POONAMCHAND JAIN Vs. STATE OF M P

JUDGEMENT

(1.) INVOKING the extra ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issue of writ of certiorari for quashment of order passed by the State Government vide Annexure-P. 1.

(2.) THE fact as have been depicted are that the petitioner along with some other family members was charge sheeted in respect of offences punishable under Sections 302, 498a and 304b/34 of the Indian Penal Code (in short 'the I. P. C) in Crime No. 81/2000 pending before the learned chief Judicial Magistrate, Shahdol. It is averred in the writ petition that the deceased Jyotsna was married to the son of the petitioner and she expired on 28-1-2000 under unnatural circumstances. The further allegation of the prosecution is that said Jyotsna was illtreated for demand of dowry and death had occurred due to asphyxia caused by strangulation. On the basis of the said allegations criminal law was set in motion by the parents and brother of the deceased. The petitioner along with his family members were arrested. When the matter stood thus the brother of the deceased submitted an application on 2-2-2000 before the District Magistrate, Shahdol, the respondent No. 2 herein, for appointment of a Special Public Prosecutor for conducting the case and expressed his willingness to pay the fees of such Special Public Prosecutor. On the basis of the aforesaid application the District Magistrate vide Annexure P. 2 appointed the respondent No. 3 as the Special Public Prosecutor. It is further averred that on the basis of the aforesaid order the respondent No. 3 appeared before the learned Sessions Judge on behalf of the State and vehemently opposed the bail application preferred under Section 439 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') filed by the co-accused Kumari Sonal Jain, an unmarried girl. The learned Sessions Judge permitted the respondent No. 3 to conduct the case on behalf of the State and rejected the application as per Annexure P. 3. It is set forth in the writ petition that the District Magistrate as well as respondent No. 3 realised that the District Magistrate had no jurisdiction under Section 24 (8) of the Code to appoint a private counsel as a special Public Prosecutor and accordingly the respondent No. 2 moved the State Government for appointment of respondent No. 3. a lawyer of the choice of the complainant as Special Public Prosecutor. The State Government accepted the recommendation and by order dated 1-7-2000 appointed Shri Deep Narain Pathak, respondent No. 3, as the Special Public Prosecutor. It is urged in the writ petition that the appointment of respondent No. 3 is unjust and improper and suffers from the vice of non-ascribing of reason. It is also put forth that the complainant is entitiled to engage a private advocate of his choice as per the provisions enshrined under Section 301 (2) of the Code but at his instance the State Government without special reasons could not have appointed respondent No. 3 to conduct the sessions trial. It has also been averred that as per the M. P. Zila Yojana Samiti Adhiniyam, 1995 the power under Section 24 of the Code to appoint Public Prosecutor and Additional Public Prosecutor has been delegated to the President of Zila Yojana Samiti, a nominated Minister of the State Government (who has also exercised jurisdiction in appointment of Public Prosecutor and Additional Public Prosecutor) and, therefore, the present appointment contained in Annexure P. 1 by another Authority is sensitively susceptible.

(3.) A counter affidavit has been filed by the respondents 1 and 2 that the Collector moved the State Government for appointment of Special Public Prosecutor and the recommendation of the Collector was accepted in view of the special circumstance obtaining in the case. It is put forth that the State Government has unfettered right to appoint Special Public Prosecutor as per Section 24 (8) of the Code read with Rule 30 of M. P. Law Department Manual. It is averred in the affidavit that the State Government is not required to assign any reasons for appointment of Special Public Prosecutor in the order of appointment itself. In justification of the appointment it has been pleaded that the State Government after receiving the recommendations for appointment of Special Public Prosecutor in the case considered the matter objectively and called upon the Collector to narrate special circumstances that may warrant appointment of Special Public Prosecutor and on consideration of the correspondence dated 31-5-2000 of the District Magistrate the State Government came to the conclusion that it. was a fit case where an appointment of Special Public Prosecutor was warranted and accordingly appointed respondent No. 3 who is an experienced lawyer.