NARAYANANKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) A fine gesture by a senior member of the Palghat Bar, the second respondent herein, has relieved the Court of the duty of pronouncing upon the validity of his appointment under Ext. P1 Government Order as Special Public Prosecutor to conduct the prosecution in Sessions Case No. 16 of 1980 on the file of the Court of Session, Palghat. His appointment is objected to by the accused in the Sessions Case as contrary to law and mala fide. He has gracefully withdrawn his consent for appointment; hence Ext. P1 order has become ineffective.

(2.) Third respondent herein, the brother of the deceased involved in SC No.16 of 1980, moved the Government for appointment of Special Public Prosecutor to conduct the case on the ground that the accused as well as the Public Prosecutor are sympathisers of a particular political party and that the Public Prosecutor did not discharge her duties properly in as much as she did not even oppose the bail application. However, it was not the Public Prosecutor, who appeared for the State in the Bail application; but it was the Additional Public Prosecutor, who did so. Whatever it be, the bail application was not opposed and the accused was let out on bail. On a reference by the Government to the District Collector, Palghat regarding the choice of the person to be appointed Special Public Prosecutor, the District Collector contacted the 3rd respondent, who suggested the appointment of the second respondent, a leading member of the Palghat Bar, as Special Public Prosecutor. It appears, second respondent gave a consent letter to the District Collector stating that it appointed as Prosecutor, he will not make any claim on the government. It was in acceptance of this letter that the Government came forward with Ext. P1 order appointing the second respondent as Special Public Prosecutor, without any financial commitment to the State. This original petition was filed challenging Ext. P1 order.

(3.) Normally, Sessions Cases before Sessions Courts are expected to be conducted by the Public Prosecutors appointed by the State Government under S.24 of the Code of Criminal Procedure (for short the 'Code'). Sub-section (8) of S.24 which spells out an exception to the general rule states that the Central Government or the State Government may appoint, for the purpose of any case or class of cases, a person, who has been in practice as an advocate for not less than 10 years, as Special Public Prosecutor. The legislative policy underlying sub-section (8) of S.24 of the Code is to preserve the interests of the State and to protect public interest in individual cases or class of cases; for that purpose power is vested in the Government to appoint Special Public Prosecutors in appropriate cases, where Public interest demands such a course. The Government in the instant case were satisfied that public interest justified the appointment of Special Public Prosecutor. The necessity or desirability of such appointment is not challenged in this original petition This is not to say that in every case where one of the parties involved is of a particular political persuasion, no Public Prosecutor, who shares the particular persuasion, should be allowed to conduct the prosecution. To accept such a state of affairs as an invariable rule would not only be contrary to sound practice, but would seriously offend the dignity of the Bar as such.