The discretionary power of the government in appointing a Special Public Prosecutor and the limited scope of interference in such appointments.

( 1 ) PETITIONER is assailing the validity of Order dated 22-6-2005. By the said order, State Government exercising powers conferred by Section 24 (8) of the Code of criminal Procedure, 1973 appointed respondent No. 2 as Special Public Prosecutor to conduct S. T. No. 156/2005 pending in the court of First ASJ, Mhow.

( 2 ) PETITIONER is an accused of having committed alleged offences punishable under sections 302, 147, 148, 149, 307/149. According to prosecution story, incident took place on 7-12-2004 leading to murder of gaya Prasad and injuries to Sohan and vijay. Vijay lodged the FIR setting the police machinery in motion and a criminal case was registered at Crime No. 442/04 at P. S. Kishanganj. After investigation, Police filed the charge-sheet against petitioner and other co-accused persons. That is how petitioner is arraigned before the Court below as one of the accused in the Sessions Trial. By order dated 22-6-2005, respondent No. 2 is appointed as Special Public Prosecutor to conduct the said Sessions Trial. On 4-8-2005 an application was made before the learned ASJ, challenging appointment of respondent No. 2 as Special Public Prosecutor. Said application was rejected vide Order dated 5-8-2005 therefore present writ, petition under Art. 226/227 of the Constitution to challenge the order impugned.

( 3 ) AT the time of hearing, learned counsel for petitioner submitted that respondent no. 1 passed the order Impugned mechanically without any application of mind. It was contended that respondent No. 2 in the past, represented complainant in criminal matters, therefore it is unexpected that he would act fairly. Learned counsel for petitioner voiced an apprehension that respondent No. 2 in his role as Special Public Prosecutor may align himself with complainant, therefore he is biased and instead of prosecuting will act as prosecutor with the sole object to secure conviction of accused persons. Thus, according to learned counsel for petitioner, the order impugned is liable to be quashed and the writ petition deserves to be allowed.

( 4 ) STATE did not file any counter-affidavit despite several opportunities. On the other hand, respondent No. 2 filed counter-affidavit denying allegations made in the petition. It is stated in the reply that he has no personal bias or prejudice against petitioner. It is also denied that after his appointment he would either seek instructions or guided by complainant in the conduction of trial and while representing State Government as Special Public Prosecutor he has to work within four corners of law under the judicial scrutiny. Thus, learned counsel appearing for respondents supported the order impugned and submitted that present petition is nothing but a part of well thought out dilatory tactics to delay the trial as much as possible. They submitted that present frivolous petition is devoid of any substance and merits dismissal.

( 5 ) SECTION 24 of the Code of Criminal procedure, 1973 confers power on Central or State Government to appoint eligible advocate as public Prosecutor/additional Public Prosecutor for conducting prosecution. appeal or other proceedings in Court on behalf of State or Centra] Government as the case may be. Sub-section (8) of Section 24 provides for appointment of Special Public prosecutor and it reads as under :

" (8) The Central Government or the State government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor,"

( 6 ) SECTION 24 (8) of the Code has come up for consideration in number of cases and law relating to appointment of Special Public Prosecutor is now well settled. It is, therefore, not, necessary to burden this order with various citations, except to point out that appointment of respondent No. 2 is made by the State Government In exercise of statutory powers conferred on it It Is the discretionary power vested in the Government. The state

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