GULZAR KHAN Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) PETITIONER has filed this petition seeking for grant of the relief to declare that the notification as per Annexure-C dt. 2-6-1995 does not empower the second respondent to conduct prosecution case in Spl. C. C. No. 22/96 in the Court of the prl. Dist. and Sessions Judge, Bangalore, Rural District and further sought for issuance of a Writ in the nature of quo-warranto or any other writ or writs directing the respondents to specify under what legal authority the second respondent is empowered or entitled to conduct the prosecution case in Spl. C. C. No. 22/1996 in the Court referred to supra in which case the second respondent is conducting the case involving a charge under the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (in short called as "act") and further to issue a direction ousting him from such conduct and award costs of the proceedings urging various facts and legal contentions.

(2.) BRIEF facts necessary for the purpose of considering the rival contentions and answering the same are stated as hereunder: The Criminal case is registered under certain offences punishable under the Indian Penal Code and Sec. 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 was enacted (in short it is called the Act) before the jurisdictional Magistrate Court against the petitioners and others. Same was committed to the Spl. Court Bangalore Rural District which is pending in C. C. No. 22/1996. The altered charge dated 22-5-2000 produced at Annexure-A. The second respondent has been conducting the said case as the Spl. Prosecutor on behalf of the State. It is stated that he could not be construed as a "spl. Prosecutor" either specified or appointed under the Act and he was neither eligible or entitled to perform the functions and duties of a Spl. Public Prosecutor under the Act, contending that his appointment is not in conformity with Sec. 15 of the Act r/w sub-rule (1) of Rule 4 of the SC/st (Prevention of Atrocities) Rules of 1995 (herein after referred to the Rules in short) which Rules have come into force with effect from 31-3-95, and further it is contended that on learning that the 2nd respondent is functioning as Spl. P. P. without any legal authority, the petitioner filed an application before the Spl. Court in the said case to decide the said aspect of the matter. After filing objections to the said application by the second respondent the Spl. Court has passed an order on 4-12-2000 dismissing the application vide order at Annexure-B. It is stated that the certified copy of the notification dt. 2-6-1995 appointing the 2nd respondent as the Public Prosecutor was issued by the State in the said case arising out of Crime No. 45/95 of Kadugodi Police Station on the file of the Spl. Judge Bangalore Rural District. In exercise of the powers by the State Govt. conferred under sub-sec. (8) of Sec. 24 of the Cr. P. C. vide Annexure-C the 2nd respondent was appointed. It is contended by the learned counsel Mr. S. G. Bhagwan that the Spl. P. P. under the Act is a substantive Public Office and the incumbent 2nd respondent is holding the said post without legal authority, and that in appointing him the State Govt. has contravened the statutory provisions and binding rule which are required to be followed mandatorily under the provisions of the Act and the Rules. Therefore the notification Annexure-C is questioned by the petitioner and prayed for issuance of a writ of quo-warranto. It is contended by the learned counsel for the petitioner that the Notification at Annexure-C is not issued by the State Govt. in exercise of its powers under the provisions of the Act and the Rules, therefore the same does not confer power upon the 2nd respondent to conduct the prosecution case in the said Spl. case before the Spl. Court in which an offence under the Act is also alleged against the petitioner and others. It is further contended that the 2nd respondent has been appointed by the State Govt. under the impugned Notification in exercise of its powers conferred u/s. 24 (8) of the Cr. P. C. and not u/s. 15 of the Act that too in the absence of the panel of lawyers to be prepared as mandated under Rule 4 of the Rules.

(3.) THE 2nd respondent filed statement of objections inter-alia contending that the State Govt. appointed a Spl. Prosecutor u/sub-sec. (8) of Sec. 24 of the Cr. P. C. Taking into consideration the gravity of the offences alleged against the accused persons under the IPC as well as the alleged Attrocities committed by them on the SC/st persons. Further it is stated that the qualification for Spl. Prosecutor under the provisions of the Cr. P. C. is that he should have been in practice as an Advocate for not less than 10 years and that he will conduct any case or class of cases, the Rules under the Act came into effect from 31-3-1995, the State continued its procedure of appointing Public Prosecutor as Spl. P. P. by following the practice with a view to expeditiously dispose of cases pending before the Courts. The procedure required to be followed under Rule 4 of the Rules and under the provisions of the Act is delayed and cumbersome procedure not conducive to give effect to the solitary provisions of Sec. 15 of the Act. From a careful reading of Sec. 15 of the Act and Sec. 24 (8) of the Cr. P. C. the object and purpose of appointment of a Spl. P. P. is with a view to provide a better Advocate to conduct cases arising out of the Act by resorting to sub-sec. (8) of Sec. 24 of the Cr. P. C. The petitioner cannot have a say regarding appointment and functioning of the 2nd respondent as the public prosecutor or the same could be the concern of the persons belonging to the victims family.