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Gujarat High Court
Judgename :A.M.KAPADIA
AMRUTBHAI BHOLIBHAI PATEL - Appellant
Versus
STATE - Respondent
S.CRI.A.396 of 2000
Decided On : 09/20/2000
Court may now deal with the contentions raised before us. The first contention is that neither Sec. 24(8) nor Sec. 25(1) lay down any guidelines for the appointment of Special Public Prosecutor or Assistant Public Prosecutor for a particular case or class of cases. We will proceed on the assumption that this is so. However we fail to understand as to how this contention can be raised on behalf of the accused. The petitioners/applicants before us are the accused in the respective cases and none of them is a complainant. The accused cannot claim a right that the prosecution against him be conducted by a particular prosecutor and not by any other. The contention, if at all, can be raised only by a complainant whose request to conduct the prosecution by a lawyer of his choice is rejected. It however appears that this contention is raised on behalf of the accused on the presumption that whenever a Special Public Prosecutor is appointed whether by the State or at the instance of a private party, a fair trial is denied to the accused. This is particularly so in the latter case where, it is contended, the prosecutor so bound to identify himself with the complainant and try to secure conviction by any means, fair or foul. The conduct of the prosecution may not be impartial and circumstances favourable to the accused and unfavourable to the complainant may not be placed before the Court.
[Para 26]
The result of the discussion is that merely because the appointment of Mr. Shethna as Special PP is made as per the choice of the complainant, it would not be reasonable to hold that he would not be able to act impartially. Mr. Shethna who is engaged by the State at the cost of the State is equally bound by the higher duty to the Court as also to his discipline as an advocate, and is expected to rise to the occasion and discharge his duties as a just and fair Public Prosecutor. Above all, there is institutional safeguard against any prejudice or bias because of the material placed on record by the investigating agency which in turn places its own limitations on such a Public Prosecutor.
[Para 27]
Court has found that his performance as Special PP does not at all smack of malice or bias as alleged. On the contrary, he always has shown sympathy due to the petitioner and gave consent when occasion so demanded. In this petition, no stay was granted as prayed for. But Mr. Shethna as Special PP has refrained from appearing in the matter where the petitioner is seeking temporary bail on health ground by filing Misc. Criminal Application No. 4072 of 2000. If at all he had any bias as alleged, he would have appeared in the said matter but he has voluntarily chosen not to appear till the question of his appointment as Special PP is decided by the Court. Thus, there is no factual basis or data available on the basis of which one can say that Mr. Shethna has malice or bias against the petitioner.
[Para 30]
Counsel for the parties have cited at the bar few authorities on the point of mala fide. But on going through them Court find that they are not relevant for deciding this issue and, therefore, Court has not discussed them.
[Para 31]
( 1 ) IN this petition which is filed under Article 226 of the Constitution, the petitioner against whom C. R. No. I-38 of 2000 is registered for the offences punishable under Sections 302 and 34 of the Indian Penal Code (ipc for short hereinafter) as well as Section 25 (1) (c) of the Arms Act (the Act for short hereinafter) with Sarkhej Police Station has prayed to issue a writ of mandamus to quash and set aside the resolution of the Government of Gujarat dated March 22, 2000 appointing Mr. K. J. Shethna, Advocate, as Special Public Prosecutor for conducting C. R. No. I-38 of 2000 at the District and Sessions Court of Ahmedabad (Rural), Mirzapur, Ahmedabad and High Court for bail and trial.
( 2 ) IT may be stated that by the said Government resolution, Mr. Rajendra Shirodkar and Mr. Adhik Shirodkar, advocates are also appointed to assist Mr. K. J. Shethna and, therefore, their appointments as such are also challenged.
( 3 ) EARLIER it was stipulated in the said resolution that Mr. Shethna, Mr. Rajendra Shirodkar and Mr. Adhik Shirodkar would be paid fees by the original complainant Mrs. Arti Arvindbhai Patel but the Government has amended the said resolution by another resolution dated August 22, 2000 mentioning that Mr. K. J. Shethna and M/s. Shirodkars shall be paid fees by the Government which will be decided later on and the petitioner has, therefore, challenged the validity of the said amended Government resolution also.
( 4 ) THE petitioner is one of the accused in C. R. No. I-38 of 2000 registered with Sarkhej Police Station for the offences punishable under Sections 302 and 34 of the IPC as well as 25 (1) (c) of the Act. At present he is in judicial custody. The allegation against the petitioner is that on February 20, 2000, he in the company of his son Virendra and son-in-law Dharmendra went to Shantivan Farmhouse situated in the sim of village Makarba and killed his son Arvindbhai, who had also a share in the said farmhouse, by firing shots from his revolver. The widow of the deceased has filed complaint as a result of which the above numbered C. R. is registered against the petitioner and others.
( 5 ) THE widow of the deceased was of the view that the accused being influential persons would thwart the course of justice and she would not get justice. Therefore, she applied to the Legal Remembrancer and requested to appoint Mr. K. J. Shethna or Mr. Rajendra Shirodkar or Mr. Adhik Shirodkar as Special Public Prosecutor for conducting the case which is launched pursuant to her complaint.
( 6 ) THE Legal Department attempted to obtain the consent of the advocates for being appointed as Special Public Prosecutor. But Mr. Rajendra Shirodkar and Mr. Adhik Shirodkar did not show willingness to be appointed as Special Public Prosecutor but expressed their willingness to assist Mr. K. J. Shethna if he was appointed as Special Public Prosecutor. The Government of Gujarat after considering the matter in detail issued resolution dated March 22, 2000 appointing Mr. K. J. Shethna, Advocate as Special Public Prosecutor for conducting C. R. No. I-38 of 2000 at the District and Sessions Court, Ahmedabad (Rural), Mirzapur, Ahmedabad and in High Court for bail matters and trial and specified in the said resolution that Mr. Rajendra Shirodkar and Mr. Adhik Shirodkar will assist Mr. K. J. Shethna. In the said resolution it was stipulated that Mr. Shethna and M/s. Shirodkars shall be paid fees by the complainant Mrs. Arti Arvindbhai Patel. Thereupon Special Criminal Application No. 396 of 2000 is filed challenging the said resolution on the following grounds: (1) Appointment of Special P. P. is without consultation with the High Court as required under section 24 (1) of the Code of Criminal Procedure (the Code for short hereinafter) and, therefore, bad in law. (2) Payment of fees to the Special PP by the original complainant is illegal. (3) Appointment of an advocate as Special PP in terms of choice of the complainant is
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