- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1899 OF 2004 CRIMINAL WRIT PETITION NO.1899 OF 2004 CRIMINAL WRIT PETITION NO.1899 OF 2004 With With With CRIMINAL WRIT PETITION NO.290 OF 2005 CRIMINAL WRIT PETITION NO.290 OF 2005 CRIMINAL WRIT PETITION NO.290 OF 2005 CRIMINAL WRIT PETITION NO.1899 OF 2004 CRIMINAL WRIT PETITION NO.1899 OF 2004 CRIMINAL WRIT PETITION NO.1899 OF 2004 Sushil Hiralal Chokhani, ) Aged: 51 Yrs., Occ : C.A., ) residing at 37/1, J.B. Nagar, ) Andheri (East), Mumbai - 400 059. ).. Petitioner Vs. 1. The State of Maharashtra, ) 2. Shri Subhash Jha, ) Advocate, ) Having office at - ) 1, Currimjee Building, ) 111, M.G.Road, ) Opposite University, ) Fort, Mumbai - 400 023. ).. Respondents -- Shri S.V.Kotwal, Advocate for the petitioner. S/Shri D.G.Bagawe, Advocate, with D.S.Mhaispurkar, APP for the respondents. -- CRIMINAL WRIT PETITION NO.290 OF 2005 CRIMINAL WRIT PETITION NO.290 OF 2005 CRIMINAL WRIT PETITION NO.290 OF 2005 1. Shri Sadanand Shivaji Kadam, ) Age 79 years, ) Occ: Retired from service, ) R/a.Plot No.24, Swaroop Housing ) Colony, Anand Nagar, ) Pune - 51. ) 2. Smt. Shobhana Deepak Anpat, ) Age-adult, Occ: Housewife, ) - 2 - R/a.Bharati Apartments, 26/1, ) Shivaji Nagar, Pune - 5. ).. Petitioners Vs. 1. Vishwajeet Anand Danke, ) Age 23 years, ) R/a.49, Anand Nagar, Pune - 51. ) 2. Girish Raghunath Shinde, ) Age-adult, Occ: Advocate, ) R/a.Meghna, 1, Ganesh Mala, ) Sinhagad Road, Pune - 411 030. ) 3. The State of Maharashtra. ).. Respondents -- Shri S.V.Kotwal, Advocate for the petitioners. Shri N.P.Deshpande, Advocate, for respondent Nos.1 and 2. Shri I.S.Thakur, APP for respondent No.3. -- CORAM : R.M.S.KHANDEPARKAR & P.V.KAKADE, JJ. DATED : 26th APRIL, 2005. JUDGMENT: ( Per R.M.S.Khandeparkar, J ) JUDGMENT: ( Per R.M.S.Khandeparkar, J ) JUDGMENT: ( Per R.M.S.Khandeparkar, J ) 1. Since common questions of law and facts arise in both these petitions, they were heard together and are being disposed of by this common judgment. 2. In both the petitions, rule, and by consent, the rule is made returnable forthwith. Heard the learned Advocates for the petitioners as well as the learned Advocate and APP for the respondents and the State. - 3 - 3. The justifiability of the appointments of the respondent No.2 in both the petitions as the Special Public Prosecutors, at the instance and cost of the complainants in the criminal cases, is being challenged in these petitions. Apart from non compliance of the rules framed in relation to such appointment, the petitioners also complain about non compliance of the guidelines laid down by the Apex Court in Mukul Dalal & Ors. v. Union of India & Mukul Dalal & Ors. v. Union of India & Mukul Dalal & Ors. v. Union of India & Ors., Ors., Ors., reported in (1988) 3 SCC 144, in that regard. 4. In Writ Petition No.1899 of 2004, the petition was initially filed challenging the vires of the Rule 22 in Chapter III of the Rules for the Conduct of the Legal Affairs of Government, 1984 as amended by the Government Amendment Rules 2002. However, the said challenge has been specifically abandoned in view of the fact that the said rule has already been amended during the pendency of the petition. The challenge in the said petition is restricted to the notification dated 12th March, 2004 by which the respondent No.2 Sri Subhash Jha, Advocate, has been appointed as the Special Public Prosecutor to conduct all the cases arising out of C.R.No.I-301 of 2003, registered at Turbhe Police Station. In Writ Petition No.290 of - 4 - 2005, the petitioners challenge the notification dated 1st October, 2004 appointing the respondent No.2 Sri Girish Raghunath Shinde, Advocate, as the Special Public Prosecutor for conducting sessions case No.156 of 2004 in Sessions Court at Pune. 5. In Criminal Writ Petition No.1899 of 2004, the undisputed facts are that the complaint by one Ravindra Ahuja came to be lodged on 29th October, 2000 which was registered as C.R.No.I-301 of 2003 under Sections 467, 477(A), 408, 420, 506, 120(B) of the Indian Penal Code. Prior to the filing of the said FIR, the complainant along with his brother Vijay Ahuja had preferred a Criminal Writ Petition No.1632 of 2003 for issuance of direction to the police officers to register the FIR. In the said Writ Petition, Shri Subhash Jha, respondent No.2, had appeared as the Advocate for the petitioners in the said petition. Besides, in a Criminal Application No.1394 of 2003 preferred by the petitioner herein in the Court of Sessions at Thane for anticipatory bail and while it was heard in the said Court during the period from November, 2003 to February, 2004, the respondent No.2 herein had appeared first for the respondent who was the intervenor in the said proceedings and then has appeared as the Special - 5 - Public Prosecutor. In the Criminal Application No.687 of 2004 filed by the petitioner before this Court on 10th February, 2004, though initially the State was represented by the learned Additional Public Prosecutor in the High Court, the respondent No.2 started appearing in the said matter since 13th February, 2004 being privately engaged by the respondent No.1 and since 15th March, 2004 being appointed as the Special Public Prosecutor to represent the State. 6. In Criminal Writ Petition No.290 of 2005, the undisputed facts are that the petitioners lodged the F.I.R. under Section 447, 427 read with 34 of Indian Penal Code complaining that on 27th October, 1996 during the night hours, some persons trespassed in their property and damaged the fencing of their property and further threatened the petitioners, and on investigation, the police filed the charge sheet against the respondent No.1, his brother Abhijeet and one Amit Danke. They were however acquitted by the order dated 31st October, 2003. There are some other civil disputes pending between the petitioners and the respondent No.1. The grievance of the petitioners is that on 10th February, 2004, when the petitioner No.1 went to inquire about certain acts on the part of the - 6 - respondent No.1 and his father, they attempted to assault him with the intention to kill him and hence in self-defence the petitioner No.1 fired a bullet from his licenced revolver which resulted in the death of the father of the respondent No.1. In respect of the said incident, the petitioners lodged C.R.No.34 of 2004 under Section 307 read with 34 of Indian Penal Code, and on filing of the chargesheet, the case was committed to the Sessions Court and registered as Sessions Case No.352 of 2004. In respect of the same incident, the respondent No.1 lodged C.R.No.35 of 2004 which has also committed to the Sessions Court and registered as Sessions Case No.156 of 2004. Both the sessions cases being the cross cases, they are to be heard by the same Sessions Judge. The respondent No.2 had been appearing as the Advocate for the respondent No.1 in the Sessions Case No.352 of 2004. The respondent No.2 has also been representing the respondent No.1 in various other civil cases. The respondent No.2 came to be appointed as the Special Public Prosecutor in Sessions Case No.156 of 2004 arising out of the C.R.No.35 of 2004 lodged by the respondent No.1 against the petitioners. 7. It is the contention of the learned Advocate for the petitioners that though the Section 24(8) of - 7 - the Code of Criminal Procedure, 1973 empowers the Government to 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 10 years as Special Public Prosecutor, the authorities have not followed the procedure prescribed for an appointment of Special Public Prosecutor and the procedure adopted is contrary to the one prescribed under the rules for the Conduct of Legal Affairs of Government, as well as contrary to the directions issued by the Apex Court in Mukul Dalal’s case (supra). Mukul Dalal’s case (supra). Mukul Dalal’s case (supra). Drawing attention to the rules for the Conduct of Legal Affairs of Government, the learned Advocate for the petitioners submitted that the Rule 22 of Chapter III thereof was struck down by the Apex Court holding the same to be ultra vires, consequent to which, the said rule was sought to be amended by the Government in the year 2002. However, the amended provision was squarely contrary to the directions issued by the Apex Court in Mukul Mukul Mukul Dalal’s case (supra), Dalal’s case (supra), Dalal’s case (supra), and the Government, having realised the same, again amended and modified the said rule by Notification dated 13th September, 2004. The contention therefore is that when the Notification appointing the respondent No.2 as the Special Public Prosecutor was issued on 12th March, 2004, the rules prescribed were contrary to the directions issued by - 8 - the Apex Court in Mukul Dalal’s case (supra) Mukul Dalal’s case (supra) Mukul Dalal’s case (supra) and hence the appointment of the respondent No.2 made pursuant to the power exercised in terms of the said rule is to be held as bad in law. Even otherwise, the appointment of the respondent No.2 does not satisfy the criteria laid down by the Apex Court in Mukul Mukul Mukul Dalal’s case (supra). Dalal’s case (supra). Dalal’s case (supra). Further contention is that the respondent No.2 had been representing the complainant in the said case, and therefore, the respondent No.2 cannot be expected to hold unbiased view in the matter while performing his duties as the Special Public Prosecutor which could result in irreparable injury and prejudice to the petitioners. Reliance is placed in the decisions in the matters of Shiv Kumar v. Shiv Kumar v. Shiv Kumar v. Hukam Chand & Anr., Hukam Chand & Anr., Hukam Chand & Anr., reported in (1999) 7 SCC 467, Vijay Valia & etc. v. The State of Maharashtra & Vijay Valia & etc. v. The State of Maharashtra & Vijay Valia & etc. v. The State of Maharashtra & etc., etc., etc., reported in 1986 RC.LD 2093, and Mukul Dalal’s Mukul Dalal’s Mukul Dalal’s case (supra). case (supra). case (supra). The Notifications are also contended to be bad-in-law on account of their vagueness. According to the learned Advocate for the petitioners that the Notifications should disclose whether they are for a particular case or class of cases, and they cannot be for all cases as such. The very idea of appointing the Special Public Prosecutors will stand defeated, if their appointment is made for all the cases. He has further submitted that the appointments - 9 - have been made without considering the merits of the persons to be appointed as the Special Public Prosecutors. 8. The learned Advocate appearing for the State and the learned APP, on the other hand, have submitted that the power to appoint Special Public Prosecutor is provided under the provisions of Section 24(8) of the Code of Criminal Procedure, and not derived from the rules for the Conduct of Legal Affairs of Government which merely prescribe the procedure to be followed while making such an appointments. Even in the absence of the provisions of rule 22 of the said rules the power of the Government to appoint special public prosecutors is not affected. Besides, drawing attention to the Rule 18 of the said rules, it has been submitted that a precaution was taken to comply with all the relevant rules comprised under Rule 18 of Chapter III of the said Rules. There is no vagueness in the notifications and the expression "cases" refers to the miscellaneous matters in a case arising out of the C.R. No.35 of 2004. Reliance is also placed in the decisions in the matters of Chandra Gupta, I.F.S. Chandra Gupta, I.F.S. Chandra Gupta, I.F.S. v. Secretary, Government of India, Ministry of v. Secretary, Government of India, Ministry of v. Secretary, Government of India, Ministry of Environment & Forests and Others, Environment & Forests and Others, Environment & Forests and Others, reported in (1995) 1 SCC 23, Kumaon Motor Owners’ Union Ltd. & Anr. v. Kumaon Motor Owners’ Union Ltd. & Anr. v. Kumaon Motor Owners’ Union Ltd. & Anr. v. - 10 - State of Uttar Pradesh, State of Uttar Pradesh, State of Uttar Pradesh, reported in AIR 1966 SC 785, Varada Rama Mohana Rao v. State of Andhra Pradesh, Varada Rama Mohana Rao v. State of Andhra Pradesh, Varada Rama Mohana Rao v. State of Andhra Pradesh, reported in (2004) 4 SCC 427, and Union of India & Union of India & Union of India & Ors. v. E.G.Nambudiri, Ors. v. E.G.Nambudiri, Ors. v. E.G.Nambudiri, reported in (1991) 3 SCC 38. It is further submission on behalf of the State that merely because the respondent No.2 had appeared in the matter on behalf of a private party, that is neither a disqualification for his appointment as the Special Public Prosecutor nor it leads to presumption that such a person would not be able to perform his duties as a special public prosecutor in a fair and proper manner. The learned Advocate appearing for the private respondents while reiterating the arguments advanced on behalf of the State has submitted that the respondent No.2 in the Writ Petition No.290 of 2005 would withdraw his appearance as the lawyer in the Sessions Case No.156 of 2004, and that he does not have any sort of bias against the petitioners. 9. Section 24(8) of the Code of Criminal Procedure empowers the State Government to 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. The Government has framed the rules being the Rules for the Conduct of Legal Affairs of Government, 1984, - 11 - hereinafter called as "the said rules", and the Chapter III thereof deals with the procedure for appointment of Special Counsel and Special Public Prosecutors. 10. In terms of Rule 4 of the Chapter II of the said rules, the Remembrancer of Legal Affairs is a person, who is also the ex-officio Secretary to Government, is the administrative head of the Law and Judiciary Department. Rule 14 of Chapter II of the said rules enumerates the duties of the Remembrancer of Legal Affairs and it empowers him under sub-clause (3)(a) of the said rules to appoint a special counsel or special public prosecutor in any civil or criminal case, in which the State or its officers are either parties or in any way concerned and under clause (3)(b) thereof, he is empowered to decide their terms and fees and to make payment of their fees. Rule 15 of Chapter II of the said rules deals with delegation of functions by the Remembrancer of Legal Affairs and it provides that the functions, powers and duties to be performed by the Remembrancer of Legal Affairs shall be carried out by the officers of the Law and Judiciary Department as may be delegated to them by the Remembrancer of Legal Affairs by general or special orders. - 12 - 11. The rule 21 under Chapter III of the said rules deals with the subject of appointment of special public prosecutor. Sub-rule (1) thereof provides that the Remembrancer of Legal Affairs shall appoint under sub-section (8) of section 24 of the Code of Criminal Procedure, any person, who has been in practice as an advocate for not less than ten years, as a special public prosecutor on behalf of the State to conduct any criminal case or class of cases in the High Court or subordinate court. It further provides that the proposal to that effect shall be made to him either by the District Magistrate, Commissioner of Police, Public Prosecutor or the Government officer concerned, through his administrative department. Sub-rule (2) thereof provides that the provisions of clauses (a) and (b) of sub-rule (2) of rule 18 and rule 20 shall, mutatis mutandis, apply to the appointment of a special public prosecutor. 12. Sub-rule (2) of Rule 18 of the Chapter III of the said rules deals with the procedure to be followed for engaging a special counsel on behalf of the State or its officers for the conduct of any case when it is considered necessary by any Collector or Government officer concerned. The same requires that such - 13 - officer shall send his proposal to the Remembrancer of Legal Affairs stating fully the nature of the case, evidence to be brought on record, the reasons for justifying the engagement of a special counsel, the circumstances on account of which the Government Pleader concerned cannot be entrusted with the case, the date and place of hearing of the case, the approximate number of days of hearing the case is likely to take, the details about the other counsel, if any, is proposed to be engaged, and the rate at which it is proposed to remunerate a counsel, if appointed. Rule 20 thereof deals with the preparation of briefs for special counsel appointed on behalf of the Government. 13. The Rule 22 deals with the circumstances where an appointment of a Special Public Prosecutor is at the request of a private party. The vires of the Rule 22, as it was framed originally in 1984, came up for consideration in Mukul Dalal’s case (supra) Mukul Dalal’s case (supra) Mukul Dalal’s case (supra) wherein the same was held to be bad-in-law, while observing that "it would not be appropriate to accept the position that whenever an application is made it should be allowed and a Special Public Prosecutor should be appointed; this would be contrary to the spirit of the scheme of the Code. There may be cases - 14 - where a powerful complainant may have begun a proceeding to victimize his opponent. If in such a case the State concedes to the request for appointment of a Special Public Prosecutor there will be travesty of justice. Without screening on the basis of guidelines prescribed or to be prescribed, the services of a Special Public Prosecutor should not be made available to a private complainant. The primacy given to the Public Prosecutor under the scheme of the Code has a social purpose and the same would be lost if the procedure adopted by Rule 22 of Maharashtra Rules referred to above is accepted." 14. Consequent to the said decision of the Apex Court, the rule 22 of the Chapter III of the said rules was amended by the State Government. However, the amendment was not in consonance with the said ruling of the Apex Court, and therefore, the same was again amended in the year 2004, and the same is in force at present and it reads as under:- "22. Engagement of Special Public Prosecutor.- (1) The Government in the Law and Judiciary Department, either suo-motu, or on the request of any aggrieved party or the concerned Department in the Government, may, - 15 - engage an advocate who has been in practice as an advocate for not less than ten years, and having regard to his general repute, legal acumen and suitability, by appointing him, as a Special Public Prosecutor in any criminal case or class of cases, as the case may be: Provided that, no order under this sub-rule regarding appointment of a Special Public Prosecutor shall be made unless, for the reasons to be recorded in writing, the Remembrancer of Legal Affairs is satisfied, having regard to the nature of the case, gravity of the matter and public interest involved in the matter but such appointment is necessary. (2) On the request of a private complainant not being the aggrieved party, the Government in the Law and Judiciary Department may, appoint any of the Public Prosecutor or Additional Public Prosecutor as a Special Public Prosecutor in accordance with the provisions of sub-rule (1), for conducting any such case. - 16 - (3) Fees for such Special Public Prosecutor, appointed under sub-rule (1) or (2), may be borne by the Government or the aggrieved party or the private complainant, as may be directed by the Remembrancer of Legal Affairs; Provided that, in cases where the aggrieved party is, a Bank or an Institution or Trust or the like, the fees shall be borne by such aggrieved party: Provided further that, the amount of the fees to be paid to such Special Public Prosecutor, shall be deposited with the Government in the Law and Judiciary Department first, and the same shall be paid by it to such Special Public Prosecutor on completion of the trial, unless directed otherwise by the Remembrancer of Legal Affairs." 15. The above quoted Rule 22 which pertains to the procedure for appointment of Special Public Prosecutor at the request of a private party has been in force since 13th September, 2004, and it provides that such appointment by the Government can be of an advocate - 17 - who has been in practice for not less than ten years but only after taking into consideration his general repute, legal acumen and suitability for appointment as Special Public Prosecutor in the criminal cases. At the same time, it provides that no order should be issued unless for the reasons to be recorded in writing, the Remembrancer of Legal Affairs is satisfied, having regard to the nature of the case, gravity of the matter and public interest involved in the matter and need for such appointment. In other words, before acceding to the request by any private party for appointment of a Special Public Prosecutor, it is necessary for the Remembrancer of Legal Affairs to get himself satisfied about the necessity about such appointment having regard to the nature of the case, gravity of the matter and public interest involved therein. Such satisfaction should be reflected from the order recorded in writing by the Remembrancer of Legal Affairs, while approving the appointment. Besides, the fact that the advocate to be appointed as the Special Public Prosecutor had been in practice for not less than ten years, as well as he is a person of general repute and has to his credit legal acumen, and suitable for appointment as a Special Public Prosecutor in any criminal cases or class of cases should also be considered, and - 18 - obviously, consideration of all these aspects should be reflected in the order in writing to be recorded by the Remembrancer of Legal Affairs. 16. Apart from the said rules, it is also to be noted that the Apex Court in Mukul Dalal’s case Mukul Dalal’s case Mukul Dalal’s case (supra) (supra) (supra) has specifically warned that the appointment of the Special Public Prosecutor at the instance of a private party cannot be as a matter of course. The Apex court had further held that "the request for appointment of a Special Public Prosecutor should be properly examined by the Remembrancer of Legal Affairs and only when he is satisfied that the case deserves the support of a Public Prosecutor that such a person should be appointed to be in charge of the case." It has been further held that "the Remembrancer of Legal Affairs should scrutinise every request, keeping a prescribed guideline in view and decide in which cases such request should be accepted, keeping the facts of such case in view. Ordinarily the Special Public Prosecutor should be paid out of the State funds even when he appears in support of a private complainant but there may be some special case where the Special Public Prosecutor’s remuneration may be collected from the private source." - 19 - 17. The decision of the Apex Court in Mukul Mukul Mukul Dalal’s case (supra) Dalal’s case (supra) Dalal’s case (supra) and the amended Rule 22 make it abundantly clear that apart from following the guidelines prescribed in the said decision for