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IN THE HIGH COURT OF KARNATAKA
M. Nagaprasanna, J.
Mangalpady Naresh Shenoy – Appellant
Versus
State Of Karnataka – Respondent
Writ Petition No. 1045 of 2017 (Gm-Res)
Decided On : 30-09-2021
CRIMINAL PROCEDURE CODE - SECTION 24(8) - APPOINTMENT OF SPECIAL PUBLIC PROSECUTOR - APPOINTMENT OF ADVOCATE WHO HAS APPEARED FOR THE COMPLAINANT EARLIER AS SPECIAL PUBLIC PROSECUTOR - WHETHER SUCH APPOINTMENT IS VALID - HELD, NO - APPOINTMENT QUASHED.
Fact of the Case:
The petitioner, an accused in a murder case, challenged the appointment of the 5th respondent as Special Public Prosecutor by the State Government under Section 24(8) of the Code of Criminal Procedure (CrPC). The 5th respondent had previously appeared for the complainant, the father of the deceased, in several proceedings related to the case, including bail applications and impleading applications. The petitioner apprehended that the appointment of the 5th respondent as Special Public Prosecutor would result in an unfair trial.
Finding of the Court:
The court held that the appointment of the 5th respondent as Special Public Prosecutor was erroneous and unwarranted. The court relied on several judgments of the Supreme Court and the Karnataka High Court, which held that the appointment of a Special Public Prosecutor should be made only when public interest demands it and not to vindicate the grievance of a private person. The court also held that a Special Public Prosecutor should be appointed only if there are special circumstances warranting such appointment, and that the mere fact that the accused in a particular case is engaging a leading criminal lawyer alone cannot be a ground to appoint a Special Public Prosecutor.
Issues: 1. Whether the appointment of the 5th respondent as Special Public Prosecutor was valid, given that he had previously appeared for the complainant in several proceedings related to the case. 2. Whether the apprehension of the petitioner that he would not be subjected to a fair trial in light of the 5th respondent's appointment was well-founded.
Ratio Decidendi: The court held that the appointment of the 5th respondent as Special Public Prosecutor was erroneous and unwarranted because: * The appointment of a Special Public Prosecutor should be made only when public interest demands it and not to vindicate the grievance of a private person. * A Special Public Prosecutor should be appointed only if there are special circumstances warranting such appointment, and the mere fact that the accused in a particular case is engaging a leading criminal lawyer alone cannot be a ground to appoint a Special Public Prosecutor. * The 5th respondent had previously appeared for the complainant in several proceedings related to the case, which created a conflict of interest and raised a genuine apprehension of bias on the part of the 5th respondent.
Final Decision: The court allowed the writ petition and quashed the impugned Government Notification dated 21/12/2016, which appointed the 5th respondent as Special Public Prosecutor. The court also granted liberty to the 6th respondent (the complainant) to approach the Government for the appointment of a Special Public Prosecutor, subject to the observations made and the judgments relied on in the order.
JUDGMENT :
1. Petitioner in this writ petition calls in question the Government Notification dtd. 21/12/2016 issued under sub-sec. (8) of Sec. 24 of the Code of Criminal Procedure appointing one Sri Ravindranatha Kamath/respondent No.5 herein as Special Public Prosecutor and all further proceedings taken up thereto.
2. Shorn of unnecessary details, facts germane for consideration of the lis are as follows:-
3. During the course of investigation three persons were arrested and based on their statements the petitioner was also arrested. The respondent/Police after investigation filed a charge sheet and additional charge sheet implicating the petitioner for the offences punishable under Sec. 302 of the IPC. The petitioner apprehending arrest appears to have filed anticipatory bail application in Criminal Miscellaneous No.399 of 2016 which was rejected on 29/4/2016 and thereafter, the petitioner approached this Court in Criminal Petition No.3400 of 2016 seeking anticipatory bail. In the said criminal petition, respondent-5/Ravindranath Kamath appeared on behalf of the father of the deceased. He also opposed the bail application filed by the petitioner on behalf of 6th respondent/father of the deceased. This Court by order dtd. 9/6/2016 rejected the bail application filed by the petitioner. Thus, it appears, that the Apex Court also declined to interfere with the said order.
4. It is further averred that the 5th respondent conducted many meetings and press conferences against the petitioner in support of Vinayaka Baliga which was rightly published in various newspapers and social media. The petitioner was arrested on his anticipatory bail being rejected and after his arrest, he filed an application for regular bail under Sec. 439 of the Cr.P.C. in Criminal Miscellaneous No.766 of 2016 before the Sessions Court at Mangalore, which came to be rejected on 9/8/2016. Respondent No.5 appeared on behalf of respondent No.6 and opposed the bail application. The petitioner filed a petition under Sec. 439 of the Cr.P.C. in Criminal Petition No.6189 of 2016 before this Court. Again the 5th respondent appeared on behalf of the 6th respondent by filing an impleading application and objections to the bail petition. This Court after hearing the 5th respondent granted bail to the petitioner by its order dtd. 15/9/2016.
5. After all these proceedings, the State Government appointed the 5th respondent as Special Public Prosecutor by exercising its powers under Sec. 24(8) of the Cr.P.C. with a further observation that fees to be paid by the respondent No.6 to the 5th respondent. It is this order that is called in question in this petition.
6. This Court while entertaining the petition has granted an interim order of stay of all further proceedings before the criminal Court in S.C.No.143 of 2017 by its order dtd. 23/1/2017 and the said interim order is in operation even as on date.
7. Heard Sri.Gautam.S.Bharadwaj, learned counsel along with Sri.Suyog Herele, learned counsel for petitioner, Smt.Namitha Mahesh.B.G., learned High Court Government Pleader appearing for respondent Nos.1 to 4, Sri.Ravindranath Kamath, respondent No.5 party-in-person and Sri.H.P.Leeladhar, learned counsel appearing for respondent No.6.
8. The learned counsel appearing for the petitioner Sri Gautam S. Bharadwaj along with Sri Suyog Herele would vehemently argue and contend that the 5th respondent who has always been the counsel f
The independence of public prosecutors is crucial for ensuring justice, as any conflict of interest or bias can vitiate the trial process.
Point of law: irrespective of the executive or judicial nature of the office of the public prosecutor, it is certain that one expects impartiality and fairness from it in criminal prosecution
The main legal point established is the duty to appoint a Special Public Prosecutor to ensure a fair trial, as well as the duty of the Prosecutor to be impartial and present all material facts before....
The main legal point established is that the victim or somebody on behalf of the victim can request for appointment of a lawyer of his/her choice for appointment of Public Prosecutor or Special Publi....
A Special Public Prosecutor's authority is limited to the case for which they are appointed, and they cannot challenge orders in higher courts without specific authorization.
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