1 crwp747-10+ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.747 OF 2010 Jayesh Pratap Doshi Age 40 years, Occu. : Business, R/at : 503, Victor Shelter, MNM Road, Kandarpada, Dahisar (W), Mumbai – 400 068 ..Petitioner. Versus 1 State of Maharashtra 2. Secretary to the Government of Maharashtra, Law & Judiciary Department, Mantralaya, Mumbai. 3. Nimesh Shah, 1st Floor, Mangrol Mansion, Fort, Bora Nazaar, Mumbai – 1. 4. Shri Vivek Sharma, Kamat Building, 19b, 2nd Floor, 38, Cawasji Patel Street, Fort, Mumbai – 400 001. 5. Smt.Charmine Bakaroo, Kamat Building, 19b, 2nd Floor, 38, Cawasji Patel Street, Fort, Mumbai – 400 001. ..Respondents. CRIMINAL APPLICATION NO.140 OF 2010 IN CRIMINAL WRIT PETITION NO.747 OF 2010 Jayesh Pratap Doshi Age 40 years, Occu. : Business, R/at : 503, Victor Shelter, MNM Road, Kandarpada, Dahisar (W), Mumbai – 400 068 ..Petitioner. Versus 2 crwp747-10+ 1 State of Maharashtra 2. Secretary to the Government of Maharashtra, Law & Judiciary Department, Mantralaya, Mumbai. 3. Nimesh Shah, 6, Gunbow Street, 7, Mangrol Mansion, Fort, Bora Nazaar, Mumbai – 1. ..Respondents. And Dharmesh Solanki, Solanki Niwas, 3rd Floor, Kumbarwada No.4, Mumbai – 400 003. ..Intervenor. CRIMINAL APPLICATION NO.178 OF 2010 IN CRIMINAL WRIT PETITION NO.747 OF 2010 Jayesh Pratap Doshi Age 40 years, Occu. : Business, R/at : 503, Victor Shelter, MNM Road, Kandarpada, Dahisar (W), Mumbai – 400 068 ..Petitioner. Versus 1 State of Maharashtra 2. Secretary to the Government of Maharashtra, Law & Judiciary Department, Mantralaya, Mumbai. 3. Nimesh Shah, 6, Gunbow Street, 7, Mangrol Mansion, Fort, Bora Nazaar, Mumbai – 1. ..Respondents. And Hiten Haridas Raichura, A/1555, Building No.2, Ganjawala Apartment, Ganjawala Lane, Borivli (West), Mumbai – 400 092 ..Intervenor. 3 crwp747-10+ CRIMINAL WRIT PETITION NO.1727 OF 2009 Mohammed Iqbal Khan Aged 52 years, residing at Room No.109, 1st Floor, 944, Duncan Road, Mumbai - 4 ..Petitioner Versus 1. State of Maharashtra 2. The Desk Officer, Law & Judiciary Department, Government of Maharashtra, Mantralaya, Mumbai – 400 032. ..Respondents. Mr.S.V. Marwadi with Mr.V.V. Katti for the applicants. Mr.S.V. Kotwal i/by Mr.Ashish Sawant for respondent No.3. Mr.V.T. Tulpule, Senior Advocate with Ms.Nisha Parab for respondent Nos.4 & 5. Mr.S.S. Dube with Mr.A.A. Khan for the intervenor. Mr.Ishwar S. Badigamvar for intervenor. Mr.K.V. Saste, APP for State. CORAM : A.M. Khanwilkar, & U.D. Salvi, JJ. Judgment Reserved on : 8th September 2010. Judgment Pronounced on :25th November 2010. JUDGMENT : (Per U.D. Salvi, J.) 1. These are group of writ petitions and the intervention applications therein moved to question the legality and propriety of the decisions taken by the State of Maharashtra in the matters of appointment of special Public Prosecutors under Section 24(8) of the Code of Criminal 4 crwp747-10+ Procedure, 1973. 2. The applicants in Criminal Application Nos.140 of 2010 and 178 of 2010 are seeking intervention in Criminal Writ Petition No.747 of 2010 on the ground that their interest in the appointment of Special Public Prosecutors in Criminal Case bearing MECR No.14 of 2002 arising out of complaint case No.279/PW of 2006 pending before the 33rd Metropolitan Magistrate, Ballard Pier, Mumbai are akin to those of the petitioners in Criminal Writ Petition No.747 of 2010 Mr.Jayesh Doshi, the co-accused in the said criminal case. 3. Admittedly, the intervenors are the co-accused in the said criminal case and, therefore, their intervention in the present proceedings is justifiable. Their pleas, therefore, on the basis of the record produced by them have to be heard. Intervenors are, therefore, heard along with the parties to the petitions. 4. Rule. Taken up for final hearing by mutual consent. 5. Initially, accused No.1 – Jayesh Doshi in the said case had moved a petition only against the State and its Secretary. Later on, the complainant Nimesh Shah and his Advocates Mr.Vivek Sharma and Smt.Charmaine Bokaroo were impleaded to the petition vide order dated 29th April 2010, and 5 crwp747-10+ they have been duly served in the present petition. 6. The respondent No.3 – Nimesh shah accused the petitioner Jayesh Doshi of cheating him in the transaction of sale of shares by delivering to him forged share certificates with resultant wrongful loss of Rs.8,32,311/-, and accused the intervenors of instigating and abetting the said crime. The police investigation made pursuant to the directions of the learned Metropolitan Magistrate of Borivali Court under Section 202 of the Code of Criminal Procedure, 1973 in the Complaint Case No.26/I&R of 2002 lodged in that regard revealed the commission of offence outside the jurisdiction and as such the complainant was directed to present the complaint before the appropriate Court. A second complaint in that regard was, therefore, lodged in the 33rd Court of Metropolitan Magistrate, Ballard Pier which was initially numbered as C.C. No.743/M of 2002. Investigations ordered under Section 156(3) of the Code of Criminal Procedure, 1973 resulted in registration of the crime being M.E.C.R. No.14 of 2002 with M.R.A. Marg Police Station and the case following lodging of the charge-sheet came to be numbered as 279/PW/2006. 7. According to the petitioner, the complainant Nimesh Shah in M.E.C.R. No.14 of 2002 continued to be represented by the respondent Nos.4 & 5, who actively participated in the trial of the same. The petitioner further states that respondent Nos.4 & 5 who represent the complainant as well as 6 crwp747-10+ actively participated on their behalf in the said trial, came to be appointed as Special Public Prosecutors in the said case – C.C. no.279/PW of 2006 vide Notification No. SPP-3909/1696 (297) D-XIV issued by the respondent No.2 Secretary of the Judicial Department of the respondent No.1-State. After having learnt about the said Notification, the petitioner made a representation to the respondent No.2 for inviting its attention to the fact that the appointment of Special Public Prosecutor vide Notification No. SPP-3909/1696 (297) D-XIV could not have been made, especially when both the Advocates were representing the complainant and actively participating in the said trial on behalf of the complainant as well. This representation, the petitioner suggests has not been responded to. 8. The objections to the appointment of respondent Nos.4 & 5 as Special Prosecutors are:- (i) Nothing has been shown to say that the public prosecutors in-charge of the case is incompetent to conduct the trial or suffers from such disqualification material to the duty casts on him. (ii) No circumstances are evident so as to make out a case that the appointment of Special Prosecutor is warranted out of public interest. (iii) There is no circumstances to show that the case would not be properly or competently conducted by the Public Prosecutor and the nature of 7 crwp747-10+ the offence is such that it is required to be tried by a Special Prosecutor. (iv) The Special Prosecutors appointed have been remaining absent during the course of cross examination of the complainant. (v) No irregularity has been committed by the Prosecutor in conduct of the case. (vi) The appointment of the Special Prosecutors is contrary to the Rules and Regulations as well as to the judicial pronouncements made by the Hon'ble Supreme Court. 9. In the light of these objections, the petitioner submits that it was incumbent upon the respondent No.2 to have considered his representation and by not doing so, gross miscarriage of justice has been occasioned. Intervenors have chosen to join and tow the line of arguments / submissions made on behalf of the petitioners. 10. The petitioner in Criminal Writ Petition No.1727 of 2009 is the complainant in C.C. No.18/P/2000 arising out of C.R. No.160 of 1998 registered with Dongri police station for offence under Section 420 of I.P.C., 1860. He made a complaint that he was cheated by the accused and made to suffer wrongful loss of Rs.5,00,000/- upon representation made by the accused therein that the premises owned by them were being sublet, despite the fact that the subject premises were occupied by some other person with 8 crwp747-10+ whom the accused had entered into an agreement and handed over possession. Using similar modus operandi, the petitioner in Criminal Writ Petition No.1727 of 2009 states that the brothers of the accused in C.C. No. 18/P/2000 committed an offence of cheating, which came to be registered as C.R. No.242/98 with Pydhoni Police Station and C.C. No.721/P/2003 arising out of said C.R. is pending in the same Court of learned Additional Chief Metropolitan Magistrate, 2nd Court, Mazgaon, Mumbai, along with C.C. No. 18/P/2000. The petitioner further states that he is also cited as witness in C.C. No.721/P/2003 and most of the witnesses in C.C. No.18/P/2000 and C.C. No.721/P/2003. 11. According to the petitioner in Criminal Writ Petition No.1727 of 2009, despite the aforesaid facts the Law & Judiciary Department had accepted the request of the complainant in C.C. No.721/P/2003 for appointment of Special Public Prosecutor and turned down similar request in C.C. No.18/P/2000 made by the petitioner vide letter dated 22nd December 2008. His request / representation dated 14th February 2009 made in that regard to the Law & Judiciary Department met with the same fate as previously communicated vide letter dated 12th March 2009. Hence, the petition. 12. The respondent – State resisted the petitions with reply dated 7th April 2010 to the Criminal Writ Petition No.747 of 2010 and the relevant 9 crwp747-10+ record. According to the respondent – State, there had been no illegality or malice in the matters of appointment of the Special Public Prosecutors in the aforesaid cases and the applications / representations made by the parties in that regard were duly considered. Appointment of Special Public Prosecutors in C.C. No.279/PW/2006 was following thorough examination of the application dated 10th August 2009 made and the reports called in that regard from the concerned quarters. 13. Learned Advocate Mr.Marwadi for the petitioner in Criminal Writ Petition No.747 of 2010 submitted that the Special Public Prosecutors identified themselves with the complainant to such an extent that it reveal their partisan attitude and as such they are not expected to be fair to the accused while conducting the prosecution. Referring to the following judgments / orders / applications : Sr.No Date Particulars 1. 22-01-1995 Judgment in Criminal Revision No.1002 of 2004 passed by the Additional Sessions Judge, Greater Mumbai (Mr.Nimish Shah V/s. The State of Maharashtra & Others) 2. 07-12-2005 Order in Criminal Writ Petition No.2562 of 2005 (Mr.Hiten S.o,Haridas Raichura V/s. The State of Maharashtra & Others) 3. 10-04-2006 Application moved by the State at the instance of the complainant Mr.Nimish Shah in Case No.16/WP/2005 for handing over the investigation to the State C.I.D. in order to ensure detail and proper investigation. 4. 28-08-2006 Application in C.C. No.16/PW/2005 for directing in depth investigation. 10 crwp747-10+ 5. 03-03-2007 Order in M.A. No.94 of 2007 in Criminal Revision No.47 of 2007 passed by the Additional Sessions Judge, Greater Mumbai. 6. 05-04-2007 Order in ABA No.392 of 2007 passed by the Additional Sessions Judge, Greater Mumbai. Learned Advocate Mr.Marwadi for the petitioner argued that the role of Ms.Boccaro in the said matters sufficiently exposed her credentials as an advocate identifying with the complainant Nimesh Shah. It is true that Ms.Boccaro represented Mr.Nimish Shah in the proceedings referred to in the aforesaid judgments / orders / applications. However, the fact that Advocate Ms.Boccaro represented the complainant Mr.Nimish Shah in the said cases at various stages of the proceedings was not concealed from the view of the State. Mere fact that any advocate pursues a legal proceedings on behalf of his client before any legal forum is not sufficient to stamp the concerned advocate with a blame of identifying with the cause of his client whom he represents. In fact, it is the legal duty of an advocate to faithfully represent his client in lawful manner. There is nothing to blame Advocate Ms.Boccaro of any unlawful conduct while discharging her duty as an advocate. 14. Learned Advocate Mr.Marwadi for the petitioner invited our attention to an unreported judgment in Vijay Valia’s case (1986 Cri.L.J. 2093 Vijay Valia & Others V/s. The State of Maharashtra & Others) in support of the submission that the role of the prosecutor in any criminal trial, whether at the instance of the State or a private party, is to safeguard the interests of 11 crwp747-10+ both the complainant and the accused and in the instant case, the facts generated legitimate apprehension in the mind of the petitioner and other co- accused that the Special Public Prosecutor appointed in the case against them would not fit in the role as envisaged by law. This Court observed in the said judgment besides spelling out the role of an advocate in the criminal trial, as under : “The duties of the Prosecutor and the requirements of a fair trial do not vary from case to case. Besides, there is always the Court to safeguard the interests of the accused and the complainant, to control the proceedings and to check omissions and commissions of the Prosecutor. The Court is not a silent spectator to the proceedings, but an active participant in it. .......... This role of the Court does not vary from prosecution to prosecution. To accept the argument advanced on behalf of the petitioners therefore is to hold that the trials in private prosecutions and those in State prosecutions vary in character and while the latter are fair, just and impartial, the former are not. Such a proposition is not only inequitable but also perilous. For it must logically lead to banning of all private prosecutions. It is for these reasons that we are unable to accept the theory that where Special Public Prosecutors are appointed whether paid by the State or the private party, the prosecution and the trial must be presumed to be biased, partial or unfair.” Upon considering certain basic features of administration of criminal justice, particularly with reference to Sections 24, 25, 321, 308, 378 of the Code of Criminal Procedure, 1973 and the Rules 18, 20 and 21 of the Rules for the Conduct of Legal Affairs of the Government, 1984 (herein after referred to as the ‘Conduct Rules’), this Court dealt with the contention that the Special Public Prosecutor / Assistant Public Prosecutor appointed at the instance of the complainant and paid for by him is bound to act to the 12 crwp747-10+ prejudice of the accused, and with reasons therefor; a) the Prosecutors so appointed will be inclined in favour of the Complainant and against the Accused and will, therefore, not conduct the prosecution impartially; b) he may not act impartially under Section 321 of the Code in exercising of his power to withdraw the prosecution, as in obtaining the sanction of the Government for the said purposes, there will be a conflict of interests in his duty as an officer of the State and as an Advocate who engages him; c) In issuing certificate under Section 308 of the Act to a person who has accepted the tender of pardon, such Prosecutor may not act independently; and d) he may render impartial advice to the State Government for preferring an appeal under Section 378(1) of the Code read with Rules 49(9)(b) and 50(1) (a) of the Conduct Rules and to reached the conclusion that the reasons in support of the contentions were untenable as the conduct of the prosecution appointed and paid by the private party does not affect his capacity and ability to perform his role as a Public Prosecutor. While rejecting the contentions, this Court observed that the discharge of duties by a Public Prosecutor does not depend upon the source of his fees, and if there is a possibility of misdemeanour, it stems from human weakness, which is common to all Prosecutors. These conclusions were reached after considering the judicial precedents then cited namely 1982 Cri.LJ 2085 – P.G. Narayanankutty V/s. State of Kerala, 1984 Cri LJ 499 - Babu V/s. State of Kerala, and (1971) 2 Guj LR 999 - Dilipbhai Chhotalal Dave V/s. State of Gujarat. 13 crwp747-10+ 15. In short, the judgment cited in Vijay Valia’s case persuades us to look at the matter of appointment of Special Public Prosecutors made at the instance and expense of a private party with a clear sight and not with jaundice eyes. The petitioner and the intervenors, who were anxious to be joined for lending support to the petitioners cause, invited our attention to the following judgments and submitted that the ‘public interests’ should guide the appointment of Special Public Prosecutors, and the authorities concerned are expected to follow the Rules governing such appointments. (1988) 3 Supreme Court Cases 144 – Mukul Dalal V/s. Union of India; 1993 Cri L.J. 1249 - Abdul Kahader Musliar V/s. Government of Kerala; 1998 Cri.L.J. 998 – Rajendra Nigam V/s. State of Madhya Pradesh; (1999) 7 Supreme Court Cases 467 – Shiv Kumar V/s. Hukam Chand; 2001 Cri.L.J. 3113 – Poonamchand Jain V/s. State of M.P.; 2002 Cri.L.J. 1694 – Madho Singh V/s. State of Rajasthan; 2005 Cri.L.J. 3000 – K.V. Shiva Reddy V/s. State of Karnataka; and 2010 Cri.L.J. 466 – State of Maharashtra V/s. Prakas Prahlad. In Abdul Kahader Musliar’s case (supra) as well as in Rajendra Nigam’s case (supra), the Courts have observed that a Special Public Prosecutor is not to be appointed in ordinary circumstances and the authorities concerned should properly examine the request for appointment of Special Public Prosecutor. Shiv Kumar’s case (supra) emphasizes primacy 14 crwp747-10+ of the Public Prosecutor in relation to a private counsel instructed by a complainant in conduct of a criminal case. In Poonamchand Jain’s case (supra), absence of material showing incompetence of a Public Prosecutor to conduct trial as well as the absence of special circumstances warranting appointment of Special Public Prosecutor led to quashing of the order of appointment of Special Public Prosecutor. Lack of objectivity in assessing the facts and circumstances on the part of the concerned authorities in making the appointment of Special Public Prosecutor also propelled quashing of such appointment. In Madho Singh’s case (supra) need to act fairly and without undue haste in the matter of appointment of Special Public Prosecutor was given a due weightage. In K.V. Shiva Reddy’s case (supra) the need for manifestation of the objective satisfaction of the concerned authorities in the matter of appointment of Special Public Prosecutor was highlighted. 16. Lastly, but importantly, the judgment delivered by the Hon’ble Apex Court in Prakas Prahlad Patil’s case (supra) relied upon and cited by both the rival camps, particularly the petitioners in Writ Petition No.747 of 2010 and the respondent – State allows the scope of judicial review in the matters like the present one to be discerned from the following observations. “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.” 15 crwp747-10+ 17. The decision-making process undertaken by the State in the matters of such kind as pointed out by the learned Advocate Mr.Marwadi for the petitioner in Writ Petition No.747 of 2010 as well as the learned Public Prosecutor is governed by Rule 22 of the Conduct Rules. In Mukul Dalal’s case (supra), the Hon’ble Supreme Court expected the State to examine the request made by the private parties for appointment of Special Public Prosecutor on the basis of the guidelines prescribed, particularly in view of the fact that the Office of the Public Prosecutor is a public office of the trust and appointment to this Office is required to be made in the public interest. Rule 22 of the Conduct Rules was found to be bad and the State Government was directed by the Hon’ble Apex Court to modify the same keeping the exposition in the said case in view. As a sequence to these directions, Rule 22 of the Conduct Rules was amended by the State Government on 4th April 2002 and thereafter again on 13-9-2004. The amended Rule as it stands now reads as under : “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 16 crwp747-10+ 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. (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 Remembrance of Legal Affairs.” 18. A Division Bench of this Court in Prakash Prahlad Patil’s case; 2008 All MR (Cri) 2051 – Prakash Prahlad Patil V/s. State of Maharashtra upon considering the provisions of Section 24(8) of the Code of Criminal Procedure read with Rule 22 of the Conduct Rules and the law on the subject formulated guidelines for the appointment of Special Public Prosecutor as follows : “(a) The appointment of a Special Public Prosecutor is not to be made merely for the sake of asking and it is not that whenever an application is made, it should be allowed and a Special Public Prosecutor is appointed. 17 crwp747-10+ (b) Without scrutinizing, on the basis of the guide-lines prescribed, the services of a Special Public Prosecutor should not be made available to a private complainant. (c) The request for appointment of a Special Public Prosecutor should be properly examined by the RLA and only when he is satisfied, having regards to the nature of the case, gravity of the matter and public interest involved in the matter, that such appointment is necessary. (d) An Advocate being appointed as a Special Public Prosecutor has to be in practice for not less than ten years and regard must be had to his general repute, legal acumen and suitability. (e) Before acceding to the request by any private party for appointment of a Special Public Prosecutor, it is necessary for the Remembrancer of Legal Affairs RLA to get himself satisfied about the necessity of such appointment having regard to the nature of the case, gravity of the matter and public interest involved therein. Such satisfaction should be reflected from the order recorded in writing by the RLA while approving the appointment. (f) The RLA must be satisfied that the case wherein such appointment is requested for deserves and the prevailing circumstances need the appointment of a Special Public Prosecutor. (g) The points relating to the person’s reputation and experience at Bar should find place in the consideration by the RLA and it should not be a mechanical exercise on his part. (h) Such appointment shall be, on consideration