Mrs. Dhamayanthi vs Muruganantham and Others

G.M. Akbar Ali, J.—Petition is filed seeking a direction to the learned Principal and District and Sessions Judge, Namakkal to appoint B.

Mohan, Senior Advocate, Bhavani, Erode District as a Special Public Prosecutor in SC No. 196/2003.

The case of the petitioner is that the petitioner is the defacto-complainant in the case and the 1st respondent is an advocate by profession and

their marriage was solemnised and a male child was born during the course of this wedlock. The petitioner belongs to S.C Community and the 1st

respondent hails from dominant caste and his parents forced him to desert the petitioner and got married one Parimala who is 8th accused in the

above said case. On questioning the illegal second marriage, the 1st respondent abused the petitioner by referring caste name and thus committed

offence under S.C/S.T Prevention of Atrocities Act 1989. The petitioner filed an application u/s 301 Cr.P.C to appoint some other competent

lawyer to prosecute the case. The learned trial judge adjourned the matter to 5.10.2010 for further proceeding and the said adjournment would

cause grave prejudice to the petitioner''s case. Hence the petitioner filed the above petition seeking for the above relief.

Heard both sides.

It is seen that the petitioner is the defacto-complainant in Cr. No. 966 of 2002 for the alleged offence punishable under Sections 3(1)(x) of S.C

and S.T. Act.

Under Rule 4(5) of SC/ST (P&A) Rules, 1995, the petitioner is entitled for engaging a Special Public Prosecutor. The rule reads as follows:

4(5) - Notwithstanding anything contained in Sub-rule (1) the District Magistrate or by the Sub-Divisional Magistrate may, if deem necessary or if

so desired by the victims of atrocity engage an eminent Senior Advocate for conducting cases in the Special Courts on such payment of fee as he

may consider appropriate

The learned Counsel for the petitioner submits that the petitioner being the victim of atrocity is entitled to engage an eminent Senior Advocate of

her choice for conducting the case in Special Court. The learned Counsel for the petitioner also pointed out that in similar case, this Court, in Crl.

O.P. (MD) No. 6025 of 2004, has considered the plea of the victim and has directed the District Magistrate to consider the representation of the

petitioner within a stipulated time. He further relied on yet another case reported in Smt. Satki Devi and Another etc. Vs. Tikam Singh and Others,

wherein the Rajasthan High Court has held as follows:

Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act (33 of 1989), Sections 15, 21 - Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Rules(1995), Rule 4(5) - Special Public Prosecutor to conduct cases - Appointment of - Rule 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 Rule 4(5) of Rules and Section 15 of the 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.

Under Rule 4(5), the District Magistrate or the Sub-Divisional Magistrate may engage an eminent Senior Advocate for conducting cases in the

Special Courts on such payment of fee as he may consider appropriate ""if so desired by the victim of atrocity"". The Rajasthan High Court has also

upheld such appointment and in similar circumstances, this Court has also directed the District Magistrate to consider such representation.

In Crl. O.P. No. 1717 of 2009 dated 12.8.2009, I have passed an order directing the District Magistrate to consider the representation of the

petitioner therein for engaging an advocate as Special Public Prosecutor to conduct the trial in S.C. No. 114/2005.

As per the rule, the District Magistrate is the competent authority to engage an advocate for conducting the cases in Special Courts on payment

of fee. Therefore it is just and appropriate to direct the District Magistrate viz., the Collector, Namakkal District to appoint an advocate as desired

by the victim for conducting the case pending before the Principal and District and Sessions Judge, Namakkal.

In the result, the criminal original petition is allowed. The District Collector, Namakkal is directed to engage the advocate, as desired by the

victim to conduct the case pending before the learned Principal and District and Sessions Judge, Namakkal in S.C. No. 196/2003.