B.S. Chauhan, J.
1. The instant writ petition has been filed for quashing the order dated 13.9.2001 (Annex.1) passed by the respondent No. 1 under sub-section (8) of Section 24 of the Code of Criminal Procedure (hereinafter referred to as the 'Cr.PC') appointing respondent No. 3 as a Special Public Prosecutor on the application of respondent No. 2-complainant in a criminal case.
2. The facts and circumstances giving rise to this case are that the petitioners are facing criminal trial for offence punishable under Section 302 IPC etc. The respondent No. 2-complainant (brother of the deceased) filed an application before the respondent No. 1 that Public Prosecutor in the Sessions Court would not be able to conduct the trial for being very busy and hence the State should appoint respondent No. 3 as Special Public Prosecutor on this expenses. Respondent No. 1 passed the impugned order dated 13.9.2001 (Annex.1) appointing respondent No. 3 as a Special Public Prosecutor. Petitioners filed an application before the learned Sessions Judge, Jodhpur for quashing of the said appointment order dated 13.9.2001 (Annex.1) but the same has been rejected vide order dated 4.10.2001 (Annex.3) on the ground that he lacks the competence to quash such order and the appropriate relief may be granted only by a Writ Court. Hence, this petition.
3. Shri Mahesh Bora, learned counsel appearing for the petitioners has raised the issue of competence of the State to appoint Special Public Prosecutor at the expenses of the complainant for the reason that in such a case the Special Public Prosecutor would act as a persecutor rather than prosecutor. Moreso, even if appointment of the Special Public Prosecutor is considered to be necessary, the respondent No. 1 should have passed a speaking and reasoned order explaining the circumstances under which such appointment was found necessary to be made.
4. On the other hand, it has been urged on behalf of respondents No. 1 and 2 that the State Government is competent to appoint Special Public Prosecutor under Sub-section (8) of Section 24 Cr.PC and even incorporation of a condition that the Public Prosecutor shall be paid his fee etc. by the complainant would not vitiate the order of appointment. Order impugned does not suffer from any illegality and thus no interference is called for in the case.
5. I have considered the rival submissions made by the learned counsel for the parties.
6. The mandatory requirement made under Section 24 Cr.PC for making appointment of Public Prosecutor in the District Court is that the District Magistrate shall prepare a list of candidates in consultation with the Sessions Judge who, in his opinion, are fit to be appointed as Public Prosecutors. The District Magistrate shall submit that panel to the State of making the appointments. The District Magistrate is not empowered to delete a name suggested by the Sessions Judge or to add name therein unless the name so suggested by the Sessions Judge does not fulfill the requirement of eligibility i.e. having minimum 7 years experience as an advocate. Sub-section (8) of Section 24 Cr.PC empowers the Central/State Government to appoint an advocate having ten years' experience as a Special Public Prosecutor for the purpose of any case of class of cases.
7. Therefore, an Advocate who fulfills the eligibility may be appointed as a Special Public Prosecutor for the purpose of conducting trial in a particular case or class of cases. The question does arise whether the State has a power to appoint the Special Public Prosecutor in any case as its whims or there must be sufficient reasons, which should be recorded in writing, for making such an appointment, whether appointment of Special Public Prosecutor should be made at the desire of the complainant; and whether it may provide that his fees and expenses shall be paid by the complainant.
8. The position remains undisputed that the complainant's lawyer can always assist the Public Prosecutor by submitting the written arguments as is permissible under Sections 235, 301 and 302 Cr.PC. The Division Bench of this Court in (1) Bhopal Singh v. State of Rajasthan and Ors.; 2001 (1) RLR 349 =2001 Cr.L.R. (Raj.) 161, has upheld the validity of Sections 225, 301 and 302 wherein the complainant had challenged the validity of the said provisions on the ground that he had a right to engage a counsel of his choice to conduct the prosecution of the accused and not by a Public Prosecutor appointed under a spoiled-system. This Court rejected the said contention, upholding the validity of the said provisions, observing that it does not violate the mandate of Article 21 of the Constitution as offence committed by an accused primarily is offence against the State and not against an individual and the submission that Article 21 includes the right to prosecute the accused by the complainant becuase he has suffered the loss of injury, was rejected.
9. Public Prosecutor holds a 'Public Office'. The primacy given to him under the Scheme of Cr.PC has a 'special purpose'. Certain professional, official obligations and privileges are attached to his office. His office may also be termed as an office of profit as he remains disqualified to contest the election so long he holds the office, though permanency is attached to the office and not to the term of his office. His duties are of public nature. He has an 'independent and responsible character'. He holds the public office within the scope of a 'quo-warranto proceedings'. Public Prosecutor is not a part of investigating agency but is an 'independent statutory authority'. He performs statutory duties and functions. He holds a office of responsibility as he has been enclothed with the power to withdraw the prosecution of a case on the directions of the State Government vide (2) Mukul Dalai v. Union of India, (1988) 3 SCC 144; (3) K.C. Sud v. S.G. Gudimani, (1991) 2 Cr. L.J. 1779; (4) Mahadeo v. Shantibhai (1969) 2 SCR 422; (5) Madhukar G.E. Pankaker v. Jaswant Chobbildas Rajani and Ors., AIR 1976 SC 2283; (6) Kanta Kathuria v. Manak Chand Surana, AIR 1970 SC 694; (7) Rabindra Kumar Nayak v. Collector, Mayorbhanj, IT (1999) 1SC 591; (8) Mundrika Prasad Sinha v. State of Bihar, AIR 1979 SC 1871 and (9)Hitendra Vishnu Thakur v. State of Maharashtra, AIR 1994 SC 2623).
10. In (10) Ram Chandra Joshi v. State of Rajasthan, 2000 (2) RLR 60= (2000) 1 RLW 455, this Court held as under :--
'...... engagement of an advocate as Public Prosecutor is not merely a profession engagement. Even if he does not hold a civil post under the State, he carries the responsibility and privilege of this public office of great public importance. Neither his appointment nor his removal can be made on the sweet will of the Government and rather the same are governed by public interest, which has always been a paramount consideration in public administration.'
11. While explaining the importance of the role of the Public Prosecutor in withdrawal of the criminal case on the directions of the State, the Hon'ble Apex Court has always envisaged an independent and impartial status for him without being guided by the wishes of the executive. (Vide (11) R.K. Jain v. State, AIR 1980 SC 1510 and (12) Sheonandan Pashwan v. State of Bihar & Ors., AIR 1987 SC 877).
12. Even if in a given case where the State Government has issued direction to withdraw a case, the Public Prosecutor has to apply his mind and consider the case on merits to take an independent decision rather to work as an agent of the State. The Public Prosecutor acts as a limb of judicative process. He must work as a minister of justice assisting the State in administration of justice and he is not a representative of any party. He is bound to assist the Court with his fairly considered view and the Court is entitled to take benefit of fair exercise of his functions as the primary responsibility of prosecuting cognizable offences is on the executive authorities, the Public Prosecutor, though an executive officer in larger sense also holds the office of the Court (Vide (13) State of Bihar v. Ramnaresh, AIR 1957 SC 389 and (14) Subhash Chandra v. State, AIR 1980 SC 423).
13. The Division Bench of this Court in Bhopal Singh (supra) observed as under:--
'Thus, in all prosecutions, the State is the prosecutor and a proceeding is always treated as proceeding between the State and the accused. The complainant has no independent right to have guilty persons punished. It is felt necessary in the larger public interest to save the people from prosecution by a private party. Once the offence is committed, it is not against an individual but is against the entire society... ... ... This is why justice is represented by scales of sword. The Society has realized that the privilege of the prosecution should be of the State alone because it is neutral interceptor as it never loses and never wins. The Court calls for expertise and hence the conduct of the prosecution is entrusted to the Prosecutors appointed by the State. This will save innocent persons from vexatious prosecution and also harassment during the trial. Complainant has also been given limited right to speak during trial by way of submitting written arguments under Section 301(2) and assist the Public Prosecutor through private counsel with permission of the Court if the facts so permit under Section 302 CrPC. Thus, the foundation of Sections 225, 301 and 302 CrPC is a well-reasoned public policy. A balance is struck between public interest and private interest that while keeping the management of the prosecution with Public Prosecutor, the provision is made to take care of complainant's view, on legal and factual aspect.'
14. In (15) Shiv Kumar v. Hukum Chand & am. (1999) 7 SCC 467, the Hon'ble Supreme Court observed as under :--
'A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting the prosecution must be couched in fairness not only to the Court and to the investigating Agency but to the accused as well. If an accused is entitled to any legitimate benefit during trial, the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the Court, if it comes to his knowledge. A private counsel if allowed free hand to conduct prosecution would focus on bringing the case to conviction. That is a reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.'
15. While deciding the said case, the Hon'ble Supreme Court placed reliance upon the judgment of the Full Bench of Allahabad High Court in (16) Queen-Empress v. Durga, ILR 1984 All. 84 wherein it had been observed that the Public Prosecutor should bear in mind that he has to act and conduct the case for crown fairly and he should not obtain an unrighteous conviction. He has to see that justice is vindicated.
16. In (17) Medichetty Ramkistiah and Ors. v. State of Andhra Pradesh AIR 1959 A.P. 659, the Andhra Pradesh High Court observed as under:--
'The principle that Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing any anxiety to secure a conviction is based upon high policy and as such Courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the Court to obtain its decision thereon and not to obtain a conviction by any means fair or foul. Therefore, it is zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman instructed by a private party... ... ... unless, therefore, the control of the Public Prosecutor, the prosecution of private party may degenerate into legalized means for wreaking private vengeance.'
17. In (18) re Bhupalti Malliah and Ors. v. State of Andhra Pradesh and Ors., AIR 1959 AP 477 a similar view had been expressed observing that it is undesirable and improper that 'a Public Prosecutor should be allowed to sit back, handing over the conduct of the case to a counsel, however eminent he may be briefed by the complainant in the case'.
18. In (19) Prabhu Dayal Gupta v. State 1986 Cr.L.J. 383, the Delhi High Court observed that the Public Prosecutor has to be fair in presentation of the prosecution case. He must present a complete picture and not one sided picture. He must not be partial to the prosecution or to the accused. He has to be fair to both sides in the presentation of the case.
19. In (20) Adbul Khader Musliar v. Government of Kerala and Ors. 1993 Cr.L.J. 1249, Justice K.T. Thomas (As his Lordship then was) explained the scheme of the CrPC considering earlier judgments of the various Courts including (21) Seethi Haji v. State of Kerala, 1986 Ker. LT 1274; (22) P.G. Narayanakutty v. State of Kerala, 1982 Cr.L.J. 2085 and held that a Special Public Prosecutor is not to be appointed in ordinary circumstances. Appointment of Special Public Prosecutor on the ground that the accused in a murder case had engaged a leading lawyer to defend them without conducting enquiry or without calling for remarks of any other officer, was found bad in law. Engagement of a leading criminal lawyer was found hardly a sufficient ground to make it a special situation warranting appointment of a Special Public Prosecutor. There must be special circumstances for making such an appointment. The Special Public Prosecutor cannot be appointed with a view to secure conviction at all costs. Such a Public Prosecutors can be appointed only and only when public interest demand it and not to vindicate the grievance of a private person, such as dose relation of the deceased.
20. In P.G. Narainkutty (supra) the Kerala High Court observed that the Special Public Prosecutor should look upon the State for remuneration for his services for the reason that if he looks a private party for the same, his capacity and ability to perform his role would be endangered. Government cannot appoint Special Public Prosecutor on such terms, abdicating their financial responsibility by directing him to receive his remunerations from the private individual or expecting him to work without remuneration.
21. In (23) Rajendra Nigam v. State of Madhya Pradesh and Ors., 1998 Cr.L.J. 998, the Madhya Pradesh High Court considered various decisions including (24) Vijay Valia v. State of Maharashtra, 1986 Cr.L.J. 2093; (25) Sunil Kumar v. State of M.P., 1992 M.P.LJ 772 and held that if a Special Public Prosecutor is appointed at the expenses of the private litigant, he would be a persecutor and not a Public Prosecutor and in such circumstances, the Court should also look into the order passed by the State for the reason that even if the Government has a power to appoint a Special Public Prosecutor under Sub-section (8) of Section 24 CrPC it should not exercise the power arbitrarily.
22. In (26) Poonamchand Jain v. State of M.P. and Ors., 2001 Cr.L.J. 3113, the Madhya Pradesh High Court again reiterated that unless there is sufficient material showing that there was special reason to appoint a Special Public Prosecutor namely that the Public Prosecutor was incompetent to conduct the trial or other aspects disqualifying him to fulfill the duty, the State Government should not make appointment of a Special Public Prosecutor merely on the application of the complainant or any close relative of the deceased or victim that he was willing to bear the expenses. It cannot be justifiable and reasonable ground for appointment of Special Public Prosecutor and if such an appointment is made it is liable to be quashed.
23. In (27) Dilip Bhai Chhota Lal v. State of Gujarat (1971) 12 Guj. L.R. 999 the Gujrat High Court held that leaving remuneration of the Special Public Prosecutor appointed by the State to be settled by him with the complainant would not vitiate the order of appointment. Similar view has been taken in Vijay Valia (supra) and in (28) Ajay Kumar v. State and Ors., 1986 Cr.L.J. 932 by Delhi High Court.
24. In (29) Phool Singh v. State of Rajasthan 1993 (2) RLR 77=1993 (1) RLW 402, this Court has held that the conduct of a Special Public Prosecutor appointed by the State under Section 24(8) CrPC and paid by the private party does not affect his capacity and ability to perform his role as a Public Prosecutor, because to accept such a chanalised prosecution will invalidate all private prosecutions. By no stretch of imagination, it can be assumed that such a Public Prosecutor will act as a de-facto complainant and will not be impartial as a Public Prosecutor appointed and paid by the State, and thus in such cases, no interference is warranted in a writ jurisdiction.
25. In Mukul Dalai (supra), the Hon'ble Supreme Court held that application for appointment of a Special Public Prosecutor may not be allowed automatically making the said appointment and it would be contrary to the spirit of the scheme of the Code. There may be cases where a complainant may have taken a proceeding to victimise his opponent. If in such a case, the State concedes to the request for appointment of a Special Public Prosecutor, there will be travesty of justice. Without screening on the basis of guidelines prescribed or to be prescribed, the services of a Special Public Prosecutor should not be made available to a private complaint. The primacy given to the Public Prosecutor under the scheme of the Code has a special purpose. The application for making such appointment should be properly examined by the authority and only when he is satisfied that the case deserves support of a Public Prosecutor or a Special Public Prosecutor that such a person should be appointed to be incharge of the case. Ordinarily, fee of so appointed Public Persecutor must be borne out of State funds, but there may be some special cases where the Special Public Prosecutor's remuneration may be collected from the private source, in such cases, fee should either be deposited in advance or paid to prescribed State Agency from where the Special Public Prosecutor would collect the same.
26. In (30) T.N. Nagraju v. State of Karnataka, JT 2001 (2) SC 64, the Hon'ble Supreme Court quashed the direction given by the High Court awarding additional remuneration of the additional Public Prosecutor observing as under :--
'How or why such a direction can be made has not been explained in the Judgment. Criminal Jurisdiction is not for awarding largesse to any one, much less to the public prosecutor. Hence, the said direction cannot be sustained as it would create a very unwholesome precedent...... We deprecate the said practice which should be nipped in the bud itself.'
27. In (31) R. Sarla v. T.S. Velu, AIR 2000 SC 1731, the Apex Court did not approve the involvement of the public prosecutor in the investigation observing that his 'involvement in investigation in unjudicious as well as pernicious in law'. In (32) Navinnchandra N. Majithia v. State of Meghalaya and ors., (2000) 8 SCC 323, the Hon'ble Supreme Court disapproved the direction to obtain financial assistance from private parties for meeting the expenses required for conducting the investigation. The Court observed as under :--
'It is an acknowledged reality that he who pays the piper calls the tune. So he would call the shots. Its corollary is that somebody who incurs the cost of anything would normally secure its control also....... Financial crunch of any State Treasury is no justification for allowing a private party to supply funds to the police for conducting such investigation....... Such funding by interested private parties would vitiate the investigation contemplated in the code. A vitiated investigation is the precursor for miscarriage of criminal justice.'
28. Thus, it is evident from the above that as the crime is always committed against the society/State, though individual is the victim, State has the sole responsibility to investigate and bear the burden of investigation and trial, and financial burden cannot be shifted fully or partially on the complainant.
29. The instant case requires consideration in view of the aforesaid preposition of law. The original record has been summoned from the State and it appears that an application had been filed by one Shri Raghunath Singh on 1.8.2001 that his brother has been murdered by the accused Narpat Singh and Sawal Singh on 10.5.2010 (sic 2001 ?) and Shri J.S. Choudhary, respondent No. 3 be appointed as an Additional Public Prosecutor. The Public Prosecutor appointed in the court is pre-occupied with the work pending in the Court and this may cause unnecessary delay in the trial. The application further provided that in case Mr. J.S. Choudhary-respondent No. 3 is appointed as an Additional Public Prosecutor, the applicant would bear the expenses. Application had been made to the Law Secretary yet on the same day i.e. 1.8.2001, the order has been passed by the Hon'ble Law Minister that application for appointment of Special Public Prosecutor be allowed. In pursuance of the said order, the appointment letter has been issued on 13.9.2001. There is nothing on record to show that the Law Secretary has applied his mind or any authority has recorded any reason showing that there has been application of mind while considering the said application. Shri R.L. Jangid, learned Additional Advocate General has fairly conceded that there is no Circular/policy decision taken by any authority for providing the guidelines for making appointment of Additional Public Prosecutor.
30. Thus, in view of the above, the following inescapable conclusions are arrived :--
(i) The State had never taken the policy decision provided for guidelines for appointment of a Special Public Prosecutor;
(ii) The application was filed by the complainant on 1st August, 2001 in the name of Law Secretary. However, the Hon'ble Law Minister passed an order to allow the said application and appoint the Special Public Prosecutor on the same date i.e. 1.8.2001. The order completes only in one sentence;
(iii) In pursuance of the said order passed by the Hon'ble Minister, the impugned order of appointing respondent No. 3 as a Special Public Prosecutor has been made on 13.9.2001.
(iv) No reasons have been recorded by any authority while making the appointment of Special Public Prosecutor in the instant case;
(v) There is nothing on record to show whether any statutory authority had applied its mind while making the appointment.
(vi) Application has not been processed in the office and seems to have been handed over to the Hon'ble Minister.
(vii) No inquiry, whatsoever, was made on the ground taken in the application, nor any comments have been asked from any other office/authority.
(viii) Application has been allowed in undue haste.
31. In view of the settled legal proposition as explained above, the appointment of the Public Prosecutor cannot be automatically on the application of the complainant. There have to be special reasons which should be recorded in writing as to why deviation from the General Rule is made appointing the Special Public Prosecutor. The application has to be properly examined by the authority and on being satisfied on the basis of the material on record, the Special Public Prosecutor can be appointed. Without application of mind, if an order is passed it may amount to arbitrariness. Such appointment can be made only and only when public interest so demands.
32. There can be no quarrel with the settled legal proposition that even in administrative matters. State 'action must be informed by reasons' as it follows that an 'act uninformed by reason is arbitrary'. Authority is not permitted to take any irrelevant or irrational factor into consideration or appear arbitrary in its decision. 'Duty to act fairly' is part of fair procedure envisaged under Articles 14 and 21 of the Constitution. Every State action must be received and guided by the public interest. (Vide (33) Ku. Shrilekha Vidyarthi v. State of U.P. and Ors., AIR 1991 SC 537; (34) Life Insurance Corporation of India v. Consumer Education and Research Center, (1995) 2 SCC 480; (35) Mahesh Chand v. Regional Manager, U.P. Financial Corporation and others, AIR 1993 SC 935; (36) Union of India v. M.L. Capoor, AIR 1974 SC 87 and (37) State of West Bengal v. Atul Krishna Shaw, 1991 (Suppl.) 1 SCC 414).
33. In (38) S.N. Mukherji v. Union of India, AIR 1990 SC 1984, it has been held that the object underlying the rules of natural justice is to prevent mis-carriage of justice and secure fair play in action, The expanding horizon of the principles of natural justice provides for requirement to record reasons as it is not regarded as one of the principles of natural justice, and it was held in the above case that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision.
34. In (39) Krishna Swamy v. Union of India, AIR 1993 SC 1407, the Apex Court observed that 'reasons are the links between the material, the foundation for these erections and the actual conclusions. They would also administer how the mind of the maker was activated and actuated and their rational nexus and syntheses with the facts considered and the conclusion reached. Lest it may not be arbitrary, unfair and unjust, violate Article 14 or unfair procedure offending Article 21.'
35. Similar view has been taken by the Supreme Court in (40) Institute of Chartered Accountants of India v. L.K. Ratna and Ors., (1986) 4 SCC 537; and (41) Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Governdnath Nadkarni and Ors., AIR 1983 SC 109 Similar view has been taken by this Court in (42) Rameshwari Devi Mewara v. State of Rajasthan and Ors., 1998 (2) RLR 263=AIR 1999 Raj. 47. In (43) Vasant D. Bhavsar v. Bar Council of India and Ors., (1999) 1 SCC 45, the Apex Court held that an authority must pass a speaking and reasoned order indicating the material on which its conclusions are based.
36. In (44) Charan Singh v. Healing Touch Hospital and Ors., (2000) 7 SCC 668, the Hon'ble Supreme Court held that duty to give reasons is implicit in the exercise of power. The Court further observed as under :--
'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.'
37. Passing an order without application of mind has always been held as exercise of power arbitrarily and in such a situation, the order falls with the ambit of Article 14 of the Constitution and becomes liable to be quashed. (Vide (45) Satpal and Ors. v. State of Haryana and Ors., AIR 2000 SC 1702; (46) Shree Damodar Kalvaibhhav Education Society v. Director of Education, Goa & Am/ AIR 2000 SC 2489; (47) Mohan Wahi v. CIT and Ors., (2001) 4 SCC 362 and (48) Steel Authority of India Ltd. and Ors. v. National Union, Waterfront Workers and Ors., (2001) 7 SCC 1).
38. In (49) Tandon Brothers v. State of West Bengal and Ors., (2001) 5 SCC 664, the Hon'ble Supreme Court held that if the order is unreasonable and has not been passed in accordance with law, equity, good conscience and justice requires that judicial power be used to set-aside such action.
39. The Supreme Court in (50) Ram Chand and Ors. v. Union of India and Ors., (1994) 1 SCC 44, observed that the exercise of power should not be made against the spirit of the provisions of Statute, otherwise it would tend towards arbitrariness.
40. In (51) Dai-Ichi Karkaria Ltd. v. Union of India and Ors., AIR 2000 SC 1741 and Consumers Action Group (supra) and (52) Praveen Singh v. State of Punjab, (2000) 8 SCC 633, the Hon'ble Supreme Court held that where a very wide discretionary power has been conferred upon the statutory authority, the Authority must exercise its power in a most reasonable manner in accordance with the spirit of the statute and in public interest.
41. In (53) S. Ramanathan v. Union of India and Ors., (2001) 2 SCC 188 and (54) Tarlochan Dev Sharma v. State of Punjab and Ors., (2001) 6 SCC 260, the Apex Court held that when certain discretionary power is conferred upon a statutory authority, the power is coupled with a duty to comply with the requirements of law and pass the appropriate order bearing in mind the statutory provisions and rights of the parties.
42. In (55) Commissioner of Police v. Gordhandas Bhanji, AIR 1952 SC 16, the Supreme Court observed as under :--
'Public authority cannot play fast and loose with the power vested in them..... An enabling power of this kind, conferred for public reasons and for public benefit, is, in our opinion, coupled with a duty to exercise it when the circumstances so demand. It is a duty which cannot be shirked or shelved nor it be evaded, performance of it can be compelled.'
43. While deciding the case in Gordhandas (supra), the Supreme Court had placed reliance upon the judgment of the House of Lords in (56) Julius v. Lord Bishop of Oxford, (1880) 5 AC 214, wherein it has been held as under:--
'There may be something in the nature of things empowered to be done, something in the object for which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple a power with duty and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so.'
44. In (57) Lokmat News Papers Pvt. Ltd. v. Shankar Prasad, (1999) 6 SCC 275 it was observed that statutory authority should not pass the order in undue haste as it may inevitably be unfair and unjust.
45. Thus, in the light of the aforesaid settled propositions of law, order impugned cannot stand to judicial scrutiny. There is nothing on record to show that any authority has applied its mind. It is also doubtful whether the order could have been passed by the Hon'ble Minister on the same date when the application was moved, particularly in view of the fact that the application was made to the Law Secretary and not to the Hon'ble Minister. Whether the order could have been passed by the Hon'ble Minister or by the Law Secretary, also remains unexplained. Even if the Hon'ble Minister was competent to pass the order, the application should have reached to him through proper channel after being processed by the Law Department. No comments/ remarks have been called from any person nor any inquiry has been made on the grounds taken in the application. Thus, it is a clear case of non-application of mind by the Statutory Authority. The said authority did not consider it proper to record any reason as what was the public interest involved in passing such order and what were the special features of the case which warranted appointment of Special Public Prosecutor.
Thus, in view of the above, the petition succeeds and is allowed. The impugned order dated 13.9.2001 cannot be sustained in the eyes of law and is hereby quashed. The respondents are directed to reconsider the whole case by applying its mind and passing appropriate order recording the reasons within a period of three weeks from the date of filing the certified copy of this order before the learned Law Secretary of the State of Rajasthan. There shall be no order as to costs.