K V SHIVA REDDY Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE petitioner has challenged in this writ petition the appointment of the second respondent as Special Public Prosecutor for conducting the case in the Court of the Additional Sessions Judge, Kolar, in S. C. No. 239 of 2004 connected with S. C. No. 214 of 2004 in Crime No. 4 of 2003 registered by the Gownapalli Police, Srinivasapura Taluk, Kolar district.

(2.) THE case of the petitioner is he is arrayed as the first accused and he is facing trial in S. C. No. 239 of 2004 for the offences punishable under Sections 120-B, 143, 144, 147, 148 and 302 read with Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of atrocities ) Act, 1989. He contends that earlier in the said case the State was represented by a Public Prosecutor attached to the Department of prosecution, Government of Kamataka. When the second respondent entered his appearance in the case he made enquiry and came to know that by the impugned order he is appointed as a Special Public prosecutor. The said appointment is made on the basis of a representation given by Smt. Surya Kalavathi, the wife of deceased shama Shankara Reddy to the Law Minister who had written a note on the very same representation calling upon the Law Secretary to appoint a Special Public Prosecutor on the condition that the applicant should bear the expenses. Smt. Surya Kalavathi in the said representation has not given any reason as to the necessity of appointment of a Public prosecutor and why the Public Prosecutor who was already appearing in the case was required to be replaced. Along with the representation the applicant has enclosed a consent letter of the second respondent. Therefore, the Law Minister has mechanically directed the Law secretary to appoint a Special Public Prosecutor on the mere asking of smt. Surya Kalavathi without in the least considering whether it was justifiable, necessary or warranted in the given situation to appoint a special Public Prosecutor. The order directing the applicant to bear the expenses is ex facie illegal and without jurisdiction. The said appointment has subjected him to manifest injustice and grave hardship inasmuch as the case of the State against the petitioner has now turned out to be a private litigation between Surya Kalavathi and the petitioner. The entire prosecution launched by the State in now represented by a Prosecutor who is paid by a private litigant and who is not a public servant. Second respondent would not be impartial or fair to both sides in the presentation of the case. The Special Public Prosecutor has to be paid from the State exchequer and not by private parties and therefore he has sought for quashing of the said appointment.

(3.) TO the petition the petitioner did not make the said Smt. Surya kalavathi a party. She filed an impleading application which was allowed by this Court. She has filed a statement of objections contending that this petition is liable to be dismissed on the ground of delay and laches as the impugned order is challenged 18 months after the order was passed. Immediately after the passing of the order the second respondent appeared before the Sessions Judge, Kolar, and has filed power and thereafter he has been continuously appearing before the court. He also appeared in Criminal Miscellaneous No. 214 of 2003 on the file of the Sessions Court, Kolar, filed by the petitioner seeking bail and opposed the bail application and the said application came to be rejected and, therefore, the petitioner has acquiesced with the appointment of the second respondent. It was also contended that accused has no locus standi to challenge the appointment of the second respondent as Special Public Prosecutor, as he has no say as to who should conduct the prosecution against him. She further contended the government terminated the services of the second respondent by an order dated 27--8-2004 which was challenged by her before this Court in w. P. No. 41301 of 2004. The said writ petition was allowed and the order of termination was set aside restoring his order of appointment. The petitioner has suppressed this material fact and as such the petitioner has not come to this Court with clean hands. It is only after the aforesaid order passed by this Court the present writ petition is filed and stay of the operation of the order appointing the second respondent is obtained. She contends the case in question involves serious crimes. Having regard to the complex nature of the case requiring special study and also the fact that the accused are influential persons, Government thought it fit to appoint respondent 2 as Special Public Prosecutor. The same appears to have been done after consulting concerned authorities. Since the offences include offence under the provisions of the Scheduled castes and Scheduled Tribes (Prevention of Atrocities) Act, it is mandatory in law to appoint a Special Public Prosecutor. The government Order in question has been passed after following the procedure prescribed by law and there is no infirmity in the same.