Posted On by &filed under High Court, Madhya Pradesh High Court.


Madhya Pradesh High Court
Radheshyam vs State Of M.P. And Ors. on 31 July, 2000
Equivalent citations: 2000 (4) MPHT 124
Author: A Gohil
Bench: A Gohil


ORDER

A.K. Gohil, J.

1. Petitioner has preferred this Criminal Revision under Sections 397 and 482, Cr.P.C. challenging the order passed on 16-11-99 by the Addl Sessions Judge, Dhar by which the learned A.S.J. has held that Shri R.P. Shukla cannot prosecute this case as a Special Public Prosecutor but he can only assist to the Public Prosecutor or the Assistant Public Prosecutor under the provisions of Section 301(2) of Cr.P.C.

2. The brief facts of the case are that a S.T. No. 239/97, State of M.P. V. Yogendra @ Yogesh and Ors., is pending before the I A.S.J., Dhar. In this case Public Prosecutor and Addl. Public Prosecutor were prosecuting the sessions trial on behalf of the State upto 15-10-97. On 25-11-97 Shri R.P. Shukla, Advocate filed an application under Section 301(2), Cr.P.C. before the A.S.J. and prayed that he be allowed to appear and assist Shri P.C. Jain, Addl. Public Prosecutor in the Sessions Trial because the Addl. Public Prosecutor is not prosecuting the case properly and working against the interest of prosecution. On this application no objection was conveyed by the Addl. Public Prosecutor and the application was allowed by the learned A.S.J. and Shri R.P. Shukla was permitted to assist the Public Prosecutor in the case and thereafter he was appearing and assisting in the trial. On 18-12-97 Shri Shukla filed a copy of the order issued by the Department of Law and Legislature, State of M.P. bearing No. 1 (C) 74/97/21-B (2) dated 1-12-97 regarding his appointment as a Special Public Prosecutor for conducting this case on behalf of the State and since then Shri Shukla was appearing and conducting the case. On 4-11-99 the respondents-accused persons filed an application before the Sessions Court stating therein that the appointment of Shri Shukla is illegal as he is interested in the complainant and he is also related with the complainant party. Therefore, he cannot prosecute this case on behalf of the State independently. The respondents-accused persons in support of their case cited the case of Prabhat Agrawal v. State of M.P. and Ors. [1999 (2) MPJR 276]. The learned A.S.J. after hearing both the parties on the application and also after hearing Shri Shukla allowed the objection of the respondents-accused persons on the ground that Shri Shukla is the father-in-law of the younger brother of complainant Radheshyam. Therefore, being an interested person he cannot prosecute the case independently. He is interested in the complainant party and the complainant party is keeping enmity on account of this. Therefore, it is not expected from him that he will discharge his duties independently as a Special Public Prosecutor. The learned A.S.J. by order dated 16-11-99 allowed the aforesaid objection and directed that Shri Shukla cannot act as a Special Public Prosecutor in this case being the close relative of the complainant but the learned trial Court directed that under the provisions of Section 301(2) of Cr.P.C. Shri Shukla can assist the Public Prosecutor or the Assistant Public Prosecutor in the case. Shri Shukla has challenged this order before this Court in this Revision.

3. I have heard the learned counsel for the parties.

4. The submission of Shri Shukla is that he is not interested in the complainant. He is prosecuting the case independently and he is related distantly and not closely. His further submission is that the evidence of the prosecution has already been closed and the examination of the accused persons have also done, only defence evidence is remained to be produced. The trial shall be concluded within a very short period and, therefore, this revision be allowed and the impugned order passed by the trial Court be set aside and he be permitted to continue as a Special Public Prosecutor in this case. Shri Shukla relied on the decision of this Court in case of Chhattisgarh Mukti Morcha v. State of M.P. and Ors., reported in 1995 MPLJ 995, according to which the State Govt. has rightly appointed him as a Special Public Prosecutor on behalf of the complainant because the Public Prosecutor was not taking interest and was acting contrary to the interest of prosecution. Therefore, he was rightly permitted earlier by the same Court to assist the prosecution and the State Govt. has rightly appointed him as a Special Public Prosecutor looking to the importance of the case.

5. In reply the submission of Shri Jai Singh, who is appearing for the respondents-accused persons is that Shri Shukla is an interested Advocate and he is not distantly but closely related with the complainant party. He is father-in-law of younger brother of complainant Radheshyam. Therefore, he is taking personal interest in the matter and he is also keeping enmity with the respondents-accused. Therefore, he is not prosecuting the case independently and the learned trial Court has passed a reasoned order in which no interference is needed by this Court in this revision. In support Shri Jai Singh cited the case of Sunil Kumar v. State of M.P., reported in 1992 MPLJ 772 (DB), and the case of Shyam Ramkrishan Sharma and Ors. v. State of M.P. and Ors., reported in 1999 (2) MPLJ 703, and also cited a Supreme Court decision in the case of Mukul Dalai and Ors. v. Union of India and Ors., reported in (1988) 3 SCC 144.

6. As per Section 225 of the Cr.P.C. in every trial before the Court of Sessions the prosecution shall be conducted by the Public Prosecutor. The Public Prosecutors are appointed by the Central Govt. or by the State Govt. under Section 24 of the Code of Criminal Procedure. Section 301 of the Code prescribed the appearance by Public Prosecutor. Sub-section (1) of Section 301 states that Public Prosecutor or the Assistant Public Prosecutor in charge of a case may appear and plead before any Court in any criminal case under inquiry, trial or appeal. Sub-section (2) of Section 301 provides that the Public Prosecutor or the Assistant Public Prosecutor in charge of the case shall conduct the prosecution and any private person instructed as pleader can prosecute in any case with the permission of the Court.

7. In case of Prabhat Agrawal v. State of M.P. and Ors., reported in 1999 (1) MPLJ 23 Short Note 36, it has been held by this Court that the Criminal Procedure Code empowers the State Govt. to appoint a Special Public Prosecutor under Section 24(8) of the Code but has not provided any guidelines for making such appointments. It is, however, settled that Special Prosecutor should not be appointed on mere asking of the complainant. Such appointment, resulting in ouster of the regularly appointed public prosecutor creates feeling of distrust and thereby demoralises the Public Prosecutor as a class. The role of Public Prosecutor is different from the role of counsel or Advocate engaged by a party. He represents the State in administration of criminal justice. The Court has to grind against a criminal trial being converted into an individual contest between the accused and the complainant. Special Public Prosecutor can be appointed only for very special and strong reasons. Where there was no cogent, strong and valid reasons for appointing advocate who had earlier been engaged by and appearing for the complainant, as a Special Public Prosecutor on his mere asking and to be paid by him, the order was liable to be set aside.

8. In the case of Shyam Ramkishan Sharma and Ors. v. State of M.P. and Ors., reported in 1999 (2) MPLJ 703, this Court has held that when an Advocate is engaged by the complainant in the Sessions case cannot legitimately be expected to act with impartiality and detachment which is expected of a Public Prosecutor. The apprehension entertained by the petitioners was reasonable. In this case this aspect of the case was also considered that when a Special Public Prosecutor is appointed by the State to conduct the case it should not be subjected to judicial review but the learned Judge found that such an order suffers from infirmity on the ground that counsel already engaged by the petitioner could not Be appointed as a Special Public Prosecutor on the analogy that as the counsel engaged by the complainant cannot act as Public Prosecutor but can only act as per Section 301(2) of the Code to assist the Public Prosecutor.

9. In case of Sunil Kumar @ Chander Salariya and Ors. v. State of M.P. and Ors., reported in 1992 MPLJ 772, the Division Bench of this Court had an occasion to consider the matter of appointment of Special Public Prosecutor made by the State Govt. and it was held that Special Public Prosecutor can be appointed by the State Govt. only in the exceptional cases and for the reasons to be recorded and in the light of the provisions of Section 301 of the Cr.P.C. The State Govt. can exercise its power under Section 24(8) of the Cr.P.C. and appoint a Special Public Prosecutor only in exceptional cases and for the reasons to be recorded. The appointment made of a particular lawyer, as a Special Public Prosecutor not of any necessity, but just to please and satisfy the relations of the deceased is not proper and the appointment was set aside and liberty was granted to the Special Public Prosecutor to assist in the manner provided in Section 301(2) of Cr.P.C.

10. In the case of Mukum Dalal (supra), the Supreme Court was pleased to consider the status, scope and utility of the appointment of Public Prosecutors and the Supreme Court had referred the case of K.C. Sud v. S.G. Gudimani, (1981) 2 Cr. LJ. 1779 (Del. HC), in which it was held that the office of the Public Prosecutor is a public one and had held that the Public Prosecutor, the Additional Public Prosecutor and the Assistant Public Prosecutor hold an office. The learned Single Judge said :–

“It is public office of trust and therefore like any other public office, is susceptible to misuse and corruption if not properly insulated. It is an office of responsibility more important than many others because the holder is required to prosecute with detachment on the one hand and yet with vigour on the other. When advocates are recruited to these offices, they have certain professional and official obligations and privileges. Some State Govts. have appropriately made it an express term of their appointment that they shall not accept any brief in criminal matters and shall not even in civil matters appear in any case in which the interest of the State appear to be involved.”

11. The Supreme Court further referred to similar observations made by the another Single Judge in case of P.G. Narayankutty v. State of Kerala, reported in (1982) 2 Cr.LJ. 2085 (Ker. HC) :–

“Special Public Prosecutor…… can not be appointed with a view to secure convictions at all costs. Special Public Prosecutor could be appointed only when public interest demands it and not to vindicate the grievances of a private person, such as close relation of the deceased. In order that he discharges his duties properly, he should look to the State for remuneration for his services; if he looks to a private party for his remuneration, his capacity to a private party for his remuneration, his capacity and ability to perform his role as Public Prosecutor properly will be endangered. Government cannot appoint Special Public Prosecutor on such terms, abdicating their financial responsibility or directing him to receive his remuneration from any private individual.”

12. It was further held that:–

“It would not be appropriate to accept the position that whenever an application is made it should be allowed and a Special Public Prosecutor should be appointed; this would be contrary to the spirit of the scheme of the Code. There may be cases where a power complainant may have begun a proceeding to victimize his opponent. If in such a case the State concedes to the request for appointment of a Special Public Prosecutor there will be travesty of justice. Without screening on the basis of guidelines prescribed or to be prescribed, the services of a Special Public Prosecutor should not be made available to a private complainant. The primacy given to the Public Prosecutor under the scheme of the Code has a social purpose and the same would be lost. We are inclined to observe that the request for appointment of a Special Public Prosecutor should be properly examined by the Remembrancer of Legal Affairs and only when he is satisfied that the case deserves the support of a Public Prosecutor or a Special Public Prosecutor that such a person should be appointed to be in charge of the case.”

13. No doubt in important criminal cases, where it is not expected from the Public Prosecutor that he will conduct the trial independently, the Govt. can appoint Special Public Prosecutor with a view to protect the interest of the State in Administration of Criminal Justice, but in such cases, only independent, impartial, and lawyers of status and repute should be appointed as Public Prosecutors, so that they may conduct the cases without any prejudices and unbiased attitude. It is always expected from the Public Prosecutor not to act as protagonist of any party because he is a person who is appointed to this highly responsible post should always uphold the dignity of this high office with a full sense of responsibility.

14. Considering the submissions of the learned counsel for the parties and also considering the various decisions of this Court and the Apex Court and in the facts and circumstances of the case Shri R.P. Shukla initially appeared as a counsel for the complainant and thereafter he was appointed as a Special Public Prosecutor by the State Govt. and also in view of this fact that he is also in relation with the complainant. He is father-in-law of younger brother of complainant Radheshyam. The respondent-accused are being prosecuted in this case under Section 304B, IPC. The deceased Sangita was the daughter of the complainant. She was married with respondent-accused No. 2 Yogendra in April, 94 and thereafter on 13-4-97 she died in suspicious circumstances. Subsequently the respondents-accused No. 4 and 5 Narmadaprasad and Kusmabai were added as an accused under Section 319, IPC and the order was confirmed by the High Court. It is also no doubt that Mr. Shukla was appointed Special Public Prosecutor and the then Public Prosecutor or the Assistant Public Prosecutor was not prosecuting the case independently as was expected from him.

15. It is also true that in the impugned order except this allegation that the petitioner is in relation with the complainant party, there are no other allegations against him for taking any vindictive attitude against the accused persons. But in view of the decisions of this Court and the Supreme Court that only independent person should be permitted to prosecute the prosecution case and considering this fact that the learned trial Court has already granted permission to Shri Shukla under Section 301(2) to assist the Public Prosecutor or the Addl. Public Prosecutor. Therefore, it would not be proper for this Court, when hearing the revision under Section 397 Cr.P.C. to interfere in the order passed by the learned trial Court, as the scope of interference is limited in revision. Accordingly this Revision has no merit and is dismissed. However, it is made clear that now the independent Public Prosecutor shall conduct the rest of the trial in the case that is to say, to cross-examine with the defence witnesses and arguments and the learned Public Prosecutor shall discharge his duties faithfully and deligently and shall not act contrary to the interest of prosecution and Shri Shukla will also be able to assist him under Section 301(2) of Cr.P.C. and will have liberty to submit written arguments if he choses to and the trial Court shall also take care that the faith of the litigants should not be shaken in the Court proceedings specially in such matters following the rule “that justice should not only be done but should manifestly and undoubtedly be seen to be done”.


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