Legal Advisers appointed under Special Rules are authorized to conduct prosecutions under the Prevention of Corruption Act and do not contravene statutory provisions of the Cr.P.C.

JUDGMENT

The sole accused in V.C.No.1/2014/PTA now pending as C.C.No.34 of 2016 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram for offences punishable under sections 7, 13(1)(b) r/w 13(2) of the Prevention of Corruption Act, 1988 is the petitioner herein. It was alleged by the prosecution that while he was working as the Special Village Officer and as such being a public servant, abused his official position by demanding and receiving a sum of Rs.5,000/- as illegal gratification from the defacto complainant on 18.02.2014 for effecting mutation of the property of the defacto complainant. After investigation, final report was laid and it is stated that the case is posted for framing charge.

2. Petitioner has approached this Court challenging Ext.P4 notification of the Vigilance Department No.3/2002/Vig., dated 15.01.2002, by which, in exercise of the powers conferred under Sec.2(1) of the Kerala Public Service Act 1968, Government issued Special Rules for the Kerala State Legal Advisers (Vigilance and Anti- Corruption Bureau) Service. Under the Rules, the said service had two categories of officers, (i) Legal Advisers and (ii) Additional Legal Advisers. Additional Legal Advisers were to be appointed by direct recruitment and the Legal Advisers by promotion from the category of Additional Legal Advisers in Vigilance and Anti-Corruption Bureau. The legality of the above G.O. is challenged by the writ petitioner on three specific grounds. (i) the Legal Advisers/Additional Legal Advisers contemplated under the Rules and who are authorized to conduct prosecution before the Enquiry Commissioner and Special Judge are not prosecutors duly appointed under Sec.24 of the Code of Criminal Procedure, 1973 (ii) they are not appointed under the Government Law Officers, (Appointment and Condition of Service and Conduct of Service) Rules 1978 and (iii) Special Rules for Kerala State Legal Advisers (Vigilance and Anti-Corruption Bureau) service 2002, were not laid before the Kerala Legislative Assembly as contemplated under Rule

2 of the Kerala Public Services Act 1968.

3. The reliefs sought in the writ petitioner were, inter alia, to declare that the trial in C.C.No.34 of 2016 on the file of the Enquiry Commissioner and Special Judge (Vigilance), Thiruvananthapuram, wherein the petitioner stood arrayed as the accused, can be conducted only by a Public Prosecutor appointed in terms of Secs.2(u) and 24 of the Code of Criminal Procedure and not by a Legal Adviser or Additional Legal Adviser appointed in terms of Ext.P4, to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents not to permit the Legal Adviser/Additional Legal Adviser in the Court of Enquiry Commissioner and Special Judge (Vigilance), Thiruvananthapuram to conduct prosecution as against the petitioner in C.C.No.34 of 2016 and such other reliefs.

4. Answering the above contentions, a detailed counter affidavit has been filed, traversing each and every factual allegation, the grounds raised and the reliefs sought. Since I propose to deal with each issues separately with reference to the contentions, they are not separately narrated.

5. Advancing the first and second grounds of challenge, learned counsel for the petitioner referred to Sec.2(u) of the Cr.P.C., Sec.24 of the Cr.P.C and Sec.5(3) of the Prevention of Corruption Act. Sec.2(u) defines a Public Prosecutor to mean any person appointed under Sec.24 and it includes any person acting under the directions of a Public Prosecutor. Sec.5(3) of the Prevention of Corruption Act, 1988 states that a person conducting a prosecution before a Special Judge under the PC Act shall be deemed to be a Public Prosecutor. Sec.24 of the Cr.P.C refers to the appointment of the Public Prosecutor for every High Court and Sessions Court. According to the learned counsel for the petitioner, for appointment of Public Prosecutor either in the High Court or at the Sessions Courts in