AJAY KUMAR Vs. STATE

JUDGEMENT

(1.) The petition under Section 482 of the Code of Criminal Procedure, by Ajay Kumar, raises the ques- tion as to the validity and propriety of appointment of an Advocate of an aggreived party as a Special Public Prosecutor in a Criminal trial. The following facts provide the backdrop.

(2.) Ajay Kumar, petitioner and certain other persons are facing trial in the Court of the Additional Sessions Judge on charges, inter alia, of murder of Mukesh on October 6, 1982 in the Palika Bazar Market. The aggrieved party who are said to be "rich, well-connected and influential", had engaged Bawa Gurcharan Singh, an eminent criminal lawyer, as their counsel to oppose the plea of the accused persons for bail as also to assist the prosecution in the conduct of the eventual trial. By a notification of May 5, 1983, Delhi Administration appointed Bawa Gurcharan Singh aforesaid as Special Public Prosecutor for conducting the case on behalf of. Delhi Administration at a professional "fee of Re. II- only as accepted by him, in his letter of April 18, 1983". One of the accused Sudhir Kumar was discharged by the learned Addl. Sessions Judge. The Administration challenged the order in this Court under Section 397 of the Code in criminal revision no. 145/83. This petition was filed on behalf of the Administration by the aforesaid Advocate. The impugned order of the learned Addl. Sessions Judge discharging Sudhir Kumar was set aside by this Court. While hearing the aforesaid petition, which was rather hotly contested, I got the impression that the. learned Counsel appearing for the Administration was not always able to keep his dual capacity as Special Public Prosecutor and a retained Counsel of the aggrieved party distinct. I also expressed my doubt as to the propriety of appointing a partisan Counsel as Special Public Prosecutor in a criminal trial. This is wht I said :

(3.) In a written reply to the present petition by Bawa Gurcharan Singh, who appeared for himself, as also for the Delhi Administration, to defend the validity of his appointment as a Special Public Prosecutor, an embarrassment which the Delhi Administration could have perhaps avoided if it had asked the Standing Counsel to appear for it, it was contended that the aforesaid observation were "uncalled for" as the question as to the propriety of the appointment as a Special Public Prosecutor was not canvassed in the earlier proceedings in this Court and there was, therefore, no occasion for the respondents to make their submission with regard to the question. It is no doubt true that in the earlier proceedings the only question was with regard to the validity of the discharge of and of the accused persons, who prima fade appeared to be at the centre of the controversy. There was, therefore, no doubt no occasion for me to consider the question of propriety of appointment in depth or to rule on it. These observations, however, did not purport to consider or to decide the question. These observations were made because in the context of a measure of exaggeration both in the contention on behalf of the Administration at the bar, as also in the contents of that petition, the affidavit in support of it, and the tenor of the language, used in them, a doubt lingered in my mind, while deciding the matter, that it was perhaps not proper to appoint a partisan counsel as a Special Public Prosecutor because a certain amount of objectivity and detachment was expected of a Public Prosecutor as a State functionary and, therefore, part of the judicature system which it may not be possible for a partisan Counsel to ensure in spite of his best effort. That only appeared to me to be a grey area apart from the provocation for the observations at the hearing to which I gave expression so that the question may perhaps be considered and decided in an appropriate case as a matter of principle apart from the situation that may obtain a particular case. Be that as it may, in these casual observations, petitioner, in the present proceedings, found a convenient springboard for further proceedings either with the bona fide object of a ruling on the propriety of the practice or with the ulterior object of either delaying the trial or eliminating from it the Special Public Prosecutor, who appeared to them to be comparatively more aggressive in the pursuit of the prosecution case at the trial. The appointment was made in May. 1983 and these observations were made on March 9, ,1984. The present petition was filed on October 27, 1984. Petition challenging the appointment prima facie, therefore, appeared to me to be belated. I, however, admitted the petition partly because it raised a question of principle and also because the observations of this Court itself contained a possible direction that the controversy could take. I, however, suspected the motive of the petitioner in raising the controversy at the belated stage when the trial was already in progress and, therefore, turned down the plea of stay of proceedings. It was, however, hoped that the matter would be decided at an early date but the nature of the point raised, the appearance of eminent Counsel on both sides, and the anxiety to hear the learned Counsel on the various facets of the concept of a fair trial at length resulted in a rather protracted trial of the petition.