IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 WP(C).No. 37115 of 2007(R) -------------------------- SC.489/2006 of ASST. SESSIONS COURT (SPL. COURT for NDPS ACT CASES),THODUPUZHA .................... PETITIONER: ------------ MUNIYAMMA, W/O. MUTHUMADAN, AGED 74 YEARS, RESIDING AT CHIRAKKULAM HOUSE, CHIRAKKULAM ESTATE, VANDIPERIYAR KARA, PERIYAR VILLAGE, PEERUMEDU TALUK, IDUKKI DISTRICT. BY ADV. SRI.JOICE GEORGE RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. SABU, S/O. SIVARAMAN, AGED 33 YEARS, THEKKETHIL HOUSE, MELAZHUTHA, PEERUMEDU P.O., PEERUMEDU, IDUKKI DISTRICT. 3. NASSAR, S/O. MEERANNAN, AGED 38 YEARS, THAZHETHURUTHIYIL HOUSE, KURUPPUPALAM, INJIKKAD, VANDIPPERIYAR P.O., IDUKKI DISTRICT. 4. VINOD, S/O. PONNAPPAN, AGED 32 YEARS, PILLAVEEDU VADAKKETHIL HOUSE, VALAYAR, VANDIPPERIYAR P.O., IDUKKI DISTRICT. 5. AJITH, S/O. DIVAKARAN, AGED 30 YEARS, KUTTIKKATTIL HOUSE, MELAZHUTHA, PEERUMEDU P.O., IDUKKI DISTRICT. W.P.(C) No. 37115/2007 : 2 : 6. MOHANAN, S/O. KUNJADHI, AGED 42 YEARS, MUTAKKARIL HOUSE, MANJUMALA, VANDIPPERIYAR P.O., IDUKKI DISTRICT. 7. AJAYAKHOSH, S/O. KUNJUKUNJU, AGED 31, KONAKKAL HOUSE, MANJUMALA, VANDIPPERIYAR P.O., IDUKKI DISTRICT. 8. BENNY, S/O. MARKOSE, AGED 33 YEARS, VAZHAPPARAMBIL, THEPPAKKULAM, PEERUMEDU P.O., IDUKKI DISTRICT. 9. RAJAPPAN, S/O. CHELLAPPAN, AGED 39 YRS, THUNDIYIL HOUSE, PATHUMURI, KUMALI P.O., IDUKKI DISTRICT. 10. BIJU, S/O. RAJAPPAN, AGED 28 YRS, RBT ESTATE LANE, PERIYAR, VANDIPPERIYAR P.O., IDUKKI. 11. VISWAM @ VISWANATHAN, S/O. RAGHAVAN, AGED 31 YEARS, KARTHIKA ILLAM HOUSE, NEAR MARIAMMEN COVIL,MANJUMALA,VANDIPPERIYAR P.O., IDUKKI DISTRICT. BY ADV. SRI. P.G. THAMPI, DGP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 37115/2007 : 3: APPENDIX PETITIONER'S EXHIBIT: EXT.P1: TRUE COPY OF THE REPRESENTATION DATED 29.11.2007 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. /True Copy/ P.A to Judge. V. RAMKUMAR , J ========================== W.P.(C). No. 37115 of 2007 ========================== Dated this the 1st day of January, 2007. JUDGMENT In this writ petition filed under Section 226 of the Constitution of India, the petitioner, who claims to be the 74 year old mother of one Balu, who was allegedly murdered by the 10 accused persons in an occurrence which took place on 20.10.2004 and forming the subject matter of the crime No.206/2004 of Vandipperiyar Police Station for offences punishable under Sections 143, 147, 148, 506(ii), 324, 323, 302 and 406 r/w Section 120(B) and 149 IPC and Section 4 r/w Section 25(i)(b) of Arms Act, 1959, seeks a direction directing the State of Kerala to pass orders on Ext.P1 representation submitted by the petitioner by appointing a Special Public Prosecutor for conducting the trial of S.C. No. 489/2006 on the file of the Additional Sessions Court ( Special Court for NDPS Act Cases), Thodupuzha. 2. Shri. P.G. Thampi, the Director General of Prosecution opposed the petition contending inter alia that Ext.P1 representation dated 29.11.2007 has never been received by the Home Secretary but instead a representation bearing the said date but accompanied by a covering letter dated 19.12.2007, has been received by the Home W.P.(C) No. 37115 of 2007 : 2: Secretary on 26.12.2007 and that this writ petition filed on 13.12.2007 is liable to be dismissed on that short ground. 3. According to the petitioner, her son, deceased Balu was a political activist and Mandalam President of the Indian National Congress and the accused are leaders of the CPI(M) and the Additional Public Prosecutor in charge of the cases is also an appointee of the present Ministry formed by the Left Democratic Front and if he is to conduct the prosecution the petitioner will not get justice. 4. Elaborating on the said contention, the petitioner's learned counsel submits that all the 5 prosecutors including the Principal Public Prosecutor of Idukki district are all appointees of the LDF Ministry and therefore are interested in salvaging the accused who also belong to the ruling party. 5. The above apprehension is totally unfounded. In the first place the prosecutors of Idukki district were appointed long back and it was only when the case was posted for trial before the Additional Sessions Court that the petitioner sought a stay of the trial of the case for the reason that she has preferred Ext.P1 representation dated 29.11.2007 before the Government for the appointment of Special Public Prosecutor. If the petitioner was apprehensive of the fact that she may not get justice if any of the Public Prosecutor in the district W.P.(C) No. 37115 of 2007 : 3: were to conduct prosecution, she could have moved the Government sufficiently earlier. Such a person may not be happy even if the Government were to appoint a private Advocate as Special Public Prosecutor by invoking the power under Section 24(8) Cr.P.C. 6. Public Prosecutors are appointed in the district only from a panel of names of advocates having requisite length of practice, character and reputation and recommended by the Sessions Judge concerned. This itself is sufficient safety valve to ensure that only persons with integrity and competence are appointed as Public Prosecutors. Even assuming that a particular Public Prosecutor who is in charge of a case has some political affiliation, there is no reason to believe that he will mortgage his conscience and see that injustice is perpetrated in a murder case. All that apart, there is always the trial judge who is expected to be a dynamic functionary instead of acting as a mute spectator. If the Public Prosecutor in charge of the case is conducting in a manner unbecoming of his office, I am sure that there will be and ought to be timely intervention by the trial Judge. I therefore, see no reason at all to allow the trial to be dislocated at this juncture on a generalised allegation by the petitioner that all the prosecutors being appointees of the LDF Ministry are biased, particularly when the petitioner has no specific grievance against the W.P.(C) No. 37115 of 2007 : 4: particular Public Prosecutor in charge of the case. All that apart, Section 301 Cr.P.C permits the petitioner to engage a pleader of her choice and the decisions of this court are to the effect that such pleader can while acting under the directions of the Public Prosecutor in charge of the case can conduct examination as well as cross examination of the witness (Vide Hamsa v. Assistant Public Prosecutor (1978 KLT 816), Shiv Kumar v. Hukam Chand & another (1999 (7) SCC 467), Umanath v. State of Kerala (1999 (2) KLT 492). Such being the position, I am not inclined to accept the prayer in the writ petition which is accordingly dismissed. The case shall be taken up for trial without any further delay. V. RAMKUMAR, JUDGE. rv W.P.(C) No. 37115 of 2007 : 5: