1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03.03.2011 CORAM: THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Crl.O.P.(MD).No.69 of 2011 V.Chellaiah ... Petitioner Vs. 1. The District Collector Thoothukudi District. 2. The Deputy Superintendent of Police Thoothukudi Town Thoothukudi District 3. The Inspector of Police Thoothukudi South Police Station 4. Reghunathan ... Respondents PRAYER: This Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to direct the first respondent to appoint a Special Public Prosecutor for the trial of S.C.No. 34 of 2010 on the file of the II Additional Sessions Judge/Special Judge for SC/ST Act Cases, Tirunelveli. For Petitioner : Mr.A.Thiruvadi Kumar For RR 1 to 3 : Mrs.S.Devasena Government Advocate (Crl. Side) For 4th Respondent : Mr. G.Prabhu Rajadurai O R D E R This Petition has been filed by the petitioner/de-facto complainant seeking for a direction to the first respondent to appoint a Special Public Prosecutor for the trial of S.C.No. 34 of 2010 on the file of the II Additional Sessions Judge / Special Judge for SC/ST Act Cases, Tirunelveli. 2. Heard Mr.A.Thiruvadi Kumar, learned counsel appearing for the petitioner, Mrs.S.Devasena, learned Government Advocate (Crl. Side) appearing for the respondents 1 to 3 and Mr. G.Prabhu Rajadurai, learned counsel appearing for the fourth respondent. https://hcservices.ecourts.gov.in/hcservices/ 2 3. The learned counsel appearing for the petitioner would submit in his argument that the petitioner is the de-facto complainant and upon his complaint, a case has been registered under Sections 420, 506(ii) of IPC and Section 3 (1) (x) of SC/ST (PA) Act, in Crime No. 364 of 2008 by the third respondent and the same was investigated by the second respondent police and the charge sheet has been filed, which was taken on file and PRC was numbered and thereafter, it has been committed to the Sessions Court and the Sessions Court had also taken cognizance of the case and it is now pending in S.C.No. 34 of 2010 on the file of the II Additional Sessions Judge / Special Judge for SC/ST Act Cases, Tirunelveli. He would further submit in his argument that the said case was entrusted with the Public Prosecutor, who is belonging to DMK party. He would further submit in his argument that the Special Public Prosecutor, namely, Mr.Kalaiselvan, affiliated to the said party; whereas the accused persons also belonging to the same DMK party. He would further submit in his argument that as per the Rule 4 (5) of the SC/ST (PA) Rules, the Victims of atrocities are entitled to choose an eminent senior Advocate for conducting the cases in Special Court on such payment of fees as it may be considered appropriate. He would further submit in his argument that if for any reason, the said Special Public Prosecutor, Mr.Kalaiselvan, is permitted to continue to conduct of the prosecution, there is a likelihood of siding with the accused and there is a possibility of dilution of the case. He would further submit in his argument that the petitioner/de-facto complainant would be an aggrieved party in the said circumstances and therefore, suitable person may be appointed as Special Public Prosecutor for conducting the trial in S.C.No. 34 of 2010 and the first respondent may be directed to appoint such a person as per Rule 4 (5) of the SC/ST (PA) Rules. 4. The learned Government Advocate (Crl. Side) appearing for the respondents 1 to 3 would submit in her argument that there is no dispute that the petitioner is entitled to seek for the appointment of any eminent senior Advocate for conducting the case on his behalf. But the present Public Prosecutor would be siding with the accused merely because both are belonging to same party is not correct. She would further submit in her argument that the Special Public Prosecutor appointed for the purpose, is also belonging to the Scheduled Caste Community and therefore, there cannot be any apprehension on the part of the petitioner that the Special Public Prosecutor would side with the accused persons. She would further submit in her argument that if really the petitioner wants to have an eminent senior lawyer to conduct the case, it is for the petitioner to seek for prosecution assistance under the relevant provisions of Cr.P.C. He would also submit in her argument that the petition filed by the petitioner is therefore not sustainable. 5. The learned counsel appearing for the fourth respondent would submit in his argument that the petitioner/de-facto complainant has filed the present petition just to drag on the proceedings. He would further submit in his argument that there is no truth in the allegations made against him in the complaint and the petitioner https://hcservices.ecourts.gov.in/hcservices/ 3 wanted to prolong the case having found that there is no truth in his complaint. Therefore, he would request the Court that the petition filed by the petitioner may be dismissed and to pass a direction for the expeditious disposal of the case. 6. I have given anxious thoughts to the arguments advanced on all the sides. 7. The petitioner's claim was that the case in S.C.No. 34 of 2010 pending before the learned II Additional Sessions Judge/ Special Judge for SC/ST Act cases, Tirunelveli, is being conducted by one Mr.Kalaiselvan, who is the Special Public Prosecutor belonging to DMK party; whereas the accused persons is also belonging to DMK party and therefore, there is a likelihood of the Special Public Prosecutor siding with the accused person. No doubt, it is true that the Special Public Prosecutor is appointed by the State Government, who is one of the members of the SC/ST Community. The said purpose of appointment is to support to cause social justice to the members of the SC/ST Community. The suspicion on the part of the petitioner that the Special Public Prosecutor appointed so would side with the accused person, who is also belonging to the same political party cannot be sustained. However, it cannot be ignored that as per Rule 4 (5) of the SC/ST (PA) Rules that the accused persons can apply to District Magistrate concerned where the case has been pending for the engagement of Senior eminent counsel for the conduct of the case with the fees to be paid for the said counsel by the State. However, the petitioner has come forward with the present Petition on the allegations made against the Special Public Prosecutor. In the said circumstances, this Court is not accepting the reason for the removal of the Special Public Prosecutor already appointed for the purpose of conducting the case by the Government. It is for the petitioner to apply for the engagement of a senior eminent lawyer for conducting the case before the Lower Court and the said court on such filing of the petition to consider and to pass orders for appointment of any senior eminent lawyer of the said bar as per Rule 4 (5) of the SC/ST (PA) Rules. Therefore, this Court is not inclined to pass any orders as requested for by the petitioner. However, it has been relegated to the Lower Court to act in accordance with the Rules 4 (5) of the SC/ST (PA) Rules, on the steps taken by the petitioner. 8. The Lower Court is directed to stop the proceeding in the event of a petition has been filed for such appointment of senior eminent lawyer for conducting the case before it and to proceed further only after passing orders in the said petition. 9. With the aforesaid observation, this Petition is disposed of. Sd/- Deputy Registrar (LA) /True Copy/ Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 4 To 1. The II Additional Sessions Judge/ Special Judge for SC/ST Act Cases, Tirunelveli. 2. The District Collector Thoothukudi District. 3. The Deputy Superintendent of Police Thoothukudi Town Thoothukudi District 4. The Inspector of Police Thoothukudi South Police Station 5. The Additional Public Prosecutor Madurai Bench of Madras High Court Madurai +1 CC to Mr.G.Prabhu Rajadurai, Advocate (SR.No.11606) Crl.O.P.(MD).No.69 of 2011 03.03.2011 vsg NSV/6.4.11/4P/7C https://hcservices.ecourts.gov.in/hcservices/