Government in Legal Department may appoint any of the Public Prosecutors or Additional Public Prosecutors as a Special Public Prosecutor in accordance with the provision of para (1) above, for conducting any such case or class of cases.
3. Fees of such Special Public Prosecutor, appointed under para (1) or para (2) above, may be borne by the Government as per Law Officers' Rules or the aggrieved party or the private complainant, as may directed by the Government.
Provided that in cases where the aggrieved party is a Bank or an Institution or Trust or the like, the fees shall be borne by such aggrieved party..
Provided further that, the amount of fees to be paid to such Special Public Prosecutors, shall be deposited with the government in the Legal Department and the same shall be paid to by the Government to such Special Public Prosecutor on completion of the trial, unless directed otherwise by the Government.
4. Every proposal received for appointment of Special Public Prosecutor from the applicant or complainant, any Government Department or otherwise shall be scrutinized by the Legal Department considering the aspects of gravity of offence, impact on society of the offence and necessity to appoint Special Public Prosecutor.
5. Such proposals can be referred to the Home Department also for its opinion as to the requirements of appointment of Special Public Prosecutor.
6. Notwithstanding anything contained in the above stated guidelines, the State Government shall be able to appoint any advocate as Special Public Prosecutor looking to the urgency, seriousness of the case as the Government may think fit. In such cases, the appointment may be made dispensing with the above said guidelines.
By order and in the name of Governor of Gujarat, Page 8 of 33 R/SCR.A/824/2014 CAV JUDGMENT Sd/-
( B.G.Dave ) Deputy Secretary Legal Department"
9. When this matter was taken up for hearing in the first instance, I noticed that the resolution dated 2/7/2012 was bereft of any reasons for the appointment of a Special Public Prosecutor. In such circumstances, I was left with no other option but to direct the State Government to produce the original file maintained by them in connection with the subject matter. The original file was made available for my perusal. On perusal of the original file, I found that the first informant had addressed a representation dated 26/6/2012 to the Hon'ble the then Law Minister Shri Dilipbhai Sanghani. In the representation it has been stated as under:-
i) On 16/5/2012 at around 6 O'clock in the evening Mohanbhai Sarmanbhai Sutreja - male aged 45 was stabbed to death in a buzzing market by the accused persons.
ii) The deceased with a view to save his life had tried to take shelter in a orthopedic hospital of Dr. M.M. Lakhani and the injuries were inflicted within the precincts of the said hospital.
iii) The deceased was a former President of the Municipality.
iv) The deceased was also the Secretary of Taluka Bakshi Panch Cell.
v) The deceased was a very popular person in the area.
vi) The deceased was living a very active public life.
vii) The deceased was a very good and active worker of the Bhartiya Janata Party.
viii) The accused persons are hardcore criminals.
ix) They are a nuisance to the society and are in the habit of extorting money in property disputes.
x) The security of a common man is at peril on account of the anti-social activities of the accused persons.Page 9 of 33 R/SCR.A/824/2014 CAV JUDGMENT
In the last part of the representation it has been stated that for the reasons aforesaid Shri D.R.Karkar, advocate be appointed as a Special Public Prosecutor to conduct the trial.
10. It appears that the then Law Minister on the left hand side of the representation with his own hand-writings put an endorsement that the Secretary, Legal Department shall consider the facts stated in the representation and appoint Shri D.R. Karkar as the Special Public Prosecutor.
11. It appears that pursuant to such endorsement put by the then Law Minister on the representation of the first informant, the Personal Secretary to the Law Minister on the very same day i.e. on 26/6/2012 addressed a letter to the Legal Secretary, Legal Department for the appointment of Shri D.R. Karkar as the Special Public Prosecutor. The Personal Secretary, along with his letter also annexed the representation preferred by the first informant containing the endorsement put on the same by the Law Minister.
12. It appears that thereafter a small note was prepared in that regard and ultimately the same resulted in passing of the impugned resolution.
13. A Special Public Prosecutor can be appointed under S. 24(8) of the Code of Criminal Procedure, 1973 (for short 'the Code'). The Code does not lay down in specific terms the conditions for appointment of a Special Public Prosecutor. But the scheme of S. 24 would unmistakably reveal that a Special Public Prosecutor can be appointed only in special circumstances.
14. Section 24(3) of the Code casts an obligation on the State to appoint a Public Prosecutor in every district. Sub-Section confers a Page 10 of 33 R/SCR.A/824/2014 CAV JUDGMENT discretion on the Government to appoint Additional Public Prosecutor for the district. A Public Prosecutor can be appointed only from a panel of names prepared by the District Magistrate. While preparing a panel, the District Magistrate concerned is under obligation to consult the Sessions Judge concerned in order to form the opinion whether a particular person is fit to be appointed as Public Prosecutor or Additional Public Prosecutor. It is specifically made clear that unless a person has put in practice as an advocate for seven years, he is not eligible to be appointed. A District Magistrate is obliged to consult the Sessions Judge because it is the Sessions Judge who has better opportunities to assess the merits and capabilities of an advocate. His view on the person, therefore, acquires considerable weight to help the District Magistrate in preparing the panel. A District Magistrate is not supposed to delete a person recommended by the Sessions Judge from the panel, nor could the District Magistrate include a name which has not been recommended by the Sessions Judge. Consultative process envisaged in the provision cannot be made a mere formality. So much statutory trammels are provided in the appointment of a Public Prosecutor and Additional Public Prosecutor. This is because the office of a Public Prosecutor carries very great public importance in the scheme of criminal trials in. Sessions Courts.
15. A special feature of the administration of justice in the field of criminal law in India is that an accused before a Sessions Court is conferred with a privilege that the case against him can be prosecuted only by a Public Prosecutor. This is reflected in the mandate contained in S. 225 of the Code. There is no exception to this rule. Any private counsel engaged by the injured, or any advocate briefed by the relatives of the deceased, however influential they may be, is not entitled to conduct the prosecution in Sessions Courts. This system is the glaring acknowledgment of the special status and position which the office of Public Prosecutor is expected to wield in our legal system. Public Prosecutor is defined in S. 2(u) of Page 11 of 33 R/SCR.A/824/2014 CAV JUDGMENT the Code as "any person appointed under S. 24, and includes any person acting under the directions of a Public Prosecutor." Thus, a Special Public Prosecutor also would be a Public Prosecutor in respect of the particular case or class of cases for which he is appointed. The powers conferred on him are seemingly so wide and unfettered that Parliament reposed confidence of great magnitude in the office a Public Prosecutor. The definition clause further indicates that a person once appointed as a Public Prosecutor can even make another public prosecutor for many practical purposes if the latter would act under the directions of the former. It is the Public Prosecutor who shall open his case by describing charge brought against the accused. It is the Public Prosecutor who is empowered to file a complaint in writing before the Sessions Court alleging that an offence falling under Chapter XXI of the Indian Penal Code has been committed against the President of India or the Vice-President of India or the Governor of a State or the Administrator of a Union territory or a Minister of the Union of a State or of a Union territory or any other public servant in respect of his conduct in discharge of public functions (vide S. 199 of the Code). Then again, it is on a Public Prosecutor the absolute discretion is conferred to decide whether a case should be withdrawn from the prosecution or whether any person either generally or in respect of any one or more of the offences for which he is tried should be withdrawn from prosecution (vide S. 321 of the Code). Thus, special status and position as well as great powers have been conferred on the office of Public Prosecutor. Every Public Prosecutor must remind himself constantly of this enviable position of trust and responsibility.
16. It is in the aforesaid background that the power conferred on the Government to appoint a Special Public Prosecutor needs be understood. Section 24(8) of the Code reads thus :
"The Central Government or the State Government may Page 12 of 33 R/SCR.A/824/2014 CAV JUDGMENT 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."
The philosophy involved which can be discerned from the Sub- Section is two-fold. First is that there should be special circumstances for making such appointment. Second is that, when a situation arises for appointing a Special Public Prosecutor, Government shall consider a more experienced advocate for the assignment. Though circumstances may differ in different situations, the very idea behind conferment of the power is to meet special situations. In other words, a Special Public Prosecutor is not to be appointed in ordinary circumstances. Phat, J. (as His Lordship then was) has pointed out in Narayanakutty v. State of Kerala, 1982 Ker LT 605: (1982 Cri LJ 2085) that "Special Public Prosecutor could be appointed only when public interest demands it and not to vindicate the grievances of a private person, such as close relation of the deceased."
17. There is a clear distinction between a private counsel engaged to assist a Public Prosecutor and Private Counsel, who has been appointed as a Special Public Prosecutor by the State. In the later case, he is a Public Prosecutor because he has been appointed as such while in the former case he is a Public Prosecutor because he has been acting under the direction of a Public Prosecutor.
18. The Supreme Court in the case of Mukul Dalal v. Union of India reported in, (1988) 3 SCC 144 has held that the request for appointment of a Special Public Prosecutor should be properly examined by the Remembrancer of Legal Affairs on the basis of guidelines prescribed or to be prescribed and only when he is satisfied that the case deserves the support of a Public Prosecutor or Page 13 of 33 R/SCR.A/824/2014 CAV JUDGMENT a Special Public Prosecutor that such a person should be appointed to be incharge of the case. There may be instances where a case instituted on a private complaint is really a public cause. In such a case the prosecution though initiated by a private individual is really one which should be taken over by the State. There may also be cases of private complainants where for various other reasons it would be appropriate for the State to support the prosecution by appointing a Public Prosecutor or a Special Public Prosecutor to look after the case. Similarly there may be cases where a powerful 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. Therefore, 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. The primacy given to the Public Prosecutor under the scheme of the Code has a social purpose and the same would be lost if the procedure adopted by Rule 22 of Maharashtra Rules is accepted.
The Remembrancer of Legal Affairs should also scrutinise request of private complainants for making payments to the Special Public Prosecutors by them and decide in which cases such request should be accepted, keeping in view the prescribed guidelines and the facts of such case. 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 case where the Special Public Prosecutor's remuneration may be collected from the private source, such as where the prosecutor is a public sector undertaking, a bank whether nationalised or not, an educational institution and the like. The rate of fees should be prescribed and the private complainant should be called upon to deposit the fees either with the Remembrancer of Legal Affairs or a prescribed State agency from where the fees would be drawn by the Special Public Prosecutor.
Page 14 of 33 R/SCR.A/824/2014 CAV JUDGMENTTo leave the private complainant to pay to the Special Public Prosecutor would indeed not be appropriate.
19. A learned Single Judge of the Karnataka High Court in the case of K. V. Shiva Reddy Vs. State of Karnataka and others reported in 2005 Cr.L.J. - 3000 has very succinctly discussed the status and responsibilities of a Special Public Prosecutor.
25. Point Nos. (1), (2) and (3):-
STATUS The word "Public Prosecutor" has been defined under the Code. Section 2(u) of the Code states that "Public Prosecutor" means any person appointed under Section 24 and includes any person acting under the directions of Public Prosecutor. Therefore, the word Public Prosecutor includes Public Prosecutor, Additional Public Prosecutor, Special Public Prosecutor and a Pleader instructed by a private person under Section 301(2) of the Code. The office of the Public Prosecutor is a public one. He is a public servant. Special status and position as well as great powers have been conferred on the office of Public Prosecutor. Under the Criminal Procedure Code, the Public Prosecutor has a special status and his is a statutory appointment. Under some of the provisions made in the code, he receives special recognition. Sections 199(2), 225, 301(1), 301(2), 302, 308, 321, 377 and 386 are some of the provisions in the Code which confer a special position upon the Public Prosecutor. He is a part of the judicial system. He is an officer of the Court and must act independently and in the interests of justice. The primacy given to the Public Prosecutor under the scheme of the Code has a social purpose. The office of the Public Prosecutor involves duties of public nature and of vital interest to the public. In criminal cases the State is the Prosecutor. The State by Public Prosecutor is the party and not the complainant. The Prosecutor is bound by law and professional ethics and by his role as an officer of Court to employ only fair means. Public Prosecutor must remind himself constantly of his invisible position of trust and responsibility.
RESPONSIBILITIES :-
26. A Public Prosecutor is not expected to show a thirst to Page 15 of 33 R/SCR.A/824/2014 CAV JUDGMENT reach the case in the conviction of the accused somehow or the other irrespective of the true facts of the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court to the investigation 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, the Public Prosecutor has the added responsibility to bring it to the notice of the Court, if it comes to his knowledge.
27. It is an office of responsibility more important than many others because the holder is required to prosecute with detachment on the one hand and yet with vigour on the other. An upright Public Prosecutor has no friends and foes in Courts. He has no prejudices, preconceived notions, bias, hostility or his own axe to grind. He represents public interest. He has no client or constituency apart from the State. He is above the personal loyalty. He does not have a dual capacity. He has to safeguard public interest in prosecuting the case. Public interest also demands that the trial should be conducted in a fair manner, heedful of the rights granted to the accused under the laws of the country including code. It is no part of his obligation to secure conviction of an accused in any event or at all costs. Nor is he intended to play a partisan role or become party to the persecution of the accused or lend support, directly or indirectly to a denial of justice or of a fair trial to the accused.
SPECIAL PUBLIC PROSECUTOR :-
28. Section 24 of the Code confers unfettered power on the Central Government and the State Government to appoint a Special Public Prosecutor for purposes of any case, if the person so appointed satisfies the qualification laid down in sub- section (8).Once a person is appointed as a Special Public Prosecutor, he would be the "Public Prosecutor" within the meaning of Section 2(u). Therefore, all rules applicable to the Public Prosecutor equally applies to the Special Public Prosecutor.
29. Merely because the Central and State Government has the power to appoint for the purposes of any case or class of cases a Special Public Prosecutor that power cannot be exercised, mechanically without any reason, as a rule. There must be some justifiable reason to dislodge the Public Prosecutor and Page 16 of 33 R/SCR.A/824/2014 CAV JUDGMENT for requisitioning the assistance of an experienced Advocate for the case. The record must disclose the existence of circumstances which warrants such appointment, application of mind to such material and recording such reasons for such appointment. Reasons are the links between the material, the foundation for these erections and the actual conclusions. They would also administer how the mind of a maker was activated and actuated and these rational nexus and synthesis with the facts considered and the conclusions reached, rest it may not be arbitrary, unfair and unjust, violate Article 14 or unfair procedure offending Article 21. When wide discretionary power is conferred, the Government must exercise the power in a most reasonable manner in accordance with the spirit of the statute and in public interest."
20. The Special Public Prosecutor in my opinion could be appointed only when the public interest demands. There should be special circumstances warranting such appointment. A Special Public Prosecutor cannot be appointed with a view to secure conviction at all costs. As observed by the learned Single Judge in K.V. Shiva Reddy (supra.) the said office should not be permitted to be de-generated into a legalized means for wreaking for private vengeance. A Special Public Prosecutor could be appointed at the request of the complainant or the victim also. As a rule, such a request should not be accepted and appointment made. The accused and the victim are not at par and the criminal trial is not a forum for personal vengeance. It is essentially the State action to punish the crime. When a request is made for appointment of a private counsel as a Special Public Prosecutor, the Government should be satisfied that the case deserves the support of a Special Public Prosecutor, and that such a person could be appointed to be In-charge of the case. The satisfaction of the Government should be evident by the materials on record, the reasons for such appointment, which is reduced in writing, to have transparency in the matter and to negate any malafides that may be attributed to the Government. It falls within the realm of administrative law and there is a duty cast on the Government to act fairly, justly and reasonably. In this type of matters it is the process Page 17 of 33 R/SCR.A/824/2014 CAV JUDGMENT of decision making rather than the decision itself. [Vide K.V.Shiva Reddy (Supra.) ].
21. As observed by Dipak Misra, J. (as His Lordship then was) in Punam Chand Jain Vs. State of M.P. - 2001 Criminal Law Journal - 3133 that the opinion of the State Government that the crime is a heinous one is not a justifiable and reasonable ground for appointment of a Special Public Prosecutor. His Lordship further observed that the tension and pressure of media would also not be germane to the issue.
22. It is so manifest that what weighed with the then Hon'ble Minister was the fact that the deceased was a known personality, an active worker of the Bhartiya Janata Party and was quite popular in his constituency. The request can certainly be made by a complainant, in a given case if public interest demands for the appointment of a Special Public Prosecutor. However, it shall not be open to the complainant to name a person of his choice for such appointment. The question is 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. The State should not surrender its discretion to the choice of a complainant. The exercise, and the conclusions arrived at in this regard, are required to be evident from the order of the appointment itself. They cannot be inferred from the silence or some supportive remarks in the note files. Since the impugned resolution is absolutely bereft of any reasons, I was left with no other option but to call for the original file and peruse the same for my satisfaction. I have already discussed what was noticed by me on perusal of the original file.
23. The Criminal Procedure Code in empowering the State Government to appoint a Special Public Prosecutor under Sec. 24(8) has not given any guidelines for making such appointments. From Page 18 of 33 R/SCR.A/824/2014 CAV JUDGMENT the catena of the decisions of the Supreme Court and various other High Courts, it is, settled that the Special Public Prosecutor should not be appointed on mere asking of the complainant. Such appointment, resulting in ouster of the regularly appointed public prosecutor creates feeling of distrust and thereby demoralizes the Public Prosecutor as a class. It also in another way results in encouraging complainant to make efforts to secure conviction of the accused at all costs. The role of a Public Prosecutor is different from the role of a counsel or advocate engaged by a party. The Public Prosecutor has to place the evidence collected by the prosecution dispassionately and in a disinterested manner to serve the larger interest of the community. He has not to prosecute the case with a view to achieve conviction of the accused at all costs. In his role as a Public Prosecutor, he represents the State in the administration of the criminal justice, he appears for and on behalf of the whole society, because a crime is treated to be an offence not against the individual but against the community as a whole in which the individual is merely a victim. The Court has, however, to guard against a criminal trial being converted into an individual contest between the accused and the complainant.
24. I am conscious of the fact that with a few recent amendments in the Code of Criminal Procedure, the legislature has thought fit to provide provisions for the effective protection and participation of the victim of the crime, but not at the stage of a criminal trial. If the accused is acquitted at best the original informant gets a right to file an acquittal appeal which otherwise only, the State has the right to file against such order of acquittal under Sec. 378 of the Code of Criminal Procedure. Keeping such aspects in view, the Court should examine the validity of the appointment of a Special Public Prosecutor on the given facts and circumstances. I once again reiterate that the Special Public Prosecutor can be appointed only for very special and strong reasons I do not find any such strong or Page 19 of 33 R/SCR.A/824/2014 CAV JUDGMENT special reasons for conduct of the trial through a Special Public Prosecutor. Take for instance, the same accused persons would have committed the murder of a poor man, a son, of a widowed mother who is not capable to approach the State Government, then whether in such circumstances the State Government would have thought fit to appoint a Special Public Prosecutor. Only because the complainant is capable and powerful enough to approach the State Government and is able to persuade the concerned Minister of the Department, the appointment should not be made in a routine manner. Let me believe for the moment that the accused persons are hardcore criminals, they are a menace to the society, but should such grounds by alone are sufficient to appoint a Special Public Prosecutor. In my view the answer has to be in the negative. What seems to have weighed with the State Government is not that the accused persons are hardcore criminals and committed a gruesome crime, but what has weighed with the Government is the fact that the deceased was a big shot. For the State Government all its subjects are equal. There should not be any discrimination between a poor victim and a rich victim. All victims are the same and all crimes are against the society.
25. I may quote with profit a decision of the Rajasthan High Court in the case of Madho Singh Vs. State of Rajasthan 2002 Criminal Law Journal 1694. The Court, through B.S. Chauhan, J. (as His Lordship then was), made the following observations:-
"28. Thus, it is evident from the above that as the crime is always committed against the society/State, though individual is the victim, State has the sole responsibility to investigate and bear the burden of investigation and trial, and financial burden cannnot be shifted fully or partially on the complainant.
29. The instant case requires consideration in view of the aforesaid proposition of law. The original record has been summoned from the State and it appears that an application had been filed by one Shri Rughunath Singh on 18 2001 that his brother had been murdered by the accused Narpat Singh and Sawal Singh on 1052010 and Shri J. S. Choudhary, respondent No.3 be appointed as an Additional Public Prosecutor. The Public Prosecutor appointed in the court is preoccupied with the work pending in the Court and this may cause unnecessary delay in the trial. The application further provided that in case Mr.J. Page 20 of 33 R/SCR.A/824/2014 CAV JUDGMENT S. Choudhary respondent No. 3 is appointed as an Additional Public Prosecutor, the applicant would bear the expenses. Application had been made to the law Secretary yet on the same day i.e. 182001, the order has been passed by the Hon'ble Law Minister that application for appointment of Special Public Prosecutor be allowed. In pursuance of the said order, the appointment letter has been issued on 1392001. There is nothing on record to show that the Law Secretary has applied his mind or any authority has recorded any reason showing that there has been application of mind while considering the said application. Shri R. L. Jangid, learned Additional AdvocateGeneral has fairly conceded that there is no Circular/policy decision taken by any authority for providing the guidelines for making appointment of a Additional Public Prosecutor.
30. Thus, in view of the above, the following inescapable conclusions are arrived:
(i) The State had never taken the policy decision provided for guidelines for appointment of a Special Public Prosecutor;
(ii) The application was filed by the complainant on 1st August, 2001 in the name of the Law Secretary. However, the Hon'ble Law Minister passed an order to allow the said application and appoint the Special Public Prosecutor on the same date i.e. 182001. The order completes only in one sentence;
(iii) In pursuance of the said order passed by the Hon'ble Minister, the impugned order of appointing respondent No. 3 as a Special Public Prosecutor has been made on 1392001.
(iv) No reasons have been recorded by any authority while making the appointment of Special Public Prosecutor in the instant case;
(v) There is nothing on record to show whether any statutory authority had applied its mind while making the appointment.
(vi) Application has not been processed in the office and seems to have been handed over to the Hon'ble Minister.
(vii) No inquiry, whatsoever, was made on the ground taken in the application, nor any comments have been asked from any other office/authority.
(viii) Application has been allowed in undue haste.
31. In view of the settled legal proposition as explained above, the appointment of the Public Prosecutor cannot be 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 and only when public interest so demands.Page 21 of 33 R/SCR.A/824/2014 CAV JUDGMENT
32. 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 reason 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. (Vide Ku. Shrilekha Vidyarthi v. State of U.P., AIR 1991 SC 537; Life Insurance Corporation of India v. Consumer Education and Research Center, (1995) 5 SCC 482 : (AIR 1995 SC 1811); Mahesh Chand v. Regional Manager, U. P. Financial Corporation, AIR 1993 SC 935; Union of India v. M. L. Capoor, AIR 1974 SC 87 and State of West Bengal v. Atul Krishna Shaw, 1991 Supp (1) SCC 414 : (AIR 1990 SC 2205).
33. In S. N. Mukherji v. Union of India, AIR 1990 SC 1984 :(1990 Cri LJ 2148), it has been held that the object underlying the rules of natural justice is to prevent miscarraige of justice and secure fair play in action. The expanding horizen of the principles of natural justice provides for requirement to record reasons as it is not regarded as one of the principles of natural justice, and it was held in the above case that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision.
34. In Krishna Swamy v. Union of India, AIR 1993 SC 1407, the Apex Court observed that "reasons are the links between the material, the foundation for these erections and the actual conclusions. They would also administer how the mind of the maker was activated and actuated and there rational nexus and syntheses with the facts considered and the conclusion reached. Lest it may not be arbitrary, unfair and unjust, violate Article 14 or unfair procedure offending Article 21".
35. Similar view has been taken by the Supreme Court in Institute of Chartered Accountants of India v. L. K. Ratna and Ors., (1986) 4 SCC 537; and Board of trustees of the Port of Bombay v. Dilipkumar Raghavendranath Governdrnath Nadkarni, AIR 1983 SC 109. Similar view has been taken by this Court in Rameshwari Devi Mewara v. State of Rajasthan, AIR 1999 Raj 47. In Vasant D. Bhavsar v. Bar Council of India, (1999)1 SCC 45, the Apex Court held that an authority must pass a speaking and reasoned order indicating the material on which its conclusions are based.
36. In Charan Singh v. Healing Touch Hospital, (2000) 7 SCC 668 : (AIR 2000 SC 3138), the Hon'ble Supreme Court held that duly to give reasons is implicit in the exercise of power. The Court further observed as under : "Obligation to give reasons not only introduces clarity but it also excludes, or at any rate minimizes the chance of arbitrariness and the higher forum can test the correctness of those reasons."
37. Passing an order without application of mind has always been held as exercise of power arbitrarily and in such a situation, the order falls within the ambit of Article 14 of the Constitution and becomes liable to be quashed. (Vide Satpal v. State of Haryana, AIR 2000 SC 1702 : (2000 Cri LJ 2297); Shree Damodar Kalvaibhav Education Society v. Director of Education, Goa, AIR 2000 SC 2489; Mohan Wahi v. CIT, (2001) 4 SCC 362 : (AIR 2001 SC 3906) and Page 22 of 33 R/SCR.A/824/2014 CAV JUDGMENT Steel Authority of India Ltd. v. National Union, Waterfront Workers, (2001) 7 SCC 1 : AIR 2001 SC 3527).
38. In Tandon Brothers v. State of West Bengal, (2001) 5 SCC 664 : (AIR 2001 SC 1866), the Hon'ble Supreme Court held that if the order is unreasonable and has not been passed in accordance with law, equity, good conscience and justice requires that judicial power be used to set aside such action.
39. The Supreme Court in Ram Chand v. Union of India, (1994) 1 SCC 44 :
(1993 AIR SCW 3479), observed that the exercise of power should not be made against the spirit of the provisions of Statute, otherwise it would tend towards arbitrariness.
40. In DaiIchi Karkaria Ltd. v. Union of India, AIR 2000 SC 1741 and Consumers Action Group (supra) and Praveen Singh v. State of Punjab,(2000) 8 SCC 633 : (AIR 2001 SC 152), the Hon'ble Supreme Court held that where a very wide discretionary power has been conferred upon the statutory authority, the Authority must exercise its power in a most reasonable manner in accordance with the spirit of the statute and in public interest.
41. In S. Ramanathan v. Union of India, (2001) 2 SCC 118 : (2000 AIR SCW 4549) and Tarlochan Dev Sharma v. State of Punjab, (2001) 6 SCC 260 : (AIR 2001 SC 2524), the Apex Court held that when certain discretionary power is conferred upon a statutory authority, the power is coupled with a duty to comply with the requirements of law and pass the appropriate order bearing in mind the statutory provisions and rights of the parties.
42. In Commissioner of Police v. Gordhandas Bhanji, AIR 1952 SC 16, the Supreme Court observed as under : "Public authority cannot play fast and loose with the power vested in them..... An enabling power of this kind, conferred for public reasons and for public benefit, is in our opinion, coupled with a duty to exercise it when the circumstances so demand. It is a duty which cannot be shriked or shelved nor it be evaded, performance of it can be compelled."
43. While deciding the case in Gordhandas (supra), the Supreme Court had placed reliance upon the judgment of the House of Lords in Julius v. Lord Bishop of Oxford, (1880) 5 AC 214, wherein it has been held as under : "There may be something in the nature of things empowered to be done, something in the object for which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple a power with duty and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so."
44. In Lokmat Newspapers Pvt. Ltd. v. Shankar Prasad, (1996) 6 SCC 275 :
(AIR 1999 SC 2423), it was observed that statutory authority should not pass the order in undue haste as it may inevitably be unfair and unjust.
45. Thus, in the light of the aforesaid settled propositions of law, order impugned cannot stand to judicial scrutiny. There is nothing on record to show Page 23 of 33 R/SCR.A/824/2014 CAV JUDGMENT that any authority had applied its mind. It is also doubtful whether the order could have been passed by the Hon'ble Minister on the same date when the application was moved, particularly in view of the fact that the application was made to the Law Secretary and not to the Hon'ble Minister. Whether the order could have been passed by the Hon'ble Minister or by the Law Secretary, also remains unexplained. Even if the Hon'ble Minister was competent to pass the order, the application should have reached to him through proper channel after being processed by the Law Department. No comments/remarks have been called from any person nor any inquiry has been made on the grounds taken in the application. Thus, it is a clear case of nonapplication of mind by the Statutory Authority. The said authority did not consider it proper to record any reason as what was the public interest involved in passing such order and what were the special features of the case which warranted appointment of Special Public Prosecutor.
26. I may now consider the Case Law on which strong reliance has been placed by the State Government and the respondent no.2 - original informant. In the State of Maharashtra (Supra.), the Supreme Court upon a Criminal Appeal filed by the State of Maharashtra observed as under:
"2. Challenge in this appeal is to the judgment of a Division Bench of the Bombay High Court allowing the Writ Petition filed by present respondent No.1. In the Writ Petition before the High Court challenge was to the appointment of the present respondent No. 3 as a Special Public Prosecutor for conducting Sessions Case No.41 of 2006 pending before the Sessions Court at Islampur in Sangli District. The basic grievance of respondent No.1 was that the appointment of respondent No.3 as a Special Public Prosecutor was in violation of the scheme of Section 24(8) of the Code of Criminal Procedure, 1973 (in short "the Code") and Rule 22 of the Rules for the Conduct of the Legal Affairs of Government, 1984 (in short "The Rules"). It was also the stand of respondent No.1 that the view expressed by this Court in Mukul Dalai v. Union of India, 1988 (3) SCC 144, was not kept in view while making the appointment. The appointment of respondent No.3 appears to have been made on the basis of a petition filed by the brother and the son of the victim. This was a case where two persons were killed. Several accused persons are facing trial. Though initially it was not disclosed by respondent No.1 that he is related to one of the accused, but later on that fact surfaced during the hearing of the matter before the High Court. Then respondent No. 1 took the stand that he was a social worker and in greater public interest the writ petition was filed. The State opposed the petition on several grounds: primarily indicating that the scope Page 24 of 33 R/SCR.A/824/2014 CAV JUDGMENT of judicial review of the executive, administrative and quasi- judicial action, was extremely limited and this is not a case where any interference was called for. It appears from the impugned order of the High Court that the original file was called for and scanned as if the High Court was hearing an appeal against a decision taken. The scope for judicial review has been examined by this court in several cases. It has been consistently held that the power of judicial review is not intended to assume a supervisory role or don the robes of omnipresent. The power is not intended either to review governance under the rule of law nor do the courts step into the areas exclusively reserved by the supreme lex to other organs of the State. A mere wrong decision, without anything more, in most of the cases will not be sufficient to attract the power of judicial review. The supervisory jurisdiction conferred upon a court is limited to see that the authority concerned functions within its limits of its authority and that its decisions do not occasion miscarriage of justice.
3. The courts cannot be called upon to undertake governmental duties and functions. Courts should not ordinarily interfere with a policy decision of the State. While exercising power of judicial review the court is more concerned with the decision making process than the merit of the decision itself.
4. In the instant case, acting on a petition filed by close relatives of a victim decisions have been taken at various levels. The High Court was not justified to pick up stray sentences from the records to conclude that there was non- application of mind. In any event, the appointment of a Special Public Prosecutor to conduct a proceeding does not in any way cause prejudice to the accused. In that sense the writ petition before the High Court was wholly misconceived. The impugned judgment of the High Court is set aside. Since the trial appears to have been held up, we direct that the trial court shall make all possible endeavours to see that the trial is completed expeditiously and in any event not later than by the end of October, 2009. The appeal is, accordingly, allowed."
27. The plain reading of the aforenoted observations of the Supreme Court makes it plain that ordinarily the Court should not interfere with a policy decision of the State. However, the decision of the Supreme Court in my opinion should not be construed as laying down an absolute proposition of law, that in any circumstances the appointment of the Special Public Prosecutor cannot be challenged at Page 25 of 33 R/SCR.A/824/2014 CAV JUDGMENT the instance of an accused. In the facts of that case, the Supreme Court thought fit to observe that having regard to the scope for judicial review, the court should not assume a supervisory role and therefore, a mere wrong decision, without anything more, would not be sufficient to attract the power of judicial review. I bow down to the dictum of law laid down by the Supreme Court, but in my opinion the facts of the present case has persuaded me to take the view that the case in hand is one where interference is justified.
28. In Lalji alias Lalo (Supra.) the learned Single Judge of this Court took the view that unless prejudice is shown to have been caused to the accused by the appointment of a Special Public Prosecutor, the accused cannot have any say/objection against the same. The learned Single Judge made the following observations which I may quote as under:-
15. The submission, which has been made, is mainly focused on the appointment of a Special Public Prosecutor to conduct the trial and the case in which the present petitioner is an accused facing charge of the offence under Section 302 of the Indian Penal Code.
The submission, which has been made making a reference to the concept of fair trial or the arbitrariness of the Government in making an appointment of the Special Public Prosecutor has no basis or foundation. The criminal jurisprudence nowhere provides for such kind of privilege or the right that the prosecutor should be appointed as liked by the accused, meaning thereby, if a Special Public Prosecutor is appointed for conducting the trial effectively, how the rights of the accused are affected or it has nothing to do with the concept of fair trial. One fails to understand that whether any right of the accused much less any fundamental right of the accused under Article 21 of the Constitution of India can be said to have been affected. But in fact, no prejudice can be said to have been caused to the accused. On the contrary, if such a prayer or request is granted, it would be travesty of the justice that a person, who is facing charge as accused will have say in the matter of appointment of a Special Public Prosecutor, which indirectly would suggest that he has right to interfere so that the effective trial is not conducted resulted into benefit of acquittal to the accused, which would be an antithesis to the rule of law and mockery of justice if the right of accused is permitted to be stretched in this fashion. On the contrary in series of judgments, the Hon'ble Apex Court has made a reference to the fair trial meaning and acquittal keeping in mind the right of the victim independently or collective rights of society as a whole. The rights of the accused therefore have to be also balanced with corresponding Page 26 of 33 R/SCR.A/824/2014 CAV JUDGMENT rights of the victim and society in general if the rule of law is maintained and sustained. In our criminal justice system, trial is conducted according to the Code of Criminal Procedure, which is a complete code providing for the manner in which the fair trial would be conducted at every stage taking care of the grievance of the accused and also the interest of the accused. In other words, when the Criminal Procedure Code itself by virtue of provisions of Section 24(8) of the Code of Criminal Procedure, 1973 empowers the Government to make such appointment of the Special Public Prosecutor, same cannot be permitted to be interpreted in this manner by making averments or allegations about the arbitrariness or the socalled fair trial without showing that how the accused is prejudice. When no prejudice is shown to have been caused to the accused, he cannot have any say in the matter of an appointment of the prosecutor. The State is rather under an obligation to conduct and prosecute the persons, who are accused of having committed offence in order to see that rule of law is maintained and guilty are punished to maintained faith of the people in the public interest. Therefore, it is in the public interest as well as in the interest of the criminal justice system that the trial should be conducted effectively and if there is an appointment of the Special Public Prosecutor depending upon the facts of the case, it does not amount to any violation of any right of the accused like the petitioner and he cannot be permitted to claim by such proceeding any privilege that the prosecution or the case or the trial should be conducted in the way he desires without effective representation by the Special Public Prosecutor even if it is necessary. While making an appointment of the Special Public Prosecutor, what has been considered in the judgments, which have been cited by learned Sr. counsel, Mr.Nanavati is in fact has a reference to the eligibility and terms and conditions of the appointment and focus was never on any such right or the grievances of the accused that the appointment of the Special Public Prosecutor is contrary to the concept of fair trial. The appointment of the Special Public Prosecutor may have a various consideration including his legal acumen, stability and minimum criteria, which was in issue as it has been discussed at length in the judgment of this Court in Special Criminal Application No.1203/2009 dated 05.11.2009 (Coram : Ravi R. Tripathi, J.). The submission made by learned Sr. Counsel, Mr.Nanavati referring to Section 24(8) of the Code of Criminal Procedure, 1973 referring to the observations made by this Court in a judgment in case of Dilipbhai Chhotalal Dave (supra) were totally different as the contentions were raised with the regard to the appointment of the Special Public Prosecutor and his remuneration where the bank was complainant and pursuant to the agreement between the complainant and the Government, remuneration was to be paid by the complainant, which was considered with reference to the Gujarat Law Officers (Conditions of Service) Rules, 1965 and in the background of that facts, the observations have been made, which has been referred by learned counsel, Mr.Nanavati. The issue focused in the present case is totally different and it has already been in the judgment of this Court in Special Criminal Application Page 27 of 33 R/SCR.A/824/2014 CAV JUDGMENT No.1203/2009 dated 05.11.2009 and specifically referring to the judgment, it has been pressed into service by learned counsel, Mr.Nanavati in case of Mukul Dalal (supra) that the issue was with regard to the eligibility for the appointment of an advocate as a Special Public Prosecutor and it was not an issue with regard to any right of the accused or any prejudice to the accused if the appointment of the Special Public Prosecutor is made to conduct the trial. It is also observed in the judgment of this Court that "From the discussion and the relevant observations made by Hon'ble The Apex Court, it can be seen that the question of 'prejudice to the accused' was not under consideration, but what was under consideration of the Hon'ble The Apex Court was, that, 'a person who is appointed as a Special Public Prosecutor should have sufficient required eligibility as contemplated under Section 24(8) of the Code of Criminal Procedure, 1973."
16. Thus, the Hon'ble Apex Court had focused on the terms and conditions on which such appointments are made and the rights of the accused under the concept of fair trial that he has say in the appointment of the Public Prosecutor was not focused nor there was any aspect like prejudice to the accused was focused in the said judgment of the Hon'ble Apex court in Mukul Dalal (supra). It is well accepted that the tax of law or a statute as well as judgment has to be read as a whole to cull out the ratio or the points, which have been discussed and dealt with and again it has to be read in context of the background of the facts. Therefore, if these judgments are considered, the submissions made by learned Sr. Counsel, Mr.Nanavati for the petitioner are without any merits. Thus, in a judgment in case of Mukul Dalal (supra) what is weighed with the Hon'ble Apex court was the eligibility with regard to the appointment of a person, who was not eligible for the appointment as a Special Public Prosecutor and the terms and conditions with regard to the payment of remuneration. Gujarat Law Officers (Conditions of Service) Rules, 1965 particularly Rule 38 has not been referred to. A useful reference can also be made to the judgment of the Hon'ble Apex Court in case of Sunil Kumar Pal Vs. Phota Sheikh & Ors., reported in (1984) 4 SCC 533, wherein it has been observed that "It is imperative that in order that people may not lose faith in the administration of criminal justice, no one should be allowed to subvert the legal process. No citizen should go away with the feeling that he could not get justice from the court because the other side was socially, economically or politically powerful and could manipulate the legal process. That would be subversive of the rule of law". Thus, it is evident that whether system is heavily loaded in favour of the accused and when there is a specific provisions at different stage to give fair opportunity to the accused when he is represented by a lawyer, he cannot have a say in the matter of appointment of the prosecutor to conduct the trial against him.
17. It may be noted that the focus or the emphasis on the criminal justice system is that people may not lose faith in the system because the other side was socially, economically or politically powerful and could manipulated the legal process in the Page 28 of 33 R/SCR.A/824/2014 CAV JUDGMENT facts of the case. In fact, it is other way round that the petitioner desires to resort to such dilatory tactics so that the trial against him is not conducted in an effectively manner and on the top of that, he can complaint of delay in the trial or if the trial is not conducted in an effective manner, he should get the ultimate benefit of acquittal. A useful reference can be made to the judgment of this Court in case of Amrutbhai Bholabhai Patel VS. State of Gujarat reported in 2000(3) GLR 2667, wherein the High Court has also considered the similar contentions raised referring to the objections by the accused and the concept of fair trial. The Hon'ble High Court has also negatived the similar contentions raised in the present petition.
18. Therefore, moot question, which is required to be considered is whether the petitioner can have any say in the matter for the appointment of the Special Prosecutor in Sessions Case against them, particularly when no prejudice caused to him is shown. Under criminal justice system, the prosecution is at the instance of the State to punish the guilty after the trial under the said Rules like the Code of Criminal Procedure, 1973. If the Public Prosecutor is appointed for effective conduct of the trial, it is the obligation for the State to conduct the trial effectively so that the victim also gets justice and in turn, the society as a whole gets justice and the confidence of the people in the system is maintained and the rule of law is also maintained. On the other hand, if the grievance, which has been made, is permitted to be entertained under some misconception, it would be a rather privilege to the person like the petitioner, which would be counter productive not only to criminal justice system but it is antithesis the rule of justice. The concept of fair trial would mean that every opportunity should be provided to the accused person and the trial should be conducted in the manner in accordance with law. It is not the case of the petitioner that any opportunity has been denied including the fact that he has right to be represented by the competent defence counsel and the matter would be conducted by the presiding judicial officer as per the procedure established under the Code of Criminal Procedure. Therefore, he has no right to make any grievance with regard to the trial merely by making a reference to the concept of fair trial and on what basis such concept can be resorted without having any prejudice caused to him. Therefore, the grievance that the appointment of the Special Public Prosecutor in his case should not be made and the appointment of the Special Public Prosecutor is out of political reasons is thoroughly misconceived. It is well accepted that in many cases, the services of such Public Prosecutor is taken so that appropriate assistance is rendered to the Court. Therefore, the accused cannot have say in the matter as to which prosecutor should conduct the trial of the case where he is facing trial as accused. If such submissions are to be entertained, it would be counter productive to the public interest in asmuchas the accused may not like effective trial by a competent prosecutor result into benefit of acquittal to the accused. Thus, underlying purpose of the present petitioner appears to be such that the prosecution should not be by a competent prosecutor as a result of which, he can get benefit of acquittal, which would not be in the interest of public and the interest of criminal justice system. The trial Page 29 of 33 R/SCR.A/824/2014 CAV JUDGMENT against the accused like the petitioner may be conducted in accordance with law after providing every opportunity in compliance with the fair trial and there is no justification for making any such grievance for the appointment of the Special Public Prosecutor. The criminal justice system obliges to the State to conduct trial and assist the Court effectively in order to do complete justice and maintain faith of the people in the system. Therefore any such arguments, which have been made, have no basis and when it has not been shown that any prejudice is caused to the petitioner accused, the present petition cannot be entertained and deserves to be dismissed. Accordingly present petition stands dismissed. Rule is discharged. Interim relief stands vacated."
29. Sitting in a Coordinate Bench I am obliged and duty bound to follow the dictum as explained by His Lordship. However, His Lordship has considered the issue of prejudice to the accused taking into consideration the sole fact that even otherwise a regular Public Prosecutor would be In-charge of a trial. Therefore, instead of a regular public prosecutor if a Special Public Prosecutor is appointed to conduct the trial, the accused should not have any objection and, therefore, could not be said to have been prejudiced in any manner.
30. The question of prejudice to the accused should be considered from the point of the view that all State actions must be just, fair and reasonable. This aspect of prejudice has been very well explained by a learned Single Judge of the Karnataka High Court in the case of K.V. Shiva Reddy (Supra.) in paras-36 and 37. I quote the same.
"36. The impugned order is an administrative order by the Government under Section 24(8) of 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 function 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 prejudice, 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.Page 30 of 33 R/SCR.A/824/2014 CAV JUDGMENT
But the accused has a right to 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 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."
31. In the case of Amrutbhai Bholidasbhai (Supra.) the learned Single Judge of this Court took the view that an appointment of a Special Public Prosecutor at the instance of a private complainant should not ordinarily be disturbed on the ground that the Special Public Prosecutor has been appointed according to the choice indicated by the complainant. The learned Single Judge made the following observations:
"23. Role of the prosecution in any criminal trial,whether at the instance of the State or of a private party, is to safeguard the interest of the complainant and the accused. The right to be heard included right to be represented by spokesman of one's confidence. This right is available to the complainant and to the accused both. The complainant also needs assistance. The Public Prosecutor is bound by law and professional ethic and in the role of an officer of the Court to employ only fair measures. Hence, it cannot be said that the Special Public Prosecutor appointed as per the choice indicated by the complainant shall not act impartially or independently or that there is presumption that he would always act in a biased manner. The presumption is always otherwise."
"27. The result of the above discussion is that merely because the appointment of Mr. Shethna as Special PP is made as per the choice of the complainant, it would not be reasonable to Page 31 of 33 R/SCR.A/824/2014 CAV JUDGMENT hold that he would not be able to act impartially. Mr. Shethna who is engaged by the State at the cost of the State is equally bound by the higher duty to the Court as also to his discipline as an advocate, and is expected to rise to the occasion and discharge his duties as a just and fair public prosecutor. Above all, there is institutional safeguard against any prejudice or bias because of the material placed on record by the investigating agency which in turn places its own limitations on such a Public Prosecutor."
32. Even this decision of the learned Single Judge of this Court is of no avail to the State as well as the original informant.
33. I have noticed something very shocking and unusual in this matter. To a certain extent, I hold even the accused responsible for the same because but for the application Exh.7 filed by him, the learned trial Judge would not have ventured to examine the legality and validity of the appointment of a Special Public Prosecutor in the Sessions Case. I fail to understand as to on what basis and in exercise of which power the trial Judge adjudicated the application Exh.7 and proceeded to deliver a lengthy order running into around 13 pages. The application Exh.7 filed by the accused should have been outright rejected by the trial Judge on a very short ground that it is not for the trial Court to examine the legality and validity of the appointment of a Special Public Prosecutor. Instead of rejecting it on such short ground, the learned Judge considered the merits of the submissions canvassed by either sides. What is more shocking is that the Special Public Prosecutor Mr. Karkar himself defended the order passed by the State Government appointing him as the Special Public Prosecutor by relying on few decisions.
34. The trial Court, in my view, could not have adjudicated upon the propriety of the appointment of the Special Public Prosecutor. In a writ-petition filed by the accused against the appointment of the Special Public Prosecutor, the considerations are entirely different e.g. whether the State action is bonafide or within the bounds of law.
Page 32 of 33 R/SCR.A/824/2014 CAV JUDGMENTThese considerations are not available to the trial Court. A Special Public Prosecutor is appointed by the State under Section 24 of the Criminal Procedure Code. The trial Court is not to look into the propriety or justifiability of that appointment. At best, the trial Court may look into the genuineness of the appointment, but no more. If the appointment letter is genuine, then the trial Court has to abide by the fact that the concerned advocate has become Special Public Prosecutor in the concerned case.
35. For the foregoing reasons, I hold that the appointment of Shri Karkar, Advocate, as a Special Public Prosecutor to conduct the Sessions Case No.61/2012 is not tenable in law or justifiable on any cogent grounds. In any view of the matter, since the appointment of the Special Public Prosecutor has been declared to be not in accordance with law, the order passed by the learned Sessions Judge below Exh.7 should also go and is, accordingly, quashed and set aside.
36. In the result this petition is allowed. The impugned resolution dated 2/7/2012 passed by the Government of Gujarat in its Legal Department, is hereby ordered to be quashed.
(J.B.PARDIWALA, J.) Mohandas Page 33 of 33