IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 25TH DAY OF FEBRUARY 2013/6TH PHALGUNA 1934 WP(C).No. 26073 of 2012 (H)
R. RATEESH KUMAR, AGED 44 YEARS,
S/O. RAMAKRISHNAN, ADVOCATE, PALAKKAD,
TEMPRARILY RESIDING AT NELLIKKATHODY HOUSE, KADALAKURISSI, KANNADI, PALAKKAD-678 701. BY SRI.P.VIJAYA BHANU, SENIOR ADVOACATE. ADVS. SMT.M.M.DEEPA,
1. STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY,
2. THE SECRETARY TO DEPARTMENT OF HOME,
GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
3. THE DIRECTOR GENERAL OF PROSECUTION,
HIGH COURT OF KERALA, KOCHI-682 031.
4. SRI. JOHN JOHN,
ADVOCATE, SALAMATH NAGAR,
NEAR CIVIL STATION, PALAKKAD-678 001.
* ADDL. R5 IMPLEADED
5. N. MINI, AGED 42 YEARS,
W/O.LATE E.R. NARAYANAN, EDAKKAD HOUSE,
KUZHALANNAM, PALAKKAD DISTRICT.
* ADDL. R5 IS IMPLEADED AS PER ORDER DATED 25/02/2013 IN I.A. NO.641/2013.
R1 TO R3 BY GOVT. PLEADER MR.NOUSHAD THOTTATHIL. R4 BY SRI.RENJITH THAMPAN, SENIOR ADVOCATE. ADV. SMT.P.R.REENA.
ADDL. R5 BY ADVS. SRI.V.M.KRISHNAKUMAR,
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-02-2013, THE COURT ON 25-02-2013 DELIVERED THE FOLLOWING:
WP(C).No. 26073 of 2012 (H)
EXT.P1 COPY OF THE ORDER DATED 23/09/2010 ISSUED BY THE GOVERNMENT.
EXT.P2 COPY OF THE LETTER DATED 02/06/2010 ADDRESSED TO THE GOVERNMENT BY R3.
EXT.P3 COPY OF THE PETITION DATED 21/11/2011 FILED IN CRL.MP. NO.3534/2011 ON THE FILE OF THE 2ND ADDITIONAL SESSIONS COURT, PALAKKAD.
EXT.P4 COPY OF THE MEMO DATED 19/10/2012 FILED IN SC.490/2008. EXT.P5 COPY OF THE ORDER NO.G.O.(RT) 311/2011/HOME DATED 30/01/2011. EXT.P5A COPY OF THE NOTIFICATION DATED 30/01/2011 ISSUED BY THE GOVERNMENT.
EXT.P6 COPY OF THE CIRCULAR DATED 25/03/1992 ISSUED BY THE GOVERNMENT.
EXT.P7 COPY OF THE COMMUNICATION DATED 07/07/2012 OF THE GOVERNMENT.
EXT.P8 COPY OF THE REPLY GIVEN BY THE STATE PUBLIC INFORMATION OFFICER & UNDER SECRETARY DATED 22/02/2012. RESPONDENT'S EXHIBITS:-
EXT.R5A COPY OF THE DECISION REPORTED IN 1994 CRL.L.J.2780 (KER.) //TRUE COPY//
P.S. TO JUDGE
A.M. SHAFFIQUE, J
W.P. (C) NO. 26073 OF 2012
---------------------------------------- Dated this the 25th day of February, 2013 JUDGMENT
The petitioner, an accused in SC. No. 490 of 2009 pending before the Fast Track Court - III, Palakkad challenges Ext. P5 and P5(a) and also seeks a Writ of Qua-warranto to remove the 4th respondent from the post of Special Public Prosecutor. Ext. P5 is an order issued by the Government on 30.01.2011 appointing the 4th respondent as Special Public Prosecutor for the conduct of prosecution in Crime No. 134/2007 of Kuzhalmannam Police Station, which is pending as SC No. 490 of 2009 before the Fast Track Court - III, Palakkad. Ext. P5(a) is the notification issued by the Government in that regard appointing the 4th respondent as Special Public Prosecutor.
2. The main contention urged by the petitioner is that initially when there was a request made by the wife of the deceased to appoint a Special Prosecutor in terms with Sec. 24 (8) of the Criminal Procedure Code (hereinafter referred to as 'Code'), it was rejected by the Government as per Ext. P1 dated 23.09.2010 having come to the conclusion that there is no special W.P. (C) NO. 26073 OF 2012
circumstances for engaging a Special Public Prosecutor and that the Government Pleader at station was competent enough to conduct the prosecution. Ext.P1 referred to an opinion of the Director General of Prosecution which is also produced as Ext. P2.
3. The contention urged is that once the request for appointing Special Public Prosecutor had been rejected there is no reason to appoint a Special Public Prosecutor to the choice of the wife of the deceased. A reference is made to Ext. P5 which refers to a representation dated 06.09.2010 of Smt. N. Mini wife of deceased which according to the petitioner is not in existence, as no such representation and no such report was available in the file, as per the information received under the Right to Information Act. The petitioner refers to Ext. P6 Circular dated 25.03.1992 issued by the Government in the matter relating to appointment of Special Public Prosecutors which inter alia indicates that such appointments shall be made only under very exceptional circumstances, where the cases involved are highly sensational or have extensive public interest. W.P. (C) NO. 26073 OF 2012
4. The additional 5th respondent in the affidavit filed in support of the impleading petition contended that her deceased husband was a prominent figure and a business man and he was brutally murdered. The 1st accused is an advocate and 2nd accused is his father. It is also mentioned that a close friend of the 1st accused is the Additional Government Pleader at Palakkad and that despite the fact that the accused were involved in such a brutal murder they were permitted to obtain necessary bail and they were not even arrested and confined in prison for even a day. According to the additional 5th respondent the accused are highly influential and merely because the Government had earlier rejected her request for appointing a Special Public Prosecutor, it does not mean that a different opinion could be expressed in the matter.
5. Counter affidavit is also filed by the 2nd respondent inter alia contending that one of the accused in the case is a Lawyer practicing before District Court Center, Palakkad and that the murder was brutal and gruesome and since an application was submitted by the widow of the deceased who is a hapless woman, the Government decided to appoint the 4th W.P. (C) NO. 26073 OF 2012
respondent being a reputed Lawyer as the Special Public Prosecutor. According to the 2nd respondent the special facts and circumstances involved in the case were not considered earlier in the right perspective while rejecting the initial request made by the wife of the deceased.
6. Heard the learned Senior Counsel appearing for the petitioner and additional 5th respondent and the learned Government Pleader.
7. The learned Senior Counsel Sri. P. Vijaya Bhanu contended that while appointing a Special Public Prosecutor under Section 24(8) of the Code special care and caution should be taken and on a proper satisfaction of the Government. The Government should consider whether there will be any travesty of justice if the case is permitted to be handled by the Public Prosecutor who is appointed by virtue of the provisions under the statute. The counsel relied upon the following judgments to support his arguments :-
i) Mukul Dalal and Others v. Union of India and Others [(1998) 3 SCC 144]
ii) Abdul Khader v. Government of Kerala [1992(2) KLT 948]
W.P. (C) NO. 26073 OF 2012
iii) Paramjit Singh Sadana v. State of A.P. [2008(2) KLT 941 (A.P.)] and
iv) Devineni Seshagiri Rao v. Govt. of A.P. and Others [2004 KHC 2100]
8. The learned Senior Counsel Sri. Renjith Thampan appearing for the 5th respondent while contending that the authority of the government in appointing Special Public Prosecutors cannot be questioned by the accused, and highlighting the limited scope of judicial review, relied upon the following judgments:-
i) State of Maharashtra and Others v. Prakash Prahlad Patil and Others [2009 (12) SCC 159]
ii) Annop v. State of M.P. and Another [2006 CriLJ 2061 (Madhya Pradesh High Court)]
iii) Nemi Chand v. State of Rajasthan and Others [2006 CriLJ 4258 (Rajasthan High Court)] iv) Azeez v. State of Kerala [1984 KLJ 182 (Kerala High Court)] and
v) State of A.P. and Another v. Margadarsi Financiers and Others [2009 CriLJ 2705 (Andhra Pradesh High Court)]
9. The learned Government pleader relied upon Section 24(8) of the Code and also relied upon the judgment in State of W.P. (C) NO. 26073 OF 2012
Maharashtra and Others v. Prakash Prahlad Patil and Others[2009 (12) SCC 159].
10. On a factual consideration of the issue, the question to be considered is whether any interference is called for with respect to the decision taken by the Government as Ext. P5 and P5(a).
11. It is not in dispute that Section 24(8) of the Code gives absolute power on the Government to appoint Special Public Prosecutor for the purposes of any case or class of cases. It is to regulate such appointments, it seems that Circulars had been issued by the Government in terms of Ext. P6. But the fact remains that in Ext.P6 it is stated that the appointment of Special Public Prosecutor will be permitted only in very exceptional circumstances, that too cases which are highly sensational or have extensive public interest. But despite the Circular, the power of the Government under Section 24(8) of the Code cannot be limited. The Circular is issued only for creating a self discipline to the Government and cannot be enforced as a right by a person to insist that the Government should act only in accordance with the procedure prescribed W.P. (C) NO. 26073 OF 2012
under the circular.
12. Now coming to the decisions on the point the primary decision relied upon in Mukul Dalal's case (supra) wherein the Supreme Court was considering the question regarding the vires of Rule 22 of Chapter III of Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984. While construing the provisions of Section 24(8) of the Code the Supreme Court held in paragraph 8 and 9 as under:-
8. The pattern that prevails in most of the States is that there is a Remembrancer of Legal Affairs who inter alia looks after the cases instituted by the State. At the district level such interest of the State is looked after by the District Magistrate. There may be instances where a case instituted on a private complaint is really a public cause. In such a case the prosecution though initiated by a private individual is really one which should be taken over by the State. If the complainant thereof approaches the State for assistance in a case of that type by appointing a Special Public Prosecutor or an Assistant Public Prosecutor to support the prosecution it would be for the Legal Remembrancer or the District Magistrate to favourably consider such a request and it would ordinarily be expected that government would appoint a Special Public Prosecutor to take charge of the prosecution. There may also be cases of private complainants where for various other reasons it would be appropriate for the State to support the prosecution by appointing a Public Prosecutor or a Special Public Prosecutor to look after the case. Instances of this type would be cases where the victims W.P. (C) NO. 26073 OF 2012
are of economically backward classes who are not in a position to vindicate their rights through court without the assistance of the State. Here again the Public Prosecutor's services may be placed at the disposal of the complainant. It is a well known position in Criminal Jurisprudence that the State is the prosecutor and that is why the primary position is assigned to the Public 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.
9. Two questions have now to be dealt with - whether as a rule whenever there is a request made by a private complainant for the appointment of a Special Public Prosecutor, should the same be accepted and whether such Special Public Prosecutor should be paid by the private party availing his services. In most of the States, as we have already observed, the Remembrancer of Legal Affairs looks after the State litigations. He is a responsible officer and normally with judicial experience. When an application for the services of a Special Public Prosecutor or an Assistant Public Prosecutor is made in a given case the power would be vested in him to examine the facts and take decision as to whether the case merits the appointment of a Special Public Prosecutor or an Assistant Public Prosecutor. It would not be appropriate to accept the position that whenever an application is made it should be allowed and a Special Public Prosecutor should be appointed; this would be contrary to the spirit of the scheme of the Code. There may be cases where a power complainant may have begun a proceeding to victimize his opponent. If in such a case the State concedes to the request for appointment of a Special Public Prosecutor there will be travesty of justice. Without screening on the basis of guidelines prescribed or to be prescribed, the services of a W.P. (C) NO. 26073 OF 2012
Special Public Prosecutor should not be made available to a private complainant. The primacy given to the Public Prosecutor under the scheme of the Code has a social purpose and the same would be lost if the procedure adopted by Rule 22 of Maharashtra Rules referred to above is accepted or what the High Court has indicated is adopted. We are inclined to observe that the request for appointment of a Special Public Prosecutor should be properly examined by the Remembrancer of Legal Affairs and only when he is satisfied that the case deserves the support of a Public Prosecutor or a Special Public Prosecutor that such a person should be appointed to be in charge of the case. In fact the Supreme Court also referred to the judgment of this Court in P.G. Narayanankutty v. State of Kerala [(1982) 2 CriLJ 2085(Kerala High Court)]. Apparently this was not a case relating to appointment of the Special Public Prosecutor for a case involved in a murder whereas this was a case relating to forgery and question was whether the Rules can be framed for permitting a private complainant to pay the remuneration to the Prosecutor.
13. In Abdul Khader's case (supra) the challenge was in respect of the proceedings of the Government cancelling the appointment of a Special Public Prosecutor. In that case a learned Single Judge of this Court had occasion to consider the obligation of the State under Section 24(3) of the Code to W.P. (C) NO. 26073 OF 2012
appoint Public Prosecutors in every District and held in Paragraph 7 that in regard to appointment of Special Public Prosecutor under Section 24(8) of the Code, it does not lay down any specific terms and conditions for appointment of a Public Prosecutor. But the scheme of Section 24 would unmistakably reveal that a Special Public Prosecutor can be appointed only in special circumstances. In Paragraph 10 it is held as under:-
10. It is in the aforesaid background that the power conferred on the Government to appoint a special public prosecutor need be understood. S. 24(8) of the Code reads thus: "The Central Government or the State Government may, appoint for the purposes of any case or class of cases a person who has been in practice as an advocate for not less ten years as a Special Public Prosecutor"
The philosophy involved which can be discerned from the sub-section it two fold. First is that there should be special circumstances for making such appointment. Second is that, when a situation arises for appointing a special public prosecutor, Government shall consider a more experienced advocate for this assignment. Though circumstances may differ in different situations, 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. Bhat, J. (as His Lordship then was) has pointed out in Narayanankutty v. State of Kerala (1982 KLT 605) that "Special Public Prosecutor could be appointed only when public interest demands it and not to vindicate the W.P. (C) NO. 26073 OF 2012
grievances or a private person, such as close relation of the deceased."
14. Devineni Seshagiri Rao's case (supra) is relied upon to contend that it is purely within the discretion and prerogative of the State to appoint the Special Public Prosecutor in a case. That was a case in which the Government appointed a person as a Special Public Prosecutor who is alleged to have appeared on behalf of the deceased in several cases. The contention raised was the acquaintance with and the proximity to the deceased and his family was the reason for appointing such a person as Special Public Prosecutor which according to the accused would not amount to an independent functioning as a Special Public Prosecutor. After referring to various authorities on the point the learned Single Judge of the Andhra Pradesh High Court observed that the State Government is required to apply its mind and arrive at a conclusion that the concerned case has special significance and that regular Public Prosecutor or Additional Public Prosecutor attached to the Court cannot effectively prosecute the matter. It is also stated that the Government does not owe an obligation to record reason in support of the said conclusion, but such satisfaction has to exist. A reference is W.P. (C) NO. 26073 OF 2012
made to the judgments in Mukul Dalal's case (supra) and D. Brahmanandam's case [1986(1) Andh LT 141 Andhra Pradesh High Court] and having found that office of the Public Prosecutor is unique in its nature and status, it cannot be permitted to be slipped into the hands of private individuals. The appointment as Special Public Prosecutor of that person was set aside.
15. In State of Maharashtra and Others v. Prakash Prahlad Patil and Others [2009 (12) SCC 159] the Supreme Court had occasion to consider the scope of judicial review in the matter relating to appointment of Public Prosecutor wherein the Supreme Court held as under:-
2. The scope for judicial review has been examined by this Court in several cases. It has been consistently held that the power of judicial review is not intended to assume a supervisory role or don the robes of omnipresent. The power is not intended either to review governance under the rule of law nor do the courts step into the areas exclusively reserved by the supreme lex to other organs of the State. A mere wrong decision, without anything more, in most of the cases will not be sufficient to attract the power of judicial review. The supervisory jurisdiction conferred upon a court is limited to see that the authority concerned functions within its limits of its authority and that its decisions do not occasion miscarriage of justice.
W.P. (C) NO. 26073 OF 2012
3. The courts cannot be called upon to undertake governmental duties and functions. Courts should not ordinarily interfere with a policy decision of the State. While exercising power of judicial review the court is more concerned with the decision making process than the merit of the decision itself.
4. In the instant case, acting on a petition filed by close relatives of a victim decisions have been taken at various levels. The High Court was not justified to pick up stray sentences from the records to conclude that there was non- application of mind. In any event, the appointment of a Special Public Prosecutor to conduct a proceeding does not in any way cause prejudice to the accused. In that sense the writ petition before the High Court was wholly misconceived. The impugned judgment of the High Court is set aside. Since the trial appears to have been held up, we direct that the trial court shall make all possible endeavors to see that the trial is completed expeditiously and in any event not later than by the end of October, 2009. The appeal is accordingly, allowed.
16. Annop's case (supra) is relied upon to contend for the position that scope of judicial review in the matter relating to appointment of Special Public Prosecutor is very limited. Para 6 of the said judgment reads as under:-
6. S. 24(8) of the Code has come up for consideration in number of cases and law relating to appointment of Special Public Prosecutor is now well settled. It is, therefore, not necessary to burden this order with various citations, except to point out that appointment of respondent No. 2 is made by the State Government in exercise of statutory powers conferred on it. It is the discretionary power vested in the Government. The State Government is the largest litigant in W.P. (C) NO. 26073 OF 2012
the country. The Government, like any other private litigant, can choose and appoint/authorize any eligible advocate to appear on their behalf in any Court of Law. It is not open to petitioner to suggest to the Government that it should not appoint respondent No. 2 as the counsel. An accused cannot claim as matter of right that the prosecution be conducted by a particular prosecutor and not by any other. Nor it is open for an accused to ask this Court to test the exercise of discretion under S. 24(8) on the touchstone of 'Judicial Review' as an appellate authority or Court. This is permissible only when such exercise and the resultant decision is palpably arbitrary and against the public interest. The scope of interference is very limited as pointed out in the recent decision reported in 2004(4) SCC 714 : AIR 2004 SC 3800 State of U.P. v. Johri Mal.
17. In Nemi Chand's case (supra) the principle of law laid down is that merely for the reason that the advocate appointed as the Special Public Prosecutor had appeared on behalf of the complainant would not make the appointment bad in law.
18. Judgment in Azeez's case (supra) is referred to contend for the position that there is no bar in a person being appointed as Special Public Prosecutor, who had already been appointed as next of kin before Motor Accidents Claims Tribunal.
19. State of A.P. and Another v. Margadarsi Financiers and Others of Andhra Pradesh High Court [2009 CriLJ 2705 (Andhra Pradesh)] is a judgment of the Division Bench wherein W.P. (C) NO. 26073 OF 2012
also the Division Bench considered the scope and effect of appointment of Public Prosecutor under Section 24(8) of the Code. In Para 16 of the said judgment the Division Bench held as under:-
16. The expression used "Special" adjacent to "Public Prosecutor" and the reasons required for such appointment as mentioned therein viz., for the purpose of any case or class of cases, necessarily shows it stands apart. In a given situation and facts and circumstances, as the exigencies may arise, the concerned Government may appoint an individual person as a Special Public Prosecutor at their choice and discretion. This appointment, naturally will be in addition to the regular Public Prosecutors functioning in the respective Courts, and for the reasons as the Government may feel necessary to appoint such Special Public Prosecutors. It is not necessary to dwell into or lay down any specific reasons for such appointment, since they may vary from case to case and facts to facts. Therefore, where it felt necessary, the option is left to the Government for appointing a Special Public Officer in respect of a special case or class of cases. Thus, this provision independently stands on its own and cannot and does not have any similarity with appointments to the offices as provided for in the preceding sub clause. Apparently, the consultation and panel as prescribed for the purpose of District is not provided for. It shows that such procedure is not necessary for making an appointment to the post of Special Public Prosecutor. The discretion apparently is a total and absolute one with a complete option on the part of the State Government to virtually pick and choose. W.P. (C) NO. 26073 OF 2012
20. Having regard to the various judgments relied upon by either sides the first question that is to be considered is regarding the locus standi of the petitioner. Petitioner is an accused in a criminal case and he is no doubt worried about the nature of prosecution. As held by the Supreme Court and the various High Courts in judgments referred above, the Prosecutor is a person who stands in a different capacity. He is not a person who has to act with a vengeance, he is a person who should prosecute the case without any blemish and to bring home the necessary evidence available in the matter relating to investigation of the said crime. If Special Public Prosecutor does not have an independent thought process, it may even effect the defence of the accused. It is to avoid such circumstances that the Courts have evolved the principle that the Special Public Prosecutor should have an independent thinking. Therefore if such an approach is not seen it is open for the accused to challenge the appointment of the Special Public Prosecutor.
21. In the present case the main contention urged is that originally the appointment of Special Public Prosecutor was rejected as there was no special circumstances for the case and W.P. (C) NO. 26073 OF 2012
that there were competent prosecutors in the District of Palakkad. The Government seems to have had a rethinking which resulted in Ext.P5. Though a reference is made in Ext. P5 regarding a subsequent representation of the additional 5th respondent, the said documents are not available on file. But that does not mean that the Government have not reconsidered the matter especially in view of the existence of Ext. P5
22. Under what circumstances, the Government had come to a conclusion that it is a special case of public interest is not borne out by Ext. P5 or P5(a). But as held in the judgments cited above there is no necessity for the Government to give any such particulars as long as they have the right to make such appointments.
23. Having regard to the contention urged by the petitioner that there is no special reason to appoint a Special Public Prosecutor, a reference to the counter affidavit filed by the additional 5th respondent would throw some light. In fact it was at her instance that a Special Public Prosecutor is appointed. The first accused in the case is an Advocate practicing at Palakkad, so there is always an apprehension in the W.P. (C) NO. 26073 OF 2012
mind of the relatives of the deceased as to whether the case will be properly handled. The Public Prosecutor attached to the District Court is no doubt competent to conduct the case impartially and properly. But when an apprehension is raised by the wife of the victim that the first accused was closely connected with the Government Pleader attached to the said Office and another circumstance is pointed out that the petitioner was not even imprisoned for a day that too in a murder case. This normally cannot be achieved by an accused in an ordinary murder case. Therefore the apprehension expressed by the wife of the deceased cannot be ruled out.
24. That apart the Government had considered the case as a special case on a reconsideration of the matter and they intended to help hapless woman. It is to avoid any doubt regarding the conduct of the prosecution probably the Government thought that it is a fit case in which a Special Public Prosecutor could be appointed.
25. As held in the judgments cited above, appointing a Special Public Prosecutor is a matter coming within the province of a policy of the Government and the power is there as evident W.P. (C) NO. 26073 OF 2012
from Section 24(8) of the Code. The exercise of that power cannot be said to violate Article 14 of the Constitution of India. As contended by the learned Senior Counsel Sri. Renjith Thampan the scope of judicial review in such matters is very limited. An order passed by the Government by way of Ext. P5 and P5(a) cannot be set aside merely for the reason that earlier a different opinion was expressed.
In these circumstances, I do not think that any interference is required with reference to Ext. P5 and P5(a) and hence this writ petition is dismissed.