N.N. Shibu vs State of Kerala

M. Sasidharan Nambiar, J.—By Exhibit P3 notification dated 25.09.2007, Government appointed Sri. K.P. Rajeevan, Advocate, Ernakulam as Special Public prosecutor for the conduct of prosecution in S.C. No. 357/2004 on the file of Sessions Court, Ernakulam. The explanatory note to the notification shows that Government considered it necessary to appoint Sri. K.P. Rajeevan, Advocate, who is having the requisite qualification for being appointed as Special Public Prosecutor, to conduct the said case. Evidence in the case was partly recorded. At that stage Exhibit P4 order was passed on 23.05.2008, cancelling the appointment of Sri. K.P. Rajeevan with immediate effect. This petition is filed under Article 226 of Constitution of India for a writ of mandamus directing the respondent to permit Sri. K.P. Rajeevan to continue as Special Public Prosecutor and to declare that he is entitled to continue with the conduct of the prosecution in S.C. No. 357/2004.

Director General of Prosecutions filed a statement, which discloses that one K.K. Sivan submitted a representation before him revealing that he is the eleventh accused in S.C. No. 357/2004 and a counter case was registered as Crime No. 74/2001 of Piravom Police Station and a special Public Prosecutor was not appointed in that case because of political influence and a Special Prosecutor is appointed in S.C. No. 357/2004. A copy of the petition filed before the Additional Chief Secretary, Home and Vigilance Department against the appointment of Special Public Prosecutor was also produced before him. It is also stated that on a perusal of the averments in the petition, Director General of Prosecutions was convinced that Special Public Prosecutor was appointed by the State without his recommendation and in violation of the Circular issued by Government of Kerala and therefore, he addressed the Additional Chief Secretary, along with the representation of Sivan, to cancel the appointment of Sri. K.P. Rajeevan and by Exhibit P4 order, his appointment was cancelled.

Learned Counsel, who appear for accused 14 and 15 in S.C. No. 357/2004, submitted that accused 14 and 15 filed an application to implead themselves as additional respondents and the case is unnecessarily being protracted before the Sessions Court and a direction be issued to dispose the case expeditiously. As the presence of accused 14 and 15 is not necessary to decide the question involved in the case, it is not necessary to implead them as additional respondents. Hence, the application to implead accused 14 and 15 as additional respondents is dismissed.

It is under Exhibit P2 order, Government appointed Sri.K.P. Rajeevan as Special Public Prosecutor to conduct the prosecution in S.C. No. 357/2004. The explanatory note to Exhibit P3 notification establishes that Government considered it necessary to appoint Sri. K.P. Rajeevan and found him having the requisite qualification and therefore, he was appointed. Though, by Exhibit P4 order, the appointment was later cancelled, the reason for cancellation is not shown in Exhibit P4 order. Exhibit P4 order does not disclose that Sri. K.P. Rajeevan was found to be not qualified or incompetent to be appointed as Special Public Prosecutor or that he is not conducting the case properly. The statement filed by Director General of Prosecutions reveals that the appointment was cancelled at his instance, as he received a representation from the eleventh accused that there is a counter case and in the main case a Special Public Prosecutor was appointed due to political influence and the said Special Public Prosecutor was appointed without consulting him and in violation of the Circular.

Exhibit R1(a) is the Circular issued by the Government on 25.03.1992, prescribing the guidelines to be followed while appointing a Special Public Prosecutor. The five guidelines read as follows:

(a) The appointment of Special Public Prosecutors will be permitted only in very exceptional circumstances, where the cases involved are highly sensational or have extensive public interest.

(b) The appointment will be made only after consultation with the District Collector/ Superintendent of Police concerned who will specifically express his view whether the appointment of Special Public Prosecutor is absolutely necessary to conduct the prosecution effectively.

(c) If the District Collector/Superintendent of Police is so satisfied, he will also forward to Government a letter from the Advocate proposed to be appointed as Special Public Prosecutor, indicating his willingness to conduct the prosecution on payment of regularisation fee prescribed in the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978.

(d) No private individual will be permitted to meet expenses connected with engagement of a Special Public Prosecutor.

(e) Requests for appointment of a Junior Counsel to assist the Special Public Prosecutor will not be entertained when the appointment is made u/s 24(8) of Criminal Procedure Code.

The guidelines do not provide that consent or opinion of the Director General of Prosecutions is mandatory for appointing a Special Public Prosecutor. Therefore, for the reason that consent or opinion of the Director General of Prosecutions was not sought for or granted before appointing Sri. K.P. Rajeevan as Special Public Prosecutor, his appointment could not have been cancelled. If the grievance is that in the counter case no Special Public prosecutor is appointed and at the same time a Special Public Prosecutor is conducting the main case, the better course should have been to appoint a Special Public Prosecutor in the counter case also. The unilateral cancellation of the appointment of Sri. K.P. Rajeevan, without any valid reason, is arbitrary and illegal. It can only be quashed.

Petition is allowed. Exhibit P4 order, cancelling the appointment of Sri. K.P. Rajeevan as Special Public Prosecutor to conduct the prosecution in S.C. No. 357/2004 on the file of I Additional Sessions Court, Ernakaulam, is quashed. It is declared that Sri. K.P. Rajeevan has to continue as Special Public Prosecutor in S.C. No. 357/2004 on the file of Additional Sessions Court, Ernakulam. Additional Sessions Judge is directed to dispose the case expeditiously.