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2013 Supreme(Bom) 2368
In the High Court of Bombay at Goa
U.V. BAKRE, J.
Adv. Aires Rodrigues
Versus
State by Chief Secretary, Government of Goa, Secretariat & Others
Criminal Writ Petition No.68 of 2013
Decided on : 29-11-2013
For the Petitioner: In person.
For the Respondent:A.N.S. Nadkarni, Advocate General with D. Lawande, Additional Public Prosecutor.
The main legal point established in the judgment is the authority of the Chief Minister in appointing lawyers to defend government servants in a criminal case, and the validity of such appointments.
Headnote:
Mandamus - Criminal Procedure - Prevention of Corruption Act, 1988, Indian Penal Code - Section 13(d)(ii), Section 13(2), Section 193, Section 420 - Summary: The court discussed the appointment of lawyers to represent respondents in a criminal case and the authority of the Chief Minister in the appointment process. The court found that the appointment of the Senior Counsel was done as a special case to defend the interest of the respondents, who were government servants, and that the Chief Minister's approval was given in his capacity as Law Minister and Finance Minister. The court dismissed the petition challenging the appointment orders and the decision of the Special Judge.
Fact of the Case:
The petitioner sought a writ to withdraw appointment orders of lawyers for respondents in a criminal case. The petitioner alleged that the Chief Minister committed offenses but the F.I.R. was not registered, and objected to the appointment of Senior Counsel to defend the respondents.
Finding of the Court:
The court found that the appointment of Senior Counsel was done as a special case to defend the interest of the respondents, and the Chief Minister's approval was given in his capacity as Law Minister and Finance Minister. The court dismissed the petition challenging the appointment orders and the decision of the Special Judge.
Issues: The issues involved the authority of the Chief Minister in appointing lawyers to defend government servants in a criminal case and the petitioner's objection to the appointment of Senior Counsel.
Ratio Decidendi: The court held that the appointment of Senior Counsel was done as a special case to defend the interest of the respondents, and the Chief Minister's approval was given in his capacity as Law Minister and Finance Minister. The court dismissed the petition challenging the appointment orders and the decision of the Special Judge.
Final Decision: The petition was dismissed and disposed of accordingly.
Heard the petitioner in person and learned Advocate General for the respondents.
2. By this petition filed under Articles 226 and/or 227 of the Constitution of India, the petitioner has sought the following reliefs:
“(A) For a Writ of Mandamus, or a Writ in the nature of mandamus or any other appropriate Writ, directions or any other commanding the Respondent No. 3 to withdraw Order Ref. No. 4/1/2008/LD-Esst./217 dated 12.2.2013 and Order Ref. No.14/1/2008/LD-Estt./398 dated 14.3.2013.
(B) For a Writ of Certiorari or writ in the nature of Certiorari, quashing and setting aside order dated 6.6.2013, passed by the Special Judge, North Goa at Panaji in Criminal Misc. Appln. No. 22/2013, after calling for records and proceeding and examining it for its legality, proprietary and correctness.”
3. Petitioner, in short, has alleged as follows: The petitioner lodged a complaint dated 04/02/2013 with respondent no. 4 against Shri Manohar Parrikar, the Chief Minister of the State of Goa alleging that he has committed offences punishable under Section 13 (d)(ii) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 193 and 420 of the Indian Penal Code. However, since respondent no. 4 failed to register the F.I.R., in terms of Section 154 of the Code of Criminal Procedure, 1973 ('Cr.P.C.'), he made a representation to respondent no. 5 calling upon him to direct respondent no. 4, to register the complaint of the petitioner as F.I.R. Since no action was taken by the respondent no. 5, the petitioner filed an application under Section 156(3) of Cr.P.C. before the Special Judge under the Prevention of Corruption Act, North Goa at Panaji which application came to be registered as Criminal Miscellaneous Application No. 22/2013. Respondents no. 4 and 5 herein were made as respondents in the said Criminal Miscellaneous Application. Upon notice of the application issued to the respondents, on 21/03/2013, learned Advocate Shri A. Lotlikar filed Vakalatnama on behalf of the said respondents and appeared before the Special Judge along with the learned Senior Counsel Shri Saresh Lotlikar.
4. The respondent no. 3, on 12/2/2013, had issued order Reference No. 4/1/2008/LD-ESTT/217 appointing Advocate Ashwin Bhobe to represent the respondents no. 4 and 5 in the said Criminal Miscellaneous Application No. 22/2013 and thereafter issued the order Reference No. 4/1/2008/LD-ESTT./393 dated 14/3/2013, appointing Shri Saresh Lotlikar, Senior Counsel to defend the interest of the respondents no. 4 and 5, as a special case.
5. The petitioner filed an application dated 21/03/2013 before the Special Judge, taking objection to the representation of the respondents by Senior Counsel Shri Saresh Lotlikar. Upon hearing the petitioner in person and learned Senior Counsel for the respondents, by order dated 06/06/2013, the Special Judge observed that the learned Sr. Counsel, Shri Saresh Lotlikar is neither appointed as a Public Prosecutor within the meaning of Section 24 of Cr.P.C. nor is he appointed to defend Shri Manohar Parrikar, the Chief Minister. It has been further observed that the applicant can have no reasonable objection for the appointment of the Sr. Counsel as it is always open to any Department, Officer, including any Investigating Officer, to get the best legal service. The Special Court observed that the name of Shri Lotlikar was proposed by the learned Advocate General and that the Chief Minister had signed the said notings after the said recommendation was approved by the Law Department and file was submitted for the approval of the Government. It was held that mere fact that the Chief Minister had signed the notings either in the capacity as the Law Minister or the Finance Minister, does not lead to an inference that the Chief Minister was involved in appointing the Senior Counsel. The application raising objection was dismissed.
6. Therefore the petitioner is before this Court challenging the said orders dated 12/2/20
