--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITITION NO. 3944 / 2010 SANDEEP S/O SUNIL HARDIYA & OTHERS Vs. STATE OF MP & OTHERS * * * * * O R D E R ( 15/2/2011) The petitioners before this court have filed this present petition being aggrieved by order dt. 9/3/10, passed by respondent No.1 appointing Special Prosecutor to contest S.T.NO. 1188/2009, pending in the Court of IInd Addl. Sessions Judge, Indore. The contention of the petitioners is that as per the prosecution story, on 18/8/09 petitioners have allegedly assaulted one Prem Shankar and his brother Basant resulting in death of Prem Shankar. The petitioners have also stated that a case has been registered against them at Crime No. 671/09 for offences u/Ss. 302, 307, 147, 148 and 149 of the IPC. It has also been stated that a challan has also been filed in the matter and a regular Sessions Trial ie., ST No. 1188/09 is pending before the court of 2nd Addl. --- 2 --- Sessions Judge, Indore. The contention of the petitioners is that by an order dt. 9/9/10, passed by the Secretary, State Government, Department of Law & Legislative Affairs, a special prosecutor has been appointed and the appointment of special prosecutor is contrary to law and facts. It has been stated that no special circumstances have been mentioned while appointing the Special Prosecutor as provided u/S. 24(8) of the CrPC. It has also been stated that no reason has been assigned by the respondent No.1 for treating ST NO. 1188/09 as special case. It has also been stated that appointment of respondent No.3 as a Special Prosecutor is violative of Article 14 and 21 of the Constitution of India and the same deserves to be quashed in the light of the judgment of the apex court in the case of Mukul Dalal Vs. Union of India (1988) 3 SCC 144. A reply has been filed in the matter and the contention of the respondent State is that a Special Prosecutor has been appointed in the present case on the basis of the recommendations made by the Addl. Collector, Indore, with due application of mind for the reasons recorded in the file. --- 3 --- The respondents State has produced the original record relating to appointment of Special Prosecutor. Learned Counsel appearing for respondent No.2 who is widow of late Prem Shankar has alleged that her husband was brutally killed by the accused persons and the accused persons are very influential people and they are even threatening the witnesses not to give evidence and therefore for the reasons detailed in her representation a special prosecutor has rightly been appointed in the peculiar facts and circumstances of the case. She has prayed for dismissal of the writ petition. Heard learned counsel for the parties at length and perused the record. This court in order to find out whether reasons have been assigned by the Law Department while appointing a Special Prosecutor has summoned the original record and the relevant file of the Law Department has been placed before this Court. The notings in the file reveal that a Special Prosecutor has been appointed for various reasons and it is not a case where a Special Prosecutor has been appointed in a mechanical manner as alleged by the --- 4 --- petitioner. Mr. PK Shukla, respondent No.3 has been appointed as Special Prosecutor by the State Government in exercise of the powers conferred u/S. 24(8) of the CrPC which empowers the State Government to appoint a Special Prosecutor who has been in practice as an Advocate for not less than 10 years. The respondent No.3 is having more than 10 years of practice. The subject matter relating to appointment of Special Prosecutor was subjected to judicial scrutiny in the case of Mayuresh Vs. State of MP (WP NO. 814/2010) and the learned Single Judge relying upon various judgments including the judgment delivered by the apex court in the case of Mukul Dalal Vs. Union of India (1988) 3 SCC 144, has passed the following order : 6. Having heard learned counsel for the parties and having gone through averments made in the petition and the reply as also considering the judgments relied upon by them I find no merit in this writ petition. 7. True it is in case of Sunil Kumar V. State of M.P. and others (supra) a Division Bench of this Court has held that Special Public Prosecutor can be appointed by the State Government only in exceptional cases and for the reasons to be recorded. In the case of Poonamchand Jain Vs. State of M.P. and others (supra) the learned Single Judge of this Court --- 5 --- placing reliance on the Division Bench judgment of this Court in the case of Sunil Kumar Vs. State of M.P. and others (supra) held that in the absence of special circumstances existing for appointment for Special Public Prosecutor the appointment cannot be made. The Supreme Court in the case of Mukul Dalal and others Vs. Union of India and others (supra) has held that the Special Public Prosecutor cannot be appointed on mere asking of private complainant. The request of the private complainant for such appointment must be examined by Legal Remembrancer on the basis of the guidelines prescribed or to be prescribed and decision be taken accordingly. However recently the Supreme Court had an occasion to examine the question of appointment of Special Public Prosecutor in the case of State of Maharashtra and others Vs. Prakash Prahlad Patil and others (supra) in which taking note of the view expressed by the Supreme Court in the case of Mukul Dalal and others Vs. Union of India and others (supra), the Supreme while upholding the appointment of Special Public Prosecutor has observed thus: “The appointment of respondent No.3 appears to have been made on the basis of a petition filed by the brother and the son of the victim. This was a case where two persons were killed. Several accused persons are facing trial. Though initially it was not disclosed by respondent no.1 that he is related to one of the accused, but later on the fact surfaced during the hearing of the matter before the High Court. Then respondent no.1 took the stand that he was social worker and in greater public interest the writ petition was filed. The State opposed the petition on several grounds: primarily indicating that the scope of --- 6 --- judicial review of the executive, administrative and quasi-judicial action, was extremely limited and this is not a case where any interference was called for. It appears from the impugned order of the High Court that the original file was called for and scanned as if the High Court was hearing an appeal against a decision taken. The scope for judicial review has been examined by this Court in several cases. It has been consistently held that the power of judicial review is not intended to assume a supervisory role or don the robes of omnipresent. The power is not intended either to review governance under the rule of law nor do the courts step into the areas exclusively reserved by the supreme lex to other organs of the State. A mere wrong decision, without anything more, in most of the cases will not be sufficient to attract the power of judicial review. The supervisory jurisdiction conferred upon a court is limited to see that the authority concerned functions within its limits of its authority and that its decision do not occasion miscarriage of justice. The Supreme Court further observed in para 3 and 4 of the judgment that: 3. 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. 4. In the instant case, acting on a petition filed by close relatives of a victim decisions have been taken at various levels. The High Court was not justified to pick up stray sentences from the records to conclude that there was non-application of mind. In any event, the appointment of a --- 7 --- Special Public Prosecutor to conduct a proceeding does not in any was cause prejudice to the accused. In that sense the writ petition before the High Court was wholly misconceived. The impugned judgment of the High Court is set aside.” 8. In the present case as would be clear from correspondence between the Deputy Director Prosecution, Ujjain, District Collector, Ujjain and the first respondent Secretary, Law and Legislative Department, Government of M.P., that the decision to appoint the third respondent as a Special Public Prosecutor has been taken at various levels on the basis of an application submitted by father of the deceased victim. In the decision making process I find no arbitrary exercise of powers nor it is a case that the State Government has acted beyond its jurisdiction causing miscarriage of justice. It has been observed by the Supreme Court in the case of State of Maharashtra Vs. Prakash Prahlad Patil and others (supra) that in such matters the scope for judicial review is not intended to assume a supervisory role or don the robes of omnipresent. The power is not intended either to review governance under the rule of law nor do the courts step into the areas exclusively reserved by the supreme lex to other organs of the State. The supervisory jurisdiction conferred upon a court is limited to see that the authority concerned functions within its limits of its authority and that its decision do not occasion miscarriage of justice. The petitioner has not made any averment or allegation about malafide nor he has made any averment prejudice that will cause to him. The decision which has been taken as aforesaid, at various levels, cannot be interfered into merely because the complainant who is --- 8 --- father of the deceased victim has sought for appointment of the third respondent as Special Public Prosecutor. 9. In the circumstances in my considered view the law laid down by the Supreme Court in the case of State of Maharashtra Vs. Prakash Prahlad Patil (supra) which governs the field fully applies to the facts of the present case. As a result no case for interference into the impugned order dt.28.4.2009 (Annexure P/ 1) by this Court is made out. 10. Accordingly the petition fails and is hereby dismissed. No orders as to the costs. In the present case, it is clear from the correspondence produced before this Court that the decision to appoint Mr. PK Shukla, respondent No.3 as a Special Public Prosecutor has been taken at various level on the basis of an application submitted by the widow of the deceased victim and in the decision making process, this court does not find any arbitrary exercise of powers, nor does a case where the State Government has acted beyond its jurisdiction causing miscarriage of justice. The decision taken by the State Government, as aforesaid at various levels, cannot be interfered with merely because the respondent No.2 who is a widow of the deceased victim has prayed for appointment of --- 9 --- Mr. PK Shukla, respondent No.3 as a Special Public Prosecutor. Keeping in view the aforesaid and also keeping in view the judgment delivered in the case of Mayuresh Vs. State of MP (WP NO. 814/2010), no case for interference is made out in the impugned order dt. 9/3/10. Resultantly, writ petition fails and is accordingly dismissed. (S. C. SHARMA) J U D G E KR