THE HON'BLE Sr.JUSTICE RAMESH RANGANATHAN WRIT PETITION No.38979 of 2012 Dated:13-09-2013 Dr.
Tera Chinnapa Reddy, S/o late T.
Pedda Ram Reddy, aged 49 yeaRs.Business, R/o Plot No.136/A, Road No.12, Banjaara Hills, Hyderabad - 500 034...Petitioner The Govt.
of A.P.rep., by its Secretary to Government, Legislative Affairs & Justice (FAC).Law (LA&J - Home-Courts.A2) Department, Hyderabad and three others.....Respondents Counsel for the petitioner: Sr.P.
Venugopal appearing on behalf of the petitioner.
Counsel for respondents: GP.
For Home; Sr.S.Sarath, Learned Counsel for the 3rd respondent and Sr.P.
Nageswara Rao, Learned Counsel for the 4th respondent.
HEAD NOTE: ?.Citations: 1) 2008(2) ALT (Crl.) 339 (A.P.) 2) Order in W.A Nos 1254 and 1498 of 2008 dated 20.03.2009 3) 2009 (2) ALD (Cri) 300 4) 1995 CRL.L.J.3743 5) AIR2004SC38006) 1989 Cri.L.J.2482 7) (2002) 9 SCC3898) 1993 Cri.L.J.1249 (Kerala HC) 9) 2004(6) ALT22910) (2008) 10 SCC18011) 1982 Ker LT605: (1982 Cri L J208512) (1998 Crl.L .J998(MP) 13) 2001 CRL.L.J.3113 14) 2004 Cri.L.J.52 15) (1988) 3 SCC14416) (1981) 2 Cri.L.J.1779 (Delhi HC) 17) 2006 CRL.L.J.3105 18) 1984 CRL.L.J.499 19) AIR1937Nag 123 : 38 Cri LJ43320) 2002 CRL.L.J.1694 21) (1951) 342 US9822) (2003) 4 SCC57923) (1988) 4 SCC5924) AIR1970Madras 63 25) (2000) 7 SCC66826) AIR1952SC1627) (1880) 5 AC21428) (2011) 4 SCC129) AIR1987SC53730) 2004(2) ALD599(DB) 31) AIR1989SC99732) (2004) 4 SCC42733) Judgment in W.P.No.13637 of 2003 dated 29.07.2013 34) 1986(1) APLJ119= 1986 (1) ALT14135) (1844) 7 Ir.L.R.
261 36) 1986 Ker LT127437) (1986 Cri LJ209338) 1994 Crl.L.J2780(Kerala HC) 39) (1865) 4 F & F84240) 1916 (2) K.
B621=(1916) 17 All E.R.356 41) (1838) 8 C&P26942) (1965) 4 F & F49743) AIR1959A.P.659 44) A I R1923Lahore 264 45) A I R1924Nag.
243 46) (1935) 25 Cr.
App.R.109 47) [1971].12 Guj.
LR.
999 48) AIR1976SC145549) (1985) 1 SCC34550) (2004) 6 SCC18651) 1951 AC73752) (1970) 2 ALL.E.R29453) 1971 (1) WLR106254) 1972 (2) WLR53755) (1989) 1 SCC10156) (1996) 6 SCC4457) (2006) 1 SCC27558) (2005) 6 SCC40459) (2007) 7 SCC55560) (1976) 2 SCC52161) (1901 AC495: (1900-03) All ER Rep.
1 (HL) 62) (AIR1968SC647= (1968) 2 SCR15463) [1975].3 All ER5564) (2005) 7 SCC23465) (2006) 5 SCC16766) (2003) 7 SCC197= 2003 SCC (Cri) 1722 67) (2002) 4 SCC63868) (1983) 4 SCC35369) (1994) 5 SCC40270) (2007) 5 SCC42871) (1959 Supp (2) SCR375= AIR1959S.C.814 72) 1993(2) A.P.L.J.479 = 1993(3) ALT39173) [1971].3 SCR974) [1992].198I TR297(SC) 75) (1990) 4 SCC20776) (1982) 7 App Cas 259 77) [1901].A.C.495 (502) 78) [1982].2 SCR36579) 1924 1., K.
B.256, 259 80) (2000) 6 SCC20481) AIR1958SC30982) AIR1993SC215583) 1995 Suppl.
(1) SCC2184) 2006 (147) STC89(AP) 85) AIR1970SC15086) (2006 Cri.L.J.4258 87) 1999 Cri.l.J.1286 88) 2006 CRL.L.J.2061 89) Vol.89 1996 Taxman.
287 (Bom.
HC DB) 90) [1994].206 ITR727(Bom) 91) [1994].209 ITR277(Bom) 92) [1979].4 SCC42993) (2008) 14 SCC28394) [1960].3 SCR57895) AIR1982SC130296) (1961) 2 SCR6397) (2010) 5 SCC600THE HON'BLE Sr.JUSTICE RAMESH RANGANATHAN WRIT PETITION NO.38979 OF2012
ORDER: Can the Advocate of the defacto-complainant, who issued a legal notice to the accused earlier, be appointed as a Special Public Prosecutor to prosecute him in the very same case?.
This is the question which arises for consideration in this Writ Petition.
The petitioner, the Managing Director of a bulk drug manufacturing company, contested the 2009 general elections from Nagarjuna Sagar Assembly Constituency and lost to the 3rd respondent.
In his writ affidavit, the petitioner states that the 3rd respondent sent signals asking him to stay away from active politics; several malicious calls were made to him by anonymous calleRs.strangers were found lurking around his residence; he submitted representations in September, 2010 to the police seeking personal security; he filed W.P.No.20230 of 2012 questioning the action of the respondents in not providing him police security; the said writ petition was disposed of on 20.07.2012 directing the respondents to consider his representations as per G.O.Ms.No.655, Home, dated 13.03.1997; his request for personal security was rejected because of the pressure brought by the 3rd respondent; the personal secretary to the 3rd respondent filed a complaint before the C.I.D Hyderabad, under Section 55- A(a)&(b) of the Information Technology Act and Sections 189 and 507 IPC, which was registered as Crime No.50 of 2012; he was arrested on 25.08.2012 and obtained bail from the VI Additional Chief Metropolitan Magistrate, Nampally, Hyderabad; the 3rd respondent, being a Minister, wielded power and started pressurizing officials to have his companies closed; the 3rd respondent issued notice dated 11.08.2012, through the 4th respondent, stating that he had made defamatory statements in the newspapeRs.in response thereto, he issued a reply notice through his counsel on 25.08.2012 denying the allegations; the said notice was issued, by the 4th respondent, in his individual capacity as a counsel for the 3rd respondent; due to the pressures brought by the 3rd respondent, G.O.Rt.No.2282 dated 27.11.2012 was issued appointing his counsel (the 4th respondent) as a special public prosecutor to conduct prosecution, on behalf of the Government, against him; he never made any statement as mentioned in the notice dated 11.08.2012; the 3rd respondent had misused his political power and had pressurized the Government to issue the G.O.appointing a special public prosecutor; there is no necessity for the State Government to appoint a public prosecutor to appear in a case between two private individuals to which the State is not a party; this is an abuse of the State exchequer; the 3rd respondent requested the government, vide letter dated 23.11.2012, to appoint the 4th respondent as a Special Public Prosecutor to prosecute the petitioner; heeding to his request, the government appointed the 4th respondent as a Special Public Prosecutor though he was a private advocate and had issued the legal notice on 11.08.2012, on behalf of the 3rd respondent, demanding unconditional apology from him; it is illegal to appoint a private advocate as a Special Public Prosecutor; the function of the public prosecutor is to assist the Court in adjudicating a dispute; there is reasonable apprehension in his mind regarding the independence of the 4th respondent as a special public prosecutor; it is not open to the complainant to name a person for being appointed as a special public prosecutor; the questions, whether or not it is necessary to appoint a special public prosecutor in a case, and, if so, the person to be appointed as such, all are matters in the prerogative of the State; the State cannot surrender its discretion to appoint a public prosecutor to the choice of an individual; from the impugned G.O., it is clear that the 4th respondent was appointed as a Special Public Prosecutor at the behest of the 3rd respondent as a private individual; the Government has not exercised its discretion as required under the Code; there is a regular public prosecutor in the Court; and no reasons were assigned in the impugned G.O.as to why he should be substituted by a Special Public Prosecutor, and that too by a person named by the 3rd respondent.
In the counter-affidavit, filed on behalf of the 1st respondent, it is stated that the impugned G.O, issued by the Government, is in accordance with law and is legally valid; there is no illegality or irregularity in the appointment of the 4th respondent as a Public Prosecutor; the said appointment was made by the Government in the exercise of its powers under Section 24(8) Cr.P.C; the offence of defamation under Section 499 IPC is punishable under Section 500 IPC; it is always the victim who has to institute proceedings against the accused, and the State has nothing to do with any such proceedings; however in the case of a person holding an office, enumerated under Section 199(2) Cr.P.C, when an offence falling under chapter XXI IPC is alleged to have been committed against him in respect of his conduct in the discharge of his public functions, the Court of Session may take cognizance of such offence, without the case being committed to it, upon a compliant in writing by the Public Prosecutor; such a complaint is required to be made within six months from the date of the offence; the 3rd respondent is a Cabinet Minister in the State of Andhra Pradesh and he has been, allegedly, defamed by the petitioner which is an offence under Section 499 IPC punishable under Section 500 IPC which falls under Chapter XXI IPC; the provisions of Section 199(2) Cr.P.C.is, therefore, attracted in this case; the 3rd respondent had placed before the Government all relevant documents i.e., newspaper publications, notice dated 11.08.2012 and the reply notice dated 25.08.2012 requesting it to prosecute the petitioner for the offence of defamation; the Government had examined the entire material and, after being satisfied of the genuineness of the request of the 3rd respondent, had issued G.O.Rt.
No.2282 dated 27.11.2012 appointing the 4th respondent as a Public Prosecutor; accordingly the 4th respondent had filed a complaint in C.C.No.1 of 2012, in the Court of the Sessions Judge at Nalgonda, within the stipulated time; no prejudice has been caused to the petitioner, on the 4th respondent being appointed as a Public Prosecutor, more so as the petitioner owns all the statements made by him which were published in the newspapeRs.and such statements were reiterated in both the notices issued by the 3rd respondent and the reply notice of the petitioner; the burden of proof lies on the petitioner to substantiate the various allegations made by him against the 3rd respondent; once the Government is satisfied that it is a fit case to accord sanction for prosecution of the petitioner, the expenditure incurred by the Government for such prosecution is not relevant as the Government is duty bound to act and protect the reputation of the 3rd respondent; the 4th respondent would be paid his fees as per the rules prescribed for conducting such proceedings; viewed from any angle, the impugned G.O.issued by the Government is in consonance with the law and is legally valid; the allegations, in the affidavit filed in support of the Writ Petition, are false, baseless and are, hence, denied; and the Writ Petition is devoid of merits.
In his counter-affidavit, the 3rd respondent would submit that all the publications, which contained the statements issued by the petitioner, were to the effect that he had abused his official position as a Minister and had amassed wealth; the petitioner did not deny the contents of the publications in the reply legal notice dated 25.08.2012 issued on his behalf; the contents of the publication were not only admitted but were also elaborately repeated; these documents would show that the petitioner is liable to be punished for the offence of defamation unless he is able to establish these allegations during the couRs.of trial; prosecution of the petitioner by the State, under Section 199(2) Cr.P.C, is lawful; the allegation that he was sending signals to the petitioner to stay away from politics is false; he has been holding the office of a Minister for the longest period ever since the State of Andhra Pradesh was formed; he held various positions, in the past forty years of his public life, right from a Samithi President to a Cabinet Minister; he was supporting the cause of a large number of social organizations; he contested elections to the A.P.Legislative Assembly seven times, and was successful six times; several people, from different political parties and independent candidates, had contested against him and had lost, but there was never any ill-feeling between him and those candidates; though he wanted to ignore the statements, the petitioner had repeatedly defamed him; a large number of people, throughout the State, had enquired from him regarding the allegations made by the petitioner; he was told that this had created an adveRs.impression in the minds of the general public; in the context of the present atmosphere, where scandal after scandal is reported by the press and the print media, people would believe whatever is reported in the press, that too when specific allegations are repeated by a member of the main opposition party; to uphold values and purity in public life he had taken the initiative to prosecute the petitioner; he had nothing to do with the so called anonymous calls or the strangers found lurking at the petitioner's residence; he was being maligned without any basis; it is false to allege that he had used his political influence to have the petitioner's request for personal security rejected; Crime No.50 of 2012, registered against the petitioner, has to be decided on its merits by the competent court; he had never brought pressure to have the petitioner arrested or to have his Companies closed; the petitioner can avail his legal remedies instead of indulging in mudslinging; the legal notice dated 11.08.2012 was issued on his behalf, through his Counsel, as the petitioner had made defamatory statements against him especially accusing him of acquiring various properties abusing his official position as a Minister; he had approached the authorities to prosecute the petitioner, as provided under Section 199(2) Cr.P.C, by appointing a Special Public Prosecutor; the defamatory statements were published in various newspapers in June, 2012; these documents establish that the petitioner had made defamatory statements against him in respect of his conduct as a Minister in the State of Andhra Pradesh; the Government was justified in directing prosecution of the petitioner in terms of Section 199(2) Cr.P.C; appointment of the Special Public Prosecutor, in the present case, could not be faulted on the sole ground that the notice dated 27.11.2012 was issued by the 4th respondent on his behalf; since the entire record, regarding the statements made by the petitioner, was thoroughly studied by the Counsel to issue a legal notice on his behalf, he felt that appointment of such a person as a Public Prosecutor would be useful to conduct the case, and also because the Public Prosecutor of the Sessions Court may not be able to spare time for this case in view of his regular responsibilities; except this, he has no other reason to request the Government to appoint the 4th respondent as a Public Prosecutor; the question of payment of fees by the State cannot be a ground to question the appointment of a Special Public Prosecutor; the present circumstances warranted such appointment; prosecution of the petitioner, for the offence of defamation in respect of his conduct as a Minister, was justified and the question of the State exchequer being burdened thereby is wholly irrelevant; this cannot be termed as a dispute between two parties; there was nothing extraordinary in appointing the 4th respondent as a Special Public Prosecutor in respect of the offence of defamation for which prosecution can be launched under Section 199(2) Cr.P.C; the burden, to prove the defamatory statements made by him, lies on the petitioner; the prosecution has nothing to prove except to show that the petitioner had made defamatory statements against him touching upon his conduct as a Minister; this is a matter of record as seen from the statements published in the newspapeRs.though he had ignored the defamatory statements, the petitioner kept repeating them through the press; SMs.were also sent to a large number of people; the petitioner had, in fact, acquired 600 acres of land in Hyderabad, Rangareddy and Nalgonda districts in his name, in his wife's name and in the names of his minor daughteRs.some spirited citizens had brought these facts to the notice of the concerned authorities; the Land Reforms Tribunal, Miryalaguda had initiated action against the petitioner and had taken possession of the surplus lands; the petitioner failed to substantiate his allegations both before the Human Rights Commission and the Superintendent of Police, Nalgonda; and he had no role, whatsoever, in the proceedings initiated against the petitioner before these authorities.
Elaborate submissions, both oral and written, were made by Sr.P.Venugopal, Learned Counsel for the petitioner; Sr.S.Sarath, Learned Counsel for the 3rd respondent and Sr.P.Nageswara Rao, Learned Counsel for the 4th respondent.
The Learned Government Pleader for Home put forth his submissions and has also produced the relevant government records for the perusal of this Court.
It is convenient to examine the contentions urged by Counsel on either side under different heads.
Before doing so it is, however, necessary to note the contents of the impugned G.O.and the proceedings referred to therein.
It is evident, from G.O.Rt.
No.2282 Law (LA&J-Home-Courts.A2) Department dated 27.11.2012, that the Government had earlier, by G.O.Rt.No.2197 dated 21.11.2012, accorded sanction for filing a complaint in the concerned court, by the public prosecutor against the petitioner for making defamatory statements against the 3rd respondent; by G.O.Rt.No.2197 and G.O.Rt.
No.2210 both dated 22.11.2012 the Government had entrusted the case to the Public Prosecutor in the District and Sessions Court, Nalgonda to conduct prosecution against the petitioner for defaming the 3rd respondent; the 3rd respondent had, by letter dated 23.11.2012, requested that the 4th respondent, a Senior Advocate, be appointed as a Special Public Prosecutor, on behalf of the Government, to conduct prosecution against the petitioner; and, after careful examination of the matter, the Government had decided to appoint the 4th respondent as a Special Public Prosecutor under Section 24(8) Cr.P.C, to conduct prosecution on behalf of the Government against the petitioner for defaming the 3rd respondent, for a period of one year or till the prosecution was completed or till his services were terminated whichever was earlier, duly cancelling the earlier orders issued in G.O.Rt.
No.2196 and G.O.Rt.No.2210 dated 22.11.2012, and the Special Public Prosecutor should be paid remuneration as per the orders issued in G.O.Ms.No.187 dated 06.12.2000 and G.O.Ms.No.1520 dated 24.10.2006.
By the impugned G.O., the 4th respondent was appointed as a Special Public Prosecutor in the matter, and was requested to conduct prosecution as per the orders issued in G.O.Rt.
No.2197 dated 21.11.2012.
The notification, whereby the 4th respondent was appointed as a Special Public Prosecutor, was directed to be published in the extra-ordinary issue of the Gazette.I.WOULD THE PROCEDURAL REQUIREMENTS OF SECTION244) & (5) CR.P.C.APPLY TO THE APPOINTMENT OF SPECIAL PUBLIC PROSECUTORS?.
Sr.P.
Venugopal, Learned Counsel appearing on behalf of the petitioner, would submit that, in the matter of appointment of Special Public ProsecutORS.the provisions of Section 24 Cr.P.C should be read as a whole, and not sub-section (8) in isolation; even in the matter of appointment to the posts of Special Public ProsecutORS.the procedure contemplated under Section 24(4) and (5) Cr.P.C has to be followed in its letter and spirit; as the State did not follow the procedure contemplated under sub-clauses (4) and (5) of Section 24 Cr.P.C, in appointing Respondent No.4 as a Special Public Prosecutor, the Government is not justified in issuing the impugned G.O.appointing Respondent No.4 as the Special Public Prosecutor.
In Paramjit Singh Sadana v.
State of A.P.1 a learned single Judge of this Court held that, in the matter of making appointments to the posts of Public Prosecutors/Additional Public Prosecutors/Special Public Prosecutors as the case may be, the provisions of Section 24 of the Code should be read as a whole and not the sub-sections thereof in isolation; and, in making appointments to the posts of Special Public ProsecutORS.the procedure contemplated under Section 24 of the Code, particularly sub-sections (4) and (5) thereof, has to be followed in its letter and spirit.
A Division bench of this Court, in The State of A.P.v.
Sardar Puran Singh @ Baba2, allowed the appeals filed by the State against the order of the learned Single Judge in Paramjit Singh Sadana1; set aside the order of the Learned Single Judge; and held that the orders impugned therein were valid.
Reliance placed by Sr.P.
Venugopal, Learned Counsel appearing on behalf of the petitioner, on Paramjit Singh Sadana1, is therefore misplaced.
Section 24(8) Cr.P.C.is independent of, and does not have any similarity with, the appointment to the offices provided for in the preceding sub-clauses of Section 24.
A clear distinction is apparent between appointment to the office of a Public Prosecutor under Section 24(2)& (3) Cr.P.C.and a Special Public Prosecutor under Section 24(8) Cr.P.C.in that no consultation or preparation of a panel is envisaged in the latter.
The consultation and panel preparation process for appointment to the office of a Public Prosecutor, under the preceeding sub-sections, have no application for appointment to the post of a Special Public Prosecutor.
The legislature, in its wisdom, has dispensed with the consultation process and the requirement of preparation of a panel for appointment as a Special Public Prosecutor.
(The State of A.P.v.
MargadaRs.Financiers3).No consultation with any authority is required and the Government is fully empowered and has the discretion to appoint anyone, with the requisite qualification, as a Special Public Prosecutor.
(Shankar Sinha v.
State of Bihar4).This submission, urged on behalf of the petitioner, necessitates rejection.
II.
CAN THE POWER, TO APPOINT A SPECIAL PUBLIC PROSECUTOR UNDER SECTION248) Cr.P.C, BE EXERCISED FOR THE MERE ASKING?.
Sr.P.
Venugopal, Learned Counsel appearing on behalf of the petitioner, would submit that respondent No.4 was appointed as a Special Public Prosecutor only at the behest of Respondent No.3; a Special Public Prosecutor can be appointed only when public interest demands, and not to vindicate the grievance of private individuals; the impugned G.O.is arbitrary, illegal and in violation of Section 24(8) Cr.P.C; there is no public interest in respondent No.4 being appointed as a Special Public Prosecutor in a case where his client, i.e.Respondent No.3, is the defacto complainant; the office of the Public Prosecutor cannot be controlled by private individuals; it would not be open to any complainant to name a person of his choice for such appointment; the State cannot surrender its discretion to the choice of the complainant, as the Special Public Prosecutor represents the State alone and not private individuals; and, in any event, the State has not assigned reasons for appointing Respondent No.4 as a Special Public Prosecutor except to state that Respondent No.3 had recommended his name.
On the other hand Sri.
Sarath Kumar, Learned Counsel for the 3rd respondent, would submit that a limited role was played by the 4th respondent in drafting a legal notice which contained only the public utterances of the petitioner against the 3rd respondent; his services were utilized by the 3rd respondent merely to draft and file the complaint in C.C.No.1/2012; he had later approached the State Government, in his individual capacity, requesting that the 4th respondent be appointed as a Special Public Prosecutor to conduct the case; the State Government, after following the procedure, had issued G.O.Rt.
No.2282 dated 27.11.2012 appointing the 4th respondent as the Special Public Prosecutor to conduct trial in C.C.No.1 of 2012; the issue before this Court is whether, in the guise of seeking a fair trial, an accused can dictate to the State who should conduct prosecution on behalf of the State or who should oppose him; permitting the accused to do so would have disastrous consequences and the likelihood of the accused being pinned down for his criminal mis-behaviour, which is an injury to social order and public morality, would become scarce; the highly elevated facet, of a fair and impartial trial, cannot be stretched too far to permit the accused to scandalize the dispensation of justice system on his pre-conceived notions; lack of objectivity, or the requirement of a fair and impartial trial, should be examined from the point of view of the Court as an institution wedded to the cause of adjudication in a fair and impartial manner and not from the stand point of, or the perception or understanding of, the accused who is vulnerable to being hauled up and would, in all possible circumstances, try to invent reasons to malign the prosecution, and sometimes even the court, in his attempt to shield his criminal behaviour; the accused, quite often, engage the services of the best of lawyers to defend them whereas the power of the State, or the de-facto complainant, is far more limited; and the defacto complainant took the step to engage a Special Public Prosecutor only in his anxiety to prove his innocence, and bring the culprit to book.
Sr.P.
Nageswara Rao, Learned Counsel for the 4th respondent, would submit that Courts should not, ordinarily, interfere with the appointment of a special public prosecutor in the exercise of their powers of judicial review.
The State, while appointing a public prosecutor, must bear in mind that, for the purpose of upholding the rule of law, good administration of justice is imperative.
(State of U.P.v.
Johri Mal5).The expression ".Special Public Prosecutor"., used in Section 24(8) Cr.P.C, is not defined.
(MargadaRs.Financiers3).The definition of ".Public Prosecutor"., under Section 2(u) Cr.P.C, takes within its fold a Special Public Prosecutor appointed under Section 24(8) Cr.P.C also.
(P.V.Antony v.
State of Kerala6).A Special Public Prosecutor, appointed under Section 24(8) Cr.P.C, would be a Public Prosecutor for all purposes under the Act.
(Assistant Commissioner of Central Excise v.
Sabnife Power Systems Ltd7).As the powers conferred are wide and unfettered, it is evident that Parliament reposed confidence of great magnitude in the office a Public Prosecutor.
(Abdul Khader Musliar v.
Government of Kerala8).Section 24(8) is a special provision which is in contra-distinction with, and an exception to, the provisions of general appointment of a public prosecutor.
(Modugula Mallikarjuna Reddy v.
Government of A.P9).This power can be exercised to appoint a person having the prescribed qualifications.
(Jayendra Saraswati Swamigal v.
State of Tamil Nadu10).The expression ".Special".
is used as an adjunct to the words ".Public Prosecutor"., and such appointment being permitted for the purpose of any case, or class of cases, emphasizes the distinction.
In the exigencies of a given situation the Government may, in their discretion and wherever necessary and expedient, appoint any Advocate with ten years standing as a Special Public Prosecutor.
This appointment is in addition to the regular public prosecutors functioning in the respective Courts.
(MargadaRs.Financiers3).The philosophy discernable from Section 24(8) CrPC is that there should be special circumstances for making such appointment.
Though circumstances may vary, the very idea behind conferment of the power is to meet special situations.
In other words, a Special Public Prosecutor is not to be appointed in ordinary circumstances.
The legislative policy underlying Section 24(8) Cr.P.C.is to preserve the interest of the State and to protect public interest in individual cases or class of cases.
Power is vested in the government to appoint a special public prosecutor where public interest demands, and not to vindicate the grievance of a private person.
(Narayanankutty v.
State of Kerala11; Rajendra Nigam v.
State of M.P12 and Abdul Khader8).The discretionary power vested in the government, (Johri Mal5).is not to be exercised on the mere asking of the complainant, (Poonamchand Jain v.
State of M.P.13; Abdul Kadir8; Deveneni Seshagiri Rao v.
The Govt.
of A.P14).as the primacy given to the Public Prosecutor, under the scheme of the Code, has a social purpose and would be lost thereby.
The facts should be examined and a decision taken whether the case merits the appointment of a Special Public Prosecutor.
(Mukul Dalal v.
Union Of India15).It is not necessary that, whenever an application is made, it should be allowed and a Special Public Prosecutor should be appointed as that would run 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.
It would be a travesty of justice if, in such a case, the State concedes to the request for the appointment of a Special Public Prosecutor.
The primacy given to the Public Prosecutor, under the scheme of the Code, would be defeated if the services of a Special Public Prosecutor are made available to a private complainant as a rule or for the mere asking.
The request should be properly examined and, only if the case deserves such support, should a Special Public Prosecutor be appointed.
(Mukul Dalal15; K.C.Sud v.
S.G.Gudimani16; Omprakash Baheti v.
State of Maharashtra17).The office of the Public Prosecutor is unique in its nature and status, and cannot be permitted to be controlled by, or slip into the hands of, private individuals.
The request of the complainant for appointment of a Special Public Prosecutor cannot, therefore, be acceded to as a matter of course.
(Deveneni Seshagiri Rao14).While an accused, in a criminal case, cannot dictate who should prosecute him on behalf of the State, the complainant/defacto-complainant, likewise, has no right to claim that a person of his choice should be appointed as a Special Public Prosecutor to prosecute the accused.
While the complainant can, in a given case, request that a Special Public Prosecutor be appointed, it may not be open to him to name a person of his choice for such appointment.
(Devineni Seshagiri Rao14).The interests of the State and the complainant are not always the same.
Private parties often wish to further their own private ends and criminal proceedings are not primarily designed to serve such a purpose.
It is not desirable to allow private passions and prejudices to creep into the conduct of a criminal trial when it can be avoided.
(Babu v.
State of Kerala18; Kartikram v Emperor19).When a Special Public Prosecutor is appointed there is ouster of the regular public prosecutor.
While the State Government enjoys authority to appoint a Special Public Prosecutor, it must do so after objectively assessing the facts and circumstances, and ascribing reasons.
It cannot act in a mechanical manner without scrutinising the factual matrix of the proposal.
It must be borne out from the record that the regular public prosecutor, in charge of the case, is not competent to conduct trial or there were other aspects which disqualified him from fulfilling his duties.
The duly appointed public prosecutor should not be dislodged lightly or for specious reasons unless special circumstances exist for the appointment of a Special Public Prosecutor.
(Poonamchand Jain13).There must be special reasons, which should be recorded in writing, as to why deviation from the general Rule is made in appointing a Special Public Prosecutor.
The application has to be properly examined by the authority and it is only on being satisfied, on the basis of the material on record, can a Special Public Prosecutor be appointed.
If an order is passed, without application of mind, it would result in arbitrariness.
Such an appointment can be made only and only when public interest so demands.
(Madho Singh v.
State of Rajasthan20).A.EXERCISE OF POWER, UNDER SECTION248) Cr.P.C, IS DISCRETIONARY: All power has legal limits.
Courts refuse to countenance arbitrary power and unfettered discretion.
Statutory powers should be exercised reasonably and in good faith, for proper purposes only, and in accordance with the spirit as well as the letter of the empowering Act.
(H.W.R.WADE & C.F.FORSYTH'S ADMINISTRATIVE LAW - TENTH EDITION).In a system governed by the rule of law discretion, when conferred upon the Executive, must be confined within clearly defined limits.
There is no such thing as an absolute or untrammelled discretion, the nursery of despotic power, in a democracy based on the rule of law.
(United States v.M.Wunderlich21).Exercise of discretionary administrative power will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary.
The authority must genuinely address itself to the matter before it.
In the purported exercise of its discretion, it must act in good faith, must have regard to all relevant considerations, must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously.
(Indian Railway Construction Co.Ltd.v.Ajay Kumar22; State of U.P.v.
Renusagar Power Co23; de Smith: Judicial Review of Administrative Action, 4th Edn.).If, in the discharge of a public duty, the authority exercising his discretion takes into account matters which the Courts consider improper for the guidance of his discretion, then the authority has not exercised that discretion in the eye of law.
(Maxwell on the Interpretation of Statutes, llth Edition, page 118).Appointment of a Public Prosecutor is an executive or administrative act exercised at the discretion of the Government.
(A.
Mohambaram v.
M.A.Jayavelu24).Even in administrative matteRs.State action must be informed by ".reasons".
as it follows that an ".act uninformed by reason is arbitrary".No authority is entitled to take irrelevant or irrational factors into consideration or appear arbitrary in its decision.
The ".duty to act fairly".
is a part of the fair procedure envisaged under Articles 14 and 21 of the Constitution.
Every State action must be guided by public interest.
The duty to give reasons is implicit in the exercise of such power.
The obligation to give reasons not only introduces clarity but it also excludes, or at any rate minimizes the chance of arbitrariness and the higher forum can test the correctness of those reasons.
Passing an order, without application of mind, is an arbitrary exercise of power.
(Madho Singh20; Charan Singh v.
Healing Touch Hospital25).Public authorities cannot play fast and loose with the power vested in them.
An enabling power, conferred for public reasons and for public benefit, is coupled with a duty to exercise it when the circumstances so demand.
It is a duty which cannot be shirked or shelved nor can it be evaded, and performance of it can be compelled.
(Madho Singh20; Commissioner of Police v.
Gordhandas Bhanji26; Julius v.
Lord Bishop of Oxford27).While the Government is not accountable to the Courts for the choice made, it is accountable in respect of the legality of the decisions impugned under the judicial review jurisdiction.
(Centre for PIL v.
Union of India28).The High Court, exercising its jurisdiction under Article 226 of the Constitution, has the power to issue a mandamus where the government has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or has exercised such discretion malafide or on irrelevant considerations or by ignoring relevant considerations and materials or has acted in such a manner as to frustrate the object for which such discretion is conferred.
In all such cases the High Court can compel performance, of the discretion conferred upon the government, in a proper and lawful manner.
(The Comptroller & Auditor General v.
K.S.Jagannathan29).Exercise of discretionary power under Section 24(8) Cr.P.C, to appoint a Special Public Prosecutor, must accord with law and cannot be whimsical or arbitrary.
A request, for the appointment of a Special Public Prosecutor, must be carefully examined to ascertain whether it is in public interest; why prosecution cannot be entrusted to the regular public prosecutor of the said Court; and whether the person, for whose appointment a request is made, would be able to discharge his functions as a Public Prosecutor uninfluenced either by the complainant or the accused.
The records placed before this Court discloses that the 3rd respondent had informed the Hon'ble Chief Minister, by his letter dated 04.09.2012, that the petitioner had made wild, false and baseless allegations against him which were published in daily newspapeRs.he had always maintained high standards of probity both in public and private life; he was grievously affected by the said publications, and the injury was aggravated by the manner in which the issue was sensationalized in the newspapeRs.he was being maligned without any substance by such defamatory, malafide and fraudulent allegations; he was brought to public contempt and ridicule; in addition, he suffered mental agony because of the unwarranted attack, with falsehood and innuendos, on his conduct, integrity and reputation, particularly when there was no truth in any of the imputations made against him; and the Government had ample power, under Section 199(2) Cr.P.C, to accord sanction directing the public prosecutor to file a complaint against the petitioner for the offence of defamation.
The 3rd respondent requested the Hon'ble Chief Minister to accord necessary sanction directing the public prosecutor to file a complaint against the petitioner, for the offence of defamation under Section 199(2) Cr.P.C.and other relevant laws, and to permit the law to take its proper course.
The said record contains a copy of the letter addressed by the petitioner to the Hon'ble Chief Minister on 22.06.2012 levelling serious allegations against the 3rd respondent and seeking a C.B.I.enquiry.
It also contains a copy of the legal notice dated 11.08.2012 issued by the 4th respondent, under the instructions of the 3rd respondent, calling upon the petitioner to tender unconditional apology in writing, and publish it in all newspapers within 10 days of receipt of the notice, failing which suitable action would be taken against him for the acts of defamation, and he would be responsible for all costs and consequences arising therefrom; a copy of the reply legal notice dated 25.08.2012 issued by the petitioner contending that he was under no obligation to tender any apology to anybody as he had neither committed injustice to any individual nor did his behaviour cause or lower any person's image or reputation; the legal notice dated 04.09.2012 issued by the 4th respondent, on behalf of the 3rd respondent, to several daily newspapers to the effect that the Editor, Printer and Publisher of the said newspapers were equally liable for the offence of defamation besides action for damages and, if they took the stand that the news item was published after verification, the 3rd respondent would proceed against them in accordance with law; the letter addressed by the 3rd respondent dated 04.09.2012, to the Hon'ble Chief Minister, which resulted in G.O.Rt.No.2196 dated 21.11.2012 being issued; a copy of G.O.Rt.No.2196 dated 21.11.2012 which records that, in the circumstances stated by the Hon'ble Minister for Panchayat Raj and Rural Water Supply in the letter dated 04.09.2012, the Government, after careful examination of the matter, was entrusting the case to the Public Prosecutor, in the District Court, Nalgonda, for filing the necessary complaint under sub-section (2) of Section 199 Cr.P.C, before an appropriate Court to prosecute the petitioner for defaming the 3rd respondent; a copy of the errata issued to G.O.Rt.No.2196 dated 21.11.2012, by G.O.Rt.No.2210 dated 22.11.2012, wherein, for the words ".District Court"., the words ".District and Sessions Court".
were substituted and, for the words ".appropriate Court"., the words 'appropriate Court/District and Sessions Court, Nalgonda' were substituted; the letter of the 3rd respondent dated 23.11.2012 addressed to the Hon'ble Chief Minister, referring to the orders issued by the Government in G.O.Rt.No.2196 and G.O.Rt.No.2197 dated 21.11.2012 according permission to launch prosecution against the petitioner for defaming him, requesting him to entrust the case to the public prosecutor for filing a complaint in the District and Sessions Court, Nalgonda; the letter of the 3rd respondent dated 23.11.2012 stating that the present Public Prosecutor, District and Sessions Court, Nalgonda was over burdened with a number of cases and, to expedite the present prosecution, there was a need to appoint an experienced advocate especially in the present case, the 4th respondent was a senior advocate practicing at Nalgonda and Hyderabad since 40 years and his services could be utilized for the said purpose, and the 4th respondent be appointed as a special public prosecutor on behalf of the Government to deal with this particular case.
The record also discloses that the said letter dated 23.11.2012 was forwarded to the Secretary, Law Department, requesting him to examine the matter and circulate the file; and, thereafter, G.O.Rt.No.2282 dated 27.11.2012 was issued.
The government Note file, which was also placed for the perusal of this Court, discloses that the file was submitted for suitable orders on the request of the 3rd respondent for issue of sanction under Section 199(2) Cr.P.C for prosecuting the petitioner, to appoint a special public prosecutor under Section 24(8) Cr.P.C, and to file necessary complaint before the appropriate Court; the file was circulated to the Secretary, Law Department who opined that there was no objection to accord sanction for prosecuting the petitioner as proposed, provided the complaint fell within the ambit of Section 499 IPC, and the file be sent to the Home (Courts) Department as they were administratively concerned with sanction of prosecution and appointment of a special public prosecutor; the Secretary - Legal AffaiRs.having noted Section 24(8) Cr.P.C, endorsed that it may be necessary to indicate the specific name for appointment as a Special Public Prosecutor to file the necessary complaint in this regard before an appropriate court and to prosecute the petitioner; he proposed that the case be entrusted to the Public Prosecutor, District Court, Nalgonda; the proposal, of the Secretary - Legal AffaiRs.to appoint the Public Prosecutor, District Court, Nalgonda, was approved by the Minister (Law and Courts).pursuant thereto G.O.Rt.No.2196 dated 21.11.2012 was issued appointing the Public Prosecutor of the District Court, Nalgonda, to file a complaint under Section 199 Cr.P.C.against the petitioner; again, on the basis of the letter addressed by the 3rd respondent dated 23.11.2012, a note was put up seeking a clarification whether the file be sent to the Law Department for their opinion on the request of the 3rd respondent to appoint the 4th respondent as a special public prosecutor on behalf of the Government to deal with the case or whether the file be circulated to the Hon'ble Chief Minister through the Hon'ble Minister (Law and Courts) to appoint the 4th respondent as a special public prosecutor on behalf of the Government to deal with the said case.
The second option was approved by the Secretary - Legal Affairs and the Hon'ble Minister (Law and Courts).Later a proposal was put up for ratification of the action taken by the Hon'ble Minister (Law and Courts).in appointing the 4th respondent as a special public prosecutor to launch prosecution against the petitioner, which was approved by the Hon'ble Chief Minister on 26.11.2012; thereafter the impugned G.O.Rt.No.2282 dated 27.11.2012 was issued; and, consequently, the note file was closed.
It is evident, therefore, that the 4th respondent was appointed as a Special Public Prosecutor only because the 3rd respondent had so requested.B.ABDICATION OF DUTY AND SURRENDER OF DISCRETION: The principles of administrative law, such as surrender of discretion and abdication of duty vitiating the decision, would apply in case of exercise of power conferred by a statute or rules made thereunder or instruments which are statutory in character.
(Irrigation Development Employees Association v.
Govt.
of A.P.30).Exercise of statutory power partakes a quasi-judicial complexion.
In the exercise of such power, the authority cannot permit its decision to be influenced by the dictation of others as this would amount to abdication and surrender of its discretion.
It would then not be the authority's discretion that is exercised, but someone else's.
If an authority ".hands over its discretion to another body it acts ultra vires".Such interference by a person or body extraneous to the power is contrary to the nature of the power conferred on the authority.
(State of U.P.v.
Maharaja Dharmander Prasad Singh31).An authority entrusted with a discretion must not, in the purported exercise of its discretion, act under the dictation of another body or person.
It is enough to show that a decision, which ought to have been based on the exercise of independent judgment, was dictated by those not entrusted with the power to decide.
Authorities directly entrusted with a statutory discretion are not absolved from their duty to exercise their personal judgment in individual cases, unless explicit statutory provision has been made for them to be given binding instructions by a superior.
(DE SMITH'S JUDICIAL REVIEW (Seventh Edition).The State cannot surrender its discretion, to appoint a Special Public Prosecutor, to the choice of an individual.
The exercise, and the conclusion arrived at in this regard, must to be evident from the order of appointment itself, and cannot be inferred from silence or supported by remarks in the note files.
(Deveneni Seshagiri Rao14).The 1st respondent did not apply its mind to the question whether the case necessitated appointment of a Special Public Prosecutor; why the case, which was hitherto entrusted to the regular public prosecutor, should not be prosecuted by him; and whether appointment of the 4th respondent, who had issued a legal notice in the very same case on behalf of the 3rd respondent to the petitioner and to several daily newspapeRs.was in the public interest of ensuring a fair and impartial trial.
While the 3rd respondent sought appointment of the 4th respondent as a Special Public Prosecutor on the ground that the regular public prosecutor was overburdened with work, no independent exercise was undertaken by the 1st respondent to ascertain whether or not the regular public prosecutor was so overburdened with other work as to render him incapable of handling this case entrusted to him earlier.
It is evident, therefore, that the 1st respondent has abdicated its duty to independently examine whether it was necessary for a Special Public Prosecutor to be appointed for the case and, if so, whether the 4th respondent or someone else should be appointed as the Special Public Prosecutor.
The very fact that such an appointment was made, only because the 3rd respondent had so requested, goes to show that the 1st respondent had surrendered its discretion to appoint a Special Public Prosecutor, had failed to exercise its mind independently, and had acted solely at the dictates of the 3rd respondent.
This Court may not be understood to have held that, in cases where allegations of corruption are levelled against a Minister or a Public Servant, no Special Public Prosecutor should be appointed.
This statutory discretionary power, under Section 24(8) Cr.P.C, undoubtedly enables the Government to appoint a Special Public Prosecutor.
Before doing so, however, the Government should independently examine the necessity of appointing a Special Public Prosecutor; and, if it is satisfied that it is so necessary, then consider the suitability of the person to be appointed as the Special Public Prosecutor to prosecute the accused.
III.
RULE AGAINST BIAS: IS IT APPLICABLE TO THE APPOINTMENT OF A SPECIAL PUBLIC PROSECUTOR?.
Sr.P.
Venugopal, Learned Counsel appearing on behalf of the petitioner, would submit that, in the same case, Respondent No.4 had previously issued a legal notice, under the instructions of and as the advocate of Respondent No.3, to the petitioner; in view of the strained relationship, between respondent No.3 and the petitioner, appointment of respondent No.4, as a Special Public Prosecutor, at the request of respondent No.3 would prejudice the petitioner's case; the 3rd respondent had, by his letter dated 23.11.2012, requested the Government to appoint Respondent No.4 as a Special Public Prosecutor, on behalf of the Government, to conduct prosecution of the case; at his request Respondent No.4 was appointed as the Special Public Prosecutor; the petitioner has the locus standi, to object to the appointment of Respondent No.4 as a Special Public Prosecutor, on the principle that fairness in prosecution should not only be ensured but should also appear to exist; the petitioner apprehends that, as respondent No.4 is the advocate of Respondent No.3, he may conduct the case in a biased manner and not bring true facts to the notice of the Court; the very nature of appointment of respondent No.4, as a Special Public Prosecutor, takes away the significant trust reposed in the impartiality and fairness of the Public Prosecutor; the genuine and reasonable apprehension in the mind of the petitioner, as regards the independence of a Special Public Prosecutor, cannot be brushed aside; and the appointment of respondent No.4, as a Special Public Prosecutor, is illegal.
Sr.S.
Sarath Kumar, Learned Counsel for the 3rd respondent, would submit that drafting of a legal notice by the 4th respondent, (especially in a case of defamation under Sections 499 and 500 IPC where the onus is on the accused to prove that he has not defamed the defacto complainant).cannot be said to have resulted in a reasonable apprehension, in the mind of the accused, regarding his independence as a special public prosecutor; the State Government has not only an obligation to ensure fair trial, but also stands to benefit from its public image being upheld on the outcome of the trial in C.C.No.1 of 2012; this Court cannot presume that the outcome of the criminal trial would depend solely on the Special Public Prosecutor as that would not only ignore the role of the Court, but would also affect the image of the court as an institution wedded to impartial adjudication; a Special Public Prosecutor should be viewed only as a Counsel of a party and a Judge, in the cadre of District & Sessions Judge, would not be a mute spectator to the presumed actions of the Special Public Prosecutor to way lay the trial itself; and the Judge would be duty bound to ensure a free and fair trial, uphold the majesty of the law, and not further the cause of either of the parties to the trial.
Sr.P.
Nageswara Rao, Learned Counsel for the 4th respondent, would submit that the defamed person has complete interest in the case; he is the master and administrator of the case, and has every right to choose his prosecutor; in Devineni Sheshagiri Rao14, the State was an aggrieved party; the rights of the de-facto complainant in such a case is restricted to adducing evidence as a prosecution witness, seeking appointment of a special public prosecutor without naming an individual and, in the alternative, to request the Court to permit him to appoint an advocate to assist the Public Prosecutor; in the case on hand, the petitioner has not even alleged lack of trust and confidence nor has he attributed malafides; no prejudice or irreparable loss has been caused to him on the 4th respondent being appointed as a special public prosecutor; a reading of the legal notice and the contents of the complaint would show that there can be no genuine and reasonable apprehension with regards the independent functioning of the 4th respondent or that he would not act impartially or in a fair manner or present the case without dispassion; on presenting a complaint, (which the 4th respondent already has).his role is almost complete; the only role which the Special Public Prosecutor now has is to address arguments which, even if argued vehemently, the Court would not, and must not, be swayed by; neither the notice issued by the 4th respondent nor the complaint presented by him to the Court indicate any of the apprehensive elements of the nature expressed by the petitioner; no reliance can be placed on the judgment of this Court in Devineni Sheshagiri Rao14, in view of the judgment of the Supreme Court in Varada Rama Mohan Rao v.
State of A.P32; the opinion of the Learned judge, in Devineni Sheshagiri Rao14, that the judgment of the Supreme Court in Mukul Dalal15 was not noticed in G.
Daniel v.
Govt.
of A.P.33 resulting in an erroneous judgment, is itself erroneous and needs reconsideration; the judgment in Mukul Dalal15 has no bearing on the issue arising in the present case, they are all together different and are not connected with the questions adjudicated either in Daniel33 or in Devineni Seshagiri Rao14; not bringing the judgment in Mukul Dalal15, to the notice of the Court which delivered judgment in G.
Daniel33, was apt; and, in view of the judgment of Supreme Court in Varada Rama Mohan Rao32, the judgment of the learned single judge, in Deveneni Seshagirirao14, should be held to be per incurium and not binding.
The 3rd respondent is entitled in law to lodge a complaint that the accused has committed an offence under Section 499 IPC.
On such a complaint being made by him the Magistrate, and if the complaint is made on his behalf by the Public Prosecutor, the Sessions Judge would independently examine the complaint and thereafter, if need be, prosecute the accused.
It is no doubt true that the Public Prosecutor does not give evidence in the case in which he conducts prosecution on behalf of the State; the manner in which he presents his case is always subject to judicial scrutiny; and his personal opinion has no place in the decision making process of the court.
Would these factors alone suffice to hold that in no case would the appointment of an individual as a Special Public Prosecutor, at the specific request of the defacto-complainant, prejudice the accused more so when the said person, as the counsel of the complainant, has issued a legal notice to the accused as a prelude to the prosecution instituted against him.
In other words, can a complainant seek to have his advocate appointed as the Special Public Prosecutor?.
In examining this question, the important role played by the Public Prosecutor, in prosecuting a case on behalf of the State, needs to be taken note of.A.ROLE OF A PUBLIC PROSECUTOR IN THE CRIMINAL JUSTICE SYSTEM: The Court in which we sit is a temple of justice and the Advocate at the Bar, as well as the Judge upon the Bench, are equally ministers in that temple.
The object of all should equally be the attainment of justice.
An advocate is retained by his client, yet he has a prior and perpetual retainer on behalf of truth and justice and there is nothing, not even the State, that can discharge him from that primary and paramount retainer.
(Dodda Brahmanandam v.
State of A.P.34; R v 0.
Connell35).A primary position is assigned to the Public Prosecutor in Criminal Jurisprudence as the State is the 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.
(Mukul Dalal15).The Public Prosecutor holds a public office and therefore, like any other public office, is susceptible to misuse and corruption if not properly insulated.
It is an office of responsibility, more important than many otheRs.as the holder is required to prosecute with detachment on the one hand and yet with vigour on the other.
They have certain professional and official obligations and privileges.
(Mukul Dalal15; K.C.Sud16).A special feature, of the administration of criminal justice in India, is that an accused before a Sessions Court is conferred the privilege of the case against him being prosecuted only by a Public Prosecutor.
This is reflected in the mandate contained in Section 225 of the Code.
There is no exception to this rule.
A private counsel, engaged by a victim, is not entitled to conduct prosecution in the Sessions Courts.
(Abdul Khader Musliar8; Seethi Haji v.
State of Kerala36).Courts in India have recognised the practice of the Government appointing a Special Public Prosecutor at the instance of aggrieved persons in criminal cases.
Criminal prosecutions are launched not only by the State but also by private parties.
The role of the Prosecutor in any criminal trial, whether at the instance of the State or a private party, is to safeguard the interests of both the complainant and the accused.
In the discharge of his duties as a 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.
The duties of the prosecutor and the requirements of a fair trial do not vary from case to case.
(Vijay Valia v.
The State of Maharashtra37; Susey Jose v.G.Janardhana Kurup38).It is the duty of the counsel for the prosecution to be an assistant to the Court in the furtherance of justice and not to act as the counsel for any particular person or party.
Counsel for the prosecution are to regard themselves as ministers of justice, assisting in its administration, rather than as advocates.
It is always the supposition in the administration of criminal justice, as a general rule, that the prosecuting counsel is in a kind of judicial position that, while he is there to conduct the case at his discretion, he should do so with a sense of responsibility not as if he is trying to obtain a verdict, but to assist in fairly putting the case before the Court and nothing more.
The couRs.of criminal justice would go on as it ought to do, the prosecuting counsel regarding himself really as a part of the Court, and acting in a quasi judicial capacity.
(Dodda Brahmanandam34; R.v.Berens39; R v.
Banks40; R.v.Thursfield41; R v.
Puddick42).Though the Sessions Judge has a supervising control over the entire trial, it is the Public Prosecutor who decides who are the witnesses to be examined on the side of the prosecution and which witness is to be given up, or which witness is to be recalled for further examination.
For proper conduct of a criminal case, Public Prosecutors play a vital role.
(Jayendra Saraswati Swamigal10).The Public Prosecutor is a guide to the prosecution and his functioning cannot be entrusted to the advocate appointed on behalf of a private complainant.
(Ramakistaiah v.
State of A.
P.43; Sardarilal v.
The Crown44; Anant Wasudeo v.
Emperor45; Dodda Brahmanandam34).The prosecuting counsel does not represent either the de facto complainant or the police and his function is to assist the court in arriving at the truth.
(G.
Daniel33).He stands in a position different from that of an advocate who represents the complainant.
He is a representative of the State and is a part of the Court.
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, fairly and impartially.
The State too has no interest in procuring a conviction.
Its only interest is that the guilty must be punished, the truth should be known, and justice should be done.
Prosecuting Counsel should not omit matters that are important or favourable to the interests of the accused.
He should not attempt to persuade the Court, by advocacy, to inflict a severe sentence or contradict a plea in mitigation unless invited by the Court to assist it.
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.
The position of the public prosecutor is thus quasi-judicial and one of trust.
(Dodda Brahmanandam34; Kenny's Out lines of Criminal law, 19th Ed.
(1966) p.
611-612; Halsbury's Laws of England, 4th Ed Vol.
3 BarristeRs.Para 1140; R v.
Superman46; Devineni Seshagiri Rao14).A Public Prosecutor is duty bound to present a complete and truthful picture of the case from all quarteRs.It is his obligation to assist the Court in a dispassionate manner.
A crime is committed not against an individual but against the community at large.
In the administration of criminal justice the public prosecutor represents the society in entirety.
The collective reposes intrinsic faith in the public prosecutor and, ordinarily, there should be no interference in the functioning of the public prosecutor.
(Poonamchand Jain13; Abdul Kadir Musliar8).Public Prosecutors are really ministers of justice whose job is none other than assisting the State in the administration of justice.
They are not representatives of any party.
They are not there to send the innocent to the gallows.
They are also not there to see culprits escape a conviction.
A pleader engaged by a private person, who is a defacto complainant, cannot be expected to be so impartial, as it will be his endeavour to get a conviction even if a conviction may not be possible.
The real assistance that a Public Prosecutor is expected to render will not be there if a pleader engaged by a private person is allowed to don the robes of a public prosecutor.
(Babu18).The Law Commission of India, in its 154th Report on 'Code of Criminal Procedure, 1973' (in chapter III, para 15).opined:- ".....'Public Prosecutor' is defined in some countries as a ".public authority who, on behalf of society and in the public interest, ensures the application of the law where the breach of the law carries a criminal sanction and who takes into account both the rights of the individual and the necessary effectiveness of the criminal justice system".Prosecutors have duties to the State, to the public, to the Court and to the accused and, therefore, they have to be fair and objective while discharging their duties.
Public Prosecutor has to act independently from the Police: The 'independence' of the prosecutor's function stands at the heart of the rule of law.
Prosecutors are expected to behave impartially.
(Report of the Criminal Justice Review in Northern Ireland, 2000).Prosecutors are gatekeepers to the criminal justice process as stated by Avory J in R v.
Banks 1916 (2) KB621 The learned Judge stated that the prosecutor, ".throughout a case ought not to struggle for the verdict against the prisoner but..ought to bear themselves rather in the character of minister of justice assisting the administration of justice".
It is now too well-settled that Prosecutors are independent of the police and the Courts.
While the police, the Courts and the prosecutors have responsibilities to each other, each also has legal duties that separate them from otheRs.The prosecutor does not direct police investigations, nor does he advise the police.
Public Prosecutors are part of the judicial process and are considered to be officers of the Court.
Public Prosecutor must act on his own independent of Executive influence: The Government should ensure that public prosecutors are independent of the executive, and are able to perform their professional duties and responsibilities without interference or unjustified exposure to civil, penal or other liability.
However, the public prosecutor should account periodically and publicly for his official activities as a whole.
Public prosecutors must be in a position to prosecute without influence or obstruction by the executive or public officials for offences committed by such persons, particularly corruption, misuse of power, violations of human rights etc......Summary: Therefore, the Public Prosecutor has to be independent of the executive and all external influences, also independent of the police and the investigation process.
He cannot advice the police in the matters relating to investigation.
He is independent of Executive interference.
He is independent from the Court but has duties to the Court.
He is in charge of the trial, appeal and other processes in Court.
He is, in fact, a limb of the judicial process, officer of Court and a minister of justice assisting the Court.
He has duties not only to the State and to the public to bring criminals to justice according to the rule of law but also duties to the accused so that innocent persons are not convicted......".
(emphasis supplied) B.
DOES THE RATIO DECEDENDI OF ".MUKUL DALAL v.
UNION OF INDIA".
APPLY TO THE FACTS OF THE PRESENT CASE?.
In Mukul Dalal15, the question which arose for the consideration of the Supreme Court was the justification of the appointment of a Special Public Prosecutor by the State, under Section 24 Cr.P.C, at the request of a private complainant.
The appellant therein was facing trial in the Court of the Chief Metropolitan Magistrate, Bombay.
The State of Maharashtra, in the exercise of its powers under Section 24(8) Cr.P.C, appointed an Advocate as a Special Public Prosecutor for conducting prosecution in the said case.
On such appointment being subjected to challenge, the Bombay High Court held that the conduct of prosecution by a lawyer, appointed and paid by the private party, did not effect his capacity and ability to perform his role as a Public Prosecutor; to accept such a proposition would invalidate all private prosecutions; the permission to engage an advocate should be given freely to the complainant; the complainant has as much a right as the accused to represent his case effectively before the court; whenever there is a request made by a private party to engage an advocate of his choice to be paid by him, the request should be granted as a rule; the complainant, in such a case, is either a victim of the offence or is related to the victim or is otherwise an aggrieved person; he has the right to be heard and vindicated; the right to be heard implies a right to be effectively represented at the hearing of the case; he has, therefore, a right to engage an advocate of his choice; and there was, therefore, no reason why the State should refuse him permission to conduct prosecution.
After noting the other sub-sections of Section 24 Cr.P.C, the Supreme Court referred to Section 24(8) and the submission urged on behalf of the appellant that the Code conferred a special status on the Public Prosecutor; wherever considered necessary, the law had prescribed the interest to be represented by the Public Prosecutor; and it was not a proper exercise of power by the State Government to appoint a Special Public Prosecutor to support a private transaction, and provide for his remuneration from a private source.
It is in this context that the Supreme Court observed that, under the Cr.P.C, the office of the Special Public Prosecutor has a special status, and is a statutory appointment; Sections 199(2).225, 301(1) & (2).302, 308, 321, 377 and 378 Cr.P.C.conferred a special position on the Public Prosecutor; it was the duty of the Public Prosecutor to support the prosecution initiated by the State; trial before a Court of Session should be conducted by the Public Prosecutor as required under Section 225 of the Code; the public prosecutor held a public office; and, in Criminal Jurisprudence, the State is the prosecutor and that is why a primary position is assigned to the Public Prosecutor.
The Supreme Court made it clear that it did not support the conclusion of the Bombay High Court that as a rule, whenever there is a request for appointment of a Special Public Prosecutor, the same should be accepted.
The law laid down in this regard by the Delhi High Court in K.C.Sud16 was approved, and the Supreme Court found considerable force in what was stated, by the Kerala High Court, in P.G.Narayanankutty11.
The Supreme Court also noted the different view expressed by the Gujarat High Court in Dilipbhai Chhotalal Dave v.
State of Gujarat47.
A ruling of a superior court is binding law.
It is not of scriptural sanctity but is of ratio-wise luminosity within the edifice of facts where the judicial lamp plays the legal flame.
A judgment has to be read, subject to the facts directly presented for consideration and not affecting those matters which may lurk in the record.
(Mumbai Kamgar Sabha v.
Abdulbhai Faizullabhai48).Observations of Courts are neither to be read as Euclid's theorems nor as provisions of a statute, and that too taken out of their context.
(Amar Nath Om Prakash v.
State of Punjab49; CCE v.
Alnoori Tobacco Products50; London Graving Dock Co.Ltd.v.Horton51; Home Office v.
Dorset Yacht Co.52; Shepherd Homes Ltd.v.Sandham53 British Railways Board v.
Herrington54).One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened.
The weight accorded to dicta varies with the type of dictum.
(Municipal Corporation of Delhi v.
Gurnam Kaur55).The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi.
Every decision contains three basic postulates-(i) findings of material facts, direct and inferential.
An inferential finding of facts is the inference which the Judge draws from the direct or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above.
A decision is only an authority for what it actually decides.
What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment.
Every judgment must be read as applicable to the particular facts proved, or assumed to be proved.
The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent.
The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding.
It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution.
A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into the rule of stare decisis.
It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.
(Union of India v.
Dhanwanti Devi56; State of Orissa v.
Mohd.
Illiyas57; ICICI Bank v.
Municipal Corpn.
of Greater Bombay58; Girnar Traders v.
State of Maharashtra59; ADM, Jabalpur v.
Shivakant Shukla60; Quinn v.
Leathem61; State of Orissa v.
Sudhansu Sekhar Misra62).In Mukul Dalal15 the Supreme Court examined the scope of Section 24(8) Cr.P.C.and, while rejecting the conclusions of the Bombay High Court that an aggrieved person's right to heard implies a right to be effectively represented at the hearing and he has, therefore, the right to engage an advocate to be appointed as a Special Public Prosecutor, held that a Public Prosecutor has a special status and is conferred a primary position under the Cr.P.C; and it was not a proper exercise of power by the State Government to appoint a Special Public Prosecutor for the mere asking or to support a private transaction.
The ratio, in Mukul Dalal15, squarely applies to the facts of the present case and the law declared therein is binding on this Court.C.ARE THE OBSERVATIONS, IN ".VARADA RAMA MOHANA RAO v.
STATE OF A.P."., JUDICIAL DICTA OR OBITER?.
In Varada Rama Mohana Rao32, reliance on which has been placed both by Sr.S.
Sarath Kumar and Sr.P.
Nageswara Rao, Learned Counsel for respondents 3 and 4 respectively, the appellant was charged of offences punishable under various sections of the Prevention of Corruption Act, and Sr.Sethumadhava Rao was appointed as a Public Prosecutor to prosecute him for such offences.
The appellant objected to his appointment, as a Public Prosecutor, contending that both of them were appointed as Assistant Public Prosecutors simultaneously but, during the couRs.of their service, the appellant was found to be a better counsel and was promoted to the post of Additional Public Prosecutor Grade-I which was not to the liking of the other.
Having failed to convince the Government, for a change in the Public Prosecutor, the appellant filed a Criminal Petition before this Court, under Section 482 Cr.P.C, to remove Sri.
Sethumadhava Rao from the post of the Public Prosecutor.
This Court rejected the petition.
The appellant was, thereafter, convicted by the Special Judge (SPE & ACB Cases) for offences under the Prevention of Corruption Act, and was sentenced to undergo rigorous imprisonment and payment of fine.
Though the appeal filed by him against his conviction was dismissed by this Court, the sentence was reduced.
Aggrieved thereby, the appellant carried the matter in appeal to the Supreme Court.
It is in this context that the Supreme Court observed:- "..............The fiRs.argument of the learned counsel for the appellant that the appointment of Sethu Madhava Rao has prejudiced the case of the appellant because he was inimically disposed towards the appellant has to be rejected on more than one ground.
It is to be noted that when Sethu Madhava Rao was appointed as the Prosecutor in the present case, the appellant did represent to the Government and that representation was obviously not considered because of which the appellant had moved the High Court by way of a criminal petition.
The High Court, for reasons mentioned in the said order, rejected the prayer for change of the Prosecutor and there being no further challenge the same became final and it is not open to the appellant now to question the same in these proceedings.
Learned senior counsel appearing for the appellant relied on a judgment of this Court in the case of Satyadhyan Ghosal & ORS.versus Sm.Deorajin Debi & Anr.
{1960 (3) SCR590 wherein this Court had held that the appellant in that case was not precluded from raising before this Court the question of tendency involved in that case merely because he had not appealed from the earlier adveRs.order made by the High Court on remand.
This Court in that case had held interlocutory order which did not terminate the proceedings and which had not been appealed because no appeal lay or even if the appeal lay, the same was not taken, could be challenged in an appeal from the final decree or order.
Apart from the fact that the ratio laid therein does not apply to the facts of the present case, it is to be seen that in this case the appellant had independently challenged the appointment of the Prosecutor in a criminal petition.
This was not a proceeding initiated in the couRs.of the present trial and the challenge to the said appointment was on facts and circumstances outside the scope of the prosecution case, therefore, he having failed in that attempt and the High Court having upheld the appointment of Sethu Madhava Rao as a Prosecutor in this case, that issue stands closed.
Therefore, it is not open to the appellant to re-open the same for the fiRs.time in this appeal.
That apart it is to be noted that the appellant has not been able to establish how the conducting of a criminal trial by a counsel who according to the accused is inimically disposed towards him would prejudice his trial because the learned counsel does not give evidence in this case and the manner in which he presents his case is always subject to judicial scrutiny by the concerned court.
His personal opinion has no place in the decision making process of the court.
At the most he may present his case with vehemence and with a touch of vengeance but this would not in any manner either influence the decision making process of the court or would cause any prejudice to the accused in his defence.
This, however, does not mean that we approve the fact that a person who is admittedly on bad terms with the accused should be appointed as a prosecuting counsel unless for good reasons.
May be in this case in view of the strained relationship between the parties, the learned prosecutor could have recused himself but that was a choice left entirely to him and that by itself does not prejudice the trial in any manner.
The learned counsel for the appellant also has failed to show any prejudice that has occurred to the accused because of the selection of the prosecutor...".
(emphasis supplied).The court's authoritative opinion must be distinguished from propositions assumed by the court to be correct for the purpose of disposing of the particular case.
(Baker v.
The Queen63).If the court thinks that an issue does not arise, then any observation made with regard to such an issue would be purely obiter dictum.
The ratio decidendi of a case is the principle of law that decided the dispute in the facts of the case and, therefore, a decision cannot be relied upon in support of a proposition that it did not decide.
(Shin-Etsu Chemical Co.Ltd.v.Aksh Optifibre Ltd.64; Girnar Traders59).Observations of the Court, which do not relate to any of the legal questions arising in the case, cannot be considered as a part of the ratio decidendi.
As only the ratio decidendi can act as the binding or authoritative precedent, reliance placed on mere general observations or casual expressions of the Court, are of no avail.
(Girnar Traders59).Obiter dictum, a Latin expression meaning ".something said in passing"., is a judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and, therefore, not precedential (although it may be considered persuasive).Strictly speaking an 'obiter dictum' is a remark made or opinion expressed by a judge, in his decision upon a cause, 'by the way' - that is, incidentally or collaterally, and not directly upon the question before the court; or it is any statement of law enunciated by the judge or court merely by way of illustration, argument, analogy, or suggestion.
In the common speech of lawyeRs.all such extra judicial expressions of legal opinion are referred to as 'dicta,' or 'obiter dicta', these two terms being used interchangeably.
(Black's Law Dictionary - Ninth Edition).".Obiter dictum".
is an opinion of law not necessary to the decision.
It is an expression of opinion (formed) by a judge on a question immaterial to the ratio decidendi, and unnecessary for the decision of the particular case.
It is in no way binding on any Court, but may receive attention as being an opinion of high authority.
(P.
Ramanatha Aiyer - The Law LexiCo.- Reprint Edition 2002).Decision on a point not necessary for the purpose of the decision, or which does not fall to be determined in that decision, becomes an obiter dictum.
Opinions on questions, which are not necessary for determining or resolving the actual controveRs.arising in the case, partake the character of an obiter.
Obiter observations would, undoubtedly, be entitled to great weight, but ".an obiter cannot take the place of the ratio".".Judges are not oracles.".
Such observations do not have any binding effect and they cannot be regarded as conclusive.
(Shivakant Shukla60).Obiter dicta is more or less, presumably, unnecessary for the decision.
It may be an expression of a viewpoint or a sentiment which has no binding effect.
Statements which are not part of the ratio decidendi constitute obiter dicta and are not authoritative.
An 'obiter dictum', as distinguished from a ratio decidendi, is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision.
Such an obiter may not be a binding precedent.
(State of Haryana v.
Ranbir65; Shivakant Shukla60; Girnar Traders59; Divisional Controller, KSRTC v.
Mahadeva Shetty66; Director of Settlements, A.P.v.
M.R.Apparao67).Pronouncements of law, which are not part of the ratio decidendi, are classed as obiter dicta and are not authoritative.
A judgment delivered without argument, without reference to the relevant provisions of the Act, and without any citation of authority need not be followed.
(Gurnam Kaur55).Observations not really necessary for the purposes of the decision, and which go beyond the occasion, have no binding authority though they may have persuasive value.
(Sreenivasa General Traders v.
State of A.P.68).Obiter dicta of the Supreme Court is binding upon other courts in the country, (Sanjay Dutt v.
State through CBI, Bombay69).in the absence of a direct pronouncement on that question elsewhere by the Supreme Court, (Oriental Insurance Co.Ltd.v.Meena Variyal70).and is entitled to considerable weight.
(CIT v.
Vazir Sultan & Sons71).Unlike in Mukul Dalal15 where the scope of Section 24(8) Cr.P.C.was directly in issue, the validity of the appointment of a Special Public Prosecutor was not the subject matter of appeal before the Supreme Court in Varada Rama Mohan Rao32, as a challenge thereto was rejected by this Court earlier, and the said order had attained finality.
The observations of the Supreme Court, relating to the possibility of the Special Public Prosecutor being biased against the appellant accused, is, therefore, not the ratio-decidendi of the judgment but is an obiter dicta.
When the High Court is confronted with the judicial dicta and an obiter dicta contained in two Judgments of the Supreme Court it is, necessarily, bound by the judicial dicta.
(Government of A.P.v.N.Chowdary72).Having regard to the decision in Mukul Dalal15 which is directly in point, this Court is bound by the said decision and not the observations in Varada Rama Mohan Rao32.D.OBSERVATIONS IN
JUDGMENTS MUST BE READ IN CONTEXT AND A FEW SENTENCES THEREIN CANNOT BE REGARDED AS A FULL EXPOSITION OF THE LAW: While considering the observations of a high judicial authority like the Supreme Court, the greatest possible care must be taken to relate the observations of a Judge to the precise issues before him and to confine such observations, even though expressed in broad terMs.in the general compass of the question before him, unless he makes it clear that he intended his remarks to have a wider ambit.
It is not possible for Judges always to express their judgments so as to exclude entirely the risk that, in some subsequent case, their language may be misapplied and any attempt at such perfection of expression can only lead to the opposite result of uncertainty and even obscurity as regards the case in hand.
(Shivakant Shukla60; Girnar Traders59).A decision of a court takes its colour from the question involved in the case in which it is rendered and, while applying the decision to a later case, the Court must carefully try to ascertain the true principle laid down by the decision of the court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by the court, to support their reasoning.
(Madhav Rao Jivaji Rao Scindia Bahadur v.
Union of India73; CIT v.
Sun Engineering Works P.
Ltd.74).The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it.
It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain ".propositions wider than the case itself required".Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision.
(Krishena Kumar v.
Union of India75; Caledonian Railway Co.v.Walker's Trustees76 and Quin v.
Leathern77).What is binding is not any finding of facts or the conclusion arrived at in a previous decision.
It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court, that forms the ratio.
A judgment of the Court has to be read in the context of the questions which arose for consideration in the case in which the judgment was delivered.
(M.R.Apparao67; Amar Nath Om Parkash49; S.P.Gupta v.
President of India78; Girnar Traders59).In order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided.
A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law.
Law cannot afford to be static and, therefore, Judges are to employ an intelligent technique in the use of precedents.
(Dhanwanti Devi56; Girnar Traders59).While the obiter dicta of the Supreme Court in Varada Rama Mohana Rao32 would, undoubtedly, bind this Court, the law declared therein cannot be understood as laying down a principle of universal application that, in no case, would the rule against bias apply to a Special Public Prosecutor appointed to prosecute the accused.E.RULE AGAINST BIAS : ITS SCOPE: As the Public Prosecutor holds a public office, and the powers conferred on him under the Code partake a quasi judicial character, can it be said the rule against bias would, in no case, be applicable to any Special Public Prosecutor?.
Though the accused does not have the right to choose a person of his choice to act as a Special Public Prosecutor, he has the locus standi to challenge the appointment of a Special Public Prosecutor if the circumstances warrant.
The locus standi conferred on the accused is on the principle that fairness in the prosecution should not only be ensured but should also appear to exist.
(Devineni Seshagiri Rao14; D.
Brahmanandam34).The position of the prosecutor is quasi-judicial and one of trust.
A Public Prosecutor is a part of the Court, and is expected to act quasi-judicially while discharging his duties for the State as well as towards the accused.
A genuine and reasonable apprehension in the mind of the accused, as regards the independence of a Special Public Prosecutor, cannot be brushed aside.
(Dodda Brahmanandam34; R.v.Sussex, exp.
Me Carthy79; Kenny's Outlines of Criminal Law, 19th Ed (196) (p.611-612).Devineni Seshagiri Rao14).The apprehension of not getting a fair and impartial trial should be reasonable and not imaginary or based upon conjectures and surmises.
(Abdul Nazar Madani v.
State of T.N.,80; G.X.Francis v.
Banke Bihari Singh81).Interference of the Court is warranted only where the facts and circumstances give rise to a reasonable apprehension that the Special Public Prosecutor would not act impartially and where a case is made out that fair and dispassionate presentation of facts of the case is doubtful.
(G.
Daniel33).In general the rule against bias looks at the appearance or risk of bias rather than bias in fact, in order to ensure that ".justice should not only be done, but should manifestly and undoubtedly be seen to be done".(Ratan Lal Sharma v.
Managing Committee, Dr.
Hariram (Co-education) Higher Secondary School82; Tilakchand Magatram Obhan v.
Kamala Prasad Shukla83; (Judicial Review of Administrative Action: De Smith, Woolf & Jowell : Fifth Edition).If there are clear indicators that the quasi-judicial process may have been compromised by bias, actual or apparent, this may lead to a decision, that has been reached, being challenged and nullified - The principal issue is not whether the decision itself is legitimate but whether the decision maker ought to have taken the decision in the fiRs.place, as the possibility of bias would undermine its credibility.
Even if a person believes that he is acting impartially and in good faith, his mind may be unconsciously affected by improper considerations that affect his judgment.
(Sridhar Lime Products v.D.C.C.T (AP)84).It is difficult to prove the state of mind of a person.
What has to be seen is whether there were reasonable grounds for believing that he is likely to be biased.
In deciding the question of bias human probabilities and ordinary couRs.of human conduct has to be taken into consideration.
(A.K.Kraipak v.
Union of India85).Appointing the complainant's Counsel, as a Special Public Prosecutor, would undoubtedly cause a reasonable apprehension in the mind of the accused that he may prosecute the case, on behalf of the State, in a biased manner.
Such an appointment would not be in furtherance of the larger public interest of ensuring a fair and impartial trial.F.
JUDGMENTS OF OTHER HIGH COURTS ARE MERELY PERSUASIVE AND ARE NOT BINDING: Let us now refer to the judgments, of other High Courts, relied on behalf of the respondents.
Following the judgment of the Supreme Court, in Varada Rama Mohana Rao32, a Division Bench of the Rajasthan High Court, in Nemi Chand v.
State of Rajasthan86, held that appointment of the advocate, representing the complainant, as a Special Public Prosecutor would not affect the fair trial; when the advocate on behalf of the complainant can address the Court along with the Public Prosecutor, he can also be appointed as a Special Public Prosecutor; and the only embargo, provided by Section 24(8).is that he should have ten years standing as an advocate.
In R.
Balakrishna Pillai v.
State of Kerala87 the Kerala High Court held that the accused cannot object to the appointment of a particular person as a Special Public Prosecutor on the ground of apprehension of bias; the apprehension of bias is not only premature but is also imaginary where the trial is yet to commence; a Public Prosecutor cannot misuse or abuse his official position or travel beyond his arena of jurisdiction or power vested in him; above all the Presiding Officer is there to protect the interest of both parties, and no Presiding Officer will allow any question which is not germane to the question at issue and will not allow any unwanted questions to be put to the witnesses.
A similar view was taken by the Kerala High Court in Susey Jose38.
In Dilipbhai Chhotalal Dave47, a Division Bench of the Gujarat High Court held: "...........That though the Public Prosecutor would be incharge of and is required to conduct the prosecution before the court of sessions, the control of proceedings before the Court is ultimately in the hands of the presiding Judge.
It would not be unreasonable to assume that if there is unnecessary prolongation of the trial and consequential harassment of the accused at the hands of the Public Prosecutor or unfair handling of the prosecution case by the prosecutor, the Court would always intervene and protect the accused and ensure a fair trial..........".
In Annop v.
State of M.P.88, the Madhya Pradesh High Court observed: "......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 foregoing, there is no merit and substance in the present petition and contentions made in support thereof......".
(emphasis supplied).In Vijay Valia37, the Bombay High Court held:- ".................We have pointed out earlier that criminal prosecutions are launched not only by the State but also by private parties.
The role of the Prosecutor in any criminal trial whether at the instance of the State or a private party is to safeguard the interests of both the complainant and the accused.
The right to be heard includes the right to be represented by an able spokesman of one's confidence.
This right belongs both to the accused and the complainant.
It is not only the accused who is in need of assistance, and protection of his rights but also the complainant, In fact, it is to vindicate the rights and grievances of the complainant and through him, of the State, that the prosecution is launched whether by the State or the private party.
The purpose of a criminal prosecution is to bring home the guilt of the accused and to punish him.
The Prosecutor has therefore to discharge his duties diligently towards this end.
A Prosecutor who fails in and neglects his duties is doing no service to the administration of justice.
In the discharge of his duties as a 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.
This is so whether the prosecution is private or State.
The duties of the Prosecutor and the requirements of a fair trial do not vary from case to case.
Besides, there is always the Court to safeguard the interests of the accused and the- complainant, to control the proceedings and to check omissions and commissions of the Prosecutor.
The Court is not a silent spectator to the proceedings, but an active participant in it.
It has to hold the scales even between the complainant and the accused.
In the State prosecution, all relevant material including the statements of all persons recorded during the couRs.of investigation, is furnished to the accused and the Court.
If all the required witnesses are not examined or the relevant material is not brought on record, both the accused and the Court have a right to call for them.
This role of the Court does not vary from prosecution to prosecution...........".
(emphasis supplied).The decision of one High Court is not a binding precedent for another High Court.
The decision of a High Court will have the force of a binding precedent only in the State or territories over which the Court has jurisdiction.
In other States or outside the territorial jurisdiction of that High Court it may, at best, have persuasive effect.
The doctrine of stare decisis cannot be so stretched as to give the judgments of one High Court the status of a binding precedent so far as other High Courts are concerned.
(Geoffrey Manners & Co.LTD.CIT89; CIT v.
Thana Electricity Supply Co.Ltd.90; Consolidated Pneumatic Tool Co.v.CIT91).This doctrine is applicable only to different benches of the same High Court.
The ratio of the decisions of other High Courts cannot be exalted to the status of a binding precedent nor can the ratio decidendi of those decisions be perpetuated by invoking the doctrine of stare decisis.
(Valliama Champaka Pillai v.
Sivathanu Pillai92; Thana Electricity Supply Co.Ltd.90).Judicial decorum, propriety and discipline require that the High Court should, especially in the event of its contra view or dissent, discuss the judgments of the other High Courts and record its own reasons for its contra view.
While the judgments of a High Court are not binding on the other High Court(s).they have persuasive value.
A High Court would be within its right to differ with the view taken by other High Courts but, in all fairness, it should record its dissent with reasons therefor.
That the judgments of other High Court have persuasive value should be taken note of by the High Court and dissented from only by recording its own reasons.
(Pradip J.
Mehta v.
Commissioner of Income Tax, Ahmedabad93).G.DECLARATION OF LAW BY THE HIGH COURT IS BINDING ON A CO-ORDINATE BENCH OF THE SAME HIGH COURT: Unlike the judgments of the Kerala High Court in R.
Balakrishna Pillai87 and Susey Jose38, the Madhya Pradesh High Court in Annop88, and the Bombay High Court in Vijay Valia37 which have persuasive value, the declaration of law in Dodda Brahmanandam34 and Devineni Seshagiri Rao14 bind a co-ordinate bench of this Court.
If one thing is more necessary in law, than any other, it is the quality of certainty.
That quality would disappear if judges of co-ordinate jurisdiction in a High Court start overruling one another's decisions.
Where a single judge of the High Court is of opinion that the previous decision of another single judge on a question of law is wrong, and gives effect to that view instead of referring the matter to a larger Bench, the result would be utter confusion.
(Mahadeolal Kanodia v.
Administrator General of West Bengal94: Thana Electricity Supply Co.Ltd.90).A single judge of a High Court is, ordinarily, bound to accept as correct judgments of courts of co-ordinate jurisdiction.
To ignore that decision is judicial impropriety.
Judicial comity demands that a binding decision to which his attention had been drawn should neither be ignored nor overlooked by a Judge.
If he does not find himself in agreement, and wants the earlier decision to be reconsidered, he should refer the binding decision for reconsideration, and direct the papers to be placed before the Chief Justice to enable him to constitute a larger Bench to examine the question.
(Food Corporation of India v.
Yadav Engineer and Contractor95; Thana Electricity Supply Co.Ltd.90).In Dodda Brahmanandam34, this Court observed that, if a particular person has already been working as a standing counsel or advocate for the defacto- complainant, it would not be fair to appoint him as a Public Prosecutor as he would not give an impression, to any reasonable man, that he would work disinterestedly for the prosecution as well as for the accused; where a person has identified himself, as the Counsel for the defacto-complainant, he has clearly disqualified himself from being placed in a position of trust and confidence in so far as the accused is concerned; and a reasonable apprehension would certainly arise in the mind of the accused that such a person would not act with the impartiality expected of a Public Prosecutor.
In G.
Daniel33, a Special Public Prosecutor was appointed on the request of the de facto complainant who agreed to pay his fee.
The petitioner-accused contended that an advocate, appointed to assist the public prosecutor in prosecuting the case, cannot conduct prosecution but can only assist the Public Prosecutor and, at the most, can file written arguments with the permission of the Court; and appointment of the Special Public Prosecutor, at the choice of the de facto complainant, is akin to an advocate being engaged to plead the case of the de facto complainant.
The learned Judge expressed her concurrence with the law declared by this Court earlier in Dodda Brahmanandam34, (referred by oversight, as 'Public Prosecutor v.
Ch.
Satyanarayana (1986 (1) ALT141, that the prosecuting counsel does not represent either the de facto complainant or the police and his function is to assist the court in arriving at the truth but not to obtain a conviction at any cost.
The learned Judge observed that, where the accused merely pleads that he has no confidence in the Special Public Prosecutor and such a plea is not supported by any material, the Court would normally decline to interfere with the exercise of power by the Government under Section 24(8) Cr.P.C; in Dodda Brahmanandam34 a specific allegation was made by the accused that the Special Public Prosecutor, who was appointed at the instance of de facto complainant, was an Advocate for the de facto complainant and he had also appeared for her; this, among other circumstances, had resulted in the Court holding that a reasonable apprehension had arisen in the minds of the accused that the Special Public Prosecutor would not act with impartiality, which was expected of him; in the case on hand the facts were entirely different; except a vague statement, made in the affidavit, that the petitioner could not place trust and confidence in the Special Public Prosecutor, who was chosen and paid by the de facto complainant, no other allegation was made against the Special Public Prosecutor or any motive had been attributed to the de facto complainant in choosing the Special Public Prosecutor; there was neither a plea nor any material to show that the Government had issued the impugned order mechanically nor was there any allegation that it was for extraneous considerations; under Section 24(8) Cr.P.C, it is open to the Government to appoint a Special Public Prosecutor on being satisfied that the case deserves the appointment of a Special Public Prosecutor; and the decision of the Government cannot be said to be vitiated merely on the ground that the appointment was made at the instance of the de facto complainant.
The judgment of this Court in G.
Daniel34, is not in conflict with the law declared by the co-ordinate benches in Dodda Brahmanandam34 and Devineni Seshagiri Rao14.
Even otherwise the questions whether a complainant can seek to have his Counsel appointed as a Special Public Prosecutor, and whether the rule of bias would apply in such a case, did not arise for consideration in G.
Daniel33.
As the judgment of co-ordinate Benches, in Dodda Brahmanandam34 and Devineni Seshagiri Rao14, binds this Court, appointment of the 4th respondent, (who had earlier issued a legal notice, on behalf of the 3rd respondent- complainant, to the petitioner-accused in relation to the very same case).as a Special Public Prosecutor is vitiated on the application of the rule against bias.
The reasonable apprehension, regarding the independence of the Public Prosecutor, must be examined from the point of view of the accused.
A person, who issued a legal notice on behalf of the complainant and has drafted the complaint in the very same case, would not inspire confidence in the accused of his being impartial both towards him and the complainant.
While examining whether the apprehension of the accused, regarding the independence of the Special Public Prosecutor, is reasonable or not, this Court would not take upon itself the task of determining whether or not the advocate, appointed as a Special Public Prosecutor, is actually biased.
This Court may not be understood to have held that the 4th respondent, a senior member of this Bar whose competence and ability is widely acknowledged both by the Bench and the Bar, would prosecute the accused in a biased manner.
The rule against bias must be, and has been, applied in the instant case from the point of view of a reasonable man.
While applying the said test, the Court should consider whether or not a reasonable man, accused of an offence, would justifiably apprehend that the counsel for the complainant, when appointed as a Special Public Prosecutor, would conduct trial in a fair and impartial manner.
Where the advocate for the complainant, who has issued a legal notice to and has lodged a complaint against the accused in the very same case, is appointed as a Special Public Prosecutor to conduct trial in continuation thereof, this Court cannot but hold that the apprehension of the accused, that such a person may not conduct a fair and impartial trial, is reasonable.
IV.
SECTION1992) Cr.P.C - ITS SCOPE: Sr.P.
Venugopal, Learned Counsel appearing on behalf of the petitioner, would submit that, in the present case, the lis is between the petitioner and the 3rd respondent only, and not the State; and there is no necessity for the State to appoint a Special Public Prosecutor in a private case.
On the other hand, Sr.P.
Nageswara Rao, Learned Counsel for the 4th respondent, would submit that Section 193 Cr.P.C lays down that no Court of Sessions shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code, and except as otherwise expressly provided by the code; Section 199 (2) Cr.P.C empowers the Sessions Court to take cognizance; Section 237 Cr.P.C lays down the procedure in cases instituted under Section 199 (2).it is evident therefrom that the State does not hold itself responsible for the misjudgment of the victim; the State only aids and assists him, and is not in charge or control of the case; the victim alone has to face the consequences of his failure to succeed, and not the State; if the case is given to a wrong or incompetent Counsel, the sufferer is the victim as he may suffer an order of compensation; the victim alone can compromise by compounding under Section 320 Cr.P.C and the State does not compound an offence of this nature; the proceedings initiated by the Public Prosecutor, on behalf of the aggrieved party, is for a non-cognizable offence which means that the State's interest is minimal; it is a bailable offence which means that it is a minor offence; nevertheless it is given utmost importance; the offence is tried by a Court of Sessions, that too in camera; all these provisions go to show that the aggrieved party has a direct role in a case of this nature; the State comes into the picture only to bear the expenses of the public servant; the ".Law".
provides that the victim shall not be further defamed and, therefore, proceedings are held in-camera; where the State is neither the victim nor the affected party, the possibility of a reasonable apprehension in the mind of accused, as regards the independence of the Special Public Prosecutor, cannot be put in issue; and it is the party, who is aggrieved, who has the right and privilege to choose his own counsel and not the State.
Every complaint of an offence has to be made to a Magistrate, competent to take cognisance thereof, and not to a Court of Session.
A Court of Session under the Cr.P.C, unless otherwise expressly provided, would not entertain a complaint as it can only try a criminal case committed to it.
(P.C.Joshi v.
State of U.P96).In respect of the offence of defamation, Section 199(1) CrPC mandates that the Magistrate can take cognizance of the offence only upon receiving a complaint by a person who is aggrieved.
This limitation on the power to take cognizance of defamation serves the rational purpose of discouraging frivolous complaints being filed which would otherwise clog the Magistrate's Courts.
(S.
Khushboo v.
Kanniammal97).Section 199(2) Cr.P.C, in the larger public interest, has however made a departure from that rule and thereunder the accusation is to be entertained not by a Magistrate, but by the Court of Session on a complaint in writing by the Public Prosecutor.
By the non obstante clause, ".notwithstanding anything contained in this Code".
in sub-section (2).the operation of diveRs.provisions of the Code relating to the initiation and trial of the offence of defamation is excluded including Section 199(1) of the Code.
Section 199(2) is intended to provide an alternative remedy to Section 199(1) in the case of defamation of persons set out in that Section.
While the complaint by the Public Prosecutor, under Section 199(2) Cr.P.C, would lie in the Court of Session, a complaint under Section 199(1) would lie in the Court of a Magistrate, as it is a Magistrate who alone can take cognisance of the offence of defamation.
Thereafter, the complaint under Section 199(1) may have to be committed to the Court of Session by the Magistrate, and it is only after the case is committed to the Court of Session that, on the complaint filed by the Public Prosecutor, the case may proceed.
(P.C.Joshi96).Charges of improper conduct against Ministers and public servants, in so far as such charges relate to the discharge of their public functions, should be investigated in order to maintain purity of public behaviour and administration.
It is also in the public interest that, in vindicating his character or conduct, the person defamed should not, ordinarily, be called upon to bear the burden of what may turn out to be an expensive and long drawn out proceeding nor, for obvious reasons, should he have control over the proceeding.
In the investigation of defamatory charges against Ministers and Public Servants, in the discharge of their public functions, the State is as vitally concerned as the individual defamed.
The legislature has, therefore, authorised the State to take upon itself the power, in appropriate cases, to prosecute the offendeRs.But lest this procedure be abused, provision has been made for the examination of the person defamed and for awarding against him compensation if it be found that the complaint was false and frivolous or vexatious.
Normally, a Minister or a public servant defamed in respect of his conduct in the discharge of his public functions would himself move the Government under which he functions for taking proceedings for vindicating his character or conduct.
The complainant eo nominee, in cases under Section 199(2).is undoubtedly the Public Prosecutor, but the complaint may, when the person defamed is a Minister or a public servant, properly be regarded as filed at the instance of such Minister or public servant.
He has, in any case, to support the accusation by evidence, and his conduct is exposed to judicial scrutiny.
In this context, it would be difficult to hold that a person who has either been instrumental in the initiation of a complaint, or in any event has to support it by his evidence, has no concern with the lodging of the complaint.
(P.C.Joshi96).It is the Public Prosecutor who shall open his case by describing the charge brought against the accused.
It is the Public Prosecutor who is empowered to file a complaint in writing before the Sessions Court alleging that an offence falling under Chapter XXI of the Indian Penal Code has been committed against a public servant in respect of his conduct in the discharge of public functions (vide Section 199 of the Code).A special status and position as well as great powers have been conferred on the office of Public Prosecutor.
(Abdul Khader Musliar8).It is wholly unnecessary for this Court to delve further on scope and ambit of Section 199(2) Cr.P.C.for, even in cases where Section 199(2) Cr.P.C.is attracted, it is the Public Prosecutor, appointed by the State Government under Section 24 Cr.P.C, who would prosecute the accused.
While the 3rd respondent is a person aggrieved, by the allegations made against him by the petitioner, that does not mean that he can avail the services of his Counsel by having him appointed as a Special Public Prosecutor in the case.
Even for offences under Chapter XXI IPC, including Section 499, it is the State which prosecutes the accused and, while the defacto-complainant can seek appointment of a Special Public Prosecutor, the statutory discretion, whether or not to appoint a Special Public Prosecutor and, if so, the person to be appointed as such, must be exercised independently by the Government in whom power is vested under Section 24(8) Cr.P.C.V.
OTHER CONTENTIONS: Sr.P.
Venugopal, Learned Counsel appearing on behalf of the petitioner, would submit that the impugned G.O., in unambiguous terMs.refers to Respondent No.4 as a Senior Advocate; Chapter IV of the Advocates Act, 1961 provides for preparation of Rules; similarly Chapter 49 of the Act enables the Bar Council of India to make Rules whereunder sub-clause ".G".
contemplates the preparation of Rules in regard to the restriction in the matter of practice to which Senior Advocates shall be subjected to; a Senior Advocate has to appear only through an Advocate on record, without whom he cannot straight away make an appearance; it cannot be said that the Senior Advocate is not bound by these Rules; and no Senior Advocate can be appointed straight away to any such office.
I see no reason to examine, whether or not a Senior Advocate can be appointed as a public prosecutor, as reference to the 4th respondent, as a ".Senior Advocate"., in the impugned memo is only as a senior member at the Bar and not as a designated ".Senior Advocate".
under the Advocates Act and the Bar Council of India Rules.
VI.
CONCLUSION: The 1st respondent has abdicated its duty to independently examine the need to appoint, and the suitability of the person to be appointed as, a Special Public Prosecutor.
In appointing the 4th respondent as a Special Public Prosecutor, only because the 3rd respondent had so requested, the 1st respondent has also surrendered its discretion.
Appointing the 4th respondent, who as the Counsel for the 3rd respondent-complainant had issued a legal notice to the accused earlier in the very same case, as a Special Public Prosecutor is also vitiated on the application of the rule against bias.
The impugned G.O.Rt.
No.2282 dated 27.11.2012 must be, and is accordingly, quashed.
The Writ Petition is allowed.
The miscellaneous petitions pending, if any, shall also stand allowed.
However, in the circumstances, without costs.
______________________________ (RAMESH RANGANATHAN, J.DATED:13.09.2013