DILIPBHAI CHHOTALAL DAVE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners in these two Special Criminal Applications are both accused persons in a case going on before the learned Additional Sessions Judge for the City of Ahmedabad. The case we are informed has commenced on August 18 1970 and it has been going on since then and involves according to the prosecution criminal misappropriation to the extent of Rs. 25 lakhs. It is the prosecution case that the accused entered into a conspiracy and did in pursuance of that conspiracy criminally misappropriate this amount from the funds of the Central Bank of India. The Bank has been joined as the second respondent in these two petitions.

(2.) The grounds which have been set out in the two petitions are the same and common arguments have been advanced in both the petitions. The petitioners case in Special Criminal Application No. 8 of 1971 is that this criminal case was instituted against the accused as a result of the first information report given by the Internal Auditor J. M. Mistry of the Central Bank to the Police Department of Ahmedabad. The complainant was in the witness-box from 18th August 1970 to 21st January 1971 and after 21st January till the filing of this Special Criminal Application the prosecution has examined about 116 witnesses and according to the list of witnesses 124 witnesses for the prosecution are yet to be examined. The petitioners grievance is regarding an order passed by the learned trial Judge on an application presented by the accused in the course of the trial. The application challenged the appointment of the Special Prosecutors who have been appointed by the Government under sec. 492(1) of the Code of Criminal Procedure to conduct this particular case in the City Sessions Court at Ahmedabad. The application is Ex. 3039 on the record of the case and was filed on March 25 1971 By the said application the petitioner herein requested the trial Judge to stop the trial of the Sessions Case in the interests of justice and to pass suitable order for the appointment of a new Public Prosecutor. His contention in the application Ex. 3039 was that he had reliable information that the Special Public Prosecutor and the Special Assistant Public Prosecutor were to be paid per day by the Central Bank and the Special Public Prosecutor throughout the trial of the case in the Court Room was taking detailed instructions from one S. M. Shah Internal Auditor of the Central Bank. It was alleged in the said application that the Public Prosecutor was utilising the services of the Bank Van and the car of the Chief Agent for the purpose of coming to Court and for going home and this was seen many times by the applicant-accused. It was further alleged in the said application that the overall attitude of the Public Prosecutor was of such a nature that the accused apprehended that the Public Prosecutor was not taking a detached view of the case and that he was making all efforts to secure conviction any how rather than putting the case fairly before the Court The accused contended that he seriously apprehended that he was not likely to get justice if there is not a Public Prosecutor representing the State but a Public Prosecutor who is interested in the Central Bank of India which was the complainant in the case. Against this application by Ex. 3040 the Special Public Prosecutor had put in his reply and after hearing both the sides the learned trial Judge passed an order on March 29 1971 rejecting the application. The learned Judge in para 7 of the Order observed:-

(3.) In order to appreciate the contentions we may set out here in extenso the relevant portions of the Notification issued by the Government of Gujarat on April 19 1969 The Notification is in these terms:-