Badrilal Patidar S/o Siddhanath Singh Patidar v State of Madhya Pradesh and others

Madhya Pradesh High Court

INDORE BENCH

1 March 2013

Writ Appeal No. 549/2012

The Judgment was delivered by : M. C. Garg, J.

1. Present Writ Appeal has been filed u/s. 2 of M.P. Uchcha Nayalaya ( Khand Nyayapith Ko Appeal ) Adhiniyam, 2005 aggrieved of the order passed by the learned Single Judge of this Court dismissing the same in W.P. no. 616/2012 on 28th of August, 2012. 2. The Writ Petition was filed aggrieved of the appointment of Special Public Prosecutor by the State of M.P. in criminal case in which the appellant is also one of the accused. The Writ petition was dismissed by the learned Single Judge after taking note of the submissions made on behalf of the petitioner and judgment cited at bar. Relevant portion of the order relied upon the judgment of State of M.H. Vs. Prakash Prahlad Patil and others. reported in 2009 (12) SCC 159 2009 Indlaw SC 535, which also take note of the judgment delivered in the case of Mukul Dalal and others Vs. Union of India and others reported in 1988 (3) SCC, 144 1988 Indlaw SC 433 as also to the judgment delivered in the case of Mayuresh Vs. State of M.P. and others reported in 2010 (3) MPLJ, 473, by the learned Single Judge of this Court is as follows. In the present case, it is an admitted fact that the petitioner is facing a trial i.e. Sessions Trial No.344/2011 for offences under Section 381, 420, 467 and 471 of the IPC read with Section 65, 66-D and 72 of the Information and Technology Act, 2000. It has also been stated that a request was made for appointment of Special Public Prosecutor and the Special Public Prosecutor has been appointed under Sub- s. 8 of S. 24 of Criminal Procedure Code. The same reads as under:- "The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor: [Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub- section.] The Collector, Indore by a letter dated 01.07.2011 has forwarded a proposal of appointment of respondent No.3 as Special Public Prosecutor and even the Police Department has also given no objection in the matter of appointment of respondent No.3 as Special Public Prosecutor. The respondent/State with due application of mind has appointed the respondent No.3 as a Special Public Prosecutor keeping in view the offences involved in the sessions trial. It is certainly true that the order of appointment of Special Public Procedure, does not reflect any reason. This Court in the case of Mayuresh Vs. State of M.P. and others (supra) while dealing with the similar controversy has considered most of the judgments right from the case of Mukul Dalal and others Vs. Union of India and others 1988 Indlaw SC 433. This Court in the aforesaid case in paragraphs 6 to 10 has held as under:- "6. Having heard learned counsel for the parties and having gone through averments made in the petition and the reply as also considering the judgments relied upon by them I find no merit in this writ petition. 7. True it is in case of Sunil Kumar V. State of M.P. and others 1997 Indlaw SC 803 (supra) a Division Bench of this Court has held that Special Public Prosecutor can be appointed by the State Government only in exceptional cases and for the reasons to be recorded. In the case of Poonamchand Jain Vs. State of M.P. and others 2001 Indlaw MP 75 (supra) the learned Single Judge of this Court placing reliance on the Division Bench judgment of this Court in the case of Sunil Kumar Vs. State of M.P. and others 1997 Indlaw SC 803 (supra) held that in the absence of special circumstances existing for appointment for Special Public Prosecutor the appointment cannot be made. The Supreme Court in the case of Mukul Dalal and others Vs. Union of India and others 1988 Indlaw SC 433 (supra) has held that the Special Public Prosecutor cannot be appointed on mere asking of private complainant. The request of the private complainant for such appointment must be examined by Legal Remembrancer on the basis of the guidelines prescribed or to be prescribed and decision be taken accordingly. However recently the Supreme Court had an occasion to examine the question of appointment of Special Public Prosecutor in the case of State of Maharashtra and others Vs. Prakash Prahlad Patil and others 2009 Indlaw SC 535 (supra) in which taking note of the view expressed by the Supreme Court in the case of Mukul Dalal and others Vs. Union of India and others 1988 Indlaw SC 433 (supra), the Supreme while upholding the appointment of Special Public Prosecutor has observed thus: "The appointment of respondent No.3 appears to have been made on the basis of a petition filed by the brother and the son of the victim. This was a case where two persons were killed. Several accused persons are facing trial. Though initially it was not disclosed by respondent no.1 that he is related to one of the accused, but later on the fact surfaced during the hearing of the matter before the High Court. Then respondent no.1 took the stand that he was social worker and in greater public interest the writ petition was filed. The State opposed the petition on several grounds: primarily indicating that the scope of judicial review of the executive, administrative and quasi-judicial action, was extremely limited and this is not a case where any interference was called for. It appears from the impugned order of the High Court that the original file was called for and scanned as if the High Court was hearing an appeal against a decision taken. The scope for judicial review has been examined by this Court in several cases. It has been consistently held that the power of judicial review is not intended to assume a supervisory role or don the robes of omnipresent. The power is not intended either to review governance under the rule of law nor do the courts step into the areas exclusively reserved by the supreme lex to other organs of the State. A mere wrong decision, without anything more, in most of the cases will not be sufficient to attract the power of judicial review. The supervisory jurisdiction conferred upon a court is limited to see that the authority concerned functions within its limits of its authority and that its decision do not occasion miscarriage of justice. The Supreme Court further observed in para 3 and 4 of the judgment that: 3. 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. 4. 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 was 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." 8. In the present case as would be clear from correspondence between the Deputy Director Prosecution, Ujjain, District Collector, Ujjain and the first respondent Secretary, Law and Legislative Department, Government of M.P., that the decision to appoint the third respondent as a Special Public Prosecutor has been taken at various levels on the basis of an application submitted by father of the deceased victim. In the decision making process I find no arbitrary exercise of powers nor it is a case that the State Government has acted beyond its jurisdiction causing miscarriage of justice. It has been observed by the Supreme Court in the case of State of Maharashtra Vs. Prakash Prahlad Patil and others 2009 Indlaw SC 535 (supra) that in such matters the scope for judicial review is not intended to assume a supervisory role or don the robes of omnipresent. The power is not intended either to review governance under the rule of law nor do the courts step into the areas exclusively reserved by the supreme lex to other organs of the State. The supervisory jurisdiction conferred upon a court is limited to see that the authority concerned functions within its limits of its authority and that its decision do not occasion miscarriage of justice. The petitioner has not made any averment or allegation about malafide nor he has made any averment prejudice that will cause to him. The decision which has been taken as aforesaid, at various levels, cannot be interfered into merely because the complainant who is father of the deceased victim has sought for appointment of the third respondent as Special Public Prosecutor. 9. In the circumstances in my considered view the law laid down by the Supreme Court in the case of State of Maharashtra Vs. Prakash Prahlad Patil 2009 Indlaw SC 535 (supra) which governs the field fully applies to the facts of the present case. As a result no case for interference into the impugned order dt.28.4.2009 (Annexure P/1) by this Court is made out. 10. Accordingly the petition fails and is hereby dismissed. No orders as to the costs." Keeping in view the judgment delivered by this Court, as the petitioner has failed before this Court to establish any bias and to demonstrate any of the prejudice which has been caused by appointing the respondent No.3 as Special Public Prosecutor, the question of interference does not arise. The decision of appointing a Special Public Prosecutor is certainly the domain of the State Government as held in paragraph No.5 of the State of Maharastra and others Vs. Prakash Prahlad Patil and others 2009 Indlaw SC 535. Merely because, the respondent No.3 has opposed the bail petition at some point of time, does not mean that he cannot appear as a Special Public Prosecutor. Learned counsel for the petitioner has placed reliance upon a judgment delivered in the case of Jayendra Saraswati Swamigal @ Subramaniam Vs. State of Tamil Nadu 2008 Indlaw SC 1129 (supra) and in the aforesaid case, he has placed heavy reliance upon paragraph No.11 and paragraph No.11 does not deal with the controversy involved in the matter and the paragraph No.11 is in respect of payment of fee. The Apex Court in the aforesaid case has made it clear that as the trial was being shifted to the State of Pandichery from the State of Tamil Nadu, the State of Tamilnadu will pay the necessary fee. In the case of Mukul Dalal1988 Indlaw SC 433 (Supra), the Apex Court has permitted for payment of fee to Special Public Prosecutor even by the private party and, therefore, merely because, it has been mentioned that the complainant shall be paying fee to the Special Public Prosecutor, the order of appointment does not warrant any interference in the matter. Resultantly, the writ petition is, accordingly, dismissed. No order as to costs." 3. Assailing the judgment of the learned Single Judge, learned counsel for the appellant has submitted that in the present case, the Special Public Prosecutor appointed by the State of M.P. in this case at the instance of the complainant is an Advocate who had been appearing for the complainant before this Court in Revision Petition filed by them and that his remuneration shall be paid by the complainant. It is submitted that the aforesaid goes to show that the Special Public Prosecutor will not conduct the trial of the case fairly and therefore, the appellant has serious objection about his impartiality. Thus, it is submitted that the order of the respondent in appointing him is required to be set aside. It is submitted that these aspects have not been taken care by the learned Single Judge. 4. We have also considered the submissions made on behalf of the appellant. We have also gone though the judgment referred to by the learned Single Judge to which the learned counsel for the appellant has brought to our attention in this case. The learned Single Judge while dismissing the petition has taken note of all the judgments cited at bar including the judgment delivered in the case of Mukul Dalal and others Vs. Union of India and others 1988 Indlaw SC 433 (supra), as also the judgment delivered by the Apex Court in the case of State of Maharastra and others Vs. Prakash Prahlad Patil and others 2009 Indlaw SC 535. (supra ). 5. In view of the aforesaid judgments, we find no infirmity in the approach by the learned Single Judge. "6. Even otherwise, learned counsel appearing for the appellant neither before the learned Single Judge nor before has has been successful to establish any bias and to demonstrate any of the prejudice which has been caused by appointing the respondent no. 3 as Special Public Prosecutor; thus there is no question of interference in such appointment i.e. the decision of appointing a Special Public Prosecutor which is certainly within the domain of the State Government in accordance of the provision u/s. 24 ( 8) of Cr.P.C . 7. In view of the aforesaid, we find no infirmity in the judgment passed by learned Single Judge of this Court and the same is upheld. 8. Consequently, present Writ Appeal is dismissed, but with no order as to cost 9. We may however observe here that as regard the remuneration payable to Special Public Prosecutor, there is no rules in the State of M.P. It may be appropriate, if the State Government may consider it appropriate to frame rules about the payment to be paid to Special Public Prosecutor which may be on the line on which the payments are made to Public Prosecutor and such rules may apply in future. 4. Submissions made on behalf of the appellant are of no consequence for the reason that in the case of Mayuresh Vs. State of M.P. ( supra ), the aspect about the payment of remuneration by the complainant to Special Public Prosecutor was considered and no infirmity therein was found. 5. In that case, this Court having discussed the fact has made the following observations. "6. Having heard learned counsel for the parties and having gone through averments made in the petition and the reply as also considering the judgments relied upon by them I find no merit in this writ petition. 7. True it is in case of Sunil Kumar V. State of M.P. and others 1997 Indlaw SC 803 (supra) a Division Bench of this Court has held that Special Public Prosecutor can be appointed by the State Government only in exceptional cases and for the reasons to be recorded. In the case of Poonamchand Jain Vs. State of M.P. and others 2001 Indlaw MP 75 (supra) the learned Single Judge of this Court placing reliance on the Division Bench judgment of this Court in the case of Sunil Kumar Vs. State of M.P. and others 1997 Indlaw SC 803 (supra) held that in the absence of special circumstances existing for appointment for Special Public Prosecutor the appointment cannot be made. The Supreme Court in the case of Mukul Dalal and others Vs. Union of India and others 1988 Indlaw SC 433 (supra) has held that the Special Public Prosecutor cannot be appointed on mere asking of private complainant. The request of the private complainant for such appointment must be examined by Legal Remembrancer on the basis of the guidelines prescribed or to be prescribed and decision be taken accordingly. However recently the Supreme Court had an occasion to examine the question of appointment of Special Public Prosecutor in the case of State of Maharashtra and others Vs. Prakash Prahlad Patil and others 2009 Indlaw SC 535 (supra) in which taking note of the view expressed by the Supreme Court in the case of Mukul Dalal and others Vs. Union of India and others 1988 Indlaw SC 433 (supra), the Supreme while upholding the appointment of Special Public Prosecutor has observed thus: "The appointment of respondent No.3 appears to have been made on the basis of a petition filed by the brother and the son of the victim. This was a case where two persons were killed. Several accused persons are facing trial. Though initially it was not disclosed by respondent no.1 that he is related to one of the accused, but later on the fact surfaced during the hearing of the matter before the High Court. Then respondent no.1 took the stand that he was social worker and in greater public interest the writ petition was filed. The State opposed the petition on several grounds: primarily indicating that the scope of judicial review of the executive, administrative and quasi-judicial action, was extremely limited and this is not a case where any interference was called for. It appears from the impugned order of the High Court that the original file was called for and scanned as if the High Court was hearing an appeal against a decision taken. The scope for judicial review has been examined by this Court in several cases. It has been consistently held that the power of judicial review is not intended to assume a supervisory role or don the robes of omnipresent. The power is not intended either to review governance under the rule of law nor do the courts step into the areas exclusively reserved by the supreme lex to other organs of the State. A mere wrong decision, without anything more, in most of the cases will not be sufficient to attract the power of judicial review. The supervisory jurisdiction conferred upon a court is limited to see that the authority concerned functions within its limits of its authority and that its decision do not occasion miscarriage of justice. The Supreme Court further observed in para 3 and 4 of the judgment that: 3. 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. 4. 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 was 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." 8. In the present case as would be clear from correspondence between the Deputy Director Prosecution, Ujjain, District Collector, Ujjain and the first respondent Secretary, Law and Legislative Department, Government of M.P., that the decision to appoint the third respondent as a Special Public Prosecutor has been taken at various levels on the basis of an application submitted by father of the deceased victim. In the decision making process I find no arbitrary exercise of powers nor it is a case that the State Government has acted beyond its jurisdiction causing miscarriage of justice. It has been observed by the Supreme Court in the case of State of Maharashtra Vs. Prakash Prahlad Patil and others 2009 Indlaw SC 535 (supra) that in such matters the scope for judicial review is not intended to assume a supervisory role or don the robes of omnipresent. The power is not intended either to review governance under the rule of law nor do the courts step into the areas exclusively reserved by the supreme lex to other organs of the State. The supervisory jurisdiction conferred upon a court is limited to see that the authority concerned functions within its limits of its authority and that its decision do not occasion miscarriage of justice. The petitioner has not made any averment or allegation about malafide nor he has made any averment prejudice that will cause to him. The decision which has been taken as aforesaid, at various levels, cannot be interfered into merely because the complainant who is father of the deceased victim has sought for appointment of the third respondent as Special Public Prosecutor. 9. In the circumstances in my considered view the law laid down by the Supreme Court in the case of State of Maharashtra Vs. Prakash Prahlad Patil 2009 Indlaw SC 535 (supra) which governs the field fully applies to the facts of the present case. As a result no case for interference into the impugned order dt.28.4.2009 (Annexure P/1) by this Court is made out. 10. Accordingly the petition fails and is hereby dismissed. No orders as to the costs."   6. It was in the light of the aforesaid judgment, learned Single Judge has dismissed. We have also gone through the judgment of Hon'ble Supreme Court delivered in the case of State of M.H. Vs. Prakash Prahlad Patil and others 2009 Indlaw SC 535. ( supra). In that case also, the appointment of Special Public Prosecutor was challenged by the accused. 7. We may however observe here that as regard the remuneration payable to Special Public Prosecutor, there is no rules in the State of M.P. It may be appropriate, if the State Government may consider it appropriate to frame rules about the payment to be paid to Special Public Prosecutor which may be on the line on which the payments are made to the Special Public Prosecutor and such rules may apply in future. 8. In view of the aforesaid, we find no infirmity in the judgment passed by learned Single Judge of this Court and the same is upheld. 9. Consequently, present Writ Appeal is dismissed, but with no order as to cost. Appeal dismissed