Safiya .C.T vs State Of Kerala

Bechu Kurian Thomas, J.

A victim, who was always at the periphery of the criminal justice system, has, after the Code of Criminal Procedure (Amendment) Act of 2008 (Act 5 of 2009) become an important stakeholder in the justice delivery system. The voice of the victim, which includes that of a legal heir can no longer remain subdued and requires reasonable consideration at the hands of all authorities. This writ petition brings to light the cry of a victim for the appointment of a Special Public Prosecutor.

Petitioner is the mother of Sri.Anwar, who, as a young man of 25, was brutally assaulted, allegedly in a political murder. The incident is alleged to have taken place on 05.07.2011 in broad daylight when twelve accused wrongfully restrained the deceased and mercilessly assaulted him and thereafter hacked him to death with a sword and knife. The accused are all alleged to be leaders and activists of the Communist Party of India (Marxist) while the deceased is stated to be a member of the Youth League of the Indian Union Muslim League.

Pursuant to the investigation, a final report was filed which was committed to the Court of Sessions as S.C. No.934 of 2012 on the files of the Additional Sessions Court, Thalassery. The offences alleged are under sections 143, 147, 148, 341, 324, 326, 120B, 212, 307 and 302 read with section 149 of the Indian Penal Code, 1860.

Apprehending that the Public Prosecutors appointed by the Government are all sympathisers of the ruling party and pointing out that the witnesses had not even been informed by the office of the prosecutor ahead of the trial, petitioner alleges that she bonafide believes that the intention is to sabotage the entire prosecution.

In the year 2013, petitioner submitted an application for appointment of a Special Pubic Prosecutor and named an Advocate as her preferred choice. However, for some reason or the other, the said appointment did not come through. Later in November 2021, petitioner realised that the present Prosecutor could not conduct the prosecution properly and hence the consent of Sri.P.V.Hari, an eminent Advocate of the Kozhikode Bar with more than 45 years of practice was obtained. On the above basis, petitioner requested, by an application on 09.11.2021, for appointing the aforementioned Advocate as a Special Public Prosecutor as per Ext.P1. Petitioner contends that even though it was informed that the appointment would be made immediately by a communication dated 04.04.2022, it was later informed that her application was rejected. According to the petitioner, no reasons have been stated for rejecting the above request.

Sri.Mohammed Shafi, the learned counsel for the petitioner vehemently contended that the murder in question was a highly brutal one and politically motivated, with all the accused being leaders of the Communist Party of India (Marxist) which is an affiliate of the ruling party. It was further submitted that the personal staff of a Minister, a Panchayat Member, an Area Committee Member of the ruling political party, its Local Secretary, its Branch Secretary, and the Vice President of the Panchayat are all arrayed as accused and if the prosecutor appointed by the ruling party conducts the case, apart from the lack of competence in handling such sensitive and highly complex murder cases, a fair trial will not be possible. Petitioner genuinely believes that justice will not be meted out unless a Special Public Prosecutor is appointed, contends the learned counsel for the petitioner.

Sri. S.U.Nazar, the learned Public Prosecutor, on the other hand, opposed the contents in the writ petition relying upon the statement filed and submitted that the request for appointment of a Special Public Prosecutor was rejected as per Ext.R1(a) after the Government considered all the relevant inputs. The learned Public Prosecutor further submitted that the case on hand does not come within the purview of the category of cases mentioned in the Circular issued by the Government and therefore, the request cannot be considered. It was also pointed out that appointment of a Special Public Prosecutor is not mandatory in all cases, that too, at the request of parties on account of practical difficulties and the services of Public Prosecutors already appointed can be utilised, apart from availing the benefit of assistance to the prosecution as contemplated under law.

I have considered the rival contentions.

Petitioner had sought the appointment of Adv.P.V.Hari, who is stated to be a criminal lawyer of great repute from Kozhikode with an experience of more than 45 years in legal practice and has appeared in various courts throughout the State as a reputed criminal lawyer. However, by Ext.P2, petitioner's request has been rejected by merely stating that on the basis of the guidelines issued by the Government on 18.09.2017 as Circular No.264/C4/2017/Home and after considering the opinion of the Director General of Prosecutions, it was found that there was no necessity for appointment of a Special Public Prosecutor. It was further mentioned that the Public Prosecutor appointed by the Government is available and if needed, the petitioner can avail assistance to prosecution as contemplated under law.

The Government had on 18.09.2017 issued a Circular revising the guidelines for appointment of Special Public Prosecutors under section 24(8) of the Code of Criminal Procedure, 1973. The following are some of the categories of cases which are ordinarily considered for appointment of a Special Public Prosecutor as per the guidelines:

(i) Cases such as heinous murder or kidnapping or rape particularly of minors and which are gruesome in character shocking the conscience of the community at large.

(ii) xxx xxx

(iii) xxx xxx

(iv) Offences affecting human body in which hired assassins had been engaged.

A reading of the above extracted two guidelines itself will reveal that when a heinous murder is committed, it can fall within the category of cases where a Special Public Prosecutor could be appointed.

The charge filed in Crime No.445 of 2011 of Taliparamba Police Station, Kannur reveals that due to a political rivalry, the accused, which included the CPM Local Secretary, the Panchayat Vice-President, the Communist Party (Marxist) Branch Secretary, a Communist Party activist etc., had, along with others, totalling to 20 accused, armed with dangerous weapons, wrongfully restrained the deceased and CW2 and brutally assaulted them using dangerous weapons and when CW2 ran away and hid inside a shop room, few of the accused pulled him out using a sword stick and swords and attempted to murder him and when the deceased tried to prevent further assault on CW2, they turned their ire against the deceased, who also tried to flee from the scene fearing threat to his life. However, he was chased by a few of the other accused and was brutally attacked sustaining more than 25 injuries and thus the accused committed the offence of murder and also attempt to murder.

A reading of the charge, the gist of which has been mentioned above, reveals that the case falls under the category of a heinous crime apart from it having political overtones. As mentioned at the beginning of the judgment, when the victim apprehends that justice may not be meted out due to political affiliations, though the said criteria by itself may not be a reason to appoint a Special Public Prosecutor, still, the said political affiliation coupled with the brutality of the murder and the heinousness with which it is alleged to have been committed indicates that the present case falls within the revised guidelines where a Special Public Prosecutor is required to be appointed.

The final report filed in the case reveals that the case involves various circumstances that are required to be proved with 59 witnesses already arrayed as charge witnesses. The expertise of a reputed criminal lawyer for the prosecution side will only benefit the State in its endeavour to render justice and punish the guilty. The impugned order of the Government has not considered any of the special features that arise in the present case and on the other hand is bereft of any reasons and is passed in a mechanical manner. No reasons have been stated as to why the instant case does not fall within guideline No.(i) which itself shows total non-application of mind.

Apart from the above, the categories of cases mentioned in the revised guidelines are not exhaustive. It certainly includes instances like the present, where alleged strong supporters of the ruling political party are arrayed as accused and also petitioner obtains the willingness of a top criminal brain as available to be the Special Public Prosecutor. Also, no prejudice will be caused to the Prosecution by availing the service of a criminal lawyer of outstanding merit. In such circumstances, I am of the view that it is only in the interest of justice that a Special Public Prosecutor is appointed. Unfortunately, the Government has fallen wholly short of considering any of the matters that ought to have been reckoned while issuing Ext.P2.

Therefore this court is of the view that Ext.P2 is liable to be set aside and a fresh order be issued by the Government in a time-bound manner taking into reckoning the circumstances mentioned above.

Accordingly, I set aside Ext.P2 order dated 04-04-2022 and direct the first respondent to reconsider the matter afresh on the basis of the observations made in this judgment including the willingness of a reputed criminal lawyer already obtained. A decision as directed above shall be taken within a period of one month from today. Since the case is of the year 2011, any delay in taking a decision would not be conducive to the interest of all.

This Writ Petition (Crl.) is allowed as above.