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
