*THE HON’BLE SRI JUSTICE N.V. RAMANA +W.P. Nos. 21851 and 26699 of 2007 % Dated: 08.02.2008 W.P. No. 21851 of 2007 # Paramjit Singh Sadana, S/o Harbajan Singh Sadana, R/o H.No.3-6-290/1, Hyderguda, Hyderabad. ..... PETITIONER VERSUS $ State of A.P., rep. by the Secretary (Legislative Affairs and Justice), Govt. of Andhra Pradesh, Secretariat, Hyderabad and others. .....RESPONDENTS ! Counsel for the Petitioner: Sri T. Bali Reddy/K. Suresh Reddy ^ Counsel for Respondent No.1: G.P. for Law and Legislature Counsel for Respondent No.2: G.P. for Home Counsel for Respondent No.3: Sri O. Kailashnath Reddy Counsel for Respondent No.4: --- Counsel for Respondent No.5: Sri C.B. Ram Mohan Reddy < GIST: > HEAD NOTE: ? Cases referred: 1. (1988) 3 SCC 144 2. (1986) 1 ALT 141 3. (1993) 4 SCC 441 4. (2005) 2 SCC 104 5. AIR 2004 SC 3800 6. 2004 Crl.L.J. 52 7. 2001 Crl.L.J 912 8. 2002 Crl.L.J. 1694 9. 1992 MPLJ 772 THE HON’BLE SRI JUSTICE N.V. RAMANA W.P. Nos. 21851 and 26699 of 2007 Common order: Since these two writ petitions filed by the accused in S.C. No. 218 of 2007 on the file Metropolitan Sessions Court, Hyderabad, assail the orders issued in G.O. Rt. No. 1239, dated 03.08.2007 by respondent No.1-Government of Andhra Pradesh under Section 24(8) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) appointing Sri. P. Satya Murthy, Advocate, as a “Special Public Prosecutor” for conducting prosecution in the said Sessions Case, as being illegal and arbitrary, they are heard together and are being disposed of by this common order. BRIEF FACTS OF THE CASE The facts that gave rise to the filing of these two writ petitions are – At the instance of one Smt. Reena Sadna (hereinafter called as the ‘de facto complainant’) a case in Crime No. 369 of 2006 on the file of the Police Station, Punjagutta, under Sections 302 and 379 I.P.C. was registered. In the said complaint, the complainant alleged that her husband Sri Jasbir Singh was murdered on the intervening night of 27/28.04.2006, and she suspected her servants namely A2 to A5, who are Nepalies, to be the culprits. During the course of investigation, she gave a statement that she suspected that the brother of the deceased (petitioner in W.P. No. 21851 of 2007) to be the main conspirator for the murder in view of existence of property disputes between them. While so, basing on the confessional statements, said to have been made by A1 and his Car Driver A6, the petitioner in W.P. No. 26699 of 2007 was arrayed as accused No. 7 in the sessions case on the ground that he facilitated A2 to A5 to flee away from Hyderabad, and provided them with money on the instructions of A1. Later, A6 having been arrested and remanded in judicial custody. After completing the investigation, the police laid the charge sheet in the month of October, 2006. Thereafter, the matter was committed to the Metropolitan Sessions Court, Hyderabad. While the case was pending, the de facto complainant made a representation to the Government for appointing a private Advocate as Special Public Prosecutor in the place of the existing Public Prosecutor to conduct trial in S.C. No. 218 of 2007. Basing on the said representation, the Government issued the impugned G.O. appointing Sri. P. Satya Murthy, Advocate, as the Special Public Prosecutor. DEFENCE OF THE RESPONDENTS Respondent No. 1-Government represented by the Secretary to Government, Law (Legislative Affairs and Justice) Department, has filed a common counter affidavit in both the writ petitions stating that the appointment of Special Public Prosecutor was made strictly in accordance with the provisions of Section 24(8) of the Code; that the murder of the husband of the de facto complainant caused great sensation in the city; while the investigation was in progress, the Commissioner of Police, Hyderabad, formed a special team to nab the accused, and they have arrested the accused, completed the investigation and filed the charge sheet. It is stated that the entire case depends on circumstantial evidence and the police have cited about 90 witnesses to prove the case. There is also scientific and expert evidence to be considered at the time of trial, and the case also involves certain important questions of law to be decided, and therefore, prosecution has to be conducted by an eminent and experienced counsel. Basing on the representation of the de facto complainant, the Government have examined the issue in the light of the remarks of the Director of Prosecutions, and appointed Special Public Prosecutor, to conduct prosecution in the case. The de facto complainant has also filed a counter affidavit along with a vacate stay petition inter alia stating that after the murder of her husband, she learnt from reliable sources that the brother of her husband, namely A1 is the main culprit for the ghastly murder, and she intimated the same to the Police, who after investigation, arrested him on 01.08.2006, and he was subsequently enlarged on bail, and that he is threatening her and her children as well as the witnesses with dire consequences. She further stated that the witnesses who were threatened by A1, have also made complaints to the police, which were registered as Crime Nos. 141 and 298 of 2007. Since there are number of witnesses to be examined, and with a view to ensure that the trial does not get delayed, she made representation to respondent No.1- Government to appoint a Special Public Prosecutor, and after considering the same, respondent No.1-Government has issued the impugned G.O., appointing Sri. P. Satya Murthy, Advocate, as Special Public Prosecutor for conducting trial in the case. SUBMISSIONS OF THE COUNSEL Sri. T. Bali Reddy, learned Senior Counsel appearing for the petitioner in W.P. No. 21851 of 2007 submits that the Public Prosecutor while conducting prosecution is expected to assist the Court in an unbiased manner, and an elaborate procedure is contemplated under Section 24 of the Code for appointment of a regular Public Prosecutor for conducting prosecution on behalf of the State for each Court, and in the instant case, even though there are no special reasons or circumstances, yet respondent No.1 acting on the representation of the de facto complainant, has issued the impugned G.O., appointing Sri. P. Satya Murthy, Advocate, as Special Public Prosecutor, which is illegal and arbitrary. He submitted that perceptions of third parties have no role to play in the matter of appointing Special Public Prosecutors. In the absence of any allegations made against the existing Public Prosecutor with regard to his integrity, honesty and expertise, there was no necessity to appoint Sri. P. Satya Murthy, Advocate, as Special Public Prosecutor. He submitted that the de facto complainant in her representation to respondent No.1-Government has requested to appoint an experienced and Senior Advocate as Special Public Prosecutor, but respondent No.1-Government has appointed an Advocate, who is much junior to the present Public Prosecutor, which amounts to abuse of discretionary jurisdiction conferred on the State under Section 24(8) of the Code. He submitted that the Office of the Public Prosecutor is of special significance, and he is not supposed to act in a partisan manner, with an endeavour to procure conviction of the accused. A Public Prosecutor assisting the Court has to discharge sacred duties, and should assist the Court in bringing about justice. Therefore, appointment of an Advocate as Special Public Prosecutor at the instance of de facto complainant, with the sole aim of procuring conviction of the accused cannot be sustained. That apart, a perusal of the impugned G.O., issued by respondent No.1-Government makes it clear that the Government has not applied its mind, and no reasons have been assigned for appointing Special Public Prosecutor, except reproducing a part of the representation made by the de facto complainant in the G.O., and since the said G.O. adversely affects the right of the accused to be defended, the same cannot be sustained. In support of his arguments, the learned Senior Counsel, placed reliance upon judgment of the apex Court in Mukul Dalal v. Union of India[1] and of this Court in D. Brahmanandam v. State of Andhra Pradesh[2]. Sri. Posani Venkateswarlu, learned counsel appearing for the petitioner in W.P. No. 26699 of 2007 has adopted the arguments of the learned Senior Counsel and submits that respondent No.1-Government issued the impugned G.O. appointing Sri. P. Satya Murthy, Advocate, as Special Public Prosecutor only at the instance of the de facto complainant. He submits that since there are no adverse remarks against the existing Public Prosecutor doubting his integrity or honesty or of his being related to any of the accused, the impugned G.O. appointing Sri. P. Satya Murthy, Advocate, as Special Public Prosecutor, cannot be sustained and has to be set aside. Sri. C.B. Ram Mohan Reddy, the learned counsel appearing for th e de facto complainant submits that respondent No.1-Government have the power under Section 24(8) of the Code to appoint Advocates as Special Public Prosecutors, to conduct a case or cases depending upon his merit, suitability, exigency and the complexity of the cases. He submitted that the accused have neither the right to question the appointment of Sri. P. Satya Murthy, Advocate, as Special Public Prosecutor nor can they contend that only the regular Public Prosecutor should proceed with the conduct of the case. He submitted that Special Public Prosecutor was appointed by respondent No.1-Government only after obtaining the view of the Director of Prosecutions as required, and therefore, it cannot be said that the de facto complainant, has sought for appointment of a Special Public Prosecutor of her choice. He submitted that the regular Public Prosecutor is already over burdened with many cases, and since the case required speedy trial, appointment of Special Public Prosecutor, to conduct the case is very much necessary, and as such, neither any right of the accused nor their defence is adversely affected. Sri. O. Kailashnath Reddy, the learned counsel appearing for respondent No.3 in W.P. No. 21851 of 2007, the existing Public Prosecutor submitted that the de facto complainant has made a representation to respondent No.1-Government stating that she wants an eminent and experience Prosecutor to conduct prosecution in the case, and considering the said request of the de facto complainant, respondent No.1-Government have issued the impugned G.O. appointing Sri. P. Satya Murthy, Advocate, as Special Public Prosecutor. He submitted that since the said appointment, had affected his credibility and has thrown a negative impression on his capability of handling the cases and caused lot of embarrassment to respondent No.3, he prayed that the impugned G.O., appointing Sri. P. Satya Murthy, Advocate, as Special Public Prosecutor, be set aside. QUESTIONS THAT ARISE FOR CONSIDERATION In the light of the arguments advanced on behalf of the respective parties, the following questions do arise for consideration in the writ petitions: 1. What is the procedure that governs the appointment of Public Prosecutors/Additional Public Prosecutors/Special Public Prosecutors/Assistant Public Prosecutors, to the various Courts? 2. Whether the accused in a criminal case have any locus standi to question the appointment of Special Public Prosecutor? 3. What is the amount of discretion that is vested in the Government in the matter of appointment of Public Prosecutors/Additional Public Prosecutors/Special Public Prosecutors/Assistant Public Prosecutors, to the various Courts? 4. Whether respondent No.1-Government was justified in appointing Special Public Prosecutor on the request made by the de facto complainant? In Re question No.1: Sections 24 and 25 Cr.P.C. deal with Public Prosecutors and Assistant Public Prosecutors. The procedure that has to be followed in the matter of making appointments to the posts of Public Prosecutors and Assistant Public Prosecutors, is laid under the said Sections. For the present case, it would be appropriate to refer to the provisions of Section 24 Cr.P.C., which reads as follows: 24. Public Prosecutors:- (1) For every High Court, the Central Government or the State Government, shall, after consultation with the High Court, appoint a public prosecutor and may also appoint one or more Additional Public Prosecutors for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. (2) The Central Government may appoint one or more public prosecutors for the purpose of conducting any case or class of cases in any district or local area. (3) For every district, the State Government shall appoint a public prosecutor and may also appoint one or more Additional Public Prosecutors for the district: Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district. (4) The District Magistrate shall, in consultation with the Sessions Judge prepare a Panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district. (5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4). (6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre; Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment then Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the Panel of names prepared by the District magistrate, under sub-section (4). (7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub- section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years. (8) The Central Government or the State Government may appoint for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor. (9) For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice as a Pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate. A glance at the above provision would disclose that the State Government shall appoint a Public Prosecutor for every district, and may also appoint one or more Additional Public Prosecutors for every district. Similarly, the Central Government or the State Government, as the case may be, may appoint for the purposes of any case or class of cases a Special Public Prosecutor. Thus, it is obvious that the State Government may appoint a Public Prosecutor for the District and the State Government may also appoint for the purposes of any case or class of cases a Special Public Prosecutor. It may be mentioned here that while it is the requirement for the State to appoint a Public Prosecutor for the District, discretion seems to have been conferred upon the State to appoint a Special Public Prosecutor for the purposes of any case or class of cases. While sub-section (3) is the enabling provision for the State to appoint a Public Prosecutor, sub-sections (5) and (7) postulate the eligibility criteria. Sub-section (8), however, embraces in itself the enabling provision and the eligibility criteria as well. Sub-section (4) however mandates that the District Magistrate shall in consultation with the Sessions Judge prepare a panel of names of persons who are in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the District. As can be seen from sub-sections (5) and (7) no person shall be appointed by the State Government as Public Prosecutor or Additional Public Prosecutor, as the case may be, unless he has been in practice as an Advocate for not less than seven years and his name appears in the panel of names prepared by the District Magistrate in accordance with the mandate contained in sub-section (4). However, for appointment as Special Public Prosecutor sub-section (8) mandates that a person who has been in practice as an Advocate for not less than 10 years alone is eligible to be appointed. Ex facie, sub- section (8) in so many terms does not envisage any consultation process or preparation of a panel except the requirement of ten years standing at the Bar. The standing at the bar, which makes an Advocate eligible to be considered for the appointment of a Public Prosecutor or Additional Public Prosecutor, as the case may be, obviously differs from the appointment of Special Public Prosecutor. Merely because sub- sections (7) and (8), as discussed hereinabove, in so many terms prescribe eligibility criteria (standing at the bar) for the appointment of Special Public Prosecutor, it is not permissible to ignore sub-sections (4) and (5) while making appointments under sub-sections (7) or (8) of Section 24 of the Code. In my considered view, sub-section (8) shall not be read in isolation, and Section 24 of the Code needs to be read as a whole so as to discern what is the criterion for the appointment of a Public Prosecutor or Additional Public Prosecutor, as the case may be, in respect of a District and what is the criterion for the appointment of a Special Public Prosecutor. As discussed above, sub-sections (4) and (5) mandate the consultation process, the preparation of the panel and the existence of a name of an Advocate for the appointment of a Public Prosecutor. This procedure envisaged under these two provisions shall have to invariably be followed even in respect of an appointment of a Special Public Prosecutor. Therefore, a reading of Section 24 of the Code as a whole makes it obvious that whether it is a case of appointment of a Public Prosecutor or Additional Public Prosecutor, as the case may be, or it is a case of appointment of a Special Public Prosecutor, the consultation process, the preparation of the list and the existence of the name of an Advocate in the list are common, the only difference being the standing at the bar. Sub-section (4) of Section 24 mandates that the District Magistrate shall in consultation with the Sessions Judge prepare a panel of names of persons who are in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors, as the case may be, although the provision enables the District Magistrate to prepare a panel containing the names of the persons who are in the opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors, as the case may be, such preparation of the panel is conditioned and it was made obligatory for the District Magistrate to consult invariably the Sessions Judge. Therefore, the preparation of the panel of names although it is the obligation of the District Magistrate to do, he must do it only in consultation with the Sessions Judge. The expression “consultation” as used in sub-section (4) cannot be given its generic or etymological meaning. Indeed, the expression “consultation” has been subject matter of discussion before the apex Court in many a judgment. The apex Court in Supreme Court Advocates-on-Record Association and Others v. Union of India[3] (known as “Second Judges’ Case”) at para 433, held as follows: It is with this perception that the nature of primacy, if any, of the Chief Justice of India, in the present context, has to be examined in the constitutional scheme. The hue of the word ‘consultation’, when the consultation is with the Chief Justice of India as the head of the Indian Judiciary, for the purpose of composition of higher judiciary, has to be distinguished from the colour the same word ‘consultation’ may take in the context of the executive associated in that process to assist in the selection of the best available material. That expression used in the provisions of the Constitution of India and as used in various other statutes is similar although interpretation process differs when it comes to interpret the expressions used in the Constitution qua the similar provisions elsewhere in various other statutes. Having regard to the context here, it shall have to be construed akin to the expression used in the provisions of the Constitution of India. The consultation of the Sessions Judge is envisaged under Section 24 of the Code by the District Magistrate for the purpose of preparing the panel obviously because the Sessions Judge shall be in a position to assess the merit and ability of the Advocate than the District Magistrate. That is the reason why, the Parliament in its wisdom made the consultation of the Sessions Judge by the District Magistrate as mandatory. In this context, therefore, consultation shall have to be given its due meaning. The apex Court has gone a step further in Ashok Tanwar and Another v. State of Himachal Pradesh and Others[4], when it held that the initiation must be from the Judiciary. Therefore, although the District Magistrate is expected to prepare a panel consisting of the names of the persons who are in his opinion fit to be appointed as Public Prosecutors since he is obliged to consult the Sessions Judge, the preparation of the panel must be initiated by the Sessions Judge himself. The Code has not envisaged any special reason, which necessitates the appointment of a Special Public Prosecutor by the State. Although discretion is conferred upon the State to appoint a Special Public Prosecutor for the purposes of any case or class of cases, it is always expedient more significantly to avoid the element of arbitrariness to evolve and prescribe an intelligible criterion so that the same can be followed uniformly as and when the necessity arises. I n State of Uttar Pradesh and another v. Johri Mal[5], the State of Uttar Pradesh amended Section 24 of the Code in terms whereof, the requirements to consult the High Court for appointment of Public Prosecutors for the High Court as contained in sub-section (1) of Section 24 as also sub-sections (4), (5) and (6) thereof were deleted. Finding fault with such action of the State of Uttar Pradesh, a three- Judge Bench of the Supreme Court speaking through S.B. Sinha, J, held as follows: While making appointments of District Government Counsel, the State should give primacy to the opinion of the District Judge. Such a course of action would demonstrate fairness and reasonableness of action and, furthermore, to a large extent the action of the State would not be dubbed as politically motivated or otherwise arbitrary. The State of Uttar Pradesh alone had amended sub-sec (1) of Section 24 and deleted sub-secs. (3), (4) and (5) of Section 24 of the Code of Criminal Procedure. Evidently, the said legislative step had been taken to overcome the decision of the Supreme Court in Ku. Shrilekha Vidyarthi (supra). There is no rationale in the said action because a law cannot be substituted by executive instructions contained in Manual, which may be subjected to administrative vagaries. There does not exist any rationale behind deletion of the provision relating to consultation with the High Court in the matter of appointment of the Public Prosecutors in the High Court. The said provision being a salutary one, it is expected that the State of U.P. either would suitably amend the same or despite deletion shall consult the High Court with a view to ensure fairness in action. Thus, from the above it becomes clear that in the matter of making appointments to the posts of Public Prosecutors/Additional Public