1 Criminal W.P.No.451 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 451 OF 2011 Baliram s/o Gurling Palapure, Age : 58 Years, Occu: Retired, R/o Shri Krupa Housing Colony, Near Datta Mandir, Latur, Tal. and District Latur ..PETITIONER VERSUS 1) The State of Maharashtra, Through Minister, Department of Law and Justice, Mantralaya, Mumbai-32 2) The Principal Secretary, Department of Law and Justice, Mantralaya, Mumbai-32 3) The Principal Secretary, Department of Home, Mantralaya, Mumbai-32 4) The Additional Secretary, Department of Law and Justice, Adalat Road, Aurangabad ..RESPONDENTS Mrs Madhaveshwari D. Thube - Mhase, Advocate for the petitioner; Mr S.K. Tambe, Addl. Public Prosecutor for the respondents CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. (Date of reserving the judgment : 21.7.2011 2 Criminal W.P.No.451 of 2011 Date of pronouncing the judgment : 09.08.2011) JUDGMENT (PER P.V. HARDAS, J.) Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties this petition is heard finally at the stage of admission. 2. By this petition under Article 226 of the Constitution of India the petitioner prays for issuance of a writ for quashing and setting aside order dated 24.3.2011, passed by respondent no.2 and the communication dated 16.5.2011 made by the Desk Officer, Department of Law and Justice, Mumbai. The petitioner further prays for issuance of a writ directing respondent no.2 to appoint Advocate Shri Vilas Dhorde Patil as a Special Public Prosecutor in Sessions Case No.388 of 2010 pending on the file of the 4th Additional Sessions Judge, Aurangabad. 3. Facts in brief, as are germane for the decision of this petition, may briefly be stated thus :- Dr. Suchita, daughter of the present petitioner was married to Dr. Nitin B. Patil, resident of Aurangabad on 3.6.2005. It appears that ultimately Dr. Suchita, daughter of the petitioner died of burns. We do not propose to 3 Criminal W.P.No.451 of 2011 dilate much on the factual aspect of the matter in the light of the pendency of the Sessions Trial, lest some observation made by us prejudices the outcome of the trial. The first information report came to be lodged and Suchita succumbed to her injuries on 9.5.2010. Upon her death, an offence came to be registered under section 498-A, 304-B, 323, 504, 506 read with sec. 34 of the Indian Penal Code. On 19.8.2010, upon completion of the investigation, a charge-sheet came to be submitted. The case came to be committed to the Court of Sessions and we are informed that the Sessions Court is seized of the matter. 4. An application came to be submitted by the petitioner on 4.11.2010 for appointment of a Special Public Prosecutor. There is exchange of correspondence between the respondents and the petitioner in respect of the proposed fees which the Special Public Prosecutor would be charging. Ultimately, it seems that the petitioner suggested the name of Advocate Shri Vilas Dhorde Patil as the Special Public Prosecutor and also submitted the consent of the learned Advocate for being appointed as a Special Public Prosecutor. The fees, etc. which the Special Public Prosecutor would be charging was also communicated to the respondents. Ultimately the respondents by communication dated 16.5.2011 informed the petitioner that the application filed by the petitioner for appointment of a Special Public Prosecutor was rejected as no case was made out for appointment of a Special Public Prosecutor. The petitioner has annexed to the present petition a copy of the proposal 4 Criminal W.P.No.451 of 2011 submitted by Principal Secretary & Remembrancer of Legal Affairs, Mumbai, dated 24.3.2011. From the perusal of the said proposal of the Principal Secretary & R.L.A., respondents had called for a report from the District Government Pleader at Aurangabad. The entire recommendation of the Law Secretary is based upon the report of the District Government Pleader and the Law Secretary has not addressed himself to the question, whether a Special Public Prosecutor needs to be appointed. The Law Secretary proceeds on the report of the District Government Pleader, dated 23.2.2011 in which the District Government Pleader at Aurangabad had indicated that no public interest was involved in the trial and that the Public Prosecutors functioning at Aurangabad were competent to handle the case. The District Government Pleader, therefore, opined that there was no need to appoint a Special Public Prosecutor. The Law Secretary then opines that looking to the nature of the trial and the opinion of the District Government Pleader and in the light of the decision of the Supreme Court in Mukul Dalal vs. Union of India, 1988 (3) Supreme Court Cases 144, the application of the petitioner deserves to be rejected. The aforesaid recommendation of the Law Secretary was accepted by the respondents and accordingly the Desk Officer had communicated to the petitioner the decision of the Government. This is precisely what has been stated in the affidavit in reply. 5 Criminal W.P.No.451 of 2011 5. A reference at this juncture may usefully be made to rule 22 of the Rules for the Conduct of Legal Affairs of Government, 1984. Rule 22 reads thus :- "22. Engagement of Special Public Prosecutor - (1) The Government in the Law and Judiciary Department, either suo motu, or on the request of any aggrieved party or the concerned Department in the Government, may, engage an Advocate for not less than ten years, and having regard to his general repute, legal acumen and suitability, by appointing him, as a Special Public Prosecutor in any criminal case or class of cases, as the case may be : Provided that, no order under this sub-rule regarding appointment of a Special Public Prosecutor shall be made unless, for the reasons to be recorded in writing, the Remembrancer of Legal Affairs 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. (2) On the request of a private complainant not being the aggrieved party, the Government in the Law and Judiciary Department may, appointment 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. 6 Criminal W.P.No.451 of 2011 (3) Fees for such Special Public Prosecutor, appointed under sub-rule (1) or (2), may be borne by the Government or the aggrieved party or the private complainant, as may be directed by the Remembrancer of Legal Affairs; Provided that, in cases where the aggrieved party is, a Bank or an Institution or Trust or the like, the fees shall be borne by such aggrieved party; Provided further that, the amount of the fees to be paid to such Special Public Prosecutor, shall be deposited with the Government in the Law and Judiciary Department first, and the same shall be paid by it to such Special Public Prosecutor on completion of the trial, unless directed otherwise by the Remembrancer of Legal Affairs." The proviso to rule 22 contemplates no appointment shall be made except by recording reasons in writing which should also record the subjective satisfaction of the Remembrancer of Legal Affairs that having regard to the nature of the case, gravity of the matter and the public interest involved in the matter, the appointment of the Special Public Prosecutor is necessary. 6. Mrs Madhaveshwari Thube-Mhase, learned Counsel for the petitioner has rightly urged before us that the Law Secretary has not 7 Criminal W.P.No.451 of 2011 taken into consideration these aspects at all while recommending to the respondents the rejection of the application of the petitioner. It has been rightly contended before us by the learned Counsel for the petitioner that nature of the case would include whether the trial was a complicated case involving special skills of the Special Public Prosecutor for proving the guilt of the accused. The learned Counsel has rightly urged before us that "nature of the case" would also include the manner in which the offence is committed, the status of the complainant, victim and the accused. 7. Learned Counsel for the petitioner has urged before us that "gravity of the matter" would indicate the manner in which the offence has been committed and the motive for committing the offence, the seriousness of the allegation. The learned Counsel has also urged before us that the "gravity of the matter" would also take within its folds the commission of the offence by the accused against the endeavour of the society to eradicate the ancient practices like demand and payment of dowry, abolition of sati, etc. 8. Learned Counsel for the petitioner has also urged before us that "public interest" would include the general interest of the society in the outcome of the case, status of parties and the impact of the judgment on the society at large. 8 Criminal W.P.No.451 of 2011 9. The learned Counsel for the petitioner, therefore, contends that perusal of the recommendations of the Law Secretary do not indicate that the Law Secretary has taken all these aspects into consideration. Merely stating that there is no public interest involved in the trial or that the Public Prosecutors appointed are competent to conduct the prosecution are no grounds for rejection of the application for appointment of a Special Public Prosecutor. The Rules contemplate the Legal Remembrancer to take into consideration "nature of the case, gravity of the matter and public interest involved in the matter. The recommendation should prima facie show and give some reasons as to why the appointment of a Special Public Prosecutor is not necessary. 10. The learned Addl. Public Prosecutor, on the other hand, contends that in the affidavit it is clearly stated that the nature of the case and the gravity of the matter and the aspect of public interest have all been taken into consideration. In the affidavit in reply, according to us, the respondents have tried to supplant what is not there in the recommendation of the Law Secretary. 11. The recommendation of the Law Secretary, on the basis of which the respondents have rejected the application of the petitioner, should prima facie indicate that the Law Secretary has applied its mind and has evaluated the need for appointment of a Special Public Prosecutor in the light of the rule, which is adverted to above and the guidelines issued by the Supreme Court in Mukul Dalal's case. The recommendation is 9 Criminal W.P.No.451 of 2011 bereft of any reasons. The impugned communication which informs the petitioner that his application has been rejected is also bereft of the reasons for rejection. We have perused the recommendation of the Law Secretary, dated 24.3.2011 and upon its perusal we find that the recommendations do not disclose an application of mind by the Law Secretary to the basic ingredients contemplated under rule 22, adverted to above. The Law Secretary has based its recommendations purely upon the report which was called from the District Government Pleader. The Rules do not contemplate calling for such a report and in our opinion, therefore, recommendation of the Law Secretary is certainly coloured on account of the report of the District Government Pleader. The Rules do not contemplate that a Special Public Prosecutor is to be appointed only in the cases where the Public Prosecutors are not competent. Basing the recommendation, principally upon the report of the District Government Pleader, according to us, exhibits a total non-application of mind to the requirements of rule 22. No reasons are given in the said recommendation as to why the case instituted against the accused does not involve any public interest. As pointed out by us above, while considering the nature of the case the authorities should consider if the case involves any complicated questions of either fact or law, manner in which the offence is committed and the status of the victim and the accused. While considering if the gravity of the matter is such that it requires the appointment of the Special Public Prosecutor, the authorities must consider the shocking manner in which the offence is committed, 10 Criminal W.P.No.451 of 2011 the status of the victim, particularly when every endeavour is taken by the State to ensure eradication of the ancient practices of demanding and paying dowry and brides being killed for failure to pay the dowry amount. The "gravity of the matter" would also include the shocking manner in which the offence is committed as well as the huge amount of dowry which is demanded by the accused. "Public interest", according to us would also include the interest of the public at large and not just the publicity which the commission of the offence has generated, but the general interest of the public at large, the status of the parties and the impact of the decision on the society at large. "Public interest" would also include the commission of an offence where the interest of the State and the society is to eradicate the evil of practice of demand and payment of dowry. The State is ultimately interested in ensuring that the guilty are punished. An unmerited acquittal always leaves an indelible impact on the society just as an undeserving conviction. The whole object of a criminal trial is not to punish an accused but to punish the guilty. The trial consists of a process by which the Judge determines if the accused has committed an offence and, therefore, deserves to be convicted. The order, therefore, particularly rejecting the appointment as a Special Public Prosecutor, should disclose the reasons as to why the appointment of the Special Public Prosecutor is not warranted in the facts and circumstances of the case. A cryptic recommendation, devoid of any reasons, certainly does not advance the cause of administration of justice. A reference in this behalf may usefully be made to the judgment 11 Criminal W.P.No.451 of 2011 of Division Bench in Sushil Hiralal Chokhani vs. State of Maharashtra & anr., 2005 ALL MR (Cri) 2673. The Division Bench in the said judgment has observed thus :- "For the purpose of appointment of Special Public Prosecutor on request by a private party, the same should be preceded by a proper inquiry regarding the need for such appointment in the matter and the reputation, experience and ability of the advocate proposed to be appointed as Special Public Prosecutor and the same should be by the Remembrancer of Legal Affairs and the consideration of all these aspects should be reflected in the order passed in relation to such appointment. The order should disclose the application of mind by the Remembrancer of Legal Affairs to all the relevant factors." The Division Bench has further observed :- "The appointment of a Special Public Prosecutor has necessarily to be by a reasoned order in writing by the Remembrancer of Legal Affairs. The required criteria prescribed for an advocate to be appointed as Special Public Prosecutor is satisfied or not is necessarily to be considered by Remembrancer of Legal Affairs before engaging any Advocate as the Special Public Prosecutor in a particular case or class of cases. So also, consideration of involvement of the public interest in the matter or matters, as the case may be, is a pre-requisite for approval of the proposal for appointment of a Special Public Prosecutor and further that such a consideration has to be in accordance with the rules framed and 12 Criminal W.P.No.451 of 2011 the guidelines laid down by the Apex Court, and the same should be clearly revealed from the order itself, and such order should be by Remembrancer of Legal Affairs. The reasoned order would obviously mean that the order should reflect consideration of all the relevant materials necessary for approval of the proposal regarding the appointment of the Special Public Prosecutor. Once an authority passing the order is required to disclose the consideration of the relevant factors while passing the order itself, it is needless to say that the order on the face of it should disclose the said consideration. The law that an order passed by the statutory authority must be judged on the face of it, as the reasons contained therein cannot be supplemented on an affidavit, is well settled. " 12. In the light of what has been held by us above, we consider it appropriate to quash and set aside the impugned communication as well as the recommendation of the Law Secretary and remit the matter back to the respondents for a decision afresh, in accordance with law, by taking into consideration the provisions of rule 22 and other provisions of the statute, the guidelines laid down by the Supreme Court in Mukul Dalal's case as well as what has been held by us in this judgment. In the light of the fact that this Court has directed an expeditious disposal of the case and in the light of the fact that the case now stands committed to the court of Sessions, we expect the respondents to take a decision, in accordance with law, within three weeks from today and communicate the decision thereon to the petitioner. Though we are mindful of the fact that 13 Criminal W.P.No.451 of 2011 this Court has expedited the hearing of the trial, we direct the Trial Court not to proceed with the hearing of the trial and to await the decision of the respondents in respect of appointment of a Special Public Prosecutor. 13. We, therefore, allow this petition by making Rule absolute on the above terms with no orders as to costs. The learned Add. Public Prosecutor undertakes to communicate this decision to the respondents. Copy of this judgment duly authenticated by the Court Sheristedar be provided to the learned Counsel for the parties to act upon. ( A.V. POTDAR, J.) ( P.V.HARDAS, J.) amj/criwp451.11