ABOOBAKER Vs. M RATNA SINGH

JUDGEMENT

(1.) Petitioner seeks to quash the appointment of third respondent as Director General of Public Prosecutions. A writ of 'mandamus' to appoint another Special Prosecutor in the place of third respondent to conduct S.C.10/91 on the file of the Court of Session, Manjeri is also sought. By an amendment to the writ petition, a writ of quo warranto is sought to call upon third respondent to show his title to hold the office of the Director General of Public Prosecutions, D.G.P.P. for short.

(2.) Petitioner is the accused in S.C.10/91 on the file of the Court of Session, Manjeri Division. Petitioner stands trial for offences under Ss.302, 450 & 376 read with S.511 IPC, in that he is alleged to have trespassed into the house of deceased Sujatha, attempted to commit rape on her and caused her death during the course of the same transaction at or about 5p.m. on 2-9-1985. The case was investigated by the State Police and later by the Central Bureau of Investigation, pursuant to the direction issued by this court in O.P. 10677/87. Third respondent was appointed Special Prosecutor, to conduct the prosecution. While functioning as Special Prosecutor, third respondent was appointed Public Prosecutor in the High Court, by Ext. P-2 order dated 16-10-1991. By Ext. P-3 dated 25-10-1991, the Public Prosecutor was re-designated as Director General of Public Prosecutions. Petitioner has not produced the order appointing third respondent as Special Prosecutor, nor has he stated by whom the appointment was made. Presumably, the appointment was made by the Union of India, a respondent to the writ petition. At the instance of petitioner, Union of India was removed from the array of parties by orders on CMP 20510/91. To whom a direction is sought to remove third respondent and appoint another in his place, is not known.

(3.) Petitioner submits that third respondents is ineligible to hold the office of Public Prosecutor in the High Court, as he has crossed the age of sixty prescribed under R.14 of the Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978, called the 'Rules' hereinafter. R.14 was amended by Ext. P-4, omitting the restriction regarding age in the case of the Public Prosecutor. The amendment is challenged on the ground that there was no consultation with fifth respondent, Public Service Commission. According to petitioner, consultation is mandatory, by reason of Art.320 of the Constitution. Even, consultation with the High Court under S.24 of the Code of Criminal Procedure, is defective submits petitioner. Provisions of the Kerala Public Service Act, 1968, called 'the Act' hereinafter, also have been violated according to petitioner. He has yet another contention that a fair trial will be denied to him. The Special Prosecutor being the D.G.P.P. also, police witnesses will depose against him, apprehends petitioner.