The appointment of a Special Public Prosecutor should be based on sufficient reasons recorded in writing, and the public interest should be the primary consideration in such appointments.

B. S. CHAUHAN, J.

( 1 ) THE instant writ petition has been filed for quashing the order dated 13-9-2001 (Annex. 1) passed by the respondent No. 1 under sub-section (8) of Sec. 24 of the Code of Criminal Procedure (hereinafter referred to as the "crpc") appointing respondent No. 3 as a Special Public Prosecutor on the application of respondent No. 2 complainant in a criminal case.

( 2 ) THE facts and circumstances giving rise to this case are that the petitioners are facing criminal trial for offence punishable under Sec. 302, IPC etc. The respondent No. 2-complainant (brother of the deceased) filed an application before the respondent No. 1 that Public Prosecutor in the Sessions Court would not be able to conduct the trial for being very busy and hence the State should appoint respondent No. 3 as Special Public Prosecutor on his expenses. Respondent No. 1 passed the impugned order dated 13-9-2001 (Annex. 1) appointing respondent No. 3 as a Special Public Prosecutor. Petitioners filed an application before the learned Sessions Judge, Jodhpur for quashing of the said appointment order dated 13-9-2001 (Annex. 1) but the same has been rejected vide order dated 4-10-2001 (Annex. 3) on the ground that he lacks the competence to quash such order and the appropriate relief may be granted only by a Writ Court. Hence, this petition.

( 3 ) SHRI Mahesh Bora, learned counsel appearing for the petitioners has raised the issue of competence of the State to appoint Special Public Prosecutor at the expenses of the complainant for the reason that in such a case the Special Public Prosecutor would act a persecutor rather than prosecutor. Moreso, even if appointment of the Special Public Prosecutor is considered to be necessary, the respondent No. 1 should have passed a speaking and reasoned order explaining the circumstances under which such appointment was found necessary to be made.

( 4 ) ON the other hand, it has been urged on behalf of respondents Nos. 1 and 2 that the State Government is competent to appoint Special Public Prosecutor under sub-sec. (8) of Sec. 24, Cr. P. C. and even incorporation of a condition that the Public Prosecutor shall be paid his fee etc. by the complainant would not vitiate the order of appointment. Order impugned does not suffer from any illegality and thus no interference is called for in the case.

( 5 ) I have considered the rival submissions made by the learned counsel for the parties.

( 6 ) THE mandatory requirement made under Section 24, Cr. P. C. for making appointment of Public Prosecutor in the District Court is that the District Magistrate shall prepare a list of candidates in consultation with the Sessions Judge who, in his opinion, are fit to be appointed as Public Prosecutors. The District Magistrate shall submit that panel to the State for making the appointments. The District Magistrate is not empowered to delete a name suggested by the Sessions Judge or to add name therein unless the name to suggested by the Sessions Judge does not fulfill the requirement of eligibility i. e. having minimum 7 years experience as an advocate. Sub-sec. (8) of Sec. 24 Cr. PC. empowers the Central/state Government to appoint an advocate having ten years experience as a Special Public Prosecutor for the purpose of any case or class of cases.

( 7 ) THEREFORE, an Advocate who fulfils the eligibility may be appointed as a Special Public Prosecutor for the purpose of conducting trial in a particular case or class of cases. The question does arise whether the State has a power to appoint the Special Public Prosecutor in any case at its whims or there must be sufficient reasons, which should be recorded in writing, for making such an appointment; whether appointment of Special Public Prosecutor should be made at the desire or the complainant; and whether it may provide that his fees and expenses shall be paid by the complainant.

( 8 ) THE position remains undisputed that the complainants lawyer can always assis