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IN THE HIGH COURT OF BOMBAY
P.B. Sawant H.H. Kantharia, JJ.
Vijay Valia.... Petitioner.
Versus
State of Maharashtra .... Respondent.
Criminal Writ Petition No. 527 and Criminal Application No. 1127 of 1985, with Criminal Writ Petition No. 361 and Criminal Application No. 304 of 1986 with Criminal Writ Petition Nos. 304, 424 and 437 of 1982, with Criminal Writ Petition Nos. 866, 281 527 of 1985, decided on 2-7-1986.
Advocates appeared :
B.J. Rele with H.A. Sayed, M.M. Irani and S.G. Deshmukh, for petitioner in W.P. 52785.
B.R. Naik, S.P.P. with J.A. Barday, P.P., for respondent in W.P. 527/85.
Amin K. Desai with Piyush P. Parikh, for petitioners in W.P. 1127/85.
J.A. Barday, P.P., for respondent in W.P. 1127/85, 361/86, W.P. 866/85.
P.V. Desai with K.C. Sidhawa, for A.G. of India, in W.P. 1127/85, Cri. A. 304/82.
S.B. Jaisinghani with Satish L. Maneshinda, for intervenor in W.P. 1127/85.
Vikram Pai with C.J. Sawant, for petitioner in W.P. 361/86.
R.S. Apte with B.P. Apte, for petitioners in Cri. A. 304/82.
N.P. Vashi, S.P.P. with J.A. Bardey, P.P., for respondent No. 1 in Cri. A. 304/82.
C.R. Dalvi, for petitioner-absent in W.P. 424/82 437/82.
R.J. Rele, for petitioners in W.P. 866/85.
V.T. Walawalkar with D.N. Hungund, for respondent No. 2 in W.P. 866/85.
J.A. Barday, P.P., for petitioner in Cri. R.A. 281/85.
N.K. Thakore, for respondent No. 2 in Cri. R.A. 281/85.
The provisions of Sections 24 (8) and 25 (1) are not assailable on the ground of arbitrariness. There are sufficient guidelines and there is enough control on the appointment of Special Public Prosecutors falling in the first two categories.
As regards the Special Public Prosecutors falling in the third category viz., those sought and paid for by a private party, the procedure for their appointment is laid down in Rule 22 of the Conduct Rules. It is the Remembrance of Legal Affairs, again, who has to consider the merits of the particular case and appoint the Advocate suggested by the party. There is reason to believe that the same rule will govern the appointment of Assistant Public Prosecutors at the instance of a private party. There is further no reason why barring the financial burden which is to be borne by the private party, the other considerations mentioned in Rule 18 should not equally weigh with the Remembrancer while considering the appointment of this category of Prosecutors as well. But apart from this, guidelines or no guidelines, whenever there is a request made by a private party to engage an Advocate of his choice to be paid for by him, the request should be granted as a rule. The complainant in such cases is either a victim of the offence or is related to the victim or otherwise an aggrieved person. He bas a right to be beard and vindicated. As stated earlier, the right to be beard implies a right to be effectively represented at the hearing of the case. He bas therefore a right to engage an Advocate of his choice. There is therefore no reason why the State should refuse him the permission to conduct the prosecution with the help of his Advocate. If there are any reasons for refusal, they should be stated and communicated to him in writing. For the reasons, are, in the circumstances, justiciable. The provisions of Section 24 (8) and 25 (1) are not viotative of Article 14 of the Constitution.
There is no specific provision like Section 24 (8), in Section 25. But that by itself does not spell out a bar for the appointment of an Assistant Public Prosecutor to conduct a case or class of cases. The power to appoint Assistant Public Prosecutors for conducting prosecutions generally, will also include power to appoint an Assistant Public Prosecutor to conduct a particular case or cases. Unlike the Public Prosecutors and Additional Public Prosecutors appointed under Section 24, the Assistant Public Prosecutors need not be from the cadre, or the panel prepared by the District Magistrate. There is further no qualification prescribed for the appointment of Assistant Public Prosecutors and any person including a police officer not below the rank of Inspector can be appointed at any time by the State or the Central Government to conduct any prosecution or prosecutions. Hence the absence of a provision such as Section 24 (8), will not bar appoint of an Assistant Public Prosecutor specially to conduct a case or class of cases.
2. The challenge is mainly on two grounds. The first ground is that neither section 24(8) nor section 25(1) lays down any guidelines as to when Special Public Prosecutor/Assistant Public Prosecutor should be appointed. To that extent there is an excessive delegation of power, and hence the power conferred under the said sections is arbitrary and violative of Article 14 of the Constitution. The second ground is that the appointment of Special Public Prosecutor Assistant Public Prosecutor at the instance of the complainant and paid for by him is bound to act to the prejudice of the accused because : (a) the prosecutor so appointed will be inclined in favour of the complainant and against the accused, and will therefore, not conduct the prosecution impartially; (b) he may not act impartially under section 321 of the Code in exercising his power to withdraw the prosecution. In obtaining sanction of the Government for the purpose under Rule 49(7)(a) of the Rules for the Conduct of the Legal Affairs of Government, 1984, (hereinafter referred to as the Conduct Rules) and under Rule 14 of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984, (hereinafter referred to as the Appointment Rules) there will be a conflict of interests in his duty to the State as an officer of the Government and as an Advocate for the complainant who engages him; (c) in issuing certificate under section 308 of the Code to a person who has accepted the tender of pardon, such prosecutor may not act independently; and (d) he may not render impartial advice to the State Government for preferring an appeal under section 378(1) of the Code read with Rules 49(9)(b) and 50(1)(a) of the conduct Rules. Some decisions were cited at the Bar in support and against these propositions.
3. Before we deal with the above contentions, we feel it necessary to draw attention to certain basic features of the administration of criminal justice in this country. The First Schedule of the Code classifies offences under the Indian Penal Code and other laws into two categories-cognizable and non-cognizable. Some laws themselves specify offences under them as either cognizable or non-cognizable. The Code lays down different procedures for prosecution of the two classes of offences. Under section 156 of the Code, a cognizable offence is investigated by the police without order of the Magistrate while section 155(1) requires the police to refer the informant of a non-cognizable offence to the Magistrate. The police cannot investigate a non-cognizable case without the order of the Magistrate. If police investigation in cognizable case and when ordered by the Magistrate in non-cognizable cases, reveals in offence, the State is under an obligation to undertake the prosecution of the offender. In a non-cognizable case which is not investigated by the police and in which the complainant himself chooses to file the complaint before the Magistrate, the burden to prosecute the offender lies on the complainant. It happens some times that even when cognizable offender are committed, the State does not prosecute the offender either because the police investigation does not reveal an offence or for other reason. In such cases, the individual aggrieved by the offence may himself prosecute the offender. It also happens that before poli
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