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IN THE HIGH COURT OF BOMBAY
Sushil Hiralal Chokhani
Versus
State of Maharashtra
Decided On Date: 26/04/05
Criminal Procedure Code, 1973 - Section 24(8) - Special Public Prosecutor - Appointment of respondent No. 2 at the cost of complainant - Writ against - Contention, respondent had appeared previously for complainants and procedure laid down in rules and directions of Apex Court in 1988(3) Bom CR (SC) 410 not followed - Contra, power to appoint Special P.P. provided under Section 24(8) of Cri PC and Rules only provides for procedure. - Held, procedure established by Rules as well as guidelines laid down by Apex Court requiring reasoned order in wring not followed. Impugned notifications appointing respondents as Special Public Prosecutor set aside. 1988(3) Bom CR (SC) 410 relied on; AIR 1978 SC 851; AIR 2003 SC 2889; 1999(7) SCC 467; 1988(1) Bom CR 77; 1995(1) SCC 23; AIR 1966 SC 785 referred to; 2004(4) SCC 427 distinguished.
Criminal Procedure Code, 1973 - Section 24(8) Rules for the Conduct of Legal Affairs of Government, 1984, Chapter III, Rules 21 and 22 Appointment of respondent as Special Public Prosecutor There was no reasoned order in writing issued by Remembrance of Legal Affairs approving appointment and disclosing consideration of all relevant factors Criteria which was required to be followed for the decision regarding appointment had not been followed Neither need for such appointment had been considered nor suitability of concerned advocate for conducting matter was ascertained in compliance of Rule 22 of Rules Advocate was more interested in appearing in the matter, not to perform duties of Public Prosecutor impartially Impugned notification appointing respondent is liable to be set aside. The challenge in the petition is restricted to the notification by which the respondent was appointed as the Special Public Prosecutor to conduct all the cases arising out of C.R. No. 1-301 of 2003, registered at Turbhe Police Station. There is complete failure on the part of the respondents to follow the procedure in the matter and the appointments having been made in breach of the procedure and the decision-making process being in total disregard to the mandatory provisions of law prescribed for an appointment of a Special Public Prosecutor. There is no reasoned order in writing issued by the Remembrancer of Legal Affairs approving the appointment of the concerned Advocate as the Special Public Prosecutor in either of the cases. The criteria which was required to be followed for the decision regarding appointment of the Special Public Prosecutor has not been followed. Neither the need for such appointment has been considered nor the suitability of the concerned Advocate for conducting the matters is ascertained, nor the point as to whether any public interest is involved in the matter has been seen. Neither the requirement of the Rule 22 of the said rules nor the guidelines laid down by the Apex Court have been complied with. The letters issued by the Advocate apparently disclose that the Advocate is interested in appearing in the matter, not to perform the duties of the Public Prosecutor impartially and in all fairness but as an Advocate for his client who is the complainant in the case. The impugned notifications appointing the respondents No. 2 in both the petitions as the Special Public Prosecutors cannot be sustained. Notifications are quashed and set aside. (1988) 3 SCC 144, (1999) 7 SCC 467, 1986 RCLD 2093, (1995) 1 SCC 23, AIR 1966 SC 785, (1991) 3 SCC 38, Rel.
R. M. S. KHANDEPARKAR, J.
( 1 ) SINCE common questions of law and facts arise in both these petitions, they were heard together and are being disposed of by this common judgment.
( 2 ) IN both the petitions, rule, and by consent, the rule is made returnable forthwith. Heard the learned Advocates for the petitioners as well as the learned advocate and A. P. P. for the respondents and the State.
( 3 ) THE justifiability of the appointments of the respondent No. 2 in both the petitions as the Special Public Prosecutors, at the instance and cost of the complainants in the criminal cases, is being challenged in these petitions. Apart from non compliance of the Rules framed in relation to such appointment, the petitioners also complain about non compliance of the guidelines laid down by the Apex Court in (Mukul Dalai and Ors. v. Union of India), reported in 1988 (3) Bom. C. R. (S. C.)410 : 1988 (3) S. C. C. 144, in that regard.
( 4 ) IN Writ Petition No. 1899 of 2004, the petition was initially filed challenging the vires of the Rule 22 in Chapter III of the Rules for the Conduct of the Legal Affairs of Government, 1984 as amended by the Government amendment Rules, 2002. However, the said challenge has been specifically abandoned in view of the fact that the said rule has already been amended during the pendency of the petition. The challenge in the said petition is restricted to the notification dated 12th March, 2004 by which the respondent no. 2 Sri Subhash Jha, Advocate, has been appointed as the Special Public prosecutor to conduct all the cases arising out of C. R. No. I-301 of 2003, registered at Turbhe Police Station. In Writ Petition No. 290 of 2005, the petitioners challenge the notification dated 1st October, 2004 appointing the respondent No. 2 Sri girish Raghunath Shinde, Advocate, as the Special Public Prosecutor for conducting sessions Case No. 156 of 2004 in Sessions Court at Pune.
( 5 ) IN Criminal Writ Petition No. 1899 of 2004, the undisputed facts are that the complaint by one Ravindra Ahuja came to be lodged on 29th October, 2000 which was registered as C. R. No. I-301 of 2003 under Sections 467, 477 (A), 408, 420, 506, 120 (B) of the Indian Penal Code. Prior to the filing of the said FIR, the complainant along with his brother Vijay Ahuja had preferred a Criminal Writ Petition No. 1632 of 2003 for issuance of direction to the police officers to register the FIR. In the said writ petition, Shri Subhash Jha, respondent No. 2, had appeared as the Advocate for the petitioners in the said petition. Besides, in a Criminal Application No. 1394 of 2003 preferred by the petitioner herein in the Court of Sessions at Thane for anticipatory bail and while it was heard in the said Court during the period from November, 2003 to February, 2004, the respondent No. 2 herein had appeared first for the respondent who was the intervenor in the said proceedings and then has appeared as the Special Public Prosecutor. In the Criminal Application No. 687 of 2004 filed by the petitioner before this Court on 10th February, 2004, though initially the State was represented by the learned Additional Public prosecutor in the High Court, the respondent No. 2 started appearing in the said matter since 13th February, 2004 being privately engaged by the respondent No. 1 and since 15th March, 2004 being appointed as the Special public Prosecutor to represent the State.
( 6 ) IN Criminal Writ Petition No. 290 of 2005, the undisputed facts are that the petitioners lodged the F. I. R. under sections 447, 427 read with 34 of indian Penal Code complaining that on 27th October, 1996 during the night hours, some persons trespassed in their property and damaged the fencing of their property and further threatened the petitioners, and on investigation, the police filed the charge-sheet against the respondent No. 1, his brother abhijeet and one Amit Danke. They were however acquitted by the order dated 31 st October, 2003. There are some other civ
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