Bombay High Court
Mr. Umesh Balasaheb Kalabhor vs The State Of Maharashtra on 4 July, 2008
Author: B.H. Marlapalle
Bench: B.H. Marlapalle, R.Y. Ganoo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 628 OF 2008
Mr. Umesh Balasaheb Kalabhor ..Petitioner
Vs.
The State of Maharashtra
and ors. ..Respondents
Mr. Sudhir Halli for petitioner.
Mr. Ravi Kadam, Advocate General, with Mrs. A.S.
Pai, APP for State.
CORAM: B.H. MARLAPALLE & R.Y. GANOO,JJ.
Reserved on : June 27, 2008.
Pronounced on: July 04, 2008.
JUDGMENT:(Per B.H. Marlapalle,J.)
1. Heard Mr. Halli the learned counsel for the petitioner. Rule.
2. Respondents waive service. The petition has been heard finally.
3. The petitioner has challenged the order dated 29/11/2007 issued by the Government of Maharashtra through the Department of Law and Judiciary in ::: Downloaded on - 09/06/2013 13:33:46 ::: :2: exercise of its powers under Section 24(8) of the Code of Criminal Procedure, 1973 and by the said order Shri Vijay Savant has been appointed as a Special Public Prosecutor in Sessions Case No. 591 of 2006 pending before the Sessions Court at Pune. The impugned order has also fixed the lumpsum fees of Rs.75,000/- to be paid to Shri Vijay Savant and the said amount has been deposited by the applicant-complainant Shri Ramesh Baburao Pokale. Though Shri Vijay Savant has not been impleaded as one of the respondents, he has filed affidavit on 18/6/2008 ig denying that he is in any way and even remotely related to the complainant. He has annexed to the affidavit-in-reply a copy of his educational and legal career so as to point out that he was a right choice for appointing as Special Public Prosecutor at the request of the complainant. He is enrolled as member of the Bar in 1978 and has worked as the District Government Pleader and Public Prosecutor at Pune during the period from 1992 to 1996. He has also given a list of some prominent cases he had handled before the Sessions Court/TADA Court at Pune.
4. The appointment has been challenged on various ::: Downloaded on - 09/06/2013 13:33:46 ::: :3: grounds and it has been mainly stated that the same is not in keeping with the scheme of Section 24(8) of the Cr.P.C. read with Rule 22 of the Rules for the Conduct of the Legal Affairs of Government, 1984 (for short the Rules of Legal Affairs) and the law laid down by the Supreme Court in the case of Mukul Dalal and ors. vs. Union of India and ors. [(1988) 3 SCC 144] as well as the decision of this court in the case of Sushil Hiralal Chokhani & ors. vs. State of Maharashtra and ors. [2005 (2) Bom. C.R. (Cri.) 654] and Omprakash ig Baheti and ors. vs. State of Maharashtra and ors. [2006 Cri. L.J. 3105].
3105] The
challenge to the order is also on the ground that it
is arbitrary, unreasonable, without application of
mind and in any case not in public interest. It is
further contended that the impugned order does not
speak about the nature and gravity of the case
warranting the appointment of Special Public
Prosecutor in public interest. The learned counsel
for the petitioner referred to the complaints filed
against Shri Ramesh Baburao Pokale (complainant) and
his other family members at the instance of the
petitioner, who is one of the accused in Sessions Case
No. 591 of 2006 and despite such serious complaints
::: Downloaded on - 09/06/2013 13:33:46 :::
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pending against Shri Ramesh Baburao Pokale, the
impugned order has been passed allowing his
application for appointment of the Special Public
Prosecutor, even though his antecedents are equally bad.
5. On behalf of the respondent no.1 affidavit-in-reply has been filed by the Solicitor-cum-Joint Secretary, Law & Judiciary Department so as to oppose the petition and justify the impugned igorder. It has been pointed out that the complainant submitted an application, which was received by the Home Department on 30/5/2007, for the appointment of Shri Vijay Savant as a Special Public Prosecutor in Sessions Case No. 591 of 2006, which is pending for trial for the offences punishable under Section 302 and 307 read with Section 34 of the Indian Penal Code. The said application was examined by the Home Department as well as the Department of Law and Judiciary and the Principal Secretary and RLA applied his mind and considering the nature and gravity of the offence along with the element of public interest involved in the said case, recommendation was made to the Government for approving the appointment of Shri ::: Downloaded on - 09/06/2013 13:33:46 ::: :5: Vijay Savant as Special Public Prosecutor. The said file was placed before the State Minister (Law) and on his approval, it was placed before the Hon'ble Chief Minister, who finally approved the appointment of Shri Vijay Savant and accordingly the impugned order was issued. It is reiterated that the Principal Secretary and RLA, considering the peculiar nature of the case, gravity of offence and circumstances brought on record along with the request of the complainant, concluded that it was necessary to appoint the Special Public Prosecutor in Sessions Case No. 591 of 2006.
6. Section 24(8) of the Code of Criminal Procedure states, "The Central Government or the State Government may 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."
::: Downloaded on - 09/06/2013 13:33:46 ::: :6:. Rule 22, as originally framed in 1984 reads as under:-
"If in any case, civil or criminal, a request is made by any private party, interested in the case, for the appointment of its own advocate as a Special Counsel or Special Public Prosecutor, as the case may be, on the condition that the payment of fees of such advocate will be borne by that party, the Remembrancer of Legal Affairs may, after considering such case on merits, appoint such advocate for that particular case or cases."
. In the case of Mukul Dalal (Supra) the Supreme Court held Rule 22 as bad and stated that the Government should properly modify the said Rule in keeping with the conclusions recorded in the judgment.
On 4/4/2002 the Government of Maharashtra amended Rule 22 as under:-
". If in any case, civil or criminal, a request is made by any private party, interested in the case, of the appointment of ::: Downloaded on - 09/06/2013 13:33:46 ::: :7: its own advocate as a Special Counsel or Special Public Prosecutor, as the case may be, on the condition that the payment of fees of such advocate will be borne by that party, the party shall deposit the fees, in the Law and Judicial Department, of the Advocate, to be appointed as Special Counsel or Special Public Prosecutor, in advance to be determined by the Principal Secretary and Remembrancer of Legal Affairs, Law and Judiciary Department, Government of Maharashtra, and such fees shall be paid to the Special Counsel or Special Public Prosecutor, as the case may be, on completion of trial.
. Provided that, this provision shall not be applicable to the public sector undertaking, a bank, whether nationalised or not, an educational institution and the like."
7. Having realised the deficiencies in the amended Rule as well, the Government of Maharashtra vide its Resolution dated 13/9/2004 again amended Rule 22 and the said Rule, applicable as of now, reads as ::: Downloaded on - 09/06/2013 13:33:46 ::: :8: under:-
"22.Engagement of Special Publi Prosecutor.-(1) The Government in the Law and Judiciary 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:
Provided that, no order under this sub-rule regarding appointment of a Special Public Prosecutor shall be made unless, for the reasons to be recorded in writing, the Remembrancer of Legal Affairs is satisfied, having regard to the nature of the case, gravity of the matter and public interest involved in the matter that such appointment is necessary.::: Downloaded on - 09/06/2013 13:33:47 ::: :9:
(2) On the request of a private complainant not being the aggrieved party, the Government in the Law and Judiciary Department may, appoint any of the Public Prosecutor or Additional Public Prosecutor as a Special Public Prosecutor in accordance with the provisions of sub-rule (1), for conducting any such case.
(3) Fees for such Special Public Prosecutor, appointed ig under sub-rule (1) or (2), may be borne by the Government or the aggrieved party or the private complainant, as may be directed by the Remembrancer of Legal Affairs;
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 the fees to be paid to such Special Public Prosecutor, shall be deposited with the Government in the Law and Judiciary Department first, and the ::: Downloaded on - 09/06/2013 13:33:47 ::: :10: same shall be paid by it to such Special Public Prosecutor on completion of the trial, unless directed otherwise by the Remembrance of Legal Affairs."
8. Sub-rule (1) of Rule 22 empowers the Government in the Law and Judiciary Department, either suo motu or on the request of any aggrieved party to engage an Advocate as a Special Public Prosecutor in any criminal ig case or class of cases. The Advocate sought to be engaged is required to be in practice as an Advocate for not less than ten years and for his appointment regards be had to his general repute, legal acumen and suitability. The proviso below sub-rule (1) of Rule 22 states that no order under the said sub-rule regarding appointment of Special Public Prosecutor shall be made unless, for the reasons to be recorded in writing, the Remembrancer of Legal Affairs (RLA) is satisfied, having regard to the nature of the case, gravity of the matter and public interest involved in the matter that such appointment is necessary. Sub-rule (2) of Rule 22 is for a private complainant not being the aggrieved party, for ::: Downloaded on - 09/06/2013 13:33:47 ::: :11: appointment of a Public Prosecutor or Additional Public Prosecutor as a Special Public Prosecutor, whereas sub-rule (3) of Rule 22 states that the fees for such Special Public Prosecutor may be borne by the Government or the aggrieved party or the private complainant, as may be directed by the RLA.
9. It is thus clear that the first part of Rule 22(1) speaks of the requirements to be met by an Advocate for being appointed as a Special Public Prosecutor by ig the Government, either suo motu or on the request of any aggrieved party, whereas in the second party, under the proviso, the RLA is required to record reasons in writing about his satisfaction on the necessity of such appointment, having regard to the nature of the case, gravity of the matter and public interest involved in the matter that such appointment is necessary. It is obvious that the failure to do so on the part of the RLA, would vitiate the appointment.
10. After the Supreme Court decision in the case of S.B. Shahane and ors. vs. State of Maharashtra ::: Downloaded on - 09/06/2013 13:33:47 ::: :12: and anr. [AIR 1995 SC 1628], 1628] the Government of Maharashtra through its Home Department issued a G.R. dated 10/1/2000 and laid down, inter alia, that the Sessions cases of special importance would be handled by the Assistant Director of Prosecution and Public Prosecutor and Director of Prosecution will be the head of all the Prosecutors in the State. Section 25-A has been inserted in the Code of Criminal Procedure (Amendment Act, 2005) with effect from 23/6/2006 and as per the same, the Director of Prosecution will ig be the head of the Directorate of Prosecution and shall function under the administrative control of the head of the Home Department in the State. Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under subsection (1) or as the case may be under subsection (8) of Section 24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution and every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution. Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under subsection (3) or as the case may be ::: Downloaded on - 09/06/2013 13:33:47 ::: :13: under subsection (8) of Section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under subsection (1) of Section 25 shall be subordinate to the Deputy Director of Prosecution.
Having regards to the G.R. dated 10/1/2000 and the scheme of Section 25-A of Cr.P.C., we had raised a query as to whether it is necessary to obtain the opinion of the Director of Prosecution before an order under Rule 22 is passed for the appointment of a Special Public Prosecutor. The response of the learned Advocate ig General was in the negative. The learned Advocate General further stated that the provisions of Section 25-A of Cr.P.C. have not been made applicable as yet by the State Government as the Directorate of Prosecution has been established by the State Government much before the introduction of the said Section in Cr.P.C. and, therefore, in a given case the issue raised by the court is required to be considered, but in any case it was not necessary for the State Government to obtain the opinion of the Director of Prosecution while passing the impugned order. He also pointed out that as of now the post of Director Prosecution is vacant and on such contingency it may not be necessary as a legal requirement to ::: Downloaded on - 09/06/2013 13:33:47 ::: :14: consult the said authority for the appointment of Special Public Prosecutor.
11. We are surprised that the Law & Judiciary Department has not briefed the learned Advocate General about the facts, as available on record on this issue. We have noted from the record placed before us that vide letter dated 1/6/2007 Home Department called ig for the remarks/opinion of the Director of Prosecution and in reply thereto the proposal for appointment of Special Public Prosecutor was opposed by the said authority. As per the GR dated 10/1/2000 the Directorate of Prosecution consists of Director of Prosecution, Deputy Director of Prosecution etc. and all the Public Prosecutors are functioning under the Director of Prosecution.
The same scheme appears in Section 25-A of Cr.P.C.
which has been brought into force with effect from 26/3/2006 by the Central Government. Once the Central Government has brought into force the amendment in Cr.P.C., the State Government has no option but to abide by it, though it may seek suitable amendments ::: Downloaded on - 09/06/2013 13:33:47 ::: :15: thereto.
12. Mr.Halli, the learned counsel for the petitioner submitted that the petitioner is an accused in FIR No.111/06 registered on 14/5/2006 for the offence punishable under Section 307 read with Section 34 of IPC and he came to be arrested along with one more accused in connection with the said offence. It was alleged that in the complaint filed by Shri Ramesh Baburao Pokale ig on 14/5/2006 at about 5.30 p.m. he along with his Manager Shri Yadnesh Todankar were assaulted by the petitioner and other accused with weapons. The said Manager Shri Yadnesh Todankar succumbed to his injuries and the FIR came to be amended so as to include an additional offence punishable under Section 302 read with Section 34 of IPC. He has further invited our attention to the Bail Application No.167 of 2007 filed by the said Ramesh Pokale for anticipatory bail before the Addl.
Sessions Judge so as to point out that the petitioner's sister Priya who was married to the complainant Ramesh Pokale in the year 2002 has been missing from 12/3/2006 along with her daughter Preeti ::: Downloaded on - 09/06/2013 13:33:47 ::: :16: and despite all the efforts made they could not locate her for more than two months. He referred to the letter dated 5/11/2005 addressed by the Sub Divisional Police Officer, Haveli to the District Government Pleader at Pune in connection with FIR No.2064 of 2005 registered on 3/11/2005. By the said letter the SDPO had requested the District Government Pleader to oppose the anticipatory bail application of the complainant (accused no.9 in FIR No.2064 of 2005). It was stated in the said letter that the complainant Ramesh Pokale ig is the owner of Laxmi Lodge at Dhairi and though it was being run by another accused, the lodge was being used for prostitution / immoral trafficking. It was further pointed out that though the lodge was given on leave and licence basis, the complainant was staying next to the lodge and, therefore, he was aware of the immoral trafficking going on in the premises of the Laxmi Lodge. It was, therefore, contended that the antecedents of the applicant - complainant were such that the Government of Maharashtra ought to have rejected his application for appointment of a Special Public Prosecutor as the applicant himself had a criminal record. He further submitted that the RLA did not consider all these ::: Downloaded on - 09/06/2013 13:33:47 ::: :17: aspects and passed the impugned order without forming any opinion as to the nature and gravity of the offence taken place on 14/5/2006 and also the element of public interest involved in the appointment of a Special Public Prosecutor. As per the learned counsel for the petitioner the impugned order was passed without application of mind, not in public interest and the RLA did not verify as to whether the requirements of Rule 22 of Rules of Legal Affairs were made out for the appointment of a Special Public Prosecutor under ig Section 24(8) of Cr.P.C. He also made an allegation that Shri Vijay Savant is a close relation of the applicant - complainant. We make it clear at this stage itself that we do not find any substance in the allegation that the complainant is a close relation of Mr. Vijay Sawant.
13. In keeping with the requirements in the first part of Rule 22(1) of the Rules for the Legal Affairs, we had passed an order on 13/6/2008 directing the Director of Prosecution to place before us the track record of Shri Vijay Savant as available on record.
Despite the affidavit having been presented by Shri R.D.Sankhe, In-charge Director of Prosecutor, ::: Downloaded on - 09/06/2013 13:33:47 ::: :18: Maharashtra State, for the second time, the said affidavit does not state that the record available in the office of the Director of Prosecution was perused and as per the same nothing adverse was noticed.
Instead, the affidavit only stated that Mr.Vijay Savant is a well known Advocate. However, we need not consider the issue of antecedents of Shri Savant as the learned counsel for the petitioner has not very seriously challenged the same and from the resume annexed by Shri Savant to his affidavit this issue regarding the ig requirements in the first part of Rule 22(1) of the Rules for the Legal Affairs does not arise for our consideration in this petition as well.
Hence we are required to consider only the second part of Rule 22(1) of the Rules for Legal Affairs viz.
regarding the reasons to be recorded in writing by the RLA while making such an appointment as a Special Public Prosecutor.
14. On the issue of scope and extent of power of judicial review, a three Judge Bench in the case of State of U.P. and anr. vs. Johri Mal [AIR 2004 SC 3800] held as under:-
::: Downloaded on - 09/06/2013 13:33:47 ::: :19:". The scope and extent of power of the judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi judicial or administrative. 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 the other organs of the State. Decisions and actions which do not have adjudicative disposition may not strictly fall for consideration before a judicial review succinctly put are:
(i) Courts, while exercising the power of judicial review, do not sit in appeal over the decisions of administrative bodies.::: Downloaded on - 09/06/2013 13:33:47 ::: :20:
(ii) A petition for a judicial review would lie only on certain well-defined grounds.
(iii) An order passed by an administrative authority exercising discretion vested in it, cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal.
(iv) A mere wrong decision without anything more is not enough to attract the power of judicial review; the supervisory jurisdiction conferred on a Court is limited to seeing that Tribunal functions within the limits of its authority and that its decisions do not occasions miscarriage of justice.
(v) The Courts cannot be called upon to undertake the Government duties and functions.
The Court shall not ordinarily interfere with a policy decision of the State. Social and economic belief of a Judge should not be invoked as a substitute for the judgment of the legislative bodies. (See Ira Munn v.
::: Downloaded on - 09/06/2013 13:33:47 ::: :21:State of Ellinots, 1876 (94) US (Supreme Reports) 113)."
. The Supreme Court further clarified that while exercising the power of judicial review the Court is more concerned with the decision making process than the merit of the decision itself. But while examining and scrutinizing the decision making process it becomes inevitable to also appreciate the facts of a given case as otherwise the decision cannot be tested under the ig grounds of illegality, irrationality or procedural impropriety. To a limited extent of scrutinizing the decision making process, it is always open to the Court to review the evaluation of facts by the decision maker and malicing of law can also be a ground for judicial review.
15. As per Section 225 of Cr.P.C. that every trial before a court of Sessions, the prosecution shall be conducted by a Public Prosecutor. As per Section 2(u) of Cr.P.C., "Public Prosecutor" means any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor. Section 301 of Cr.P.c. deals with the ::: Downloaded on - 09/06/2013 13:33:47 ::: :22: appearance by Public Prosecutor and it reads as under:-
"301. Appearance by Public Prosecutor.- (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.
ig(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."
. Undoubtedly, the Public Prosecutors have greater responsibility and they are required to ::: Downloaded on - 09/06/2013 13:33:47 ::: :23: perform statutory duties independently having regard to various provisions contained in Cr.P.C. The Public Prosecutors while presenting a prosecution case have a duty to see that innocent persons may not be convicted as well as an accused guilty of commission of crimes does not go unpunished. A three-Judge Bench in the case of Shiv Kumar Vs. Hukam Chand and anr. [(1999) 7 SCC 467] stated as under:
"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 ::: Downloaded on - 09/06/2013 13:33:47 ::: :24: 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. A private counsel, if allowed a 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 instructions given by the Public Prosecutor.
14. It is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. The role which a private counsel in such a situation can play is, ::: Downloaded on - 09/06/2013 13:33:47 ::: :25: perhaps, comparable with that of a junior advocate conducting the case of his senior in a court. The private counsel is to act on behalf of the Public Prosecutor albeit the fact that he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would become a combat between the private party and the accused which would render the legislative mandate in Section 225 of the Code a dead letter."
16. The law laid down by the Supreme Court and this court as well as other High Courts for the appointment of Special Public Prosecutor could be formulated as under:-
(a) The appointment of a Special Public Prosecutor is not to be made for the asking and it is not that whenever an application is made, it should be allowed and a Special Public Prosecutor is appointed.::: Downloaded on - 09/06/2013 13:33:47 ::: :26:
(b) Without srcutinizing, on the basis of the guide-lines prescribed, the services of a Special Public Prosecutor should not be made available to a private complainant.
(c) The request for appointment of a Special Public Prosecutor should be properly examined by the RLA and only when he is satisfied, having regards to the nature of the case, gravity of the matter and public interest involved in the matter, that such appointment is necessary.
(d) An Advocate being appointed as a Special Public Prosecutor has to be in practice for not less than ten years and regard must be had to his general repute, legal acumen and suitability.
(e) Before acceding to the request by any private party for appointment of a Special Public Prosecutor, it is necessary for the RLA to get himself satisfied about the necessity of such appointment having regard to the ::: Downloaded on - 09/06/2013 13:33:47 ::: :27: nature of the case, gravity of the matter and public interest involved therein. Such satisfaction should be reflected from the order recorded in writing by the RLA while approving the appointment.
(f) The RLA must be satisfied that the case
wherein such appointment is requested for
deserves and the prevailing circumstances need
the appointment of a Special Public
Prosecutor.
(g) The points relating to the person's
reputation and experience at Bar should find
place in the consideration by the RLA and it
should not be a mechanical exercise on his
part.
(h) Such appointment shall be, on
consideration of all the relevant factors in
relation to a particular case or class of
cases and the consideration thereof should be
apparent from the order of appointment issued
by such authority and it is not necessary that
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the notification for such appointment need
reflect the entire order itself.
(i) The payment of fees of the Special Public
Prosecutor, the quantum as well as source of
payment should not only be specified but
should also be reasonable and justified.
17. The Division Bench of this court in the case of Sushil Hiralal Chokhani (Supra) further stated as under:-
"......As already observed above, the said Rules require that the appointment of a Special Public Prosecutor has necessarily to be by a reasoned order in writing by the Remembrance of Legal Affairs. The required criteria prescribed for an Advocate to be appointed as Special Public Prosecutor is satisfied or not is necessarily to be considered by Remembrancer of Legal Affairs before engaging any Advocate as the Special Public Prosecutor in a particular case or class of cases. So also, consideration of ::: Downloaded on - 09/06/2013 13:33:47 ::: :29: involvement of the public interest in the matter or matters, as the case may be, is a pre-requisite for approval of the proposal for appointment of a Special Public Prosecutor and further that such a consideration has to be in accordance with the rules framed and the guidelines laid down by the Apex Court and the same should be clearly revealed from the order itself, and such order should be by Remembrancer of Legal Affairs.
ig. The reasoned order would obviously
mean that the order should reflect
consideration of all the relevant materials necessary for approval of the proposal regarding the appointment of the Special Public Prosecutor. Once an authority passing the order is required to disclose the consideration of the relevant factors while passing the order itself, it is needless to say that the order on the face of it should disclose the said consideration. The law that an order passed by the statutory authority must be judged on the fact of it, as the ::: Downloaded on - 09/06/2013 13:33:47 ::: :30: reasons contained therein cannot be supplemented on an affidavit, is well settled....... In any case, when the order is challenged on account of non-consideration of materials and non-application of mind by the concerned authority, the respondents cannot merely dump the records before the Court and leave it to the Court to scrutinise the records to satisfy itself about the consideration of those materials and application of mind by the concerned authority. It is primarily for the concerned authority to satisfy the Court about such consideration of the relevant materials and application of mind by such authority before passing the order and for that matter, it would be absolutely necessary for the concerned authority to file affidavit in that regard and not by any other person. Besides, the affidavit should be of relevant facts.
What merits is the quality, what persuades is the authoritative statement, what recognizes the authority is the authorship of the decision. Being so, neither the quantity ::: Downloaded on - 09/06/2013 13:33:47 ::: :31: weighs, nor an unauthoritative statement counts." (Emphasis supplied)
18. Mr.Kadam, the learned Advocate General has adopted the same arguments advanced by him in Criminal Writ Petition No.234 of 2008 in support of the impugned order. In the instant case as well the RLA has not filed the affidavit-in-reply and instead the Solicitor cum Joint Secretary, Law and Judiciary Department has filed the affidavit-in-reply on behalf of the respondent.
ig This does not meet the above
stated observations made by the Division Bench of this
Court in Sushil Hiralal Chokahni's case (Supra). The
affidavit-in-reply as well as the additional
affidavit-in-reply is silent on the issue of the
family feud between the petitioner and the applicant -
complainant. The affidavit filed by Shri Arvind
Jayram Rohee, Solicitor cum Joint Secretary, Law and
Judiciary Department on the requirements of second part of Rule 22(1) states as under:
"5. I say that the P.S. & R.L.A. in consideration of the amendment to Rule 22, after going through the nature of the case, ::: Downloaded on - 09/06/2013 13:33:47 ::: :32: gravity of the matter and public interest involved therein, he considered the same and was satisfied and the said satisfaction has been reflected by him while approving the appointment of the said Special Public Prosecutor.
6. I say that P.S. & R.L.A. before approving the appointment in the matter, also considered the reputation, experience and ability of the Advocate proposed to be appointed as a Special Public Prosecutor and after being satisfied, he approved the appointment of the said Special Public Prosecutor. Hence, the procedure prescribed for appointment of the Special Public Prosecutor has been duly followed in the present case. I crave leave to refer to and rely upon the records as and when required."
19. The record shows that the applicant -
complainant submitted an application to the Minister of State for Home, Maharashtra State on or about ::: Downloaded on - 09/06/2013 13:33:47 ::: :33: 30/5/2007 and the Hon'ble Minister on the very same day directed the Deputy Secretary (Home) to examine and submit the proposal immediately. The applicant stated that the accused Umesh Kalbhor and Sampat Mankar are known criminals and have spread terror as a result of which the witnesses are scared to depose against them, despite this and without caring for his safety, the applicant has filed a complaint against the said accused, the colleagues of the accused who are political leaders have been pressurising the complainant directly ig or through his relations and also threatening to weaken the prosecution case and it is, therefore, necessary to appoint Shri Vijay Savant as a Special Public Prosecutor and the applicant would bear the professional fees of Shri Savant. On 1/6/2007 the Section Officer addressed a letter to the Director of Prosecution referring to the application submitted by the complainant and the order of the Hon'ble Minister for State. The Director of Prosecution was called upon to examine the proposal and submit his report. A similar letter was also addressed to the Police Superintendent, Pune (Rural). The Director of Prosecution in turn by his letter dated 7/6/2007 called upon the Public Prosecutor and Asst. Director, ::: Downloaded on - 09/06/2013 13:33:47 ::: :34: Pune District to submit his report and accordingly on 17/7/2007 the Public Prosecutor submitted the report to the Director of Prosecution stating that the appointment of Special Public Prosecutor as requested was not in public interest. The Public Prosecutor and Additional Public Prosecutors at Pune were competent to present the prosecution case in Sessions Case No.591 of 2006 and in addition to the Public Prosecutor, there were nine Additional Public Prosecutors at Pune. Thus the application made by the complainant ig was opposed. Whereas, the Superintendent of Police (Pune Rural) vide his letter dated 2/7/2007 informed the Section Officer in Home Department giving his no objection for the appointment of the Special Public Prosecutor as the complainant had shown his willingness to bear the professional fees of such appointee. The Director of Prosecution vide his letter dated 25/7/2007 addressed to the Additional Secretary, Home Department clearly stated that the appointment of Special Public Prosecutor in Sessions Case No.591 of 2006 was not necessary.
. On or about 9/8/2007 the Home Department prepared a note and also referred to the report ::: Downloaded on - 09/06/2013 13:33:47 ::: :35: submitted by the Public Prosecutor at Pune as well as the Director of Prosecution opposing the appointment of Special Public Prosecutor. However, the Home Department recommended the appointment solely on the ground that the complainant was willing to bear the professional fees to be paid to the Special Public Prosecutor. The Minister of State on 21/8/2007 passed his order stating "Applicant's request be accepted on the condition that he would deposit the fees of Special Public Prosecutor." On 23/8/2007 the Home Ministry forwardedig the proposal to the Department of Law and Judiciary. The Section Officer in the said Department prepared a note on 26/9/2007 and Additional Secretary in the said Department recommended the application solely by accepting the allegations made by the applicant. The Principal Secretary and RLA made the following endorsement on this note on 29/9/2007:
"Considering the nature of the offence and apprehension of the complainant, please place on record copy of FIR."
On 6/10/2007 the Section Officer prepared a note ::: Downloaded on - 09/06/2013 13:33:47 ::: :36: seeking orders to call for the copies of C.R.No.111/06 and other connected record in Sessions Case No.591 of 2006 but there does not appear any record to show whether the said papers were called for. However, on 20/10/2007 another note was prepared clearly pointing out the opinion of the Public Prosecutor at Pune as well as the Director of Prosecution opposing the appointment of Special Public Prosecutor. The note further referred to the order passed by the Minister of State on 21/8/2007 and it concluded, "By taking into consideration ig the fact in the case and the applicant's willingness to bear the legal fees of the Special Public Prosecutor, approval be granted for the said appointment in Sessions Case No.591 of 2006." On 30/10/2007 the Principal Secretary and RLA made the following remark on the said note which was finally approved by the Hon'ble Chief Minister:
"Considering request of the complainant, his apprehension that there would not be fair trial unless it is conducted by Mr.Savant and nature and gravity of the offence, proposal may be accepted."::: Downloaded on - 09/06/2013 13:33:47 ::: :37:
Thus the application of the complainant came to be allowed by issuing the impugned order.
20. From the record, we have observed as under:-
(a) The incident giving rise to Sessions Case No. 591 of 2006 has arisen out of a family feud between the complainant and the petitioner. As per the petitioner, the complainant abducted the petitioner's sister Priya and ig forced her to marry with him. It is further alleged that the complainant is responsible for the disappearance of Priya and her minor daughter. They were not traceable for more than two months and, therefore, the petitioner was holding the complainant responsible for their disappearance.
(b) As per the complainant's case, he was sought to be assaulted with sharp weapons and when his Manager Shri Yadnesh Todankar intervened, the Manager became a victim of serious injuries to which he finally succumbed. Thus as per the complainant's own ::: Downloaded on - 09/06/2013 13:33:47 ::: :38: case he is an eye witness to the incident leading to Sessions Case No. 591 of 2006.
(c) As per the record of the police, the Lodge owned by the complainant is being used for prostitution / immoral trafficking and the complainant stays next door to the said Lodge.
The SDPO vide his letter dated 5/11/2007 addressed to the Public Prosecutor opposed the application for anticipatory bail filed by the complainant ig on account of his alleged involvement of such serious offences.
(d) The Superintendent of Police, Pune Rural, in his letter dated 2/7/2007 did not refer to the antecedents of the complainant and recommended the appointment of the Special Public Prosecutor solely on the ground that the complainant was willing to pay the fees of such appointee. The Superintendent of Police did not refer to the nature and gravity of the matter, including the public interest involved for appointment of Special Public Prosecutor in Sessions Case No. 591 of 2006.
::: Downloaded on - 09/06/2013 13:33:47 ::: :39:(e) The Home Department had called upon the Director of Prosecution to examine the proposal and submit his report and the Director of Prosecution in turn by his letter dated 7/6/2007 had called upon the Public Prosecutor, Pune to submit his report. The Public Prosecutor, Pune submitted the report and stated that the appointment of Special Public Prosecutor, as requested, was not in public ig interest. He further stated that the Public Prosecutor and Additional Public Prosecutors were competent to represent the prosecution case in Sessions Case No. 591 of 2006 and there are in all nine Additional Public Prosecutors. The Director of Prosecution vide his letter dated 25/7/2007 also opposed the proposal for appointment of Special Public Prosecutor.
(f) On or about 9/8/2007 the Home Department prepared a note pointing out the view of the Public Prosecutor at Pune as well as the Director of Prosecution. However, the ::: Downloaded on - 09/06/2013 13:33:47 ::: :40: appointment was recommended solely on the ground that the complainant was willing to bear the professional fees and the Minister of State on 21/8/2007 passed his order only on that basis. The Home Ministry forwarded the proposal to the Law and Judiciary Department and on 20/10/2007 another note was prepared, clearly pointing out the opinion of the Public Prosecutor and Director of Prosecution.
(g) ig On 30/10/2007 the Principal Secretary and RLA did not refer to the report submitted by the Public Prosecutor at Pune as well as the Director of Prosecution. The RLA even in his note of 30/10/2007 did not record that the public interest in the case warranted the appointment of a Special Public Prosecutor.
In support of his remark on the nature and gravity of the offence, there was no material on record and he was overwhelmed by the apprehension of the complainant that there would not be a fair trial unless it was conducted by Mr. Vijay Sawant. He also did not record any reasons to disagree with the ::: Downloaded on - 09/06/2013 13:33:47 ::: :41: report submitted by the Public Prosecutor at Pune and Director of Prosecution.
21. Rule 22(1) of the Rules of Legal Affairs clearly states that no order thereunder regarding the appointment of Special Public Prosecutor shall be made unless, for the reasons to be recorded by him, the RLA is satisfied having regard to the nature of the case, gravity of the matter and public interest involved in the matter that such an appointment is necessary. The said Rule has ig two parts, the first being the satisfaction of the State Government on the credentials of the Advocate being appointed as the Special Public Prosecutor, whereas the second part speaks of the satisfaction of the RLA to be reflected in the reasons to be recorded by him regarding the nature of the case, gravity of the matter and public interest involved therein. The State Government cannot issue the order for appointment of a Special Public Prosecutor unless the RLA for the reasons to be recorded and having regard to the nature of the case, gravity of the matter and the public interest involved in the matter, recommends such appointment. In the instant case, as noted above, the RLA did not record ::: Downloaded on - 09/06/2013 13:33:47 ::: :42: any opinion regarding the public interest involved in Sessions Case No. 591 of 2006 and there was no material before him regarding the nature of the case and gravity of the matter. Even as per the complainant's case the assault was first aimed at him and the deceased, while coming to his rescue, became a victim in the said alleged assault. Just because the incident happened during the day time and in the public eye by itself cannot be a reason to hold that it was a serious case and the public interest demanded for appointment ig of a Special Public Prosecutor. Only because the complainant offered to pay the Special Public Prosecutors' fees, that by itself cannot be a reason to invoke the powers under Section 24(8) of the Cr.P.C. read with Rule 22 of the Rules of Legal Affairs. Such an appointment cannot be made because the complainant had apprehension that there would not be a fair trial unless it was conducted by the Special Public Prosecutor, named by him. While dealing with the cases in which the Special Public Prosecutor should be appointed by the State, the Supreme Court in the case of Mukul Dalal (Supra) stated as under:
"......There may be instances where a case ::: Downloaded on - 09/06/2013 13:33:47 ::: :43: 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. If the complainant thereof approaches the State for assistance in a case of that type by appointing a Special Public Prosecutor or an Assistant Public Prosecutor to support the prosecution it would be for the Legal Remebrancer or the District Magistrate to favourably consider such a request and it would ordinarily be expected that government would appoint a Special Public Prosecutor to take charge of the prosecution. 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. Instances of this type would be cases where the victims are of economically backward classes who are not in a position to vindicate their rights through court without the assistance of the State. Here again the ::: Downloaded on - 09/06/2013 13:33:47 ::: :44: Public Prosecutor's services may be placed at the disposal of the complainant. 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 and where the Public Prosecutor appears, the request of the complainant or the victim to be represented by any other counsel is subject to permission of the court."
22. The parameters laid down by their Lordships in Mukul Dalal's case (Supra) may not be exhaustive and they may well be taken as exemplary, but the fact remains that the request for appointment of Special Public Prosecutor must be found to be necessary in public interest and it cannot be for the asking. As per the police, the complainant himself has a criminal record. When the State Government, through the Home Department, had called for the report from the Director of Prosecution, it is clear that the Government was alive to the scheme of Section 25-A of the Cr.P.C. and its own GR dated 10/1/2000. It could be safely concluded that the Home Department had ::: Downloaded on - 09/06/2013 13:33:47 ::: :45: sought to consult the Director of Prosecution while processing the complainant's application. In our considered opinion, therefore, it was necessary for the RLA to record reasons for disagreeing with the report submitted by the Director of Prosecution. This has not been done. We are satisfied that Sessions Case No. 591 of 2006 was not such a special case as to warrant appointment of a Special Public Prosecutor, in addition to the fact that while issuing the impugned appointment order the requirements of Rules 22(1) have ig not been complied with. The power under Section 24(8) of the Cr.P.C. read with Rule 22(1) of the Rules of Legal Affairs is required to be used sparingly and in public interest wherein the nature and gravity of the criminal cases require the State assistance. For example where the complainants are weaker sections of the society and such section or community was the victim of the incident. The G.R. dated 10/1/2000 issued by the State Government clearly states that the special cases of public importance would be handled by the Public Prosecutor. The record does not show that either the Home Department or the RLA had regards to the said G.R. When it is clearly stated in the G.R. that the special cases of public ::: Downloaded on - 09/06/2013 13:33:47 ::: :46: importance would be handled by the Public Prosecutor, it was imperative for the RLA to record his reasons as to why the case was required to be withdrawn from the Public Prosecutor so as to hand it over to the Special Public Prosecutor and whether the public interest warranted that the Public Prosecutor was required to be relieved from such special case. On this ground also the impugned order is vitiated.
23. When the Home Ministry processed the proposal of the complainant, ig it was evident that it considered unamended scheme of Rule 22 and, therefore, it appears that the Minister of State for Home was overwhelmed by the complainant's undertaking to bear the Special Public Prosecutor's fees. We may usefully reproduce the caution given by the Supreme Court in Mukul Dalal's case while entertaining a private complainant's application for appointment of the Special Public Prosecutor in the following words:-
".......When an application for the services of a Special Public Prosecutor or an Assistant Public Prosecutor is made in a given case, the power would be vested in him (RLA) to examine ::: Downloaded on - 09/06/2013 13:33:47 ::: :47: 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 ig 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. Without screening on the basis of guidelines prescribed or to be prescribed, the services of a complainant. 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 referred to above is accepted or what the High Court has indicated is adopted. We are inclined to observe that the request for appointment of a Special ::: Downloaded on - 09/06/2013 13:33:47 ::: :48: 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."
24. To uphold the impugned order, all the three parameters were required to be satisfied viz. the nature of the ig case, the gravity of the matter and the public interest involved and if the satisfaction of the RLA on any of these grounds cannot be seen from the reasons recorded by him, the order must be held to be vitiated on the ground of non-compliance of all the requirements of Rule 22(1) of the Rules of Legal Affairs and in the instant case it is so vitiated.
Hence the impugned order is required to be quashed and set aside.
25. In the premises, this petition succeeds. The impugned order dated 29/11/2007 appointing Shri Vijay Sawant as Special Public Prosecutor in Sessions Case No. 591 of 2006 is hereby quashed and set aside. The ::: Downloaded on - 09/06/2013 13:33:47 ::: :49: trial in the said Case shall continue further with the District Government Pleader and Public Prosecutor at Pune or his nominee appearing for the prosecution, who shall proceed further from the stage it is scheduled to continue on 5/7/2008. The evidence recorded on behalf of the prosecution by the Special Public Prosecutor will be treated as the evidence recorded with the appearance of the Public Prosecutor.
. Rule is made absolute accordingly.
(R.Y. Ganoo, J.) (B.H. Marlapalle,J.) ::: Downloaded on - 09/06/2013 13:33:47 :::