2015 Supreme(SC) 331

SUPREME COURT OF INDIA
MADAN B. LOKUR, R. BANUMATHI, JJ.
K. Anbazhagan - Appellant
Versus
State of Karnataka and Ors. - Respondents
CRIMINAL APPEAL NO.637 OF 2015 (Arising out of S.L.P. (Crl.) No.1632 of 2015)
WITH
K. Anbazhagan - Appellant
Versus
Selvi J. Jayalalitha and Anr. - Respondents
CRIMINAL APPEAL NO.638 OF 2015 (Arising out of S.L.P. (Crl.) No.2013 of 2015)
Decided on: 15-04-2015

Headnote:Per MADAN B. LOKUR, J.

       (a) Code of Criminal Procedure, 1973 – Sections 24, 25, 25-A and 301(1) – Mr. Bhavani Singh – Not properly appointed Public Prosecutor or Special Public Prosecutor – Hearings before High Court vitiated. (Para 3)

       (b) Code of Criminal Procedure, 1973 – Section 24 and 406 – Transfer of case from one State to another State – Transferor State loses control over the prosecution – The Transferee State has the prerogative to appoint a Public Prosecutor – Supreme Court while ordering transfer may give directions irrespective of the provisions of Section 24 – In absence of such directions provisions of section 24 shall prevail – Purpose of transfer of criminal case from one State to another is to ensure fair trial to the accused as well as the prosecution. (Para 30 to 34)

       (2008)10 SCC 180 – Relied upon

       (c) Code of Criminal Procedure, 1973 – Section 406 – – Transferee State effectively becomes the prosecuting State – It can and does appoint a Public Prosecutor who is answerable to it – Public Prosecutor appointed by one State is not answerable to the government of another State. (Para 55)

       SLP (Criminal) No. 5368/2008 – Referred

       (d) Code of Criminal Procedure, 1973 – Section 406 – Transfer of case – Case transferred to Karnataka to ensure fairness of trial – Limited only to the conduct of a fair trial and nothing beyond it – Appointment of Mr. Bhavani Singh as the Special Public Prosecutor came to an end on the conclusion of the trial before the Special Court. (Para 62, 63, 64)

       (e) Code of Criminal Procedure, 1973 – Section 301(1) and 24(1) and 24(8) – Appointment of Mr. Bhavani Singh authorizing him to represent prosecution only before the Special Court and not in the High Court – Correctly reflecting intent of Supreme Court – Mr. Singh had no authority to conduct appeals in the High Court. (Para 67, 75, 76, 96)

       (f) Code of Criminal Procedure, 1973 – Section 301(1) and sections 24, 25 and 25-A – Section 301(1) enforces the ‘jurisdictional’ or ‘operational’ limit – Enables the Public Prosecutor and Assistant Public Prosecutor to appear and plead without written authority only within that ‘jurisdictional’ or ‘operational’ limit, provided the Public Prosecutor or the Assistant Public Prosecutor is in charge of that case – The converse is not true – Public Prosecutor, Assistant Public Prosecutor or Special Public Prosecutor in charge of a particular case cannot appear and plead in that case without any written authority outside his or her ‘jurisdiction’ whether it is the High Court or the district or the court of a Magistrate – Section 301(1) of the Code maintains a case specific character and read with Sections 24, 25 and 25-A maintains a court or district specific character as well. (Para 89, 90)

       [1967] 2 SCR 347 – Distinguished

       (2004) 3 SCC 767; (1999) 5 SCC 138; AIR 2001 SC 3435; (2004) 3 SCC 767 – Referred

       (g) Code of Criminal Procedure, 1973 – Section 301(1) – Crucial word is ‘case’ and not ‘any court’. (Para 95)

       (h) Code of Criminal Procedure, 1973 – Section 301(1) – Pubic Prosecutor appointed for trial court only – State of Karnataka ought to appoint Mr. Bhavani Singh specifically for appeals before High Court – Alternatively another prosecutor could have been appointed – Yet another alternative was to obtain a clarification from Supreme Court – State of Karnataka doing nothing. (Para 100)

       (i) Code of Criminal Procedure, 1973 – Section 301(1) and 24 – Case – Should be given ordinary and natural meaning and in the context in which it is used – Should not be extended to include appeal – Rule 30, Karnataka Law Officers (Appointment and Conditions of Service) Rules, 1977 – Special Counsel and Special Public Prosecutor – Distinct and different. (Para 106, 110)

       (1971) 2 SCC 369 – Distinguished

       (j) Words and phrases – De facto doctrine – Cannot be invoked collaterally – Not applicable in the context of a lawyer representing a litigant – Instantly, validity of appointment of the lawyer is directly attacked – Doctrine not applicable. (Para 114)

       (1981) 3 SCC 132; (1912) 15 Cal L.J 517 – Distinguished

       (k) Code of Criminal Procedure, 1973 – Section 301(1) – Appointment of Bhavani Singh as SPP – Mr. Singh not before the Court – Contention in support of his capability – Capability of Mr. Singh not an issue – Similarly, question whether Mr. Bhavani Singh can or cannot appear for the Directorate of Vigilance and Anti-Corruption, Chennai not in issue – Court refrained from making any comment on such issues. (Para 115, 117, 118)

       (2014) 2 SCC 401; 2012 (4) KAR LJ 635 – Referred

       (l) Code of Criminal Procedure, 1973 – Section 301(1) – Mr. Anbazhagan seeking permission of High Court to assist SPP – No prayer for filing written submission – High Court rejecting application for assistance – Instant prayer before Supreme Court not maintainable – Even otherwise, there is no provision for filing written submission u/s 301(1). (Para 127)

       2004 Crl. L.J. 3881 – Relied upon

       Per R. Banumathi, J.

       (m) Code of Criminal Procedure, 1973 – Section 406 – Transfer of case from one State to another – Supreme Court can direct Transferee Court to appoint Public Prosecutors/Additional Public Prosecutors/Special Public Prosecutors. (Para 15)

       (2008) 10 SCC 180 – Relied upon

       (2004) 3 SCC 767 – Referred

       (n) Code of Criminal procedure, 1973 – Section 24 and 301 – Mr. Bhavani Singh was appointed as Special Public Prosecutor u/s 24 – Being in charge of the case, by virtue of section 301(1), he is authorised to appear and plead without any written authority before any court in which that case is under inquiry, trial or appeal. (Para 29)

       (1999) 7 SCC 467 – Relied upon

       (o) Code of Criminal procedure, 1973 – Section 24 and 301 – Mr. Bhavani Singh was appointed as Special Public Prosecutor u/s 24 – Being in charge of the case, by virtue of section 301(1), he is authorised to appear and plead without any written authority before any court in which that case is under inquiry, trial or appeal. (Para 29)

       (1999) 7 SCC 467 – Relied upon

       (p) Code of Criminal Procedure, 1973 – Section 24(8) and 301(1) – Interpretation – Bothe should be interpreted along side. (Para 37)

       (q) Code of Criminal Procedure, 1973 – Section 301(1) – Section 301(1) gives substantive right to the parties – It also gives substantive rights to Public Prosecutor who is ‘in charge of a case’ to appear and plead without having any written authority. (Para 40)

       (1967) 2 SCR 347 – Relied upon

       (r) Code of Criminal Procedure, 1973 – Section 24 (1), (2) and (3), and (8) – Specific role attributed to the Special Public Prosecutor u/s 24(8) – Distinguished from task of Public Prosecutors appointed u/s 24(1), (2) and (3) – No anomaly. (Para 43)

       (s) Code of Criminal Procedure, 1973 – Section 24(8) and Section 301 – Case – Has to be interpreted only contextually – Term ‘case’ has wider and contextually different meaning u/s 301(1). (Para 45, 46, 47, 48)

       (1970) 1 SCC 665 – Relied upon

       (t) Code of Criminal Procedure, 1973 – Section 301(1) – Special Public Prosecutor will continue to appear and plead before appellate forum. (Para 50, 51)

       Facts of the case:

       The question for consideration is whether Mr. G. Bhavani Singh appointed as a Special Public Prosecutor in the trial of the case against Ms. Jayalalithaa and other accused persons in the Special Court in Bengaluru was entitled to represent the prosecution in the appeals filed in the Karnataka High Court by the accused persons against their conviction.

       This case relates to the cases of disproportionate accumulation of income by Ms. Jayalalithaa. Special court was constituted for hearing of the case.

       During pendency of the cases she was elected and became Chief Minister. Her appointment as Chief Minister was held invalid. As a result she ceased to hold the office of Chief Minister of Tamil Nadu.

       She again won the bye-election and became Chief Minister.

       The cases were transferred to Karnataka with the direction that the State of Karnataka should constitute a Special Court to try the transferred cases in Bangalore (now Bengaluru); that a Special Judge be appointed to the Special Court to try the transferred cases on a day to day basis; that the State of Karnataka should, in consultation with the Chief Justice of the Karnataka High Court, appoint a senior lawyer having experience in criminal trials as a Public Prosecutor to conduct the transferred cases against the accused persons.

       Pursuant to the directions given by this court, the State of Karnataka, in consultation with the Chief Justice of the High Court of Karnataka appointed Mr. B.V. Acharya as a Public Prosecutor to conduct the case against the accused persons. Mr. Acharya resigned as the Public Prosecutor and in his place the State of Karnataka appointed Mr. G. Bhavani Singh as a Special Public Prosecutor.

       Appointment of Mr. Bhavani Singh as the Special Public Prosecutor was withdrawn by the State of Karnataka.

       The Special Court convicted all the accused persons including Ms. Jayalalithaa.

       the Principal Secretary to the Government of Tamil Nadu passed an order authorizing the Directorate of Vigilance and Anti-Corruption, Chennai to engage the services of Mr. Bhavani Singh, Special Public Prosecutor to appear before the High Court of Karnataka for and on behalf of the said Directorate in any appeal/bail petition, any other petition that may arise out of the conviction of the accused persons.

       Mr. Anbazhagan filed a writ petition in the Karnataka High Court seeking a direction to the State of Karnataka to appoint any other senior lawyer as the Special Public Prosecutor in the pending criminal appeals.

       The High Court held that it would be appropriate if the proceedings are allowed to continue notwithstanding the challenge as to the validity or otherwise of the appointment of respondent No. 5 [Mr. Bhavani Singh], as there is no discernible prejudice caused by his continuance as the Special Public Prosecutor for the time being. This is especially so, when the proceedings are directed by the Honourable Supreme Court to be conducted on a day to day basis, before a Special Bench and with expedition. Hence, to pronounce on the validity of the disputed appointment and to hamper the proceedings would be counter productive and undesirable. It is open either for the State Government of Karnataka or the petitioner himself, to seek further clarifications from the Supreme Court as to the procedure that is to be followed in making appointment of a Special Public Prosecutor and an assistant or assistants, if any, to represent the State of Karnataka.

       The writ appeal was partly allowed.

       Finding of the Court:

       Per Madan B. Lokur, J.

       Impugned judgment cannot be sustained.

       Hearing of the appeals in the High Court stands vitiated since the prosecution was not represented by an authorized person.

       Per R. Banumathi, J.

       The Single Judge and the Division Bench rightly dismissed the Writ Petition No.742/2015 and Writ Appeal No.260/2015 (GM-RES) and the impugned judgment warrants no interference.

       Result: In view of difference of opinion, the matter referred to a larger Bench.