IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF APRIL, 2019 PRESENT THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR WRIT APPEAL Nos.1199–1200 OF 2018 (GM-RES) C/W WRIT APPEAL NO.1220 OF 2018 (GM-POLICE) IN WRIT APPEAL Nos.1199 – 1200/2018 BETWEEN:
1. SRI.GOPALKRISHNA S/O LATE LANKAPPA, AGED ABOUT 78 YEARS R/AT VADERAHALLI VILLAGE, KENGERI HOBLI, KANAKAPURA ROAD, BANGALORE - 560 082.
(SENIOR CITIZENSHIP BENEFITS NOT CLAIMED) 2. SRI.RAJESH S/O LATE LANKAPPA, AGED ABOUT 39 YEARS R/AT VADERAHALLI VILLAGE, KENGERI HOBLI, KANAKAPURA ROAD, BANGALORE - 560 082.
(PRESENTLY IN JUDICIAL CUSTODY, PARAPPANA AGRAHARA, BANGALORE) ... APPELLANTS (BY SRI.C.V.NAGESH, SENIOR COUNSEL FOR SRI.PHANIRAJ KASHYAP, ADV.) AND:
1. STATE OF KARNATAKA REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BANGALORE - 560 001 2. THE PRINCIPAL SECRETARY HOME DEPARTMENT GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BANGALORE – 560 001 3. THE ADDITIONAL SOLICITOR & EX OFFICIO DEPUTY SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BANGALORE - 560 001.
4. SRI.C.H.HANUMANTHARAYA ADVOCATE, NO.131, 6TH CROSS, GANDHINAGAR, BANGALORE - 560 009.
5. THE STATION HOUSE OFFICER SOLADEVANAHALLI POLICE STATION, BANGALORE RURAL DISTRICT, BANGALORE - 560 070.
6. K.KESHVAMURTHY ADVOCATE, NO.300, 11TH MAIN ROAD, MEI LAYOUT, HESARUGHATTA MAIN ROAD, BANGALORE – 560 057. ... RESPONDENTS (BY SRI.A.S.PONNANNA, SENIOR COUNSEL AND ADDITIONAL ADVOCATE GENERAL FOR SRI.S.S.MAHENDRA, AGA FOR R1, R2, R3 & R5) SRI.SATISH M DODDAMANI & SRI.D.R.RAVISHANKAR, ADV. FOR R6) THESE WRIT APPEALS ARE FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER DATED 1/3/2018 PASSED IN WP 9212-9213/2018 AND ALLOW THIS APPEAL.
IN WRIT APPEAL NO.1220 OF 2018 BETWEEN:
1. SRI.GOPALKRISHNA S/O LATE LANKAPPA, AGED ABOUT 78 YEARS R/AT VADERAHALLI VILLAGE, KENGERI HOBLI, KANAKAPURA ROAD, BANGALORE - 560 082.
2. SRI.RAJESH S/O GOPALKRISHNA AGED ABOUT 39 YEARS R/AT VADERAHALLI VILLAGE, KENGERI HOBLI, KANAKAPURA ROAD, BANGALORE - 560 082. ... APPELLANTS (BY SRI.C.V.NAGESH, SENIOR COUNSEL FOR SRI.RAGHAVENDRA.K, ADV.) AND:
1. STATE OF KARNATAKA REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BANGALORE - 560 001 2. THE PRINCIPAL SECRETARY HOME DEPARTMENT GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BANGALORE – 560 001 3. SRI.C.H.HANUMANTHARAYA ADVOCATE, NO.131, 6TH CROSS, GANDHINAGAR, BANGALORE - 560 009.
4. THE STATION HOUSE OFFICER SOLADEVANAHALLI POLICE STATION, BANGALORE RURAL DISTRICT, BANGALORE - 560 070.
5. SRI.K.KESHAVAMURTHY AGED ABOUT 73 YEARS, S/O LATE KEMPAIAH ADVOCATE, NO.300, 11TH MAIN ROAD, MEI LAYOUT, HESARUGHATTA MAIN ROAD, BENGALORE – 560 057. ... RESPONDENTS (BY SRI.A.S.PONNANNA, SENIOR COUNSEL AND ADDITIONAL ADVOCATE GENERAL FOR SRI.S.S.MAHENDRA, AGA FOR R1, R2, R4 ; SRI.SATISH M DODDAMANI & SRI.D.R.RAVISHANKAR, ADV. FOR R5) THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER DATED 1/3/2018 PASSED BY THIS HON’BLE COURT IN WRIT PETITION 3334/2018 (GM-POLICE) AND TO ALLOW THE WRIT PETITION FILED BY THE APPELLANTS.
THESE WRIT APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 05.02.2019 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, ACTING CHIEF JUSTICE, DELIVERED THE FOLLOWING:-
J U D G M E N T Two orders were passed by the State Government dated 3.2.2017 & 2.3.2017 respectively appointing the third respondent as Special Public Prosecutor for conducting the case in SC No.147/2017 (Crime No.15/2017) pending on the file of I Additional District & Sessions Judge, Bengaluru Rural District and before this Court arising out of the same. Challenging the said orders two writ petitions were filed, W P Nos.9212-13/2018 challenging the order dated 2.3.2017 and W P No.3334/2018 challenging the order dated 3.2.2017 by the appellants, who are accused in the Sessions Case. The learned Single Judge by the common order dated 01.03.2018 dismissed both the writ petitions on the ground that complainants or the accused persons are nor entitled to choose the advocates of the opposite parties or the Judge. Being aggrieved, the present writ appeals (WA Nos.1199-1200/2018 against order passed in WP Nos.9212- 9213/2018) and (WA No.1220/2018 against the order in WP No.3334/2018) are filed.
2. The grievance of the appellants in both the appeals is one and the same. It is their grievance that learned Single Judge holding that the appellants have no locus standi to challenge the order appointing Special Public Prosecutor is contrary to the decisions rendered by the Apex Court as well as this Court. The third respondent is appointed as the Special Public Prosecutor to represent the State and the remuneration payable is to be paid by the complainant and thus the third respondent who is a private counsel and not a prosecutor representing represent the State, cannot fairly discharge the duties. It is stated, no reasons are assigned in the notification as to what prompted the Government to appoint the third respondent as the Special Public Prosecutor. The State Government has abdicated its responsibility entrusting its brief to a private party. It is stated, office of the public prosecutor should not be permitted to be denigrated into a legalized means for wrecking private vengeance which is being nurtured by the complainant, by getting lawyer of his choice appointed as the Special Public Prosecutor. It is the further grievance of the appellants that if the learned Single Judge was not agreeable with the precedents, the option open was to refer to Division Bench and not to take a different view.
3. We have heard the learned Senior Counsel Sri C V Nagesh for Sri Phaniraj Kashyap, learned counsel for the appellants and Sri A S Ponnanna, Senior Counsel & Additional Advocate General for S S Mahendra, Additional Government Advocate for R1 to 3 and R5 and perused the impugned order.
4. The learned Senior Counsel for the appellants has placed reliance on the following rulings to advance his contention that appellants have locus standi to question the order appointing the third respondent as Special Public Prosecutor.
(i) ANBAZHAGAN V. STATE OF KARNATAKA & OTHERS, reported in 2015 SCC ONLINE KAR 1277;
(ii) K ANBAZHAGAN V. STATE OF KARNATAKA & OTHERS, reported in (2015) 6 SCC 158; and (iii) K ANBAZHAGAN V. SUPERINTENDENT OF POLICE & OTHERS, reported in (2004) 3 SCC 767.
5. The learned Senior Counsel placed reliance on the decision in MUKUL DALAL & OTHERS V. UNION OF INDIA & OTHERS (1988) 3 SCC 144, and submitted that request for appointment of a Special Public Prosecutor should be properly examined on the basis of guidelines prescribed or to be prescribed and only when it is satisfied that the case deserves support of a Public Prosecutor or a Special Public Prosecutor that such a person should be appointed to be in charge of the case. There may be cases of private complainants where for various other reasons it would be appropriate for the State to support the prosecution by appointing a Public Prosecutor or a Special Public Prosecutor to look after the case. Similarly there may be cases where a powerful complainant may have begun a proceeding to victimize his opponent. 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. The primacy given to the Public Prosecutor under the scheme of the Code has a social purpose. Ordinarily, the Special Public Prosecutor should be paid out of the State funds even when he appears in support of a private complainant but there may be some special case where the Special Public Prosecutor’s remuneration may be collected from the private source, such as where the prosecutor is a public sector undertaking, a bank whether nationalized or not, an educational institution and the like. To leave the private complainant to pay to the Special Public Prosecutor would indeed not be appropriate.
6. Further the learned Senior Counsel placed reliance on order of this Court in W P No.37559/2014 (GM-RES) disposed of on 30.08.2016, in which Para-10 of the order was emphasized, which is as follows:
“10. Insofar as the appointment, certainly the said Rules would be relevant. However, insofar as the need for appointing a Special Public Prosecutor, the mere request of a person would not be sufficient without application of mind to accept such request as otherwise the very scheme of representation in criminal justice delivery system will stand altered. Through the very decision relied on by the learned counsel for the 3rd respondent also it has been indicated that both the interest of the accused as well as the victim is a matter to be kept in view by the government even in circumstances where the appointment of Special Public Prosecutor becomes necessary. Therefore, if the contention as taken by the respondents 1 and 2 is taken into consideration, there is absolutely no consideration with regard to the interest of the accused, the need for which the Special Public Prosecutor is required to be appointed and the reason for which the Regular Public Prosecutor, who is conducting the said case is not competent enough to prosecute the matter. Therefore, if these aspects of the matter are kept in view, certainly there is absolutely no application of mind pointed out on behalf of the respondents 1 and 2 before arriving at the conclusion to appoint a Special Public Prosecutor. In such circumstances, both in the earlier order passed by me in an earlier petition as well as in the case of Sri K V Shiva Reddy, though this Court had taken the view that the orders are not sustainable, liberty had been left to the respondents 1 and 2 to take an appropriate decision in accordance with law. Therefore, in the present circumstances, when I find that the order dated 26.06.2014 is without application of mind and without indication of any reasons either in the order or in the objection statement and is passed in a routine manner, the same cannot be sustained.”
7. The learned Senior Counsel placed reliance on the decision in the case of K V Shiva Reddy v. State of Karnataka & others, reported in 2005 CRI.L.J. 3000 and relied upon paragraphs 30, 35, 36, 37 & 38, which are extracted here under:
“30. Special Public Prosecutor could be appointed only when public interest demands. There should be special circumstances warranting such appointment. The mere fact that the accused in a particular case are engaging a leading criminal lawyer alone cannot be a ground to appoint a Special Public Prosecutor. But that factor may be one of the factor which may be taken note of along with or other weighty reasons for such appointment. A Special Public Prosecutor cannot be appointed with a view to secure conviction at all cost. The said office should not be permitted to be degenerated into a legalized means for wreaking private vengeance.
31, 32, 33, & 34 xxx xxx xxx 35. … 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 record do not disclose any such special circumstances, then the order of appointment cannot be sustained and is liable to be quashed….
36. The impugned order is an administrative order by the Government under Section 24(8) of the Code. It is a statutory order. If all State actions must be just, fair and reasonable, the Special Public Prosecutor would be under less duty as a functionary of the State to discharge his function as a Public Prosecutor in an equally just, fair and reasonable manner irrespective of the outcome of the trial. In that sense, he is a part of the judicature system and an upright Public Prosecutor has no friends and foes in Court. He has no prejudice, preconceived notions, bias, hostility or his own axe to grind. He represents public interest, but is not a partisan in the narrow sense of the terms.
37. 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 & 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 a right to challenge the appointment on any such grounds, though he has no say in the appointment. The Court is concerned only with the decision-making process and not the decision.
38. The second respondent is appointed at the instance of the M.L.A. who has nothing to do with the crime in question. In the statement of objections he has stated that he is appointed after detailed inquiries made through the Deputy Director of Prosecution and also through the representation given by the deceased wife Surya Kalavathi, which is not borne out from the record. He has referred to the political rivalry in the Taluk and has dragged the name of the present sitting MLA who was also the former Speaker and alleges that the wife of the deceased has no confidence even on the Government since sitting M.L.A and Ex-Speaker of Karnataka is also one of the accused, who is competent to manage things. The third respondent tent to mange things. The third respondent in her objection statement has not alleged these things, as on the date of appointment of the second respondent, Sri G K Venkatashiva Reddy was the MLA and on his request the appointment was made, and the facts pleaded for justifying the appointment are subsequent events to appointment. Therefore, the second respondent is acting as a spokesperson of not even of the complainant but that of the MLA who got appointed him and is bent upon prosecuting the accused and wants a conviction at any cost. The statement made by him clearly demonstrates that he is unable to prosecute the case with detachment. He has prejudices, preconceived notions, bias and hostility against the accused. Though he may not have his own axe to grind, he has allowed him to be used by the MLA to fight his political battle in the Court under the garb of a Public Prosecutor. The records and the statement of objections speaks for itself. Realising his folly in exposing himself in the aforesaid manner, a memo was filed to withdraw the statement of objections. It is relevant to notice that the second respondent has served as a Public Prosecutor earlier. He ought to know his status and role better. The allegations in the statements of objections therefore cannot be considered as unintentional or born out of inexperience. Moreover, the Writ Petition do not contain any personal allegations against him. In spite of the same not only he defends his appointment, which was totally unwarranted, but makes allegations against the accused and his mentors, bringing in politics and political rivalry to the fore, thus disentitling him to be appointed as a Special Public Prosecutor. Therefore, his appointment cannot be sustained.”
8. On the other hand, the learned Senior Counsel and Additional Advocate General for Sri S S Mahendra, A.G.A for R1 to R3 and R5 supported the order passed by the learned Single Judge. It is submitted that appointment of advocates, Public Prosecutors, etc., is the prerogative of the Government and the court has no role to play getting support from decision of the Supreme Court in the case of RAJIV RANJAN SINGH `LALAN’ (VIII) & ANOTHER Vs., UNION OF INDIA & OTHERS, reported in (2006) 6 SCC 613. It is also submitted that scope of judicial review of the executive, administrative and quasi-judicial action, is extremely limited and in this regard, decision in State of MAHARASHTRA & OTHERS V. PRAKASH PRAHLAD PATIL & OTHERS reported in (2009) 12 SCC 159 is relied upon with emphasis on Para-4 of the judgment, which is as follows:
“4. The State opposed the petition on several grounds: primarily indicating that the scope of judicial review of the executive, administrative and quasi-judicial action, was extremely limited and this is not a case where any interference was called for. It appears from the impugned order of the High Court that the original file was called for and scanned as if the High Court was hearing an appeal against a decision taken.”
9. The first three decisions in K ANBAZHAGAN’s case (supra) are more on power of transferor State or transferee State to appoint a Public Prosecutor. Para-61 of 2015 SCC OnLine Kar 1277 reads as under:
“61. However, respondents contended that the appellant has no locus standi to maintain this Writ Appeal. As we have decided the case on a pure question of law and we are dismissing the Appeal, we have not gone into the said question of locus standi which we are leaving it to be decided in any appropriate case.”
10. The second case reported in (2015) 6 SCC 158 deals with a situation, whether Public Prosecutor appointed for trial of a case, could appear in appeal also. It is held that without specific mention in the notification to that effect, he is not empowered. In para-5 of the judgment, it is held as follows:
“5. … The locus standi of the appellant was raised before this Court in K Anbazhagan v. Supt. of Police (W.A.No.260 of 2015, decided on 11.2.2015 (KAR), K.
Anbazhagan v. State of Karnataka) and the Court upheld the locus standi of the appellant in an application under Section 406 CrPC. It gave immense emphasis on the concept of free and fair trial.”
11. After going through the above precedents on the point of appointment of a Special Public Prosecutor, one thing is clear that though under the provisions of the Code of Criminal Procedure, 1973 the Government has the power to appoint a Special Public Prosecutor in a case, it does not mean that such an appointment could be made by the Government as a matter of course and without any reasons. 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 disclosing the special circumstances justifying such appointment. The accused has a right to fair trial, which is a part of the fundamental right guaranteed by the Constitution under Arts. 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; or not made in accordance with law; or made for extraneous considerations; or made with any mala fide intentions; or made with intention to prosecute the accused, such appointment offends the concept of fair trial, a fundamental right guaranteed to the accused. The accused complaining that appointment of Special Public Prosecutor affects fair trial for definite reasons mentioned in the petition, it cannot be said that the accused have no locus standi to question the said appointment. Further in more than one precedent, it is stated that making complainant to bear the fees of the Public Prosecutor is not proper. Further the respondents except contending that the appellants have no locus to question the appointment of Public Prosecutor and the court’s interference in such matters is very limited, have not made available the materials justifying the appointment considering the necessary requirements as to involvement of public interest and necessity to appoint a Public Prosecutor. It is also to be noted that the respondents were not confronted with such a situation as the writ petitions were disposed of at the preliminary hearing stage.
12. The learned Single Judge has proceeded solely on the basis that the parties are neither entitled to choose the advocates of the opposite parties or the Judge. We have taken the view that it cannot be said that the appellants had no locus standi to challenge the order appointing a Special Public Prosecutor in the facts situation. Therefore, the impugned order is to be set aside and matter needs to be remanded to the learned Single Judge to consider the matter afresh after giving opportunity to the respondents to place on record necessary materials and pass appropriate order. Ordered accordingly.
Writ Appeals are accordingly allowed.
Sd/-
ACTING CHIEF JUSTICE lnn Sd/- JUDGE