1 This petition under Article 226 of the Constitution of India is filed by the petitioner, original complainant, seeking a direction against respondent No.1-State of Gujarat, to appoint a Special Public Prosecutor by exercising power under section 24(8) of the Code of Criminal Procedure, 1972 [for short, 'the Code'] in Sessions Case No.70 of 2009 pending in the Court of the Sessions Judge, Patan, and, in addition to the above, it is prayed that, during pendency and final disposal of the petition, the further proceeding of trial be stayed.
2 Learned counsel for the petitioner, at the outset, would submit that, considering the influence exercised by the accused, who is a sitting MLA representing Radhanpur constituency in the Gujarat State Assembly and politically influential, there is all possibility that the Public Prosecutor appointed by the State Government may not be able to perform duties and, therefore, Special Public Prosecutor Shri K.M. Kazi,Senior Advocate, who is neutral, independent and impartial person, be directed to prosecute the trial. It is submitted that an application was made to the Law Secretary, State of Gujarat, Gandhinagar, on 14th October 2011 stating the above facts that one of the accused is also a sitting MLA of the ruling party in the State and, considering the fear of influence, it is advisable that Special Public Prosecutor be appointed.
3 Learned APP has opposed to grant of prayer for appointment of a Special Public Prosecutor in the case and submitted that there is no material on record to suggest that the Public Prosecutor is not competent to fulfil his duty to uphold the rule of law for good administration of justice and the apprehension made by the petitioner is unfounded and without any basis.
4 Upon consideration of the submissions made by the learned counsels for the parties and on perusal of the record, in my view, the apprehension shown by the petitioner has no basis except that one of the accused is a sitting MLA representing Radhanpur constituency in the Gujarat State Assembly. There is not an iota of evidence on record to suggest that on commencement of the trial, public prosecutor to be appointed by the State cannot perform the duty or even cannot represent the prosecution case in the manner and method recognized by the Code. In the above circumstances, the apprehension expressed by the learned counsel for the petitioner about likelihood of any kind of bias or the public prosecutor to be appointed by the State of Gujarat may be influenced by the accused or any other person, is misconceived.
5 Considering the above, the petition fails and is rejected summarily.
(ANANT S. DAVE, J.) (swamy) Top