THE HON'BLE MR JUSTICE V.ESWARAIAH AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT APPEAL Nos.644 o”
28. 12.2012 Gorrepati Prasada Reddy and others.... APPELLANTS The State of Andhra Pradesh, Rep. by its Secretary, Legislative Affairs and Justice, Secretariat Buildings, Hyderabad and four others....RESPONDENTS Counsel for the Appellants: MR. T. BALI REDDY For MR. K. SURESH REDDY Counsel for the Respondents: ADVOCATE GENERAL GP FOR LAW & LEGISLATIVE AFFAIRS MR. S. BHARAT KUMAR MR. B. NALIN KUMAR HEAD NOTE: ?Cases referred 1. AIR 197.SC 85.2. (1988) 3 SCC 14.3. (2006) CCR 1 (DB) 4. 1986 (1) ALT 14.5. 2004 CRI.LJ 5.6. 2006 (6) ALT 22.7. 1992 Supp (2) SCC 48.8. (2004) 2 SCC 26.WRIT APPEAL.No.653 of 2012 G. Siva Nageswara Rao....APPELLANT AND Gorrepati Prasada Reddy and others....RESPONDENTS Counsel for the Appellant: MR. B. NALIN KUMAR ounsel for the Respondents: ADVOCATE GENERAL GP FOR LAW & LEGISLATIVE AFFAIRS MR. K. SURESH REDDY COMMON
JUDGMENT: (per Hon'ble Sri Justice Vilas V. Afzulpurkar) The writ petitioners in WP.No.21728 of 2011 preferred WA.No.644 of 2012 whereas WA.No.653 of 2012 is preferred by the fourth respondent in the aforesaid writ petition against the order passed by the learned single Judge in WP.No.21728 of 2011 dated 16.03.2012.
2. For the sake of convenience the parties are referred to as they are arrayed in the writ petition. Background facts are as follows: (a) Petitioners along with 218 others were accused in a sessions case, being S.C.No.39 of 1993, on the file of the Special Sessions Judge cum IV Additional Sessions Judge, Guntur and were tried for offences punishable under Sections 120B, 147, 302, 307 and 201 read with Section 149 of the Indian Penal Code, 1860 and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Attrocities) Act, 1989. The said case is popularly known as Tsundur Carnage Case. The Sessions Court, after trial, under its judgment dated 31.07.2007, convicted some of the accused and acquitted the rest of the accused. The convicted accused filed criminal appeals, being Crl.A.No.1021 of 2011 and batch. The State also filed Crl.A.Nos.398 and 998 of 2008 appeal against the acquittal. The victims/complainants filed Crl.RC.No.829 of 2008 questioning the acquittal recorded against some of the accused. (b) While the criminal appeals and criminal revision case are pending before this Court, the Tsundur Dalit Victims Struggle Committee filed a representation before the Government requesting the Government to appoint one Mr. B. Chandrasekar and Mr. G. Sivanageswara Rao, Advocates, Guntur, as Special Public Prosecutor and Assistant Special Public Prosecutor respectively for conducting prosecution in the said Tsundur Carnage Case before this Court. The said representation of the struggle committee was also forwarded to the Government by a Minister for Rural Development and MGNREGS and after examining the same, the Government issued G.O.Rt.No.980 Law (LA&J-Home-Courts.A1) Department dated 06.06.2011, exercising power under Section 24(8) of the Criminal Procedure Code, 1973, appointing the said advocates as Special Public Prosecutor and Assistant Special Public Prosecutor respectively to conduct prosecution in the Tsundur Carnage Case before this Court in all appeals and revision case and all related matters. The aforesaid order was amended by issuing G.O.Rt.No.990 Law (LA&J-Home-Courts.A1) Department dated 08.06.2011 substituting para 3 of the GO whereby the Public Prosecutor of High Court of Andhra Pradesh was requested to hand over the records relating to Tsundur Carnage Case to the said Special Public Prosecutor and Assistant Special Public Prosecutor. The order appointing the said advocates, vide G.O.Rt.No.980 dated 06.06.2011, is questioned in WP.No.21728 of 2011 and the said two appointees were also impleaded as respondents 3 and 4 respectively.
3. Before the learned single Judge, various contentions were advanced on behalf of the petitioners, details whereof are appropriately mentioned in the succeeding paragraphs. To continue with the narration above, the learned single Judge upheld the appointment of respondent No.3 as Special Public Prosecutor under Section 24(8) Cr.P.C but, however, set aside the appointment of respondent No.4 as Assistant Special Public Prosecutor on the ground that 'appointing any person as Assistant Special Public Prosecutor' is not contemplated under the Cr.P.C. To the extent of dismissing the writ petition, so far as upholding appointment of respondent No.3 is concerned, petitioners filed WA.No.644 of 2012 and to the extent of allowing the writ petition with regard to appointment of fourth respondent, the fourth respondent filed WA.No.653 of 2012.
4. These two appeals, being interconnected, were ably argued by Mr. T. Bali Reddy, learned senior counsel for the petitioners and Mr. B. Nalin Kumar, learned counsel for the fourth respondent. We have also heard the learned Special Government Pleader representing the learned Advocate General. We had also called for and perused the records leading to the issuance of the impugned notification.
5. The main contentions raised by the learned counsel for the petitioners are that the appointment of Special Public Prosecutor at the instance of the complainants is wholly impermissible and it was not open for the Government to exercise power under Section 24(8) Cr.P.C. by appointing Special Public Prosecutor as named by the complainants. According to the learned senior counsel, such act would amount to allowing the prosecution to be handed over to a private counsel, named by the complainants, which is de hors the scheme under Cr.P.C. It was also contended that no reasons are mentioned in the impugned notification, as to why the services of the appointed Public Prosecutor and Additional Prosecutors in the High Court of Andhra Pradesh are not utilized for these cases and as to why appointment of a Special Public Prosecutor is resorted to by the State. An objection is also raised that the said impugned notification has been issued at the instance of a Minister, which also shows total non- application of mind and appointing Special Public Prosecutor for the mere asking. Learned senior counsel also submitted that the counter affidavit filed on behalf of the State tried to explain various reasons as to why the said notification was issued. He also submits that in the absence of reasons in the notification, the counter affidavit cannot supplement the reasons, as per the ratio of the decision of the Supreme Court in MOHINDER SINGH GILL v. CHIEF ELECTION COMMISIOSNER OF INDIA1. Learned senior counsel also placed reliance upon certain decisions, reference to which will be made appropriately hereunder. Learned senior counsel also contended that respondents 3 and 4 are biased as they have conducted the sessions case and after their impugned appointment, they have filed the appeals against the acquittals.
6. Mr. B. Nalin Kumar, learned counsel for the fourth respondent, submitted that there is no basis for alleged bias against respondents 3 and 4 inasmuch as they are only being appointed as Special Public Prosecutor and Assistant Special Public Prosecutor to conduct the prosecution on behalf of the State and they were also appointed in the same capacity for conducting the sessions case under G.O.Rt.No.1212 Law (LA & J-Courts-A2) Department dated 23.08.2000 appointing the third respondent herein as Special Public Prosecutor and respondent No.4 as Assistant Special Public Prosecutor in SC.No.39 of 1993. He submits that the said appointment of respondents 3 and 4 to conduct prosecution in the sessions case was questioned by some of the accused in WP.No.9723 of 2004 on similar grounds and the said writ petition was dismissed by judgment of learned single Judge dated 01.09.2004 reported in MODUGULA MALLIKARJUNA REDDY v. GOVERNMENT OF AP (2004 (6) ALT 229). He, therefore, submits that the appointment of the same advocates for the purpose of appeals and revision before this Court arising out of the same sessions case, cannot be faulted by the petitioners. He also contended that there is no foundation in the pleadings to support the allegation of bias raised against them. Learned counsel also distinguished the decisions cited on behalf of the petitioners and has placed reliance upon various decisions to which reference will be made appropriately hereunder.
7. Thus, in these appeals, the appointment of respondents 3 and 4 is questioned on common grounds and in addition, the appointment of the fourth respondent is questioned on an additional ground that the said appointment as Assistant Special Public Prosecutor is not envisaged under any of the provisions of the Cr.P.C and as such, is not sustainable.
8. For the sake of convenience, G.O.Rt.No.980 dated 06.06.2011 is extracted hereunder: "GOVERNMENT OF ANDHRA PRADESH ABSTRACT PROSECUTORS - Appointment of Sri B.Chandrasekhar, Advocate, Guntur as Special Public Prosecutor and Sri G.Sivanageswara Rao, Advocate as Assistant Special Public Prosecutor to conduct the prosecution in TTsundur Carnage Case before the Hon'ble High Court of Andhra Pradesh - Orders -Issued. __________________________________________________ LAW (LA and J-HOME- COURTS.A1) DEPARTMENT G.O.Rt.No.980 Dated:06-06-2011. Read the following:- 1. G.O.Ms.No.1520, Law (L1) Department, dated:
24. 10.2006 2. From Sri D.M.Vara Prasada Rao, Minister for Rural Development & MGNREGS, representation, dated:20-01-11. ORDER:- In the reference 1st read above, TTsundur Dalit Victims Struggle Committee had requested the Government to appoint Sri B.Chandrasekhar, Advocate, Guntur as Special PP and Sri G.Sivanageswara Rao, Advocate as Asst. Spl.PP to conduct prosecution in the TTsundur Carnage case before the Hon'ble A.P. High Court in all the appeals and revision petitions and all related matters.
2. After careful examination, Government hereby appoint Sri B.Chandrasekhar, Advocate, Guntur as Special PP and Sri G.Sivanageswara Rao, Advocate as Asst. Spl.PP to conduct prosecution in the TTsundur Carnage case before the Hon'ble A.P. High Court in all the appeals and revision petitions and all related matters. The conditions of service of the said Prosecutor shall be governed in accordance with the executive instructions issued in G.O. first read above.
3. The date of joining should be intimated to Government.
4. The Director of Prosecutions, A.P., Hyderabad is requested to take necessary follow up action in the matter.
5. The following Notification shall be published in the A.P. Gazette; NOTIFICATION Under sub section (8) of section 24 of the Code of Criminal Procedure 1973 (Central Act No.2 of 1974) read with G.O.Ms.No.187, Law (L) Department, dated:
6. 12-2000 the Government of Andhra Pradesh, hereby appointed Sri B.Chandrasekhar, Advocate, Guntur as Special Public Prosecutor and Sri G.Sivanageswara Rao, Advocate as Assistant Special Public Prosecutor to conduct prosecution in the TTsundur Carnage case before the Hon'ble A.P. High Court in all the appeals and revision petitions and all related matters. The conditions of service of the said Prosecutor shall be governed in accordance with the executive instructions issued in G.O. first read above. (BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) A.SHANKAR NARAYANA SECRETARY TO GOVERNMENT LEGISLATIVE AFFAIRS AND JUSTICE" 9. The aforesaid GO would show that the Tsundur Dalit Victims Struggle Committee made a representation before the Government, giving various reasons, in support of their request for appointment of Special Public Prosecutor and Assistant Special Public Prosecutor for conducting the prosecution of the appeals and revision pending before this Court, inter alia, stating that the prosecution was against 179 accused and involves voluminous records apart from oral evidence of 70 witnesses and documentary evidence comprising of 750 exhibits and overall record exceeding 10,000 pages. It was also stated that respondents 3 and 4, who conducted the sessions case, as prosecutors, are well acquainted with the case and are equipped to handle the appeals and revision before this Court and their appointment for conducting prosecution of the appeals and revision would be in continuation of their acting as prosecutors in the sessions case.
10. We have seen the original file produced on behalf of the learned Advocate General containing the aforesaid representation, which was forwarded to the Government under a forwarding letter of the Minister, which is referred to as reference No.2 in the said GO. The counter affidavit states that after obtaining the opinion of the District Collector, Guntur, about the performance of respondents 3 and 4 in the trial and after perusal of the CD file and the judgment of the sessions case, the Government was satisfied and appointed respondents 3 and 4 accordingly. The GO specifically states that after careful examination of the representation, the said order of appointment was issued. We are, therefore, unable to accept the first contention of the learned senior counsel for the petitioners that the impugned notification is unreasoned inasmuch as it refers to the representation received by the Government and on examination thereof, the Government exercised its power under Section 24(8) Cr.P.C. As stated above, the representation itself mentions various reasons why the appointment of the said advocates as Special Public Prosecutor and Assistant Special Public Prosecutor was sought for and the reasons, as briefly noted above, undoubtedly, support the necessity of appointment respondents 3 and 4.
11. Learned single Judge has also considered and rejected the said contention by specifically noting that the appointment of respondents 3 and 4 is not a reflection on the capability of the Public Prosecutor and Additional Public Prosecutors in the High Court, but, on the contrary, taking note of the volume of the work involved, the Public Prosecutor and Additional Public Prosecutors in the High Court having been already burdened with the regular work in the High Court, the appointment of Special Public Prosecutor and Assistant Special Public Prosecutor for this case was found justified and within the competence and powers of the Government.
12. Learned senior counsel for the petitioners placed reliance upon a judgment of the Supreme Court in MUKUL DALAL v. UNION OF INDIA2 for the proposition that the appointment of an advocate as Special Public Prosecutor on mere asking by a private complainant was not sustainable, as the Cr.P.C confers special status on Public Prosecutors. In the aforesaid decision, the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984 fell for consideration wherein under the said rules, it was incumbent that every such request for appointment of Special Public Prosecutor or Assistant Public Prosecutor was required to be scrutinized and examined by the Remembrancer of Legal Affairs, keeping in view the prescribed guidelines and he should decide whether the appointment is warranted on the facts. Since Rule 22 of the Maharashtra Law Officers Rules was not followed, the appointment in that case was set aside and the Remembrancer of the Legal Affairs was required to decide afresh on the said appointment.
13. Subsequently, said Rule 22 of Maharashtra Law Officers Rules relating to engagement of Special Public Prosecutor was amended in the year 2004 by inserting a proviso to sub-rule (1). The said proviso required that no order under the sub-rule regarding the appointment of Special Public Prosecutor shall be made unless for the reasons recorded in writing, the Remembrancer of Legal Affairs is satisfied, having regard to the nature of case, gravity of the matter and pubic interest involved and such appointment is necessary. The said amended rule also fell for consideration before the Bombay High Court in SUSHIL HIRALAL CHOKHANI v. STATE OF MAHARASHTRA3 Learned senior counsel placed strong reliance upon paras 25 and 26 of the said judgment wherein the Division Bench held that requirement of reasons for appointment is mandatory by the rules.
14. In our view, reliance on the ratio of the said decision is based upon Rule 22 of the Maharashtra Law Officers Rules, both prior and after amendment, but, in our State, the said legislative environment does not exist. Even then the notification impugned refers to the representation, which does contain number of reasons as to why the appointment of the said advocates as Special Public Prosecutor and his Assistant is warranted. As held by the learned single Judge, the said appointment is merely in continuation to the appointment of respondents 3 and 4 before the Sessions Court. We are, therefore, unable to accept the contention of the learned senior counsel that the notification is bereft of reasons.
15. Learned senior counsel also placed reliance upon a decision of this Court in DODDA BRAHMANANDAM v. STATE OF AP4 wherein the appointment of an advocate as Special Public Prosecutor was questioned on the ground of bias and in that decision, it was found that the said advocate had appeared on behalf of the de- facto complainant and on that ground, the appointment was held to suffer from bias apparent. We do not think that the said decision has any relevance to the facts of the present case. Even otherwise, the contention of the learned senior counsel, on the ground of bias, is not sustainable, as is discussed, at the appropriate place, in the paragraphs below.
16. Learned senior counsel also placed reliance upon a decision of this Court in DEVINENI SESHAGIRI RAO v. THE GOVERNMENT OF AP5 wherein also the appointment of an advocate as Special Public Prosecutor was questioned on the ground of bias, as the said advocate has appeared in several cases, as an advocate, for the deceased and was closely connected with the family of the deceased and merely on the complainants' request the said advocate was appointed as Special Public Prosecutor. Though the facts of that case and the facts on hand are different, it is significant to notice the observation of this Court in para 14 as under: "...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 and 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 is to precede that." 17. Applying the aforesaid test to the facts of the present case, it is evident that preceding the appointment and keeping in view, the significance of the case, the prosecutors, who conducted the sessions case, were appointed by the Government to conduct the appeals and revision before the High Court.
18. We are also not satisfied that the appointment is at the instance of complainants, as, on the contrary, the Tsundur Dalit Victims Struggle Committee had made a request before the Government and the said representation contains various reasons why the said appointment was sought. More importantly, as noticed above, the appointment of the very same respondents 3 and 4 was challenged before this Court when they were appointed as Special Public Prosecutor and Assistant Special Public Prosecutor respectively to conduct the sessions case but the said challenge was negatived. When the very same respondents 3 and 4 are appointed to conduct the appeals and revision arising out of the same sessions case, it is merely continuation of their appointment and it cannot be said that the said respondents 3 and 4 are either biased or otherwise disqualified on any ground.
19. While dealing with the specific contention of the learned senior counsel for the petitioners with regard to the challenge to the appointment of respondents 3 and 4, it is significant to notice that the only allegations found from the pleadings of the petitioners are in paras 7 and 8, which are as follows: "7. I submit that the action of the first respondent in issuing the impugned G.O. is highly arbitrary, illegal and unconstitutional. I submit that prosecution party cannot name a particular person and request the Government to appoint that person as Special Public Prosecutor. This indirectly encouraging the private persons to step into the shoes of the state which is the ultimate custodian of the Criminal Justice System. I submit that the first respondent has not at all exercised its jurisdiction and it had not at all applied its mind. The first respondent merely obliged the request of the prosecution party and issued the impugned G.O. This is nothing but an abuse of process of law.
8. I submit that we have not found any reason as to why the third and fourth respondents have been appointed as Special Public Prosecutor and Assistant Special Public Prosecutor on the representation of the prosecution party. I submit that the second respondent who is the Public Prosecutor of the State is competent and there is nothing against him stating that he cannot represent the case effectively. If this kind of appointment is allowed it will lead to a very bad precedent. I submit that the Public prosecutor is termed as a Minister of justice. He has to conduct the case in the interest of Public without any personal interest and bias. I submit that the third and fourth respondents are biased as they are participating personally with the prosecution party. If this is permitted it may amount to handing over of Criminal Case to a private prosecutor.
20. It would be noticed that the contention in para 7 is that the State had obliged the request of the prosecution party. The said paragraph does not even indicate the allegation that the appointment of respondents 3 and 4 is sought for by the complainants. There is, therefore, no factual foundation in the pleadings to support the contention that on the request of the complainants, respondents 3 and 4 are appointed. Wirth regard to the contention in para 8, as already discussed above, the necessity of appointing Special Public Prosecutor and Assistant Special Public Prosecutor, keeping in view the volume of the case and the acquaintance of respondents 3 and 4 with the same case as prosecutors before the sessions case, is fully explained. The letter of the Minister is merely a forwarding letter, forwarding the representation of the Tsundur Dalit Victims Struggle Committee.
21. The last sentence in para 8 is as follows: "I submit that the third and the fourth respondents are biased as they are participating personally with the prosecution party. If this is permitted it may amount to handing over Criminal Case to private prosecutor." We are unable to see any foundation for the allegation of bias on the basis of averments, as above. Respondents 3 and 4 are advocates and it is ununderstandable, what is meant by the petitioners when they aver that they are allegedly participating with prosecution party. Though respondents 3 and 4 have prosecuted the sessions case, not a single instance of bias is alleged against them. We are, therefore, unable to uphold the said contention of the learned senior counsel. The instances, which are relied upon and urged by the learned senior counsel, are subsequent to the appointment of respondents 3 and 4 under the impugned notification and as such, subsequent action cannot be used to contend that there was any bias prior to their appointment. Even otherwise, such actions of respondents 3 and 4 are part of their official duties, as prosecutors and no bias can be attributed based on that.
22. The appointment of respondent No.3 as Special Public Prosecutor is accordingly upheld.
23. So far as appointment of fourth respondent as Assistant Special Public Prosecutor is concerned, Mr. B. Nalin Kumar, learned counsel, fairly submitted that the said appointment cannot be traced to power of the State under Section 24(8) Cr.P.C. He, however, submits that notwithstanding the non-applicability of Section 24(8) Cr.P.C, the appointment is traceable and valid under Article 162 of the Constitution of India, under Executive Power of the State. He also placed strong reliance upon the judgment of a learned single Judge of this Court in MODUGULA MALLIKARJUNA REDDY v. GOVERNMENT OF AP6, referred to above, where the appointment of respondents 3 and 4 to conduct prosecution before the Sessions Court was upheld by this Court. Learned counsel, therefore, contends that the similar ground, having been already rejected in the same matter, cannot invalidate the appointment, particularly, that of respondent No.4. He has also placed reliance upon a judgment of the Supreme Court in NATIONAL INSTITUTE OF MENTAL HEALTH AND NEURO SCIENCES v. K. KALYAN RAMAN7 to contend that the appointment of the fourth respondent by the Government is a pure administrative action and there is no necessity to record any reasons in support of the same. He places reliance upon para 7 of the said decision. The relevant portion of para 7 is extracted hereunder: "7. We will first consider the second point. In the first place, it must be noted that the function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative. The High Court seems to be in error in stating that the Selection Committee ought to have given some reasons for preferring Dr Gauri Devi as against the other candidate. The selection has been made by the assessment of relative merits of rival candidates determined in the course of the interview of candidates possessing the required eligibility. There is no rule or regulation brought to our notice requiring the Selection Committee to record reasons. In the absence of any such legal requirement the selection made without recording reasons cannot be found fault with..." 24. Learned counsel also placed reliance upon a decision of the Supreme Court in M.T. KHAN v. GOVERNMENT OF AP8 to substantiate his contention that under Article 162 of the Constitution of India, the State has power to appoint the fourth respondent.
25. In the aforesaid decision, the appellants' challenge to the appointment of two Advocates General by the Government of Andhra Pradesh was questioned on the ground that Article 165 of the Constitution of India does not contemplate more than one advocate as Advocate General. While rejecting the said challenge, the Supreme Court held in paras 11, 16 and 17 as under: "11. The Government of a Sate as a litigant can appoint as many lawyers as it likes to defend it. For the said purpose, the State is not prohibited from conferring such designation on such legal practitioners as it may deem fit and proper. But, the State, in our considered view, cannot appoint more than one Advocate General.
16. We are, however, unable to agree with the submission of Mr Hardey Singh to the effect that the appointments of Additional Advocate Generals cannot be traced to the source of the State's power under Article 162 of the Constitution of India. It is now well-settled principle of law that non-mentioning or wrong mentioning of a provision of law does not invalidate an order in the event it is found that a power therefor exists.
17. In Union of India V. Khazan singh [1993 Supp (1) SCC 583.this Court held: "The Appellate Authority did not mention in its order as to under which sub-rule of Rule 25(1) the appeal was being dispose of. The Tribunal while noticing Rule 25(1)(e) of the Rules and conceding that the Appellate Authority could remand the case to the disciplinary authority for further inquiry under the said sub-rule, grossly erred in setting aside the order on the concession of the learned counsel to the effect that the Appellate Authority had passed the order under Rule 25(1)(d) of the Rules." 26. It is evident from the above that the power of the State to appoint as many lawyers as it likes, to defend it, is well recognized and though the fourth respondent's appointment is not traceable to Section 24(8) Cr.P.C, it is clearly traceable to the executive power of the State under Article 162 of the Constitution of India, as in the aforesaid decision. It was also held in the above decision that quoting of wrong provision does not take away the jurisdiction of the authorities and as such, notwithstanding that source of power of the State is referred to as Section 24(8) Cr.P.C., the said appointment, in reality, is one under the executive power of the State under Article 162 of the Constitution of India. Secondly, as held by the learned single Judge, there is no provision under which the Assistant Special Public Prosecutor can be appointed and as such, the designation of the fourth respondent as Assistant Special Public Prosecutor under the impugned GO is clearly not sustainable. However, mere designation would not invalidate the appointment. The same advocate was appointed to assist the same Special Public Prosecutor (respondent No.3 herein) before the Sessions Court under G.O.Rt.No.1212 dated 23.08.2000, referred to above. While issuing the aforesaid GO, respondent No.4 was appointed as Assistant to Special Public Prosecutor. However, in the present impugned GO, the word 'to' is missing in between 'Assistant and Special Public Prosecutor'. It is not in controversy that respondent No.4 was to assist the Special Public Prosecutor, as he did before the Sessions Court and since that being not in controversy, on the principle of casus omissus if we read the appointment of respondent No.4 as Assistant to Special Public Prosecutor, no invalidity in his appointment is discernible. In order to satisfy on the intent and purpose of appointment of respondent No.4 we had requested the learned Advocate General to place the proceedings under which the Special Assistants to Public Prosecutor and Additional Public Prosecutors are appointed in this Court, so far as regular work is concerned. Learned Advocate General has placed before the Court G.O.Rt.No.2055 Law (N) Department dated 03.11.2012 wherein six Special Assistants to assist the Public Prosecutor and Additional Public Prosecutors are appointed in view of the heavy work load of the said Public Prosecutor and Additional Public Prosecutors of the High Court of Andhra Pradesh. The said appointment is also traceable to Article 162 of the Constitution of India.
27. In that view of the matter, therefore, we are of the view that the appointment of respondent No.4 as Assistant to Special Public Prosecutor is also valid and the impugned order of the learned single Judge to that extent is required to be reversed.
28. We have noticed quite a number of other cases decided by learned Judges of this Court (both singly and in Division Bench) with regard to the question similar to the one raised herein and a brief reference to the said unreported decisions may be necessary. (a) WP.No.8004 of 2002 dated 23.09.2002 was concerning challenge to the appointment of Special Public Prosecutor to conduct prosecution in CC.No.208 of 2001 on the file of the III Metropolitan Magistrate, Visakhapatnam. The said case was entrusted to Assistant Public Prosecutor attached to the said Court but the case related to large embezzlement of money requiring additional knowledge of the Companies Acct and the Rules and as such, the complainant requested a senior member of the bar to be appointed as Special Public Prosecutor. Accordingly, in view of the complexity of issues involved, the Special Public Prosecutor was appointed. This Court, on examination of the matters, upheld the decision of the State Government to appoint Special Public Prosecutor in view of the complexity of the case and the appointment was not interfered with. (b) WP.No.13637 of 2001 dated 29.07.2003 also questioned the appointment of the Special Public Prosecutor on the ground that the said appointee was a choice of the de-facto complainant and it was found that after examining the representation of the de-facto complainant, in view of the importance of the case and its early disposal, it was held that interference by this court is warranted only where the facts and circumstances give rise to reasonable apprehension that the Special Public Prosecutor would not act impartially and dispassionately. In that case also, except a vague statement in the affidavit, there was no material against the said appointee and as such, the appointment was upheld. (c) WA.No.1341 of 2003 was filed challenging the correctness of the decision of the learned single Judge in WP.No.13637 of 2003 dated 29.07.2003 above. The said appeal was dismissed by a Division Bench on 10.09.2003.
29. Applying the tests in all the decisions, referred to above, to the facts of the present case, we are unable to find any infirmity with the impugned notification except to the extent of treating and reading the said notification, so far as appointment of the fourth respondent is concerned, as 'Assistant to Special Public Prosecutor'. In the result, therefore, WA.No.644 of 2012 filed by the writ petitioners is dismissed and WA.No.653 of 2012 filed by the fourth respondent is allowed. As a sequel, the miscellaneous applications, if any, shall stand closed. In the circumstances, there shall be no order as to costs. ______________ V. ESWARAIAH, J _____________________ VILAS V. AFZULPURKAR, J December 28, 2012