K.M. YOUSUF Vs. STATE OF KERALA

JUDGEMENT

(1.) This is a Writ Petition filed by the petitioner challenging Ext.P7 order of the Government refusing to appoint Special Public Prosecutor on the advise of the Director General of Prosecution and seeking a direction to the first respondent to appoint the 5th respondent as Special Public Prosecutor under Article 226 and 227 of Constitution of India.

(2.) It is alleged in the petition that petitioner's wife was brutally murdered by one Muhammad Shihab and Ext.P1 Crime No. 505/2013 was registered by Adoor Police alleging offences under Sections 454, 397 and 302 of Indian Penal Code. After investigation, Ext.P2 Final Report was filed before the Judicial First Class Magistrate Court, Adoor. There was a public outcry over the murder. Since investigation was not conducted in a proper manner, an Action Council was also formed to insist for proper investigation of the crime. At the behest of the petitioner and his close relatives, application was preferred for appointment of 5th respondent as Special Public Prosecutor to prosecute the case. Government took necessary action and sought for the consent of the 5th respondent for appointing him as Special Public Prosecutor and 5th respondent also gave his consent. But, the Government, without conducting any independent enquiry, on the basis of the advise of the second respondent, the Director General of Prosecution, refused to appoint a Special Public Prosecutor in the case by Ext.P7 order. 5th respondent is a leading and eminent lawyer of Pathanamthitta District having vast experience in conducting several Sessions Cases. Further, public interest demands that a Special Public Prosecutor has to be appointed in a case like this. The Government has to conduct independent enquiry regarding the existence of a circumstance to appoint a Special Public Prosecutor in a case of public interest and it is not necessary for the Government to consult the Deputy Director of Prosecution for that purpose. So, Ext.t.P7, according to the petitioner is without application of mind of Government and the same is liable to be set aside. So, the petitioner has approached this court seeking the following reliefs:

(3.) Heard the Counsel for the petitioner and the learned Director General of Prosecution and also perused the file relating to the dispute.