2008 Supreme(Kar) 535

High Court of Karnataka
(Circuit Bench At Dharwad)
THE HONOURABLE MR. JUSTICE RAVI MALIMATH
Sri. Jagadish Chidanand Kore
Versus
The State of Karnataka, Department of Law, Rep. by its Secretary and Others
Writ Petition No.30393 of 2008 (GM-RES)
Decided on : 29-08-2008

Headnote:CODE OF CRIMINAL PROCEDURE, 1973 - Section 24(8): [Ravi Malimath,J] Challenge as to appointment of Public Prosecutor - Notification appointing of 2nd Respondent as a Public Prosecutor at the request of the 3rd Respondent - Writ Petition filed after lapse of 14 months - Grievance of the petitioner is that the appointment of 2nd Respondent as Public Prosecutor is due to the fact the injured person is politically influential and not in Public Interest - Plea of violation of Section 24(8) of Cr.P.C. - Locus Standi of the accused to question appointment of a Public Prosecutor - Object of criminal justice system - Justice to victims - Victim’s right to participate in criminal trial - Held, The accused does not have a right to question an appointment of an Advocate of the choice of the complainant. The right to a fair trial is a fundamental right and it cannot be restricted to the accused alone. The right to a fair trial is the fundamental right of every citizen of this Country and more so in the case of a complainant or a victim who has suffered. When the complainant/victim makes an application for an appointment under Section 24(8) and the same is granted, the accused would not have a locus-standi to question the said appointment. The appointment having been made at the request of the complainant/victim cannot be questioned by the accused on the ground of absence of a public interest or otherwise. The appointment made under Section 24(8) at the behest of the complainant or the victim, is alien to public interest. It is the interest of the complainant/victim that needs to be addressed when an appointment is made. The petitioner accused therefore would have no locus-standi to maintain a petition for questioning the appointment made under Section 24(8) when made at the behest of the complainant/victim. When the complainant/victim exercises his right under Article 14 to engage a counsel of his choice the same needs to be acknowledged and accepted and cannot be denied to him. The State is duty bound under law to accept the request of the complainant or the victim by appointing a lawyer of his choice. Failure to do so, on the contrary would lead violation of Article14 resulting in gross miscarriage of justice. Much water has flown between (1916) Maung Pu, and the 2003 Recommendations made by Dr. Justice V.S. Malimath. The need of the hour is to provide the required attention to the victim. The victim cannot be kept out of the proceedings, especially when the same has commenced by him and for him. Even though the rights of the accused are well addressed based on sound legal principles, the victim however has been completely ignored. Section 24(8) therefore comes to the aid of the complainant/victim to protect his rights. This right is the Individual right of the victim. The victim’s rights therefore, should not only be enforced but is also a State obligation to do so. The writ petition has been filed on 11th August 2008 that is after more than 14 months since the date of the impugned order. Even though the petitioner was aware of the impugned order he has chosen to remain quiet and has not challenged the same at the earliest point of time. The proceedings before the Trial Court are in-progress and it is only after14 months have lapsed since passing of the impugned order and the Special Public Prosecutor having taken charge of the case, that the present petition is filed. There is no "Sufficient Cause" shown to condone delay in preferring the Writ Petition. Writ Petition is Dismissed.

       CONSTITUTION OF INDIA - Articles 226 & 227: [Ravi Malimath,J] Challenge as to appointment of Public Prosecutor - Notification appointing of 2nd Respondent as a Public Prosecutor at the request of the 3rd Respondent - Writ Petition filed after lapse of 14 months - Grievance of the petitioner is that the appointment of 2nd Respondent as Public Prosecutor is due to the fact the injured person is politically influential and not in Public Interest - Plea of violation of Section 24(8) of Cr.P.C. - Locus Standi of the accused to question appointment of a Public Prosecutor - Object of criminal justice system - Justice to victims - Victim’s right to participate in criminal trial - Held, The accused does not have a right to question an appointment of an Advocate of the choice of the complainant. The right to a fair trial is a fundamental right and it cannot be restricted to the accused alone. The right to a fair trial is the fundamental right of every citizen of this Country and more so in the case of a complainant or a victim who has suffered. When the complainant/victim makes an application for an appointment under Section 24(8) and the same is granted, the accused would not have a locus-standi to question the said appointment. The appointment having been made at the request of the complainant/victim cannot be questioned by the accused on the ground of absence of a public interest or otherwise. The appointment made under Section 24(8) at the behest of the complainant or the victim, is alien to public interest. It is the interest of the complainant/victim that needs to be addressed when an appointment is made. The petitioner accused therefore would have no locus-standi to maintain a petition for questioning the appointment made under Section 24(8) when made at the behest of the complainant/victim. When the complainant/victim exercises his right under Article 14 to engage a counsel of his choice the same needs to be acknowledged and accepted and cannot be denied to him. The State is duty bound under law to accept the request of the complainant or the victim by appointing a lawyer of his choice. Failure to do so, on the contrary would lead violation of Article14 resulting in gross miscarriage of justice. Much water has flown between (1916) Maung Pu, and the 2003 Recommendations made by Dr. Justice V.S. Malimath. The need of the hour is to provide the required attention to the victim. The victim cannot be kept out of the proceedings, especially when the same has commenced by him and for him. Even though the rights of the accused are well addressed based on sound legal principles, the victim however has been completely ignored. Section 24 (8) therefore comes to the aid of the complainant/victim to protect his rights. This right is the Individual right of the victim. The victim’s rights therefore, should not only be enforced but is also a State obligation to do so. The writ petition has been filed on 11th August 2008 that is after more than 14 months since the date of the impugned order. Even though the petitioner was aware of the impugned order he has chosen to remain quiet and has not challenged the same at the earliest point of time. The proceedings before the Trial Court are in-progress and it is only after14 months have lapsed since passing of the impugned order and the Special Public Prosecutor having taken charge of the case, that the present petition is filed. There is no "Sufficient Cause" shown to condone delay in preferring the Writ Petition. Writ Petition is Dismissed.

       CODE OF CRIMINAL PROCEDURE, 1973 - Section 24(8): [Ravi Malimath,J]Appointment of Special Prosecutor - Private Counsel appointed as Special Public Prosecutor at the instance of complainant or victim of crime - Locus Standi of accused to challenge appointment - Held, When the complainant/victim makes an application for an appointment under Section 24(8) and the same is granted, the accused would not have a locus standi to question the said appointment. The appointment having been made at the request of the complainant/victim cannot be questioned by the accused on the ground of absence of a public interest or otherwise. The petitioner-accused therefore would have no locus standi to maintain a petition for questioning the appointment made under Section 24(8) when made at the behest of the complainant/victim. When the complainant apprehends that the accused are represented by leading lawyers and therefore his rights need to be adequately protected by appointment of an Advocate of his choice, the same cannot be denied to him. In the scheme of the Criminal Justice System, the State that assures the victim that it would take charge of his case and that justice would be done. In view of the fact that the victim ha suffered, the victim need not be burdened with, by engaging his lawyer to defend his rights. Since the offence is not only against the victim but also against the society at large the State assumes itself the responsibility of ensuring justice to the complainant or victim, The State is duty-bound under law to accept the request of the complainant or the victim by appointing a lawyer of his choice. A fair and just trial is not only to the accused but also to the complainant and the society. Only because but also complainant has chosen to engage a lawyer of his choice, it cannot be presumed that the trial would not be just or fair. The right to a fair trial is a fundamental right and it cannot be restricted to the accused alone.