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2005 Supreme(MP) 361
High Court Of Madhya Pradesh
DIPAK MISRA
MOHAMMAD SARTAJ - Appellant
Versus
STATE of M.P. - Respondents
W. P. 4086 Of 2004
Decided On : 03/11/2005
Asadulla Usmani, O.M.Namdeo, Vijay Naik
The appointment of a Special Public Prosecutor must be justified with reasons and special circumstances, and the Public Prosecutor has a statutory responsibility to assist the court in arriving at the truth and serving the cause of justice.
Headnote:
Special Public Prosecutor - Appointment of Respondent No. 4 - Sections 147, 148, 149, 37, 120-B of IPC, Sections 25 and 27 of Arms Act, Section 3/5 of Explosives Substances Act, 1908 - No reasons assigned for appointment, appointment not justified, order unsustainable, appointment quashed
Fact of the Case:
The petitioner and others were facing trial for various offences including murder. The petitioner challenged the appointment of the respondent No. 4 as Special Public Prosecutor, alleging conflict of interest due to the respondent's prior defense of the deceased and his brother.
Finding of the Court:
The court found that the appointment of the respondent No. 4 lacked justification and reasons, and was passed in a mechanical and routine manner. The court quashed the appointment and directed the respondent No. 4 to assist the prosecution under the direction of the duly appointed Public Prosecutor.
Issues: The main issue was whether the appointment of the respondent No. 4 as Special Public Prosecutor was justified and met the requisite requirements.
Ratio Decidendi: The court emphasized the importance of justifying the appointment of a Special Public Prosecutor, the ouster of the Public Prosecutor, and the need for special reasons for such appointments. It also highlighted the statutory responsibility of the Public Prosecutor to assist the court in arriving at the truth and serving the cause of justice.
Final Decision: The writ petition was allowed, the appointment of the respondent No. 4 as the Special Public Prosecutor was quashed, and the respondent No. 4 was directed to assist the prosecution under the direction of the duly appointed Public Prosecutor.
( 2 ) ACCORDING to the writ petitioner with the efforts and initiation Rehman Ali, younger brother of the deceased the respondent No. 4 has been appointed as Special public Prosecutor in respect of the session trial where the petitioner along with his father, brothers and uncles have been arrayed as accused. The appointment letter issued by the Department of Law and Legislative affairs has been brought on record as Annexure-P/1. It is contended in the petition that the respondent No. 4 has defended Late akku and his companions in number of cases viz. S. T. Nos. 778/2001, 89/2001, 523/97 and 360/2004. It is urged in the petition that the appointment of the respondent No. 4 is neither sound nor legal and does not meet requisite requirement as contained under Section 24 (8) of the Code of criminal Procedure [for brevity 'the Code'. It is the stand in the petition that engagement of a Special Public Prosecutor in a case has a different conception but the said concept has not been kept in view while appointing the respondent no. 4 as the Special Public Prosecutor. It has been pleaded that earlier on the petitioner had filed W. P. No. 2814/2004 assailing the appointment of the respondent No. 4 as Special Public Prosecutor and this Court vide order dated 9-9-2004 had granted liberty to raise objection before the trial Court first and thereafter the petitioner filed a detailed objection before the learned trial Judge challenging the appointment of the respondent No. 4. The said objection has faced rejection by the impugned order dated 8-10-2004 contained in Annexure-P/4 passed by the learned Additional sessions Judge, Jabalpur.
( 3 ) A return has been filed by the respondent No. 4 contending, inter alia, that the petitioner should have filed an application under Section 482 of the Code of Criminal procedure and not a writ petition. It is further put forth that the apprehension on the part of the petitioner is without any sub-stance and merely because of a copy has been sent to the brother of the deceased it does not flow from it that the respondent no. 4 has been appointed at the instance of the brother of the deceased. It is also asserted that the respondent No. 4 after his appointment filed an application under Section 319 of the Code and, therefore, the petitioner has preferred this petition knowing fully well that the respondent No. 4 would perform his duty as public prosecutor as law would warrant.
( 4 ) I have heard MY. A. Usmani, learned counsel for the petitioner, Mr. Om Namdeo, learned Government Advocate for the State and Mr. Vijay Naik, learned counsel for the respondent No. 4.
( 5 ) IT is submitted by the learned counsel for the petitioner that no reasons have been assigned by the State Government for appointment of the special public prosecutor and in the absence of a special case made out the order of appointment is unsustainable.
( 6 ) MR. Namdeo, learned Government advocate for the State and Mr. Vijay Naik, learned counsel for the respondent No. 4 supporting the order passed vide Annexure p-1 have submitted that taking into consideration the factual matrix and gravity of offences, the public prosecutor has been appointed and, therefore, the action vide Annexure P-l cannot be faulted. That apart it has been put forth that the respondent No. 4 is a very experienced counsel and keeping the nature of offences the State Gover
