(Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a writ of Certiorarified Mandamus, calling for records pertaining to the impugned order in O.Mu.36690/2015/C2 dated 19.12.2015 (signed on 22.12.2015) on the file of the 1st respondent and quash the same as illegal and direct the 1st respondent to appoint one Mr.B.Mohan, Advocate, Bhavani, Erode District as Special Public Prosecutor in S.C.No.112 of 2015 on the file of the District Principal Sessions Judge, Dindigul in Crime No.571 of 2012 dated 08.12.2012 registered by the 4th respondent and investigated by the 3rd respondent as per Rule 4(5) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.)
1. This writ petition has been filed, seeking to quash the order of the 1st respondent passed in O.Mu.36690/2015/C2 dated 19.12.2015 (signed on 22.12.2015) stating that he has no jurisdiction to pass an order in respect of appointing a Special Public Prosecutor to conduct the petitioner's son's death case. The petitioner also sought a direction to the 1st respondent to appoint one Mr.B.Mohan, Advocate, Bhavani, Erode District as Special Public Prosecutor in S.C.No.112 of 2015 on the file of the District Principal Sessions Judge, Dindigul in Crime No.571 of 2012 dated 08.12.2012 registered by the 4th respondent and investigated by the 3rd respondent as per Rule 4(5) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.
2. The case of the petitioner in a nutshell is as follows:
(i) It is submitted that the petitioner belongs to Hindu Scheduled Caste Community and that his elder son, namely, Nagamuthu committed suicide on 07.12.2012 at the instigation of one O.Raja, Chairman of Periyakulam Municipality, Theni District, who is the younger brother of former Chief Minister and the present Finance Minister of Tamil Nadu Mr.O. Paneerselvam. It was also submitted that the deceased son of the petitioner had been performing pooja for several years, which was impeded by the accused persons on the ground that he belongs to Scheduled Caste Community. Therefore, the petitioner's son preferred a complaint before the 4th respondent on 05.05.2012 and he was given a receipt in proof of the said complaint. Infuriated by the same, on the next day, the accused persons threatened the petitioner and his deceased son in dire consequences, which forced them to lodge another complaint for the threat meted out by them. At that time, the 3rd respondent, instead of ordering registration of a case, threatened the son of the petitioner for withdrawal of the case, otherwise, a false case would be foisted against him.
(ii) Though the petitioner sent a representation dated 09.05.2012 to various higher officials with regard to the atrocities committed against him, no action was initiated against the accused persons. On account of continuous threat, the son of the petitioner once again represented to higher authorities for suitable action. Thereafter, the deceased also filed a petition in Crl.O.P.No.11618 of 2012 for registration of a case and it was on 02.09.2012, the 4th respondent registered a case in Crime No.420 of 2012 under Sections 294(b), 323, 506(i) IPC and Section 3(1)(x) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [hereinafter referred to as SC/ST (PoA) Act, 1989 ?] against one Palanichamy and Venkatasamy.
(iii) To the shock and surprise of the petitioner, the said case was hurriedly closed as Mistake of Factwithout following the mandatory provisions of the SC/ST (PoA) Act, 1989 and referred notice was also served to his son through the Judicial Magistrate, Periyakulam in D.No.2522 dated 11.10.2012 in respect of the case in Crime No.420 of 2012. On 07.12.2012, the son of the petitioner committed suicide by hanging, leaving a suicide note by mentioning names of 7 accused persons for the cause of his suicide. Though a case in Crime No.571 of 2012 under Section 174 Cr.P.C. was registered, pursuant to the demonstration and agitation conducted by the villagers of the petitioner, the 4th respondent included Section 306 IPC in the FIR. It was stated that the accused persons obtained anticipatory bail from this Court, as the 4th respondent has not provided correct particulars to this Court.
(iv) Subsequently on 02.06.2015, a final report was laid for offences under Sections 306, 109 and 34 IPC and Section 3(2)(V) of SC/ST (PoA) Act, 1989, which was taken on file in P.R.C.No.10 of 2015 by theJudicial Magistrate, Periyakulam, Theni District and that since the accuse dare very influential persons, the petitioner filed a petition in Crl.O.P. (MD)No.14576 of 2015 before this Court, in which, the case in S.C.No.21 of 2012 was ordered to be transferred from the file of the District and Sessions Judge, Theni to the District Principal Sessions Judge, Dindigul and the same is pending as of now.
(v) In the meanwhile, one Advocate, by name, B.Mohan gave a consent letter to appear in this case as a Special Public Prosecutor and on 15.12.2015, the petitioner sent a representation to the 1st respondent along with the consent letter of the said Advocate for appointing him as a Special Public Prosecutor in S.C.No.21 of 2015. But, the 1st respondent, vide impugned order dated 19.12.2015 (signed on 22.12.2015) declined the request of the petitioner stating that he has no jurisdiction to pass such an order. The petitioner assailed the impugned order on the ground that the order has been passed without application of mind and without referring to the SC/ST (PoA) Rules, 1995. The said order is under challenge in this writ petition.
3. According to the respondents, in terms of Section 15 of the SC/ST (PoA) Act, 1989, an existing Public Prosecutor can be appointed as a Special Public Prosecutor. However, an Advocate with seven years Bar experience can be appointed as a Special Public Prosecutor from a panel of Advocates drawn as per Rule 4(1) and these appointments have to be made by the State Government by a notification in the Official Gazette. The petitioner has no legal rights to choose an Advocate of his choice. It was further contended that even though Rule 4(5) stipulates a condition that a Senior Advocate can be appointed for the said purpose, it cannot be read in isolation without reference to Rule 4(1). Therefore, a joint reading of Rule 4(1) and Rule 4(5) would make it clear that Advocates in the panel alone can be appointed as a Special Public Prosecutor and not otherwise. It was also emphasized that if the defacto complainant or the aggrieved party chooses a lawyer of his choice for appointment as a Special Public Prosecutor from other States, then it would be very difficult for the Government to pay fees to them.
4. Learned Additional Government Pleader, referring to Section 21 of the Act, would contend that it is the duty of Government to ensure effective implementation of the Act. However, it is open to the petitioner to select an Advocate of his choice from the existing panel or seek the assistance of the legal aid in this regard. By referring to Section 23 of the Act, he would contend that the rules framed thereunder cannot override the provisions of the Act. Further referring to Section 225 Cr.P.C., he would emphasize that in every trial before a Court of Sessions, the prosecution shall be conducted by a Public Prosecutor alone and in view of the said provision, the discretion does not vest with the petitioner to opt for a lawyer of his choice.
5. In reply, learned counsel for the petitioner would submit that in terms of Rule 4(5) of the SC/ST (PoA) Act, 1989, if a victim of atrocity desires an eminent Senior Advocate to be engaged to conduct the prosecution case, then the District Magistrate shall have to adhere to such request and shall not simply ignore the request of the victim of atrocity.
6. I have carefully considered the submissions made on either side and perused the material documents available on record.
7. Before deciding the issue on hand, this Court feels it appropriate to extract the relevant provisions of the Act and Rules, touching upon this case, as under:
Section 15. For every Special Court, the State Government shall, by notification in the Official Gazette, specify a Public Prosecutor or appoint an advocate who has been in practice as an advocate for not less than seven years, as a Special Public Prosecutor for the purpose of conducting cases in that Court. ?
Section 21. (1) Subject to such rules as the Central Government may make in this behalf, the State Government shall take such measures as may be necessary for the effective implementation of this Act.
(2) In particular, and without prejudice to the generality of the foregoing provisions, such measures may include,-
(i) the provision for adequate facilities, including legal aid to the persons subjected to atrocities to enable them to avail themselves of justice:
(ii) the provision for travelling and maintenance expenses to witnesses, including the victims of atrocities, during investigation and trial of offences under this Act;
(iii) the provision for the economic and social rehabilitation of the victims of the atrocities;
(iv) the appointment of officers for initiating or exercising supervision over prosecutions for the contravention of the provisions of this Act;
(v) the setting up of committees at such appropriate levels as the State Government may think fit to assist that Government in formulation or implementation of such measures;
(vi) provision for a periodic survey of the working of the provisions of this Act with a view to suggesting measures for the better implementation of the provision of this Act;
(vii) the identification of the areas where the members of the Scheduled Castes and the Scheduled Tribes are likely to be subjected to atrocities and adoption of such measures so as to ensure safety for such members.
(3) The Central Government shall take such steps as may be necessary to co-ordinate the measures taken by the State Governments under sub-section (1) (4) The Central
Government shall, every year, place on the table of each House of Parliament a report on the measures taken by itself and by the State Governments in pursuance of the provisions of this section. ?
Rule 4(1) - The State Government on the recommendation of the District Magistrate shall prepare for each District a panel of such number of eminent senior advocates who has been in practice for not less than seven years, as it may deem necessary for conducting cases in the Special Courts. Similarly, in consultation with the Director Prosecution/incharge of the prosecution, a panel of such number of Public Prosecutors as it may deem necessary for conducting cases in the Special Courts, shall also be specified. Both these panels shall be notified in the Official Gazette of the State and shall remain in force for a period of three years.
(5) Notwithstanding anything contained in sub-rule (1) the District Magistrate or the Sub Divisional Magistrate may, if deem necessary or if so desired by the victims of atrocity engage an eminent Senior Advocate for conducting cases in the Special Courts on such payment of fee as he may consider appropriate.
(6) Payment of fee to the Special Public Prosecutor shall be fixed by the State Government on a scale higher than the other panel advocates in the State. ?
8. It is seen that the matter is pending before the Sessions Court for trial. The power to appoint a Special Public Prosecutor under the Criminal procedure Code is entirely different from the one laid down under the SC/ST (PoA) Act, 1989. It is no doubt true that under the Code of Criminal Procedure, the Government is the ultimate authority to appoint a person in terms of Section 301 Cr.P.C. For better understanding Sections 301 and 302 Cr.P.C. are extracted hereunder:
301. Appearance by Public Prosecutor - (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.
(2) If any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case. ?
302. Permission to conduct prosecution - (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person, other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:
Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so personally or by a pleader.
However, the SC/ST (PoA) Act, 1989 is a special statute, which overrides any other law for the time being in force and it empowers the victim of atrocity in the matter of trial of offences covered by the Act to have his case conducted by an eminent lawyer of his choice so as to ensure fair trial of his case. Even going by Section 302 Cr.P.C., it stipulates that any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:
9. The contention of the respondents that in the event of the aggrieved party choosing a lawyer of his choice from other States, it will have a bearing on the Government financially, cannot be accepted, as Rule 4(6) clearly stipulates that payment of fee vests only with the Government and selection of the lawyer is with the victim. The fee fixed other than the one fixed by the Government cannot be sought to be increased either by the victim or by the relative of the victim or the lawyer, who is appearing for the victim/relative of the victim. It is to be noted that SC/ST (PoA) Act, 1989 is a Special Act enacted to view seriously the atrocities committed on the members of the downtrodden communities, the objective of which is enumerated by including Sections 20 and 21 in the Act. The said Act aims at putting to an end to untouchability and therefore, harmonious consideration of the Rule is mandatory. If the contention of the respondents is accepted, the very purpose of its enactment would get defeated.
10. The next contention of the respondents is that as per Section 21 of the SC/ST (PoA) Act, 1989, a victim of atrocities is entitled to select a lawyer empaneled by the Government in terms of Rule 4(1) of the Act or a lawyer through Legal Aid. In order to consider the said submission, it may be relevant to refer to a judgment of this Court in the case of R.Kandasamy vs. District Collector, Salem District, Salem, reported in (2013) 4 MLJ (Crl) 339, wherein it has been held as under:
23. The Division Bench set aside the order of a learned Single Judge setting aside the appointment of an Advocate at the instance of a vicim of atrocity under Rule 4(5). The Division Bench critically examined Rule 4(5) and observed as under:-
16 to 22....
23. It is true that sub rule (5) employees a different term viz., engage different from appoint or specify used in Section 15. But we do not think, the phraseology has any bearing on the extent of one's brief. Whether he is appointed, specified or engaged he would nonetheless be conducting the case in special Court. We are conscious of the fact that in the scheme of things provided in the Code, the trial in the Court of Session is conducted only by a Public Prosecutor or Special Public Prosecutor Section 15 of the Act also provides for conducting cases in Special Court by a Special Public Prosecutor. No mention, on the other hand is made of Special Public Prosecutor in sub rule(5). The reason however, is not far to seek. Section 15 contemplates 'specifying' a Public Prosecutor whether appointed under Section 24 of the Code or empanelled under sub-rule (1) of Rule 4 or appointing an advocate as Special Public Prosecutor for the purpose of conducting cases in the Special Court. These appointments apparently are made from panels of prosecutors and Advocates. It may so happen that the victim of atrocity in a particular case may not have faith in the prosecutors/advocate specified or appointed under Section 15. He may like to have the case conducted by an Advocate of his choice. It is in order to inspire confidence of the victim of atrocity in the administration of justice that a special provision has been made for engagement of an eminent senior advocate to conduct the case. That is why a different term 'engaged' has been used in Rule 4(5) in contradistinction to 'appoint' or 'specify' in Section 15. 'Engaged' means that he has been engaged for a particular case, unlike appointment/specifying of an advocate/ prosecutor from the panel. It is to be kept in mind that sub rule (5) contains a non-obstante clause overriding the provisions of rube rule(1) which means that the appointment under Rule 4(5) can be made of a person who is not in the panel. The panels, as seen above, comprise of advocates/Public Prosecutors of the choice of the Government. It is also to be kept in mind that the Act is a special statute enacted to provide relief to the victims of atrocity in the matter of trial of offences covered by the Act and Rule 4(5) confers a right upon victim of atrocity to have his case conducted by an advocate of his choice so as to ensure that he has faith in the trial. ?
11. Firstly, the entire Rule 4(1) of the SC/ST (PoA) Act, 1989 has got to be read as a whole and not in isolation. Even assuming for the sake of argument that Rule 4(1) has got to be read alone, it deals with the preparation of panels and it is not mandatory on the part of the victim/relative of the victim to choose a lawyer only from the panel.
12. In the impugned order, it has been merely stated that the 1st respondent has no jurisdiction to appoint a Special Public Prosecutor, but while arguing the case, the respondents are trying to improve their case by relying on various Rules and Acts irrespective of what is stated in the impugned order, which cannot be permissible, as the Hon'ble Supreme Court in the case of Mohinder Singh Gill vs. Chief Election Commissioner, reported in (1978) 1 SCC 405, has clearly held that by way of a counter, the reasons not stated in the impugned order cannot be improved by the respondent concerned. Therefore, what is not stated in the impugned order cannot be allowed to be canvassed before this Court. Moreover, this Court in Somalaiappan vs. Palanisamy and others [Crl.O.P.(MD) No.22043 of 2013] decided on 25.09.2013, appointed the very same Advocate, namely, B.Mohan to conduct the prosecution involving SC/ST Act in respect of S.C.No.1 of 2013 on the file of the Special Judge under Scheduled Castes and Scheduled Tribes (PoA) Act (Principal Sessions Judge), Tiruppur.
13. In fine, this Court is of the view that this Writ Petition will have to be allowed on the strength of what is discussed above. Accordingly, this Writ Petition is allowed and the impugned order in O.Mu. 36690/2015/C2 dated 19.12.2015 (signed on 22.12.2015) passed by the 1st respondent is set aside. The 1st respondent is directed to appoint Mr.B.Mohan, Advocate, Bhavani, Erode District as Special Public Prosecutor in S.C.No.112 of 2015 on the file of the District Principal Sessions Judge, Dindigul in Crime No.571 of 2012, dated 08.12.2012, registered under the Special Enactment. The order to that effect shall be passed within a period of 15 days from the date of receipt of a copy of this order.
14. This Court directs the District Principal Sessions Judge, Dindigul to take up the matter in S.C.No.112 of 2015 pending before it and conduct the case on a day-to-day basis and shall not adjourn the matter beyond two working days at any point of time. The accused shall appear before the Trial Court on all hearings to enable the Trial Court to bring up the issue to a logical end, at the earliest point of time. No costs. Consequently, connected miscellaneous petitions are closed.