Karnataka High Court
Smt Rajeshwari Shetty vs The State Of Karnataka on 4 July, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4th DAY OF JULY, 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P.NO. 11665/2018 (GM-RES)
BETWEEN:
SMT. RAJESHWARI SHETTY
W/O K. BHASKAR SHETTY
AGED ABOUT 50 YEARS
R/AT "ESHWARI"
HAYAGREEVA NAGARA
2ND CROSS, INDRALI
SHIVALLI VILLAGE
UDUPI TALUK
UDUPI DISTRICT-576102.
... PETITIONER
(BY SRI.ARUNA SHYAM M, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY
HOME DEPARTMENT,
2ND FLOOR, VIDHANA SOUDHA
BENGALURU-01.
2. THE DIRECTOR OF PROSECUTION
DEPARTMENT OF PROSECUTION
& GOVERNMENT LITIGATION
CAUVERY BHAVAN
KEMPEGOWDA ROAD
BENGALURU-09.
3. THE UNDER SECRETARY OF
GOVERNMENT, HOME
DEPARTMENT, 2ND FLOOR
2
VIDHANA SOUDHA
BENGALURU-09.
4. THE STATION HOUSE OFFICER
MANIPAL POLICE STATION
UDUPI DISTRICT-576101.
5. THE INVESTIGATION OFFICER
CID, CARTEL HOUSE,
PALACE ROAD
BENGALURU-01.
6. SRI. M. SHANTARAM SHETTY
ADVOCATE & NOTARY
1ST FLOOR, ANANTHKRUPA
MARUTHI VITHIKA
UDUPI-576101.
7. SRI. GULABI SHEDTHI
W/O SHEENAPPA SHETTY
DEVINIVASA
GOVERNMENT GUDDA
SHANKARAPURA POST
UDUPI-576102.
... RESPONDENTS
(BY SRI.A.S. PONNANNA AAG, AS AMICUS CURIE;
SRI. V. SREENIDHI, AGA FOR R1 TO R5;
SRI. ASHOK HARANAHALLI, SR. COUNSEL A/W
SRI. JAGADEESH B.N, ADVOCATE FOR R-7;
SRI. S.K. ACHARYA, ADVOCATE FOR R-6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE GOVERNMENT NOTIFICATION/ORDER DATED
26.10.2016 AND ALSO THE NOTICE ISSUED BY
RESPONDENT NO.1 THEREBY CONFIRMING THE ABOVE
ORDER AND REJECTING THE REPRESENTATION DATED
02.02.2018 AND ALL FURTHER PROCEEDINGS PURSUANT
THERETO VIDE ANNEXURES-A AND A1 RESPECTIVELY.
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THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Petitioner has sought for quashing of Government Order No. OE 304 PPE 2016 dated 26.10.2016 appointing 6th respondent as Special Public Prosecutor to conduct the case upto Sessions court in Crime No.199/2016 registered by respondent - police on the file of CID police which has culminated in filing of the charge sheet in S.C.No.2/2017 pending on the file of Principal District and Sessions Judge, Udupi and also notice issued by first respondent rejecting representation of the petitioner dated 02.02.2018.
2. Facts in brief which has led to filing of this petition are as under:
Mother-in-law of the petitioner lodged a complaint before fourth respondent requesting the police to investigate and trace whereabouts of her missing son Sri Bhaskar Shetty. Said complaint came 4 to be registered in Crime No.193/2016 - Annexure-C. On a suo-motu complaint lodged by the Inspector of Crime, Udupi, a Crime No.199/2016 came to be registered for the offence punishable under Sections 302, 201, 129B and 204 read with Section 34 IPC, since there was an allegation against petitioner and others alleging that they had hatched a conspiracy and committed murder of Sri Bhaskar Shetty and had destroyed all the evidences in connection with the said crime. Based on the said complaint, petitioner and other accused were taken into custody.
3. First respondent by order dated 26.10.2016 appointed 6th respondent herein as Special Public Prosecutor in exercise of the power vested under Section 24(8) of Code of Criminal Procedure which was on the request of the complainant. Said order of appointment was under challenge before this Court in W.P.No.1771/2017 (GM-RES) and after considering rival contentions, without quashing the said order of appointment, this Court had directed the State 5 Government to take a decision. It was also observed by this Court that in the event of petitioner approaching the Government with objections for appointment of 6th respondent, same shall be considered by the Government, since it was contended by the accused that said Special Public Prosecutor who had been so appointed had shown some inclination towards the complaint on earlier occasion and had exhibited extra interest and an apprehension was expressed by the petitioner - accused that he would not get fair trial. Hence, it was ordered that petitioner should appraise the Government with all her objections for appointment of 5th respondent therein as a Special Public Prosecutor and Government was directed to consider said objections and relevant materials and thereafter to take a decision regarding appointment of Special Public Prosecutor to conduct the case. It was also ordered that trial Court shall not proceed with trial till such decision is taken. The order passed by the co-ordinate Bench reads as under:
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"The writ petition is hereby disposed of, with liberty to the petitioner to apprise the Government with all her objections for appointment of the 5th respondent as a Special Public Prosecutor in the said case, and Government has to consider the objections and the relevant materials and thereafter take a decision regarding appointment of a Special Public Prosecutor to conduct the said case.
Accordingly, the writ petition is
disposed of.
The learned Sessions Judge is
hereby directed not to proceed with the trial till the Government takes a decision with regard to appointment of a Special Public Prosecutor. It is also directed that the petitioner shall file her objections or representation to the Secretary to the Government of Karnataka, Home Department, within one week from the date of receipt of a copy of this order and thereafter, the Government has to pass appropriate orders within 15 days after receipt of the objections/representation and also by giving opportunity to the complainant.
If the representation is not given within the stipulated time fixed by this Court and no order is passed by the Government within 15 days thereafter, the trial Court is at liberty to proceed with the matter, in accordance with the earlier order passed by the Government."
Pursuant to liberty so granted by this Court and as noticed herein above, petitioner herein submitted a 7 representation to the first respondent on 02.02.2018 - Annexure-K1. First respondent by endorsement dated 12.03.2018 - Annexure-A1 issued to the petitioner, rejected the contention of the petitioner and resolved to continue the notification dated 26.10.2016 - Annexure- A. Hence, the said endorsement and the notification dated 12.03.2018 and 26.10.2016 respectively are impugned in this writ petition.
4. I have heard the arguments of Sri Aruna Sham, learned Advocate appearing for petitioner, Sri A.S.Ponnanna, learned Additional Advocate General appearing for respondent-State, Sri S K Acharya, learned Advocate appearing for respondent-6 and Sri Ashok Haranahalli, learned Senior Counsel appearing on behalf of respondent-7.
5. It is the contention of Sri Aruna Sham, learned Advocate appearing for petitioner that 6th respondent is having personal interest in the case in which he has been appointed as Special Public 8 Prosecutor. It is contended that 6th respondent has openly supported respondent No.7 (complainant) and had conducted many a meetings including a press conferences in support of deceased Sri Bhaskar as reflected in the print and electronic media. Sixth respondent has been issuing notice and demanding reports from the Superintendent of Mangalore District Prison and being a Special Public Prosecutor he would play a important and vital role in criminal administration of justice and as an Officer of the Court, he is expected to assist the court in a fair, transparent and unbiased manner. He would draw the attention of the court to the communication dated 10.12.2016 - Annexure-J written by 6th respondent to the Jail Superintendent which shows that he is prejudiced against petitioner - accused.
He would elaborate his submissions by contending that at the first instance itself, he had expressed no confidence in the Special Public Prosecutor by filing an affidavit in W.P.No.1771/2017 on 27.11.2017 - 9 Annexure-L and he would also draw the attention of the Court to the order of appointment to contend that it would disclose the pay master of 6th respondent is the complainant and not the State and impugned order is also not a reasoned order. Hence, by relying upon the following judgments, he prays for allowing the writ petition by quashing the impugned order:
(1) (2013)2 KCCR 994 SHANKAR vs STATE OF KARNATAKA (2) (2005)4 Kar.LJ 22 K.V.SHIVA REDDY vs STATE OF KARNATAKA (3) W.P.No.58876/2014 disposed of on 01.07.2015.
6. Sri Ponnanna, learned Additional Advocate General has made available the original records and supported the impugned order and endorsement by contending that petitioner has no locus standi to challenge the order of appointment of a Special Public Prosecutor and in the best interest of securing justice, the State in its wisdom having acted to appoint 6th 10 respondent as Special Public Prosecutor, said order does not suffer from any infirmities and he contends that petition is misconceived and prays for rejection of the same.
He would also submit that on account of there being no material to establish that 6th respondent is biased towards petitioner, his appointment does not in any way cause prejudice to the petitioner, particularly when petitioner would have a right to cross examine the prosecution witnesses. Hence, he prays for dismissal of the writ petition. In support of his submission, he has relied upon the following judgments:
(1) (2009) 12 SCC 159-
STATE OF MAHARASHTRA AND OTHERS
VS. PRAKASH PRAHLAD PATIL AND
OTHERS
(2) W.P.Nos.9212-9213/2018 C/W
W.P.NO.3334/2018 disposed on 01.03.2018 (3) W.P.2100-2110/2018 disposed on 28.02.2018
7. Sri S K Acharya, learned Advocate appearing for 6th respondent would contend that allegations made 11 against 6th respondent are false and misleading and State Government having taken into consideration the expertise of 6th respondent and the vast experience he has gained in the matter of conducting sessions cases at Udupi, Kundapur, Mangalore, Hassan and various other districts had appointed him as Special Public Prosecutor to conduct the case on behalf of prosecution. He would also submit that petitioner with an intention of protracting the proceedings, have been challenging the appointment of 6th respondent and contends that though charge sheet is filed on 16.01.2016, delay tactics is being adopted by the petitioner.
He would submit even the bail application filed by the petitioner had been rejected and affirmed by the Apex Court, taking into consideration that large number of witnesses are to be examined by the prosecution and the chances of petitioner threatening them being there, prayer for being enlarged on bail had been rejected. He would also draw the attention of the Court to paragraphs 3 and 6 of the statement of objections filed 12 insofar as denial of the plea put forward by the petitioner about 6th respondent having any transaction of whatsoever nature with the petitioner. Reiterating the grounds urged in the statement of objections, he has prayed for dismissal of the writ petition.
8. Sri Ashok Haranahalli, learned Senior Counsel appearing for 7th respondent - complainant would support the impugned order/notification and contends that present petition has been filed on baseless allegations and in order to derail the prosecution case . He would submit that accused persons in the present case are influential people in the local area where crime came to be committed and taking into consideration extraordinary nature of the crime itself, respondent-State had handed over the investigation to the CID and has appointed 6th respondent as Special Public Prosecutor on the request of 7th respondent. He would draw the attention of the court to Annexure-R3 namely, memo and the affidavit accompanying the said memo to contend that after 13 lapse of one year from the date of appointment, an affidavit came to be filed on 28.11.2017 making fresh allegations against 6th respondent, which would only establish the malafides of the petitioner to stall the trial before sessions court and as such, he prays for dismissal of the petition. In support of his submissions, he has relied upon the following judgments:
(1) ILR 2010 KAR 3540
SRI. JAGADISH CHIDANAND
KORE VS. THE STATE OF
KARNATAKA
(2) 2013 SCC ONLINE AP 247-
BHARAJU RAMBABU VS. THE
STATE OF ANDHRA PRADESH
(3) W.P.NO. 58876/2014 disposed
on 01.07.2015
9. Having heard the learned Advocates
appearing for the parties and on perusal of the records, it would disclose that case of the prosecution on handing over the investigation to the CID is on the basis that the accused persons had hatched a conspiracy and had committed the murder of Sri Bhaskar Shetty who is 14 the son of the complainant Smt.Gulabi Shedti - 7th respondent herein. It is also alleged by the prosecution that accused persons have destroyed the evidence in connection with the said crime. Petitioner and other accused persons are in custody from the date of their arrest i.e., from 2016.
10. The State Government by notification dated 26.10.2016 - Annexure-A appointed 6th respondent herein as Special Public Prosecutor to conduct the case up to sessions court on behalf of the prosecution, in exercise of the power vested under section 24(8) Cr.P.C. As already noticed herein above, said order of appointment was the subject matter of challenge before the Court and by order dated 31.01.2018, co-ordinate Bench without quashing the said order of appointment had reserved liberty to the petitioner to appraise the Government with all her objections for appointment of 6th respondent as Special Public Prosecutor and had also directed the Government to consider the objections and the relevant materials and thereafter take a 15 decision regarding appointment of Special Public Prosecutor to conduct the case. On account of direction having been issued to the learned sessions Judge not to proceed with the trial till the Government takes a decision with regard to appointment of Special Public Prosecutor , trial is said to have been kept in abeyance or in other words, trial Court has not proceeded with the trial for the past two years.
11. Co-ordinate Bench of this Court in the matter of K V SHIVAREDDY vs STATE OF KARNATAKA AND OTHERS reported in 2005 CRL.L.J. 3000 had extensively considered the status and responsibilities of Public Prosecutor, method and mode of appointment, role and duties of a Public Prosecutor. It has been held that power to appoint a Special Public Prosecutor is a statutory right and fair trial is a fundamental right of the accused. It was further held if a statutory right has to be exercised offending a fundamental right, such action of the State would be amenable to scrutiny in writ jurisdiction. In other 16 words, it has been held technicalities if any, has to kneel before substantial justice. In the said case, it was noticed that Special Public Prosecutor had been appointed at the instance of a sitting MLA who had nothing to do with the crime in question and as such, in the facts and circumstances of the said case, the appointment of second respondent therein as Special Public Prosecutor came to be set aside reserving liberty to the third respondent therein to approach the Government for appointment of a Special Public Prosecutor afresh.
12. Section 225 of Cr.P.C would clearly disclose that every trial before the court of sessions, prosecution shall be conducted by a Public Prosecutor. A Public Prosecutor is not merely a representative of the State, but he represents the larger interest of the society. He holds the office of trust and responsibility. The conduct of all prosecution cases before a court of session would be in the hands of a Public Prosecutor.
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13. The Hon'ble Apex Court in the case of SHIVAKUMAR vs HUKAM CHAND reported in 1999 SCC Crl. 1277 has enumerated the role of Public Prosecutor in the following words:
"13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a sessions Court cannot be conducted by anyone other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the 18 instructions given by the Public Prosecutor."
A public prosecutor is not expected to exhibit inclination to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. If an accused is entitled to any legitimate benefit during the trial, the Public Prosecutor should make known the stand of the prosecution in the right perspective or in other words, he should not conceal such aspect which would benefit the accused, even in case of defence counsel having overlooked. Thus, the Public Prosecutor has added responsibility to bring it to the notice of the court of all the facts which comes to his knowledge.
14. The Honb'le Apex Court in HITENDRA VISHNU THAKUR vs STATE OF MAHARASHTRA reported in (1994)4 SCC 602 has held that a prosecutor does not represent the investigating agency, but the State and had also held that he is expected to 19 independently apply his mind and not merely act as a post office or a forwarding agency.
15. It is no doubt true that right to a trial is a fundamental right of every accused and the complainant would also be aggrieved or the victim who has suffered would also have the right to fair trial and as such, it cannot be restricted to the accused alone.
16. In the background of aforestated analysis, when the facts on hand are examined in the background of the original records made available by learned Additional Advocate General, it would emerge that at the first instance, when 6th respondent came to be appointed as Special Public Prosecutor by order dated 26.10.2016, same came to be challenged in W.P.No.1771/2017. Said writ petition came to be filed on 11.01.2017. Perusal of the grounds urged in the writ petition would disclose that petitioner had suspected the bonafides of 6th respondent on the ground that he had shown some inclination towards the complainant 20 and subsequently, he had also given a paper statement showing extra interest insofar as the complainant is concerned and in that context, petitioner contended that she may not get justice or there will be no fair trial if 6th respondent is allowed to continue with the prosecution. However, no material in support of said allegation was produced. Thus, it would emerge that apprehension of the petitioner to challenge the appointment of 6th respondent as Special Public Prosecutor at the first instance was based on suspicion only. Subsequently, on 27.11.2017 an affidavit came to be filed by the petitioner in the said case and it was specifically contended in the said affidavit that 6th respondent who had been appointed as Special Public Prosecutor had discussed about crime No.199/2016 with her i.e., before her arrest and petitioner had requested 6th respondent to appear and represent them in the event of any requirement and in that regard, had briefed the 6th respondent. However, this was not the ground urged by the petitioner in her writ petition filed 21 before the court i.e., in W.P.No.1771/2017. However, affidavit dated 27.11.2017 came to be filed by petitioner only after preliminary objections and statement of objections was filed on 07.06.2017 and 25.04.2017 by 5th and 6th respondent respectively in the said writ petition. In fact, 5th respondent therein filed statement of objections to the writ petition on 21.11.2017 and only thereafter affidavit came to be filed by the petitioner on 28.11.2017 alleging that she had briefed 6th respondent in crime No.199/2016. Allegation made by petitioner in the affidavit reads as under:
"I state that, the respondent No.5, Sri. M. Shantharam Shetty, Advocate and Notary Udupi, has been appointed as Special Public Prosecutor to conduct the Trail of the case in Crime no.199/2016. Myself along with my son, who has arrived as Accused No.2 in the above crime visited the office of respondent No.5 and discussed about the above case before our arrest in connection with the above crime. We have briefed him and requested him to appear and represent us in the event of any requirement. We have discussed our family issues and also allegations in above crime in length and we have also signed vakalath and have instructed respondent No.5 to appear before the Hon'ble court for us, if need arises in any of our litigation.22
However, because of ill-health and hospitalization I could not continue my conversation and communication with respondent No.5. all of a sudden my son was taken into custody and I was admitted into hospital for my treatment. At that point of time my relatives and well- wishers approached some other advocate for legal assistance. As such some other advocates were engaged to appear and represent on my behalf and also for my son.
I state that, the respondent No.5 appears to have been annoyed or disturbed by change of advocate and he has started supporting the respondent No.6. he not only gave some press statement against me and my son but also openly supported the group which is against us. They have also made resolution in "Bunts-Sanga"
and gave press statement against us."
17. The pleadings in writ petition would not disclose that petitioner at first available opportunity, had not raised the plea of she having briefed the 6th respondent in crime No.199/2016 which was the least expected of her when she filed the writ petition. The additional affidavit which has been filed on 27.11.2017
- Annexure-R3 would clearly disclose that plea raised in the said affidavit about being briefed 6th respondent is 23 an after thought. Thus, petitioner has been trying to improve her plea stage by stage and step by step.
18. The original records has also been perused by this Court. Same would disclose that pursuant to the direction issued on 31.01.2018 in W.P.No.1771/2017 by this Court, petitioner has filed her representation/objections on 01.02.2018 before first respondent. Complainant-7th respondent herein has been intimated of adjudication of petitioner's claim by first respondent vide communication dated 17.02.2018. 7th respondent has filed her objections to the complainant lodged by petitioner and same has been received by first respondent on 22.02.2018. In the writ petition No.1771/2017 filed on 11.01.2017, as already noticed herein above, statement of objections came to be filed by 6th respondent therein i.e., 7th respondent herein on 05.04.2017. Likewise, 5th respondent in W.P.No.1771/2017 i.e., 6th respondent herein filed statement of objections on 01.06.2017. An additional affidavit came to be filed by the petitioner on 24 27.11.2017, whereunder for the first time petitioner contended that she had met 6th respondent (Sri Shantaram Shetty who has been appointed as Public Prosecutor) and she had discussion with him in respect of Crime No.199/2016. This is an important event which has taken place according to petitioner. If it were to be so, this plea would have been urged by her at first instance itself. However, in the writ petition i.e., W.P.No.1771/2017 no such plea was raised. It is also very intriguing to note that, after said W.P.No.1771/2017 came to be disposed of by co- ordinate Bench on 31.01.2018, petitioner herein has filed objections on 03.02.2018 to the appointment of 6th respondent herein as Public Prosecutor and said objection is found in the original records at page Nos.149 to 169. A perusal of the same would disclose, even in this objection, petitioner has not made a whisper about she having discussed about Crime No.195/2016 with Sri Shantharam Shetty. In fact, said Sri Shantharam Shetty (6th respondent herein) had filed 25 a counter affidavit in W.P.No.1771/2017 in reply to the affidavit dated 27.11.2017 filed by petitioner in said writ petition. In said counter affidavit, 6th respondent herein, who was 5th respondent in W.P.No.1771/2017 has categorically denied about meeting of petitioner and her son or conversing with her or any member of petitioner's family meeting him. He has denied every statement made by petitioner in her affidavit dated 27.11.2017. Thus, initial burden cast on petitioner to prove primafacie case has not been established by her. In the absence of it, 6th respondent herein cannot be called to prove negative. All these aspects have been taken note of by the first respondent while dealing with the petitioner's objections. The decision of the State would not be subject to judicial review but only the decision making process and on examination of the original records, this court is of the considered view that there is no flaw or infirmity in the decision making process adopted by first respondent in exercise of it power under Section 24(8) of Cr.PC. and even otherwise 26 apprehension of the petitioner is without any basis and liable to be rejected for the reasons aforestated.
Hence, I proceed to pass the following:
ORDER
(i) Writ petition is hereby dismissed.
(ii) There will be no order as to costs.
Sd/-
JUDGE *sp