JIGNESH P. Vs. STATE OF KERALA

JUDGEMENT

(1.) APPOINTMENT of the second respondent as the Special Public Prosecutor to conduct the prosecution of the case relating to Crime No.433 of 2012 of the Vadakara Police Station (otherwise known as T.P. Chandrasekharan case) and Crime No.233 of 2012 of the Chombala Police Station, Kozhikode and other auxiliary proceedings including the bail application before this Court and lower courts, is the subject matter of challenge. The main grounds of challenge are; absence of public interest, absence of any consultation in view of the mandate under Section 25A of the Cr.P.C; non satisfaction of the course and proceedings stipulated under sub-sections (4) and (5) of Section 24 Cr.P.C. and the non-desirability or suitability of the 2nd respondent, to be appointed as Special Public Prosecutor .

(2.) THE first petitioner is the 50th accused in Crime No.433 of 2012 of Vadakara Police Station, which stands committed for trial to the Sessions Court and is pending before the Addl. Sessions Judge (Marad cases), Kozhikode as SC. 867 of 2012. The second petitioner is a person, who was an aspirant to the post of Clerk in the Kasaragod District Co-operative Bank in the selection conducted in the year 1994, who, allegedly came to be sidelined, while giving appointment to some others, pursuant to the alleged conspiracy and manipulation of records by some Members of the Board of Directors of the Bank. The second respondent, who was a member of the Board of Directors, is stated as the 2nd accused in Crime No. 81 of 1995 of the Kasaragod Police Station registered in this regard under the relevant provisions of the IPC and the Prevention of Corruption Act; which is now pending before the Enquiry Commissioner and Special judge, Kozhikode as CC.28/2006. Alleging that the second respondent is a politically influential person and apprehending chance for denial of opportunity for a fair trial, (if the second respondent is permitted to conduct the prosecution as Special Public Prosecutor) in both the cases, the petitioners are before this Court challenging Ext.P3 order of appointment on various grounds.

(3.) MR . K. Ramkumar, the learned Sr. Counsel appearing for the petitioners asserted that no 'public interest' is involved in this case, to have appointed a Special Public Prosecutor. Ext.P3 is totally silent in this regard, which according to the petitioners, has been passed merely on the basis of the request made by the widow of the deceased. Such course has been heavily deprecated by Courts always, highlighting the necessity to have 'public interest'. It is stated that 'consultation' being mandatory to have anybody appointed as Prosecutor/Addl. Prosecutor, appointment of 'Special Public Prosecutor' is not a matter of exception. Reliance is sought to be placed on the decision reported in 1982 KLT 605 (Narayanankutty vs. State of Kerala and others), 2002 CRL.L.J. 1694 (Madhu Singh vs. State of Rajasthan) (Rajasthan High Court) 2005 CRL.L.J 3000 (K.V. Shiva Reddy vs. State of Karnataka) (Karnataka High Court ), 2008(2) KLT 941 (A.P)) (Paramjit Singh Sadana vs. State of A.P.) and of this Court in Shibu N.N. vs. State of Kerala (2010 (2) KLD 601). It is also highlighted that the second respondent, by virtue of being an accused in a Vigilance case, which is pending trial, is 'not a fit person' to be appointed as Spl. Public Prosecutor in a murder case and by virtue of the chances to have close association with the police officers at higher levels, there will not be any fair trial in both the cases.