Madhya Pradesh High Court
Pramod Yadav vs The State Of Madhya Pradesh on 17 March, 2015
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 15331 of 2010
Pramod Yadav
- V/s -
State of MP and others
Present : Hon'ble Shri Justice Rajendra Menon.
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Shri Alok Vagrecha, counsel for the petitioner.
Smt. Shahin Fatima, GA, for respondent Nos. 1 to 4.
None for the other respondents.
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Whether approved for reporting: Yes / No.
ORDER
17/03/2015 Challenging the order-dated 19.10.2010 passed by the Additional Secretary, Ministry of Law and Legislative Affairs, Bhopal in the matter of appointment of Special Public Prosecutor in Sessions Trial No.88/2009 pending in the file of 7th Additional Sessions Judge (Fast Track Court) Sagar, this writ petition has been filed. 2- The prayer made in the writ petition reads as under:
"7. Relief prayed for:
It is most respectfully prayed that the order- dated 19.10.2010 passed by respondent No.13 be quashed and set aside and respondent No.5 be allowed to conduct the prosecution or in the alternative petitioner be allowed to submit names of few advocates afresh and one of them be appointed as Special Prosecutor for the purpose of conducting the Writ Petition No :: 15331 / 2010 2 Pramod Yadav Vs. State of MP and others.
trial in S.T. No. 88/2009 pending on the file of 7th Additional Sessions Judge (Fast Track Court), Sagar, Madhya Pradesh."
Further, the interim prayer made is as under:
"8. Interim relief prayed for:
It is very respectfully prayed that pending the final decision on this writ petition the proceeding in S.T. No. 88/2009 pending on the file of 7th Additional Sessions Judge (Fast Track Court), Sagar, Madhya Pradesh be stayed. The stay of criminal trial will not cause any prejudice to the respondents as they are on bail."
3- It is clear from the prayer made that the only relief claimed in the writ petition is that the order-dated 19.10.2010, passed by respondent No.13 namely the Secretary, Ministry of Law and Legislative Affairs, Vallabh Bhawan, Bhopal, be quashed and respondent No.5 be allowed to continue as Prosecutor or in the alternate petitioner be allowed to submit names of five Advocate afresh and one of them be appointed as Special Public Prosecutor.
4- Shri Alok Vagrecha, learned counsel for the petitioner, took me through the documents and material available on record to say that because of the laxity of the prosecutor, the witnesses turned hostile; the prosecutor was trying to help the accused persons and, therefore, at the instance of a witness the Special Public Prosecutor has been appointed. It was emphasized by him that the Special Prosecutor has been removed in this case because of a complaint made by one of the witness, who turned hostile and the manner in which the Prosecutor has been changed is contrary to the mandate of section 28 of the Code of Criminal Procedure. Emphasizing malafide on the officers to change the Prosecutor at the instance of a witness, this writ petition has been filed by the petitioner.
Writ Petition No :: 15331 / 2010
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Pramod Yadav Vs. State of MP and others.
5- Smt. Shahin Fatima, learned Government Advocate, invites
my attention to the affidavit filed by the Additional Secretary, Ministry of Law and Legislative Affairs, Bhopal, and the reasons for change of the Special Public Prosecutor. She points out that after respondent No.5 was appointed as Special Public Prosecutor, complaints were received wherein specific allegations were made against respondent No.5 to say that respondent No.5 appeared as Counsel for many of the accused persons in the pre-trial stage, when bail applications of the accused persons were considered and as this was a dis-qualification for appointment of a Public Prosecutor, his appointment was cancelled. She invites my attention to the averments made in paragraphs 3 and 4 of the counter-affidavit and submits that as appointment of respondent No.5 is cancelled on appropriate consideration, no interference be made. 6- In paragraphs 3 and 4 of the counter-affidavit of the Additional Secretary, Ministry of Law and Legislative Affairs, Bhopal, the following assertions have been made:
"3. Soon after appointment of respondent No.5, complaints have been received to District Magistrate Sagar on behalf of the respondent No.11 that Shri A.K. Ghai had been appearing for complainants in the same trial and had also appeared to prosecute bail application. An Advocate, who has already appeared either for the complainant or for the accused in a particular case, cannot be appointed as Public Prosecutor to conduct the trial not being an impartial person. It is also pertinent to mention here that Shri A.K. Ghai was appointed as Special Public Prosecutor without payment of any remuneration by the State Government and it was also observed that infact the petitioner may be paying Mr. Ghai to appear as Special Public Prosecutor on behalf of the State Government. DM, Sagar forwarded complaint to the Law Department for further appreciation and necessary action, copy of which is marked as Annexure R/1.
4. On verification of the allegations made in the complaint by the Law Department, Mr. A.K. Ghai was found to be appearing for the Writ Petition No :: 15331 / 2010 4 Pramod Yadav Vs. State of MP and others.
complainant/petitioner in the same trial, prior to appointment as Special Public Prosecutor and therefore, he was not an appropriate Lawyer to be appointed as Special Public Prosecutor to conduct said trial. Accordingly, appointment of respondent No.5 has been cancelled vide order impugned dt. 19.10.2010 with immediate effect. This order being in accordance with law and propriety deserves to be upheld by this Hon'ble Court."
7- Even though an oral statement was made by learned counsel for the petitioner that this assertion is not correct, but the fact remains that the counter-affidavit was served on the petitioner and his counsel on 27.1.2011, more than four years have passed and till date no rebuttal or affidavit has been filed to say that the allegations made in paragraphs 3 and 4 of the reply, as reproduced hereinabove, are incorrect. 8- The only relief claimed in this writ petition is to quash the order appointing respondent No.5 as a Special Public Prosecutor. That being so, in exercise of its discretionary jurisdiction under Article 226 of the Constitution, this Court is only required to evaluate the justification or otherwise given by the State Government in changing the Public Prosecutor and come to a conclusion as to whether the same is justified or not.
9- From the averments made in the counter-affidavit and the material available on record, it is clearly established that respondent No.5 appeared as counsel for many of the accused while canvassing their bail applications. This is not only a professional misconduct as far as respondent No.5 is concerned, but is also a disqualification on his part to appear as a Prosecutor against the very same persons for whom he had filed bail applications. That being so, I see no reason to interfere into the matter.
10- However, except for making vague allegations of malafide, no cogent material or evidence is adduced by the petitioner to substantiate the same.
11- In case petitioner feels that some other person should be appointed as a Special Public Prosecutor, petitioner may make an Writ Petition No :: 15331 / 2010 5 Pramod Yadav Vs. State of MP and others.
appropriate application to the concerned department and it would be for the said department to take action on the same.
12- In the facts and circumstances of the case, as removal of respondent No.5 from the post of Special Public Prosecutor is not found to be tainted with any malafide, I see no reason to interfere into the matter.
13- Accordingly, the petition stands dismissed.
( RAJENDRA MENON ) JUDGE Aks/-