In the High Court of Karnataka Dharwad Bench

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 17 th DAY OF SEPTEMBER, 2013

BEFORE

THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY

WRIT PETITION No.77242 OF 2013 AND WRIT PETITION NOS.77249-77259 OF 2013 (GM-RES)

BETWEEN:

1. Sri. Balachandra Prabhakar Kodlekare, Aged 27 years, Resident of Kotithirtha Kodlekar House, Gokarna, Kumta Taluk, Uttara Kannada District.

2. Sri. Gajanan Shamba Upadhyaya, Aged 43 years, Resident of Near Sanskrith School, Gokarna, Kumta Taluk, Uttara Kannada District.

3. Sri. Shivram Vinayak Adi, Aged 32 years, Resident of Ratha Beedhi, Gokarna, Kumta Taluk, Uttara Kannada District. 2

4. Sri. Vishwanath @ Vishu Paniraj Gopi Bhat, Aged 45 years, Resident of Near Mahabaleshwar Temple, Gokarna, Kumta Taluk, Uttara Kannada District.

5. Sri. Raju @ Rajgopal Mahadev Adi, Aged 38 years, Resident of Ratha Beedhi, Gokarna, Kumta Taluk, Uttara Kannada District.

6. Sri. Manu Bhaskar Navada, Aged 24 years, Resident of Naga Beedhi, Gokarna, Kumta Taluk, Uttara Kannada District.

7. Sri. Neelakanth Vasudev Joglekar, Aged 21 years, Resident of Near Gokarna Temple, Gokarna, Kumta Taluk, Uttara Kannada District.

8. Sri. Niranjan Murthy @ Niranjan Gajanan Joshi, Aged 35 years, Resident of Ratha Beedhi, Opposite Hittal Ganapathi Temple, Gokarna, Kumta Taluk, 3

Uttara Kannada District.

9. Sri. Ganesh Vasudev Joglekar, Aged 45 years, Resident of Near Mahabaleshwar Temple, Gokarna, Kumta Taluk, Uttara Kannada District.

10. Sri. Somanath Vasudev Joglekar, Aged 40 years, Resident of Near Mahabaleshwar Temple, Gokarna, Kumta Taluk, Uttara Kannada District.

11. Sri. Pani Raj Saka Ram Gopi Bhat, Aged 78 years, Resident of Sarashanakali Road, Gokarna, Kumta Taluk, Uttara Kannada District.

12. Sri. Krishna Maneshwar Jog Bhat, Aged 70 years, Resident of Naga Beedhi, Gokarna, Kumta Taluk, Uttara Kannada District. …PETITIONERS

(By Shri H.Subramanya Jois, Senior Counsel for Shri V.G.Bhat, Advocate ) 4

AND:

1. The State of Karnataka, Represented by its Secretary, Home Department, (Internal Affairs, Police Service-B), Vidhana Soudha, Bangalore-560 001.

2. The Director of Prosecutions and Government Litigations Department, M.S. Building, Bangalore-1.

3. Sri. Ashok N. Naik, Major, Advocate and former Public Prosecutor, “Shanthinarayana”, Near Sundaranarayana Temple, Ankola, Uttara Kannada District.

4. The Chief Administrative Officer, Sri. Ramachandrapura Mutt, No.2A, J.P. Road, Girinagar 1 st Stage, Bangalore-560 085.

5. The Circle Inspector of Police, Gokarna Police Station, Gokarna, Kumta Taluk, Uttara Kannada District. …RESPONDENTS

(By Shri V.M. Banakar, Additional Public Prosecutor for Respondents 1, 2 and 5, Respondent No.3 served, 5

M/s. Shankar Hegde Associates, Advocates for Respondent No.4) ---

These writ petitions are filed under Articles 226 & 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, praying to call for the records relating to concerning and connected with the impugned notification dated 20-04-2012 vide Annexure-A professedly issued by the first respondent, peruse the same and declare and quash the said notification as devoid of the authority of law, malicious and non-est, and etc.

These Petitions having been heard and reserved on 6.9.2013 and coming on for Pronouncement of Orders, this day, the Court made the following:

O R D E R

These petitions were dismissed for non-prosecution by an

Order dated 26.8.2013. However, on an application in IA

1/2013, the same was recalled and the matter was heard on merits.

2. The facts leading up to this writ petition are as follows:

Shri Ramachandrapura Mutta, Hosanagara taluk,

Shimoga District, is a religious denomination of Havyak 6

brahmins, a sizable section of whom prefer to call themselves

Havyak smartha brahmins. The mutta is headed by a pontiff,

Shri Raghaveshwara Bharathi Swamy.

It is stated that Shri Gokarna Mahabaleshwara Temple at

Gokarna, a notified temple under Section 23 of the Karnataka

Religious and Charitable Institutions Act, 1997 (Hereinafter referred to as ‘the KRCI Act’, for brevity), was denotified from the list of temples on 30.4.2003 and the management of the temple was handed over by the State Government by an Order dated 12.8.2008, to the aforesaid pontiff. The same however, is subject matter of challenge in several writ proceedings before this court, which are pending consideration.

It is alleged that in view of the opposition raised to the management being handed over to the pontiff, and in retaliation thereof, the pontiff in active connivance with other persons managing the affairs of the Mutta, have chosen to initiate criminal proceedings against the petitioners herein alleging 7

offences punishable under Sections 120-B, 153-A, 295-A, 298,

500, 511 and Section 149 of the Indian Penal Code, 1860

(Hereinafter referred to as the ‘IPC’, for brevity) read with

Section 67 of the Information Technology Act, 2000

(Hereinafter referred to as ‘the IT Act’, for brevity).

The petitioners had approached this court by way of a writ petition in WP 14356/2010. Even during the pendency of the writ petition, it is stated that one Srikanth, CPI, Puttur Town

Police, was transferred and posted to Kumta. And that soon after the transfer, it is the allegation of the petitioners, the said officer launched an aggressive prosecution against the petitioners, purportedly at the instance of the authorities of the

Mutta. The said officer is said to have secured the permission of the Court of JMFC, Kumta, to conduct further investigation.

In the guise of further investigation, the petitioners claim that they are victimized and persecuted, in the pending criminal case for the offences punishable as aforesaid in case 8

C.C.No.686/2011, on the file of the Court of the Judicial

Magistrate First Class, Kumta.

It is alleged that in keeping with its single minded objective of persecuting and punishing the petitioners, the Chief

Administrative Officer (CAO) of the Mutta, a retired high ranking Police Officer of the State Government had utilized his influence with the office of the Director of Prosecutions to obtain the appointment of the third respondent one Ashok Naik, as the Special Public Prosecutor to prosecute the pending criminal case against the petitioners, vide notification dated

20.4.2012 issued under Section 24(8) of the Code of Criminal

Procedure, 1973 (Hereinafter referred to 'Cr.PC', for brevity) and Rule 30 of the Karnataka Law Officers (Recruitment and

Conditions of Service ) Rules 1977, (Hereinafter referred to as the ‘KLO Rules’, for brevity).

It is this appointment that is sought to be questioned in the present writ petition. 9

3. The learned Senior Advocate, Shri Subramanya Jois, appearing for the counsel for the petitioners, contends as follows:

The impugned notification is bad in law. The appointment of the third respondent as a Special Public

Prosecutor is made by the State Government, at the instance of the Mutta and its authorities, in flagrant violation of all notions of fair play. The malicious intention of the respondents being to fix the petitioners and to secure their conviction by means foul and unfair, is opposed to Section 24(2) to (6) of the Cr.PC.

In that, the learned Sessions Judge of the District has not been consulted in the matter nor has any panel of names been prepared by the District Magistrate for the third respondent being appointed under the said provision.

There is no indication that the State Government ever felt any expediency or necessity to displace the Public Prosecutors 10

representing the State in the pending criminal proceedings, who were on record.

The circumstance that the third respondent was identified and named by the Mutta and its authorities, to be appointed as a

Special Public Prosecutor, that has been mechanically implemented by the State, would lead to the unerring presumption that the object is to secure the conviction of the petitioners at all odds.

It is contended that the position of a Public Prosecutor is sacred and the office involves the discharge of duties of a public nature and hence the public at large have a vital interest in the same being fair and transparent. The present appointment, at the dictates of individuals, consumed by malice, has compromised fair play and impartiality.

It is contended that the order of appointment is bereft of any reasons and nothing is forthcoming, from the record placed before the court, justifying such appointment. On the other 11

hand, it is pointed out that a disturbing feature that would fully and completely establish as true, the foreboding fear and apprehension of the petitioners, is the glaring circumstance that the fee and expenses payable to the third respondent is to be borne by the CAO of the Mutta. It is hence patent that the impugned notification contemplates a bounty being conferred on the third respondent to secure the conviction of the petitioners and not at all to act as an impartial Public

Prosecutor.

The learned Senior Advocate would contend that the questions involved in the petition are no longer res integra, but are fully covered by a decision of this court rendered in the case of K.V. Shiva Reddy v. The State of Karnataka, ILR 2005 Kar.

4780 .

It is hence contended that the petitions be allowed as prayed for. 12

4. The learned Additional Public Prosecutor arguing on behalf of the State, while placing the record of the State

Government, pertaining to the subject matter, before this court for its scrutiny, would contend that the criminal case, which is the subject matter of the proceedings arises out of a case registered in Crime no.27/2010, dated 1.4.2010, by the Gokarna

Police Station on the basis of a complaint filed by one

G.K.Hegde. It was alleged that the accused named therein were distributing pamphlets and compact discs found to contain obscene and objectionable material affecting the conduct, character and integrity of the pontiff of the Mutta and the content was such that it was capable of inciting and hurting the religious feelings of his innumerable followers. Investigation having been taken up is completed and a clear prima facie case having been made out against the accused, they have been charge sheeted. The case is now numbered as C.C. 686/2011. 13

It is contended that the allegation of mala fides and lack of application of mind, in the appointment of the third respondent as a Special Public Prosecutor, on the part of the

State Government is ill founded and without basis. It is asserted that having regard to the seriousness of the accusations against the pontiff who has a wide following and is held in high regard – the objectionable material sought to be disseminated in public, to tarnish and malign his image and standing, apart from destroying the reputation of an entire institution, a decision was taken to appoint the third respondent, who had obtained voluntary retirement, as a Public Prosecutor. He had retired after 26 years of unblemished service and had established his impeccable integrity. The State Government had not mechanically appointed the said respondent, but was fully aware of his capabilities and suitability to discharge his duties impartially and fairly. The said respondent had occasion to be conversant with the pending criminal case, even before he had retired from service, this was an added qualification. 14

The learned Additional Public Prosecutor would concede that in terms of Rule 30 of the KLO Rules, remuneration payable to the third respondent for his services can only be paid by the State Government and cannot be through the medium of the CAO of the Mutta.

He would however, submit that there is otherwise no merit in the petition and that the same be dismissed.

5. The learned counsel appearing for the third respondent would contend that the allegations against the third respondent are baseless and unfair. He had put in 25 years of service as a

Public Prosecutor before seeking voluntary retirement for personal reasons. He has however, continued to represent the

State as a Special Public Prosecutor in many cases. He is currently engaged in that capacity in seven major criminal cases. 15

The criminal case against the petitioners is classified by the State as a sensitive and Special case and which was the reason that it was investigated by the Special Wing of the

Department of Criminal Investigation Bureau, attached to the office of the Superintendent of Police, Karwar.

The said criminal case is at the stage of hearing before framing of charges, but is stalled on account of the Order of stay of further proceedings passed in the present proceedings.

It is stated that the accused are represented by counsel of repute and known for their expertise in criminal law. It is contended that, on the face of it, the petitioners have not made out any irregularity in the appointment of the third respondent as a

Special Public Prosecutor – nor of any prejudice being caused to the petitioners. There is no indication as to how the appointment could be said to be opposed to public interest. It is not the allegation of the petitioners that respondent no.3 carries a personal bias or grudge against the petitioners. 16

It is contended that the only grievance that remotely seems to assume some significance is whether the appointment of the third respondent could have been made at the instance of the authorities of the Mutta, and whether such appointment was made mechanically and without being informed with reason. The learned counsel would assert that there are several decisions rendered post K.V.Shiva Reddy , by several other High

Courts - consistent with the changed legal position, vis-a-vis the amendments brought to the Cr.PC, with effect from 31.12.2009, by the inclusion of Section 2(wa) and the Proviso to sub- section (8) of Section 24 and the Proviso to Section 372 Cr.PC, whereby a person, who has suffered any injury or loss by reason of the act for which the accused person has been charged, is defined as a “victim “ and that includes his guardian or legal heir. The victim may now be permitted by the Court to engage an advocate of his choice to assist the prosecution. The victim has also been conferred a right to prefer an appeal against an order of acquittal. It is hence contended that the 17

guidelines indicated in Shiva Reddy , though cannot be said to have been breached, in the appointment of the third respondent, the assertion that the observations in the said decision are a complete bar to the appointment, may not be accurate, having regard to certain observations made in the very decision and in the light of the circumstances of the present case on hand, the change in the law and the several authoritative decisions of other High Courts, which can hardly be overlooked.

The learned counsel for the third respondent draws attention to the following decisions in support of his arguments:-

1. State of Andhra Pradesh vs. Margadarsi Financiers,

2009 Cr.LJ 2705,

2. Shekhar Tiwari vs. State of Uttar Pradesh and others,

W.P.No.9364(M/B) of 2010,

3. P. Jigesh and another vs. State of Kerala and another,

W.P.(C).No.3369 of 2013. 18

6. In the light of the above rival contentions and from an examination of the record, in order to answer the question - whether the appointment of the third respondent as a Special

Public Prosecutor to conduct the case in C.C.686/2011, on the file of the Court of the Additional Judicial Magistrate (First

Class), Kumta, is in order or whether is liable to be quashed, it is necessary to take stock of the legal position as it pertains on date, on a review of the case law vis-à-vis the provisions of law and thereafter address whether the action of the State

Government was in accordance with the same, with due regard to the facts and circumstances of the case.

In K.V.Shiva Reddy v. State of Karnataka, ILR 2005

Kar.4780 , the facts were as follows:

The petitioner therein was arraigned as accused no.1 in a

Sessions Case and was being tried for offences punishable under Sections 120(B), 143, 144, 147, 148, 320 read with

Section 3(ii)(v) of the Scheduled Caste and Scheduled Tribes 19

(Prevention of Atrocities) Act, 1989. He was aggrieved by the appointment of the second respondent therein, as the Special

Public Prosecutor to replace the Public Prosecutor who was on record. The said appointment was said to have been made on the basis of a representation made by the wife of the victim, involved in the case, to the then law minister of the State

Government. The minister, in turn, had made a note on the representation calling upon the Law Secretary to appoint a

Special Public Prosecutor, on a condition that the applicant should bear the expenses. There were no reasons indicated in support of the direction.

The petition was contested by the wife of the victim, at whose instance the appointment was made. It was also contested by the second respondent, who was appointed as the

Special Public Prosecutor and by the State Government as well.

All of whom sought to justify the appointment on various grounds. 20

The learned single judge framed the following points for his consideration:

“(1) What is the status, responsibilities of a public prosecutor in a criminal trial? (2) How and under what circumstances a Special Public Prosecutor could be appointed? (3) How, the remuneration is to be paid to the Special Public Prosecutor? (4) Whether the accused has a right to challenge the order of appointment of a Special Public Prosecutor? (5) Whether the impugned order appointing the second respondent as the Special Public Prosecutor is liable to be quashed? (6) Whether this Writ Petition is liable to be dismissed on the ground of delay, latches, suppression of material facts, etc.,?”

In considering the above, the following authorities were referred to:

(i) P.G. Narayanankutty v. State of Kerala and others,

1982 Crl.LJ 2085, 21

(ii) Ajay Kumar v. State and another, 1986 Crl.LJ 932,

(iii) Prabhudayal v. State, 1986 Crl.LJ 383,

(iv) Shivkumar v. Hukamchand and another, 1999

SCC(Crl) 1277,

(v) Medichetty Ramakistiah v. State of Andhra Pradesh,

AIR 1959 AP 659

(vi) Abdul Khader Musliar v. Government of Kerala and others, 1993 Crl.LJ 1249,

(vii) Mukul Dalal and others v. Union of India and others, 1988(3) SCC 144

Points 1,2 and 3 were answered thus :

“25. Point Nos. (1), (2) and (3):- STATUS The word "Public Prosecutor" has been defined under the Code. Section 2(u) of the Code states that "Public Prosecutor" means any person appointed under Section 24 and includes any person acting under the directions of Public Prosecutor. Therefore, the word "Public Prosecutor" includes Public Prosecutor, 22

Additional Public Prosecutor, Special Public Prosecutor and a Pleader instructed by a private person under Section 301(2) of the Code. The office of the Public Prosecutor is a public one. He is a public servant. Special status and position as well as great powers have been conferred on the office of Public Prosecutor. Under the Criminal Procedure Code, the Public Prosecutor has a special status and his is a statutory appointment. Under some of the provisions made in the Code, he receives special recognition. Sections 199(2), 225, 301(1), 301(2), 302, 308, 321, 377 and 386 are some of the provisions in the Code which confer a special position upon the Public Prosecutor. He is a part of the judicial system. He is an officer of the Court and must act independently and in the interests of justice. The primacy given to the Public Prosecutor under the Scheme of the Code has a social purpose. The office of the Public Prosecutor involves duties of public nature and of vital interest to the public. In criminal cases the State is the Prosecutor. The State by Public Prosecutor is the party and not the complainant. The Prosecutor is bound by law and professional ethics and by his role as an officer of Court to employ only fair means. Public Prosecutor must remind himself constantly of his enviable position of trust and responsibility. 23

RESPONSIBILITIES:-

26. 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 of the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court to the investigation agencies 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, the Public Prosecutor has the added responsibility to bring it to the notice of the Court, if it comes to his knowledge.

27. It is an office of responsibility more important than many others because the holder is required to prosecute with detachment on the one hand and yet with vigour on the other. An upright Public Prosecutor has no friends and foes in Court. He has no prejudices, preconceived notions, bias, hostility or his own axe to grind. He represents public interest. He has 24

no client or constituency apart from the State. He is above the personal loyalty. He does not have a dual capacity. He has to safeguard public interest in prosecuting the case. Public interest also demands that the trial should be conducted in a fair manner, heedful of the rights granted to the accused under the laws of the country including code. It is no part of his obligation to secure conviction of an accused in any event or at all costs. Nor is he intended to play a partisan role or become party to the prosecution of the accused or lend support, directly or indirectly to a denial of justice or of fair trial to the accused.

Special Public Prosecutor:- 28. Section 24 of the Code confers unfettered power on the Central Government and the State Government to appoint a Special Public Prosecutor for purposes of any case, if the person so appointed satisfies the qualification laid down in Sub-section (8). Once a person is appointed as a Special Public Prosecutor, he would be the "Public Prosecutor" within the meaning of Section 2(u). Therefore, all rules applicable to the Public Prosecutor equally applies to the Special Public Prosecutor. 25

29. Merely because the Central and State Governments has the power to appoint for the purposes of any case or class of cases a Special Public Prosecutor that power cannot be exercised, mechanically without any reason, as a rule. There must be some justifiable reason to dislodge the Public Prosecutor and for requisitioning the assistance of an experienced Advocate for the case. The record must disclose the existence of circumstances which warrants such appointment, application of mind to such material and recording such reasons for such appointment. 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 these rational nexus and synthesis with the facts considered and the conclusions reached, lest it may not be arbitrary, unfair and unjust, violate Article 14 or unfair procedure offending Article 21. When wide discretionary power is conferred, the Government must exercise the power in a most reasonable manner in accordance with the spirit of the statute and in public interest.

30. Special Public Prosecutor could be appointed only when public interest demands. There 26

should be special circumstances warranting such appointment. The mere fact that the accused in a particular case are engaging a leading Criminal Lawyer alone cannot be a ground to appoint a Special Public Prosecutor. But that factor may be one of the factor which may be taken note of along with or other weighty reasons for such appointment. A Special Public Prosecutor cannot be appointed with a view to secure conviction at all cost. The said office should not be permitted to be degenerated into a legalized means for wreaking private vengeance. 31. A Special Public Prosecutor could be appointed at the request of the complainant or the victim also. As a rule such a request cannot be accepted and appointment made. The right to be heard includes the right to be represented by an able spokesman of one's confidence. The right belongs to the complainant and to the accused, both. A fair trial does not necessarily mean that it must be fair only to the accused, it must be fair to the victims also. It must be fair to all. A fair trial is a concept which is much higher than the claims or ends of the parties to it. The accused and the victim are not at par and criminal trial is not a forum for personal vengeance. It is essentially a State action to punish crime. When a request is made for appointment of a private Counsel 27

as Special Public Prosecutor, the Government should be satisfied that the case deserves the support of a Special Public Prosecutor and that such a person should be appointed to be in charge of the case. The satisfaction of the Government should be evidenced by the material on record, the reasons for such appointment, which is reduced in writing, to have transparency in the matter, and to negate any mala fides that may be attributed to the Government. It falls within the realm of administrative law and there is a duty cast on the Government to act fairly, justly and reasonably. In these what matters is the process of decision making rather than the decision itself.

REMUNERATION: 32. In the matter of remuneration payable to the Special Public Prosecutor, ordinarily the Special Public Prosecutor should be paid out of the State funds even when he appears in support of a private complainant. But there may be some special cases where Special Public Prosecutors remuneration may be collected from private source. The rate of fees should be prescribed and the complainant should be called upon to deposit the fees in advance to the Government and the Special Public Prosecutor be paid out of the said amount by the Government. To leave 28

the complainant to pay to the Special Public Prosecutor would indeed not be appropriate. If he looks to a private party for his remuneration, his capacity and ability to perform his role as Public Prosecutor property will be endangered Government cannot appoint Special Public Prosecutor on such terms, abdicating their financial responsibility or directing him to receive his remuneration from any private individual. Then it introduces an Advocate- client relationship, a personal element from which the Public Prosecutor must be considered immune. He is above the personal loyalty. He does not have a dual capacity.”

Insofar as Point no.4 is concerned it was answered thus:

“36. The impugned order is an administrative order by the Government under Section 24(8) of the Code. It is a statutory order. If all State actions must be just, fair and reasonable, the Special Public Prosecutor would be under less duty as a functionary of the State to discharge his functions as a Public Prosecutor in an equally just, fair and reasonable manner irrespective of the outcome of the trial. In that sense, he is a part of the judicature system and an upright Public Prosecutor has no friends and foes in 29

Court. He has no prejudices, preconceived notions, bias, hostility or his own axe to grind. He represents public interest, but is not a partisan in the narrow sense of the terms.

37. The accused has no say in the matter of appointment of the Special Public Prosecutor under the scheme of the Code. But the accused has a right to fair trial, which is a part of the fundamental right guaranteed by the Constitution under Articles 14 and 21 of the Constitution of India. The assurance of a fair trial is the first imperative of the dispensation of justice. It is 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, who is a part of fair trial. If his appointment is not made in public interest, not made in accordance with law, made for extraneous considerations, made with any mala fide intentions, made with intention to persecute the accused, such appointment offends the concept of fair trial, a fundamental right guaranteed to the accused. Fairness to the accused who faces prosecution is the raison d'etre of the legislative insistence on that score. Therefore, the accused has a right to challenge the appointment on any such grounds, though he has no 30

say in the appointment. The Court is concerned only with the decision making process and not the decision.”

The answer to Point no.5, which was on the facts of the case, the following observations are relevant.

“Therefore, it is clear from the aforesaid material there is no application of mind by any one concerned before an order of appointment of Special Public Prosecutor is made. There is no indication in the entire record to show why a Special Public Prosecutor was appointed for the case. Though under the provisions of the Code of Criminal Procedure, 1973 the Government has the power to appoint a Special Public Prosecutor in a case, it does not mean that such an appointment could be made by the Government as a matter of course, at the request of total strangers and in the absence of a request by the complainant and consent by the learned. Advocate to be appointed as the Special Public Prosecutor and without any reasons. It is clear, appointment of Special Public Prosecutor is made in a mechanical way without there being any reason. It is not that the order appointing a Special Public Prosecutor should 31

disclose the reasons for such appointment and it should disclose any special circumstances for such appointment. But, once such an appointment is challenged before the Court an obligation is cast upon the State to justify the appointment by making available the records. The said records should disclose the special circumstances justifying such appointment. If the record do not disclose any such special circumstances then the order of appointment cannot be sustained and is liable to be quashed. The letter of the MLA do not disclose the reasons for appointment. The order of the Hon'ble Minister do not disclose the reasons. The record also do not disclose any other material justifying such appointment. The letter discloses a request is made to the Chief Minister. On the basis of the letter Hon'ble Law Minister has directed the Law Secretary to take steps to appoint Special Public Prosecutor. Therefore, from the records no reasons for dislodging the services of the Public Prosecutor is made out. No special circumstances justifying such appointment is forthcoming. The Government had no intention of appointing the Special Public Prosecutor on its own. It failed to notice the request is from an MLA of Srinivasapura Taluk and Chairman of Mysore Sales International Limited, which did not disclose his relation to the victim nor 32

any reasons and that he has nothing to do with the crime number referred to by him in his letter. 38. The second respondent is appointed at the instance of the MLA who has nothing to do with the crime in question. In the statement of objections he has stated that he is appointed after detailed inquiries made through the Deputy Director of Prosecution and also through the representation given by the deceased wife Surya Kalavathi, which is not borne out from the record. He has referred to the political rivalry in the Taluk and has dragged the name of the present sitting MLA who was also the former speaker and alleges that the wife of the deceased has no confidence even on the Government since sitting MLA and Ex-speaker of Karnataka is also one of the accused, who is competent to manage things. The third respondent in her objection statement has not alleged these things, as on the date of appointment of the second respondent, Sri G.K. Venkatashiva Reddy was the MLA and on his request the appointment was made, and the facts pleaded for justifying the appointment are subsequent events to appointment. Therefore, the second respondent is acting as a spokes person of not even of the complainant but that of the MLA who got appointed him and is bent upon persecuting the accused and wants a conviction at any cost. The 33

statement made by him clearly demonstrates that he is unable to prosecute the case with detachment. He has prejudices, preconceived notions, bias and hostility against the accused. Though he may not have his own axe to grind, he has allowed himself to be used by the MLA to fight his political battle in the Court under the garb of a Public Prosecutor. The records and the statement of objections speaks for itself. Realising his folly in exposing himself in the aforesaid manner, a memo was filed to withdraw the statement of objections. It is relevant to notice that the second respondent has served as a Public Prosecutor earlier. He ought to know his status and role better. The allegations in the statements of objections therefore cannot be considered as unintentional or born out of inexperience. Moreover the writ petition do not contain any personal allegations against him. In spite of the same not only he defends his appointment, which was totally unwarranted, but makes allegations against the accused and his mentors, bringing in politics and political rivalry to the fore, thus disentitling him to be appointed as a Special Public Prosecutor. Therefore, his appointment cannot be sustained. 40. The petitioner is under the impression that the Special Public Prosecutor is appointed at the 34

instance of third respondent. The statement of objections filed by the third respondent also discloses that on such a request the appointment is made. But, the records disclose the real facts. The third respondent has been a silent spectator in the whole episode. This Court cannot ignore her rights and genuine apprehension in the matter of effective trial, as her husband is the victim.”

In the case of State of Andhra Pradesh v. Margadarsi

Financiers, 2009 CrLJ 2705 , a division bench of the Andhra

Pradesh High Court was dealing with a batch of cases, involving the question whether the procedure contemplated under sub-sections (4) and (5) of Section 24 of the Cr.PC was followed in appointing a Special Prosecutor under sub- section (8) of Section 24 of the Cr.PC.

In analyzing the scope and ambit of Section 24 Cr.PC, it is opined as follows:

“Thus, from these above provisions, the process of appointment has to be only by means of panel, except to the extent of a regular cadre of 35

prosecuting officers, even though, there is no such specific prescription provided for similar offices in the High Court under sub-clauses (1) and (3). Now comes the sub-clause (8) where it is contemplated for appointment of a person as a Special Public Prosecutor. The only qualification prescribed therefore is a standing or practice at the Bar as an Advocate for not less than 10 years. Sub-clause (9) is enabling provision for the purpose of calculating the practicing period in respect of those who already held similar such office. The other requirement under sub clause 8 is that such appointment of a special Public Prosecutor can be for the purpose of any case or class of cases. The power to appoint a person to any of these three classes of offices at different situations and stages vests with the Government, the central or the State and such power is a discretionary one. However, a clear distinction is apparent between the first of such type of office with that of the second one, viz., in regard to the appointment to an office in the High Court or as a Special Public Prosecutor, as evident from the sub-clause (1) and (2) on the one side and sub-clause (8) on the other, no consultation or preparation of a panel is envisaged. It is only in regard to the appointment to such office for a District, the consultation and panel is required to be followed and having regard to the expression “shall” which is used, undoubtedly the same is mandatory, which gets 36

further reiteration under sub-clause (5) thereof. Therefore, such a condition precedent cannot be dispensed with. Further without following such procedure, any appointment made in the teeth of the said provision would be illegal. In respect of first two classes of offices viz., for the purpose of High Court and in the Districts, the office is described as Public Prosecutor, which is defined under section 2(v) of the Code, which reads as follows: “public prosecutor means any person appointed under Section 24, and includes any person acting under the directions of a public prosecutor.” (16) Thus, it only relates to the nature of appointment of a person to such an office. However, the expression “special Public Prosecutor” as contemplated under sub-clause (8) of Section 24 of the Code, does not get defined in the Code. Therefore, necessarily it need not take in all the connotations of an office of a regular Public prosecutor. 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 37

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 clauses. 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. Though the duties of every Public Prosecutor runs on the same lines, but, however the restrictions vary from between these three offices. A person who has been appointed as Special Public Prosecutor for the purpose of any case or class of cases cannot claim as a regular public Prosecutor, be it High Court or in the district, nor can he be permitted to prosecute the other cases on behalf of the State. Similarly, the built in area of operation gets 38

restricted for all such regular Public Prosecutors in claiming any right to appear on behalf of the state in respect of such case or class of cases where a Special Public Prosecutor gets appointed. Having regard to such clear distinction laid down by the legislature in its wisdom it has dispensed with the consultation and processing through a panel. Having made into a separate class itself as a Special Public Prosecutor and prescribing its own procedure specifically, the other procedure in earlier clauses for other offices cannot be applied in toto. The intention of the legislature is quite clear and apparent. Therefore there cannot be any other interpretation of provision otherwise. It is now well established that when the legislature lays down the procedure in contradiction to the various situations, it cannot be said or interpreted to bring down the uniform procedure or bring forth with or apply the procedure applicable to that of the other situations. The exclusion of the consultation cannot be imported. While interpreting a provision in a statute, the expression and contents have to be read in the manner it is contemplated. Neither there is any permissibility of exclusion of the expressions or additions. Applying the criteria in one provision or from one end cannot be ushered in other provision or end. It virtually amounts to a clear legislation by the Courts, which is not permissible. In fact, it deviates the purpose and object under sub-clause (8) in 39

appointing a Special Public Prosecutor. Therefore, it cannot be said that there is any requirement of consultation or preparation of panel for appointment of a Special Public Prosecutor under sub-clause (8) of section 24. (17) The argument let on behalf of the petitioners that the power conferred under sub-clause (8) is a whimsical and there are no guidelines and therefore such an appointment straightaway without following the procedure for the other offices is bad, cannot be accepted. Primarily, there is no challenge as to the vices of the said provision either under the constitutional ground or otherwise by the petitioners. Therefore it is not necessary for this Court to go into the validity of the provision. Further, having regard to the nature of provision and the limited gamut within which the exercise of power has to be done by the government, it cannot be said that there are no guidelines or any specific power. In the exigencies, it is left open for the government, in a particular case or class of cases, wherever necessary and expedient to appoint a Special Public Prosecutor other than the regular office holder. Therefore, we do not find any merit in the aforesaid contentions.”

In the case of Shekhar Tiwari vs. State of UP (WP no.9364 (M/B) of 2010, dated 22.9.2010), a Division bench of 40

the Allahabad High Court, was concerned with a challenge to the appointment of a Senior Advocate as a Special Public

Prosecutor to conduct the criminal case which the petitioner was facing before the Court of Special Judge (Ayodhya

Prakaran) Lucknow.

The challenge was on the following grounds :

(1) The appointment of respondent no.2, a designated

Senior Advocate as Special Public Prosecutor, is not in consonance with the provisions of Section 24, in particular sub- section (8) of the Cr.P.C.;

(a) Such an appointment of Special Public Prosecutor for no valid reason impinges upon the right, either of the accused or of the victim, to have a fair trial;

(b) Such an appointment of Special Public Prosecutor has resulted into supersession of the Public Prosecutor, who was entitled and authorised to conduct the sessions trial, having 41

been appointed under the provisions of sub-sections (1) to (6) of Section 24 of the Cr.P.C.;

(2) No reasons have been given by the State Government for appointing the Special Public Prosecutor and there being no such cause which would allow such an appointment, the appointment so made is arbitrary;

(3) The respondent no.2 being a Senior Advocate could not have been allowed to do Pairvi and plead a case, which is against the provisions of Bar Council of India Act and restrictions imposed with respect to Senior Advocates in the matter of arguing cases under the Rules; and

(4) The respondent no.2 having been engaged by respondent no.3 in Criminal Misc. Writ Petition No.370 of

2009, filed by the petitioner and his wife seeking stay on their arrest, to plead the case on her behalf, could not be taken to be in independent public prosecutor and thus, could not have been appointed to undertake the sessions trial against the petitioner on behalf of the State. 42

The Court while addressing points 1 and 2 above, considered the opinion expressed in Shiva Reddy, by a bench of this court, as well as the cases referred to therein, at length – in view of the heavy reliance placed on the said decision, on behalf of the petitioner therein. The Court has then expressed its opinion thus:

“In nutshell, the sum and substance of the aforesaid judgments is that the Special Public Prosecutor can be appointed only when public interest demands and not on mere asking of any party, nor on the request of a politician, namely, M.L.A. etc. who is interested in either side of the case and that there has to be some cogent ground or reason or special circumstances owing to which the State Government can exercise its discretion for appointing a Special Public Prosecutor, but while doing so, it has to see that such a person is impartial to all the parties to the case and that his remuneration must be paid from the State funds and not by a private party. By such appointment, the prosecution is not to secure conviction by adopting means which are not permissible in law and the persons so appointed are 43

bound by the professional ethics under the Advocates Act, the Bar Council of India Act and the Rules made thereunder. In other words, the public prosecutor or may be, the Special Public Prosecutor, is supposed to conduct the trial only in accordance with law, keeping in mind the legal and professions tenets of the Advocates. Their function is only to assist the Court in a fair and just manner to reach to a definite conclusion about the guilt or innocence of the accused. So far the duties and responsibilities of a Public Prosecutor or the Special Public Prosecutor is concerned, suffice would be to say that every person so appointed has a legal as well as moral duty not to hide and conceal the facts which if brought on record may result into acquittal of the accused. He is also not to withhold such information which would be relevant for the purpose of conviction of the accused. Besides putting correct facts and the evidence available on record before the Court, it is also the duty of the public prosecutor and special public prosecutor to apprise the court of the legal provisions and the case law, if any, on the point in issue. The meaning of ‘Fair Trial’ does not require any detailed discussion, it being the fundamental right guaranteed to the accused under Articles 14 and 21 of the Constitution of India, therefore a trial which is 44

either not fair, or seemingly appears to be not fair, would not be allowed to continue in case any such unfairness and arbitrariness in the conduct of the proceedings is brought to be notice of the Court under Article 226 of the Constitution of India. But in regard to the appointment of the Special Public Prosecutor, the views expressed by the different High Courts, as referred to above, do reflect that their Lordships were of the view that the public prosecutors appointed under sub-sections (1) to (6) of Section 24 of the Cr.P.C have a prior right to prosecute the accused in trials and unless and until there is some cogent reason or special circumstance which satisfies the State Government that Special Public Prosecutor needs to be appointed in public interest, such an appointment cannot be made. Thus, the power to appoint Special Public Prosecutor under Sub-section (8) of Section 24 of the Cr.P.C. has been made subservient to the power which is exercised by the State in making appointment of public prosecutor under sub-sections (1) to (6) of Section 24. The word ‘Public Prosecutor’ has been defined in sub-section (u) of Section 2 of the Cr.P.C which reads as under: 45

“Public Prosecutor” means any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor”. A bare perusal of the provisions of Section 24 of the Cr.P.C would lead to the conclusion that public prosecutor can be appointed under sub-section (1) or sub-section (2), or sub-section (3) or sub-section (6), keeping in mind the provisions of sub-sections (4) and (5), and for such appointment, the eligibility criteria is provided under sub-section (7), whereas sub-section (8), is an independent provision which confers power upon the Central Government or State Government, as the case may be, to appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor. The proviso attached thereto permits the victim also to engage an advocate of his choice to assist the prosecution. The eligibility for appointment as a public prosecutor or additional public prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6) requires that such a person has been in practice as an advocate for not less than seven years, whereas for appointment as Special Public Prosecutor, the requirement is that the person should 46

have been in practice as an advocate for not less than ten years. The mechanism, the eligibility and the procedure which have been provided under sub- sections (1) to (6) for appointment of public prosecutor and additional public prosecutor or assistant public prosecutor is entirely different as against the manner in which Special Public Prosecutor is appointed under sub-section (8). Normally public prosecutors appointed under sub-sections (1) to (6) conduct the trials or pursue the appeals and other proceedings on behalf of the Government, but the Central Government as well as the State Government, as the case may be, have been given exclusive powers under sub-section (8) to appoint Special Public Prosecutor. It is in fact the satisfaction of the Central Government or the State Government to appoint such Special Public Prosecutor whom it finds appropriate and fit to undertake the prosecution, which appointment does not necessary call for a scrutiny by the Court, unless of course it is shown and established beyond doubt that such an appointment would be injurious to the accused and he would not have a fair trial, or that the appointment is absolutely arbitrary. 47

The requirement of higher length of practice i.e., 10 years as an Advocate for being appointed as Special Public Prosecutor with a different methodology of appointment, makes him a different class as against the Public Prosecutor appointed under sub-sections (1), (2), (3) and (6) of Section 24 of the Cr.P.C. The appointment under sub-section (8) depends totally upon the discretion of concerned Government. A Special Public Prosecutor is appointed only for the purpose of any case or class of cases and his appointment cannot be taken to be a regular appointment. All ethics of criminal law and criminal jurisprudence including restraints and norms under the Advocate Act and the Bar Council of India Act would equally apply on him whether such a Special Public Prosecutor is a designated Senior Advocate or not. In the appointment of Special Public Prosecutor under sub-section (8), the accused would have no role, nor can he challenge the appointment on the ground that there was no reason to make such appointment. Of course such an appointment can be challenged on the ground that the Special Public Prosecutor so appointed is biased or that he has got some personal 48

interest in the case or he nurtures some personal grudge against the accused, or that such an appointment was so unwarranted that it cannot be termed as fair but only arbitrary. It is always to be taken care of that such allegations can very frequently and easily be made by the accused against the Special Public Prosecutor whenever appointed by the Government and, therefore, it further makes obligatory on the part of the accused, who challenges the appointment on any ground including the aforesaid, to establish those allegations before the Court by some cogent and admissible evidence and circumstances which, if taken into consideration, may lead to the said conclusion. Having noted the observations made in the case of P.G. Narayankutty (supra) that engagement of a leading lawyer by the accused cannot be a ground for the appointment of a Special Public Prosecutor, we would like to observe, with deep respect, that fair trial is not only the right of the accused but that of the victim also, may be in a given case where the accused has engaged a leading criminal lawyer, the concerned Government feels that it involves complicated questions of facts and / or law, and that the services of a Special Public Prosecutor would be necessary for a free and fair trial, such appointment can be made. 49

As a matter of fact, when under sub-section (8) of Section 24, the concerned Government is empowered to appoint a Special Public Prosecutor in a case, by pick and choose, in which appointment recording of reasons, is also not necessary, the discretion of the Government in appointing a Special Public Prosecutor in a case where a leading lawyer is engaged by the accused, to match his skill, cannot be doubted. Such an appointment will not be for securing conviction of accused at all costs, but would only be a component of independent, free and fair trial, fair to both i.e. the accused as well as the victim.

It cannot be presumed by any stretch of imagination that Special Public Prosecutor can be appointed only for securing conviction of the accused irrespective of the evidence being available on record to the contrary, which may allow acquittal of the accused in a given case. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent, as observed by the Apex Court in the case of Preeti Gupta and another versus State of Jharkhand and another reported in (2010) 7 SCC 667.

In the case of Sidhartha Vashisht @ Manu Sharma vs. State (N.C.T. of Delhi), reported in AIR 50

2010 SC 2352, their lordships of the Supreme Court, commenting upon the role of public prosecutor, observed that a public prosecutor has wider set of duties than to merely ensure that the accused is punished, the duties of ensuring fair play in the proceeding, all relevant facts are brought before the Court in order for the determination of truth and justice for all the parties including the victims. These duties do not allow the prosecutor to be lax in any of his duties as against the accused. It need not be reiterated and affirmed that the Government, while appointing a Special Public Prosecutor, shall have to consider the aforesaid factors.

In the case of K.V.Shiva Reddy (supra), the learned Single Judge of Karnataka High Court, after giving the findings as discussed above, did given liberty to the third respondent i.e. the victim, to approach the Government for appointment of a Special Public Prosecutor and further directed that if such a request is made, the Government shall consider the same in accordance with law and in the light of the observations made in the judgment. This means that despite the Court, having come to the conclusion that the appointment of the Special Public Prosecutor 51

cannot be made in mechanical manner, was apparently convinced that it was a case where such a request could be made, but that should be dealt with in a manner, as observed in the said judgment.

The power to appoint Special Public Prosecutor, thus, cannot be made dependent upon any particular cause or reason, nor can it be made only only on the request made by any party, complainant or victim, but has to be appointed by the concerned Government as per its own discretion, considering the requirements thereof, may be that the request for appointment of Special Public Prosecutor can also be made to the Government by any person concerned. Such an appointment normally is not open to judicial review unless it is found that it infrings any of the fundamental rights of the accused or is absolutely arbitrary or wholly unfair, or which would defeat the right of fair trial, both either of the accused or that of the victim.”

The Division Bench has also referred to the decision in

Margadarsi Financiers , supra, with approval. 52

In the case of P. Jigesh and another vs. The State of

Kerala (WP(C) No.3369/2013, dated 12.2.2013) a single judge of the Kerala High Court, while dealing with a petition challenging the appointment of a Special Public Prosecutor at the instance of the widow of the deceased, in the criminal case against the persons accused of killing her husband. The court has negated the contention that the procedure prescribed under

Sub-Sections 4 and 5 of Section 28 CrPC would govern the appointment of a Special Public Prosecutor under Sub-section

(8) of Section 24, following an earlier decision of the same court, in the case of Kuriachan Chacko vs. Secretary to

Government (2012(3) KHC 614) to the effect that the appointment of a Special Public Prosecutor under Section 24(8)

CrPC, stands on a different footing and it is in no way controlled by the modalities prescribed under Section 24(4) and

(5) CrPC. 53

Further , with regard to the request made by the widow of the deceased to appoint a Special Public Prosecutor is concerned, it is held thus :

“22. With regard to the request made by the widow of the deceased to appoint a Special Public Prosecutor and the act of the Government in having considered the same leading to Ext.P3 appointment, this by itself is not enough to hold that there is no proper application of mind on the part of the Government in having exercised the power to appoint a Special Public Prosecutor under Section 24 (8) of Cr.P.C. Nothing prevents the close relatives of the deceased to seek for appointment of a Special Public Prosecutor. But the request will be acceded to by the Government, only if there is a public interest or when the case is of sensational nature, as contained in Clause (a) of the relevant Government Circular dated 25.3.1992 extracted in paragraph 5 of the decision rendered by the learned Judge of this Court in Shibu N.N. v. State of Kerala (2010(2) KLD 601) (cited supra). The fact that the case happens to be highly sensational is discernible from the pleadings and proceedings in the case. So also is the position, with regard to the extensive public interest involved, as 54

discussed hereinbefore, necessitating constitution of a 'Special Investigation Team' headed by the Additional Director General of Police, State of Kerala and several other officers under him. The rights and liberties of the 'victim' to assist the prosecution, even in a case where a Special Public Prosecutor has been appointed under Section 24(8) Cr.P.C., are evident from the recently introduced 'proviso' to Section 24(8) which reads as follows :

"24(8) 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 than ten years as a Special Public Prosecutor;

Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section."

This Court does not find anything wrong on the part of the Government for having decided to appoint a Special Public Prosecutor, after considering the request made by the widow of the deceased and also considering the element of public interest/sensational nature of the case involved.” 55

In the light of the above, we may firstly consider the sequence of events and the manner in which the appointment of the third respondent has been made, in the present instance, and whether there is any irregularity in the same warranting intervention of this court.

The file pertaining to the subject matter is made available to the court, by the Additional State Public Prosecutor . A perusal of the same indicates that a request was made by the CAO of the

Mutta, by a letter dated 31.12.2011, addressed to the Director,

Department of Prosecutions and Government Litigation,

Bangalore, that with regard to the pending criminal case in CC

686/2011, pending on the file of the Court of the Judicial

Magistrate (First Class), Kumta, which was in respect of a fake compact disc compiled by the accused, targeting the pontiff of the Ramachandrapura Mutta, being a sensitive case and which had been sensationalized, it was stated that innumerable followers of the pontiff had expressed that the Additional 56

Public Prosecutor entrusted with the matter may not be capable of conducting the case effectively and hence it was specifically requested that the third respondent, who was then a Public

Prosecutor, be appointed as a Special Public Prosecutor to conduct the case. It was also stated that the third respondent had orally consented to act as such.

As per letter dated 23.1.2012, the Director General and

Inspector General of Police had, on being appraised of the matter by the State, has requested the Director of Prosecutions to obtain a letter of consent from the third respondent in respect of such proposed appointment.

The Director of Prosecutions has by a letter dated

6.2.2012, forwarded the consent letter obtained from the third respondent for further action by the Department of Home

Affairs of the State Government.

On 17.2.2012, the Principal Secretary, Department of

Home Affairs, had approved the appointment. The appointment order and a notification in this regard was to be issued. 57

However, Ashok Naik, the third respondent, who was already in service as an Additional Public Prosecutor,

Chikmagalur, in the cadre of Public Prosecutors of the State had opted for voluntary retirement from service, with effect from 29.2.2012.

In view of this development, the Principal Secretary,

Department of Home Affairs, by a letter dated 13.3.2012, sought the opinion of the Director of Prosecutions – as to whether the appointment of the third respondent could be made even after his retirement and if so on what terms.

The CAO of the Mutta having learnt of the above development, had, by a letter dated 14.3.2012, addressed the Principal Secretary,

Department of Home Affairs, offering to meet the expenses towards the fees and remuneration of the third respondent – on his appointment as a Special Public Prosecutor.

The Director of Prosecutions, by letter dated 29.3.2012 has forwarded the proposal for appointment of the third respondent, after his retirement as on 29.2.2012, with the added 58

condition that the fees payable for his services as the Special

Public Prosecutor, shall be borne by the Mutta.

It was in this background that the matter was again considered and the proposed appointment was approved by the

Principal Secretary, Department of Home Affairs, as on

13.4.2012, on the condition that the fees payable to the third respondent for his services, would be borne by the Mutta .

It is thus seen that there was a request made on behalf of the “victim”, namely, the pontiff of the Mutta, to the effect that the case having attained much publicity was said to be viewed with much concern, about the ability of the Public Prosecutor in- charge of the case and as to its effective prosecution.

Though it was argued by the learned counsel appearing for the third respondent that one of the reasons for the specific request was that the third respondent was already familiar with the case, the record is silent on this aspect. The request is not made on that footing, nor have the officials of the State Government opined that it may be an added qualification. But the fact that 59

he was already a Public Prosecutor on the cadre of Public

Prosecutors of the State Government, as on the date of his appointment which was initially approved, does not indicate that the State Government was going out of its way to appoint a person with an agenda to ensure the persecution and conviction of the accused by means fair or foul. No such presumption arises. The request made on behalf of the complainant does not appear to be unusual or out of place, it is prompted by a strong apprehension of the accused not being effectively prosecuted.

This concern cannot be characterized as a thirst for blood or that it was made in order to ensure a definite conviction. This is especially so when it is not the case of the petitioners that the third respondent has a personal agenda and carries a grudge or is biased against them for other reasons and hence is likely to overlook professional ethics and his legal responsibility and duty as a Prosecutor acting on behalf of the State, merely because he has been appointed at the behest of the complainant.

It cannot be ignored that there is a presiding officer of the court 60

who will be aware of every move of the Public Prosecutor and it is expected that any misdemeanor, in the course of the proceedings, would attract the appropriate response, to adequately protect the accused against any possible malpractice.

There is unanimity in the opinion expressed by courts, as seen from the case law, that in the appointment of a Special

Public Prosecutor under sub-section (8) of Section 24, CrPC, the accused would have no role, nor can there be a challenge to such appointment on the ground that there was no reason to make such appointment. It may possibly be challenged, however, on the ground the Special Public Prosecutor, so appointed, is biased or that he has some personal interest in the case, or that such appointment is demonstrably unwarranted and arbitrary. But it is obligatory on the part of the person challenging such appointment on any such ground, to establish the allegations to that effect by appropriate pleadings and material in support thereof. In the present case on hand, there are no such circumstances pleaded or established. A 61

dispassionate examination of the sequence of events leading up to the appointment of the third respondent does not warrant the intervention of this court as prayed for.

The strong reliance sought to be placed by Shri Jois, on the decision in Shiva Reddy’s case, does not advance the case of the petitioners at all. In the facts of that case, as found by this court, the appointment of the Special Public Prosecutor was at the instance of an MLA of the constituency, who had nothing to do with the crime in question. There was no representation made by the widow of the deceased, whose husband was alleged to have been murdered, seeking such appointment. This court had also taken exception to the stance adopted by the named Special

Public Prosecutor, in the proceedings before this court. The observations were as follows:-

“38. The second respondent is appointed at the instance of the MLA who has nothing to do with the crime in question. In the statement of objections he has stated that he is appointed after detailed inquiries made through the Deputy Director of Prosecution and also through the representation given by the deceased wife Surya 62

Kalavathi, which is not borne out from the record. He has referred to the political rivalry in the Taluk and has dragged the name of the present sitting MLA who was also the former speaker and alleges that the wife of the deceased has no confidence even on the Government since sitting MLA and Ex-speaker of Karnataka is also one of the accused, who is competent to manage things. The third respondent in her objection statement has not alleged these things, as on the date of appointment of the second respondent, Sri G.K. Venkatashiva Reddy was the MLA and on his request the appointment was made, and the facts pleaded for justifying the appointment are subsequent events to appointment. Therefore, the second respondent is acting as a spokes person of not even of the complainant but that of the MLA who got appointed him and is bent upon persecuting the accused and wants a conviction at any cost. The statement made by him clearly demonstrates that he is unable to prosecute the case with detachment. He has prejudices, preconceived notions, bias and hostility against the accused. Though he may not have his own axe to grind, he has allowed himself to be used by the MLA to fight his political battle in the Court under the garb of a Public Prosecutor. The records and the statement of objections speaks for itself. Realising his folly in exposing himself in the aforesaid manner, a memo was filed to withdraw the statement of objections. It is relevant to notice that the second respondent has served as a Public Prosecutor earlier. He ought to know his status and 63

role better. The allegations in the statements of objections therefore cannot be considered as unintentional or born out of inexperience. Moreover the writ petition do not contain any personal allegations against him. In spite of the same not only he defends his appointment, which was totally unwarranted, but makes allegations against the accused and his mentors, bringing in politics and political rivalry to the fore, thus disentitling him to be appointed as a Special Public Prosecutor. Therefore, his appointment cannot be sustained.”

On the other hand, the observations made in that case amply justify the appointment made in the present case on hand.

“ …….In the absence of a specific request from the complainant and a consent for such appointment by the second respondent how an order came to be passed appointing second respondent as the Special Public Prosecutor is not discernible from the records……” xxx “….It did not notice that no request for such appointment came from the relatives of the victims…..” xxx

“ A fair trial does not necessarily mean that it must be fair only to the accused. It must be fair to the victim 64

also. She has as much right as the accused to represent her case effectively before the Court. If she feels the representation for the State is comparatively less effective and may also be easily tampered with through a variety of nefarious influences, and that the accused are represented by a leading Criminal Lawyer and feels impelled to engage a Counsel of her own choice in whose competence and probity she has full faith and approaches the State to engage a Counsel of her own choice, the Government is bound to consider such request and pass appropriate orders in the light of the observations made above and in accordance with law. The quashing of the impugned order would not come in the way of the Government exercising their power under Section 24(8) of the Code afresh.”

There is however, one aspect of the matter, namely the remuneration payable to respondent no.3 which requires to be addressed with reference to the propriety and whether the same is in conformity with the Rules.

The appointment of the third respondent is on the condition that the fees payable to him shall be borne by the

Complainant. This circumstance is one of the grounds urged in the petition as indicating, that it is patently a bounty offered by 65

the Mutta to the Special Public Prosecutor to ensure the conviction of the accused by every and all means at his disposal and that the employment of foul and unfair means cannot be ruled out, as the Special Public Prosecutor would feel obliged to do the biding of his paymaster, who is shown to be baying for the blood of the accused. This having been facilitated by the

State Government leads to an aberration vitiating the appointment.

The appointment of the third respondent as the Special

Public Prosecutor, is with reference to Section 24(8) CrPC, read with Rule 30 of the KLO Rules.

Section 2(15) of the KLO Rules defines a “Special

Counsel“ thus :-

“ “Special Counsel” means an Advocate specially appointed by the Government to conduct any civil or Criminal case or any class of civil or Criminal cases for and on behalf of the State in the High Court or any other Civil or Criminal Court in the State” 66

Chapter VI of the KLO Rules deals with the appointment

and duties of Public Prosecutors. Remuneration payable to the

said officers is as specified under Schedule V to the said Rules.

Chapter VIII of the KLO Rules provides as follows:-

“CHAPTER VIII Special Counsel 30. Special Counsels – (1) Subject to these rules the Government may appoint any Advocate as a Special Counsel either for the conduct of a Civil or Criminal case or any appeal or proceedings connected therewith, pending in a Court either within the State or in any other State or in the Supreme Court or in any High Court in the country. (2) Before making such appointment the Government may consult the Advocate General if the appointment is to conduct a civil case or appeal and the Director of Prosecutions if it is to conduct a Criminal case or appeal. (3) Remuneration payable to a Special Counsel shall be such as may be decided by Government in each case having regard to the nature of the case.”

From a reading of the above, the requirement of consultation by the Government with the Director of 67

Prosecutions, in so far as the appointment of the third respondent is seem to be complied with. Though there appears to be no prohibition against the decision taken by the State

Government, to impose a condition that the appointment of the third respondent shall be subject to payment of his fees by the

Mutta. The caution sounded in Shiva Reddy’s case, though not

with reference to the above Rule, would apply with equal force

in the present case as well.

“32. In the matter of remuneration payable to the Special Public Prosecutor, ordinarily the Special Public Prosecutor should be paid out of the State funds even when he appears in support of a private complainant. But there may be some special cases where Special Public Prosecutors remuneration may be collected from private source. The rate of fees should be prescribed and the complainant should be called upon to deposit the fees in advance to the Government and the Special Public Prosecutor be paid out of the said amount by the Government. To leave the complainant to pay to the Special Public Prosecutor would indeed not be appropriate. If he looks to a private party for his remuneration, his capacity and ability to perform 68

his role as Public Prosecutor properly will be endangered. Government cannot appoint Special Public Prosecutor on such terms abdicating their financial responsibility or directing him to receive his remuneration from any private individual. Then it introduces an advocate-client relationship, a personal element from which the Public Prosecutor must be considered immune. He is above the personal loyalty. He does not have a dual capacity.“

This bench fully endorses the above view.

The petition is allowed in part. The Government shall quantify the remuneration payable to the Special Public

Prosecutor and direct the fourth respondent to deposit the said amount with the Government, which shall thereafter be paid by the Government to the Special Public Prosecutor.

Sd/- JUDGE KS.*