IMPORTANT POINTS
Illegality as a ground of judicial review means that the decision maker must understand correctly the law that regulates his decision making powers and must give effect to it. Grounds such as acting ultra vires, errors of law and/or fact, onerous conditions, improper purpose, relevant and irrelevant factors, acting in bad faith, fettering discretion, unauthorized delegation, failure to act etc., fall under the heading "illegality". Procedural impropriety may be due to the failure to comply with the mandatory procedures such as breach of natural justice, such as audi alteram partem, absence of bias, the duty to act fairly, legitimate expectations, failure to give reasons etc.

JUDGMENT :

S. Manikumar, J.

Challenge in this writ appeal is to the direction issued by the writ court in W.P.(C) No.31187/2019 dated 11.12.2019, that the appellants/respondents shall consider the request of the respondent/writ petitioner afresh in view of the circular dated 18.09.2017. By observing that this is a case of political murder, by which the accused as well as the deceased have very clear political affiliations, the writ court ordered thus:

“6. Under the circumstances, the anxiety of the petitioner that the accused who belong to the ruling party may not be appropriately prosecuted in this case is justifiable. Under the circumstances, it is the duty of the Government to expel the reasonable apprehension that arises in the mind of the victim's mother in the prosecution of the case. It is apparent from the records that in the first instance, the Government was willing, but later on backed out from the demand for appointment of a Special Public Prosecutor.

Considering the entirety of the facts and circumstances of the case, I find that this is a fit case for appointment of a Special Public Prosecutor and therefore, the order of the Government at Ext.P1 is quashed and the respondents are directed to consider the request of the petitioner afresh in view of the afore-mentioned Circular and the observations of this Court, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment.”

2. Assailing the correctness of the said judgment, instant appeal is filed on the following grounds:

“A. The Hon'ble Court has failed to consider the reasons behind the Respondents' decision to reject the Petitioner's request for the appointment of a Special Public Prosecutor.

The Circular clearly states that "the appointment of Special Public Prosecutor under section 24(8) of CrPC shall be made by the Government either suo moto or on the basis of the application by any aggrieved person only when public interest demands it and not to vindicate the grievances of private persons. However such appointment shall be made only on being satisfied that the case cannot be adequately handled by any of the duly appointed Public Prosecutors who are receiving salary out of Government funds and on being satisfied that the case is highly sensational and generates extensive public interest of such magnitude as to necessitate the appointment of a more competent Advocate of good standing, as a Special Public Prosecutor."

The Circular also lays down specific criteria/categories of cases which shall ordinarily be considered for appointment of a Special Public Prosecutor. Of those, category 1 is where crimes like murder, kidnapping and rape are mentioned. The said category is extracted herein below:

“i) cases such as heinous murder or kidnapping or rape particularly of minor and which are gruesome in character shocking the collective conscience of the community at large.”

It can be seen from the text quoted above that what the Circular envisages is not the appointment of Special Public Prosecutors for each and every case of murder but rather only in those heinous cases of murder which are gruesome in character, and which shock the collective conscience of the community at large. The alleged murder of the Petitioner's son is only a case of a retaliatory murder. The evidence collected by the Police suggests that the Accused persons killed the Petitioner's son Anand because of the enmity they harboured against him for the murder of 1st accused's elder brother Fazil by Anand. Anand was the 2nd accused in the case of murder of the said Fazil. There is nothing in this case which suggests that it was a murder of gruesome character or that which shocks the collective conscience of the community at large.

Even if it is argued that the categories of cases given in the Circular are not an exhaustive list and cases which do not fit into any of those categories may also be considered for appointment of the Special Public Pros