The main legal principle established in the judgment is that the appointment of a Special Public Prosecutor should be based on public interest or special circumstances, and the prosecutor must conduct the trial in accordance with the law and professional ethics, ensuring fairness to both the accused and the victim.

Ferdino Inacio Rebello, C.J. and Pradeep Kant, J.;-

Petitioner Shekhar Tiwari, who is a sitting Member of the Legislative Assembly (M.L.A.), is facing trial in Sessions Trial No. 446/2009, under Sections 147, 148, 149, 323, 342, 457, 364, 302, 201, 120-B, 506 IPC and Section 7 Criminal Law Amendment Act, before the Court of Special Judge (Ayodhya Prakaran), Lucknow.

2. Shorn of unnecessary details, the petitioner is aggrieved by an order passed by the State Government on 9.3.2009 in exercise of powers under Section 24 (8) of the Code of Criminal Procedure, 1973, hereinafter referred to as the Cr.P.C, appointing the respondent no. 2 Sri Indra Bhushan Singh, Senior Advocate as Special Public Prosecutor to conduct the aforesaid criminal trial.

3. Challenge to the aforesaid order dated 9.3.2009 has been mainly made on the following grounds:

(1)The appointment of respondent no. 2, a designated Senior Advocate as Special Public Prosecutor, is not in consonance with the provisions of Section 24, in particular sub-section (8) of the Cr.P.C;

(a) Such an appointment of Special Public Prosecutor for no valid reason impinges upon the right, either of the accused or of the victim, to have a fair trial;

(b) Such an appointment of Special Public Prosecutor has resulted into supersession of the Public Prosecutor, who was entitled and authorised to conduct the sessions trial, having been appointed under the provisions of sub-sections (1) to (6) of Section 24 of the Cr.P.C;

(2)No reasons have been have been given by the State Government for appointing the Special Public Prosecutor and there being no such cause which would allow such an appointment, the appointment so made is arbitrary;

(3)The respondent no. 2 being a Senior Advocate could not have been allowed to do Pairvi and plead a case, which is against the provisions of Bar Council of India Act and restrictions imposed with respect to Senior Advocates in the matter of arguing cases under the Rules; and

(4)The respondent no. 2 having been engaged by respondent no. 3 in Criminal Misc. Writ Petition No. 370 of 2009, filed by the petitioner and his wife seeking stay on their arrest, to plead the case on her behalf, could not be taken to be an independent public prosecutor and thus, could not have been appointed to undertake the sessions trial against the petitioner on behalf of the State.

We take up the points no. (1) and (2) first.

4. Drawing the attention of the Court to the provisions of Section 2(u) alongwith Section 24, sub-sections (1) to (6) and (8) of the Cr.P.C, learned counsel for the petitioner argued that the scheme of the aforesaid provisions of the Cr.P.C does not allow the appointment of Special Public Prosecutor on the mere discretion of the State Government and even if the State Government can be presumed to have such discretion, the same has to be based on some reasonable ground, leading to some special circumstances for making such an appointment and in the absence of any special reason, the appointment so made cannot be sustained in law.

5. In support, reliance has been heavily placed on the judgment of Karnataka High Court in the case of K.V.Shiva Reddy versus State of Karnataka and others, 2005 Cri. L.J. 3000, as also on the following judgments:

(i) 1993 Cri. L. J. 1249, Abdul Khader Musliar versus Government of Kerala,

(ii) 1982 Cri. L.J. 2085, P.G.Narayankutty versus State of Kerala and others

(iii) 1998 Cri.L.J. 998, Rajendra Nigam versus State of M.P and others,

(iv) 2001 Cr. L.J 3113, Poonamchand Jain versus State of M.P and others.

6. Learned counsel has summerized the ratio of the aforesaid judgments as follows:

(a) Appointment of private counsel as Special Public Prosecutor without application of mind by the State Government is liable to be quashed.

(b) Special Public Prosecutor can be appointed only when public interest demands and/or for some cogent reason or special circumstance to make such an appointment.

(c) Mere fact that the accused in the murder case has appointed a leading

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