RAJENDRA NIGAM Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution of India, the petitioner challenges the order dated 21-9-95, by which the respondent No. 3 Shri Sharad Chandra Chaturvedi, Advocate has been appointed as a Special Public Prosecutor under Section 24(8) of the Code of Criminal Procedure for conduction of criminal case No. 169/94 (State of M. P. v. Rajendra Nigam @ Rajan Nigam).

(2.) The petitioner submits that criminal case No. 169/94 is pending in the Court of Shri P. C. Mishra, Judicial Magistrate First Class, Jabalpur for trial of the offence punishable under Section 498-A of IPC. The respondent No. 4 is the complainant in the said case. On report of respondent No. 4, the police registered the offence and on conclusion of the investigation filed the charge-sheet. The learned Judicial Magistrate, 1st Class framed the charges under Section 498-A of Indian Penal Code read with Section 3/4 of Dowry Prohibition Act. In the said case, the State was being represented by A.P.P. Shri Anupam Pathak. On 22-7-95, an application under Section 301(2) of the Code of Criminal Procedure was filed for appointment of the respondent No. 3 to assist the prosecution. The said application was allowed being unopposed. On 22-7-95 evidence of respondent No. 4 was recorded and the case was adjourned to 5-9-95. The case was adjourned to 1-11-95 at the request of the complainant. According to the petitioner, respondent No. 4 and her father approached respondents Nos. 1 and 2 to appoint respondent No. 3 as a Special Public Prosecutor under Section 24(8) of the Code of Criminal Procedure. The State conceding to the request of the complainant and her father, issued the order on 21-9-95 and appointed the respondent No. 3 as Special Public Prosecutor. The petitioner submits that appointment of Shri Sharad Chandra Chaturvedi, respondent No. 3 is per se illegal and contrary to the provisions of law. It is submitted by them that because of the appointment of respondent No. 3 they would not get a fair and impartial trial. Respondent No. 3 is interested in getting the petitioner convicted. It is also submitted that the respondent No. 3 has been appearing in other cases instituted against the petitioner by respondent No. 4, therefore, he would not be a fair prosecutor, but infact would be a prosecutor, to see that the petitioner is convicted. The petitioner submits that in Civil Suit No. 75-A/94 (Smt. Monisha Nigam v. Rajendra Nigam), the respondent No. 3 is appearing as a counsel for the complainant. The said civil suit is pending in the Court of Addl. District Judge, Jabalpur. Various other disputes are pending in the different Courts at the instance of the respondent No. 4 and in each of such dispute whether civil or criminal, the respondent No. 3 is representing the respondent No. 4. The petitioner submits that if respondent No. 3 is permitted to act as a Special Public Prosecutor, they would be denied a fair trial. It is also submitted that a Public Prosecutor is to be appointed under Section 24 of the Code, but under the provisions of Section 301 a person engaged by the private party can help and assist the Public Prosecutor or with the permission of the Court may submit written arguments after evidence is closed. The petitioner submits that appointment of the respondent No. 3 is neither fair nor proper and the same deserves to be quashed. The respondent No. 3 has sent a letter to the Addl. Registrar (Judl.) stating that he is a formal party, he is concerned only with the procedure which is apparent on the face of the record, the order of the appointment is available on the records, therefore, he be not insisted to file an affidavit. The respondent No. 3 does not say anything about the merits of the matter. The respondent No. 4 has filed the return inter alia pleading that the allegations made against the respondent No. 3 are malicious. It is submitted by respondent No. 4 that the respondent No. 3 is appearing in other cases, therefore, he has a better study of the case. The interest of respondent No. 3 in the case cannot be dubbed, as personal interest. Allegations, though are not specific against the A.P.P., but it is sought to be said that the A.P.P. could have brought out the truth more succinctly and in a better way by which the trial could have been fair and impartial. It is submitted by the respondent No. 4 that the respondents Nos. 1 and 2, after appreciating the facts in their true perspective, rightly passed the order appointing the respondent No. 3 as a Special Public Prosecutor. Regarding the pendency of the litigation and appointment of the respondent No. 3 as counsel for respondent No. 4 in various cases the facts have been admitted. It is submitted by respondent No. 4 that if the State is not able to discharge its functions fully for one reason or the other, the complainant has to suffer the consequences, therefore, appointment of respondent No. 3 is to advance the interest of justice. It is also contended that the parties cannot object to the appearance of particular counsel in a particular case if the State has allowed a particular lawyer to appear for the complainant because the accused has a liberty to be represented by a counsel of his choice. The respondents submit that respondent No. 4 is entitled to be represented by a Special Public Prosecutor so that her interest does not unnecessarily suffer.

(3.) It is not disputed that under Order Annexure 4 dated 21-9-95, the respondent No. 3 has been appointed as a Special Public Prosecutor with the condition that the fees shall not be paid to the respondent No. 3 by the Government.