KURIACHAN CHACKO Vs. SECRETARY TO GOVERNMENT

JUDGEMENT

(1.) Petitioners are the accused in a crime, in which after investigation charge was laid against them under Section 3, 4 and 5 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978 {for short "the Act"} and Section 420 of the Indian Penal Code. The case is now pending trial, with evidence partly recorded. Ext. P7(2) order passed by the Government appointing 4th respondent as Special Public Prosecutor in the case is challenged, and the writ petition is to quash the same. A declaration that 4th respondent is ineligible to be considered for appointment as Special Public Prosecutor, and also forbearing the implementation of Ext. P7(2) order and handing over the records of the case to 4th respondent are also canvassed for. According to the petitioners/accused the crime was registered against them on the direction of the 3rd respondent, who was previously the Inspector General of Police, South Zone, Thiruvananthapuram. While the trial of the case proceeded and after a good number of witnesses were examined, under the instigation and influence of the 3rd respondent, Ext. P7(2) order has been passed to appoint 4th respondent as Special Public Prosecutor. The 3rd respondent has even named the advocate to be appointed as Special Public Prosecutor sending a communication to the Chief Minister, while he continued in a different post on deputation with no role to interfere in the conducting of prosecution of the case in which the trial has already proceeded considerably. Appointment of 4th respondent as Special Public Prosecutor is challenged as having been made in violation of the norms and rules applicable to the appointment of a prosecutor under Section 24 of the Code of Criminal Procedure {for short "the Code"}, and also for the reason that 4th respondent is ineligible and even disqualified from being appointed as Special Public Prosecutor in the case for more than one reason. He is a designated senior advocate who cannot act on behalf of any party and he has no right or authority to advise on evidence since it is forbidden by the rules and as such he cannot be appointed nor function as Special Public Prosecutor, contends the petitioners. Conduct and character of 4th respondent against whom more than on one occasion critical comments touching upon his integrity and fairness have been made by the High Court, is not above board, and on that ground also he is disqualified to be appointed as Special Public Prosecutor, is the case of the petitioners/accused to assail his appointment under Ext. P7(2) order.

(2.) A counter affidavit has been filed by the 5th respondent Assistant Commissioner of Police, Narcotic Cell, Ernakulam, who is the present investigating officer of the case. Refuting the allegations and imputations raised in the petition challenging the appointment of 4th respondent as Special Public Prosecutor, it is stated that the case involves collection of hefty amount to the tune of Rs. 450 crores from public in violation of the Act, and by cheating. The accused putting forth a facade of a scheme viz., "LIS Deepasthambham" made false promises that double the amount invested by purchasing lottery tickets would be provided to the investors, and duped them. Contrary to the scheme projected and in violation of the provisions the Act, the accused who collected hefty amount from the public using such ill-gotten wealth purchased land worth several crores and that too had been sold by them later to another at a much higher price. Extensive public interest is involved in the case since lot of innocent investors had been cheated with false promise and deprived of their valuable money. Further investigation of the crime was found necessary during the course of the trial and, therefore, an application was moved before the court under Section 173(8) of the Code informing and seeking permission to do so. None of the grounds raised in the writ petition to impeach the appointment of 4th respondent as Special Public Prosecutor is sustainable, according to the 5th respondent.

(3.) I heard learned Senior Counsel Sri. K. Ramakumar, who appeared on behalf of the petitioners, and learned Director General of Prosecutions Sri. Asif Ali, who appeared for respondents 1, 2 and 5.