In this writ petition filed under Article 226 of the Constitution of India, the petitioner who is the brother of one Shaji who was allegedly murdered by nine or more CPI (M) activists on 18.5.1998 seeks the following reliefs:-

i) A writ of certiorari quashing Exhibit P2 order dated 26.3.2007

ii) A direction to appoint a Special Public Prosecutor to conduct the prosecution in Sessions Case Nos.34/2001 and 745/2007 on the file of the Sessions Court, Thalassery iii) To stay all further proceedings in the above Sessions Case till the appointment of the Special Public Prosecutor.

A FAMILY’S ANXIETY

2. The case of the petitioner can be summarised as follows:-

Petitioner’s brother Shaji was brutally murdered on 18-5-1998 at a place called Madapeedika. The Chockli Police registered Crime No.76 of 1998 against the following persons.-

1) Biiju, S/o Paputty

2) Sajith, S/o. Sreedharan

3) Thaliath Shaji

4) Rajith, S/o. Nanu

5) Kalesh

6) Manikutthu Rajivan

The offences for which the F.I.R. was registered were those punishable under Sections 143, 147, 148, 341, 324 and 302 read with Sec.149 I.P.C.

Even though initially the case was registered against six persons named in the FIR, due to political influence the name of A3 was substituted by one Ayyathan Shaji and A4 to A6 were deleted from the array of accused. All the said four persons were close relatives of those who are office bearers of the ruling party either at the time of occurrence or at the time of filing the final report. Brother of Thaliyath Shaji was the local Secretary of the C.P.(I).M at the time of occurrence. The father of A4 and A5 (Ranjith and Kalesh) is the present local Secretary of the ruling party. Father of A6 (Rajivan) was the Branch Secretary of the party at the relevant time. When the mother of the petitioner came to know about this, she filed a private complaint for implicating all the six accused persons with witnesses in support of her contentions. The Chokli Police, who investigated the case submitted a final report, which after committal, was numbered as S.C.No.34/2001. The private complaint filed by the petitioner’s mother was taken cognizance of and that was also committed to the Court of Sessions, where it was registered as S.C.No.744/2007. Both the Sessions cases are allotted to the common Public Prosecutor who is a close associate of the ruling party and who wanted to protect the interests of the four accused persons whose names were deleted by the Police. Hence, proper conduct of Sessions Case No.744/2007 by the Public Prosecutor who is politically prejudiced against the petitioner cannot be expected. As per Section 225 Cr.P.C. the prosecution in a Sessions case has to be conducted by a public Prosecutor and since the two Sessions Cases arose out of a police report and a private complaint, by virtue of Section 210 (2) Cr.P.C. both the cases are to be tried as if they arose out of a police report and a Special Public Prosecutor alone can conduct both the cases. The petitioner’s mother, therefore, filed Ext.P1 application before the Home Secretary, seeking appointment of a Special Public Prosecutor under Section 24 (8) Cr.P.C. She had also suggested the name of Advocate Sri. T. Sunil Kumar, whose consent had been obtained. The Government have rejected the request and the Home Secretary has issued Ext.P2 letter dated 26.3.2007 which reads as follows:-

Malayalam

The order rejecting her request was not communicated to the petitioner’s mother. The petitioner got information regarding the order only when he approached this Court by filing a writ petition as W.P.(C).No.3794/2010 for a direction to dispose of Ext.P1 application. Ext.P3 is a recent order passed by the State Government on 6-5-2010 appointing a special public prosecutor to conduct Sessions Case No.783 of 2005 on the file of the Addl. Sessions Court, Thalassery arising out of Crime No.267/2004 of Iritty Police Station. In the affidavit in support of I.A. 10556 of 2010 the petitioner has categ