IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 Crl.MC.No. 535 of 2011() ------------------------ AGAINST THE ORDER DATED 16/02/2011 IN CMP.306/2011 IN SC.321/2005 of ADDL. SESSIONS COURT-II, THIRUVANANTHAPURAM .................... PETITIONER(S): ACCUSED NO.1 --------------------------- VIJAYAN, S/O.GABRIEL, V.R.BHAVAN, KUTTAN THURANNA VILA, KULATHOOR DESOM, KULATHOOR VILLAGE, THIRUVANANTHAPURAM BY ADV. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.SUJESH MENON V.B. SRI.ANIL K.MOHAMMED SRI.JOSEPH P.ALEX SRI.SHYAM ARAVIND SRI.T.ANIL KUMAR RESPONDENT(S): COMPLAINANT -------------------------- 1. STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2. SASTHAMANGALAM S.AJITH KUMAR, SPECIAL PUBLIC PROSECUTOR, ADVOCATE, VANCHIYOOR, THIRUVANANTHAPURAM-695001 PUBLIC PROSECUTOR SHRI K.J.MOHAMMED ANZAR FOR R1 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.535 of 2011 -------------------------------------- Dated this the 21st day of February, 2011. ORDER Accused No.1 in S.C.No.321 of 2005 of the court of learned Additional Sessions Judge-II, Thiruvananthapuram is the petitioner before me challenging the order dated 16.02.2011 passed by learned Additional Sessions Judge on Crl.M.P.No.306 of 2011. That was a petition filed by the petitioner not to allow respondent No.2 who was appointed as Special Public Prosecutor to conduct the case notwithstanding that the Government has issued orders appointing him as Special Public Prosecutor. Grievance of the petitioner is that respondent No.2 has appeared on behalf of the relatives of the deceased at different stages of the same proceeding, be it in the matter of opposing the application for bail submitted by petitioner or in the matter of attachment of property when he was allegedly absconding. Petitioner says that if in such circumstances respondent No.2 who is very much interested in the matter if allowed to conduct the prosecution, petitioner and other accused will be prejudiced. Learned counsel contended that the prosecutor has to be fair to the defence also and that he cannot be a persecutor. Petitioner apprehends that respondent No.2 cannot act as an independent and impartial prosecutor and that petitioner will not get a fair and just trial. It is therefore requested that the order under challenge may be set aside. I have heard learned Public Prosecutor also. Crl.MC No.535/2011 2 2. Respondent No.2 is appointed as a Special Public Prosecutor by virtue of power conferred on the State Government under Section 24(8) of the Code of Criminal Procedure. Certainly, at the time respondent No.2 was appointed as Special Public Prosecutor there was no challenge. It is also seen from the order of learned Additional Sessions Judge that when the case came up for trial, it was scheduled and posted for trial from 16.02.2011 to 23.02.2011 considering the request of petitioner since he wanted the assistance of a senior counsel to defend him. There was no opposition to respondent No.2 conducting the prosecution then. It is thereafter petitioner filed Crl.M.P.No.306 of 2011. 3. Grievance of petitioner is that respondent No.2 has appeared on behalf of the relatives of the deceased (in the same case on prior occasions) to oppose the bail application filed by petitioner and when the property of petitioner was attached. I am not persuaded to think that because respondent No.2 has done his professional duty on prior occasions as counsel for the relatives of the deceased, his appointment as Special Public Prosecutor is undesired or that he has any personal interest in the matter. I am inclined to think that respondent No.2 as Special Public Prosecutor is required to discharge his professional duty as such and as enjoined by law. He can only conduct the prosecution. I must also bear in mind that petitioner is defended by a counsel. The trial court is not a mere umpire to pronounce the verdict after game is over. Trial court has an active role in the trial of the case to ensure that a fair trial is conducted. It is not as if whenever petitioner has got an apprehension, trial of the case must be Crl.MC No.535/2011 3 stopped and appointment of Special Public Prosecutor must be cancelled. I stated that at the time Special Public Prosecutor was appointed there was no challenge and apprehension came only when the case was scheduled for trial and that to, accepting request of the petitioner so that he could engage a senior counsel to defend him. I do not find merit in this petition or reason to interfere with the order of the court below. Petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks