RADHESHYAM Vs. STATE OF M P

JUDGEMENT

(1.) PETITIONER has preferred this Criminal Revision under Sections 397 and 482, Cr. P. C. challenging the order passed on 16-11-99 by the Addl Sessions Judge, Dhar by which the learned A. S. J. has held that Shri R. P. Shukla cannot prosecute this case as a Special Public Prosecutor but he can only assist to the Public Prosecutor or the Assistant Public Prosecutor under the provisions of Section 301 (2) of Cr. P. C.

(2.) THE brief facts of the case are that a S. T. No. 239/97, State of M. P. V. Yogendra @ Yogesh and Ors. , is pending before the I A. S. J. , Dhar. In this case Public Prosecutor and Addl. Public Prosecutor were prosecuting the sessions trial on behalf of the State upto 15-10-97. On 25-11-97 Shri R. P. Shukla, Advocate filed an application under Section 301 (2), Cr. P. C. before the A. S. J. and prayed that he be allowed to appear and assist Shri P. C. Jain, Addl. Public Prosecutor in the Sessions Trial because the Addl. Public Prosecutor is not prosecuting the case properly and working against the interest of prosecution. On this application no objection was conveyed by the Addl. Public Prosecutor and the application was allowed by the learned A. S. J. and Shri R. P. Shukla was permitted to assist the Public Prosecutor in the case and thereafter he was appearing and assisting in the trial. On 18-12-97 Shri Shukla filed a copy of the order issued by the Department of Law and Legislature, State of M. P. bearing No. 1 (C) 74/97/21-B (2) dated 1-12-97 regarding his appointment as a Special Public Prosecutor for conducting this case on behalf of the State and since then Shri Shukla was appearing and conducting the case. On 4-11-99 the respondents-accused persons filed an application before the Sessions Court stating therein that the appointment of Shri Shukla is illegal as he is interested in the complainant and he is also related with the complainant party. Therefore, he cannot prosecute this case on behalf of the State independently. The respondents-accused persons in support of their case cited the case of Prabhat Agrawal v. State of M. P. and Ors. [1999 (2) MPJR 276]. The learned A. S. J. after hearing both the parties on the application and also after hearing Shri Shukla allowed the objection of the respondents-accused persons on the ground that Shri Shukla is the father-in-law of the younger brother of complainant Radheshyam. Therefore, being an interested person he cannot prosecute the case independently. He is interested in the complainant party and the complainant party is keeping enmity on account of this. Therefore, it is not expected from him that he will discharge his duties independently as a Special Public Prosecutor. The learned A. S. J. by order dated 16-11-99 allowed the aforesaid objection and directed that Shri Shukla cannot act as a Special Public Prosecutor in this case being the close relative of the complainant but the learned trial Court directed that under the provisions of Section 301 (2) of Cr. P. C. Shri Shukla can assist the Public Prosecutor or the Assistant Public Prosecutor in the case. Shri Shukla has challenged this order before this Court in this Revision.

(3.) I have heard the learned counsel for the parties.