Calcutta High Court (Appellete Side)
Mrs. Jharna Ghosh vs State Of West Bengal & Ors on 19 August, 2011
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas
W.P.No. 13592 (W) of 2011
Mrs. Jharna Ghosh
v.
State of West Bengal & Ors.
Mr. Ashimesh Goswami
Ms. Joyita Ray ... for the petitioner
Mr. Pratik Prakash Banerjee
Mr. Dhiraj Trivedi ... for the State
Heard on: August 19,2011
Judgment on: August 19,2011
The Court: The petitioner in this art.226 petition dated August 11,2011 is seeking
the following principal relief:
"(a) writ of and/or in the nature of Mandamus commanding the respondents to
allow the application dated 18.5.2011 made by writ petitioner to the respondent no.2 (Annexed as "P-2") for appointment of former public prosecutor Mr. Sushil Chakraborty, to conduct the Sessions Trial No.4(1) 03 pending in the court of Learned Additional Sessions Judge, Fast Track Court-1, Alipore as Special Public Prosecutor."
The Sessions Trial No. 4(1) 03 arose out of Usti P.S. Case No. 106 dated October 23,2002 under ss. 302/34 IPC; the person whose death led to registration of the case was the petitioner's husband and it was registered on the basis of information she gave in writing.
2It has been stated in para.4 of the petition that one Mr Sushil Chakraborty was conducting the prosecution in the trial before the Court of Session in the capacity of the Public Prosecutor, and that in place of Sri Chakraborty another person has been now appointed to conduct the prosecution in the trial as the Public Prosecutor.
The petitioner has made a representation requesting the Legal Remembrancer to appoint Mr Chakraborty as the Special Public Prosecutor for conducting the prosecution in the trial on the grounds that since he was conducting the prosecution in the trial from the beginning in natural course it would be easier for him to conduct the prosecution effectively. Now alleging that her representation has not been considered she has brought this petition.
The question is whether the petitioner is entitled to allege inaction on the part of the State Government in the sense that though the State Government was under an obligation to consider her representation, it has failed and neglected to consider it. If it is found that the petitioner was entitled to call upon the State Government to appoint the previous Public Prosecutor as the Special Public Prosecutor for conducting the prosecution in the trial, then it can be said that she was entitled to make the representation, and that non-consideration of the representation has amounted to inaction on the part of the State Government.
My attention has been drawn to the provisions of s.24(8) of the Code of Criminal Procedure,1973 and the decisions in Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors.,(2004) 4 SCC 158, Chhaya Ray v. State of West Bengal & Ors.,2007(2) CHN 819, Himanshu Singh Sabharwal v. State of Madhya Pradesh & Ors., (2008) 3 SCC 602 and State of Maharashtra & Ors. v. Prakash Prahlad Patil & Ors.,(2009) 12 SCC 159.
While Mr. Goswami appearing for the petitioner has strenuously argued that on the facts of the case this Court should exercise its extraordinary Writ powers for directing the State Government to consider the petitioner's representation for appointing the 3 previous Public Prosecutor as the Special Public Prosecutor for conducting the prosecution in the trial, Mr. Sarkar appearing for the State has submitted that he has no instructions to say that the State Government has decided to consider the petitioner's representation.
Evident silence on the part of the State Government eloquently says that it is not inclined to give any attention to the petitioner's representation for appointing the previous Public Prosecutor as the Special Public Prosecutor for conducting the prosecution in the trial. No provision of law entitles the petitioner to call upon the State Government to consider the question of appointing the previous Public Prosecutor as the Special Public Prosecutor under s.24(8) of the Code for conducting the prosecution in the trial. Existence of the State Government's power to appoint a Special Public Prosecutor for conducting the prosecution in the trial does not create a corresponding right of the petitioner to call upon the State Government to exercise the power. Whether a Special Public Prosecutor should be appointed for conducting the prosecution in the trial is to be decided, if at all, by the State Government and a mandamus cannot be issued commanding it to decide the question on the basis of the petitioner's representation. An order directing the State Government to consider the representation may lead to it an undesirable situation as well. If the State Government accepts the request, then the present Public Prosecutor conducting the prosecution in the trial, suffering a consequential removal from the charge of the case, will be greatly prejudiced.
None of the decisions to which my attention has been brought supports the proposition that a defacto complainant has a right to call upon a State Government to substitute a Special Public Prosecutor of his choice for the public prosecutor for conducting of the prosecution in a trial before a court of Session in which he is interested.
In Zahira's case the Supreme Court directed the State Government to appoint a Public Prosecutor considering the names suggested by the affected persons, on the 4 peculiar facts of that case. The direction was give evidently in exercise of power under art.142 of the Constitution.
In Chhaya Ray it was held that a defacto complainant has no right to ask the State Government to appoint a Special Public Prosecutor of his choice.
In Himanshu Singh also opportunity was given to the son of the deceased to suggest names of persons to function as Public Prosecutor on the peculiar facts of the case. There the Sessions Judge was directed to appoint a Public Prosecutor after considering the suggested names. It is evident that there also the direction was given in exercise of power under art.142.
In Prakash Prahlad it was held that judicial review of appointment of a Special Pubic Prosecutor is not available.
It is, therefore, evident that the petitioner has no right to call upon the State Government to appoint the previous Public Prosecutor as the Special Public Prosecutor for conducting the prosecution in the trial. I am, therefore, unable to accept her allegation of inaction on the part of the State Government. Her representation could not, and actually did not, create any obligation of the State Government to consider the question of appointing the previous Public Prosecutor as the Special Public Prosecutor for conducting the prosecution in the trial.
The Public Prosecutor appointed by the State Government for the district is statutorily obliged to conduct the prosecution in the trial unless the State Government decides otherwise. Hence power under art.226 cannot be exercised for directing the State Government to consider the question of appointing the previous Public Prosecutor as the Special Public Prosecutor for conducting the prosecution in the trial.
5Attention of counsel for the parties was drawn to the provisions of s.301 of the Code. Section 301 is quoted below:
"301.Appearance by Public Prosecutors.-(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.
(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case."
After examining the provisions of sub-s.(2) of s.301 Mr Goswami has submitted that this petition may be disposed of saying that if the petitioner engages Mr Chakraborty or any other person to prosecute the person against whom charge-sheet has been submitted in the Court of Session, then he should be permitted to give service in terms of provisions of sub-s.( )f s.301.
To this Mr Sarkar has submitted that when the provisions of s.301(2) entitle the petitioner to instruct Mr Chakraborty or any other person to prosecute the person concerned in the Court of Session, the State can have no reason to say that she should not be permitted to instruct Mr Chakraborty or any person of her choice to participate in the prosecution in terms of sub-s.(2) of s.301.
In view of the provisions of s.301(2) the petitioner is free to instruct Mr Chakraborty or any other person of her choice to prosecute the person concerned in the Court of Session. If she gives such instruction to any person, such person will be entitled to give service according to the provisions of sub-s.(2) of s.301.
For these reasons, I dispose of the petition saying that if the petitioner instructs Mr Chakraborty or any other person to prosecute the person concerned in the Court of 6 Session, then such person will be entitled to give service in terms of the provisions of s.301(2). It is made clear that nothing herein shall prevent the State Government from considering the petitioner's request for appointing Mr Chakraborty or any other person as Special Public Prosecutor for conducting the prosecution in the trial. No costs. Certified xerox.
Sh(c) ( Jayanta Kumar Biswas, J ) Ab(f)