The prayer in this petition is to direct the respondents to appoint one Mr.A.Pandian (Enrol.No.1585/2008), Advocate as Special Public Prosecutor in S.C.No.6/2015 on the file of the Principal District and Sessions Court, Tiruppur.
2. Heard the learned counsel for the petitioner and the learned Special Government Pleader appearing for the respondents.
3. The learned counsel for the petitioner, relying upon the
Section 4(5) of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act submitted that the District Magistrate is empowered to engage eminent Senior Advocate for conducting cases in the Special Courts for the victims of atrocity. In support of her submissions, the learned counsel relied upon the judgment reported in 2014 (4) MLJ 339 (R.Kandasamy vs. The District Collector). In the said judment
Section 4(5) of the said Act has been dealt with in detail and this Court came to the conclusion that irrespective of whether the prosecution is conducted by the Senior Prosecutor, the victim of the atrocity is entitled to engage a Senior Advocate for prosecuting the case. The District Magistrate has to accede to the request. Relevant portion of the said order of his Court is extracted hereunder.
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21. Rule 4(5) is independent of appointments envisaged in
Section 15 and Rule 4(1). Rule 4(5) envisages that if the District Magistrate,(District Collector) or the Sub Divisional Magistrate,(Revenue Divisional Officer) deem it necessary or the victim of the atrocity desires an eminent Senior Advocate is required to be engaged to conduct the prosecution case in the Special Court, then the District Magistrate shall engage such an Advocate. He shall be paid appropriate fee by the Government.
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23. It is true that sub rule (5) employes a different term viz., engage different from appoint or specify used in
Section 15. But we do not think, the phraseology has any bearing on the extent of one's brief. Whether he is appointed, specified or engaged he would nonetheless be conducting the case in special Court. We are consdious of the fact that in the scheme of things provided in the Code, the trial in the Court of Session is conducted only by a Public Prosecutor or Special Public Prosecutor
Section 15 of the Act also provides for conducting cases in Special Court by a Special Public Prosecutor. No mention, on the other hand is made of Special Public Prosecutor in sub rule(5). The reason however, is not far to seek.
Section 15 contemplates 'specifying' a Public Prosecutor whether appointed under Section 24 of the Code or empanelled under sub-rule (1) of Rule 4 or appointing an advocate as Special Public Prosecutor for the purpose of conducting cases in the Special Court. These appointments apparently are made from panels of prosecutors and Advocates. It may so happen that the victim of atrocity in a particular case may not have faith in the prosecutors/advocate specified or appointed under
Section 15. He may like to have the case conducted by an Advocate of his choice. It is in order to inspire confidence of the victim of atrocity in the administration of justice that a special provision has been made for engagement of an eminent senior advocate to conduct the case. That is why a different term 'engaged' has been used in Rule 4(5) in contradistinction to 'appoint' or 'specify' in
Section 15. 'Engaged' means that he has been engaged for a particular case, unlike appointment/specifying of an advocate/ prosecutor from the panel. It is to be kept in mind that sub rule (5) contains a non-obstante clause overriding the provisions of rube rule(1) which means that the appointment under Rule 4(5) can be made of a person who is not in the panel. The panels, as seen above, comprise of advocates/Public Prosecutors of the choice of the Government. It is also to be kept in mind that the Act is a special statute enacted to provide relief to the victims of atrocity in the matter of trial of offences covered by the Act and Rule 4(5) confers a right upon victim of atrocity to have his case conducted by an advocate of his choice so as to ensure that he has faith in the trial."
4. The above order is self explanatory. In this connection, the petitioner has also given a representation on 19.06.2017 to the 4th respondent seeking for engaging Mr.A.Pandian, Advocate as Special Public Prosecutor in S.C.No.6/2015 on the file of the Principal District & Sessions Court, Tiruppur. The 4th respondent herein is directed to consider the petitioner's representation dated 19.06.2017, in the light of the aforesaid judgment reported in 2014 (4) MLJ 339 (cited supra) and the observations made thereunder. Such exercise shall be completed within a period of one week from the date of receipt of a copy of this order.
The writ petition stands allowed in the above terms. No costs.
05.09.2017 Index: Yes/ No Internet:Yes/No pvs To
1.The Chief Secretary, Govt. of Tamil Nadu, Secretariat, Chennai.
2. The Home Secretary, Govt. of Tamil Nadu, Secretariat, Chennai.
3. The Secretary, Adi Dravidar & Tribal Welfare Department, Govt. of Tamil Nadu, Secretariat, Chennai.
4. The District Collector, Collectorate Complex, Tiruppur, Tiruppur District.
5. The District Adi Dravidar and Tribal Welfare Officer, Tiruppur, Tiruppur District.
M.S.RAMESH, J., pvs W.P.No.20732 of 2017 05.09.2017