:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 628 OF 2008 Mr. Umesh Balasaheb Kalabhor ..Petitioner Vs. The State of Maharashtra and ors. ..Respondents Mr. Sudhir Halli for petitioner. Mr. Ravi Kadam, Advocate General, with Mrs. A.S. Pai, APP for State. CORAM: CORAM: CORAM: B.H. MARLAPALLE & R.Y. GANOO,JJ. B.H. MARLAPALLE & R.Y. GANOO,JJ. B.H. MARLAPALLE & R.Y. GANOO,JJ. Reserved Reserved Reserved on : June 27, 2008. on : June 27, 2008. on : June 27, 2008. Pronounced Pronounced Pronounced on: July 04, 2008. on: July 04, 2008. on: July 04, 2008. JUDGMENT: JUDGMENT: JUDGMENT: (Per B.H. Marlapalle,J.) (Per B.H. Marlapalle,J.) (Per B.H. Marlapalle,J.) 1. Heard Mr. Halli the learned counsel for the petitioner. Rule. 2. Respondents waive service. The petition has been heard finally. 3. The petitioner has challenged the order dated 29/11/2007 issued by the Government of Maharashtra through the Department of Law and Judiciary in :2: exercise of its powers under Section 24(8) of the Code of Criminal Procedure, 1973 and by the said order Shri Vijay Savant has been appointed as a Special Public Prosecutor in Sessions Case No. 591 of 2006 pending before the Sessions Court at Pune. The impugned order has also fixed the lumpsum fees of Rs.75,000/- to be paid to Shri Vijay Savant and the said amount has been deposited by the applicant-complainant Shri Ramesh Baburao Pokale. Though Shri Vijay Savant has not been impleaded as one of the respondents, he has filed affidavit on 18/6/2008 denying that he is in any way and even remotely related to the complainant. He has annexed to the affidavit-in-reply a copy of his educational and legal career so as to point out that he was a right choice for appointing as Special Public Prosecutor at the request of the complainant. He is enrolled as member of the Bar in 1978 and has worked as the District Government Pleader and Public Prosecutor at Pune during the period from 1992 to 1996. He has also given a list of some prominent cases he had handled before the Sessions Court/TADA Court at Pune. 4. The appointment has been challenged on various :3: grounds and it has been mainly stated that the same is not in keeping with the scheme of Section 24(8) of the Cr.P.C. read with Rule 22 of the Rules for the Conduct of the Legal Affairs of Government, 1984 (for short the Rules of Legal Affairs) and the law laid down by the Supreme Court in the case of Mukul Dalal and ors. vs. Union of India and ors. [(1988) 3 SCC [(1988) 3 SCC [(1988) 3 SCC 144] 144] 144] as well as the decision of this court in the case of Sushil Hiralal Chokhani & ors. vs. State of Maharashtra and ors. [2005 (2) Bom. C.R. (Cri.) [2005 (2) Bom. C.R. (Cri.) [2005 (2) Bom. C.R. (Cri.) 654] 654] 654] and Omprakash Baheti and ors. vs. State of Maharashtra and ors. [2006 Cri. L.J. 3105] [2006 Cri. L.J. 3105] [2006 Cri. L.J. 3105]. The challenge to the order is also on the ground that it is arbitrary, unreasonable, without application of mind and in any case not in public interest. It is further contended that the impugned order does not speak about the nature and gravity of the case warranting the appointment of Special Public Prosecutor in public interest. The learned counsel for the petitioner referred to the complaints filed against Shri Ramesh Baburao Pokale (complainant) and his other family members at the instance of the petitioner, who is one of the accused in Sessions Case No. 591 of 2006 and despite such serious complaints :4: pending against Shri Ramesh Baburao Pokale, the impugned order has been passed allowing his application for appointment of the Special Public Prosecutor, even though his antecedents are equally bad. 5. On behalf of the respondent no.1 affidavit-in-reply has been filed by the Solicitor-cum-Joint Secretary, Law & Judiciary Department so as to oppose the petition and justify the impugned order. It has been pointed out that the complainant submitted an application, which was received by the Home Department on 30/5/2007, for the appointment of Shri Vijay Savant as a Special Public Prosecutor in Sessions Case No. 591 of 2006, which is pending for trial for the offences punishable under Section 302 and 307 read with Section 34 of the Indian Penal Code. The said application was examined by the Home Department as well as the Department of Law and Judiciary and the Principal Secretary and RLA applied his mind and considering the nature and gravity of the offence along with the element of public interest involved in the said case, recommendation was made to the Government for approving the appointment of Shri :5: Vijay Savant as Special Public Prosecutor. The said file was placed before the State Minister (Law) and on his approval, it was placed before the Hon’ble Chief Minister, who finally approved the appointment of Shri Vijay Savant and accordingly the impugned order was issued. It is reiterated that the Principal Secretary and RLA, considering the peculiar nature of the case, gravity of offence and circumstances brought on record along with the request of the complainant, concluded that it was necessary to appoint the Special Public Prosecutor in Sessions Case No. 591 of 2006. 6. Section 24(8) of the Code of Criminal Procedure states, "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." :6: . Rule 22, as originally framed in 1984 reads as under:- "If in any case, civil or criminal, a request is made by any private party, interested in the case, for the appointment of its own advocate as a Special Counsel or Special Public Prosecutor, as the case may be, on the condition that the payment of fees of such advocate will be borne by that party, the Remembrancer of Legal Affairs may, after considering such case on merits, appoint such advocate for that particular case or cases." . In the case of Mukul Dalal (Supra) the Supreme Court held Rule 22 as bad and stated that the Government should properly modify the said Rule in keeping with the conclusions recorded in the judgment. On 4/4/2002 the Government of Maharashtra amended Rule 22 as under:- ". If in any case, civil or criminal, a request is made by any private party, interested in the case, of the appointment of :7: its own advocate as a Special Counsel or Special Public Prosecutor, as the case may be, on the condition that the payment of fees of such advocate will be borne by that party, the party shall deposit the fees, in the Law and Judicial Department, of the Advocate, to be appointed as Special Counsel or Special Public Prosecutor, in advance to be determined by the Principal Secretary and Remembrancer of Legal Affairs, Law and Judiciary Department, Government of Maharashtra, and such fees shall be paid to the Special Counsel or Special Public Prosecutor, as the case may be, on completion of trial. . Provided that, this provision shall not be applicable to the public sector undertaking, a bank, whether nationalised or not, an educational institution and the like." 7. Having realised the deficiencies in the amended Rule as well, the Government of Maharashtra vide its Resolution dated 13/9/2004 again amended Rule 22 and the said Rule, applicable as of now, reads as :8: under:- "22.Engagement of Special Publi 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, 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 that such appointment is necessary. :9: (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. (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 :10: same shall be paid by it to such Special Public Prosecutor on completion of the trial, unless directed otherwise by the Remembrance of Legal Affairs." 8. Sub-rule (1) of Rule 22 empowers the Government in the Law and Judiciary Department, either suo motu or on the request of any aggrieved party to engage an Advocate as a Special Public Prosecutor in any criminal case or class of cases. The Advocate sought to be engaged is required to be in practice as an Advocate for not less than ten years and for his appointment regards be had to his general repute, legal acumen and suitability. The proviso below sub-rule (1) of Rule 22 states that no order under the said sub-rule regarding appointment of Special Public Prosecutor shall be made unless, for the reasons to be recorded in writing, the Remembrancer of Legal Affairs (RLA) is satisfied, having regard to the nature of the case, gravity of the matter and public interest involved in the matter that such appointment is necessary. Sub-rule (2) of Rule 22 is for a private complainant not being the aggrieved party, for :11: appointment of a Public Prosecutor or Additional Public Prosecutor as a Special Public Prosecutor, whereas sub-rule (3) of Rule 22 states that the fees for such Special Public Prosecutor may be borne by the Government or the aggrieved party or the private complainant, as may be directed by the RLA. 9. It is thus clear that the first part of Rule 22(1) speaks of the requirements to be met by an Advocate for being appointed as a Special Public Prosecutor by the Government, either suo motu or on the request of any aggrieved party, whereas in the second party, under the proviso, the RLA is required to record reasons in writing about his satisfaction on the necessity of such appointment, having regard to the nature of the case, gravity of the matter and public interest involved in the matter that such appointment is necessary. It is obvious that the failure to do so on the part of the RLA, would vitiate the appointment. 10. After the Supreme Court decision in the case of S.B. Shahane and ors. vs. State of Maharashtra :12: and anr. [AIR 1995 SC 1628] [AIR 1995 SC 1628] [AIR 1995 SC 1628], the Government of Maharashtra through its Home Department issued a G.R. dated 10/1/2000 and laid down, inter alia, that the Sessions cases of special importance would be handled by the Assistant Director of Prosecution and Public Prosecutor and Director of Prosecution will be the head of all the Prosecutors in the State. Section 25-A has been inserted in the Code of Criminal Procedure (Amendment Act, 2005) with effect from 23/6/2006 and as per the same, the Director of Prosecution will be the head of the Directorate of Prosecution and shall function under the administrative control of the head of the Home Department in the State. Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under subsection (1) or as the case may be under subsection (8) of Section 24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution and every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution. Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under subsection (3) or as the case may be :13: under subsection (8) of Section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under subsection (1) of Section 25 shall be subordinate to the Deputy Director of Prosecution. Having regards to the G.R. dated 10/1/2000 and the scheme of Section 25-A of Cr.P.C., we had raised a query as to whether it is necessary to obtain the opinion of the Director of Prosecution before an order under Rule 22 is passed for the appointment of a Special Public Prosecutor. The response of the learned Advocate General was in the negative. The learned Advocate General further stated that the provisions of Section 25-A of Cr.P.C. have not been made applicable as yet by the State Government as the Directorate of Prosecution has been established by the State Government much before the introduction of the said Section in Cr.P.C. and, therefore, in a given case the issue raised by the court is required to be considered, but in any case it was not necessary for the State Government to obtain the opinion of the Director of Prosecution while passing the impugned order. He also pointed out that as of now the post of Director Prosecution is vacant and on such contingency it may not be necessary as a legal requirement to :14: consult the said authority for the appointment of Special Public Prosecutor. 11. We are surprised that the Law & Judiciary Department has not briefed the learned Advocate General about the facts, as available on record on this issue. We have noted from the record placed before us that vide letter dated 1/6/2007 Home Department called for the remarks/opinion of the Director of Prosecution and in reply thereto the proposal for appointment of Special Public Prosecutor was opposed by the said authority. As per the GR dated 10/1/2000 the Directorate of Prosecution consists of Director of Prosecution, Deputy Director of Prosecution etc. and all the Public Prosecutors are functioning under the Director of Prosecution. The same scheme appears in Section 25-A of Cr.P.C. which has been brought into force with effect from 26/3/2006 by the Central Government. Once the Central Government has brought into force the amendment in Cr.P.C., the State Government has no option but to abide by it, though it may seek suitable amendments :15: thereto. 12. Mr.Halli, the learned counsel for the petitioner submitted that the petitioner is an accused in FIR No.111/06 registered on 14/5/2006 for the offence punishable under Section 307 read with Section 34 of IPC and he came to be arrested along with one more accused in connection with the said offence. It was alleged that in the complaint filed by Shri Ramesh Baburao Pokale on 14/5/2006 at about 5.30 p.m. he along with his Manager Shri Yadnesh Todankar were assaulted by the petitioner and other accused with weapons. The said Manager Shri Yadnesh Todankar succumbed to his injuries and the FIR came to be amended so as to include an additional offence punishable under Section 302 read with Section 34 of IPC. He has further invited our attention to the Bail Application No.167 of 2007 filed by the said Ramesh Pokale for anticipatory bail before the Addl. Sessions Judge so as to point out that the petitioner’s sister Priya who was married to the complainant Ramesh Pokale in the year 2002 has been missing from 12/3/2006 along with her daughter Preeti :16: and despite all the efforts made they could not locate her for more than two months. He referred to the letter dated 5/11/2005 addressed by the Sub Divisional Police Officer, Haveli to the District Government Pleader at Pune in connection with FIR No.2064 of 2005 registered on 3/11/2005. By the said letter the SDPO had requested the District Government Pleader to oppose the anticipatory bail application of the complainant (accused no.9 in FIR No.2064 of 2005). It was stated in the said letter that the complainant Ramesh Pokale is the owner of Laxmi Lodge at Dhairi and though it was being run by another accused, the lodge was being used for prostitution / immoral trafficking. It was further pointed out that though the lodge was given on leave and licence basis, the complainant was staying next to the lodge and, therefore, he was aware of the immoral trafficking going on in the premises of the Laxmi Lodge. It was, therefore, contended that the antecedents of the applicant - complainant were such that the Government of Maharashtra ought to have rejected his application for appointment of a Special Public Prosecutor as the applicant himself had a criminal record. He further submitted that the RLA did not consider all these :17: aspects and passed the impugned order without forming any opinion as to the nature and gravity of the offence taken place on 14/5/2006 and also the element of public interest involved in the appointment of a Special Public Prosecutor. As per the learned counsel for the petitioner the impugned order was passed without application of mind, not in public interest and the RLA did not verify as to whether the requirements of Rule 22 of Rules of Legal Affairs were made out for the appointment of a Special Public Prosecutor under Section 24(8) of Cr.P.C. He also made an allegation that Shri Vijay Savant is a close relation of the applicant - complainant. We make it clear at this stage itself that we do not find any substance in the allegation that the complainant is a close relation of Mr. Vijay Sawant. 13. In keeping with the requirements in the first part of Rule 22(1) of the Rules for the Legal Affairs, we had passed an order on 13/6/2008 directing the Director of Prosecution to place before us the track record of Shri Vijay Savant as available on record. Despite the affidavit having been presented by Shri R.D.Sankhe, In-charge Director of Prosecutor, :18: Maharashtra State, for the second time, the said affidavit does not state that the record available in the office of the Director of Prosecution was perused and as per the same nothing adverse was noticed. Instead, the affidavit only stated that Mr.Vijay Savant is a well known Advocate. However, we need not consider the issue of antecedents of Shri Savant as the learned counsel for the petitioner has not very seriously challenged the same and from the resume annexed by Shri Savant to his affidavit this issue regarding the requirements in the first part of Rule 22(1) of the Rules for the Legal Affairs does not arise for our consideration in this petition as well. Hence we are required to consider only the second part of Rule 22(1) of the Rules for Legal Affairs viz. regarding the reasons to be recorded in writing by the RLA while making such an appointment as a Special Public Prosecutor. 14. On the issue of scope and extent of power of judicial review, a three Judge Bench in the case of State of U.P. and anr. vs. Johri Mal [AIR 2004 SC [AIR 2004 SC [AIR 2004 SC 3800] 3800] 3800] held as under:- :19: ". The scope and extent of power of the judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi judicial or administrative. 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 the other organs of the State. Decisions and actions which do not have adjudicative disposition may not strictly fall for consideration before a judicial review succinctly put are: (i) Courts, while exercising the power of judicial review, do not sit in appeal over the decisions of administrative bodies. :20: (ii) A petition for a judicial review would lie only on certain well-defined grounds. (iii) An order passed by an administrative authority exercising discretion vested in it, cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal. (iv) A mere wrong decision without anything more is not enough to attract the power of judicial review; the supervisory jurisdiction conferred on a Court is limited to seeing that Tribunal functions within the limits of its authority and that its decisions do not occasions miscarriage of justice. (v) The Courts cannot be called upon to undertake the Government duties and functions. The Court shall not ordinarily interfere with a policy decision of the State. Social and economic belief of a Judge should not be invoked as a substitute for the judgment of the legislative bodies. (See Ira Munn v. :21: State of Ellinots, 1876 (94) US (Supreme Reports) 113)." . The Supreme Court further clarified that while exercising the power of judicial review the Court is more concerned with the decision making process than the merit of the decision itself. But while examining and scrutinizing the decision making process it becomes inevitable to also appreciate the facts of a given case as otherwise the decision cannot be tested under the grounds of illegality, irrationality or procedural impropriety. To a limited extent of scrutinizing the decision making process, it is always open to the Court to review the evaluation of facts by the decision maker and malicing of law can also be a ground for judicial review. 15. As per Section 225 of Cr.P.C. that every trial before a court of Sessions, the prosecution shall be conducted by a Public Prosecutor. As per Section 2(u) of Cr.P.C., "Public Prosecutor" means any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor. Section 301 of Cr.P.c. deals with the :22: appearance by Public Prosecutor and it reads as under:- "301. Appearance by Public Prosecutor.- (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal. (2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case." . Undoubtedly, the Public Prosecutors have greater responsibility and they are required to :23: perform statutory duties independently having regard to various provisions contained in Cr.P.C. The Public Prosecutors while presenting a prosecution case have a duty to see that innocent persons may not be convicted as well as an accused guilty of commission of crimes does not go unpunished. A three-Judge Bench in the case of Shiv Kumar Vs. Hukam Chand and anr. [(1999) [(1999) [(1999) 7 SCC 467] SCC 467] SCC 467] stated as under: "13. From the scheme of the Code the legislative intention is manifestly clear that