Rajam vs The Revenue Divisional Officer, Padmanabhapuram, Thuckalay, Kanniyakumari District; Chakkaravarthy, Sub-Inspector of Police, Vigilance and Anti-Corruption, Nagercoil, Kanyakumari District; The Secretary, Public(Law and Order-A) Department, Government of Tamil Nadu, Fort St. George, Chennai-9

S.M. Sidickk, J.—This is an application filed by the Petitioner Mrs. Rajam wife of late Joseph of Thattanvillai Veedu, Kunnathoor post, Kanyakumari District u/s 482 of Code of Criminal Procedure to direct the 3rd Respondent viz., the Secretary, Public (Law and Order -A) Department, Government of Tamil Nadu, Fort St. George, Chennai-9 to appoint a Special Public Prosecutor to conduct the prosecution case in S.C. No. 15/96 on the file of Additional Sessions Judge at Nagercoil in Kanyakumari District.

The material allegations in the affidavit of the Petitioner filed in support of this application are as follows: The Petitioner is a poor widow. She is the wife of late Joseph, who died due to torture by seven persons at the police station at Puthukadai on 23.7.1991. Thereafter an enquiry under the police standing order was conducted by the Revenue Divisional Magistrate, Padmanabhapuram, and on the basis of the enquiry report, the Government of Tamil Nadu in G.O. Ms. No. 1455 issued by the Public (Law and Order-A) Department dated 22.12.1992 directed the Collector of Kanyakumari District to launch criminal prosecution against seven persons including the 2nd Respondent herein, who is a Sub Inspector of Police, before the appropriate court. As a result a complaint was filed against the seven persons by the Revenue Divisional Officer, Padmanabhapuram and finally the case in S.C. No. 15 of 1996 was committed to the Sessions Court, Kanyakumari District at Nagercoil, and the accused were the charged under Sections 147, 323, 302 and 201 of I.P.C. The Judicial Magistrate No. II at Kuzhithurai in Kanyakumari District in Crl.M.P. No. 2660 of 1993 discharged the 2nd Respondent herein by his order dated 13.3.1995. Being aggrieved by the order, the Petitioner and the 1st Respondent herein filed a Revision petition u/s 397 of Code of Criminal Procedure before the Sessions Court at Nagercoil against the order of discharge passed by the learned Judicial Magistrate No. II at Kuzhithurai in Crl.M.P. No. 2660 of 1993, and the learned 1st Additional Sessions Judge in Crl.R.C. No. 64 of 1995 and 43 of 1995 allowed the Revision Petition and reversed the order of discharge. The case S.C. No. 15 of 1996 was transferred to the Additional Sessions Judge, Nagercoil for trial. Now the case in S.C. No. 15 of 1996 on the file of the learned Additional Sessions Judge, Nagercoil is pending trial and 60 witnesses are cited in the charge sheet and the prosecution witness Nos. 28, 41, 42, 43, 44, 51 and 39 are strangely the accused in the case. During the enquiry u/s 200 of Crl.PC the prosecution witness Nos. 52, 53, 54, 55, 56, 57, 58 and 60 turned hostile due to the influence of the accused persons. The said custodial death of the Petitioner''s husband is a clear case of violation of Article 21 of the Constitution of India. After the death of the Petitioner''s husband, the Petitioner moved this Court and filed two writ petitions, W.P. No. 9824 of 1992 and 9601 of 1992 praying for compensation and production of the report of the Revenue Divisional Officer. Both the writ petitions are pending for disposal. One of the main witnesses was not cited as a witness in S.C. No. 15 of 1996 on the file of Additional Sessions Judge, Nagercoil viz., the Sub-Collector Mr. Athulya Miora I.A.S., who conducted the Enquiry u/s 145 of Police Standing Orders. As the accused are the police officers and employees of the State Government they are in close relation and contact with the official witnesses. Moreover the Public Prosecutor in the instant case is having cordial working relationship with the Accused No. 6. The relation between the Accused No. 6, viz., the Sub-Inspector of Police Mr. Chakkravarthy and the Public Prosecutor was very cordial. The 2nd Respondent as Sub- Inspector of Police assisted the Public Prosecutor while discharging his duty as Sub-Inspector of Police in the Department of Vigilance and Anti-corruption and in other Criminal Cases. Some of the Defence witnesses are also included in the list of witnesses in the complaint filed by the 1st Respondent. The Petitioner entertained reasonable apprehension that the trial may not be conducted in a fair and reasonable manner because of the cordial working relationship between the Public Prosecutor and the accused No. 6 in S.C. No. 15 of 1996 on the file of the Additional Sessions Judge, Nagercoil, Kanyakumari District. If the same Public Prosecutor continued to appear and conduct the prosecution case, it may amount to the abuse of the process of the Court. Therefore to prevent the abuse of the process of the court and to meet the ends of justice this Court may direct the Government of Tamil Nadu to appoint a Special Public Prosecutor to conduct the prosecution case in S.C. No.15 of 1996 on the file of Additional Sessions Judge at Nagercoil. The Petitioner is left with no other alternative and effective remedy than to come before this Court u/s 482 of Code of Criminal Procedure.

None of the allegations in the Petitioner''s affidavit were denied by any one of the Respondents herein by filing a counter-statement.

The point that arises for determination in this case is as to whether the Petitioner is entitled to the relief prayed for and as to whether a direction has to be issued u/s 482 of Code of Criminal Procedure to the 3rd Respondent to appoint a Special Public Prosecutor to conduct the prosecution case in S.C. No. 15 of 1996 pending on the file of Additional Sessions Judge at Nagercoil?

Point:- According to the Petitioner, her husband was tortured by seven persons including the police officers at the police station in Puthukadai on 23.7.1991 and her husband died due to the torture of seven persons, and it is a custodial death, and it is a case of human right violation. The Government ordered an enquiry into the cause of the death, and the Sub Collector of Padmanabhapuram submitted an enquiry report and thereupon it came to light that that was a prima facie case for lodging criminal prosecution against seven persons of whom five are police constables and one is the Sub-Inspector of Police, and after consideration of the enquiry report of the Sub Collector of Padmanabhapuram along with the recomendation of the District Collector of Kanyakumari District, the Government passed G.O. Ms. No. 1455, Public (Law and Order-A) Department dated 22.12.1992 requesting the Collector of Kanyakumari District to take necessary action immediately to launch the criminal prosecution against the persons mentioned under the relevant sections of Indian Penal Code in appropriate forum having Jurisdiction, and the Government requested the Director General of Police to take departmental action against them simultaneously and to place all the above police personnel under suspension until further orders. Thereupon the Revenue Divisional Officer, Padmanabhapuram, who is the 1st Respondent herein, lodged a complaint against the said seven persons and one of the accused is Sub-Inspector of Police, who is the 2nd Respondent in this petition, and later the said complaint was taken on file and committed to the Sessions Court as Sessions Case No.15/96 pending on the file of the Additional Sessions Judge at Nagercoil. Meanwhile the Petitioner, who is the widow of the deceased Joseph, came to know that the accused of whom majority are the police officers are in close contact with the Public Prosecutor for Kanyakumari District who was having cordial working relationship with the 6th accused in S.C. No.15 of 1996, who is the S.I. of Police and who is the 2nd Respondent herein and the 2nd Respondent as the Sub-Inspector of Police, assisted the Public Prosecutor while discharging his duty, and so the Petitioner apprehended that the trial may not be conducted in a fair and reasonable manner. Thereupon she sent a representation through the State Legal Aid Board at Madras to appoint a Special Public Prosecutor to conduct the trial, and the said representation of the Petitioner is dated 18.10.1996, and the State Legal Aid Board at Madras with a covering letter dated 17.11.1996 addressed to the Secretary, Public Department, Government of Tamilnadu, Secretariat, Chennai-9 requesting the State Government to consider the request of the Petitioner to appoint a Special Public Prosecutor to conduct the trial in S.C. No.15/96 and a copy of the same was forwarded to the Law Minister of Tamilnadu Government. Then again the Secretary of the Rural Uplift Centre, Mary Bhavan, Thumpaly Irenipuram has sent a written representation dated 19.10.1996 to the Revenue Divisional Officer, Padmanabhapuram with copies marked to the District Collector of Kanyakumari District, the Hon''ble Chief Minister of Tamilnadu and the President of the State Legal Aid Board at Madras requesting to appoint a Special Public Prosecutor to conduct the case in S.C. No. 15/96 on the file of Additional Sessions Judge at Nagercoil, Kanyakumari District as the victim viz., the Petitioner herein, apprehended that the trial would not be conducted by the Public Prosecutor in a fair and reasonable manner since some of the accused happened to be the police officers. Then again on 8.11.1996 the Petitioner has sent another letter of request to the Secretary, Public Department, Government of Tamil Nadu at Madras requesting to appoint a Special Public Prosecutor. Notwithstanding the representations of the Petitioner to the State Legal Aid Board and of the special organisation under the name and style of "Rural Uplift Centre", Thumpaly, till now the 3rd Respondent has not complied with the request of the Petitioner to appoint a Special Public Prosecutor and therefore the Petitioner was constrained to file this application u/s 482 of Code of Criminal Procedure to issue necessary direction to appoint a Special Public Prosecutor to conduct the Prosecution case in S.C. No. 15/96 now pending on the file of Additional Sessions Judge at Nagercoil.

The learned Counsel for the Petitioner Mr. P.K. Rathinam contended that out of seven accused five are police constables and one is the S.I. of Police, who is the 2nd Respondent herein, and they are hand in glove with the Public Prosecutor of Kanyakumari District and he pointed out several irregularities committed in citing the prosecution witnesses in S.C. No. 15/96, and if the same Public Prosecutor was allowed to conduct the prosecution, then it may amount to abuse of process of the Court, and there will not be a fair trial and so in the interest of justice, it is just and necessary, that a Special Public Prosecutor has to be appointed to conduct the prosecution case in S.C. No. 15/96. In support of the above contention the learned Counsel for the Petitioner has drawn my attention to Section 24(8) of Code of Criminal Procedure which states as follows:

"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 learned Counsel for the petitioner also relied upon the decision of the Supreme Court reported in Sunil Kumar Pal Vs. Phota Sheikh and Others, wherein paras 9 and 10 the Supreme Court held as follows:-

"In the instant case the accused persons were defended by the Public Prosecutor, who earlier had the brief of the case with him In the above mentioned circumstances the trial court not be regarded as fair and just so far as the prosecution was concerned We would also direct that in order that there should be fair yet effective prosecution, the State Government should appoint a Senior Advocate practising on the criminal side in the City Civil and Sessions Court, Calcutta as Special Public Prosecutor in consultation with the Appellant and the complainant, and any suggestions made by the Appellant or the complainant shall be taken up into consideration in making such appointment."

The learned Counsel for the Petitioner has further drawn my attention to a Division Bench decision of our Madras High Court dated 23.6.1997 in Crl.R.C. No. 868 of 1996. In the said illustrious judgment of our Madras High Court dated 23.6.1997 in Crl.R.C. No. 868/96 relating to the violation of human rights, the learned Judges Justice Janarthanam and Justice M. Karpagavinayagam, JJ held in paras 129 and 130 laid down as follows:

"Section 31 of Protection of Human Rights Act of 1993 provides for specifying a Special Public Prosecutor for the purpose of conducting cases in HRCs. The power is vested in the State Government to specify by notification, a Public Prosecutor or appoint an advocate with seven years experience as Special Public Prosecutor for the purpose of conducting cases before HRCs. Thus an option is given to the Government to make such appointments. Such an option has to be exercised, keeping in view the object and purpose of PHRA. If an existing Public Prosecutor or Additional Public Prosecutor, appointed u/s 24 of the Code for conducting trial of Sessions cases is specified as a Special Public Prosecutor for the purpose of conducting cases in HRCs, and awkward situation may arise for him to prosecute the very same police agency, in charge of investigation of cognizable offences, when a complaint/information lodged by the accused/complainant against such agency for the alleged commission of Human Rights Offences, culminates in a final report u/s 173(2) of the Code. He cannot change his role and colour as a Chameleon, in the process of conducting trial for the prosecution of those cases. Justice must not only be done, but it must also appear to be done, concept or principle of natural justice. This principle is likely to be violated in almost all Human Rights cases, in a Public Prosecutor or Additional Public Prosecutor appointed u/s 24 of the Code for conducting trial of cases in a Court of Session, is specified as Special Public Prosecutor for the purpose of conducting cases in HRCs. Such being the case it would be better for the State Government to appoint an advocate, who has been in practice as an advocate for not less than seven years, as Special Public Prosecutor for the purpose of conducting cases in HRCs, instead of specifying an existing Public Prosecutor or Additional Public Prosecutor appointed u/s 24 of the Code, for conducting trial in the Court of Session."

Applying the dictum of the Supreme Court as well as of our Madras High Court, the learned Counsel for the Petitioner contended that it is a custodial death and it is a death in violation of human rights, and the Public Prosecutor and some of the accused are colluding together and in those circumstances a Special Public Prosecutor has to be appointed to have a fair and reasonable trial in Sessions Case No. 15 of 1996 pending on the file of Additional Sessions Judge at Nagercoil.

The learned Government Advocate refuted the above arguments of the learned Counsel for the Petitioner by contending that it is not a custodial death, and it is not a death in violation of human rights, and the cause of death is yet to be proved, and if the Petitioner apprehends that there will not be fair and reasonable trial if the Public Prosecutor of Kanyakumari District conducts the case, then she can very well engage a counsel, of her choice and at her cost to assist the Public Prosecutor, and a Special Public Prosecutor cannot be appointed to vindicate the grievance of a private person like the Petitioner, who is the wife of the deceased and it is the absolute discretion of the Government to appoint a Special Public Prosecutor only when the public interest is involved in the case and not in any other circumstances, in those circumstances, the prayer of the Petitioner cannot be complied with and this petition has to be dismissed.

In support of the above contention the learned Government Advocate also placed reliance on the decision of a single Judge of Kerala High Court reported in Mary Joosa v. State of Kerala (1997 Cri.L.J. 4678) , wherein it has been held as follows:-

"In this case the Petitioner has not disclosed any public interest demanding the appointment of a Special Public Prosecutor, Even then the Government considered the matter and took interest in instructing the District Collector to entrust the case to the District Government Pleader himself to conduct it. That will sufficiently safeguard the interest of the prosecution."

I am unable to uphold the above contentions of the learned Government Advocate and apply the decision of the Kerala High Court cited by him to the facts of the present case. The decision of the Kerala High Court reported in 1997 Cri.L.J. 4678 is a case, where there was no allegation by the Petitioner that some of the accused are in cordial relationship with the Public Prosecutor of the District concerned. Here is a case where there is a specific allegation that some of the accused are in cordial relationship with the Public Prosecutor of Kanyakumari District and that has not been challenged by any one of the Respondents by filing a counterstatement, and those allegations of the Petitioner in her affidavit go unchallenged. Even otherwise the Supreme Court in the decision reported in Sunil Kumar Pal Vs. Phota Sheikh and Others, laid down that where the accused persons had earlier ?entrusted) (sic) some brief of the case with the Public Prosecutor, it will not be fair to permit the same Public Prosecutor, to conduct the prosecution case as against the same accused persons. In the present case the 6th accused is admittedly the S.I.of Police, who conducted the case under the guidance of the very same Public Prosecutor in some of the cases, and thereby he had the cordial relationship with the Public Prosecutor. In such an atmosphere it is not conducive to allow the same Public Prosecutor to conduct the prosecution case in S.C. No. 15/96. That apart the Division Bench of our Madras High Court has held in the decision dated 23.6.1997 in Crl.R.C. No. 868/96 that an awkward situation may arise for the Public Prosecutor to prosecute the very same police agency when a complaint was lodged by the complainant against such police officers, and the Public Prosecutor cannot change his role and colour in the process of conducting the trial for the prosecution of those police officials, and such being the case it would be better for the State Government to appoint a Special Public Prosecutor for the purpose of conducting such case involving custodial death and violation of human rights instead of specifying the existing Public Prosecutor. Therefore in my view the decision of the Supreme Court as well as the decision of our Madras High Court must be preferred to that of the decision of a Single Judge of Kerala High Court and in those circumstances the decision of Kerala High Court will not be of any help to the Government Advocate to contend that a Special Public Prosecutor can be appointed only when there is a demand of the public interest and not in any other case.

At the risk of repetition it must be stated that it is alleged by the Petitioner that her husband Joseph was done to death by the police officials in the police station, and the S.I. of Police, who is one of the accused is in cordial relationship with the Public Prosecutor of Kanyakumari District, and if the Public Prosecutor is allowed to conduct the prosecution case in S.C. No. 15/96 relating to the death of her husband Joseph then there will not be a fair trial. In view of the allegations, which were not at all denied by any one of the Respondents herein, I am of the view that this is a fit case, where the State Government has to be directed to appoint a Special Public Prosecutor as mentioned in Section 24(8) of Code of Criminal Procedure to meet the ends of Justice.

Considering the above facts and circumstances of the case I am to hold that the Petitioner is entitled to the relief prayed for u/s 482 of Code of Criminal Procedure and a direction is issued to the State Government u/s 482 of Code of Criminal Procedure to appoint an advocate, who has been in practice for not less than 10 years, as the Special Public Prosecutor to conduct the prosecution case in S.C. No. 15/96 pending on the file of Additional Sessions Judge at Nagercoil, and consequently I answer this point in favour of the Petitioner.

In the result this petition is allowed. The 3rd Respondent viz., the Secretary, Public (Law and Order-A) Department, Government of Tamilnadu, Fort St. George, Madras-9 is directed u/s 482 of Code of Criminal Procedure to appoint an advocate, who has been in practice for not less than 10 years, as the Special Public Prosecutor u/s 24(8) of Code of Criminal Procedure to conduct the prosecution case in S.C. No. 15 of 1996 pending on the file of Additional Sessions Judge at Nagercoil. Consequently the stay petition in Cr.M.P. No. 3679 of 1996 is dismissed as unnecessary.