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N.N.Shibu vs State Of Kerala on 17 September, 2010

Kerala High Court
N.N.Shibu vs State Of Kerala on 17 September, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 16197 of 2008(C)


1. N.N.SHIBU,S/O.NARAYANAN.
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,REPRESENTED BY
                       ...       Respondent

                For Petitioner  :SRI.PIRAPPANCODE V.S.SUDHIR

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :17/09/2010

 O R D E R
             M.Sasidharan Nambiar, J.
            --------------------------
             W.P.(C)No.16197 of 2008 C
            --------------------------

                     JUDGMENT

By Exhibit P3 notification dated 25.09.2007,

Government appointed Sri.K.P.Rajeevan, Advocate,

Ernakulam as Special Public prosecutor for the

conduct of prosecution in S.C.No.357/2004 on the

file of Sessions Court, Ernakulam. The explanatory

note to the notification shows that Government

considered it necessary to appoint Sri.K.P.Rajeevan,

Advocate, who is having the requisite qualification

for being appointed as Special Public Prosecutor,

to conduct the said case. Evidence in the case was

partly recorded. At that stage Exhibit P4 order was

passed on 23.05.2008, cancelling the appointment of

Sri.K.P.Rajeevan with immediate effect. This

petition is filed under Article 226 of Constitution

of India for a writ of mandamus directing the

respondent to permit Sri.K.P.Rajeevan to continue

as Special Public Prosecutor and to declare that he

WPC 16197/08 2

is entitled to continue with the conduct of the

prosecution in S.C.No.357/2004.

2. Director General of Prosecutions filed a

statement, which discloses that one K.K.Sivan

submitted a representation before him revealing

that he is the eleventh accused in S.C.No.357/2004

and a counter case was registered as Crime No.

74/2001 of Piravom Police Station and a special

Public Prosecutor was not appointed in that case

because of political influence and a Special

Prosecutor is appointed in S.C.No.357/2004. A copy

of the petition filed before the Additional Chief

Secretary, Home and Vigilance Department against

the appointment of Special Public Prosecutor was

also produced before him. It is also stated that on

a perusal of the averments in the petition,

Director General of Prosecutions was convinced that

Special Public Prosecutor was appointed by the

State without his recommendation and in violation

of the Circular issued by Government of Kerala and

WPC 16197/08 3

therefore, he addressed the Additional Chief

Secretary, along with the representation of Sivan,

to cancel the appointment of Sri.K.P.Rajeevan and

by Exhibit P4 order, his appointment was cancelled.

3. Learned counsel, who appear for accused 14

and 15 in S.C.No.357/2004, submitted that accused

14 and 15 filed an application to implead

themselves as additional respondents and the case

is unnecessarily being protracted before the

Sessions Court and a direction be issued to dispose

the case expeditiously. As the presence of accused

14 and 15 is not necessary to decide the question

involved in the case, it is not necessary to

implead them as additional respondents. Hence, the

application to implead accused 14 and 15 as

additional respondents is dismissed.

4. It is under Exhibit P2 order, Government

appointed Sri.K.P.Rajeevan as Special Public

Prosecutor to conduct the prosecution in S.C.No.

357/2004. The explanatory note to Exhibit P3

WPC 16197/08 4

notification establishes that Government considered

it necessary to appoint Sri.K.P.Rajeevan and found

him having the requisite qualification and

therefore, he was appointed. Though, by Exhibit P4

order, the appointment was later cancelled, the

reason for cancellation is not shown in Exhibit P4

order. Exhibit P4 order does not disclose that

Sri.K.P.Rajeevan was found to be not qualified or

incompetent to be appointed as Special Public

Prosecutor or that he is not conducting the case

properly. The statement filed by Director General

of Prosecutions reveals that the appointment was

cancelled at his instance, as he received a

representation from the eleventh accused that there

is a counter case and in the main case a Special

Public Prosecutor was appointed due to political

influence and the said Special Public Prosecutor

was appointed without consulting him and in

violation of the Circular.

WPC 16197/08 5

5. Exhibit R1(a) is the Circular issued by the

Government on 25.03.1992, prescribing the

guidelines to be followed while appointing a

Special Public Prosecutor. The five guidelines read

as follows:

(a) The appointment of Special Public Prosecutors
will be permitted only in very exceptional
circumstances, where the cases involved are highly
sensational or have extensive public interest.

(b) The appointment will be made only after
consultation with the District Collector/
Superintendent of Police concerned who will
specifically express his view whether the
appointment of Special Public Prosecutor is
absolutely necessary to conduct the prosecution
effectively.

(c) If the District Collector/Superintendent of
Police is so satisfied, he will also forward to
Government a letter from the Advocate proposed
to be appointed as Special Public Prosecutor,
indicating his willingness to conduct the
prosecution on payment of regularisation fee
prescribed in the Kerala Government Law Officers
(Appointment and Conditions of Service) and
Conduct of Cases Rules, 1978.

(d) No private individual will be permitted to meet
expenses connected with engagement of a Special
Public Prosecutor.

WPC 16197/08 6

(e) Requests for appointment of a Junior Counsel
to assist the Special Public Prosecutor will not be
entertained when the appointment is made under
Section 24(8) of Criminal Procedure Code.

The guidelines do not provide that consent or

opinion of the Director General of Prosecutions is

mandatory for appointing a Special Public

Prosecutor. Therefore, for the reason that consent

or opinion of the Director General of Prosecutions

was not sought for or granted before appointing

Sri.K.P.Rajeevan as Special Public Prosecutor, his

appointment could not have been cancelled. If the

grievance is that in the counter case no Special

Public prosecutor is appointed and at the same time

a Special Public Prosecutor is conducting the main

case, the better course should have been to appoint

a Special Public Prosecutor in the counter case

also. The unilateral cancellation of the

appointment of Sri.K.P.Rajeevan, without any valid

reason, is arbitrary and illegal. It can only be

quashed.

WPC 16197/08 7

Petition is allowed. Exhibit P4 order,

cancelling the appointment of Sri.K.P.Rajeevan as

Special Public Prosecutor to conduct the

prosecution in S.C.No.357/2004 on the file of I

Additional Sessions Court, Ernakaulam, is quashed.

It is declared that Sri.K.P.Rajeevan has to

continue as Special Public Prosecutor in S.C.No.

357/2004 on the file of Additional Sessions Court,

Ernakulam. Additional Sessions Judge is directed to

dispose the case expeditiously.

17th September, 2010 (M.Sasidharan Nambiar, Judge)
tkv

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