IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 21ST FEBRUARY 2008 / 2ND PHALGUNA 1929 Crl.MC.No. 632 of 2008() ------------------------ SC.906/2005 of SESSIONS COURT, THALASSERY .................... PETITIONER: PETITIONER: ----------------------------------------- SAJINI, W/O.LATE DINESH BABU, KANDAMKUNNU AMSOM, AVITHARA MAMBARAM DESOM, THALASSERY TALUK. BY ADV. SRI.S.RAJEEV RESPONDENTS: RESPONDENT: --------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, (CRIME NO.121/03 OF KUTHUPARAMBU POLICE STATION) 2. HOME SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, KANNUR. 4. SOMASUNDARAN, S/O.ASARI SANKARAN, ASARI MUKKU, KANDAMKUNNU AMSOM, KAITHARI DESOM, THALASSERI TALUK. 5. VELLANAMBU SANTHOSH, S/O.ONAKKAN KOMARAN, KAVULLAPARAMBATH HOUSE, KANDAMKUNNU AMSOM MAMPURAM DESOM. 6. MULLANPARAMBIL SASI, S/O.AMBATTU BALAN, KANDANPARAMBU AMSOM, MAMPARAM DESOM, THALASSERY. -2- 7. CHATHAMPALLY SHAJI, S/O.ACHUTHAN, KALLAYAD CHALIL, KAITHARI DESOM, THALASSERRY. 8. KALYADI HARIDASAN, THODIKULAM AMSOM, DESOM, THALASSERY. 9. SANIL, S/O.GOVINDAN, MANAMTHERI AMSOM, KAITHARI DESOM, THALASSERY. 10. TIJESH, S/O.TAILOR RAVI, MANAMTHERI AMSOM, KAITHARI DESOM, THALASSERY. 11. SHIBI, S/O.KALLANANDI SHAJI, MANAMTHERI AMSOM, KAITHARI DESOM, THALASSERY. BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C.No.632 of 2008 = = = = = = = = = = = = = = Dated this the 21st day of February, 2008 ORDER The petitioner, who is the widow of one Dinesh Babu , who is the deceased in Crime No.121 of 2003 of Koothuparamba Police Station for offences punishable under Sections 143,147,341,323 and 302 read with 149 IPC, seeks a direction to the Additional Sessions Judge, Thalassery to adjourn the trial of the case to a reasonable period until the Home Secretary passes orders on Annexure B petition filed by the petitioner seeking the appointment of a Special Public Prosecutor under Section 24(8) Cr.P.C. The case is now pending before the Additional Sessions Court, Thalassery as S.C.No.906/2005 and trial of the case has already begun. According to the petitioner, the Public Prosecutor in charge of the case being an appointee of the ruling Ministry and the accused in the case being CPI(M) workers, no proper care is taken by the Public Prosecutor to conduct the case impartially and with Crl.M.C.No.632 of 2008 2 zealand enthusiasm expected of him. 2. Shri.P.G.Thampi, the learned Director General of Prosecution submitted that certain guidelines have been fixed for the appointment of the Special Public Prosecutor and it is only if the applicant satisfies those guidelines, would the Government appoint the special public prosecutor and that may be the reason for the delay in the disposal of Annexure B application. He also submitted that there is no half-heartedness on the part of the 2nd respondent in not disposing of Annexure B application. 3. The learned counsel for the petitioner, on the other hand, submitted that the bias of the Public Prosecutor is evident from the fact that out of CWs 2 to 7, who are occurrence witnesses, CW2 has already been given up by the Public Prosecutor, and CWs 1,8 and 13, who were examined, did not support the prosecution and there is an attempt afoot to see that CWs.3 to 7, who are the remaining occurrence witnesses are also not examined in the case. Crl.M.C.No.632 of 2008 3 4. Without making any observation with regard to the truth or otherwise of the above allegations, it is suffice to say that the trial in the case cannot be allowed to be dislocated, merely because an application filed by the petitioner before the Government for the appointment of a special public Prosecutor is hanging fire. The trial in a Sessions Court should be on a day- to-day trial as mandated by Section 309 Cr.P.C and as insisted by the Apex Court in S.J.Chaudhary v. State (Delhi Administration) (AIR 1984 SC 618). Hence the trial should go on. 5. Admittedly the petitioner has engaged a private lawyer before the trial court and the learned DGP also fairly submitted that he has no objection in the said private lawyer conducting the prosecution by acting under the instructions of the Public Prosecutor in charge of the case under Section 301 Cr.P.C. This Court as well as the Apex Court has already taken the view that such pleader can while acting under the directions of the Public Prosecutor in charge of the Crl.M.C.No.632 of 2008 4 case, can conduct the examination as well as cross examination of the witnesses (vide Hamsa v. Assistant Public Prosecutor (1978 KLT 816), Shiv Kumar v.Hukum Chand & another (1999 (7) SCC 467, Umanath v. State of Kerala ( 1999 (2) KLT 492) 6. It is made clear that the private lawyer engaged by the petitioner can make the choice of the witnesses to be examined in the case, while acting under the directions of the Public Prosecutor. The trial of the case shall not be adjourned unnecessarily for any reason. This Crl.M.C is disposed of accordingly. V. RAMKUMAR, JUDGE sj Hand over a copy of this order to the learned counsel for the petitioner as also the learned Director General of Prosecution.