IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR .. :: O R D E R :: Tikam Singh Vs. State & Ors. S.B. CIVIL WRIT PETITION NO.6111/2005. Date of Order :: 8th MAY 2006 PRESENT HON’BLE MR. JUSTICE DINESH MAHESHWARI Mr. Vineet Jain, for the petitioner. Mr. H.R. Soni, Additional Government Advocate. Mr. Mahesh Bora, for the respondents. .. REPORTABLE BY THE COURT: INTRODUCTORY The petitioner-accused, facing trial for offences under Sections 302, 201 IPC and Section 3(2)(v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘the Act of 1989’/’the Act’ hereafter) has submitted this writ petition questioning the legality and validity of the order dated 16.06.2005 (Annex.4) issued by the Collector-cum-District Magistrate, Pali appointing the respondent No.3 Shri Mahesh Bora, Advocate to conduct the case on behalf of the State at the request of the complainant 1 with reference to Rule 4(5) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (‘the Rules of 1995’/’the Rules’ hereafter). THE FACTS: A RÉSUMÉ The petitioner Tikam Singh has been challaned on 17.05.2005 for the offences aforesaid and he contends that the complainant has foisted a frivolous case on account of political enmity and is motivated by political opponents of his father. The complainant-respondent Nos.4 and 5 submitted an application (Annex.2) before the Collector-cum- District Magistrate, Pali for appointing a counsel for pleading the case on their behalf as per Rule 4(5) of the Rules of 1995. The application was accompanied by the consent stated by Shri Mahesh Bora (Annex.3) and the Collector, acting on the application, appointed Shri Bora to plead the case on behalf of the State by the impugned order dated 16.06.2005 (Annex.4). Before the Special Court, to whom the matter was committed on 22.07.2005, the petitioner moved an application (Annex.1) on 22.09.2005 and contended that Shri Bora, Advocate is regularly conducting the case on behalf of the complainants and pleaded their case before the Additional Chief Judicial Magistrate, Jaitaran but deliberately did not file 2 Vakalatnama. The petitioner contended while referring to the Act and the Rules that Shri Bora having been a counsel for the complainants could not have been engaged as a Public Prosecutor for this case. However, the Special court turned down such objection of the petitioner by the order dated 30.09.2005(Annex.5) with the observations that whether Shri Bora's appointment was regular or not, it could not be a matter of dispute nor that court was competent to pass any order on such dispute. The petitioner has submitted this writ petition questioning the legality and validity of the order dated 16.06.2005 passed by the learned Collector-cum-District Magistrate, Pali with the submissions that the order is clearly beyond the authority and power of the District Magistrate; and the Public Prosecutor or the Special Public Prosecutor could be appointed only by the State. Separate replies to the writ petition have been submitted, by the State and by Mr.Bora. The State in its reply has submitted, inter alia, that engagement of a counsel is in the exclusive domain of the client and the Advocate; that the Act of 1989 has independently given latitude or power to the victim or his family member to make a request for appointment of special counsel and in case that request is acceded to by the District Magistrate, such order calls for no interference; and that it was premature to question or 3 presume that the Special Public Prosecutor would not act in accordance with law while discharging his duties. However, the State in its reply has ultimately left it for this Court to consider whether the appointment of Mr. Bora to conduct the trial should be continued or not. Shri Bora in his reply has firstly taken serious exception to the allegations of his deliberately not marking the attendance or concealing the fact of his engagement by the complainant. Shri Bora has placed on record a certified copy of his Vakalatnama filed before the Additional Chief Judicial Magistrate, Jaitaran as Annexure R.3/1 and has contended that there was no question of concealment of his such engagement. On the questions involved in the case, it has been contended that the Collector-cum-District Magistrate has independent power to appoint lawyer of the choice of the complainant as Special Public Prosecutor and this power is not in supersession of the provisions of the Act of 1989. It has also been contended that vires of the provisions of Rule 4(5) of the Rules of 1995 have not been challenged; and, existing the Rule, his appointment as Special Public Prosecutor cannot be challenged. RIVAL SUBMISSIONS Learned counsel for the petitioner Mr. Vineet Jain, while referring to Sub-section (8) of Section 24 of the 4 Code of Criminal Procedure (‘the Code’ hereafter) has strenuously contended that the so-called Special Public Prosecutor could be appointed only by the Central Government or the State Government, as the case may be, for the purposes of any case or class of cases, and that too an Advocate having practice of not less than 10 years. Learned counsel submitted that so far Rule 4(5) of the Rules 1995 is concerned, that only deals with engagement of an eminent Senior Advocate if so deem necessary by the District Magistrate or the Sub-Divisional Magistrate or if so desired by the victims of atrocity; on such payment of fees as the concerned Magistrate may consider appropriate and such is only an engagement necessarily for the purpose of conducting the case of or on behalf of the alleged victims and it cannot be equated with appointment of a Special Public Prosecutor as contemplated by Section 15 of the Act of 1989. Learned counsel referred to and relied upon the decision of the Hon’ble Supreme Court in Shiv Kumar Vs. Hukum Chand & Anr. : 1999 Cr.L.R. (SC) 689 to submit that the role of Public Prosecutor is entirely different than the role of a lawyer engaged for and by a party and by the very nature of the peculiar duties, the conduct of prosecution cannot be handed over to a counsel engaged by the complainant. Learned counsel also referred to the decision of this Court in Madho Singh & Anr. Vs. State of Rajasthan & Ors.: 2002(1) Cr.L.R. 5 (Raj.) 498 to contend that a lawyer who was counsel for the complainant could not have been appointed as Public Prosecutor and for appointment of Special Public Prosecutor, special reasons have to be assigned. Learned counsel also referred to the decision of the Hon’ble Supreme Court in Commissioner of Income Tax Vs. East West Import & Exports (P) Ltd.: A.I.R. 1989 SC 836 and submitted that when different expressions are used by the legislature they express different intention and the material word “engaged” as used in sub-rule (5) of Rule 4 is not without significance and such engagement is not akin to appointment of a Public Prosecutor. Per contra, learned counsel Mr. Mahesh Bora arguing for himself and for the contesting respondents, firstly distinguished the decisions cited by learned counsel for the petitioner with the submissions that such decisions relate to the cases under the Code of Criminal Procedure and would have no application to the special enactment like the Act of 1989 and the Rules thereunder which have overriding effect on anything to the contrary. Mr. Bora vehemently contended that the interpretation as suggested on behalf of the petitioner by reading sub-rule (5) of Rule 4 in isolation cannot be countenanced and for proper construction of the Rule and its area of operation, the entire scheme of the enactment is required to be kept in view and proper interpretation could be 6 had only by comprehensive reading of all the relevant provisions. Learned counsel submitted that so far complainant is concerned, he could have even otherwise engaged a lawyer for conduct of his case and there was no necessity for making separate provision for such engagement under sub-rule (5) of Rule 4. Learned counsel emphatically contended that the Rule is not contrary to the enactment nor its vires have been challenged and the Rule in its operation clearly provides for appointment of a special prosecutor at the request of the victims of atrocities and in view of it being a social welfare legislation, in order to give effect to the real meaning and purport of sub-rule (5), it has been provided with overriding effect with non-obstante clause. On the principles of interpretation, Mr. Bora submitted with reference to the decision of the Hon’ble Supreme Court in Amrendra Singh Vs. Tejbahadur Prajapati & Ors. : A.I.R. 2004 S.C. 3782 that restricted or wide meaning could be provided to the words in the context they are used and the object sought to be achieved; and particularly when the object of the legislature is to confer protection on weaker sections, even an extended or stretched meaning could be given. Learned counsel also referred to the decisions of the Hon’ble Supreme Court in Godawat Pan Masala I.P.Ltd. Vs. Union of India: A.I.R. 2004 S.C. 4057, Shiv Shakti Co.op Housing Society Vs. M/s. Swaraj Developers & Ors.: A.I.R. 2003 S.C. 2434, 7 D. Saibaba Vs. Bar Council of India & Ors. : A.I.R. 2003 S.C. 2502, Union of India Vs. Rajiv Kumar: A.I.R. 2003 S.C. 2917, State of Orissa & Ors. Vs. Joginder Patjoshi & Anr. : 2003 AIR SCW 6686 dealing with parameters of liberal construction on a beneficial legislation and on various principles of statutory interpretation that the statute must be read as a whole; attempt must be made to harmonise different provisions; a casus omissus cannot be supplied by the court except in case of clear necessity; and a construction rendering the provision nugatory is required to be avoided. Learned counsel also referred to the decision of this Court in Phool Singh Vs. State of Rajasthan & Ors: 1993 (2) R.L.R. 77 to contend that payment of fees to the Special Public Prosecutor by the complainant has been held to be neither unjust nor unfair. Learned counsel submitted with reference to another decision of this Court in Kalu Singh & Ors. Vs. State of Rajasthan: 1998(2) R.L.W. 1070 that when Special P.P. was appointed by the Collector under Section 15 of the Act that was upheld by this Court requiring no interference with the observations that it was a pleasure of the Government to appoint anyone as Special Public Prosecutor. Learned Additional Government Advocate Mr. H.R. Soni submitted, while supporting the submissions of Mr. Bora, that Rule 4(5) extend an additional liberty to the complainant other than that available under Sections 301 and 302 of the Code. Mr. Soni 8 submitted that on a comprehensive reading of sub-rule (5) of Rule 4 with the context, it is apparent that the person engaged under sub-rule (5) is engaged to conduct the case, that is to conduct prosecution, and any other interpretation would frustrate the purpose and render nugatory the Rule itself. Learned counsel Mr. Vineet Jain rejoined with the submissions that in Kalu Singh’s case, the appointment of Special Public Prosecutor was made under Section 15 of the Act; and this Court relying on the statement made before the court, upheld such appointment as having been made by the State Government with reference to a notification, though not produced. Learned counsel submitted that Rule 4 essentially deals with supervision of prosecution and for that purpose, for a complainant of the case under SC/ST Act, a lawyer could be engaged, but if at all conducting the case, he would be conducting the case of the complainant only and not conducting the prosecution. During the course of submissions, learned counsel Mr. Bora candidly submitted that he was counsel for the complainant in this case and this particular fact was never avoided or concealed; and the allegations that such engagement was sought to be concealed seem to be the creation of imagination of the accused. Learned counsel referred to the certified copy of Vakalatnama (Annex. R.3/1) filed by him on behalf of the complainant before the Additional 9 Chief Judicial Magistrate, Jaitaran. Mr. Bora submitted that being a counsel for the complainant is not a disqualification for being appointed as Special Public Prosecutor particularly in the scheme of the Act of 1989 and the Rules thereunder which are intended specifically to protect the weaker sections. Relevant provisions From the rival submissions, fundamentally it is the area of operation of sub-rule (5) of Rule 4 of the Rules of 1995 that calls for interpretation in the present case. However, for the purpose of its true interpretation, the relevant provisions of the Act of 1989, the Rules of 1995 and so also of the Code may be taken note of at the first. The preamble of the Act of 1989 reads as under:- “An Act to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto.” Some of the relevant definitions as contained in Section 2 of the Act read as under: - 10 “Section 2(b) – “Code” means the Code of Criminal Procedure, 1973 (2 of 1974); Section 2 (d): “Special Court” means a Court of Session specified as a Special Court in section 14; Section 2(e): “Special Public Prosecutor” means a Public Prosecutor specified as a Special Public Prosecutor or an advocate referred to in section 15; Section 2 (f) – Words and expressions used but not defined in this Act and defined in the Code or the Indian Penal Code (45 of 1860) shall have the meanings assigned to them respectively in the Code, or as the case may be, in the Indian Penal Code.” Other provisions of the Act, of Sections 14, 15, 20 and relevant part of Sections 21 and 23, so far necessary for the present case may also be noticed as under:- “Section 14: Special Court.– For the purpose of providing for speedy trial, the state Government shall, with the concurrence of the Chief Justice of the High Court by notification in the Official Gazette, specify for each district a Court of Session to be a special Court to try the offences under this Act. “Section 15: Special Public Prosecutor. – For every Special Court, the State Government shall by notification in the Official Gazette, specify a public Prosecutor or appoint an advocate who has been in practice as an advocate for not less than seven years as a Special Public Prosecutor for the purpose of conducting cases in that Court. 11 “Section 20: Act to override other laws. – Save as otherwise provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law. “Section 21: Duty of Government to ensure effective implementation of the Act. – (1) Subject to such rules as the Central Government may make in this behalf, the State Government shall take such measures as may be necessary for the effective implementation of this Act. (2) In particular, and without prejudice to the generality of the foregoing provisions such measures may include,- (i) the provision for adequate facilities, including legal aid, to the persons subjected to atrocities to enable them to avail themselves of justice; (ii) the provision for traveling and maintenance expenses to witnesses including the victims of atrocities, during investigation and trial of offences under this Act; (iii) the provision for the economic and social rehabilitation of the victims of the atrocities; (iv) the appointment of officers for initiating or exercising supervision over prosecutions for the contravention of the provisions of this Act; (v) the setting up of committees at such appropriate levels as the State Government may think fit to assist that Government in formulation or implementation of such measures; (vi) provisions for a periodic survey of the working of the provisions of this Act with a view to suggesting measures for the better implementation of the provisions of this Act; (vii) the identification of the areas where the members of the Scheduled Castes and the 12 Scheduled Tribes are likely to be subjected to atrocities and adoption of such measures so as to ensure safety for such members. (3) xxx (4) xxx Section 23: Power to make rules– (1) The Central Government may, by notification in the Official Gazette, makes rules for carrying out the purposes of this Act. (2) xxx” The Central Government has framed the Rules as contemplated by Section 23 of the Act known as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. In these Rules provisions have been made for precautionary and preventive measures as well as for supervision of prosecution and submission of reports and about the manner of information and investigation and of setting up of SC/ST protection cells, appointment of special officers, allowances and facilities to the victims of atrocities, his dependents and witnesses etc. etc. Rule 4 thereof reads thus,- “4. Supervision of prosecution and submission of report.- (1) The State Government on the recommendation of the District Magistrate shall prepare for each District a penal of such number of eminent Senior Advocates who have been in practice for not less than seven years, as it may deem necessary for conducting cases in the Special Courts. Similarly, in consultation with the Director of Prosecution/in-charge of the Prosecution, a panel of such number of Public Prosecutors as it may 13 deem necessary for conducting cases in the Special Courts, shall also be specified. Both these panels shall be notified in the Official Gazette of the State and shall remain in force for a period of three years. (2) The District Magistrate and the Director of Prosecution/in-charge of the Prosecution shall review at least twice in a calendar year, in the months of January and July, the performance of Special Public Prosecutors so specified or appointed and submit a report to the State Government. (3) If the State Government is satisfied or has reason to believe that a Special Public Prosecutor so appointed or specified has not conducted the case to the best of his ability and with due care and caution, his name may be, for reasons to be recorded in writing, denotified. (4) The District Magistrate and the Officer-in- charge of the prosecution at the District level, shall review the position of cases registered under the Act and submit a monthly report on or before 20th day of each subsequent month to the Director of Prosecution and the State Government. This report shall specify the actions taken/proposed to be taken in respect of investigation and prosecution of each case. (5) Notwithstanding anything contained in sub- rule(1) the District Magistrate or the Sub- Divisional Magistrate may, if deem necessary or if so desired by the victims of atrocity engage an eminent Senior Advocate for conducting cases in the Special Courts on such payment of fee as he may consider appropriate. (6) Payment of fee to the Special Public Prosecutor shall be fixed by the State Government on a scale higher than the other panel Advocates in the State.” 14 The Code of Criminal Procedure, 1973 being an enactment to consolidate and amend the law relating to criminal procedure provides for trial of offences under its Section 4 as under:- “4. Trial of offences under the Indian Penal Code and other laws.- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” Section 2(u) of the Code defines Public Prosecutor thus,- “2(u).- “Public Prosecutor” means any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor.” Section 24 of the Code of Criminal Procedure provides for appointment of the Public Prosecutor and Additional Public Prosecutor by the Central Government or the State Government, as the case may be, for every High Court and every District; Sub-section (7) thereof providing for eligibility conditions for a person to be appointed a Public 15 Prosecutor and Sub-section (8) dealing with appointment of Special Public Prosecutor read thus, - “Section 24(7). A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (l) 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. “Section 24(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. Chapter XVIII of the Code dealing with the topic of “Trial before a Court of Session”, mandates in Section 225 thus,- “Section 225. Trial to be conducted by Public Prosecutor.- In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor.” Other relevant provisions of Section 301 of the Code could also be noticed thus, - “Section 301. Appearance by public prosecutors.- (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 16 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, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.” Trial under the Act of 1989 and its nature Adverting to the questions involved in this case, the nature of trial in a case relating to the Act of 1989 may be considered. The Hon’ble Supreme Court in the case of Gangula Ashok Vs. State of Andhra Pradesh : A.I.R. 2000 SC 740 has clarified the operation of the provisions of the Act of 1989 in the context of trial of offences. The question therein of course arose in the manner that a charge sheet was straightway filed to the Special Court envisaged under the Act of 1989 and it was questioned that the Special Court had no jurisdiction to take cognizance of any offence without the case having been committed to that court. The Hon’ble Supreme Court found that the Special Court is a Court of Session and the mandate of Section 193 of the Code of Criminal Procedure would stand in its way in taking cognizance directly without the case being committed. After dealing with Section 14 of the Act of 1989, the Apex Court was pleased to find that the Act contemplates only the trial to be conducted by the Special Court but it continues to be 17 essentially a Court of Session; and trial in such a Court could be conducted only in the manner provided in Chapter XVIII of the Code. The Hon’ble Supreme Court held, - “Hence the particular Court of Session, even after being specified as a Special Court, would continue to be essentially a Court of Session and designation of it as a Special Court would not denude it of its character or even powers as a Court of Session. The trial in such a Court can be conducted only in the manner provided in Chapter XVIII of the Code which contains a fasciculus