AJN 231210-CRI-APPA1541.10A 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1541 OF 2010 IN CRIMINAL APPEAL NO.606 OF 2010 Sabauddin Shabbir Ahmed Shaikh ... Applicant Vs. The State of Maharashtra & Anr. ... Opponent Mr. S. Ejaz Abbas Naqvi for the applicant. Mr. Ujjwal Nikam, Special Public Prosecutor with Mr. Shahajirao Shinde, Additional Public Prosecutor for the Opponent. CORAM: MRS. RANJANA DESAI & RANJIT V. MORE, JJ. DATED : 23RD DECEMBER, 2010. P.C.:- 1. On 22/12/2010, an application was made before us on behalf of A3-Shaikh for removal of learned Special Public Prosecutor Mr. Nikam from this appeal. This application was moved by advocate Naqvi after the hearing of entire confirmation case and the appeal filed AJN 231210-CRI-APPA1541.10A 2 by A1-Kasab got over and the State appeal was substantially heard and arguments of learned Special Public Prosecutor were drawing towards conclusion. 2. Before we deal with the application, we must state that across the bar, a reckless statement was made by Mr. Naqvi, that there was delay in filing the State appeal. There is a categorical statement made by the Registry on the Farad that there is no delay. In any case, by way of abundant caution, we again called the Registrar (Judicial-I) to this court and he confirmed that there is no delay in filing the appeal. We have no manner of doubt that this frivolous objection is raised to delay the hearing of the appeal. 3. We have gone through the application. It contains reckless and mala fide allegations against learned Special Public Prosecutor. It is stated that the Special Public Prosecutor is working for his own mala fide gain. It appears that the thrust of the application is that learned AJN 231210-CRI-APPA1541.10A 3 Special Public Prosecutor has illegally verified the application for leave to appeal. It is, inter alia, stated that learned Special Public Prosecutor has vested interest in the matter. We do not want to burden our order with other serious allegations made against the Special Public Prosecutor in the said application. We have been shown a Circular dated 8/12/2009 issued by the Government Pleader / Public Prosecutor, High Court (A.S.), Mumbai. In that circular, a reference is made to an order passed by the Division Bench of this court presided over by Justice J.N. Patel. Reference is made to Rule 50 of the Rules for the Conduct of the Legal Affairs of Government, 1984. Reference is also made to the definition of the term “Public Prosecutor” and it is stated as under : “Section 2(n) defines the Public Prosecutor. It includes the Additional Public Prosecutors. Therefore, I have given the undertaking before the Court that henceforth only Additional Public Prosecutors, who have drafted the Criminal Application for leave to file an Appeal, Criminal Revision Applications, Criminal Applications for Condonation of Delay, etc. will swear the same. AJN 231210-CRI-APPA1541.10A 4 The office of the Hon'ble High Court also not accepting the filing, as same is not verified or sworn by the concerned Additional Public Prosecutor. Therefore, it is informed to all our Additional Public Prosecutors that the concerned Additional Public Prosecutor, who has drafted the matter, has to swear the Criminal Application for leave to file an Appeal, Criminal Revision Applications, Criminal Applications for Condonation of Delay, etc. However, the office brought to my notice that some Additional Public Prosecutors are refusing to sign and/or to swear the matters pertaining to Criminal Application for leave to file an Appeal, Criminal Revision Applications, Criminal Applications or Condonation of Delay, etc. and, therefore, delay were caused in filing the matters. Please note the refusal to sign and/or swear the aforesaid matters, will be communicated to the Law & Judiciary Department, Mantralaya, Mumbai, please take note of the same.” 4. We do not want to comment on the above circular because that is not the subject matter before us. But, obviously, in view of the same, learned Special Public Prosecutor has sworn the application for leave to appeal. No mala fides can, therefore, be read in his swearing the AJN 231210-CRI-APPA1541.10A 5 application for leave to appeal. 5. We were distressed to read the allegations made in the application. When we took strong exception to such mud slinging, Mr. Naqvi, counsel for A3-Shaikh persisted in making allegations and, on the contrary, he told us that learned Special Public Prosecutor purposely refused to rope in this case Headley - the co-conspirator. We made it clear that in the present confirmation case and appeal, we are not concerned with Headley and counsel can agitate this issue before the appropriate forum or authority if he so desires, if the law permits it. We told him that we are concerned only with the appreciation of evidence which is before us. He, however, behaved in an arrogant manner and refused to listen to us. 6. It is pertinent to note that the application bears the date of 18/12/2010. It is signed by Mr. Naqvi. In the application, it is stated that opponent 2 i.e. Mr. Nikam, learned Special Public Prosecutor has made a public AJN 231210-CRI-APPA1541.10A 6 disclosure before an open gathering of people on 19/12/2010 and on 20/12/2010. We wonder as to how on 18/12/2010, Mr. Naqvi made an application stating that Mr. Nikam has made a public disclosure before an open gathering of people on 19/12/2010 and on 20/12/2010. This itself shows that the application is filed carelessly with an oblique motive. The application to leave to file appeal is dated 6/8/2010 and it was served on A3-Shaikh long back. Mr. Naqvi did not move the court earlier. The present application is moved on 18/12/2010. Apart from the fact that there is no merit in the application, on the ground of sheer delay, the present application deserves to be rejected. We have no manner of doubt that this application is filed at a belated stage to distract this court's attention and to delay the hearing of the appeal. We deprecate this conduct. 7. Application is, therefore, rejected. 8. Copy of this order be sent to the Advocate General – AJN 231210-CRI-APPA1541.10A 7 Mr. Ravi Kadam to consider the correctness or otherwise of the Circular dated 8/12/2009 and for appropriate action if found necessary. [MRS. RANJANA DESAI, J.] [RANJIT V. MORE, J.]