1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Writ Petition No.1776 of 2008 Sunil Hanumantrao Koppal .. .. Petitioner/ Orig. Accused No.3. V/s. The State of Maharashtra & anr. .. Respondents Mr.Nitin Pradhan i/by Ms.S.D. Khot for Petitioner. Mr.Ravi Kadam, Advocate General with Mr.P.A. Pol, PP and Mrs.M.M. Deshmukh, APP for State. Mr.Satish Maneshinde with Ms.Renuka Laxmeshwar for Applicant-Intervenor in Application No.307 of 2008. ----- CORAM : B.H. MARLAPALLE & SMT.ROSHAN DALVI, JJ. Dated : 1st September,2009 P.C. : 1.Heard Mr.Pradhan for the Petitioner, who is original accused No.3 in Criminal Case No.223/PW/2005 presently arising from CR No.70 of 2005 registered with the Economic Offences Wing, Crime Branch, CID, Mumbai and presently pending before the learned Additional Chief Metropolitan Magistrate, 19th Court, Esplanade, Mumbai, for the offences punishable under Sections 406, 408, 420, 465, 471, 477-A read with Sections 34 and 120-B of the Indian Penal Code. The said case arises from a complaint filed by M/s.Universal Medicare Pvt. Ltd., a Company incorporated under the provisions of the 2 Companies Act, 1956. 2.The main and the only challenge in this Petition is as to the appointment of Shri Vishwas Gupte, Advocate, as Special Public Prosecutor by the State Government for conducting Criminal Case No.223/PW/2005, at the instance of the Complainant-Company. Admittedly, the appointment is made under Section 24(8) of the Code of Criminal Procedure read with the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984. 3.It appears that the Petitioner joined the Complainant- Company as Liaison Officer sometimes in the year 1982 and he resigned from the said employment in the year 1991. He thereafter started his own consultancy service and came to be associated with the Complainant- Company from the year 1996 on contract assignments with respect to obtaining of manufacturing licences etc. from the Government Authorities. In due course, he came to be recognized as a representative of the Complainant-Company by issuing an identity card by the Director General of Foreign Trade, Mumbai and he was representing before various agencies as an agent of the Complainant-Company. In July 2005, CR No.205 of 2005 came to be registered at the Trombay Police Station against the four accused and the Petitioner was shown 3 to be accused No.4. The said CR came to be transferred to the Economic Offences Wing, Crime Branch, CID, Mumbai, for its investigation and was re-registered as CR No.70 of 2005. The name of Shri Madhukar Lodhaya was added as accused No.5 in the CR already investigated by the Economic Offences Wing. On completion of investigation, a charge-sheet came to be filed and the case has been numbered as Criminal Case No.223/PW/2005 in the Court of the Additional Chief Metropolitan Magistrate, 19th Court, Esplanade, Mumbai. By the impugned Notification dated 5.3.2008, Shri Vishwas Gupte came to be appointed as Special Public Prosecutor by the State Government. 4.From time to time, interlocutory orders came to be passed by this Court after hearing the parties and as per the order dated 14.10.2008, the Petition was directed to be fixed for final hearing peremptorily on 17.11.2008. However, on 17.11.2008, it was brought to the notice of this Court that the appointment of Special Public Prosecutor was also a subject matter of challenge in Writ Petition No.234 of 2008, which was allowed on 4.7.2008 and the said judgment was subject matter of challenge before the Apex Court. Hence, the Petition was adjourned awaiting the final decision of the Apex Court. In the meanwhile, the Petition came up on 17th February 2009 and some observations, prima 4 facie, making distinction between the challenge in this Petition and Criminal Writ Petition No.234 of 2008 were sought to be addressed and recorded as under:- 1.The main issue that is involved in this petition is, whether the State can appoint a public prosecutor at the request, choice and expenses of a complainant. This Court has already decided a writ petition being Writ Petition No.234 of 2008. In that writ petition, this Court mainly considered the rules governing the appointment of Special Public Prosecutor. This Court lays that in our criminal judicial system the offences are supposed to have been committed against the State and the position of the public prosecutor in a criminal trial is of a friend of the court and a friend of justice and if the public prosecutor is of the view that case needs to be withdrawn he has even power to seek withdrawal of the prosecution. A public prosecutor is expected to ensure that a guilty is punished and an innocent is acquitted. Whether this plea will continue to govern the criminal trials, if the public prosecutor is of the choice of the complainant if he is being paid by the complainant or not, would be 5 a question which will have to be gone into. 2. At this stage, we feel necessary to mention that the question has not been gone into in Writ Petition No.234 of 2008. However, the judgment in that case is a subject matter of appeal before the Supreme Court of India and the Supreme Court has already stayed the operation of the judgment in that case. Since the Supreme Court is seized of the matter, the issue which this Court is handling may be handled by the Supreme Court, as well. Therefore, proprietary demands that we should postpone hearing of the matter till the Supreme Court decides the appeal. 5. Criminal Appeal No.748 of 2009 arising from Special Leave Petition (Criminal) No.6797 of 2008 in which our judgment dated 4.7.2008 rendered in Criminal Writ Petition No.234 of 2008 was challenged, came to be decided by the Apex Court on 16th April 2009 and the Appeal was allowed by setting aside our judgment in Criminal Writ Petition No.234 of 2008. For ready reference, we may reproduce the following observations of the Apex Court while allowing Criminal Appeal No.748 of 2009:- 6 The State opposed the petition on several grounds primarily indicating that the scope of judicial review of the executive, administrative and quasi-judicial action, was extremely limited and this is not a case where any interference was called for. It appears from the impugned order of the High Court that the original file was called for and scanned as if the High Court was hearing an appeal against a decision taken. 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 omnipresent. The 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 supreme 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. 7 The courts cannot be called upon to undertake governmental duties and functions. 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. 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 a 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. 6.We have gone through the grounds set out in this Petition against the challenge to the appointment of the Special Public Prosecutor. Mr.Pradhan submitted that the challenge is based mainly on the earlier decisions in the case of Mukul Dalal & ors. vs. Union of India & ors., (1988) 3 SCC 144 and N. Natarajan vs. B.K. Subba Rao, (2003) 2 SCC 76. 8 7.We have gone through our judgment in Criminal Writ Petition No.234 of 2008 as well as the judgment of the Apex Court dated 16th April 2009 in Criminal Appeal No. 748 of 2009 and we do not see any reason or any ground to interfere with the impugned appointment, more so in view of the observations made by the Apex Court in the said Appeal and as reproduced hereinabove and, therefore, this Petition must fail at the threshold. The contentions of the Petitioner, that the decision in Criminal Appeal No.748 of 2009 is not applicable and his challenge is based on the earlier two decisions (supra), his remedy does not lie before us. 8.Hence, the Petition is dismissed. 9.Mr.Pradhan submitted an oral application to continue the interim order dated 17th February 2009 for a further period of six weeks. The application is hereby granted. 10.In view of the dismissal of the Petition, nothing survives in Criminal Application Nos.307 of 2008 and 3 of 2009 taken out in this Petition and they are dismissed as such. [SMT.ROSHAN DALVI, J.] [B.H. MARLAPALLE, J.] 9