VISHAL YADAV Vs. STATE OF U P

JUDGEMENT

(1.) The petitioner an accused of murder case crime no. 192 of 2002, Police Station Kavi Nagar district Ghaziabad, under Article 226 of the Constitution of India, has challenged the appointment of respondent no.4 as Special Public Prosecutor, under Section 24 (8) of the Code of Criminal Procedure (for short the 'Code') to conduct the Trial of the aforesaid case before the Additional Sessions Judge, Patiyala House Courts, New Delhi.

(2.) It is stated that by an order, the Apex Court on the petition of the complainant of the case directed transfer of the Sessions Trial from the Court of Sessions Judge, Ghaziabad to the Court of Additional Sessions Judge, Patiyala House Courts, New Delhi. The respondent no.1, while had assigned the job of prosecuting the trial earlier to one Public Prosecutor at Ghaziabad, it later on appointed the respondent no.4 as Special Public Prosecutor to conduct and prosecute the case when it was transferred from Ghaziabad to the Courts at New Delhi. The petitioner has taken several grounds for challenging the appointment of respondent no.4 as Special Public Prosecutor and stated that the respondent no.4 wrote a letter to the Secretary, Chief Minister for soliciting his appointment; that the appointment of respondent no.4 is not in accordance with the provisions of sub Section (8) of Section 24 of the Code as he lacked qualifications of the practice at Bar as an Advocate for a period of ten years and that his appointment was in contravention to the rules and regulations contained in Chapter VII of the U.P. Legal Remembrancer Manual. Para-7.08 of Chapter VII of the aforesaid Manual provides that no one would be eligible for appointment as State counsel after attaining the age of 62 years and the date of birth of respondent no.4 being 23.11.1936 had already attained the aforesaid maximum age of 62 years long before his present appointment under challenge. It is though provided under sub Section (9) of Section 24 of the Code yet no serving officer would be deemed to be in practice as an Advocate. It would be violative to the Advocates Act as well as Article 14 of the Constitution of India. Therefore, the enabling sub Section (9) as aforesaid could not be attracted in the case of present appointment of respondent no.4. The respondent no.4 had been in full time employment of the Central Bureau for Investigation as Legal Advisor/Public Prosecutor and he could not be deemed to be a practicing Advocate within the meaning of sub Section (8) of Section 24 of the Code. The petitioner has thus, contended that the aforesaid appointment of respondent no.4 as Special Public Prosecutor to conduct the case against the petitioner on behalf of the State of U.P. is wholly arbitrary and has been made on extraneous consideration. It being illegal and against the provisions of Section 24 (8) of the Code, should be quashed and a mandamus commanding the respondents should be issued by the Court that respondent no.4 be not treated as Special Public Prosecutor to appear and conduct the aforesaid criminal case before the Additional Sessions Judge, Sri S.N. Dhingra at Patiyala House Courts, New Delhi.

(3.) Learned counsel for the petitioner while arguing the matter before us, has in the first place challenged the appointment of respondent no.4 as Special Public Prosecutor in the said murder case on the ground that he does not possess requisite qualifications for such appointment under sub Section (8) of Section 24 of the Code. He is not an Advocate having experience of ten years practice as his enrolment as such with the Bar Council, Delhi was done only in the year 1994 when he laid his office of legal advisor with C.B.I, on his retirement. Learned counsel has also emphasized that the period during which the respondent no.4 worked as Legal Advisor/Public Prosecutor in the C.B.I, could not be counted even with the help of deeming clause of sub Section (9) to be a period spent in practice as an Advocate. The enabling clause of sub Section (9) of Section 24 of the Code would not legally be available in the matter of respondent no.4.