THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION Nos.7446 of 2013 and 20965 of 2013 Dated 06-11-2013 WP. No.7446 of 2013 Bharaju Rambabu S/o Bhaskara Rao, Driver of Ambulance Van Government Area Hospital, Gudivada R/o GVR Complex, Eluru Road, Gudivada, Krishna District and another ....Petitioners The State of Andhra Pradesh Rep by its Secretary Legislative Affairs & Justice Secretariat, Hyderabad and 3 others....Respondents Counsel for the petitioners: Sri Narasimha Rao Gudiseva Counsel for the respondents :
1. GP for Home 2. Sri K. Chidambaram WP. No.20965 of 2013 HEAD NOTE: ?.Cases referred 1. 2009 (2) ALD (Cri) 300 2. 2008 (1) ALD (Crl.) 712 (A.P.) 3. 1988 (3) SCC1444. 2002 Crl.L.J.
1694 5. 2001 Crl.L.J.
912 6. 2004 (1) ALD (Crl.) 43 7. 2003 (7) SCC4038. AIR1959AP6599. 1986 (1) ALT14110. 1999 (2) ALD (Crl.) 621 (SC) 11. 2004 Crl.L.J.
52 12. 2009 (12) SCC159 13. 2006 Crl.L.J425814. 1999 Supreme Court Cases (Crl) 1277 15. (2010) 6 SCC116. (2004) 4 SCC15817. AIR2004SC380018. (1982) 3 All ER141@ 145 19. AIR1989SC189920. 2006 CRI. L.J2061THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION Nos.7446 of 2013 and 20965 of 2013
Common Order:Both these writ petitions are taken up together for consideration as the question of law that falls for consideration is identical in both the cases. W.P.No.7446 of 2013: W.P.No.7446 of 2013 is instituted by two petitioners challenging the validity of the orders passed by the State government through their G.O.Rt.No.221 dated 08.02.2013 in entrusting the conduct of prosecution in S.C.No.479 of 2011 on the file of Assistant Sessions Court, Gudivada, Krishna District to Sri B.Ramakoteswara Rao, Additional Public Prosecutor, Grade-I, attached to II Additional District and Sessions Judge - cum - Metropolitan Sessions Judge Court, Vijayawada, as illegal. The two petitioners are the accused in S.C.No.479 of 2011 for offences punishable under Sections 450, 452, 307, 326 read with 34 of Indian Penal Code (for short ".IPC".) and Sections 3 and 4 of Medical Protection Act, 2008. The charge sheet sets out that the accused have planned to do away with the life of the 4th respondent, a medical practitioner. As part of the said plan, it is alleged, that on 10.05.2011 at about 09.00 p.m. the accused armed with glass bottles trespassed into the nursing home of the 4th respondent and rebuking her in filthy language, closed the doors of her consultation room where they have broken the bottles and using the sharp end stabbed her on her head and stomach uttering the words that they are not going to leave her alive. Injuries were also caused on her head and hands and in the meantime one J.Venkateswara Rao broke open the door and rescued her. Initially she was shifted to a private nursing home and from there to Government hospital. The Assistant Sub-Inspector of Police recorded the statement of the 4th respondent and then registered it as Crime No.55 of 2011 and took up the investigation, which ultimately resulted in charge sheet being filed in S.C.No.479 of 2011. There was a regular Additional Public Prosecutor attached to the Assistant Sessions Court at Gudivada, but however on a representation said to have been submitted by the 4th respondent on 01.10.2012 to the District Collector seeking prosecution to be entrusted to Sri B.Ramakoteswara Rao, Addl. Public Prosecutor, Grade - I attached to the II Additional District and Sessions Judge - cum - Metropolitan Sessions Judge Court, Vijayawada, her request has been conceded by the State. Since the State government passed orders through their G.O.Rt.No.221 dated 08.02.2013 entrusting the conduct of prosecution in S.C.No.479 of 2011 to Sri B.Ramakoteswara Rao, without examining the necessity to change the public prosecutor attached to the Assistant Sessions Court at Gudivada, it is contended on behalf of the petitioners that, the same is bad in law. Learned counsel for the petitioners Sri Narasimha Rao placed reliance upon the judgment of the Division Bench rendered in ".State of A.P v. Margadarsi Financiers, Hyderabad 1"., ".Paramjit Singh Sadana v. State of A.P2"., ".Mukul Dalal and others v. Union of India and others 3"., ".Madho singh and another v. State of Rajasthan and others 4"., ".Bhopal Singh v. The State of Rajasthan 5"., ".Katasani Rami Reddy v. Government of A.P.6". and ".State of Rajasthan vs. Anand Prakash Solanki 7". in support of his plea that the impugned order is not sustainable. W.P.No.20965 of 2013: The petitioner in this case challenges the validity of the orders passed by the State Government contained in their G.O.Rt.No.874, Law (LA & J - Home- Courts-A.1) Department dated 30.04.2013. The petitioner and the 3rd respondent, the de facto complainant, were married to each other on 04.03.1994. Having lived with each other for about 14 years, the 3rd respondent has lodged a complaint with the Mahila Police Station at Nellore, where the marriage took place, alleging offences under Sections 498- A and 420 of I.P.C. and Sections 3 and 4 of Dowry Prohibition Act. Based on this complaint dated 06.11.2007, crime No.30 of 2007 was registered by the Women Police Station, Nellore and took up investigation into the matter. A final report was placed by the police before the learned II Additional Judicial Magistrate of First Class, Nellore referring the case as false case. The learned Magistrate accepted the final report. Nearly one year thereafter, a lengthy complaint running to 10 pages was got filed by the 3rd respondent through her counsel alleging that the petitioner herein has suppressed his first marriage and thus committed offences under Sections 417, 495, 496 and 376 of I.P.C. read with Sections 190, 200 and 202 of Cr.P.C. This complaint was filed before V Additional Judicial Magistrate of First Class, Nellore. When it was referred to the police by the learned Magistrate, it was registered as crime No.1078 of 2008 on 10.12.2008 by the police. After investigation, police have submitted a charge sheet and the learned Magistrate numbered the case as P.R.C.No.3 of 2009 and committed the case to the court of Sessions, and it was made over to I Additional Assistant Sessions Judge, Nellore. The 3rd respondent - complainant engaged the services of Sri P.Sudhakar Reddy and two other advocates as her counsel, in the above proceedings. Sri P.Sudhakar Reddy conducted the case earlier. After the Sessions Case was transferred to Principal Assistant Sessions Judge, Nellore, it was numbered as S.C.No.39 of 2010. While the trial was proceeding, the 3rd respondent made a representation to the Government and conceding to her request Sri P.Sudhakar Reddy, advocate has been appointed as Special Public Prosecutor to conduct the prosecution in S.C.No.39 of 2010. Orders to that effect were passed through G.O.Rt.No.874, Law (LA & J - Home Courts - A1) Department dated 30.04.2013, the impugned order in the instant case. Since a private counsel cannot conduct any prosecution directly in view of the provisions contained in Sections 225 and 301 of Cr.P.C. and can carry on prosecution under the supervision of the Public Prosecutor only and at best can submit written arguments with the prior permission of the court, it is contended the 3rd respondent cannot be permitted to solicit appointment of her own counsel as Special Public Prosecutor under Section 24 (8) of Cr.P.C. In fact, the 3rd respondent filed a Family Court O.P.No.168 of 2009 on 09.07.2009 before the Family Court, Nellore and obtained a decree on 26.03.2012 that the marriage solemnized on 04.03.1994 between the petitioner and the 3rd respondent as null and void. Heard Sri T.Bal Reddy, learned senior counsel for the writ petitioner and Sri H.Prahladha Reddy, learned counsel for the 3rd respondent. Learned senior counsel Sri T.Bal Reddy would contend that the accused has a right for being prosecuted by an un-biased public prosecutor. A public prosecutor is one, who should necessarily conduct the case of prosecution with a sense of impartiality and fairness towards the accused. If an interested person, such as a private counsel to the de facto complainant, was to be made a public prosecutor, then the prosecution can lead to persecution of the accused. He placed strong reliance upon the judgment rendered by the Division Bench of this Court in ".Medichetty Ramakistiah and others v. State of Andhra Pradesh 8". and ".Dodda Brahmanandam vs. State of A.P9quot;. He also relied upon the judgment rendered in ".Siva Kumar v. Hukumchand and another 10".. Learned senior counsel has also placed reliance upon the judgment rendered by this court in ".Devineni Seshagiri Rao vs. The Government of A.P.11". Per contra Senior Counsel Sri Prahlladha Reddy would submit that the order of appointment of a special public prosecutor is a purely executive function of the State and an order passed in exercise of such powers by the State Government cannot be reviewed by this Court in a lighter vein. He placed reliance upon the judgment rendered by the Supreme Court in ".State of Maharashtra and others vs. Prakash Prahlad Patil and others 12".. Learned senior counsel Sri Prahlada Reddy would also place reliance upon the judgment of a Division Bench of Rajasthan High Court (Jaipur Bench) in ".Nemi Chand vs. State of Rajasthan and others 13". in support of his plea that an Advocate who appeared earlier on behalf of the defacto complainant, does not suffer any disqualification from being appointed as a Special Public Prosecutor. At the very outset, the role that is to be played by a Public Prosecutor is to be examined. Section 225 of the Code of Criminal Procedure, 1973, (henceforth referred to as the 'Code') makes it abundantly clear that every trial before a Court of Sessions, the Prosecution shall be conducted by a Public Prosecutor. Thereafter, Section 226 of the Code enjoins the Public Prosecutor to open his case by describing the charge brought against the accused and then set- forth the evidence by which the prosecution proposes to prove the guilt of the accused. A Division Bench of this Court long back in Medichetty Ramakistiah and others v. State of Andhra Pradesh (8th supra) has gone about deciphering the true role of the Public Prosecutor in criminal justice system. It has been expounded that a Public Prosecutor is not merely a representative of the State, but he represents the larger interests of the society. He holds the office of trust and responsibility. Justice Bhimasankaram speaking for the Bench has set out the principle in paragraphs (9) and (10) in the following terms: ".9. But what exactly does the word 'conduct' import?. It conveys the idea of leading and guiding; that is to say, the person who conducts the prosecution determines all important questions of policy involved in the course of the trial and the attitude to be adopted by the prosecution towards material objections raised or demands made by the accused with respect to the evidence. So long, therefore, as the Public Prosecutor leads and guides, in the above sense, the pleader for the private party, no objection to such a procedure could be entertained. But if in a particular case it happens that the very conduct of the prosecution is completely left in the hands of such a pleader, then the provisions of the Code must be held to have been violated.
10. To sum up, the conduct of all prosecutions before a Court of Session shall be in the hands of a Public Prosecutor appointed under Section 492 subject to his power to instruct a duly qualified person acting under his directions, and where either before a Magistrate or before a Court of Session, a pleader is instructed by a private individual to prosecute any person in a case before any court, the pleader so instructed may act in that case subject to the over-all supervision of the Public Prosecutor. Such a pleader can conduct the examination, cross-examination and re-examination of witnesses as also address arguments to the court. These provisions do not, however, authorise the abdication of his functions by the Public Prosecutor; he should continue to be in charge of the case and to issue directions on all important matters. These provisions are clearly conceived in the public interest as well as in the interest of the accused because the position of the Public Prosecutor is, it must be borne in mind, unlike that of any advocate appearing for a private party. It is well-recognised, to use the words of Crompton J., in R. v. Puddick, (1865) 4 F and F497at p. 499, Public Prosecutors ".should regard themselves rather as Ministers of Justice assisting in its administration than as advocates".--an observation which was adopted by the Court of Criminal Appeal in R. v. Banks, 1916 2 KB621 Unless, therefore, the control of the Public Prosecutor is there, the prosecution by a pleader for a private party may degenerate into a legalized means for wreaking private vengeance. The prosecution instead of being a fair and dispassionate presentation of the facts of the case for the determination of the Court, would he transformed into a battle between two parties in which one was trying to get better of the other, by whatever means available. It is true that in every case there is the over-all control of the court in regard to the conduct of the case by either party. But it cannot extend to the point of ensuring that in all matters one party is fair to the other. A prosecution, to use a familiar phrase, ought not to be a persecution. The principle that the Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing any anxiety to secure a conviction, is based upon high policy and as such courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the Court to obtain its decision thereon and not to obtain a conviction by any means fair or foul. Therefore, it is right and proper that courts should be zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman instructed by a private party.". (emphasis is generated by me) In Shiv Kumar v. Hukam Chand and another14 the Supreme Court has described the role of a Public Prosecutor in the following words: ".13. ................... 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 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, Public Prosecutor has the added responsibility to bring it to the notice of the Court if it comes to his knowledge...............". The Supreme Court in Sidhartha Vashisht @ Manu Sharma vs State (NCT of Delhi)15 has held that the Prosecutor does not represent the investigating agencies but the State in the following words: ".185. ...................... 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 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 force and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the Court if it comes to his knowledge .............".
186. This Court has also held that the prosecutor does not represent the investigation agencies, but the State. This Court in Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others, (1994) 4 SCC602held: ".23. ... A public prosecutor is an important officer of the State Govt. and is appointed by the State under the CrPC. He is not a part of the investigating agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request of the investigating agency before submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. A public prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation". Once again, the Supreme Court in Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors16 has set out the principle in the following words: ".188. It is also important to note the active role which is to be played by a court in a criminal trial. The court must ensure that the prosecutor is doing his duties to the utmost level of efficiency and fair play. This Court, in Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors., (2004) 4 SCC158 has noted the daunting task of a court in a criminal trial while noting the most pertinent provisions of the law. It is useful to reproduce the passage in full: ".43. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts 139 could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.
44. The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Courts to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution.................". In Manu Sharma vs State (NCT of Delhi), the need as to how to maintain the balance between the competing interests of the State and that of the accused has been spelt out very crisply in the following words: ".197. In the Indian Criminal jurisprudence, the accused is placed in a somewhat advantageous position than under different jurisprudence of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance to the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India.
198. A person is entitled to be tried according to the law in force at the time of commission of offence. A person could not be punished for the same offence twice and most significantly cannot be compelled to be a witness against himself and he cannot be deprived of his personal liberty except according to the procedure established by law. The law in relation to investigation of offences and rights of an accused, in our country, has developed with the passage of time. On the one hand, power is vested in the investigating officer to conduct the investigation freely and transparently. Even the Courts do not normally have the right to interfere in the investigation. It exclusively falls in the domain of the investigating agency. In exceptional cases the High Courts have monitored the investigation but again within a very limited scope. There, on the other a duty is cast upon the prosecutor to ensure that rights of an accused are not infringed and he gets a fair chance to put forward his defence so as to ensure that a guilty does not go scotfree while an innocent is not punished. Even in the might of the State the rights of an accused cannot be undermined, he must be tried in consonance with the provisions of the constitutional mandate. The cumulative effect of this constitutional philosophy is that both the Courts and the investigating agency should operate in their own independent fields while ensuring adherence to basic rule of law.
199. It is not only the responsibility of the investigating agency but as well that of the Courts to ensure that investigation is fair and does not in any way hamper the freedom of an individual except in accordance with law. Equally enforceable canon of criminal law is that the high responsibility lies upon the investigating agency not to conduct an investigation in tainted and unfair manner. The investigation should not prima facie be indicative of bias mind and every effort should be made to bring the guilty to law as nobody stands above law dehors his position and influence in the society.". Section 24 of the Code dealt with the scheme of appointment of Public Prosecutors and Additional Public Prosecutors. Subsection 8 thereof enabled the State Government to appoint for the purpose of any case or class of cases a person who has been in practice as an advocate for not less than 7 years as a Special Public Prosecutor. The language employed under Section 24 and in particular Subsection 8 thereof makes it abundantly clear that the State Government has been vested with the power to appoint a person to be a Special Public Prosecutor. Any amount of discretion is implied therein. It may not be desirable on the part of the accused and also correspondingly by the victim to solicit the appointment of any particular person as a Special Public Prosecutor, but nonetheless, the exercise of discretion by the State Government so long has not been described as malafide, the role of scrutiny of the Court in that regard is extremely limited. In State of U.P vs. Johri Mal17, various facets relating to the question of interpretation of Section 24 of the Code has fallen for consideration: ".28. 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 elevant 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 suprema 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 court. The limited scope of 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; 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 occasion 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 Vs. State of Ellinois, 1876 (94) US (Supreme Reports) 113).
40. So long as in appointing a counsel the procedures laid down under the Code of Criminal Procedure are followed and a reasonable or fair procedure is adopted, the Court will normally not interfere with the decision. The nature of the office held by a lawyer vis-'-vis the State being in the nature of professional engagements, the courts are normally charry to over-turn any decision unless an exceptional case is made out.
44. Only when good and competent counsel are appointed by the State, the public interest would be safeguarded. The State while appointing the public prosecutors must bear in mind that for the purpose of upholding the rule of law, good administration of justice is imperative which in turn would have a direct impact on sustenance of democracy.". (Emphasis is that of mine) Bearing these settled legal principles in mind, let us examine the various authorities cited at the Bar. In State of A.P. vs. Margadarsi Financiers, Hyderabad (A.P. High Court) (1st supra) this Court has held that there is no requirement of consultation or preparation of a panel of names for appointment of a Special Public Prosecutor under sub-section 8 of Section 24. A learned single Judge of this Court in Paramjit Singh Sadana vs. State of Andhra Pradesh (A.P. High Court) (2nd supra) in paragraphs 15 and 16 has opined that Subsection 8 of Section 24 of the Code shall not be read in isolation and Section 24 of the Code is to be read as a whole so that, the discretion vested in the State Government can be exercised properly. Hence, the learned Judge held that, even in the case of appointment of a Special Public Prosecutor, the consultation process, the preparation of the list and the existence of the name of an advocate in the list are common and has to be applied. Based upon this principle, the learned Judge has set-aside the appointment of the Special Public Prosecutor in that case. As was already noticed supra, the Judgment rendered in Margadarsi Financiers is that of a Division Bench of this Court, which has taken a contrary opinion with regard to the procedure relating to appointment of Special Public Prosecutor. Therefore, the opinion of the Division Bench should prevail. The justifiability of the appointment by the State of a Special Public Prosecutor has fallen for consideration in Mukul Dalal and others vs. Union of India and others (3rd supra). In paragraph 9, the issue has been answered in the following words: ".9................................... 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 to examine 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 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 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 Special Public Prosecutor should not be made available to a private 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 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.". (Emphasis is added) Therefore, it must be understood that the request made by a party for appointment of a Special Public Prosecutor is not to be frowned upon and any appointment of a Special Public Prosecutor in that regard should not be invalidated merely on the ground that it was solicited. Onus lies heavily on the person who mounts a challenge thereto, as to how any such appointment is legally vitiated. In Madho Singh and another vs. State of Rajasthan and others (4th supra) the Rajasthan High Court had set-aside the order of appointment of a Special Public Prosecutor as there was nothing on record to show that the competent authority had applied its mind to the issue. In fact, there was no such plea of non-application of mind in these two cases. The question that fell for consideration in Bhopal Singh vs. The State of Rajasthan (5th supra) relates to the constitutional validity of Sections 225, 301 and 302 of the Code of Criminal Procedure. Therefore, it cannot be really relevant for me to examine the principles enunciated therein in the present context. A learned single Judge of this Court had an occasion to consider the validity of the orders passed by the State Government entrusting the prosecution to an Additional Public Prosecutor attached to another Court, held that the power of the State Government to appoint Public Prosecutors/Additional Public Prosecutors for a district includes the power to entrust one sessions case pending on the file of one Additional Sessions Court to an Additional Public Prosecutor of a different Additional Sessions Court in the same district. In fact, the learned single Judge has relied upon the principle enunciated by the Supreme Court in State of Rajasthan vs. Anand Prakash Solanki (7th supra) for arriving at the said conclusion. In Dodda Brahmanandam vs. State of A.P (9th supra), Justice M. Jagannadha Rao (as the learned Judge then was) had examined the questions about the duties of a Public Prosecutor and the locus standi of an accused to object to the appointment of a particular person has a Special Public Prosecutor under Section 24(8) of the Code on the ground of reasonable apprehension of bias on the later's part and held in paragraphs 23, 25, 26 and 27 in the following words: ".23. From the aforesaid rulings, the following principles can be summarized. The Prosecuting Counsel stands in a position different from that of an advocate who represents the complainant. He does not represent either the defacto complainant or the police. He is a representative of the State and is part of the Court and in that sense called a minister of justice. His function is to assist the court in arriving at the truth. It is not his duty to obtain a conviction at any cost but simply to lay before the Court the whole of the facts of the case and the law. The State too has no interest in procuring a conviction. Its only interest is that the guilty must be punished and justice should be done. It is regarded as proper for the prosecution to acquaint the defence as to any relevant information so that the defence may have the opportunity to use it if they so desire and so that no unfairness is meted out to the accused. (See also Kenny's Outlines of Criminal LKaw, 19th Ed (1966) p. 611-612.) The position of the prosecutor is thus quasi-judicial and one of trust. I hold on the first point accordingly.
25. I am unable to accept the extreme argument for the respondents that the accused has no locus standi to raise such an objection. For example, if a particular person has already been working as a standing counsel or advocate for the defacto-complainant, will it be fair to appoint him as a Public Prosecutor?. Will he give an impression to any reasonable man that he would work disinterestedly for the prosecution as well as for the accused. In my opinion, not.
26. It is well-settled that justice should not only be done but should manifestly and undoubtedly be seen to be done (per Lord Hewart C.J in R vs. Sussex exp. Mc Carthy (1924 1 KB256 259). There a Solicitor was acting for a client who was suing a motorist for damages. The Solicitor was also acting Clerk to the Justices before whom the same motorist was convicted of dangerous driving and he retired with them when they were considering their decisions. The fact that the Clerk's firm was acting against the interests of the convicted motorist in other proceedings was held to invalidate the conviction, even though it was proved that the justices had not in fact consulted the Clerk and that he had scrupulously refrained from saying anything prejudicial.
27. The same in my opinion applies to the case of a Public Prosecutor who is part of the Court and is expected to act quasi-judicially while discharging his duties for the State as well as towards the accused.". In Devineni Seshagiri Rao vs. The Government of A.P (11th supra), the supreme Court it culled out the principle in paragraph 14 of the Judgment in the following words: ".14. Before the State Government resorts to the appointment of a Special Public Prosecutor, it has to satisfy itself as to the special nature of the case or class of cases in respect of which the Special Public Prosecutor is sought to be appointed. From the point of view of Section 24(8), a case does not become special just on the request by or persistence of a complainant. The State Government is required to apply its mind and arrive at a conclusion that the concerned case has special significance and that the regular Public Prosecutor or Additional Public Prosecutor attached to the Court cannot effectively prosecute the matter. This satisfaction is purely subjective in nature. The Government does not owe an obligation to record reasons in support of this conclusion. However, satisfaction as such has to exist. It cannot be inferred only from an order appointing Special Public Prosecutor. It has to precede that.". (Emphasis is brought out ) In the present context, it is apt to notice that in ".Chief Constable of the North Wales Police v. Evans 18". it was very crisply observed that ".The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the Court.". In ".Asif Hameed v. State of Jammu & Kashmir 19". the Supreme Court opined ".While exercising power of judicial review of administrative action, the Court is not an appellate authority. The Constitution does not permit the Court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.". In State of Maharashtra and others vs. Prakash Prahlad Patil and others (12th supra), the issue has been answered by the Supreme Court in Paragraphs 3 to 6 in the following manner: ".3. The appointment of respondent No.3 appears to have been made on the basis of a petition filed by the brother and the son of the victim. This was a case where two persons were killed. Several accused persons are facing trial. Though initially it was not disclosed by respondent No.1 that he is related to one of the accused, but later on that fact surfaced during the hearing of the matter before the High Court. Then respondent No.1 took the stand that he was a social worker and in greater public interest the writ petition was filed.
4. The State opposed the petition on several grounds: primarily indicating that the scope of judicial review of the executive, administrative and quasi-judicial action, was extremely limited and this is not a case where any interference was called for. It appears from the impugned order of the High Court that the original file was called for and scanned as if the High Court was hearing an appeal against a decision taken.
5. The scope for judicial review has been examined by this court in several cases. It has been consistently held that 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 other organs of the State. A mere wrong decision, without anything more, in most of the cases will not be sufficient to attract the power of judicial review. The supervisory jurisdiction conferred upon a court is limited to see that the authority concerned functions within its limits of its authority and that its decisions do not occasion miscarriage of justice.
6. The courts cannot be called upon to undertake governmental duties and functions. Courts should not ordinarily interfere with a policy decision of the State. While exercising power of judicial review the court is more concerned with the decision making process than the merit of the decision itself.". A Division Bench of Rajasthan High Court (Jaipur Bench) in Nemi Chand vs. State of Rajasthan and others (13th supra) has negatived the contention that appointment of an advocate representing the complainant as a Special Public Prosecutor would effect the fair trail. Similarly, the Madhya Pradesh High Court (Indore Bench) in Annop vs. State of Madhya Pradesh 20 has also negatived similar contention in paragraphs 6 and 7 of the said Judgment in the following manner: ".6. Section 24(8) of the Code has come up for consideration in number of cases and law relating to appointment of Special Public Prosecutor is now well settled. It is, therefore, not necessary to burden this order with various citations, except to point out that appointment of respondent No.2 is made by the State Government in exercise of statutory powers conferred on it. It is the discretionary power vested in the Government. The State Government is the largest litigant in the country. The Government, like any other private litigant, can choose and appoint/ authorize any eligible advocate to appear on their behalf in any Court of Law. It is not open to petitioner to suggest to the Government that it should not appoint respondent No.2 as the counsel. An accused cannot claim as matter of right that the prosecution be conducted by a particular prosecutor and not by any other. Nor it is open for an accused to ask this Court to test the exercise of discretion under Section 24(8) on the touchstone of 'Judicial Review' as an appellate authority or Court. This is permissible only when such exercise and the resultant decision is palpably arbitrary and against the public interest. The scope of interference is very limited as pointed out in the recent decision State of U.P. v. Johri Mal.
7. In the case in hand, the eligibility, and qualification of respondent No.2 for appointment as Special Public Prosecutor are not in dispute. It seems that objection to his appointment is, basically on the ground of his alleged previous representation of complainant in the Court of Law. We find no force in the submission. Firstly, there is no prima facie material on record to show that respondent No.2 bears any animus against accused persons. Secondly, except for bald assertions, there is no worthy material in support of plea of bias, unfairness or that respondent No.2 will act as prosecutor to secure conviction. To say the least, this line of argument is like chasing a teasing illusion. The purpose of all criminal prosecution is to bring home the guilt of the accused and to punish him in accordance with law. The prosecutor has therefore to discharge his duties diligently towards this end. A prosecutor who fails in and neglects his duties is rather doing ill service to the administration of justice and ultimately to the Society. In discharge of his duties as prosecutor, he is ordained by law, by professional ethics and by his role as an officer of the Court, to employ only such means as are fair and legitimate, and to desist from resorting to unjust and wrongful means to secure conviction. Besides, there is always the Court to safeguard interests of accused and complainant, against omissions and commissions of the prosecutor. The Court may be away from the dust and din of legal battle in the arena, but not as a silent spectator to the proceedings. The Court can always intervene to prevent foul play. In view of the forgoing, there is no merit and substance in the present petition and contentions made in support thereof.". From the above principles what emerges is that it is not enough for one to call in question the appointment of a Special Public Prosecutor only on the basis of the plea that such an appointment was solicited by the victim or someone else. It must be demonstrated that the State has failed to apply its mind with regard to the nature of the case before appointing a Special Public Prosecutor. In as much as an accused has a right to be prosecuted fairly, at the same time the victims have an equal right for a proper and correct manner of prosecution of the offenders. The rights of the victims are no less significant and or subservient. Above all, the prosecutor carries on the job, strictly in accordance with law; both substantive and procedural, under the overall scrutiny of the Court. The Court does not merely play a passive role in the whole drama that unfolds before it and it will always be vigilant about any possible lapses on the part of the prosecution, particularly towards the accused. No rights of the accused, would be allowed by the Court to be diminished by the prosecution. Therefore, the appointment of a Special Public Prosecutor cannot be interfere with lightly. For all the aforementioned reasons, I do not find any merit in these writ petitions and accordingly they are dismissed. No costs. _______________________________________ JUSTICE NOOTY RAMAMOHANA RAO Date:
6. 11-2013