SHIVAJI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. Heard learned counsel for the parties finally, by consent. Present petitioners are the original accused persons who are challenging the Notification dtd. 30/9/2021 issued by respondent No.1 appointing respondent No.2 as a Special Public Prosecutor to conduct the Sessions Case bearing No.12 of 2020 before the learned Additional Sessions Judge, Newasa, District-Ahmednagar, which is filed against the petitioners. The petitioners are also challenging the order passed on 11/2/2022 below Exhibit-101 passed by the learned Additional Sessions Judge-2, Newasa in the said Sessions Case wherein they had taken objection for the appointment of respondent No.2.

(2.) The factual matrix leading to the petition, are that informant Ravindra Shankar Gosavi has filed the First Information Report vide Crime No.652 of 2019 with Newasa Police Station alleging that in all four accused persons have committed the offence of murder of Advocate Sambhaji Rajaram Take and Santosh Sundar Ghune by means of various weapons and also caused grievous injuries to other two persons. The said offence came to be registered under Ss. 302, 307, 341, 201, 324, 323, 504, 506 read with Sec. 34 of the Indian Penal Code. Informant Ravindra Gosavi had moved an application to assist the Public Prosecutor under Sec. 301 of the Code of Criminal Procedure through respondent No.2 and also moved an application for assist to Public Prosecutor in bail application by separate application when the matter was before the learned Additional Sessions Judge, Newasa. Respondent No.2 had filed Vakalatnama on behalf of the informant. Both the applications, i.e. application Exhibit-65 and 72 were allowed by the learned Additional Sessions Judge-2, Newasa on 26/7/2021 and permission was granted to file written arguments only after conclusion of evidence. Respondent No.2 had filed written notes of arguments and it is stated that she had also advanced the oral arguments before the trial Court, thereby she had taken active participation in prosecuting the case. However, later on informant has succeeded to get the appointment of respondent No.2 as Special Public Prosecutor and he has deposited the amount / fees towards respondent No.1 and then Notification regarding the appointment of respondent No.2 was issued by respondent No.1 on 30/9/2021.

(3.) The petitioners are objecting the appointment of respondent No.2 as Special Public Prosecutor on the ground that she had represented the original informant on the earlier stages by taking active part and therefore, as Public Prosecutor her conduct is prejudiced to the accused persons and would be with bias mind. The petitioners had, therefore, moved application Exhibit-101 before the learned Additional Sessions Judge for reconsidering the appointment of the Special Public Prosecutor. However, that application came to be rejected.