State of Andhra Pardesh, Department of Legislative Affairs and Justice vs Margadarsi Financiers rep. By Ramoji Rao

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(AP) 189

B. PRAKASH RAO AND R. KANTHA RAO, JJ.
State of Andhra Pardesh, Department of Legislative Affairs and Justice and another – Appellants
Versus
Margadarsi Financiers rep. By Ramoji Rao and others – Respondents

W.A.1215 OF 2008, WA (SR) 109236 OF 2008,
WP.19231 OF 2008, WA.1254 OF 2008
and
W.A.1498 OF 2008
Decided on : 20-03-2009

Headnote:(A) Criminal Procedure Code, 1973—Section 24(8)—Appointment of Special Public Prosecutor—Qualification—Minimum practice of 10 years as an advocate is the prescribed qualification—Government may appoint any qualified Advocate at its choice—Office of Special Public Prosecutor stands distinctly—It is not a regular appointment—It is only for a particular case or class of cases—Where it felt necessary, option is left to the Government for appointing a Special Public Officer in respect of a special case or class of cases—There is no requirement of consultation or preparation of panel for appointment of a Special Public Prosecutor.(Paras 16 and 20)
(B) Advocates Act, 1961—Section 30—Appointment of Senior Advocate as Special Public Prosecutor is contrary to Section 30—Senior Advocate cannot be appointed as Special Public Prosecutor to file applications and complaints himself against accused—Appointment of Special Public Prosecutor cannot be challenged before Bar Council of India. (Para 24)

Judgement Key Points

This case explores the legal framework governing the appointment of Special Public Prosecutors (SPPs) in India, emphasizing the distinct roles and procedural requirements within the criminal justice system. It highlights that the appointment of an SPP is a discretionary power vested in the government, designed to address specific cases or classes of cases requiring specialized attention. The legal provisions specify that such appointments should be based on the advocate's minimum practice experience and do not necessitate consultation or panel preparation, distinguishing them from regular Public Prosecutor appointments. The case underscores that the office of an SPP is a separate entity, not a regular appointment, and its scope is limited to the case or class of cases for which it is appointed. Furthermore, it emphasizes that the appointment of Senior Advocates as SPPs must adhere to professional conduct rules, which restrict their practice activities, including filing applications or complaints. The case also discusses the importance of maintaining the dignity and ethical standards of the legal profession, asserting that the appointment process must align with statutory provisions to uphold the integrity of prosecutorial roles. Overall, the case reinforces the importance of clear procedural guidelines, professional ethics, and the discretionary nature of prosecutorial appointments in ensuring a fair and effective criminal justice system in India.

JUDGMENT: (B.Prakash Rao)

Since all these matters involve a common questions of law, they are being taken up together for disposal, though each varies on facts.

In WA.1215 of 2008 and WA (SR) 109236 of 2008 the State of A.P is the appellant, filed as against the interim orders of suspending the impugned proceedings by the learned Single Judge in WPMP.No.25088 and 25089 of 2008 in WP.19231 of 2008.

When these appeals came up for hearing, at the request and consent of the counsel on either side, the main writ petition in WP.19231 of 2008 itself was taken up for final disposal.

In WP.19231 of 2008 the petitioners are the Margadarshi Financers and Sri Ramoji Rao, who sought for Writ of Mandamus to declare the impugned proceedings in G.O.Rt.No.315 Law (LA & J. Home-‘A2’) Department dated

19-02-2007 issued by the State Government purportedly in exercise of powers under sub-section 8 of Section 24 of Code of Criminal Procedure 1973 appointing the respondent No.2 as a Special Public Prosecutor under Section

45 T (1) of the Reserve Bank of India Act, 1934 for the purpose of filing of applications and complaints under Section 58 (E) of the said Act and prosecute them, as arbitrary, discriminatory and violative of Articles 14 and 21 of Constitution of India and Section 24 of Code of Criminal Procedure and quash CC.No.540 of 2008 on the file of the I Additional Chief Metropolitan Magistrate, Hyderabad.

The main thrust put forth on behalf of the petitioners in the writ petition was that the procedure as contemplated under sub-clauses 4 and 5 of Section 24 of the Code of Criminal Procedure was not followed, while appointing the 2nd respondent as Special Public Prosecutor under Section 24 (8) of the Code. In support reliance was placed on the decision of the learned Single Judge of this Court in PARAMJIT SINGH SADANA v STATE OF A.P [1]. Further it was contended that the respondent being a designated Senior Advocate, it is not permissible to appoint him as a Special Public Prosecutor in view of the bar under the Rules applicable to Senior Advocates, and therefore, the entire proceedings are vitiated and liable to be set aside.

After hearing the learned Advocate General who sought to rely on the decisions reported in JAYENDRA SARASWATI SWAMIGAL @SUBRAMANIAM v STATE OF TAMIL NADU [2] and that of Patna High Court in SHANKAR SINHA v STATE OF BIHAR [3] the learned Single Judge initially granted interim orders suspending the impugned proceedings, pending disposal of the writ petition. Hence, the appeals.

During the course of hearing of these appeals, as stated above the main writ petition was taken up.

Learned Advocate General pointed out that as against the decision of the learned Single Judge in PARAMJIT SINGH SADANA (Supra 1) the State has preferred regular appeals in WA.1254 of 2008 and WA.266 of 1999. Hence, at their request, these appeals also are taken up for disposal.

Sri C.Padbhanabha Reddy, learned Senior Counsel appearing on behalf of the writ petitioners submitted that the impugned proceedings appointing the respondent No.2 as a Special Public Prosecutor warrants applicability of the procedure as contemplated under Sub-sections 4 and 5 of Section 24 of the Code of Criminal Procedure, and further sub-clause 8 of Section 24

as such, does not prescribe any guidelines except prescribing a requirement of standing at the Bar. Therefore, without following the procedure provided in the preceding clauses, no such appointment can be made. Whereas the present appointment being done without following such procedure, is not sustainable. That apart, it was contended that the respondent No.2 is a designated senior advocate and therefore having regard to the terms, conditions and restrictions imposed under the Rules framed under The Advocates Act, 1961, no such appointment can be made to the post, and therefore, either way the appointment of respondent No.2 is vitiated and liable to be set aside. Further, it was contended that there being

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