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1998 Supreme(MP) 887
IN THE HIGH COURT OF MADHYA PRADESH
D.M. Dharmadhikari, J.
Prabhat Agrawal
Vs.
State of M.P. & Ors.
W.P. No. 2576 of 1998 (J)
Decided On: 11.11.1998
For Appellant/Petitioner/Plaintiff:Mr. Manish Datt, Advocate
For Respondents/Defendant:Mr. P.D. Gupta, Advocate, For State
The appointment of a Special Public Prosecutor should be made only for very special and strong reasons and the appointment of a counsel engaged by the complainant as SPP is not justified.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 24(8) - APPOINTMENT OF SPECIAL PUBLIC PROSECUTOR - VALIDITY - GUIDELINES - STRONG REASONS REQUIRED - APPOINTMENT OF COUNSEL ENGAGED BY COMPLAINANT AS SPECIAL PUBLIC PROSECUTOR NOT JUSTIFIED.
Fact of the Case:
The petitioner challenged the appointment of a Special Public Prosecutor (SPP) in a criminal trial, arguing that the appointment was not made in accordance with the guidelines and that there were no strong reasons to justify the appointment of the SPP.
Finding of the Court:
The court held that the appointment of the SPP was not valid as it was made on the mere asking of the complainant and without any cogent or strong reasons. The court observed that the appointment of a SPP should be made only for very special and strong reasons and that the appointment of a counsel engaged by the complainant as SPP was not justified.
Issues: 1. Whether the appointment of the SPP was made in accordance with the guidelines and whether there were strong reasons to justify the appointment. 2. Whether the appointment of a counsel engaged by the complainant as SPP was justified.
Ratio Decidendi: The court relied on the Supreme Court decision in Mukul Dalai and ors. V. Union of India and others [(1998) 3 SCC 144] and held that the appointment of a SPP should not be made on the mere asking of the complainant. The court observed that such appointments result in ouster of the regularly appointed Public Prosecutor and create a feeling of distrust and demoralize the Public Prosecutors as a class. The court also noted that the role of a Public Prosecutor is different from the role of a counsel or Advocate engaged by a party and that the Public Prosecutor has to place the evidence collected by the prosecution dispassionately and in a disinterested manner to serve the larger interest of the community.
Final Decision: The court allowed the petition and set aside the impugned order appointing the SPP. The court directed that the regular Public Prosecutor shall continue to appear in the trial and that Shri R.N. Sen, Advocate, who was appointed as SPP, shall be allowed to assist the prosecution on the basis of permission granted under sub-section (2) of Section 301 Cr.P.C.
D.M. Dharmadhikari, J.
1. The petitioner is facing sessions trial for offences under Sections 498-A and 304-B of the Indian Penal Code and Section 3/4 Dowry Prohibition Act.
2. The complainant/respondent no. 5 had engaged respondent no. 4 Shri R.N. Sen, Advocate, Satna as counsel to assist the prosecution and was permitted to do so under Section 301 (2) of the Cr.P.C. During the course of trial, the State Government by impugned order dated 23rd December 1997 has appointed Shri R.N. Sen as Special Public Prosecutor under Section 24 (8) of the Cr.P.C.
3. Shri Manish Datt, learned counsel appearing for the petitioner contends that the State Government has not duly exercised its power of appointment of Special Public Prosecutor under Section 24 (2) of the Code. It is submitted that Shri R.N. Sen, Advocate has been engaged by the complainant. He appeared along with the Public Prosecutor to oppose the bail application. The counsel engaged by the complainant has been appointed as Sepcial Public Prosecutor on mere asking. The Collector/District Magistrate in recommending his appointment did not state any cogent reasons. The State Government has also not shown any strong justification for appointing Shri R.N. Sen, Advocate as Special Public Prosecutor when the prosecutor already appointed by the State is fully competent to conduct the trial.
4. In assailing the appointment of special Public Prosecutor, reliance is placed on the decision of the Supreme Court in the case of Mukul Dalai and ors. V. Union of India and others [ (1998) 3 SCC 144] which has been relied by the Division Bench of this Court in Sunil Kumar V. State of M.P. & Ors. (1992 MPU 772) and a Single Bench decision of this Court in Rajendra Nigam V. State of M.P. (1998 Cri. L.J. 998). Reference is also made to a Single Bench decision os U.L. Bhat, J. (as he then was) in Moosa Abdul Rahiman V. State of Kerala (1982 Cri.L.J. 2085 -Kerala High Court).
5. I have also heard Shri P.D. Gupta, learned counsel appearing for the State, and Shri R.N. Rai, Advocate, appearing for Shri R.N. Sen, Advocate, respondent no. 4 and the complainant Subhash Agrawal, respondent no. 5. On behalf of the respondents it is submitted that this is a case relating to a heinous crime of committing dowry death of newly married girl. The accused persons belonged to a wealthy and influential family. The complainant expressed apprehension that the accused on the basis of their affluence and influence will some how make effort to secure acquittal in the criminal case. The complainant, therefore, is desirous of engaging a Special Public Prosecutor to see that the guilty are punished.
6. On behalf of the State, justifying the appointment of Shri R.N. Sen, Advocate as Special Public Prosecutor, it has been stated that the application of the complainant was considered in accordance with the guidelines in the Law Mannual. A report from the District Magistrate was called and on over-all consideration, and looking to the nature of the case, the government thought it proper to appoint a Special Public Prosecutor. Along with the return, the opinion of the District Magistrate has been annexed as Annexure-R/3 dated 29.10.1997. The District Magistrate in his recommendation has merely reproduced the version of the complainant that the accused persons are influential and wealthy. In his recommendation, the District Magistrate further states that the proposal of appointment of Shri R.N. Sen, Advocate would be in public interest and in the interest of justice. On behalf of the complainant, learned counsel appearing for him submitted that the regular Public Prosecutors are busy in several cases and it is, therefore, necessary that a Special Public Prosecutor be appointed to look after the present case which has created a sensation in the town as the newly married bride was done to death within a very short period of her marriage. On behalf of the complainant, the learned counsel submitted that the appointment of Special Pros
