In Re : Madhabendu Ganguly

Mr. Joymalya Bagchi, J. - It is submitted that one Bidyut Roychowdhury, learned Counsel, appointed as the Special Public Prosecutor in respect of the Special Court in the district of Birbhum is illegally conducting the trial pending before the Special Court at Berhampore in the district of Murshidabad.

Mr. Roy, learned senior Counsel appearing for the petitioner submits that the aforesaid Counsel had not been appointed as a Special Public Prosecutor for the Special Court at Berhampore and therefore he is not empowered to conduct the trial.

Learned Counsel appearing for the State, relies on a notification wherefrom it appears that Mr. Roychowdhury, learned Counsel has been appointed as a Special Public Prosecutor under Section 24(8) of the Code of Criminal Procedure to conduct the said prosecution. The notification is kept with the record.

Mr. Sanyal, learned senior Counsel appearing for the victim/complainant also supports the submission of the learned lawyer for the State.

It is true that Section 32 sub Section (1) of P.O.C.S.O. Act provides for appointment of Special Public Prosecutor by the State Government by way of notification in the official gazette for every Special Court for conducting cases under the aforesaid Act in the said Court. Sub Section (2) provides for the qualification of such Public Prosecutor viz. a Counsel who is in practise for not less than seven years. It is also provided under sub Section (3) of the said provision that such Special Prosecutor shall be deemed to be a prosecutor under Section 2(u) of the Code of Criminal Procedure. It is true that a special statute overrides the general law to the extent of its repugnancy. In view of the scope and ambit of Section 32 of the said Act as aforesaid, I am unable to hold that the said provision eclipses the power of the State Government in appropriate cases under Section 24(8) of the Code of Criminal Procedure to appoint a Special Public Prosecutor for conducting trial before a Special Court. I am further fortified to hold as such in the light of the fact that the Special Public Prosecutor appointed under Section 32 of the Act is to be deemed to a Public Prosecutor under Section 2(u) of the Code of Criminal Procedure. Hence there cannot be any embargo on the State Government to appoint a Special Public Prosecutor under Section 24(8) of the Code of Criminal Procedure to conduct trial under P.O.C.S.O. Act before a Special Court in addition to any prosecution appointed for such Court under Section 32 of the Act. It is not disputed that Mr. Roychowdhury has sufficient experience to be appointed as a Special Public Prosecutor either under Section 32 (1) of the P.O.C.S.O. Act or under Section 24(8) of the Code of Criminal Procedure. Hence, I am of the opinion that appointment of the said Counsel as a Special Public Prosecutor does not cause any prejudice to the petitioner in the instant case. In view of the aforesaid discussion, I am of the opinion that there is no illegality or irregularity in the matter of appointment of the Special Public Prosecutor in conducting the trial of the instant case.

Learned Trial Court is directed to conduct the trial as expeditiously as possible and conclude the same at an early date preferably within six months from the date of communication of this order without granting any unnecessary adjournment to either of the parties.

With the aforesaid observation, the application is disposed of.