Madhya Pradesh High Court
Mohammad Sartaj vs The State Of M.P. And Ors. on 11 March, 2005
Equivalent citations: 2005CRILJ2133
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. The petitioner along with some others is facing trial for commission of offences punishable under Sections 147, 148, 149, 37 and 120B of the Indian Penal Code (in short 'the IPC') under Sections 25 and 27 of Arms Act. and under Section 3/5 of the Explosives Substances Act, 1908 in Sessions Trial No. 681/2003. It is put forth in the petition that they were charge-sheeted for having committed murder of the deceased, namely, Akku @ Akbar Ali and as set forth, the deceased and his brothers have notorious criminal antecedents and the cases of the said persons are being defended by the respondent No. 4.
2. According to the writ petitioner with the efforts and initiation Rehman Ali, younger brother of the deceased the respondent No. 4 has been appointed as Special Public Prosecutor in respect of the session trial where the petitioner along with his father, brothers and uncles have been arrayed as accused. The appointment letter issued by the Department of Law and Legislative Affairs has been brought on record as Annexure-P/1. It is contended in the petition that the respondent No. 4 has defended Late Akku and his companions in number of cases viz. S.T. Nos. 778/2001, 89/2001, 523/97 and 360/2004. It is urged in the petition that the appointment of the respondent No. 4 is neither sound nor legal and does not meet requisite requirement as contained under Section 24(8) of the Code of Criminal Procedure [for brevity 'the Code']. It is the stand in the petition that engagement of a Special Public Prosecutor in a case has a different conception but the said concept has not been kept in view while appointing the respondent No. 4 as the Special Public Prosecutor. It has been pleaded that earlier on the petitioner had filed W. P. No. 2814/2004 assailing the appointment of the respondent No. 4 as Special Public Prosecutor and this Court vide order dated 9-9-2004 had granted liberty to raise objection before the trial Court first and thereafter the petitioner filed a detailed objection before the learned trial Judge challenging the appointment of the respondent No. 4. The said objection has faced rejection by the impugned order dated 8-10-2004 contained in Annexure-P/4 passed by the learned Additional Sessions Judge, Jabalpur.
3. A return has been filed by the respondent No. 4 contending, inter alia, that the petitioner should have filed an application under Section 482 of the Code of Criminal Procedure and not a writ petition. It is further put forth that the apprehension on the part of the petitioner is without any substance and merely because of a copy has been sent to the brother of the deceased it does not flow from it that the respondent No. 4 has been appointed at the instance of the brother of the deceased. It is also asserted that the respondent No. 4 after his appointment filed an application under Section 319 of the Code and, therefore, the petitioner has preferred this petition knowing fully well that the respondent No. 4 would perform his duty as public prosecutor as law would warrant.
4. I have heard Mr. A. Usmani, learned counsel for the petitioner, Mr. Om Namdeo, learned Government Advocate for the State and Mr. Vijay Naik, learned counsel for the respondent No. 4.
5. It is submitted by the learned counsel for the petitioner that no reasons have been assigned by the State Government for appointment of the special public prosecutor and in the absence of a special case made out the order of appointment is unsustainable.
6. Mr. Namdeo, learned Government Advocate for the State and Mr. Vijay Naik, learned counsel for the respondent No. 4 supporting the order passed vide Annexure P-1 have submitted that taking into consideration the factual matrix and gravity of offences, the public prosecutor has been appointed and, therefore, the action vide Annexure P-1 cannot, be faulted. That apart it has been put forth that the respondent No. 4 is a very experienced counsel and keeping the nature of offences the State Government has invoked the power under Section 24(8) of the Code of Criminal Procedure and, therefore, such action cannot be regarded as pregnable.
7. The core question that arises for consideration is whether the appointment of the respondent No. 4 in the case at hand is justified and depicts presentableness. On a perusal of Annexure P-1 by which the Department of Law and Legislative Affairs has appointed the respondent No. 4 as the Special Public Prosecutor, it is clear as noon day that no reasons have been ascribed. It is worth noting that the Code confers the power on the State Government to appoint the special public prosecutor under Section 24(8) of the Code but there are no guidelines in the Code for making such appointment. In this context I may usefully refer to the decision rendered in the case of Mukul Dalal v. Union of India (1988) 3 SCC 144, wherein the Apex Court while dealing with the legal validity of rules, namely, Maharashtra Law Officers Appointment (Conditions of Service and Remuneration) Rules, 1984 expressed the view as under :
".....When an application for the service 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 powerful complainant may have begun a proceeding to victimise his opponent. If in such a case the State concedes to the request for appointment of a Special Public Prosecutor their will be travesty of justice. Without screening on the basis of guidelines prescribed or to be prescribed, the service of a Special Public Prosecutor should not be made available to a private complainant. The privacy 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 referred to above accepted or what the High Court has indicated is adopted. We are inclined to observe that the request for appointment of a Special Public Prosecutor should be properly examined by the Remembrancer of Legal Affairs and only when he is satisfied that the case deserves the support of a Public Prosecutor or a Special Public Prosecutor that such a person should be appointed to be in charge of the case."
8. At this juncture I may profitably refer to the decision rendered in the case of Rajendra Nigam v. State of Madhya Pradesh, 1998 Cri LJ 998 wherein it has been held that the Special Public Prosecutor is not to be appointed on ordinary circumstances. There have to be special reasons for appointment of Special Public Prosecutor.
9. In the case of Poonamchand Jain v. State of M. P. (2001) 2 MPLJ 61 : (2001 Cri LJ 3113) this Court has held as under (at p. 3117 of Cri LJ) :
"........It. is to be kept in mind that when there is appointment of a Special Public Prosecutor there is ouster of the Public Prosecutor who is appointed in accordance with the provisions of the Code. The Public Prosecutor has a different role to play and is duty bound to present the complete and truthful picture of the case from all quarters. It is his obligation to assist the Court in a dispassionate and disinterested manner. It is not expected of a Public Prosecutor to achieve conviction at all costs, it cannot be forgotten that a crime committed is not against an individual but against the community at large. In the administration of criminal justice the Public Prosecutor represents the society in entirety. The collective reposes intrinsic faith in the Public Prosecutor and ordinarily there should be no interference in the functioning of the public prosecutor unless there are special and strong reasons....."
10. It is to be borne in mind that the Public Prosecutor has been assigned a centripodal and pivotal role to conduct the prosecution under the Code. The language of Section 225 of the Code is indicative of the fact that the Public Prosecutor has the prerogative of conducting the prosecution. On a reading of Section 321 it is luminescent that the Public Prosecutor has an extremely significant role in the withdrawal of the prosecution. His opinion is of immense importance and its import can never be marginalised. A Public Prosecutor has to assist the Court to arrive at correct, sound, truthful and appropriate conclusion. He has a statutory responsibility and his function rests on a high pedestal and stands on a different position than the advocate who represents a private complainant. Many a jurist has opined that the position of the Public Prosecutor is one of trust. He represents the State and the State has a different role. On a first glance it may give an impression that the Public Prosecutor has not. other duty but to obtain a verdict against the accused. But on a proper penetration into his role and deeper probe as regards his statutory duty it is clear as crystal and as plain as plain can be that he is a highly responsible officer of the Court to assist the Court to arrive at, the truth and to subserve the cause of justice which is 'truth in action'.
11. The present factual matrix has to be tested on the anvil of the aforesaid enunciation of law. In the case at hand no reasons have been indicated. The ouster of the Public Prosecutor has been founded on no base. The duly appointed Public Prosecutor under the provisions of the Code seems to have been ousted in an extremely light manner. It cannot be forgotten that the Public Prosecutor enjoys the statutory power and collective reposes faith in him. There is no material to show that the Public Prosecutor who is in charge of the case is not competent to conduct the trial or there are other aspects which disqualify him to fulfill the duty cast on him. On the contrary instances have been given that the respondent No. 4 has been defending the deceased and his brother. At this juncture it is obligatory to refer to the decision cited by Mr. Naik, learned counsel for the respondent No. 4 rendered in the case of Varada Rama Mohan Rao v. State of A. P. (2004) 4 SCC 427 : (2004 Cri LJ 2829). In the aforesaid case the Apex Court in paragraph 7 has expressed the view as under :
"7. Apart from the fact that the ratio laid therein does not apply to the facts of the present case, it is to be seen that in this case the appellant had independently challenged the appointment of the prosecutor in a criminal petition. This was not a proceeding initiated in the course of the present trial and the challenge to the said appointment was on facts and circumstances outside the scope of the prosecution case, therefore, he having failed in that attempt and the High Court having upheld the appointment of Sethu Madhava Rao as a prosecutor in this case, that issue stands closed. Therefore, it is not open to the appellant to reopen the same for the first time in this appeal. That apart, it is to be noted that the appellant has not been able to establish how the conducting of a criminal trial by a counsel who according the accused is inimically disposed towards him would prejudice his trial because the learned counsel does not give evidence in this case and the manner in which he presents his case is always subject to judicial scrutiny by the Court concerned. His personal opinion has no place in the decision making process of the Court. At the most he may present his case with vehemence and with a touch of vengeance but this would not in any manner either influence the decision-making process of the Court or would cause any prejudice to the accused in his defence. This, however, does not mean that we approve the fact that a person who is admittedly on bad terms with the accused should be appointed as a prosecuting counsel unless for good reasons. May be, in this case in view of the strained relationship between the parties, the learned prosecutor could have recused himself but that was a choice left entirely to him and that by itself does not prejudice the trial in any manner. The learned counsel for the appellant also has failed to show any prejudice that has occurred to the accused because of the selection of the prosecutor."
12. Submission of Mr. Namdeo and Mr. Naik is that no prejudice is likely to be caused to the accused persons and therefore, Annexure P-1 should be given the stamp of approval. Certain aspects need to be noted as to what their Lordships have stated in the case of Varada Rama Mohan Rao (2004 Cri LJ 2829) (SC) (supra). In the said case their Lordships were hearing an appeal preferred by the convict; secondly the counsel who was appointed as Special Public Prosecutor his appointment was called in question before High Court and the prayer for change of prosecutor was rejected by the High Court and the said order had become final and, therefore, the said issue stood closed and thirdly their Lordships expressed the view that a person who is admittedly on bad terms with the accused should not be appointed as a prosecuting counsel unless for good reasons. The aforesaid case is distinguishable on facts and in my humble view the stage of challenge being different the concept of prejudice had arisen. In the case at hand the petitioner has assailed the appointment not only on the ground that the respondent No. 4 has been defending the deceased and his brother and, therefore, an interested person to conduct the prosecution but has called in question the correctness and soundness of the appointment as the order of appointment contained in Annexure P-1 is totally sans reason and in the absence of reason it is envincible that it has been passed in a most mechanical and routine manner. Because of the said substratum I am disposed to think the order contained in Annexure P-1 is unsustainable and it is accordingly lanceted. As a logical corollary the order passed by the learned Additional Sessions Judge vide Annexure P-10 also stand quashed.
13. Though I have quashed the order of appointment of the respondent No. 4 as the Special Public Prosecutor, it is observed that the respondent No. 4 may assist the prosecution in accordance with the provision enshrined under Section 301(2) of the Code of Criminal Procedure and act under the direction of the duly appointed Public Prosecutor with the permission of the Court.
14. Resultantly, the writ petition is allowed without any order as to costs.