IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 WP(C).No. 32825 of 2007(G) ----------------------------------------- SC.533/2002 of ADDL.DISTRICT COURT (ADHOC)-III, THALASSERY .................... PETITIONER: ------------------- SAJEEV JOSEPH, AGED 36 YEARS, S/O.JOSEPH, ANANDHA BHAVAN, MUNDANOOR, NUCHIYAD P.O., ULIKKAL VIA, KANNUR. BY ADV. SRI.BLAZE K.JOSE RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT, (ADDL.CHIEF SECRETARY TO GOVERNMENT), SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT GOVERNMENT PLEADER, THALASSERY. 3. CIRCLE INSPECTOR OF POLICE, IRITTY. GOVERNMENT PLEADER FOR R1 TO 3 SRI. P.G. THAMPI, DIRECTOR GENERAL OF PROSECUTION THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.32825/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE APPLICATION DT. NIL SUBMITTED TO THE CHIEF MINISTER OF KERAL AND FORWARDED TO THE IST RESPONDENT. EXT.P2:- COPY OF THE INTERIM ORDER IN WP(C) NO.26438/2007 DT. 5.9.07. EXT.P3:- COPY OF THE INTERIM ORDER IN WP(C) NO.26438/2007 DT. 27.9.07. EXT.P4:- COPY OF THE REPRESENTATION DT. 27.9.07. EXT.P5:- COPY OF THE ORDER NO.65466/02/07/HOME DT. 22.10.07 OF THE IST RESPONDENT. RESPONDENT'S EXHIBIT EXT.R1- COPY OF THE CIRCULAR NO.61153/C2/91/HOME DT. 25.3.1992. /TRUE COPY/ P.A. TO JUDGE tss A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.32825 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of June 2008 JUDGMENT Petitioner who is a practising lawyer of Mattannur Bar in Kannur district, was allegedly attacked by a group of 25 people at mid-night on December 4, 2000. According to the petitioner, accused 1 to 16, who were later charge sheeted by the Police, are 'active leaders and workers of Communist Party of India (Marxist)'. Accused had allegedly thrown a bomb on the road and created a dreadful situation. The case against the accused is now pending in S.C.No.533/2002 on the file of the Additional District & Sessions Court, Fast Track-III, Thalasseri. 2. I do not deem it necessary to refer to the entire details of the case as narrated by the petitioner at this stage. The grievance of the petitioner is that under the present dispensation of things, the victims of the above crime who had suffered at the hands of the accused, may not get a fair opportunity to prosecute the case, if the case is allowed to be handled by the Additional Public Prosecutor who was put in charge of the case, namely, Mr.Vinod Kumar, Chemblom. 3. It is the specific case of the petitioner that Sri.Vinod Kumar W.P.(C)No.32825 OF 2007 :: 2 :: had appeared for the accused initially at the trial stage till he was appointed as the Additional Public Prosecutor. It is true that after his appointment, Sri.Vinod Kumar had entrusted the brief to his junior Mr.O.C.Prakash. But still, petitioner apprehends that Sri.Vinod Kumar may not conduct the prosecution in a free and fair manner. 4. When the petitioner had requested the Government to allow him to appoint a counsel of his choice as Special Prosecutor to conduct the case, he was informed by the Government through Ext.P5 communication, that his request cannot be acceded to, since the case in question was 'not highly sensational' nor was there any 'extensive public interest about the case'. Petitioner was further informed that no exceptional circumstances existed to appoint a Special Public Prosecutor as requested by him. A Government circular of the year 1992 was also referred to in Ext.P5 communication while rejecting the prayer. Petitioner has prayed for issuance of a writ of certiorari to quash Ext.P5 order. 5. Sri.P.G.Thampi, learned Director General of Prosecution, while opposing the prayer made by the petitioner to issue a direction to appoint a Special Public Prosecutor, contends that the W.P.(C)No.32825 OF 2007 :: 3 :: apprehension aired by the petitioner is totally misconceived. He submits that it is the prerogative of the Government to choose the personnel for conduct of criminal cases in various courts in the State. But still, Sri.Vinod Kumar was relieved of the charge of the above case taking note of the peculiar circumstances. The Government has directed Sri.P.K.Vijayan, the District Government Pleader and Public Prosecutor to conduct the above Sessions case by himself or to entrust it to some other Public Prosecutor. It is further submitted by the learned Director General of Prosecution that the Government has no objection in the petitioner engaging any counsel of his choice for examination of the prosecution witnesses and also to cross examine the defence witnesses, if any. Learned Director General further places on record his assurance that the Public Prosecutor in charge of the case will act in a fair manner in the conduct of the case and utmost accommodation will be extended to the counsel to be appointed by the petitioner. But the counsel so appointed has to necessarily act under the directions of the Public Prosecutor he points out. In view of the above submissions made by the learned Director General of Prosecution, I do not find any reason why the petitioner should have W.P.(C)No.32825 OF 2007 :: 4 :: any further grievance in the matter. Writ petition is disposed of recording the submissions made by the learned Director General of Prosecution. (A.K.BASHEER, JUDGE) jes W.P.(C)No.32825 OF 2007 :: 5 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.32825 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 6th June 2008