Petitioner Shekhar Tiwari, who is a sitting Member of the Legislative Assembly (M.L.A.), is facing trial in Sessions Trial No. 446/2009, under Sections 147, 148, 149, 323, 342, 457, 364, 302, 201, 120-B, 506 IPC and Section 7 Criminal Law Amendment Act, before the Court of Special Judge (Ayodhya Prakaran), Lucknow.
Shorn of unnecessary details, the petitioner is aggrieved by an order passed by the State Government on 9.3.2009 in exercise of powers under Section 24 (8) of the Code of Criminal Procedure, 1973, hereinafter referred to as the Cr.P.C, appointing the respondent no. 2 Sri Indra Bhushan Singh, Senior Advocate as Special Public Prosecutor to conduct the aforesaid criminal trial.
Challenge to the aforesaid order dated 9.3.2009 has been mainly made on the following grounds:
(1)The appointment of respondent no. 2, a designated Senior Advocate as Special Public Prosecutor, is not in consonance with the provisions of Section 24, in particular sub-section (8) of the Cr.P.C;
(a) Such an appointment of Special Public Prosecutor for no valid reason impinges upon the right, either of the accused or of the victim, to have a fair trial;
(b) Such an appointment of Special Public Prosecutor has resulted into supersession of the Public Prosecutor, who was entitled and authorised to conduct the sessions trial, having been appointed under the provisions of sub-sections (1) to (6) of Section 24 of the Cr.P.C;
(2)No reasons have been have been given by the State Government for appointing the Special Public Prosecutor and there being no such cause which would allow such an appointment, the appointment so made is arbitrary;
(3)The respondent no. 2 being a Senior Advocate could not have been allowed to do Pairvi and plead a case, which is against the provisions of Bar Council of India Act and restrictions imposed with respect to Senior Advocates in the matter of arguing cases under the Rules; and (4)The respondent no. 2 having been engaged by respondent no. 3 in Criminal Misc. Writ Petition No. 370 of 2009, filed by the petitioner and his wife seeking stay on their arrest, to plead the case on her behalf, could not be taken to be an independent public prosecutor and thus, could not have been appointed to undertake the sessions trial against the petitioner on behalf of the State.
We take up the points no. (1) and (2) first.
Drawing the attention of the Court to the provisions of Section 2(u) alongwith Section 24, sub-sections (1) to (6) and (8) of the Cr.P.C, learned counsel for the petitioner argued that the scheme of the aforesaid provisions of the Cr.P.C does not allow the appointment of Special Public Prosecutor on the mere discretion of the State Government and even if the State Government can be presumed to have such discretion, the same has to be based on some reasonable ground, leading to some special circumstances for making such an appointment and in the absence of any special reason, the appointment so made cannot be sustained in law.
In support, reliance has been heavily placed on the judgment of Karnataka High Court in the case of K.V.Shiva Reddy versus State of Karnataka and others, 2005 Cri. L.J. 3000, as also on the following judgments:
(i) 1993 Cri. L. J. 1249, Abdul Khader Musliar versus Government of Kerala,
(ii) 1982 Cri. L.J. 2085, P.G.Narayankutty versus State of Kerala and others
(iii) 1998 Cri.L.J. 998, Rajendra Nigam versus State of M.P and others,
(iv) 2001 Cr. L.J 3113, Poonamchand Jain versus State of M.P and others.
Learned counsel has summerized the ratio of the aforesaid judgments as follows:
(a) Appointment of private counsel as Special Public Prosecutor without application of mind by the State Government is liable to be quashed.
(b) Special Public Prosecutor can be appointed only when public interest demands and /or for some cogent reason or special circumstance to make such an appointment.
(c) Mere fact that the accused in the murder case has appointed a leading criminal lawyer cannot be a ground to appoint a Special Public Prosecutor.
(d) Opinion that the crime is heinous one is not justifiable and reasonable to appoint a Special Public Prosecutor.
(e) Without any material to show that the public prosecutor, who was incharge of the case, was incompetent to conduct the trial, does not justify the appointment of a Special Public Prosecutor.
(f) Special Public Prosecutor cannot be appointed with a view to secure conviction at all costs; rather there has to be guarantee for fair trial.
(g) The prosecutor must also be prepared to respect and protect the right of the accused.
In the case of K.V.Shiva Reddy versus State of Karnataka and others (supra), the appointment was apparently made on the letter of an M.L.A, which did not disclose the reasons for such an appointment. His Lordship held that it is not that the order appointing a Special Public Prosecutor should disclose the reasons for such appointment and it should disclose any special circumstances for such appointment. But once such an appointment is challenged before the Court, an obligation is cast upon the State to justify the appointment by making available the records. The said records should disclose the special circumstances justifying such appointment. If the records do not disclose any such special circumstances, then the order of appointment cannot be sustained and is liable to be quashed.
The Court further observed;
"The accused has no say in the matter of appointment of the Special Public Prosecutor under the scheme of the Code. But the accused has a right to fair trial, which is a part of the fundamental right guaranteed by the Constitution under Articles 14 and 21 of the Constitution of India. The assurance of a fair trial is the first imperative of the dispensation of justice. It is well known position in criminal jurisprudence that the State is the prosecutor and that is why the primary position is assigned to the public prosecutor, who is a part of fair trial. If his appointment is not made in public interest, not made in accordance with law, made for extraneous considerations, made with any mala fide intentions, made with intention to persecute the accused, such appointment offends the concept of fair trial, a fundamental right guaranteed to the accused. Fairness to the accused who faces prosecution is the raison d'etre of the legislative insistence on that score. Therefore, the accused has right to challenge appointment on any such grounds, though he has no say in the appointment."
The Court went on to say that the power to appoint a special public prosecutor is a statutory right. Fair trial is a fundamental right of the accused. If a statutory right has been exercised offending a fundamental right, and when such action of the State is challenged before this Court by way of a writ petition, on the ground of laches and delay and suppression of material facts, Court cannot decline to entertain the writ petition, though all of them constitute a weighty ground for declining the discretionary relief under normal circumstances under Article 226 of the Constitution. But, when a writ petition is filed for enforcement of a fundamental right, the relief cannot be denied on the ground of the aforesaid technical objections.
In the case of Abdul Khader Musliar versus Government of Kerala (supra), the Kerala High Court held that a Special Public Prosecutor is not to be appointed in ordinary circumstances. In the said case, Special Public Prosecutor was appointed because the accused in a murder case had engaged a leading lawyer as their Advocate to defend them and the appointment was made by the Government without conducting enquiry or without calling for remarks of any other officer. The appointment was bad in law as the mere fact that the accused in a particular case are engaging a leading criminal lawyer is hardly sufficient to make it a special situation warranting appointment of a Special Public Prosecutor.
The Court further observed that if a norm is accepted by Government that a Special Public Prosecutor shall be appointed when accused engage a competent or leading advocate, it is likely to bring about anomalous situation because in very many sessions trials, accused would engage leading criminal lawyers to defend them.
In the case of P.G.Narayankutty versus State of Kerala and others (supra), a learned Single Judge of the Kerala High Court held that Special Public Prosecutor, it is needless to say, cannot be appointed with a view to secure conviction 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 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 or expecting him to work without remuneration.
In the said case, the decision to appoint Special Public Prosecutor was not found to be illegal or arbitrary but only a direction was issued that a suitable person should be appointed as Special Public Prosecutor in place of the person already appointed.
The Court also did not define the meaning and scope of the term "public interest" used therein.
The reason for removing the person who was already conducting the trial, flows from the following observation:
"This is not to say that in every case where one of the parties involved is of a particular political persuasion, no Public Prosecutor, who shares the particular persuasion, should be allowed to conduct the prosecution. To accept such a state of affairs as an invariable rule would not only be contrary to sound practice, but would seriously offend the dignity of the Bar as such."
The Court also took notice of the fact that Public Prosecutors and Additional Public Prosecutors in the State were ill paid and, therefore, the posts do not attract talented lawyers. It observed that the remuneration to the Special Public Prosecutor should be paid from State funds and not by the private parties.
In the case of Rajendra Nigam versus State of M.P and others (supra), a learned Single Judge of Madhya Pradesh High Court, applying the principles of law as laid down by the Kerala High Court in the case of Abdul Khader (supra) and taking note of such other cases, observed as follows:
"In the instant case applying the above principles, it does not appear that the case is of special importance or there are special reasons for appointing the Special Public Prosecutor. The order of the appointment issued by the State Government does not justify itself when it is tested at touchstone of fair trial or at touchstone of statutory requirement".
In Poonamchand Jain versus State of M.P and others (supra), a learned Single Judge of Gujarat High Court, on the facts of the said case, made the following observation:
"On a careful perusal of Annexure-P-1 it is luminously clear that the State Government has not ascribed cogent reasons for appointment of a Special Public Prosecutor except mentioning that the crime in question had occurred under special circumstances."
The ratio of the aforesaid judgments lays emphasis upon the right of the accused to have a fair trial. The prosecution must not secure conviction at all costs i.e. by adopting means which are not legal or, in other words, are extraneous and unlawful, may also be unethical.
In nutshell, the sum and substance of the aforesaid judgments is that the Special Public Prosecutor can be appointed only when public interest demands and not on mere asking of any party, nor on the request of a politician, namely, M.L.A etc. who is interested in either side of the case and that there has to be some cogent ground or reason or special circumstances owing to which the State Government can exercise its discretion for appointing a Special Public Prosecutor, but while doing so, it has to see that such a person is impartial to all the parties to the case and that his remuneration must be paid from the State funds and not by a private party. By such appointment, the prosecution is not to secure conviction by adopting means which are not permissible in law and the persons so appointed are bound by the professional ethics under the Advocates Act, the Bar Council of India Act and the Rules made thereunder. In other words, the public prosecutor or may be, the Special Public Prosecutor, is supposed to conduct the trial only in accordance with law, keeping in mind the legal and professional tenets of the Advocates. Their function is only to assist the Court in a fair and just manner to reach to a definite conclusion about the guilt or innocence of the accused.
So far the duties and responsibilities of a Public Prosecutor or the Special Public Prosecutor is concerned, suffice would be to say that every person so appointed has a legal as well as moral duty not to hide and conceal the facts which if brought on record may result into acquittal of the accused. He is also not to withhold such information which would be relevant for the purpose of conviction of the accused. Besides putting correct facts and the evidence available on record before the Court, it is also the duty of the public prosecutor and special public prosecutor to apprise the court of the legal provisions and the case law, if any, on the point in issue.
The meaning of 'Fair Trial' does not require any detailed discussion, it being the fundamental right guaranteed to the accused under Articles 14 and 21 of the Constitution of India, therefore, a trial which is either not fair, or seemingly appears to be not fair, would not be allowed to continue in case any such unfairness and arbitrariness in the conduct of the proceedings is brought to the notice of the Court under Article 226 of the Constitution to India. But in regard to the appointment of the Special Public Prosecutor, the views expressed by the different High Courts, as referred to above, do reflect that their Lordships were of the view that the public prosecutors appointed under sub-sections (1) to (6) of Section 24 of the Cr.P.C have a prior right to prosecute the accused in trials and unless and until there is some cogent reason or special circumstance which satisfies the State Government that Special Public Prosecutor needs to be appointed in public interest, such an appointment cannot be made. Thus, the power to appoint Special Public Prosecutor under sub-section (8) of Section 24 of the Cr.P.C has been made subservient to the power which is exercised by the State in making appointment of public prosecutor under sub-sections (1) to (6) of Section 24.
The word 'Public Prosecutor' has been defined in sub-section (u) of Section 2 of the Cr.P.C, which reads as under:
"Public Prosecutor" means any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor."
A bare perusal of the provisions of Section 24 of the Cr.P.C would lead to the conclusion that public prosecutor can be appointed under sub-section (1) or sub-section (2), or sub-section (3) or sub-section (6), keeping in mind the provisions of sub-sections (4) and (5), and for such appointment, the eligibility criteria is provided under sub-section (7), whereas sub-section (8) is an independent provision which confers power upon the Central Government or State Government, as the case may be, to 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.
The proviso attached thereto permits the victim also to engage an advocate of his choice to assist the prosecution. The eligibility for appointment as a public prosecutor or additional public prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6) requires that such a person has been in practice as an advocate for not less than seven years, whereas for appointment as Special Public Prosecutor, the requirement is that the person should have been in practice as an advocate for not less than ten years.
The mechanism, the eligibility and the procedure which have been provided under sub-sections (1) to (6) for appointment of public prosecutor and additional public prosecutor or assistant public prosecutor is entirely different as against the manner in which Special Public Prosecutor is appointed under sub-section (8).
Normally public prosecutors appointed under sub-sections (1) to (6) conduct the trials or pursue the appeals and other proceedings on behalf of the Government, but the Central Government as well as the State Government, as the case may be, have been given exclusive powers under sub-section (8) to appoint Special Public Prosecutor.
It is in fact the satisfaction of the Central Government or the State Government to appoint such Special Public Prosecutor whom it finds appropriate and fit to undertake the prosecution, which appointment does not necessary call for a scrutiny by the Court unless of course it is shown and established beyond doubt that such an appointment would be injurious to the accused and he would not have a fair trial, or that the appointment is absolutely arbitrary.
The requirement of higher length of practice i.e. 10 years as an Advocate for being appointed as Special Public Prosecutor with a different methodology of appointment, makes him a different class as against the Public Prosecutor appointed under sub-sections (1), (2), (3) and (6) of Section 24 of the Cr.P.C. The appointment under sub-section (8) depends totally upon the discretion of concerned Government.
A Special Public Prosecutor is appointed only for the purpose of any case or class of cases and his appointment cannot be taken to be a regular appointment.
All ethics of criminal law and criminal jurisprudence including restraints and norms under the Advocate Act and the Bar Council of India Act would equally apply on him whether such a Special Public Prosecutor is a designated Senior Advocate or not.
In the appointment of Special Public Prosecutor under sub-section (8), the accused would have no role, nor can he challenge the appointment on the ground that there was no reason to make such appointment. Of course such an appointment can be challenged on the ground that the Special Public Prosecutor so appointed is biased or that he has got some personal interest in the case or he nurtures some personal grudge against the accused, or that such an appointment was so unwarranted that it cannot be termed as fair but only arbitrary.
It is always to be taken care of that such allegations can very frequently and easily be made by the accused against the Special Public Prosecutor whenever appointed by the Government and, therefore, it further makes obligatory on the part of the accused, who challenges the appointment on any ground including the aforesaid, to establish those allegations before the Court by some cogent and admissible evidence and circumstances which, if taken into consideration, may lead to the said conclusion.
Having noted the observations made in the case of P.G.Narayankutty (supra) that engagement of a leading lawyer by the accused cannot be a ground for the appointment of the Special Public Prosecutor, we would like to observe, with deep respect, that fair trial is not only the right of the accused but that of the victim also, may be in a given case where the accused has engaged a leading criminal lawyer, the concerned Government feels that it involves complicated questions of facts and/ or law, and that the services of a Special Public Prosecutor would be necessary for a free and fair trial, such an appointment can be made.
As a matter of fact, when under sub-section (8) of Section 24, the concerned Government is empowered to appoint a Special Public Prosecutor in a case, by pick and choose, in which appointment recording of reasons, is also not necessary, the discretion of the Government in appointing a Special Public Prosecutor in a case where a leading lawyer is engaged by the accused, to match his skill, cannot be doubted. Such an appointment will not be for securing conviction of accused at all costs, but would only be a component of independent, free and fair trial, fair to both i.e. the accused as well as the victim.
It cannot be presumed by any stretch of imagination that Special Public Prosecutor can be appointed only for securing conviction of the accused irrespective of the evidence being available on record to the contrary, which may allow acquittal of the accused in a given case. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent, as observed by the Apex Court in the case of Preeti Gupta and another versus State of Jharkhand and another, reported in (2010) 7 SCC 667.
In the case of Sidhartha Vashisht @ Manu Sharma versus State (N.C.T. Of Delhi), reported in AIR 2010 SC 2352, their Lordships of the Supreme Court, commenting upon the role of public prosecutor, observed that a public prosecutor has wider set of duties than to merely ensure that the accused is punished, the duties of ensuring fair play in the proceedings, all relevant facts are brought before the Court in order for the determination of truth and justice for all the parties including the victims. These duties do not allow the prosecutor to be lax in any of his duties as against the accused.
It need not be reiterated and affirmed that the Government, while appointing a Special Public Prosecutor, shall have to consider the aforesaid factors.
In the case of K.V.Shiva Reddy (supra), the learned Single Judge of Karnataka High Court, after giving the findings as discussed above, did give liberty to the third respondent i.e. the victim, to approach the Government for appointment of a Special Public Prosecutor and further directed that if such a request is made, the Government shall consider the same in accordance with law and in the light of the observations made in the judgment. This means that despite the Court, having come to the conclusion that the appointment of the Special Public Prosecutor cannot be made in mechanical manner, was apparently convinced that it was a case where such a request could be made, but that should be dealt with in a manner, as observed in the said judgment.
The power to appoint Special Public Prosecutor, thus, cannot be made dependent upon any particular cause or reason, nor can it be made only only on the request made by any party, complainant or victim, but has to be appointed by the concerned Government as per its own discretion, considering the requirements thereof, may be that the request for appointment of Special Public Prosecutor can also be made to the Government by any person concerned. Such an appointment normally is not open to judicial review unless it is found that it infringes any of the fundamental rights of the accused or is absolutely arbitrary or wholly unfair, or which would defeat the right of fair trial, both either of the accused or that of the victim.
This view also finds support from the Division Bench judgment of the Andhra Pradesh High Court in the case of 'The State of Andhra Pradesh and another versus Margadarsi Financiers and others', 2009 Cri.L.J 2705, where their Lordships considered the meaning and effect of sub-section (8) of Section 24 of the Cr.P.C and also the plea that the designated Senior Advocates cannot be appointed as Special Public Prosecutors in view of the bar as enunciated under the Rules with respect to Senior Advocates.
Their Lordships held that in a given situation and facts and circumstances, as the exigencies may arise, the concerned Government may appoint an individual person as a Special Public Prosecutor at their choice and discretion.
The words "choice and discretion" used by their Lordships clear the authority of the concerned Government to appoint Special Public Prosecutor.
Their Lordships further held that this appointment, naturally will be in addition to the regular Public Prosecutors functioning in the respective Courts, and for the reasons as the Government may feel necessary to appoint such Special Public Prosecutors. It is not necessary to dwell into or lay down any specific reasons for such appointment, since they may vary from case to case and facts to facts. Therefore, where it felt necessary, the option is left to the Government for appointing a Special Public Officer in respect of a special case or class of cases.
The Court further observed as under:
"Thus, this provision independently stands on its own and cannot and does not have any similarity with appointments to the officers as provided for in the preceding sub clause. Apparently, the consultation and panel as prescribed for the purpose of District is not provided for. It shows that such procedure is not necessary for making an appointment to the post of Special Public Prosecutor. The discretion apparently is a total and absolute one with a complete option on the part of the State Government to virtually pick and choose. (Underlined by us.) The Court further observed:
"Further, having regard to the nature of provision and the limited gamut within which the exercise of power has to be done by the Government, it cannot be said that there are no guidelines or any specific power. In the exigencies, it is left open for the Government, in a particular case or class of cases, wherever necessary and expedient to appoint a Special Public Prosecutor other than the regular office holder."
The power of the State Government to appoint a Public Prosecutor and Additional Public Prosecutor would extend only for conducting any prosecution, appeal or other proceedings in the Courts within the State. The Division Bench, therefore, overruled the view taken by the learned Single Judge to the contrary.
We are in respectful agreement with the aforesaid view of the Andhra Pradesh High Court.
We now proceed to examine Points no. (3) and (4).
In regard to the plea that the respondent no. 2 is a Senior Advocate and, therefore, he could not have been appointed Special Public Prosecutor for doing Pairvi and plead the case on behalf of the State, suffice it to mention that this point has also been dealt with by the Andhra Pradesh High Court in the aforesaid case and after taking into consideration the restrictions imposed on Senior Advocates under the Rules governing them, the Court observed as under:
"Necessarily, the senior advocate has to appear only through an Advocate on Record and he has to be engaged as such, without whom he cannot straightway make any appearance. It contemplates that he shall not file vakalatnama or act in any Court or Tribunal or before any person or authority as mentioned in Section 30. The expression "to act" has been defined very comprehensively and takes in, every act as normally being expected or being done by a regular legal practitioner or advocate. It is this area where the senior advocate is restricted and cannot walk in. He has to necessarily appear only through another advocate on record. Therefore, it cannot be said that the senior advocates or even the second respondent is not bound by these Rules and, therefore, it can safely be held that no senior advocate can be appointed straightway to any such office".
In the instant case also, the respondent no. 2, a Senior Advocate, who has been appointed as Special Public Prosecutor, would act with the assistance of the public prosecutor appointed under any other sub-section of Section 24. He knows the restrictions imposed upon him and we have no reason to believe that those restrictions would not be followed in the present case.
In regard to the plea that the respondent no. 2 having been engaged by respondent no. 3 in Criminal Misc. Writ Petition No. 370 of 2009 filed by the petitioner and his wife seeking stay on their arrest, a Vakalatnama signed by respondent no.2 was given to respondent no. 3; therefore, he cannot be said to be an impartial person for being appointed as Special Public Prosecutor, he having appeared on behalf of the complainant, respondent no. 3, it has to be noted that the allegation aforesaid is absolutely vague for the purpose of discrediting the respondent no. 2 from functioning as Special Public Prosecutor.
Learned counsel for the petitioner, when brought this fact to the notice of the Court that a Vakalatnama signed by respondent no. 2 alongwith one Sri Amrendra Nath Singh, Advocate was filed in the said writ petition, was asked to answer whether the respondent no. 2 actually appeared in the aforesaid case and argued the matter or even remained present during the course of hearing, he avoided reply and sought time to file supplementary affidavit which he has filed on 22.9.2010, though in the writ petition, no such averment was made.
The respondent no. 2 is a Senior Advocate. He might have signed any Vakalatnama alongwith Advocate Sri Amrendra Nath Singh, but in case he did not appear in the case at all, he cannot be said to be ineligible for being appointed as Special Public Prosecutor on behalf of the State. A designated Senior Advocate is engaged mainly for arguing the matter, wherein filing of Vakalatnama is not necessary, A Senior Advocate can appear in all cases on being engaged or instructed by any Advocate, and in criminal trials, he can be engaged by the concerned Government as Special Public Prosecutor, but unless he actually appears in the Court or does some overt act in furtherance of the case/trial at any stage or participates therein, it cannot be taken to mean that he has appeared in the case. It is not very uncommon, that in a case, a Senior Advocate is contacted by the client, but later on he does not instruct him to appear or argue. The Senior Advocate in such a circumstance will not appear at all.
The respondent no. 2, who was present in Court incidentally, made it clear on being asked, that he never appeared in the case and that he was in no way interested in prosecution of the case, nor in his appointment, made by the Government, as Special Public Prosecutor but he having been appointed as such is conducting the trial.
The petitioner did file a supplementary affidavit but despite specific query being made, he did not mention anywhere that the respondent no. 2 ever appeared in the case. He made only the following averment, namely-
"That it is further submitted that the terms and conditions of the Vakalatnama that was executed on 20.1.2010 between respondent no. 2 and 3 summarily are:-
"That the respondent no. 2 has been appointed as the counsel and could do any Pairvi or submit any document etcetera personally or through any other counsel."
and "That the name of respondent no. 2 as counsel for the respondents appears on the first page of the order dated 23.1.2009 passed in writ petition no. 370 of 2009."
The plea of the petitioner, that the respondent no. 2, a Senior Advocate was authorised to do Pairvi in the case as per the general terms/words incorporated in the Vakalatnama, could not persuade us to hold that by merely signing the Vakalatnama, the respondent no. 2 had actually indulged in doing Pairvi of the case, moreso he being a designated Senior Advocate could not have done any Pairvi in the case. This is a general terminology which is used almost in every printed Vakalatnama which does not and cannot apply to disqualify Senior Advocate who under rules cannot undertake any such Pairvi nor can file any documents. There being no evidence nor even any allegation to the contrary, the said plea is unacceptable.
Also merely because the name of respondent no. 2 appears on the first page of the order dated 23.1.2009 passed in writ petition no. 370 of 2009, it would not mean that he appeared in the case, particularly in view of the fact that it is not the own case of the petitioner also that the respondent no. 2 ever participated in the proceedings of the aforesaid writ petition. He was given liberty to make this averment, but he has avoided to make any such statement on oath or even during arguments that the respondent no. 2 ever actually appeared or did participate in the said case at any point of time.
We have also perused the order passed in the aforesaid writ petition no. 370 of 2009 and we find that though on the title page, the name of respondent no. 2 has been shown as counsel for the respondents alongwith Sri Amrendra Nath Singh, Sri A.N.Singh and Sri Vikas Sahai, AGA, but the order itself shows that Sri A.N.Singh for the complainant and Sri Vikas Sahai, AGA were only heard and not the respondent no. 2. That being the position, it cannot be said that the respondent no. 2 in any way acted against the interest of the petitioner in the aforesaid case or that he pleaded the case of the complainant. His appointment as Special Public Prosecutor, therefore, cannot be questioned.
We, at this juncture, would also like to observe that the lawyers of considerable length of practice, who have been designated as Senior Advocate, themselves would not accept the brief where they find that there is conflict of interest of parties and that they had appeared for or on behalf of one of the parties. Mere filing of Vakalatnama alongwith other Advocate/s on record with no participation in the proceedings would not at all be sufficient to dislodge the respondent no. 2.
For the reasons aforesaid, we find no find merit in the writ petition. It is accordingly dismissed.
Rule discharged. No order as to costs.
(Pradeep Kant, J.) (F.I.Rebello, C.J.) Sept. 22, 2010 LN/-