TERA CHINNAPA REDDY Vs. GOVT. OF A.P.

JUDGEMENT

(1.) Can the Advocate of the defacto-complainant, who issued a legal notice to the accused earlier, be appointed as a Special Public Prosecutor to prosecute him in the very same case? This is the question which arises for consideration in this Writ Petition.

(2.) The petitioner, the Managing Director of a bulk drug manufacturing company, contested the 2009 general elections from Nagarjuna Sagar Assembly Constituency and lost to the 3rd respondent. In his writ affidavit, the petitioner states that the 3rd respondent sent signals asking him to stay away from active politics; several malicious calls were made to him by anonymous callers; strangers were found lurking around his residence; he submitted representations in September, 2010 to the police seeking personal security; he filed W.P.No.20230 of 2012 questioning the action of the respondents in not providing him police security; the said writ petition was disposed of on 20.07.2012 directing the respondents to consider his representations as per G.O.Ms.No.655, Home, dated 13.03.1997; his request for personal security was rejected because of the pressure brought by the 3rd respondent; the personal secretary to the 3rd respondent filed a complaint before the C.I.D Hyderabad, under Section 55- A(a)&(b) of the Information Technology Act and Sections 189 and 507 IPC, which was registered as Crime No.50 of 2012; he was arrested on 25.08.2012 and obtained bail from the VI Additional Chief Metropolitan Magistrate, Nampally, Hyderabad; the 3rd respondent, being a Minister, wielded power and started pressurizing officials to have his companies closed; the 3rd respondent issued notice dated 11.08.2012, through the 4th respondent, stating that he had made defamatory statements in the newspapers; in response thereto, he issued a reply notice through his counsel on 25.08.2012 denying the allegations; the said notice was issued, by the 4th respondent, in his individual capacity as a counsel for the 3rd respondent; due to the pressures brought by the 3rd respondent, G.O.Rt.No.2282 dated 27.11.2012 was issued appointing his counsel (the 4th respondent) as a special public prosecutor to conduct prosecution, on behalf of the Government, against him; he never made any statement as mentioned in the notice dated 11.08.2012; the 3rd respondent had misused his political power and had pressurized the Government to issue the G.O. appointing a special public prosecutor; there is no necessity for the State Government to appoint a public prosecutor to appear in a case between two private individuals to which the State is not a party; this is an abuse of the State exchequer; the 3rd respondent requested the government, vide letter dated 23.11.2012, to appoint the 4th respondent as a Special Public Prosecutor to prosecute the petitioner; heeding to his request, the government appointed the 4th respondent as a Special Public Prosecutor though he was a private advocate and had issued the legal notice on 11.08.2012, on behalf of the 3rd respondent, demanding unconditional apology from him; it is illegal to appoint a private advocate as a Special Public Prosecutor; the function of the public prosecutor is to assist the Court in adjudicating a dispute; there is reasonable apprehension in his mind regarding the independence of the 4th respondent as a special public prosecutor; it is not open to the complainant to name a person for being appointed as a special public prosecutor; the questions, whether or not it is necessary to appoint a special public prosecutor in a case, and, if so, the person to be appointed as such, all are matters in the prerogative of the State; the State cannot surrender its discretion to appoint a public prosecutor to the choice of an individual; from the impugned G.O., it is clear that the 4th respondent was appointed as a Special Public Prosecutor at the behest of the 3rd respondent as a private individual; the Government has not exercised its discretion as required under the Code; there is a regular public prosecutor in the Court; and no reasons were assigned in the impugned G.O. as to why he should be substituted by a Special Public Prosecutor, and that too by a person named by the 3rd respondent.

(3.) In the counter-affidavit, filed on behalf of the 1st respondent, it is stated that the impugned G.O, issued by the Government, is in accordance with law and is legally valid; there is no illegality or irregularity in the appointment of the 4th respondent as a Public Prosecutor; the said appointment was made by the Government in the exercise of its powers under Section 24(8) Cr.P.C; the offence of defamation under Section 499 IPC is punishable under Section 500 IPC; it is always the victim who has to institute proceedings against the accused, and the State has nothing to do with any such proceedings; however in the case of a person holding an office, enumerated under Section 199(2) Cr.P.C, when an offence falling under chapter XXI IPC is alleged to have been committed against him in respect of his conduct in the discharge of his public functions, the Court of Session may take cognizance of such offence, without the case being committed to it, upon a compliant in writing by the Public Prosecutor; such a complaint is required to be made within six months from the date of the offence; the 3rd respondent is a Cabinet Minister in the State of Andhra Pradesh and he has been, allegedly, defamed by the petitioner which is an offence under Section 499 IPC punishable under Section 500 IPC which falls under Chapter XXI IPC; the provisions of Section 199(2) Cr.P.C. is, therefore, attracted in this case; the 3rd respondent had placed before the Government all relevant documents i.e., newspaper publications, notice dated 11.08.2012 and the reply notice dated 25.08.2012 requesting it to prosecute the petitioner for the offence of defamation; the Government had examined the entire material and, after being satisfied of the genuineness of the request of the 3rd respondent, had issued G.O. Rt. No.2282 dated 27.11.2012 appointing the 4th respondent as a Public Prosecutor; accordingly the 4th respondent had filed a complaint in C.C. No.1 of 2012, in the Court of the Sessions Judge at Nalgonda, within the stipulated time; no prejudice has been caused to the petitioner, on the 4th respondent being appointed as a Public Prosecutor, more so as the petitioner owns all the statements made by him which were published in the newspapers, and such statements were reiterated in both the notices issued by the 3rd respondent and the reply notice of the petitioner; the burden of proof lies on the petitioner to substantiate the various allegations made by him against the 3rd respondent; once the Government is satisfied that it is a fit case to accord sanction for prosecution of the petitioner, the expenditure incurred by the Government for such prosecution is not relevant as the Government is duty bound to act and protect the reputation of the 3rd respondent; the 4th respondent would be paid his fees as per the rules prescribed for conducting such proceedings; viewed from any angle, the impugned G.O. issued by the Government is in consonance with the law and is legally valid; the allegations, in the affidavit filed in support of the Writ Petition, are false, baseless and are, hence, denied; and the Writ Petition is devoid of merits.