N Criminal Appeal No 305306  307 of 1988
From the Judgment and Order dated 2nd3rd July 1986 of the High Court of Bombay in Criminal application No 1127 527 and 866 of 1985
SB Bhasme MC Bhandare Dilip Pillai PK Pillai T Sridharan and Amit Desai for the appellants
VM Tarkunde RK Garg MS Rao YR Naik Rajadyaka SB Jaisingha Ms R Jethmalani C Ramesh and Ashok Sharma for the Respondents
VS Desai GB Sathe AM Khanwilkar and AS Bhasme for the State of Maharashtra
The Judgment of the Court was delivered by RANGANATH MISRA J
Special Leave granted in each of the three cases
A common questions arising for consideration in these appeals is as to the justifiability of the appointment by the State of Special Public Prosecutors and Assistant Public Prosecutors under sections 24 and 25 respectively of the Code of Criminal Procedure 1973 at the cost of the private complainants
In Criminal Appeal arising out of SLP Crl No 3027 of 1986 the appellants are facing prosecution for charges of forgery and cheating before the Additional Chief Metropolitan Magistrate 37th Court Esplanade Bombay
On 4th of December 1979 the Government of Maharashtra appointed as Assistant Public Prosecutor for conducting the said case for the prosecution in exercise of powers under section 251 of the Code of Criminal Procedure
In the connected Criminal Appeal arising out of SLP Crl No 3048 of 1986 the appellant is accused of an offence punishable under section 409 read with sections 120 B and 34 of the Indian Penal Code and is facing his trial in the 871 court of the same Metropolitan Magistrate
On 3rd of August 1983 the State of Maharashtra in exercise of powers under section 248 of the Code of Criminal Procedure has appointed two advocates as Special Public Prosecutors for conducting the prosecution
In the other connected Criminal Appeal arising out of SLP Crl No 703 of 1987 the appellants are being tried for offences punishable under sections 506ii 337 354 504 498 A read with sections 114 and 34 of the Indian Penal Code in the Court of the same Metropolitan Magistrate 40th Court Girgaum Bombay
By notifications dated 4th December 1979 3rd August 1983 and 17th July 1985 the Government of Maharashtra in exercise of powers under section 248 of the Code appointed two advocates as Special Public Prosecutor for conducting the prosecution
These notifications were assailed in a group of writ petitions before the Bombay High Court and a Division Bench of that Court by a common judgment dated 2nd July 1986 rejected the writ petitions and upheld the appointments
That common judgment of the High Court is assailed in this batch of appeals
Since common questions have been raised and argued at a time this judgment shall dispose of all the three appeals
The impugned appointments have been made either in exercise of powers under section 24 or section 25 of the Code of Criminal Procedure of 1973
Section 24 deals with Public Prosecutors while section 25 makes provisions for Assistant Public Prosecutions
While sub section 1 of section 24 enables the Central Government or the State Government to appoint a Public Prosecutor or an Additional Public Prosecutor for the purpose of High Courts sub section 2 makes provision for appointment of one or more Public Prosecutors for the purposes of conducting of cases in any district or local area and sub sections 4 5 6 and 7 deal with the modality of such appointments sub section 8 provides 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
 Section 25 deals with the appointment of Assistant Public Prosecutors Sub section 1 provides The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the courts of magistrates 872 The provisions contained in these two sections in the Code of 1973 correspond to section 492 of the old Code which dealt with the appointment of Public Prosecutors
Challenge by the appellants to the notifications in question is on the ground that the Code confers a special status on the Public Prosecutor whenever it has been considered necessary law has prescribed the interest to be represented by the Public Prosecutor and it would not be in proper exercise of power by the State Government to make appointment of a Special Public Prosecutor to support a private transaction and provide for his remuneration from private source
The High Court referred to some decisions of the different Courts supporting and opposing the view canvassed before it and came to hold According to us the conduct of prosecution by a lawyer appointed and paid by the private party does not affect his capacity and ability to perform his role as a Public Prosecutor
To accept such a proposition is to invalidate all private prosecutions
 Negativating the plea advanced by the appellants the High Court has further held For the reasons given above with respect it is not possible for us to agree that a pleader engaged by a private person is a de facto complainant and cannot be expected to be as impartial as a pleader appointed by the State to conduct public prosecution
On the other hand we are of the view that as stated earlier permission to engage an advocate should be given freely to the complainant
The complainant has as much a right as the accused to represent his case effectively before the court
 The High Court also negatived the challenge against the appointment of the Assistant Public Prosecutors under section 25 by holding Hence the absence of a provision such as section 248 will not bar appointment of an Assistant Public Prosecutor specially to conduct a case or class of cases
 While dealing with the matter at a different place in the judgment the High Court observed 873 But apart from this we are of the view that guidelines or no guidelines whenever there is a request made by a private party to engage an advocate of his choice to be paid for by him the request should be granted as a rule
The complainant in such cases is either a victim of the offence or is related to the victim or otherwise an aggrieved person
He has a right to be heard and vindicated
As stated earlier the right to be heard implies a right to be effectively represented at the hearing of the case
He has therefore a right to engage an advocate of his choice
There is therefore no reason why the State should refuse him the permission to conduct the prosecution with the help of his advocate   Appellant s counsel have challenged these conclusions of the High Court
Under the Criminal Procedure Code the Public Prosecutor has a special status and his is a statutory appointment
Under some of the provisions made in the Code he receives special recognition
Section 2u of the Code defines the Public Prosecutor
Sections 1992 225 3011 3012 302 308 321 377 and 378 are some of the provisions in the Code which confer a special position upon the Public Prosecutor
From the spirit contained in the scheme of the Criminal Procedure Code it is clear that it is the duty of the Public Prosecutor to support prosecutions initiated by the State
Trial before a court of session has to be conducted by the Public Prosecutor as required under section 225 of the Code
Cases instituted on a police report are intended also to be handled by a Public Prosecutor
Cases instituted on a complaint however stand on a different footing and the complainant has choice of his own counsel
A set of rules known as Maharashtra Law Officers Appointment Conditions of Service and Remuneration Rules 1984 made in exercise of powers conferred by proviso to Article 309 read with Article 165 of the Constitution have been placed before us in course of the hearing
Chapter III of those rules lays down qualifications of the Government Pleader and Public Prosecutor while Chapter IV prescribes the duties of the Public Prosecutor
Another set of rules known as The Rules for the Conduct of the Legal Affairs of the Government 1984 which appears to be administrative in character was also placed before us
Chapter III of these Rules provides for Special Counsel and Special Public Prosecutors and Rule 22 thereof provides If in any case civil or criminal a request is made by any private party interested in the case for the appointment of 874 its own advocate as a Special Counsel or Special Public Prosecutor as the case may be on the condition that the payment of fees of such advocate will be borne by that party the Remembrancer of Legal Affairs may after considering such case on merits appoint such advocate for the particular case or cases
 Appellant s counsel challenged the validity of Rule 22 and contended that such a Rule is contrary to the spirit of the Code of Criminal Procedure and this rule affects the special status conferred on the Public Prosecutor and would cause prejudice to that public office
The office of the Public Prosecutor is a public one
A learned Single Judge of the Delhi High Court in KC Sood vs SC Gudimani 1981 Crl
LJ Vol
II 1779 rightly held that the Public Prosecutor the Additional Public Prosecutor and the Assistant Public Prosecutor hold an office
The learned Judge said It is public office of trust and therefore like any other public office is susceptible to misuse and corruption and if not properly insulated
It is an office of responsibility more important than many others because the holder is required to prosecute with detachment on the one hand and yet with vigour on the other
When advocates are recruited to these offices they have certain professional and official obligations and privileges
Some State Governments have appropriately made it an express term of their appointment that they shall not accept any brief in criminal matters and shall not even in civil matters appears in any case in which the interests of the State appear to be involved
 Similar observations were made by another learned Single Judge in the case of PG Narayanankutty vs State of Kerala and Ors 1982 Crl
LJ Vol 88 2085
In this case Bhat J of the Kerala High Court pointed out Special Public Prosecutor cannot be appointed with a view to secure convictions at all costs
Special Public Prosecutor could be appointed only when public interest demands it and not to vindicate the grievances of a private person such as close relation of the deceased
In order that he discharges his duties properly he should look to the State for remuneration for his services if he looks to a 875 private party for his remuneration his capacity and ability to perform his role as Public Prosecutor properly will be endangered
Government cannot appoint Special Public Prosecutor on such terms abdicating their financial responsibility or directing him to receive his remuneration from any private individual   
Some other High Courts have taken a different view of the matter
A division Bench of the Gujarat High Court in Dilipbhai Chhotalal Dave vs State of Gujarat  Ors 1971 Guj
LR Vol
12 999 considered a case of this type where the Public Prosecutor and the Assistant Public Prosecutor were designated as Special Public Prosecutors for conducting a particular case
It was found by the Court that remuneration of the advocates had been left to be fixed by agreement between them and the Central Bank of India for whom they were to appear was to pay them directly
The High Court held That though the Public Prosecutor would be incharge of and is required to conduct the prosecution before the court of sessions the control of proceedings before the Court is ultimately in the hands of the presiding Judge
It would not be unreasonable to assume that if there is unnecessary prolongation of the trial and consequential harassment of the accused at the hands of the Public Prosecutor or unfair handling of the prosecution case by the prosecutor the Court would always intervene and protect the accused and ensure a fair trial
 The Court further found that Rule 38 of the Gujarat Law Officers Conditions of Service Rules 1965 made provision that if a Special Counsel was appointed the terms and conditions of his employment would be such as may be determined by the State Government by an order in writing
It was open to the State Government to provide for fees of the Special Counsel appointed by it to be paid by virtue of an agreement directly arrived at between the Special Counsel and the complainant
 Some other cases taking the same view as the Gujarat High Court were also placed before us in course of the hearing 876 The pattern that prevails in most of the States is that there is a Remembrancer of Legal Affairs who inter alia looks after the cases instituted by the State
At the district level such interest of the State is looked after by the District Magistrate
There may be instances where a case instituted on a private complaint is really a public cause
In such a case the prosecution though initiated by a private individual is really one which should be taken over by the State
If the complainant thereof approaches the State for assistance in a case of that type by appointing a Special Public Prosecutor or an Assistant Public Prosecutor to support the prosecution it would be for the Legal Remembrancer or the District Magistrate to favourably consider such a request and it would ordinarily be expected that Government would appoint a Special Public Prosecutor to take charge of the prosecution
There may also be cases of private complainants where for various other reasons it would be appropriate for the State to support the prosecution by appointing a Public Prosecutor or a Special Public Prosecutor to look after the case
Instances of this type would be cases where the victims are of economically backward classes who are not in a position to vindicate their rights through Court without the assistance of the State
Here again the Public Prosecutor s services may be placed at the disposal of the complainant
It is a well known position in Criminal Jurisprudence that the State is the prosecutor and that is why the primary position is assigned to the Public Prosecutor and where the Public Prosecutor appears the request of the complainant or the victim to be represented by any other counsel is subject to permission of the Court
Two questions have now to be dealt with whether as a rule whenever there is a request made by a private complainant for the appointment of a Special Public Prosecutor should the same be accepted and whether such Special Public Prosecutor should be paid by the private party availing his services
In most of the States as we have already observed the Remembrancer of Legal Affairs looks after the State litigations
He is a responsible officer and normally with judicial experience
When an application for the services of a Special Public Prosecutor or an Assistant Public Prosecutor is made in a given case the power would be vested in him to examine the facts and take decision as to whether the case merits the appointment of a Special Public Prosecutor or an Assistant Public Prosecutor
It would not be appropriate to accept the position that whenever an application is made it should be allowed and a Special Public Prosecutor should be appointed would be contrary to the spirit of the scheme of the Code
There may be cases where a powerful complainant may have begun a 877 proceeding to victimize his opponent
If in such a case the State concedes to the request for appointment of a Special Public Prosecutor there will be travesty of justice
Without screening on the basis of guidelines prescribed or to be prescribed the services of a Special Public Prosecutor should not be made available to a private complainant
The primacy given to the Public Prosecutor under the scheme of the Code has a social purpose and the same would be lost if the procedure adopted by Rule 22 of Maharashtra Rules referred to above is accepted or what the High Court has indicated is adopted
We are inclined to observe that the request for appointment of a Special Public Prosecutor should be properly examined by the remembrancer of Legal Affairs and only when he is satisfied that the case deserves the support of a Public Prosecutor or a Special Public Prosecutor that such a person should be appointed to be incharge of the case
The next question would be whether the Special Public Prosecutor should be permitted to be paid by the private complainant
There is considerable force in what has been stated by the Kerala High Court in the case we have referred to above
There may be certain cases where exception may be made such as where the prosecutor is a public sector undertaking a bank whether nationalised or not an educational institution and the like
The rate of fees should be prescribed and the private complainant should be called upon to deposit the fees either with the Remembrancer of Legal Affairs or a prescribed State agency from where the fees would be drawn by the Special Public Prosecutor
To leave the private complainant to pay to the Special Public Prosecutor would indeed not be appropriate
We would make it clear that we do not support the conclusion of the High Court that as a rule whenever there is request of appointment of a Special Public Prosecutor or an Assistant Public Prosecutor the same should be accepted
The Remembrancer of Legal Affairs should scrutinise every request keeping a prescribed guideline in view and decide in which cases such request should be accepted keeping the facts of such case in view
Ordinarily the Special Public Prosecutor should be paid out of the State funds even when he appears in support of a private complainant but there may be some special case where the Special Public Prosecutor s remuneration may be collected from the private source
In such cases the fees should either be deposited in advance or paid to a prescribed State agency from where the Special Public Prosecutor could collect the same
In view of these conclusions and our disagreeing with the view of the High Court the appeals shall stand allowed
Rule 22 of the Maharashtra Rules referred to above in our view is bad and the State Government should properly modify the same keeping 878 our conclusions in view
The Remembrancer of Legal Affairs of the Maharashtra Government will now decide as to whether in the three cases referred to here the services of a Special Public Prosecutor a Public Prosecutor or an Assistant Public Prosecutor should be provided and in case he comes to the conclusion that such provision should be made he should decide as to whether the State administration should pay for such Public Prosecutor or the private complainant should bear the same
There would be no order as to costs
HSK Appeals allowed


Summary:
The appellant was the widow of a tonga driver who died in police custody
It is alleged that on the fateful night of 222381986 two sub inspectors accompanied by two constables visited the house of one Sudesh Kumar and started beating him
On hearing his shrieks his maternal uncle Gopi Ram the tonga driver tried to intervene whereupon the policemen are alleged to have beaten him also
Both of them were arrested taken to the police station stripped of their clothes and beaten with iron rods
The tonga driver succumbed to his injuries at the police station
Thereafter a post mortem was conducted and the dead body was cremated without handing it over to the appellant
The aforesaid incident caused consternation in the locality and a mob surrounded the police station to lodge its protest against the death of the tonga driver in police custody
Undaunted the police registered a case under Sections 147 149 and 353332 IPC against the brother of the deceased and others as they were members of the mob
Sudesh Kumar filed a written complaint naming the two sub inspectors and the constables as responsible for the death of his maternal uncle which was registered under Section 302342 IPC No action was however taken against those officers
After some time the case was converted to Section 304 IPC for purpose of investigation
701 The appellant approached the High Court by a writ petition under Article 226 for transferring the investigation of the case from the Crime Branch of the State Police to the Central Bureau of Investigation
The Division Bench however dismissed the petition
Disposing of the Appeal this Court  HELD 1
The police have not acted in a forthright manner in investigating the case registered on the complaint of Sudesh Kumar
704C D 2
The circumstances available on record prima facie show that effort has been made to protect and shield the guilty officers of the police who are alleged to have perpetrated the barbaric offence of murdering Gopi Ram by beating and torturing
704D 3
The appellant had been crying hoarse to get the investigation done by an independent authority but none responded to her complaint
704D E 4
The Additional Sessions Judge while considering the bail application of one of the Constables Jagmal Singh considered the autopsy report and observed that the Doctor had postponed giving his opinion regarding the cause of death although the injuries were antimortem
704D E 5
The Sessions Judge referring to a number of circumstances observed that the investigating officer had converted the case from Section 302 IPC to 304 IPC on flimsy grounds within hours of the registration of the case even without waiting for the post mortem report and that it was a prima facie case of deliberate murder of an innocent illiterate poor citizen of Delhi in police custody and investigation was partisan
704E F 6
In the interest of justice it is necessary to get a fresh investigation made through an independent authority so that the truth may be known
704H 7
The trial court before whom the charge sheet has been submitted shall exercise its powers under Section 1738 Cr
PC to direct the Central Bureau of Investigation for proper and thorough investigation of the case
On issue of such direction the CBI will investigate the case in an independent and objective manner and submit additional charge sheet if any in accordance with law
705A B 702