(1.) The instant writ petition has been filed for quashing the order dated 13-9-2001 (Annex. 1) passed by the respondent No. 1 under sub-section (8) of Sec. 24 of the Code of Criminal Procedure (hereinafter referred to as the "CrPC") appointing respondent No. 3 as a Special Public Prosecutor on the application of respondent No. 2 complainant in a criminal case.
(2.) The facts and circumstances giving rise to this case are that the petitioners are facing criminal trial for offence punishable under Sec. 302, IPC etc. The respondent No. 2-complainant (brother of the deceased) filed an application before the respondent No. 1 that Public Prosecutor in the Sessions Court would not be able to conduct the trial for being very busy and hence the State should appoint respondent No. 3 as Special Public Prosecutor on his expenses. Respondent No.1 passed the impugned order dated 13-9-2001 (Annex. 1) appointing respondent No. 3 as a Special Public Prosecutor. Petitioners filed an application before the learned Sessions Judge, Jodhpur for quashing of the said appointment order dated 13-9-2001 (Annex. 1) but the same has been rejected vide order dated 4-10-2001 (Annex.3) on the ground that he lacks the competence to quash such order and the appropriate relief may be granted only by a Writ Court. Hence, this petition.
(3.) Shri Mahesh Bora, learned counsel appearing for the petitioners has raised the issue of competence of the State to appoint Special Public Prosecutor at the expenses of the complainant for the reason that in such a case the Special Public Prosecutor would act a persecutor rather than prosecutor. Moreso, even if appointment of the Special Public Prosecutor is considered to be necessary, the respondent No. 1 should have passed a speaking and reasoned order explaining the circumstances under which such appointment was found necessary to be made.
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