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P.G. Narayanankutty Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1982CriLJ2085
AppellantP.G. Narayanankutty
RespondentState of Kerala and ors.
Excerpt:
- - 16 of 1980, moved the government for appointment of special public prosecutor to conduct the case on the ground that the accused as well as the public prosecutor are sympathisers of a particular political party and that the, public prosecutor did not discharge her duties properly inasmuch as she did not even oppose the bail application. the government in the instant case were satisfied that public interest justified the appointment of special public prosecutor, the necessity or desirability of such appointment is not challenged in this original petition. 6. whenever the government are satisfied that, in a particular case or class of cases, appointment of a special public prosecutor is necessary, they must not only so appoint but also bear the financial burden involved in the..........before sessions courts are expected to be conducted by the public prosecutors appointed by the state government under section 24 of the criminal p. c. (for short the 'code'). sub-section (6) of section 24 which spells out an exception to the general rule states that the central government or the state government may appoint, for the purpose of any case or class of cases, a person, who has been in practice as an advocate for not less than 10 years, as special public prosecutor. the legislative policy underlying sub-section (6) of section 24 of the code is to preserve the interests of the state and to protect public interest in individual cases or class of cases, for that purpose power is vested in the government to appoint special public prosecutors in appropriate cases, where public.....
Judgment:
ORDER

U.L. Bhat, J.

1. A fine gesture by a senior member of the palghat Bar, the second respondent- herein, has relieved the Court of the duty of pronouncing upon the validity of his appointment under Ext. P-1 Government Order as Special Public Prosecutor to conduct the prosecution in Sessions Case No, 16 of 1980 on the file of the Court of Session, palghat. His appointment is objected to by the accused in the Sessions Case as contrary to law and mala fide. He has gracefully withdrawn his consent for appointment; hence Ext. P-1 order has become ineffective.

2. Third respondent herein, the brother of the deceased involved in S. C. No. 16 of 1980, moved the Government for appointment of Special Public Prosecutor to conduct the case on the ground that the accused as well as the Public Prosecutor are sympathisers of a particular political party and that the, public Prosecutor did not discharge her duties properly inasmuch as she did not even oppose the bail application. However, it was not the Public Prosecutor, who appeared for the State in the bail application; but it was the Additional Public Prosecutor, who did so. Whatever it be, the bail application was not opposed and the accused was let out on bail. On a reference by the Government to the District Collector, Palghat regarding the choice of the person t0 be appointed Special Public Prosecutor, the District Collector contacted the 3rd respondent, who suggested the appointment of the second respondent, a leading member of the Palghat Bar, as Special Public Prosecutor. It appears, second respondent gave a consent letter to the District Collector stating that if appointed as prosecutor, he will not make any claim on the Government. It was in acceptance of this letter that the Government came forward with Ext. P-1 order appointing the second respondent as Special Public Prosecutor, without any financial commitment to the State. This original petition was filed challenging Ext. P-l order.

3. Normally, Sessions Cases before Sessions Courts are expected to be conducted by the Public Prosecutors appointed by the State Government under Section 24 of the Criminal P. C. (for short the 'Code'). Sub-section (6) of Section 24 which spells out an exception to the general rule states that the Central Government or the State Government may appoint, for the purpose of any case or class of cases, a person, who has been in practice as an advocate for not less than 10 years, as Special Public Prosecutor. The legislative policy underlying Sub-section (6) of Section 24 of the Code is to preserve the interests of the State and to protect public interest in individual cases or class of cases, for that purpose power is vested in the Government to appoint Special Public prosecutors in appropriate cases, where Public interest demands such a course. The Government in the instant case were satisfied that public interest justified the appointment of Special Public Prosecutor, The necessity or desirability of such appointment is not challenged in this original petition. This is not to say that in every case where one of the parties involved is of a particular political persuasion, no Public Prosecutor, who shares the particular persuasion, should be allowed to conduct the prosecution. To accept such a state of affairs as an invariable rule would not only be contrary to sound practice, but would seriously offend the dignity of the Bar as such.

4. It is unfortunate that Public Prosecutors and Additional Public, Prosecutors in the State are, so ill paid that the posts do not always attract talented lawyers. There is also a feeling - it is not for me to say to what extent it is justified - that merit, talent and experience are not always the criteria behind appointments made to these posts. The prosecutors, in the discharge of their duties, have to face talented and experienced members of the Bar. Complaints are not rare that at times the prosecutors suffer from serious handicap. Public confidence in the institution may be shaken. At times, confidence of the Government may also be shaken. Yet, earnestness in making these posts, which are sensitive posts in the field of administration of criminal justice, attractive or in making proper choice of personnel seems to be lacking. This has to some extent affected the dignity and status of the office of the Public Prosecutor.

5. The State has the responsibility of providing the infrastructure for prosecution of offenders. In cases of grave offences, the responsibility of the State is much more. It is the duty of the State to provide required number of courts, number of posts necessary to man the courts and also sufficient, number of Prosecutors of calibre and experience to conduct prosecution in a befitting manner so to generate and sustain public confidence in the administration of criminal justice.

6. Whenever the Government are satisfied that, in a particular case or class of cases, appointment of a Special Public Prosecutor is necessary, they must not only so appoint but also bear the financial burden involved in the appointment. The Government, either in the appointment of the Public Prosecutor or in the appointment of the Special Public Prosecutor, are not justified in abdicating their responsibility to meet the financial commitment. It is really surprising that the Government in this case agreed that the Special Public Prosecutor is to be paid not by the State, but by a private individual. This could have been done only by disregarding the role which the Public Prosecutor, be he a Prosecutor appointed for a term or Special Public prosecutor appointed for a case or class of cases, has to perform in the conduct of the Sessions Cases. The Prosecutor is, so to say, an officer of the Court expected to assist the court in arriving at the truth in a given case. The Prosecutor no doubt, has to vigorously and conscientiously prosecute the case so as to serve the high public interest of finding out the truth and in ensuring adequate punishment to the offender. At the same time, it is no parti of his duty to secure by fair means or foul conviction in any case. He has to safeguard public interest in prosecuting the case; public interest also demands that the trial should be conducted in a fair manner, heedful of the rights granted to the accused under the laws of the country including the Code. The Prosecutor, while being fully aware of his duty to prosecute the case vigorously and conscientiously, must also be prepared to respect and protect the rights of the accused.

7. Special Public Prosecutor, it is needless to say, cannot be appointed with a view to secure convictions at all costs. Special Public Prosecutor could be appointed only when public interest demands it and not to vindicate the grievances of a private person, such as close relation of the deceased. In order that he discharges his duties properly, he should look to the State for remuneration for his services; if he looks to a private party for his remuneration, his capacity and ability to perform his role as Public Prosecutor properly will be endangered. Government cannot appoint Special Public Prosecutor on such terms, abdicating their financial responsibility or directing him to receive his remuneration from any private individual or expecting him to work without remuneration.

8. Since the Government are already satisfied that this is a fit case for appointing Special Public Prosecutor, a direction is issued to the first respondent-State to appoint a suitable person as Special Public Prosecutor in the place of the second respondent to conduct Sessions Case No. 16 of 1980 on the file of the Sessions Court palghat within two weeks from the date of receipt of a copy of this judgment by the first respondent. The Sessions Judge, Palghat will not take up the Sessions Case 16 of 1980 for trial during a period of three weeks from to-day. This original petition is disposed of in this manner, but without costs.

Copies of this judgment will be sent to the first respondent and the Sessions Judge. Palghat, immediately.


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