IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 Crl.MC.No. 1425 of 2008() ------------------------- CC.1159/2006 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... PETITIONER: ------------ K.P.RAGESH S/O.LATE E. RATHNAKARAN, KUNDUNGAL HOUSE KANATHUR POST, MOOLIYAR, KASARAGOD DISTRICT BY ADV. SRI.SUNNY MATHEW RESPONDENTS: ------------- 1. THE SUB INSPECTOR OF POLICE ADHUR POLICE STATION 2. THE ADDTIONAL CHIEF SECRETARY TO GOVERNMENT HOME (C) DEPARTMENT THIRUVANANTHAPURAM BY ADV. SRI. M.S. BREEZE, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== Crl.M.C. No. 1425 of 2008 ========================== Dated this the 7th day of April, 2008. O R D E R Even though this was originally filed under Section 482 Cr.P.C., the petitioner subsequently filed Crl.M.A.No. 1977 of 2008 with a request to invoke article 226 of the Constitution of India. 2. The petitioner is the de facto complainant in Crime No. 288 of 2005 of Adhur Police Station in Kasaragod registered for offences punishable under Sections 415, 417, 418, 405, 406 and 409 IPC. The said case has ended in Annexure I charge sheet on which the Judicial First Class Magistrate, Kasaragod took cognizance as C.C No. 1159 of 2006. The grievance of the petitioner is that the 1st respondent, Sub Inspector of Adhur Police Station has not conducted a proper investigation to prove the misappropriation of the amounts by the accused by questioning the bank officials or recording their statements or seizing relevant documents from the bank. The petitioner would contend that a senior member of the Kasaragod Bar by name Adv. Shri. C.K. Sreedharan is appearing for the accused and the petitioner had, therefore, moved the Home Secretary for the appointment of a Special Public Prosecutor under Section 24(8) Cr.P.C and as per CRL.M.C. NO. 1425/2008 : 2: Annexure A2 order dated 01.01.2008 his request has been turned down holding that Section 24(8) Cr.P.C is intended for criminal cases which are highly sensational or having extensive public interest. 3. While the criteria laid down by the Government for the appointment of the Special Public Prosecutor under Section 24(8) Cr.P.C are not discernible to this Court, in a case as the present one, where the accused is represented by a senior and competent lawyer, the situation may require that the Public Prosecutor in charge of the case, having regard to the procedure now in vogue for their appointment, may be ill-equipped to deliver the goods in the process of dispensation of justice. Even handed justice is also an important facet of fair trial. Hence, the petitioner's grievance that the prosecution is to be conducted by an experienced and competent lawyer cannot be said to be out of place. However, if he were to apply again to the Government, his application may be met with the same fate which happened to his earlier application. The grievance of the petitioner can be adequately met by permitting him to engage a lawyer of his choice by invoking Section 301(2) Cr.P.C. In case such an application is filed by the petitioner, the court below shall grant him permission to conduct the prosecution and he shall be deemed to act under the CRL.M.C. NO. 1425/2008 : 3: directions of the Public Prosecutor in charge of the case within the meaning of Section 2(u) Cr.P.C. Such a private lawyer shall have all the powers recognised by this Court in the decision reported in Hamza v/s A.P.P (1978 KLT 816). 4. With regard to the grievance of the petitioner that there has been no effective investigation with regard to the embezzlement part of the allegation, the petitioner can very well move the learned Magistrate under Section 173(8) Cr.P.C for a direction for further investigation. As and when such a petition is filed, the learned Magistrate shall consider the grievance of the petitioner and act in accordance with law. This Crl.M.C. is disposed of as above. V. RAMKUMAR, JUDGE. rv CRL.M.C. NO. 1425/2008 : 4: