IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 WP(C).NO. 4704 OF 2011(K) -------------------------------------- PETITIONER(S): ----------------------- BALADEVA GUPTAN, S/O.SANKARAN GUPTAN, AGED 60 YEARS, SREEVIHAR, AZHIYANNOOR P.O., KADAMBAZHIPURAM, PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP.BY SECRETARY TO GOVERNMENT, DEPT OF HOME, GOVT.SECRETARIAT, TRIVANDRUM. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA REP.THE SI OF POLICE, KONGAD POLICE STATION IN CRIME NO.225/2001. BY PUBLIC PROSECUTOR SHRI K.J. MOHMAMED ANZAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.4704 of 2011 ==================================== Dated this the 23rd day of February, 2011 J U D G M E N T Petitioner is the de facto complainant in Crime No.225 of Kongad Police Station and S.C. No.458 of 2003 of the court of Learned Additional Assistant Sessions Judge, Palakkad for offences punishable under Sections 143, 144, 147, 148, 324, 452 and 307 read with Section 149 of the Indian Penal Code. Case is scheduled for trial. Grievance of petitioner is that he belongs to Congress Party while the Public Prosecutor appointed on political consideration belongs to an opposite political party. The accused in the case have close links with the Public Prosecutor and in the circumstances that Public Prosecutor may not conduct the prosecution effectively. On receipt of summons petitioner submitted a representation to the State Government for appointment of a Special Public Prosecutor. It is therefore prayed that a direction may be issued to appoint a Special Public Prosecutor to conduct prosecution in the case. Learned counsel W.P(C) No.4704 of 2011 -: 2 :- stated that in the circumstances it is necessary that a Special Public Prosecutor is appointed. I have heard the learned Public Prosecutor also. 2. It is not as if in and every case a Special Public Prosecutor is appointed whenever asked for. It is initially the prerogative of the State Government to appoint a Special Public Prosecutor by virtue of the power under Section 24(8) of the Code of Criminal Procedure (for short, “the Code”). Merely because some apprehension is raised this Court cannot issue a direction for appointment of a Special Public Prosecutor for conducting the case. There is no reason to think why the Public Prosecutor or the Additional Public Prosecutor, as the case may be who is in charge of the case would not discharge his professional duty as Public Prosecutor. At any rate it is open to the petitioner to engage a counsel as provided under Sec.301(2) of the Code. I must also bear in mind that trial Judge is not a silent spectator or 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 W.P(C) No.4704 of 2011 -: 3 :- trial is conducted. When such safeguards are available to the petitioner there is no reason why should I direct a Special Public Prosecutor to be appointed. 3. Learned counsel submitted that petitioner wants to engage a counsel under Sec.301(2) of the Code and to facilitate that, trial of the case may be adjourned for a few days. Having regard to that request of learned counsel I am inclined to allow the request. Writ Petition is dismissed. It is directed that trial of the case be adjourned to a day after 28.02.2011. THOMAS P. JOSEPH, JUDGE. vsv