MOHAMMAD SARTAJ Vs. STATE OF M P

JUDGEMENT

(1.) The petitioner along with some others is facing trial for commission of offences punishable under Sections 147, 148, 149, 37 and 120-B of the Indian Penal Code (in short 'the IPC) under Sections 25 and 27 of Arms Act and under Section 3/5 of the Explosives Substances Act, 1908 in Sessions Trial No. 681/2003. It is put forth in the petition that they were charge-sheeted for having committed murder of the deceased, namely, Akku @ Akbar Ali and as set forth, the deceased and his brothers have notorious criminal antecedents and the cases of the said persons are being defended by the respondent No. 4.

(2.) According to the writ petitioner with the efforts and initiation Rehman Ali, younger brother of the deceased the respondent No. 4 has been appointed as Special Public Prosecutor in respect of the session trial where the petitioner along with his father, brothers and uncles have been arrayed as accused. The appointment letter issued by the Department of Law and Legislative Affairs has been brought on record as Annexure-P/1. It is contended in the petition that the respondent No. 4 has defended Late Akku and his companions in number of cases viz. S.T. Nos. 778/2001, 89/2001, 523/97 and 360/2004. It is urged in the petition that the appointment of the respondent No. 4 is neither sound nor legal and does not meet requisite requirement as contained under Section 24(8) of the Code of Criminal Procedure [for brevity 'the Code'. It is the stand in the petition that engagement of a Special Public Prosecutor in a case has a different conception but the said concept has not been kept in view while appointing the respondent No. 4 as the Special Public Prosecutor. It has been pleaded that earlier on the petitioner had filed W. P. No. 2814/2004 assailing the appointment of the respondent No. 4 as Special Public Prosecutor and this Court vide order dated 9-9-2004 had granted liberty to raise objection before the trial Court first and thereafter the petitioner filed a detailed objection before the learned trial Judge challenging the appointment of the respondent No. 4. The said objection has faced rejection by the impugned order dated 8-10-2004 contained in Annexure-P/4 passed by the learned Additional Sessions Judge, Jabalpur.

(3.) A return has been filed by the respondent No. 4 contending, inter alia, that the petitioner should have filed an application under Section 482 of the Code of Criminal Procedure and not a writ petition. It is further put forth that the apprehension on the part of the petitioner is without any sub- stance and merely because of a copy has been sent to the brother of the deceased it does not flow from it that the respondent No. 4 has been appointed at the instance of the brother of the deceased. It is also asserted that the respondent No. 4 after his appointment filed an application under Section 319 of the Code and, therefore, the petitioner has preferred this petition knowing fully well that the respondent No. 4 would perform his duty as public prosecutor as law would warrant.