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Madan B. Lokur, J.

Leave granted.

2. The question for consideration is whether Mr. G. Bhavani Singh appointed as a Special Public Prosecutor in the trial of the case against Ms. Jayalalithaa and other accused persons in the Special Court in Bengaluru was entitled to represent the prosecution in the appeals filed in the Karnataka High Court by the accused persons against their conviction.

3. My answer to this question is in the negative on an appreciation of earlier directions given by this court, on a reading of the notification appointing Mr. Bhavani Singh as a Special Public Prosecutor and on an interpretation of Sections 24, 25, 25-A and 301(1) of the Code of Criminal Procedure, 1973. The result is that the hearing of the appeals in the High Court stands vitiated, since the prosecution was not represented by an authorized person. The appeals will have to be heard afresh by the High Court with the prosecution represented by a Public Prosecutor appointed under Section 24(1) of the Criminal Procedure Code, 1973 or a Special Public Prosecutor appointed by the State of Karnataka under Section 24(8) of the said Code.

Background facts

5. The background facts relating to the appeals have been pithily stated in K. Anbazhagan v. Superintendent of Police[2] and the relevant facts are paraphrased for the purposes of this decision.

6. From 1991 to 1996, Ms. J. Jayalalithaa was the duly elected Chief Minister of Tamil Nadu. A political party called the AIADMK headed by her was defeated in the general elections held in 1996 and another political party, the DMK, was voted in with a majority. On the basis of allegations of amassing assets disproportionate to their known sources of income, criminal proceedings were initiated against Ms. Jayalalithaa and her associates. Special Courts were constituted by the new government for the trial of the cases filed against Ms. J. Jayalalithaa, Ms. S. Sasikala, Mr.V.N. Sudhakaran and Ms. J. Elavarasi. The constitution of the Special Courts was upheld by this court.[3]

7. In 1997, CC No. 7 of 1997 was filed before the Principal Special Judge, Chennai for the trial of Ms. J. Jayalalithaa, Ms. S. Sasikala, Mr. V.N. Sudhakaran and Ms. J. Elavarasi, who were charge-sheeted for offences under Section 120-B of the Indian Penal Code, Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 for alleged accumulation of wealth of Rs 66.65 crores, disproportionate to their known sources of income.

8. The trial of CC No. 7 of 1997 progressed before the Special Judge and by August 2000, as many as 250 prosecution witnesses were examined. In the general elections held in May 2001, the AIADMK headed by Ms. Jayalalithaa secured a majority of votes in the elections and therefore a majority of seats in the Legislative Assembly. She was chosen as the leader of the House by the AIADMK and appointed as the Chief Minister of Tamil Nadu. Her appointment as Chief Minister was challenged soon thereafter and this court declared that her appointment was not legal or valid.[4] Consequently, on 21st September, 2001 she ceased to hold the office of Chief Minister of Tamil Nadu.

10. On the resumption of the trial, as many as 76 PWs were recalled for cross-examination on the ground that counsel appearing for the accused or some of them had earlier been busy in some other case filed against them. It seems that the Public Prosecutor did not object to the witnesses being recalled or gave his consent for their recall. Out of a total 76 PWs, as many as 64 PWs resiled from their previous statement-in-chief. It also appears that the Public Prosecutor made no attempt to declare them hostile and/or to cross-examine them by resorting to Section 154 of the Indian Evidence Act. It also appears that no attempt was made to see that the court takes action against the witnesses for perjury. Furthermore, it seems that the presence of Ms. Jayalalithaa was dispensed with during her examination under Section 313 of the Code of Criminal Procedure Code, 1973 (for short 'the Code') and instead a questionnaire was sent to her and her reply to the questionnaire was sent to the court in absentia. Apparently, the Public Prosecutor did not object to Ms. Jayalalithaa's application for dispensing with her presence at the time of examination under Section 313 of the Code.