Shiv Pal Singh @ S.P. Singh vs State of U.P. and Others

Uma Nath Singh, J.—By way of this writ petition, the petitioner has invoked the extraordinary jurisdiction of this Court under Articles 226 & 227 of the Constitution of India praying for issuance of a writ of certiorari for the quashment of:

(i) impugned order dated 16.05.2008 passed and issued by opposite party No. 1 namely the State of U.P., through its Principal Secretary (Home), appointing opposite party No. 3, as Special Public Prosecutor, in Sessions Trial No. 341/07 u/s 302/120B IPC on the ground that the said order not only runs contrary to provisions of Sections 24 and 301 of Cr.P.C., and executive instructions as contained in U.P. L.R. Manual, but it is also violative of Articles 14 and 21 of the Constitution of India, and

(ii) the subsequent criminal proceedings conducted with the assistance and participation of opposite party No. 3, the Special Public Prosecutor. Besides, it is also prayed that opposite party No. 3 be restrained/prohibited from appearing as Special Public Prosecutor in the aforesaid Sessions Trial (No. 341/07).

As per the prosecution case, it appears that one Virendra Singh lodged first information report at police station concerned that on 21.09.2006 at about 10.00 A.M., when his younger brother Chandra Pal Singh, deceased herein, Manager of Lucknow Public School, arrived at the gate of the college, he was shot at by some miscreants who indulged and caused indiscriminate firing, and thus rushed to hospital. However, the doctors declared him ''brought dead''. During the course of investigation it was revealed that the petitioner and one other person namely S.B. Singh had hired 2 shooters namely Ranvir Singh and Anand Kumar Verma, who caused the death of deceased by firing at him.

It also appears that opposite party No. 3, a designated senior advocate of this Court, who had earlier appeared for complainant to oppose bail application of accused persons, was appointed as Special Public Prosecutor for the trial of this case with the condition that the professional fee of the said Special Public Prosecutor was to be paid by Lokesh Singh, opposite party No. 4 herein (son of deceased C.P. Singh). The said order was challenged by way of this writ petition. But during the pendency of the writ petition, the order of appointment was modified/withdrawn and now the fee is being paid by the State Government. It also appears that the amended order has also been sought to be challenged by way of an amendment application.

We have heard learned Counsel for parties and perused the records.

Learned senior counsel appearing for the petitioner inter alia submitted that the appointment order impugned herein is vitiated for the reasons viz:

(i) that the appointment of opposite party No. 3 as Special Public Prosecutor was made on an application submitted by Lokesh Singh, son of the deceased;

(ii) that the State Government appointed the Special Public Prosecutor subject to payment of his fee by the son of deceased;

(iii) that the said order was amended again on an application made by the son of deceased;

(iv) that the State Government did not exercise the powers independently for appointment of Special Public Prosecutor but rather under the influence of the son of deceased;

(v) that the Legal Remembrancer/Principal Law Secretary was not consulted before appointing the Special Public Prosecutor;

(vi) that the Special Public Prosecutor on being appointed has committed various irregularities including the non-supply of important documents to the defence counsel, and

(vii) that in the interest of a fair trial this Court may direct the trial court to supply all the necessary documents to defence counsel for effectively putting across the defence version on behalf of accused persons.

On the other hand, Shri D.K. Upadhyay, learned Chief Standing Counsel, appearing for State while referring to the original Government file which the Court has also perused submitted that in the application moved by the son of deceased, the name of Shri Mradul Rakesh, Senior Advocate (opposite party No. 3), is not mentioned so as to say that it is the choice of the son of deceased that has influenced the decision making process in respect of the appointment of Special Public Prosecutor. Learned Chief Standing Counsel further submitted that after filing of this writ petition questioning the legality of appointment of Special Public Prosecutor mainly on the ground that the professional fee was to be paid by the son of deceased, the State Government, having realised the mistake/error in incorporating such condition, has since modified the terms and conditions of appointment by deleting the condition of its own, irrespective of any application said to be made by the son of deceased. And now the payment of professional fee of Shri Mradul Rakesh, Sr. Advocate/Spl. P.P. is to be made only by the State Government. Learned Counsel further submitted that the illegality, if any, as alleged to have been committed by the Special Public Prosecutor could have been brought to the notice of trial court as the remedy pleaded for herein is available under the provisions of Code of Criminal Procedure, and moreover, any observation made or direction issued in this regard by this Court in the exercise of writ jurisdiction would deprive the parties of their valuable rights to invoke the revisional jurisdiction under Cr.P.C. Learned Counsel further submitted that Section 24 of Cr.P.C. deals with the appointment of Special Public Prosecutor and the L.R. Manual, being a compilation of executive instructions issued from time to time, cannot have an overriding effect on the provisions of the Code. In addition to the aforesaid, learned Chief Standing Counsel also submitted that it is revealed from a careful reading of original Government file that the Legal Remembrancer/ Principal Law Secretary had been consulted in the decision making process before the appointment of Special Public Prosecutor.

Dr. L.P. Mishra, learned Counsel, appearing for the son of deceased adopted the arguments of learned Chief Standing Counsel.

On a careful consideration of rival submissions and perusal of the records, we are of the opinion that the appointment of Special Public Prosecutor does not violate the provisions of Section 24 of Cr.P.C. or the executive instructions as contained in L.R. Manual which cannot have an overriding effect on the provisions of Cr. P.C. There is no dispute that the professional fee of Special Public Prosecutor should be paid by the State as held in a judgment rendered by Hon''ble the Apex Court in the case of Mukul Dalal and Others Vs. Union of India (UOI) and Others, In this judgment it has been clarified that even in a case where the Special Public Prosecutor is appointed on the request of a private complainant, his professional fee is normally paid by the State Government. Thus, the moment it came to the notice of State that there is an error in the terms and conditions of the letter of appointment of Special Public Prosecutor, the said order was modified. And moreover, it was only a procedural flaw which when detected was cured by the State Government. But that would not be a ground to hold that the trial proceedings have stood vitiated on that count. A Court has to strike balance between the rights of parties to be represented by the counsel of their choice and the right of the accused to get a fair trial. Further, in another judgment in the case of State of Maharashtra and Others Vs. Prakash Prahlad Patil and Others, while dealing with the question of appointment of Special Public Prosecutor in terms of the scheme of Section 24(8) of Cr.P.C. it has been clarified after noticing the observation and ratio of the judgment in Mukul Dalal''s case (supra) that the Court should not ordinarily interfere with the policy decisions of the State. Paragraphs 3 and 4 of the judgment on reproduction read as:

The courts cannot be called upon to undertake governmental duties and functions. Courts should not ordinarily interfere with a policy decision of the State. While exercising power of judicial review the court is more concerned with the decision making process than the merit of the decision itself.

In the instant case, acting on a petition filed by close relatives of a victim decisions have been taken at various levels. The High Court was not justified to pick up stray sentences from the records to conclude that there was non-application of mind. In any event, the appointment of a Special Public Prosecutor to conduct a proceeding does not in any way cause prejudice to the accused. In that sense the writ petition before the High Court was wholly misconceived. The impugned judgment of the High Court is set aside. Since the trial appears to have been held up, we direct that the trial court shall make all possible endeavours to see that the trial is completed expeditiously and in any event not later than by the end of October, 2009. The appeal is, accordingly, allowed.

Moreover, it has been clarified in the submission of learned Chief Standing Counsel that in the application submitted by the son of deceased, the name of Special Public Prosecutor Shri Mradul Rakesh, Sr. Advocate, was not mentioned and that application did not influence the decision making process of the State in any manner. We also notice from the notings in the Government file of the appointment that the Principal Secretary/L.R. has been consulted in the process of appointment. Thus the impression, contrary to this fact, given by learned Sr. Counsel stands dispelled and negatived. So far as the allegations against the conduct of learned Special Public Prosecutor during the course of trial are concerned, the petitioner should have brought the same to the notice of learned trial judge, however, we hope that the learned Special Public Prosecutor shall maintain his independence and impartiality while keeping in view the right of accused to get a fair trial. It may not be out of place to mention that observations and directions in terms of prayer, if made, in the obtaining facts and circumstances of the case in exercise of the powers under Articles 226 & 227 of the Constitution of India may reflect on the discretion of learned trial judge as also on the rights of parties to the trial in question, nonetheless, it would be obligatory on the part of trial court to ensure that the accused should be supplied all the necessary documents which he is entitled to receive under the Law in order to effectively defend himself before the trial court.

With the aforesaid observations, this writ petition is dismissed.