1 wp-592-2011 Srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.592 OF 2011 Rohit Rai Mehra ...Petitioner Versus The State of Maharashtra & anr. ...Respondents Mr.Vipin Singhania i/b. Daksha M. Shah for petitioner. Mr.P.A.Pol, APP for State. Mr.V.C.Gupte i/b. Mr.P.P.Prabhu for resp.no.3. CORAM: B. H. MARLAPALLE & U.D.SALVI, JJ. June 27, 2011. P.C. 1. We have heard the learned counsel for the petitioner and he impugns the order dated 8th May 2009 passed by the RLA under Rule 22 2 wp-592-2011 of the Maharashtra Law Officers (Appointment, Conditions of Services and Remuneration) Rules, 1984 (for short “the Rules of 1984”) thereby appointing Shri S.D. Mokashi in place of Shri V.T. Tulpule, as a Special Public Prosecutor in Special Case No.33/P/2000 (New Case No. 2622/PW/2005) pending before the learned Metropolitan Magistrate, 29th Court, Bhoiwada, Dadar, at the behest of respondent no.3 and who is the wife of the petitioner. 2. The Principal Secretary and RLA in the Department of Law and Judiciary, Government of Maharashtra, has filed affidavit in reply and stated in paragraphs 13 and 14 as under: “13. I say and submit that in view of the facts stated hereinabove, it is evident that before issuance of the notification for appointment of Special Public Prosecutor, the department has examined and scrutinized the proposal in accordance with Apex Court Judgment and Rules under Maharashtra Law Officers Rules, 1984 and has considered public importance, recorded the reasons and has followed prescribed procedure and completed all formalities and has also considered nature of case, gravity of offence and circumstances brought on record and thought it fit that it was necessary to appoint Special Public Prosecutor at the cost of complainant. I 3 wp-592-2011 say and submit that the Government desires to ensure that trials are conducted properly, sincerely and seriously in all cases. I say that the Department has taken action in conformity of relevant provision of Rule 22 of Rules for Conduct of Legal Affairs of Government, 1984 and hence the notification is issued. I say and submit that the Government has considered the case in its true perspective and hence there is no violation of provisions of law. I say that the Government has also considered eligibility, suitability and competency of Advocate Shri Mokashi, who was appointed as Special Public Prosecutor and hence notification issued by the Government is not liable to be quashed and set aside. I say that the said appointment is also approved by the Hon’ble Law Minister of the State. 14. In the aforesaid circumstances, the record shows that before issuing the notification of appointing Special Public Prosecutor, Law & Judiciary Department has followed the prescribed Rules and Procedure and completed all the formalities. I say that taking into consideration the foregoing facts, it is clear that the grievance of the present petitioner does not survive and hence petition filed by the petitioner may be dismissed.” 3. It appears that in Special Case No.33/P/2000 (New Case No. 2622/PW/2005) filed for the offences punishable under Sections 498-A, 4 wp-592-2011 406 read with Section 34 of IPC as well as under Sections 3 and 4 of the Dowry Prohibition Act, the Government of Maharashtra by its order dated 1st November 2000 had appointed Shri V.T. Tulpule, as Special Public Prosecutor and he continued for about seven years. On or about 21/11/2008 the respondent no.3 approached the Additional Chief Secretary, Home Department to appoint Shri S.D. Mokashi in place of Shri V.T. Tulpule as the Special Public Prosecutor and his consent as well as willingness was submitted. Shri Tulpule by his letter dated 2nd December 2008 addressed to the Additional Chief Secretary, Home Department requested for being relieved and more particularly on the grounds of his ill health. He had undergone by-pass surgery and was unable to devote time to conduct the case. It is under these circumstances, the impugned order came to be passed and as per the affidavit in reply filed by the RLA, the procedure as set out under Rule 22 of the Rules of 1984 was duly followed. The proposal to replace Shri Tulpule was considered and it went through all the stages of scrutiny as required under the Rules. It was scrutinized and examined by the Principal Secretary and RLA and was placed before the Law Minister on 2/4/2009 and on its approval on 8th May 2009 the impugned order was issued. 5 wp-592-2011 4. The learned counsel for the petitioner husband (one of the accused in Special Case No.33/P/2000 - New Case No.2622/PW/2005) submitted that the requirements of the Rules is mandatory and when the complaint pending before the learned Metropolitan Magistrate arose from matrimonial disputes, there was hardly any public interest involved and, therefore, the impugned order cannot be said to be in public interest. He also submitted that it was basically a private complaint and such a power could not be exercised by the State Government. 5. Rule 22(2) of the Rules of 1984 states that on the request of a private complainant not being the aggrieved party, the Government in the Law and Judiciary Department may, appoint any of the Public Prosecutor or Additional Public Prosecutor as a Special Public Prosecutor in accordance with the provisions of sub-rule (1), for conducting any such case. In the instant case the appointment of a Special Public Prosecutor is not from amongst the Public Prosecutor or Additional Public Prosecutors and hence sub-Rule (2) of Rule 22 is not attracted. As per sub-Rule (1) of Rule 22 the State Government may, either suo motu or on the request of any aggrieved party or the concerned Department in the Government, 6 wp-592-2011 engage an advocate who has been in practice as such for not less than ten years as a Special Public Prosecutor in any criminal case or class of cases, as the case may be. The proviso below the said sub-Rule states that no order under it shall be made unless for the reasons to be recorded in writing the RLA is satisfied, having regard to the nature of the case, gravity of the matter and public interest involved in the matter that such appointment is necessary. 6. The learned counsel for the petitioner relied upon decision in the case of Prakash Pralhad Patil Vs. The State of Maharashtra & ors. [(2008) 110 Bom.L.R. 2183] and submitted that the RLA failed to record his satisfaction as required under the Proviso below Rule 22(1) of the Rules of 1984. However, the said decision has been overruled by the Supreme Court in the case of State of Maharashtra and ors. Vs. Prakash Pralhad Patil [(2009) 12 SCC 159]. It would be useful to reproduce the observations in paragraphs 5, 6 and 7 of the said decision, as under: 5. The scope for judicial review has been examined by this Court in several cases. It has been consistently held that the power of judicial review is not intended to assume a supervisory role or don the robes of the omnipresent. The 7 wp-592-2011 power is not intended either to review governance under the rule of law nor do the courts step into the areas exclusively reserved by the suprema lex to other organs of the State. A mere wrong decision, without anything more, in most of the cases will not be sufficient to attract the power of judicial review. The supervisory jurisdiction conferred upon a court is limited to see that the authority concerned functions within its limits of its authority and that its decisions do not occasion miscarriage of justice. 6. The courts cannot be called upon to undertake govenmental duties and functions. The courts should not ordinarily interfere with a policy decision of the State. While exercising power of judicial review the court is more concerned with the decision making process than the merit of the decision itself. 7. In the instant case, acting on a petition filed by close relatives of a victim, decisions have been taken at various levels. The High Court was not justified to pick up stray sentences from the records to conclude that there was non-application of mind. In any event, the appointment of Special Public Prosecutor to conduct a proceeding does not in any way cause prejudice to the accused. In that sense the writ petition before the High Court was wholly misconceived. The impugned judgment of the High Court is set aside. Since the trial appears to have been held up, we direct that the trial court shall make all possible endeavours to see that the trial is completed expeditiously and in any event not later than by the 8 wp-592-2011 end of October 2009. The appeal is, accordingly, allowed. Criminal Miscellaneous Petition No.4051 of 2009 also stands disposed of.” 7. The scope for judicial review in the appointments of Special Public Prosecutor under Rule 22 is very limited and this Court would not ordinarily interfere with a policy decision of the State Government in such an appointment. Mere wrong decision, without anything more, in most of the cases will not be sufficient to attract the power of judicial review and the supervisory jurisdiction conferred upon a Court is limited to seek that the authority concerned functions within its limits of authority and that its decisions do not occasion miscarriage of justice. The Supreme Court also considered the locus standi of the accused to challenge such an order and more so when it is a policy decision duly taken in conformity with Rules. 8. In the instant case the petitioner is placed in a more vulnerable situation in as much as the initial order dated 1st November 2000 appointing Shri Tulpule was not challenged by him for more than seven years. This itself indicated the petitioner’s accepting the case to be fit for appointment of a Special Public Prosecutor. It is only when Shri Tulpule 9 wp-592-2011 has been replaced by the appointment of Shri Mokashi by the impugned order, the petitioner decided to approach this Court and based on our judgment in the case of Prakash Patil (Supra). For about one decade the petitioner accepted the continuation of Special Public Prosecutor in the case against him. 9. Hence the challenge to the impugned order dated 8th May 2009 appointing Shri Mokashi in place of Shri Tulpule as the Special Public Prosecutor in Special Case No.33/P/2000 (New Case No.2622/PW/2005) must fail at the threshold. The petition is dismissed. (U.D.SALVI, J.) (B. H. MARLAPALLE, J.)