(2012) 263 KLR 339 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 20TH DAY OF JUNE 2012/30TH JYAISHTA 1934 WP(C).No. 29355 of 2011 (T) --------------------------- CC.NO.219/2006 of CHIEF JUDL.MAGISTRATE, ERNAKULAM ------------------------ PETITIONER(S): -------------------------- 1. KURIACHAN CHACKO, S/O.P.V.CHACKO, PALACKAL HOUSE, G-288 PANAMPILLY NAGAR, ERNAKULAM. 2. ACHAMMA CHACKO, W/O.P.V.CHACKO PALACKAL HOUSE, G-288 PANAMPILLY NAGAR, ERNAKULAM. 3. LINU JOY, W/O.JOY JOHN, POWATHAIL HOUSE, ASSUMPTION CHURCH ROAD, CHANGANACHERRY. 4. P.V.CHACKO, PALACKAL HOUSE, KURUPPAMTHARA KOTTAYAM. 5. RENISH C.G,S/O.GIRIRAJAN, CHAKALAPADAM,LFC ROAD, KALOOR,KOCHI 6. VINOD V LUKA, S/O.LUKA, VALLOMPARAIL HOUSE, VADAKODU P.O., PUTHIYA ROAD, ERNAKULAM. BY SRI.K.RAMAKUMAR (SR.) ADV. SRI.SAJU J PANICKER SRI.N.R.SANGEETHARAJ RESPONDENT(S): ------------------------------ 1. THE SECRETARY TO GOVERNMENT, HOME(C) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001 2. SRI.BERNAD DEV, THE ASSISTANT COMMISSIONER OF POLICE, NARCOTIC CELL,IDUKKI-685 603 3. SRI.T.P.SEN KUMAR, TRANSPORT COMMISSIONER, THIRUVANANTHAPURAM-695 014 4. SRI.S.SREEKUMAR, ADVOCATE, NEAR ERNAKULAM TOWN NORTH POLICE STATION, KACHARIPADI, ERNAKULAM,KOCHI-682 018 5. SRI. JOSEPH SAJU, ASSISTANT COMMISSIONER OF POLICE, NARCOTIC CELL, ERNAKULAM-682 024 BY SRI.ASAF ALI, DIRECTOR GENERAL OF PROSECUTION THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-06-2012, THE COURT 20/06/2012 DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS:
RESPONDENT'S EXHIBITS:
/TRUE COPY/ P.S.TO.JUDGE sts "C.R." S.S.SATHEESACHANDRAN, J. ----------------------------------------------- W.P.(C).No.29355 of 2011 ----------------------------------------------- Dated this the 20th day of June, 2012 Head Note:- Criminal Procedure Code, 1973 - Section 24(8) - Appointment of Special Public Prosecutor - Can a senior advocate be appointed as Special Public Prosecutor? Held:- There is no specific interdiction either under the Advocates' Act, 1961 or the Bar Council of India Rules or the Rule framed by the Supreme Court or the High Court restraining a senior advocate from being appointed as Special Public Prosecutor under sub-section (8) of Section 24 of the Code. However, such a challenge is set forth on the premise that when a senior advocate is appointed as Special Public Prosecutor by the Government his discharge of functions thereunder would come within the mischief of "act" which he is restricted by the Rules framed by the Bar Council of India. In State of Andhra Pradesh v. Margadarsi Financiers {2009 Crl.L.J. 2705} a Division Bench of the Andhra Pradesh High Court has taken a view that no senior advocate can be appointed as Special Public Prosecutor under Section 24(8) of the Code in view of the bar imposed by the Bar Council of India Rules. Examining the relevant rule of the Bar Council of India Rules it is stated that no senior advocate can be appointed 'straight away' to any office of Special Public Prosecutor. The expression 'to act' defined under the relevant rule of the Bar Council of India Rules takes in 'every act' as normally being expected or done by a regular practitioner or advocate and as such, he has necessarily to appear only through another advocate on record, is the reasoning formed to hold that senior advocate cannot be appointed 'straight away' to such office. The above decision would indicate that if another counsel who is not a designated senior advocate is also appointed along with the Senior Advocate when making an order of appointment of Special Public Prosecutor under sub-section (8) of Section 24 of the Code the mischief falling under the rule, the restriction to 'act' covered under the relevant rules of the Bar Council of India Rules against the senior advocate from functioning as Special Public Prosecutor will not be applicable. Is it logical and reasonable to take such a view in examining the appointment of a senior advocate as Special Public Prosecutor with reference to the restriction imposed to 'act' under the Bar Council of India Rules calls for scrutiny. So long as there is no legal bar in appointing a senior advocate as Special Public Prosecutor, which, no doubt, may be required in the larger public interest involved under special circumstances, is it reasonable to hold that a senior advocate so appointed cannot take up that post and function since he would be violating a restriction imposed under the rules framed by the Bar Council of India. If the expression 'to act' under the Bar Council of India Rules referred to above is to be interpreted as placing any restriction in the appointment of a senior advocate as Special Public Prosecutor, then it has to be stated that so far as the trial of the criminal cases and more so, in criminal appeals, where the power of the appellate court to take evidence, if found so necessary, is unquestionable, in the event of any step taken to record additional evidence, no senior counsel can continue to appear on behalf of the appellant. Restriction imposed by the Bar Council of India Rules in the practice of senior advocate, at the most, may demand appointment of another counsel on record also as a Special Public Prosecutor when a senior advocate is appointed as Special Public Prosecutor under sub-section (8) of Section 24 of the Code. But, it can never be stated that the Government is not empowered to appoint a senior advocate as Special Public Prosecutor; and, to place any impediment thereof will defeat the very purpose for which specific provision has been carved out to meet special circumstances in the interests of justice to secure fair trial with the assistance of an experienced advocate appointing him Special Public Prosecutor for conducting the prosecution on behalf of the State. In that view of the matter, I find, challenge canvassed against Ext.P7(2) order against the appointment of 4th respondent as Special Public Prosecutor for the reason that he is a designated senior advocate is only to be turned down. Prize Chits and Money Circulation Scheme (Banning) Act, 1978 - Section 3, 4 and 5 - Criminal Procedure Code, 1973 - Section 24 - Appointment of Special Public Prosecutor - Where the crime involves allegations of swindling of hefty amount of Rs.450 crores from the general public at large and complaint is made over the manner in which the trial proceeded, by a senior police officer who was directly involved in the detection and registration of a crime, with the Prosecutor entrusted with the case too reporting that there is stifling of the prosecution process pointing out several circumstances, some of them, how the trial is proceeded with and conducted, no exception can be taken over the decision of the Government to appoint Special Public Prosecutor having regard to the larger public interest involved in the prosecution of the case. Criminal Procedure Code, 1973 - Section 24(8) and 24(4) & 5 - Appointment of Special Public Prosecutor - Consultative Process - Appointment of Special Public Prosecutor is prescribed by its own procedure specifically made under sub- section (8) of Section 24 of the Code, and in such appointment procedures under sub-sections (4) and (5) of Section 24 of the Code, which is applicable to the case of Public Prosecutor/Additional Public Prosecutor has no role. J U D G M E N T Petitioners are the accused in a crime, in which after investigation charge was laid against them under Section 3, 4 and 5 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978 {for short "the Act"} and Section 420 of the Indian Penal Code. The case is now pending trial, with evidence partly recorded. Ext.P7(2) order passed by the Government appointing 4th respondent as Special Public Prosecutor in the case is challenged, and the writ petition is to quash the same. A declaration that 4th respondent is ineligible to be considered for appointment as Special Public Prosecutor, and also forbearing the implementation of Ext.P7(2) order and handing over the records of the case to 4th respondent are also canvassed for. 2. According to the petitioners/ accused the crime was registered against them on the direction of the 3rd respondent, who was previously the Inspector General of Police, South Zone, Thiruvananthapuram. While the trial of the case proceeded and after a good number of witnesses were examined, under the instigation and influence of the 3rd respondent, Ext.P7(2) order has been passed to appoint 4th respondent as Special Public Prosecutor. The 3rd respondent has even named the advocate to be appointed as Special Public Prosecutor sending a communication to the Chief Minister, while he continued in a different post on deputation with no role to interfere in the conducting of prosecution of the case in which the trial has already proceeded considerably. Appointment of 4th respondent as Special Public Prosecutor is challenged as having been made in violation of the norms and rules applicable to the appointment of a prosecutor under Section 24 of the Code of Criminal Procedure {for short "the Code"}, and also for the reason that 4th respondent is ineligible and even disqualified from being appointed as Special Public Prosecutor in the case for more than one reason. He is a designated senior advocate who cannot act on behalf of any party and he has no right or authority to advise on evidence since it is forbidden by the rules and as such he cannot be appointed nor function as Special Public Prosecutor, contends the petitioners. Conduct and character of 4th respondent against whom more than on one occasion critical comments touching upon his integrity and fairness have been made by the High Court, is not above board, and on that ground also he is disqualified to be appointed as Special Public Prosecutor, is the case of the petitioners/accused to assail his appointment under Ext.P7(2) order. 3. A counter affidavit has been filed by the 5th respondent Assistant Commissioner of Police, Narcotic Cell, Ernakulam, who is the present investigating officer of the case. Refuting the allegations and imputations raised in the petition challenging the appointment of 4th respondent as Special Public Prosecutor, it is stated that the case involves collection of hefty amount to the tune of Rs.450 crores from public in violation of the Act, and by cheating. The accused putting forth a facade of a scheme viz., "LIS Deepasthambham" made false promises that double the amount invested by purchasing lottery tickets would be provided to the investors, and duped them. Contrary to the scheme projected and in violation of the provisions the Act, the accused who collected hefty amount from the public using such ill- gotten wealth purchased land worth several crores and that too had been sold by them later to another at a much higher price. Extensive public interest is involved in the case since lot of innocent investors had been cheated with false promise and deprived of their valuable money. Further investigation of the crime was found necessary during the course of the trial and, therefore, an application was moved before the court under Section 173(8) of the Code informing and seeking permission to do so. None of the grounds raised in the writ petition to impeach the appointment of 4th respondent as Special Public Prosecutor is sustainable, according to the 5th respondent. 4. I heard learned Senior Counsel Sri.K.Ramakumar, who appeared on behalf of the petitioners, and learned Director General of Prosecutions Sri.Asif Ali, who appeared for respondents 1, 2 and 5. 5. Learned Senior Counsel Sri.K.Ramakumar assailed Ext.P7(2) order appointing 4th respondent as Special Public Prosecutor canvassing the following challenges: (a) That no Special Public Prosecutor can be appointed on the request of a witness in the case (b) In the appointment of 4th respondent as Special Public Prosecutor consultative process prescribed under sub-sections (4) and (5) of Section 24 of the Code has not been followed (c) That no designated senior counsel like 4th respondent can function as Special Public Prosecutor under the Rules framed by the Bar Council of India, and, (d) that 4th respondent has personal disqualifications rendering him unfit to be appointed as Special Public Prosecutor and, therefore, his appointment is unsustainable. 6. Appointment of 4th respondent as Special Public Prosecutor was not on account of any public interest involved in the case, but by the external influence exerted by the 3rd respondent. He was directly involved in registering the crime against the accused, submits the counsel. Third respondent sent Ext.P3 communication to the Chief Minister when he officiated in a deputation post and at a time when he was not in any way connected with the further trial of the case pending before the court setting forth allegations and imputations over the conducting of the prosecution and also taking exception to the orders passed by the court, to urge for appointment of 4th respondent as Special Public Prosecutor in the case. Third respondent was one among the witnesses to be examined in the case and he has no authority or right to seek appointment of Special Public Prosecutor. Nomination of 4th respondent as the advocate to be appointed as Special Public Prosecutor by that witness itself is a circumstance showing that Ext.P7(2) order appointing 4th respondent as Special Public Prosecutor is bad. Ext.P6 order passed by the trial magistrate in which he had made certain drastic comments over the conduct and acts of the 3rd respondent, who is one among the charge witnesses in the case (CW.1), is also referred to by the counsel to contend that in the appointment of 4th respondent there is no public interest, but only the personal interest of the above witness. Though the appointment of Special Public Prosecutor is separately dealt with in sub-section (8) of Section 24 of the Code, such appointment can be made only following the consultative process for appointment of the prosecutor and Additional Public Prosecutor by the State or the Central Government prescribed under sub-sections (4) and (5) of that Section, is the submission of the learned Senior Counsel. Reliance is placed on Narayanankutty v. State of Kerala {1982 KLT 605], Mukul Dalal and others v. Union of India and others {[1988] 3 SCC 144}, and Abdul Khader v. Government of Kerala {1992(2) KLT 948} by the counsel to contend that the appointment of Special Public Prosecutor could be made only when public interest demands it, and not to vindicate the grievance of a private person or a witness to the case. In appointing 4th respondent as Special Public Prosecutor, Government have not followed the consultative process mandated under sub-sections (4) and (5) of Section 24 of the Code, and it has merely acted upon the request of the 3rd respondent, a witness, and the appointment so made against the statutory prescription cannot be sustained, submits the senior counsel. Reliance is placed on Devineni Seshagiri Rao v. Government of Andhra Pradesh and others {2004 Crl.L.J. 52} to contend that the appointment of 4th respondent as Special Public Prosecutor suffers from serious legal infirmity for non-compliance of the statutory prescription demanding consultative process and also for acting upon the request of a witness in making such appointment without following the procedure applicable. Fourth respondent being a designated senior advocate cannot act on behalf of a party, but, only plead, and cannot be appointed as Special Public Prosecutor under sub-section (8) of Section 24 of the Code, submits the counsel. Reference is made to the Rules framed by the Bar Council of India as enjoined under Chapter 49 of the Advocates' Act, imposing certain restrictions on Senior Advocates. No senior advocate can be appointed as Special Public Prosecutor is the submission of the learned senior counsel relying on State of Andhra Pradesh v. Margadarsi Financiers {2009 Crl.L.J. 2705}. Inviting reference to ground 'E' in the petition wherein some critical comments made touching upon the integrity of 4th respondent, which are stated to have been made against 4th respondent in judicial proceedings, are reproduced learned senior counsel contended that 4th respondent is not only ineligible, but even disqualified for consideration to be appointed as Special Public Prosecutor. Imputations against the personal conduct and character of 4th respondent, which to some extent has found expression in judicial proceedings, as noted in ground 'E' of the petition, it is urged, render that respondent unfit to be appointed as Special Public Prosecutor, and on that count also Ext.P7(2) order appointing him as Special Public Prosecutor is liable to be quashed, submits the learned Senior Counsel. 7. Learned Director General of Prosecutions Sri.Asif Ali, resisting the challenges made against Ext.P7(2) order contended that in the facts and circumstances involved in the case where the crime involves collection of Rs.450 crores from innocent investors, public at large, cheating them with false promises and in violation of the provisions of the Act, it can never be stated that no public interest is involved satisfying the requirement of appointment of Special Public Prosecutor. The 3rd respondent cannot be treated as one among the many witnesses cited in the case. He is a responsible senior police officer, who has played a decisive role in the detection and registration of the crime, that too at a time when public at large in the State were swindled of their investments and valuable assets, with false schemes put up by various companies and persons. When it came to his notice that the prosecution of the case was derailed on account of various lapses on the part of the prosecuting agency, with surrounding circumstances generating doubts that it was due to the influence exerted by the accused, the 3rd respondent as a responsible police officer, who was connected with the detection and registration of the crime, though he was then working in a different capacity had brought to the notice of the Chief Minister such lapses, sending Ext.P3 communication. A reading of Ext.P3 communication itself would show that he was only presenting the public interest at large pointing out that very many materials vital for a successful prosecution have not been produced, but withheld from the court. In his communication he suggested the suitability of 4th respondent to be appointed as Special Public Prosecutor to safeguard the interests of the State in prosecution of the case, it is submitted, cannot be viewed as in any way affecting the validity of Ext.P7(2) appointment order. Whatever comments which have been made by the learned Chief Judicial Magistrate against 3rd respondent in Ext.P6 order have been expunged by this court in a proceeding taken against Ext.P6 order by the aforesaid witness, is the further submission of the learned Director General of Prosecutions, pointing out that the comments in such order have been made in an application moved for adjournment by the prosecutor under Section 309 of the Code. At any rate, the comments made under Ext.P6 order against the witness, which have been expunged by order of this court cannot be canvassed for to question the integrity of that witness or Ext.P7(2) order, is the submission of the learned Director General of Prosecutions. In the matter of appointment of Special Public Prosecutor under sub-section (8) of Section 24 of the Code, the consultative process to be followed in the appointment of a Public Prosecutor and Additional Public Prosecutor by the State Government and Central Government under sub- sections (4) and (5) of Section 24 cannot be insisted upon, and in fact, it is not at all warranted, is the submission of learned Director General of Prosecutions. Appointment of Special Public Prosecutor stands on a different footing and the person with the requisite qualification thereunder is appointed to a particular case/cases taking into account the public interest involved, and in such appointment statute has not placed any interdiction that it can be done only after a consultative process as in the case of appointment of a Public Prosecutor and Additional Public Prosecutor, submits the Director General of Prosecutions. So far as the challenge raised that 4th respondent being a designated senior advocate cannot be appointed as Special Public Prosecutor to conduct the case, learned Director General of Prosecutions submitted that the accused are defended by a senior advocate before the trial court and further the Rules framed by the Bar Council of India in no way prohibit a senior advocate from being appointed as Special Public Prosecutor. Reliance is placed on Smt.Saraswati v. Tulsi Ram {AIR 1971 Delhi 110} and Ramesh Kumar v. Ashish Arora {2006 KHC 1671} by the Director General of Prosecutions to urge that the restriction to a senior counsel from "acting" for a party under the rule framed by the Bar Council of India Rules cannot be construed as imposing a restriction in the appointment of a senior advocate as Special Public Prosecutor by the State under sub-section (8) of Section 24 of the Code. At any rate, there is no restriction in the Advocates' Act in making such appointment, provided, the person appointed has the requisite qualification, is the further submission of the Director General of Prosecutions. So far as the personal disqualifications canvassed against 4th respondent to impeach his appointment as Special Public Prosecutor, it is submitted that the references made in ground 'E' of the writ petition relating to the allegations imputed against, or advertance made in the petition and other documents by any party, or the court, in any judicial proceeding cannot be given any value or merit, to question the integrity and honesty of 4th respondent. Other than the references made in ground 'E', which by the nature of itself are thoroughly unacceptable, there is no merit in the challenge made to question the appointment of 4th respondent on any ground of his personal disqualification and when that be so, the petitioners/accused have raised some allegations imputing his conduct and character cannot be given any merit to assail Ext.P7(2) order, submits learned Director General of Prosecutions. 8. The 3rd respondent is only a witness in the case and as such he has no competency to seek the appointment of Special Public Prosecutor, and, Ext.P7(2) order was passed on his request and, therefore, it is vitiated and unsustainable, is the challenge to assail that order. Ext.P7(2) order would reflect that other than a reference to the communication sent by the 3rd respondent, it does not in any way show that the appointment of Special Public Prosecutor in the case was made by the Government without application of mind and without looking into all facts involved including the public interest to be taken care of in the prosecution of the case. The file relating to Ext.P7(2) order has been placed before me, and its perusal shows that the Government getting Ext.P3 communication called for the opinion of the Director General of Prosecutions, who, examining all circumstances recommended for appointment of a Special Public Prosecutor in the case stating that it is necessary to serve larger public interest. The case involves grave offences, and the imputations made indicate that not only large sections of the society, but even the economy of the State would have been seriously affected and put to peril if the money swindling schemes then in vogue at the time of registration of the crime had not been checked with decisive action. 3rd respondent holding a superior post in the police force spearheaded the action against the money swindling schemes carried in violation of the Act and the present case against the petitioners was registered at that point of time when several of such schemes duping innocent investors, public at large, were in operation in the State, is the submission of Director General of Prosecutions. Any communication sent by him to the Chief Minister pointing out the lapse in the conducting of the prosecution and the need for appointment of Special Public Prosecutor to serve larger public interest can be viewed only as the anxiety of a senior police officer, who had a role in the detection and registration of the crime, to ensure that justice does not become a casualty. The 3rd respondent had an active role in the detection and registration of the crime. In Ext.P3 communication he has adverted to various circumstances why the appointment of Special Public Prosecutor for the prosecution is necessary. His suggestion, evidently, got support from the Director General of Prosecutions. Ext.P3 communication sent by the 3rd respondent cannot at all be found fault with. Suggestion made by him that 4th respondent, who was previously the standing counsel for the CBI, is a fit person to be appointed as a Special Prosecutor in the case is no ground to hold that his appointment by the Government under Ext.P7(2) is bad. The Director General of Prosecutions advised the Government for appointment of Special Public Prosecutor pursuant to Ext.P3 communication from the 3rd respondent and the Government after examining all aspects involved to serve larger public interest, passed Ext.P7(2) order. A request has been made by the 3rd respondent for such appointment and he being one among the witnesses in the case, the appointment of 4th respondent as Special Public Prosecutor by the Government is bad, as contended, in the given facts of the case, cannot be accepted. Whatever observations/ comments made by the trial magistrate in Ext.P6 order against the 3rd respondent have been removed by orders of this court in proceedings taken by that respondent, as stated by the Director General of Prosecutions, is not disputed. When that be so, Ext.P6 order, which is seen passed in an application moved for adjournment under Section 309 of the Code, that too by the Prosecutor in charge of the case, against the 3rd respondent cannot be given any value and has to be brushed aside as meritless. 9. In Narayanankutty's case {1982 KLT 605), it has been held that Special Public Prosecutor could be appointed only when public interest demands it and not to vindicate the grievance of private persons such as close relation of a deceased. View so expressed by this court has found approval in Mukul Dalal's case {1988 (3) SCC 144} by the Apex Court. In Abdul Khader's case {1992(2) KLT 948}, view taken in Narayanankutty's case (cited supra) has been reiterated by this court, stating that the appointment of Special Public Prosecutor is to satisfy public interest to meet special situations. Where the crime involves allegations of swindling of hefty amount of Rs.450 crores from the general public at large and complaint is made over the manner in which the trial proceeded, by a senior police officer, 3rd respondent, who was directly involved in the detection and registration of a crime, with the Prosecutor entrusted with the case too reporting that there is stifling of the prosecution process pointing out several circumstances, some of them, how the trial is proceeded with and conducted, I find no exception can be taken over the decision of the Government to appoint Special Public Prosecutor having regard to the larger public interest involved in the prosecution of the case. 10. The next question to be considered is whether consultative process followed in the case of appointment of Public Prosecutor and Additional Public Prosecutor stipulated in sub- sections (4) and (5) of Section 24 of the Code, has to be adhered to in appointing Special Public Prosecutor under sub-section (8) of Section 24 of the Code. Appointment of Special Public Prosecutor, it is to be noted, is under a special circumstance where the Government find it necessary to serve public interest. Sub- section (8) of Section 24 reads thus: The Central Government or the State Government may appoint, for the purpose 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." Appointment of Special Public Prosecutor is only for a case or classes of cases, that alone. In contra distinction to the conditions imposed for appointment of a Public Prosecutor and Additional Public Prosecutor to have a consultative process spelt out in sub-sections (4) and (5) of Section 24 of the Code, no such direction, command or stipulation is made in the case of appointment of Special Public Prosecutor. The only stipulation made under sub-section (8) of Section 24 of the Code in making such appointment is that the person who is so appointed has to put in practice as an advocate for not less than 10 years. Appointment of Special Public Prosecutor cannot be made merely on the asking or to satisfy the demand made by one, who is interested in the prosecution of the case, but only in cases where public interest makes it imperative to have such an appointment to secure the ends of justice. Prosecutor and Additional Public Prosecutor are to be appointed after following the consultative process, and in the Districts from among those included in the panel prepared by the District Magistrate in consultation with the Sessions Judge. Such appointees shall be prosecutors of the State not in respect of one case, but in all cases over the jurisdiction to which the appointment has been made. However, in the case of Special Public Prosecutor appointed under sub-section (8) of Section 24 of the Code he will be prosecutor of the case/cases in which he is appointed specially by the Government. The appointment and conditions of service including payment of fees, term of contract etc., of the Public Prosecutor and Additional Public Prosecutor are regulated by the relevant rules, in the State under the Kerala Law Officers' Appointment (and Conditions of Service and Conduct of Cases] Rules, 1978. In the case of Special Public Prosecutor, no such rule is applicable, but, of course, one or other rule like regulation over fees payable under such rules, can be adopted, if it is so stipulated in the order of appointment. Whereas in the case of Public Prosecutor and Additional Public Prosecutor appointed by the State Government or the Central Government, so long as the appointees continue as such, they cannot take any brief or appear against the respective Government, as the case may be. But, in the case of an advocate appointed as Special Public Prosecutor for a specific case or cases, such an interdiction from appearing against the State in other cases is totally inapplicable. What is the purpose and object behind the appointment of Special Public Prosecutor in a case has also to be taken into account in examining the question whether a consultative process for such appointment, as in the case of appointment of Public Prosecutor and Additional Public Prosecutor is feasible, practicable and necessary. Where public interest demands that a Special Public Prosecutor has to be appointed in a case or classes of cases, what it postulates is ensuring free flow of administration of justice. Such an appointee must have put in practice as an advocate for not less than 10 years. An advocate having such qualification and, more so, suitable for such appointment, cannot be straight away appointed as Special Public Prosecutor unless he has consented to do so. In the event of his appointment as Special Public Prosecutor in a case till that case is disposed of, he has to regulate and adjust his other engagements and, perhaps, even to avoid taking of fresh briefs. If his consent for appointment as Special Public Prosecutor is dependent upon extraneous factors like consultative process to be followed as in the case of Public Prosecutor/Additional Public Prosecutor, many a competent advocate may refuse to give consent for such appointment. Further more, after consultative process is followed, if appointment is denied, then also it may lead to unpleasant situation. Where the appointment of Special Public Prosecutor is intended to serve public interest in view of the special circumstances involved in a case or cases, it pre-supposes that such case or cases may require entrustment of its prosecution to specially skilled and experienced advocate and it cannot be on mere satisfaction of the qualification of the minimum period of practice of the appointee. More than anything else in considering the question whether consultative process in the appointment of Special Public Prosecutor is necessary, what is to be taken note of is that the advocate who is appointed as Special Public Prosecutor acts as a prosecutor only in that case or classes of cases to which the appointment is made and he is not a prosecutor of the State or the Central Government whose conditions of service are governed by statutory rules prescribed. Yet another impracticability of following the consultative process in the appointment of Special Public Prosecutor require to be pointed out. Preparation of a panel for selection and appointment of the Public Prosecutor / Additional Public Prosecutor by the District Magistrate in consultation with the Sessions Judge can have relevance in selecting a suitable advocate in the District concerned. If that consultative process is followed in appointing Special Public Prosecutor under sub-section (8) of Section 24 of the Code to meet special circumstances in a case or classes of cases, empowerment of the Government to make such appointment would be whittled down to considerable extent as the Government have to restrict choice of a suitable person practicing in the district concerned in respect of whom alone the District Magistrate and Sessions Judge of that district can have an effective consultation in the preparation of a panel for making the appointment. When sub- section (8) of Section 24 does not postulate of any impediment and restriction on the Government other than that the person appointed shall have the minimum years of practice stipulated, it has to be treated as a complete Code by itself, in the appointment of Special Public Prosecutor in a case or classes of cases, to serve public interest. The decision rendered in Devineni Seshagiri Rao's case {2004 Crl.L.J. 52} by a Single Judge of the Andhra Pradesh High Court holding that consultative process prescribed under sub-sections (4) and (5) of Section 24 has to be followed in the appointment of Special Public Prosecutor under sub-section (8) of section 24, has been overruled by a Division Bench of that High Court in State of Andhra Pradesh v. Margadarsi Financiers {2009 Crl.L.J. 2705}. I am in respectful agreement with the views expressed by the Division Bench that appointment of Special Public Prosecutor is prescribed by its own procedure specifically made under sub- section (8) of Section 24 of the Code, and in such appointment procedures under sub-sections (4) and (5) of Section 24 of the Code, which is applicable to the case of Public Prosecutor/Additional Public Prosecutor has no role. 11. Can a senior advocate be appointed as Special Public Prosecutor under sub- section (8) of Section 24 of the Code is another question that has to be resolved in the case. Rules prescribed by the Bar Council of India imposing certain restrictions on designated senior advocates have been canvassed to challenge the appointment of 4th respondent under Ext.P7(2) order. Section 16 of the Advocates' Act provides for two classes of advocates viz., senior advocates and other advocates. An advocate who deserves a distinction of being conferred with the status of a senior advocate in view of the standing at the bar with special experience in law, with his consent, can be designated as senior advocate, if the Supreme Court or the High Court has such opinion. In the matter of practice, a designated senior advocate will be subject to such restrictions as may be prescribed by the Bar Council of India. Such restrictions are prescribed by rules in the interests of the legal profession. To examine the challenge raised against the appointment of 4th respondent a senior advocate as Special Public Prosecutor, it is necessary to look into the restriction purportedly imposed under the relevant rule of the Bar Council of India Rules. That rule reads thus: "Senior Advocates shall, in the matter of their practice of the profession of law mentioned in Section 30 of the Act, be subject to the following restrictions:- (a) A Senior Advocate shall not file a Vakalatnama or act in any Court or Tribunal, or before any person or other authority mentioned in Section 30 of the Act. Explanation: "To Act" means to file an appearance or any pleading or application in any Court or Tribunal or before any person or other authority mentioned in Section 30 of the Act, or to do any act other than pleading required or authorised by law to be done by a party in such Court, or Tribunal or before any person or other authorities mentioned in the said section either in person or by his recognized agent or by an advocate or an attorney on his behalf. (b) (i) xx xxx (ii) Where a Senior Advocate has been engaged prior to the coming into force of the rules in this Chapter, he shall not continue thereafter unless an advocate in Part II of the State Roll is engaged along with him. Provided that a Senior Advocate may continue to appear without an advocate in Part II of the State Roll in cases in which he had been briefed to appear for the prosecution or the defence in a criminal case, if he was so briefed before he is designated as a senior advocate or before coming into operation of the rules in this Chapter as the case may be." (c) He shall not accept instructions to draft pleading or affidavits, advice on evidence or to do any drafting work of an analogous kind in any Court or Tribunal, or before any person or other authorities mentioned in Section 30 of the Act or undertake conveyancing work of any kind whatsoever. This restriction however shall not extend to settling any such matter as aforesaid in consultation with an Advocate in part II of the State Roll." There is no specific interdiction either under the Advocates' Act, 1961 or the Bar Council of India Rules or the Rule framed by the Supreme Court or the High Court restraining a senior advocate from being appointed as Special Public Prosecutor under sub-section (8) of Section 24 of the Code. However, such a challenge is set forth on the premise that when a senior advocate is appointed as Special Public Prosecutor by the Government his discharge of functions thereunder would come within the mischief of "act" which he is restricted by the Rules framed by the Bar Council of India. In State of Andhra Pradesh v. Margadarsi Financiers {2009 Crl.L.J. 2705} a Division Bench of the Andhra Pradesh High Court has taken a view that no senior advocate can be appointed as Special Public Prosecutor under Section 24(8) of the Code in view of the bar imposed by the Bar Council of India Rules. Examining the relevant rule of the Bar Council of India Rules it is stated that no senior advocate can be appointed 'straight away' to any office of Special Public Prosecutor. The expression 'to act' defined under the relevant rule of the Bar Council of India Rules takes in 'every act' as normally being expected or done by a regular practitioner or advocate and as such, he has necessarily to appear only through another advocate on record, is the reasoning formed to hold that senior advocate cannot be appointed 'straight away' to such office. The above decision would indicate that if another counsel who is not a designated senior advocate is also appointed along with the Senior Advocate when making an order of appointment of Special Public Prosecutor under sub-section (8) of Section 24 of the Code the mischief falling under the rule, the restriction to 'act' covered under the relevant rules of the Bar Council of India Rules against the senior advocate from functioning as Special Public Prosecutor will not be applicable. Is it logical and reasonable to take such a view in examining the appointment of a senior advocate as Special Public Prosecutor with reference to the restriction imposed to 'act' under the Bar Council of India Rules calls for scrutiny. So long as there is no legal bar in appointing a senior advocate as Special Public Prosecutor, which, no doubt, may be required in the larger public interest involved under special circumstances, is it reasonable to hold that a senior advocate so appointed cannot take up that post and function since he would be violating a restriction imposed under the rules framed by the Bar Council of India. If the expression 'to act' under the Bar Council of India Rules referred to above is to be interpreted as placing any restriction in the appointment of a senior advocate as Special Public Prosecutor, then it has to be stated that so far as the trial of the criminal cases and more so, in criminal appeals, where the power of the appellate court to take evidence, if found so necessary, is unquestionable, in the event of any step taken to record additional evidence, no senior counsel can continue to appear on behalf of the appellant. Restriction imposed by the Bar Council of India Rules in the practice of senior advocate, at the most, may demand appointment of another counsel on record also as a Special Public Prosecutor when a senior advocate is appointed as Special Public Prosecutor under sub-section (8) of Section 24 of the Code. But, it can never be stated that the Government is not empowered to appoint a senior advocate as Special Public Prosecutor; and, to place any impediment thereof will defeat the very purpose for which specific provision has been carved out to meet special circumstances in the interests of justice to secure fair trial with the assistance of an experienced advocate appointing him Special Public Prosecutor for conducting the prosecution on behalf of the State. In that view of the matter, I find, challenge canvassed against Ext.P7(2) order against the appointment of 4th respondent as Special Public Prosecutor for the reason that he is a designated senior advocate is only to be turned down. 12. Fourth respondent suffers from serious disqualifications from being appointed as Special Public Prosecutor is another challenge to question Ext.P7(2) order. Personal disqualification against 4th respondent is canvassed and projected on the basis of certain comments/criticisms stated to have been made against him in judicial proceedings which are adverted to and referred to in ground 'E' in the petition. Petitioners have referred to comments either made by the court or by parties in three cases. Strangely enough, while reproducing the comments/statements purported to have been made touching upon the integrity of 4th respondent, it is not affirmed by the petitioners that such criticisms have been made with notice to 4th respondent, and, after hearing him, exception was taken over the act/acts purported to have been done by him. Fourth respondent is a designated senior advocate of this court. Designation of a senior advocate is undoubtedly an honour bestowed on a member of the legal profession by the High Court. Such designation can be conferred on an advocate only if certain norms prescribed for such honour are fulfilled. Primarily that designation is a recognition of the ability, and more so of the service of the advocate to the legal profession. Fourth respondent continues to be a designated senior advocate. High Court has framed Rules for conferring such recognition titled as "Rules framed by the High Court of Kerala under Section 16(2) of the Advocates' Act (Revised Rules)". The Rules indicate that no member of the profession can be conferred designation of senior advocate unless he satisfies the qualifications prescribed and also his name is approved for such honour by 2/3rd of the Judges of the High Court present in a meeting convened for the purpose. Rule 6 of the above Rules reads thus: "6. The proposal for designation, shall be considered at a meeting of the Honourable the Chief Justice and the other Judges of the High Court. Such proposal shall be considered as accepted only if not less than two-thirds of the total number of Judges present at such meeting decide in favour of accepting the application, by secret ballot." When an advocate has been designated as a senior advocate by the High Court after being satisfied that he fulfills all the criteria to be conferred with such designation in recognition of the services rendered by him in the legal profession, it has to be taken that he is an honourable member of the profession. Petitioners have no case that they have taken any step to revoke the designation of senior advocate conferred on respondent on any ground whatsoever. They have also not produced with the petition the judgments/orders in which comments have been made against 4th respondent to examine whether 4th respondent was heard in the matter and if so, under what circumstances such criticisms happened to be levelled against him. Imputations made against 4th respondent with reference to a counter affidavit in a case by a former Director General of Police, and, in a judgment rendered in the writ petition adverting to an anonymous communication, no comment is required. Allegations raised by the petitioners against 4th respondent to impeach his appointment as Special Public Prosecutor under Ext.P7(2) order on the basis of the comments and criticisms made in the judgment/order/counter affidavit referred to in ground 'E' of the petition cannot be given any value or merit, especially in the backdrop he continues to be a designated senior advocate of this court. Other than a bald averment in the affidavit sworn to by the first petitioner that the statement of facts contained in the writ petition is true to the best of his knowledge, information and belief, there is no assertion or affirmation that whatever comments/criticisms made in the judgments referred to were with notice to 4th respondent and after he was heard, they remain un-effaced. So much so, personal disqualification imputed against 4th respondent, to question his appointment as Special Public Prosecutor made in Ext.P7(2) order cannot be given any merit. 13. Public Prosecutor, though an executive officer, is also an officer of the court, and he is bound to assist the court with his fairly considered view. The court is entitled to have the benefit of the fair exercise of his function. It is well-recognised that public prosecutors "should regard themselves rather as Ministers of Justice assisting in its administration than as advocates". Appointment of Special Public Prosecutor in the case, normally, need not cause any apprehension to the accused in the fair trial of the case. Judicial function of the court demands taking care that executive function of the Public Prosecutor has not been improperly exercised and that it in no way interferes with the normal course of justice for illegitimate reasons or purposes. It is quite apposite to take note of the views expressed by Sir Jenkins, CJ in Ram Ranjan Roy v. Emperor {42 Calcutta 422 = 16 Crl.L.J. 170 = 27 (IC) 54} regarding the role of a Public Prosecutor in criminal trial: "The purpose of a criminal trial is not to support at all costs a theory, but to investigate the offence and to determine the guilt or innocence of the accused; and the duty of a Public Prosecutor is to represent not the police but the Crown, and this duty should be discharged fairly and fearlessly and with a full sense of the responsibility attaching to his position. The guilt or innocence of the accused is to be determined by the tribunals appointed by law and not according to the tastes of anyone else." Fourth respondent appointed as Special Public Prosecutor is expected to and has to function as prosecutor unmindful of the criticisms levelled against his appointment, as his duty is to conduct the prosecution in a manner befitting to his post ensuring fair trial of the case. Challenges against Ext.P7(2) order of appointment of 4th respondent as Special Public Prosecutor in the case are unsustainable and meritless. Writ petition is dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// |
