SATKI DEVI Vs. TIKAM SINGH

JUDGEMENT

(1.) (Prevention of Atrocities) Act (33 of 1080). Ss. 15, 21 - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules (1995), R. 4(5) - Special Public Prosecutor to conduct cases - Appointment of - R. 4(5) provides for appointment of advocate of choice of victim of atrocity who is also in opinion of District Magistrate an eminent senior advocate - There is no conflict between R. 4(5) of Rules and 8. 15 of Act-Appointment of senior advocate as Special Public Prosecutor for conducting trial at instance of victim - Same cannot called in question without challenging vires of rule. Criminal P. C. (2 of 1974), Ss. 24. 225. The State no doubt, is the prosecutor and the prosecution in all cases and trial in all cases is to be conducted in the Court of Session by Public Prosecutor or Special Public Prosecutor, as the case may be, appointed by the Government but the SC & ST (Prevention of Atrocities) Act is a special statute which overrides any other law for the time being in force. Plea was raised that, the District Magistrate is empowered to appoint an advocate to plead the case of complainant but he has no power to appoint Special Public Prosecutor, and that the power to appoint Special Public prosecutor under S. 15 of the Act vests in the State Government which cannot be delegated. The Special Public Prosecutor appointed under Section 15 of the Act alone can conduct the case. It is true that sub-rule (5) does not lay down any qualification as to the minimum length of practice unlike S. 15 or sub-rule (1) of Rule 4 but, apparently, framers of the rule did not want to put any restriction on the choice of the victims of atrocity subject to the embargo that the person should be an 'eminent senior advocate' - a term used in sub-rule (1) of rule 4 as well. Thus, the advocate should be of the choice of victim of atrocity and also in the opinion of the District Magistrate/ Sub-Divisional Magistrate, an eminent senior advocate. There is no conflict between sub-rule (5) of Rule 4 and Section 15 of the Act. As indicated above, whether a Public Prosecutor is specified or an advocate is appointed under Section 15 of the Act or an eminent senior advocate is engaged under Rule 4(5), these appointments or engagements are for the purpose of conducting cases in Special Courts. The observation that sub-rule (5) of Rule 4 is limited to implementing the Act framed in the context of Section 21 (2) (iv) does not appear to be correct. Sub-rule (5) is part of the rule captioned as 'supervision of prosecution and submission of report' - referred to in clause (iv) of sub-section (2) of Section 21. However, on a! combined reading of the rule, it is manifest f that while sub-rules (1) to (4) contain provisions regarding supervision of prosecutions through panel prepared under sub-rule (1) and review of the performance of the prosecutors borne on the panel, sub-rule (5) is an independent provision with a non-ob- stante clause. Rules are always framed for effective implementation of the Act, but if sub-rule (5) is given a restricted meaning and it is held that the authority of the advocate engaged by the district Magistrate to conduct case is limited to assisting the Public Prosecutor as a second fiddle, it would frustrate the object of sub-rule (5) as it would deny the victim of atrocity the facility to have his case conducted by an advocate of his choice. The appointment of senior advocate under rule 4(5) of the Rules is not guided by the general provisions and the impugned appointment could not be therefore called in question, particularly without challenging the vires of the rule.

(2.) Respondent No.l, Tikam Singh, filed writ petition for quashing the order of the District Magistrate, Pali dated 16-6-2005 appointing Shri Mahesh Bora as advocate to conduct the trial in Sessions Case No. 85/2005 arising from FIR No. 36/2005 of Jaitaran Police Station, and the order of the Special Judge SC & ST Cases, Pali dated 30-9-2005 rejecting his (Tikam Singh's) application challenging the competence of Shri Mahesh Bora to conduct the trial. The respondent also sought direction to restrain Shri Bora from appearing as Special Public Prosecutor in the case.

(3.) Sub-rule (5) of Rule 4 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short the Rules') empowers the District Magistrate /Sub-Divisional Magistrate to engage advocate to conduct cases in special Courts with respect to the offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in'short 'the Act') on request of the victims of atrocity. It was in exercise of the said power that the District Magistrate, Pali appointed Shri Mahesh Bora to conduct the aforesaid case. By the judgment impugned, the learned single Judge held that the appointment of Shri Mahesh Bora was not in accordance with law and accordingly quashed the order dated 16-6-2005 but with liberty to the District Magistrate to pass fresh orders on the application of the complainants. Feeling aggrieved, both complainant and the State have come in appeal.