Delhi High Court - Orders
Ms. K vs Sunil Grover And Ors on 13 September, 2023
Author: Yashwant Varma
Bench: Yashwant Varma, Dharmesh Sharma
$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 252/2019, CM APPL. 16967/2019 & CM APPL.
16969/2019
MS. K ..... Appellant
Through: Mr. Harshil Gupta and Mr.
Munawar Naseem, Advs.
versus
SUNIL GROVER AND ORS. ..... Respondents
Through: Mr. Raghav Parwatiyar and Mr.
Ashesh Lal, Advs. for R-1.
Mr. Anupam Srivastava, ASC
for GNCTD along with Mr.
Dhairya Gupta and Mr. Ujjawal
Malhotra, Advs. for R-2 & R-3.
Mr. Shubhendu Saxena, Adv.
for R-4.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
HON'BLE MR. JUSTICE DHARMESH SHARMA
ORDER
% 13.09.2023
1. The appellant / victim assails the judgment rendered by the learned Single Judge dated 23 January 2019 setting aside the appointment of the fourth respondent (originally arrayed as respondent no. 3 in the writ proceedings) as a Special Public Prosecutor in respect of the trial which is pending before the concerned court and emanates from a complaint made by the appellant being FIR No. 156 dated 03 May 2008 laying allegation of crimes committed by the original writ petitioner referable to the provisions of the Scheduled Castes/ This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/09/2023 at 20:46:00 Scheduled Tribes (Prevention of Atrocities) Act, 19891. The case presently stands registered as Sessions Case No. 27462 of 2016. It would also be pertinent to note that while the writ petition came to be allowed and the order of the appointment of the fourth respondent as a Special Public Prosecutor came to be set aside, by virtue of the interim order passed on this appeal on 10 April 2019, further proceedings in the trial have remained stayed till date.
2. The original writ petitioner had assailed the appointment of the fourth respondent since he was stated to have been representing the appellant regularly in various matters before different courts. It was in the aforesaid light that it was contended that the appointment of the fourth respondent would not only be prejudicial to the original writ petitioner but also deny him the right of a fair trial. The fact that the fourth respondent had been appearing on behalf of the appellant in several cases was neither disputed before the learned Single Judge nor does the appellant assert before us that the aforesaid factual assertion is incorrect.
3. The appeal essentially proceeds on the basis of Section 15 of the SC/ST Act read along with Rule 4 of the Scheduled Castes / Scheduled Tribes (Prevention of Atrocities) Rules, 19952 with it being contended that bearing in mind the special protection which stands conferred by the statute upon members belonging to the Scheduled Castes and Scheduled Tribes, victims of crimes committed under the SC/ST Act are entitled to require the engagement of an eminent senior advocate for conducting cases in Special Courts or Exclusive Special Courts. According to the appellant, the choice so 1 SC/ST Act 2 SC/ST Rules This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/09/2023 at 20:46:00 indicated by the victim is binding on the District Magistrate and therefore, the judgment rendered by the learned Single Judge is liable to be set aside.
4. We may, at the outset, notice the provisions of Section 15 of the SC/ST Act and which reads thus:
"15. Special Public Prosecutor and Exclusive Public Prosecutor.--(1) For every Special Court, the State Government shall, by notification in the Official Gazette, specify a Public Prosecutor or appoint an advocate who has been in practice as an advocate for not less than seven years, as a Special Public Prosecutor for the purpose of conducting cases in that Court. (2) For every Exclusive Special Court, the State Government shall, by notification in the Official Gazette, specify an Exclusive Special Public Prosecutor or appoint an advocate who has been in practice as an advocate for not less than seven years, as an Exclusive Special Public Prosecutor for the purpose of conducting cases in that Court."
5. As would be manifest from the provisions contained in Section 15 of the SC/ST Act, for a Special Court or an Exclusive Special Court, the State Government stands empowered to either designate a Special Public Prosecutor / Exclusive Special Public Prosecutor or appoint an advocate who has been in practice for not less than 7 years.
6. Rule 4 of the SC/ST Rules enables the State Government to prepare a panel of "eminent senior advocates" who may have been in practice for not less than 7 years. The said provision reads as follows:-
"4. Supervision of Prosecution and Submission of Report.--
(1) The State Government, on the recommendation of the District Magistrate, shall prepare for each District a panel of such number of eminent senior advocates who have been in practice for not less than seven years, as it may deem necessary for conducting cases in the Special Courts and Exclusive Special Courts.
(1A) The State Government in consultation with the Director of Prosecution or in charge of the prosecution, shall also specify a panel of such number of Public Prosecutors and Exclusive Special Public Prosecutors, as it may deem necessary for This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/09/2023 at 20:46:00 conducting cases in the Special Courts and Exclusive Special Courts, as the case may be.
(2) xxxxxxxxxxx (3) xxxxxxxxxxx (4) xxxxxxxxxxx ;
(5) Notwithstanding anything contained in sub-rule (1) the District Magistrate or the Sub-Divisional Magistrate may, if deem necessary or if so desired by the victims of atrocity engage an eminent senior advocate for conducting cases in the Special Courts or Exclusive Special Courts on such payment of fee as he may consider appropriate."
7. The writ petition was opposed on the anvil of Rule 4(5) of the SC/ST Rules with the appellant apparently contending that once the victim expresses a desire for the engagement of an eminent senior advocate for conducting the case, the District Magistrate is bound to accept and accede to the same and proceed accordingly. The aforesaid contention has been negatived with the learned Single Judge observing as follows:-
"18. This Court is unable to concur with the aforesaid opinion. First of all, Sub-rule (5) of Rule 4 does not stipulate that the victim of atrocity can insist on engagement of a lawyer of his/her own choice. Undoubtedly, the victim can request that an eminent senior advocate be appointed for conducting the case, however, the decision in this regard would rest with the concerned District Magistrate/Sub-Divisional Magistrate. Appointment of Special Counsels to conduct cases on behalf of the State has monetary implication. In this case, respondent no.3 has been appointed at a fee of Rs.25,000/- per appearance, subject to the condition that the total fees payable for a month shall not exceed Rs.1,40,000/-. It is difficult to accept that the victim can insist that an advocate of his choice be appointed at the cost of the State Exchequer, without any application of mind on the part of the concerned District/Sub Divisional Magistrate. The language of Sub-rule (5) does not provide that the eminent senior advocate to be one of the victim's choice.
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22. If the contention of Mr Srivastava that it is necessary for the Magistrate to appoint an advocate of the victim's choice whenever a request is so made, is accepted, it would serve little This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/09/2023 at 20:46:00 purpose to maintain a panel of eminent senior advocates or a Panel of Public Prosecutors or Special Public Prosecutors. This Court is of the view that such a interpretation militates against the scheme of Rule 4 of the SC/ST Rules.
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24. Undoubtedly, a victim can suggest appointment of a lawyer, however, it would be necessary for the District Magistrate or Sub-Divisional Magistrate to satisfy themselves that it is necessary or appropriate to engage an eminent senior advocate and further that it is necessary that such an advocate be appointed to prosecute the case."
8. Insofar as Rule 4(5) of the SC/ST Rules is concerned, the learned Single Judge has further observed that the obligation of the District Magistrate to take into consideration a request made by a victim of atrocity to engage an eminent senior advocate would not be confined merely to the panel that may be maintained by the respondents. This would be evident from the following observations as they appear in paragraph 21: -
"21. A conjoint reading of Sub-rule (1) and (1A) of Rule 4 of the said Rules clearly indicates that the Central Government has drawn a distinction between a panel of Senior Advocates and other public prosecutors. Sub-rule (5) of Rule 4 enables the District Magistrate and the Special Divisional Magistrate to engage an eminent senior advocate, where it is deemed necessary or if desired by the victim of atrocity. It is relevant to note that Sub-rule (5) contains a non obstante clause and the Magistrate/Sub Divisional Magistrate is empowered to appoint a Senior Advocate, notwithstanding anything contained in Sub- rule (1) of Rule 4. In other words, the Magistrate/Sub Divisional Magistrate is entitled, where it is deemed necessary, to engage a Senior Advocate, notwithstanding that his name does not feature in the panel as notified under Sub-rule (1) of Rule 4 of the SC/ST Rules. However, the said provision cannot be read to mean that the Magistrate or Divisional Magistrate can appoint any advocate of the choice of the victim, without considering the criteria as set out in Sub-rule (5) of Rule 4. The power under Sub-rule (5) of Rule 4 of the SC/ST Rules must be exercised in cases where it is necessary and with due application of mind."
9. The learned Single Judge, however, while interpreting the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/09/2023 at 20:46:00 phrase eminent senior advocate as appearing in Rule 4 of the SC/ST Rules has proceeded to observe that such an advocate would necessarily have to be one who has been duly designated as such in terms of the provisions made in the Advocates Act, 19613. We must, at the outset, state that we find ourselves unable to sustain the aforesaid conclusion as recorded in the judgment impugned for the following reasons.
10. Rule 4 of the SC/ST Rules in unambiguous terms contemplates the formation of a panel of eminent senior advocates. The only stipulation which stands attached to their empanelment is that they must be advocates who have practiced for not less than 7 years. As we construe Rule 4 of the SC/ST Rules, we find ourselves unable to countenance the expression eminent senior advocate as appearing therein as being relatable to the provisions of the 1961 Act. In our considered opinion, Rule 4 of the SC/ST Rules does not appear to envisage only designated senior advocates being included on the panel which is liable to be prepared nor would that expression draw colour from Section 16 of the 1961 Act even where the same expression finds place in sub-rule (5) of Rule 4 of the SC/ST Rules.
11. We note that while it is true that Section 16 of the 1961 Act recognizes two classes of advocates, namely, "senior advocates" and "other advocates", the same essentially deals with the recognition which may be accorded by either the Supreme Court or the High Court upon an advocate and who may be designated as a senior advocate bearing in mind his standing at the Bar or his / her special knowledge or experience and where it is found that such a distinction is deserved.
31961 Act This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/09/2023 at 20:46:00
12. Rule 4 of the SC/ST Rules on the other hand appears to suggest that any advocate who has put in at least 7 years of practice and has attained eminence in the profession would be eligible to be enlisted in the panel that is liable to be prepared. If the intent of the rule maker was to restrict the application of Rule 4 of the SC/ST Rules only to senior advocates so designated in terms of Section 16 of the 1961 Act, there would have been no necessity to use the expression eminent senior advocates. If the author of the Rule intended to adopt the provisions of the 1961 Act and the concept of senior advocates as flowing from Section 16, it would have merely used the expression senior advocate. For the aforesaid reasons, we find ourselves unable to agree with the interpretation as accorded by the learned Single Judge insofar as this issue is concerned.
13. However, insofar as the principal dispute is concerned, we find that the conclusions as rendered by the learned Single Judge clearly merit no interference and are clearly unexceptionable. While it is true that Rule 4(5) of the SC/ST Rules enables a victim of atrocity to request the District Magistrate to appoint an eminent senior advocate for conducting the trial in respect of a crime allegedly committed under the SC/ST Act, it cannot possibly be stretched to the victim being recognized to be entitled to insist upon the engagement of a particular advocate. While the District Magistrate is clearly obliged to take a request made by a victim into consideration, sub-rule (5) of Rule 4 of SC/ST Rules cannot possibly be read as the District Magistrate being inevitably bound by the choice of an advocate as indicated by the victim. If the interpretation as advocated by the appellant were to be accepted, it would result in District Magistrate being deprived of the discretion to consider the appointment of an This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/09/2023 at 20:46:00 appropriate eminent senior advocate. The acceptance of the contention as addressed by the appellant may also be considered in light of the facts as obtaining in the present case itself and where the allegation of the original writ petitioner was that the advocate so indicated by the victim was already appearing in various other matters pending in different courts. The interpretation as advocated by the appellant would deprive the District Magistrate to deal with such eventualities and where serious allegations of prejudice or lack of confidence may be raised.
14. We thus find ourselves unable to find any error in the ultimate directions that have come to be framed by the learned Single Judge. The judgment thus deserves to be affirmed subject to what has been observed by us hereinabove insofar as the meaning to be ascribed to the phrase eminent senior advocate is concerned.
15. The appeal consequently fails and shall stand dismissed. It shall be open for the District Magistrate to proceed further in terms of the directions as framed by the learned Single Judge and appearing in paragraph 25 thereof.
YASHWANT VARMA, J.
DHARMESH SHARMA, J.
SEPTEMBER 13, 2023 RW This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/09/2023 at 20:46:01