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2017 Supreme(MP) 989
IN THE HIGH COURT OF MADHYA PRADESH
Prakash Shrivastava, J.
Pawan Kumar Saraswat and another v. State of M. P.
Writ Petition No. 2122 of2017 (Indore); Decided on 11.12.2017
Gagan Parashar for petitioners; Mukesh Parwal for respondent/State;
Girish Desai for respondent No. 4.
Headnote:(1) Criminal Practice -- role of public prosecutor -- is to produce complete and correct facts before Court in unbiased manner and to ensure fair trial. 2001(5) MPHT 579 and Writ Petition No. 6743 of 2011 decided on 19.1.2012 relied on. [Para 7
(2) Criminal P. C., 1973 -- S.24 (8) -- appointment of Special Public Prosecutor -- power conferred on State is to be exercised judiciously and for valid reasons -- duly appointed public prosecutor cannot be replaced by a Special Public Prosecutor merely on wish of a party without application of mind. [Para 7
(3) Criminal P. C., 1973 -- S.24 (8) -- order of appointment of Special Public Prosecutor -- no reasons whatsoever assigned to show need for appointment -- mere mention that it is a special case -- not sufficient -- his remuneration to be paid by complainant -- he has been counsel for complainant -- impugned order appointing him as special public prosecutor cannot be sustained. (1988)3 SCC 144 followed. 1992 MPLJ 772, 1998 CrLJ 998, 2001(5) MPHT 579 and Writ Petition No. 6743 of 2011 decided on 19.1.2012 relied on. [Paras 15 to 17
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¼2½ naM izfØ;k lafgrk] 1973 && /kkjk 24¼8½ && fo'ks"k yksd vfHk;kstd dh fu;qfä && jkT; iznÙk 'kfä U;k;lEer :i ls rFkk fof/kekU; dkj.kksa ds fy, iz;qä dh tkuk gksrh gS && lE;d~:is.k fu;qä yksd vfHk;kstd dks euksfu;ksx ds fcuk] dsoy fdlh i{kdkj dh bPNk ij izfrLFkkfir ugha fd;k tk ldrkA¼iSjk 7
¼3½ naM izfØ;k lafgrk] 1973 && /kkjk 24¼8½ && fo'ks"k yksd vfHk;kstd dh fu;qfä dk vkns'k && fu;qfä dh vko';drk n'kkZus ds fy, fdlh Hkh izdkj dk dkj.k ugha fn;k x;k && mYys[k ek= fd ;g fo'ks"k ekeyk gS && i;kZIr ugha && mldk ikfjJfed ifjoknh }kjk lanÙk fd;k tk,xk &&og ifjoknh dk dkmUlsy jgk gS && mls fo'ks"k yksd vfHk;kstd fu;qä djus dk vkf{kIr vkns'k dk;e ugha j[kk tk ldrkA ¼1988½3 ,l lh lh 144 vuqlfjrA 1992 ,e ih ,y ts] 772] 1998 lhvkj ,y ts 998] 2001¼5½ ,e ih ,p Vh 579 rFkk fjV ;kfpdk Ø- 6743 lu~ 2011 fu.khZr fnukad 19-1-2012 voyafcrA ¼iSjk 15 ls 17
1. Being aggrieved with the order dated 22.2.2017 passed by Additional Secretary Law and Legislative Affairs Department of the State under section 24(8) of CrPC appointing respondent No. 4 as Special Public Prosecutor in Sessions Case No. 9608906/16 (Crime No. 459/16) the petitioners have approached this Court by way of present writ petition.
2. Petitioner No. 2 is facing trial in the aforesaid crime number for offence under sections 306, 201 and 34 IPC and according to petitioner the impugned order has been passed illegally in colourable exercise of power.
3. Learned counsel for petitioners submits that respondent No. 2, 4 had appeared for the complainant in the earlier proceeding, therefore, he will not be fair and impartial in conducting the trial and that as per impugned order respondent No. 4 will be paid remuneration by complainant which is illegal and that serious prejudice will be caused to petitioners in case if the trial is conducted by respondent No. 4.
4. Learned counsel for State has supported the impugned order submitting that the order has been passed in due exercise of power under section 24(8) of CrPC.
5. Learned counsel for respondent No. 4 has also supported the impugned order and has submitted that mere appearance of respondent no. 4 earlier for the complainant or payment of fee by the complainant is not sufficient ground to set aside the impugned order and there is nothing to presume that respondent No. 4 will not conduct trial in fair and impartial manner.
6. I have heard the learned counsel for the parties and perused the record.
7. The role of a public prosecutor is to produce complete and correct facts before the Court in unbiased manner and to ensure fair trial. Sub-section (8) of section 24 of CrPC empowers the state Government to appoint special Public Prosecutor who has been in practice as an advocate for not less than 10 years but while doing so state cannot ignore the impartial role of a public prosecutor. The power conferred on the State under this sub-section is to be exercised judiciously and for valid reasons. The State cannot appoint a special public prosecutor in a mechanical manner merely on asking by the complainant. It is not the scheme of the provision that duly appointed public prosecutor can be replaced by a Special Public Prosecutor merely on the wish of a party without application of mind.
8. Supreme Court in the matter of Mukul Dalal and others v. Union of India and others, reported in (1988)3 SCC 144, taking note of the fact that office of public prosecutor is public one has held that while considering the application for appointment of Special Public Prosecutor it is required to be examined whether the case merits the appointment of a Special Public Prosecutor and the preposition that whenever an application is made it should be allowed and a Special Public Prosecutor should be appointed is contrary to the spirit of the scheme of the Code. It has been noted that there may be cases where a powerful complainant may begin a proceeding to victimize his opponent and if in such a case the state concedes to the request for appointment of a Special Public Prosecutor there will be travesty of justice.
9. The Division Bench of this Court in the matter of Sunil Kumar @ Chander Salariya v. State of M.P. and others, reported in 1992 MPLJ 772 has held that State can exercise the power under section 24(8) of CrPC only in exceptional cases and for the reasons to be recorded and if the appointment order does not disclose any reason for appointment of Special Public Prosecutor and the order further reads that Government would not pay any fees to the public prosecutor, the conclusion would be that the public prosecutor was appointed not for any necessity but to please and satisfy the relations of the deceased.
10. Following the said decision this Court in the matter of Rajendra Nigam v. State of Madhya Pradesh and others, reported in 1998 CriLJ 998, has held that special public prosecutor is not
