George A.P. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 14TH DAY OF MAY 2019 / 24TH VAISAKHA, 1941** ## **WP(C).No. 27334 of 2018** ## **PETITIONER/S:** **GEORGE A.P., S/O. PATHROSE, AGED 55 YEARS, ADVOCATE, RESIDING AT ANCHERIL HOUSE, NEDUMKANDAM P.O., IDUKKI. BY ADVS.SRI.BECHU KURIAN THOMAS (SR.) SRI.ENOCH DAVID SIMON JOEL SRI.GEORGE A.CHERIAN SRI.LEO LUKOSE SRI.PAUL JACOB (P) SRI.RONY JOSE** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE SECRETARY,**| ||**DEPARTMENT OF HOME AFFAIRS,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001.**| |**2**|**THE DIRECTOR GENERAL OF PROSECUTION,**| ||**DIRECTORATE OF PROSECUTIONS, ERNAKULAM-682018.**| |**3**|**SIBY CHENAPADY, ADVOCATE,**| ||**CHENAPPADY & CO. LAWYERS,**| ||**LOGOS CENTRE, KOTTAYAM-686002.**| |**4**|**N.K.UNNIKRISHNAN, ADVOCATE,**| ||**ASWATHY, AYYANTHOLE, THRISSUR-680003.**| ||**BY SRI.V.MANU, SENIOR GOVT. PLEADER**| ||**SRI. REVIKRISHNAN GP**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P(C) No.27334/18** **2** “ **C.R.** ” ## **JUDGMENT** The appointment of the Special Public Prosecutor for prosecuting the accused in a case of murder was terminated by the State. The petitioner, who is the brother of the person murdered, cry foul and contend that termination of the appointment of the Special Public Prosecutor is politically motivated. One of the accused is a Minister in the State Cabinet and the others owe allegiance to the Government, which is now in power. He would contend that the termination is illegal and arbitrary and seeks intervention of this Court to quash Exhibit-P5 order. 2 For appreciating the contentions advanced, it would be apposite to delve into the facts in some detail. On 13.11.1982, Sri.Baby Anchery, a prominent leader of the Youth Congress, was allegedly murdered by CPI(M) activists using firearms. Crime No.118 of 1982 was registered and after investigation, final report was laid arraigning nine persons as the accused. They were tried by the Court of Session. However, the accused were acquitted of all charges. The said judgment was confirmed in appeal as well. The matter, however, was not destined to **W.P(C) No.27334/18** **3** die down. 3. On 25-5-2012, a rousing speech was rendered by one M.M. Mani, the then District Secretary of the CPI(M), in a public meeting organized by his party members at Manarkad, Thodupuzha. The said leader, with characteristic candor, proclaimed about his complicity and that of certain others in the commission of a series of murders of rival political activists, including Baby Anchery. 4. This sensational disclosure led to the registration of Crime No. 309 of 2012 at the Rajakkad Police Station. Later, it was decided to conduct further investigation in the original crime itself. Though the registration of crime was challenged before this Court, the same was dismissed. The said order was confirmed by the Apex Court as well. 5. While so, the Government felt that having regard to the intricacies and legal issues involved, and owing to the involvement of persons holding high political offices, it would be expedient to have the case prosecuted by an experienced Prosecutor. Sri.Siby Chenappady, a lawyer practicing at Kottayam, was appointed by Exhibit-P1 order as Special Public Prosecutor for the conduct of the prosecution in accordance with the terms of Kerala Government Law **W.P(C) No.27334/18** **4** Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 ('KGLO' Rules, for short). When investigation was unduly delayed, the mother of the petitioner approached this Court and filed W.P.(C).No.28838 of 2014 seeking among other reliefs, a probe by the Central Bureau of Investigation. However, she left for her heavenly abode during the pendency of the Writ petition. The petitioner got himself impleaded as additional 2[nd] petitioner and prosecuted the writ petition. However, since the final report was laid during the pendency of the writ petition, the same was closed reserving the right of the petitioner to approach this Court or any other appropriate forum if he had any further grievance. 6. On submission of the final report, the case was committed to the Court of Session. The Special Public Prosecutor felt that three other persons, who appeared to have serious involvement, were left out by the investigating agency. He filed a petition seeking to array the said persons as additional accused. The accused, on the other hand, filed applications seeking discharge under Section 227 of the Cr.P.C. Both the petitions were heard by the learned Sessions Judge and by order dated 24.12.2016, the application filed by the prosecution was allowed and the one filed by the accused were dismissed by a common order. **W.P(C) No.27334/18** **5** 7. Against the common order passed by the Court below, the accused have preferred criminal revision petitions before this Court and the same are pending. 8. While so, on 24.7.2018, the order which is assailed in this writ petition was passed terminating the appointment of Sri.Siby Chenappady and in his place, Sri.N.K.Unnikrishnan, the 4[th] respondent herein, was appointed. 9. According to the petitioner, Exhibit-P5 order is arbitrary and tainted with mala fides. The accused in the aforesaid case are prominent members of the ruling political party and one of the accused is a Cabinet Minister and handles the Electricity portfolio. The Special Public Prosecutor, who was appointed by the previous Government, was conducting the prosecution in a diligent manner. He had filed an application to arraign accused Nos. 5 to 7 as additional accused as their role was evident from the prosecution records. The said application was allowed by the learned Sessions Judge. The alacrity of the petitioner in meticulously prosecuting the case raised alarms in certain quarters and this has prompted the State to terminate him without assigning any reason. The termination is politically motivated with the sole objective of scuttling the prosecution case, is the contention of the petitioner. **W.P(C) No.27334/18** **6** 10. The petitioner would further contend that the Special Public Prosecutor, who has now been appointed, is having affiliation with the present political dispensation. That would prevent him from acting in a fair and impartial manner. It is further contended that the appointment of the 4[th] respondent is even against the circular issued by the State detailing the guidelines and procedure to be followed while appointing a Special Public Prosecutor. As per the guidelines, appointment shall be made only after consulting the District Police Chief concerned on the basis of the specific legal advice of the Director General of Prosecution. However, Exhibit-P5 order will not show that the authority which passed the said order, had applied its mind as no reasons have been stated as regards the circumstances which necessitated a change of the Special Public Prosecutor. 11. The accused in a case of political murder have been given the mantle to choose their own Prosecutor, which is against all canons of justice, contends the petitioner. The duty to act fairly is a part of the fair procedure envisaged under Articles 14 and 21 of the Constitution. Every State action must be guided by public interest. The failure of the authority to assign reasons, shows that the order was passed mala fide and on irrelevant considerations. Exhibit-P5 order is liable to be quashed on these grounds as well is the **W.P(C) No.27334/18** **7** contention of the petitioner. 12. A detailed counter affidavit has been filed by the 1[st] respondent. The State would deny that the appointment of the 3[rd] respondent was terminated to benefit the accused. According to the 1[st] respondent, it is as per authority conferred under Section 24(8) of the Code of Criminal Procedure that Special Public Prosecutor is appointed for the purpose of any case or class of cases. Rule 11(4) of the KGLO Rules is emphatic and it empowers the Government to terminate the services of a Special Public Prosecutor at any time before the expiry of his normal term of appointment without assigning any reason. The 1[st] respondent would rely on Sections 16 and 21 of the General Clauses Act, 1897 and it is argued that the power to appoint would include the power to cancel or revoke its own order. In view of the above, the contention of the petitioner that no reasons have been assigned in Exhibit-P5 cannot be sustained. It is averred that one among the accused submitted a representation stating that the Special Public Prosecutor appointed by the earlier Government was a leader of a political party and that he was still an active member. Some paper clippings were also produced to substantiate the said assertion. Comments were sought by the 1[st] respondent from the District Collector, Idukki, the District Police Chief, Idukki and the **W.P(C) No.27334/18** **8** learned Director General of Prosecution. The District Collector opined that the representation submitted by the accused could be considered. The District Police Chief opined that the suspicion regarding failure to ensure free and fair trial by the 3[rd] respondent seemed to have some weight. The learned Director General of Prosecution opined that there was no illegality in revoking the appointment of the 3[rd] respondent as Special Public Prosecutor. The 1[st] respondent considered all these inputs and it was felt that the Special Public Prosecutor, who belonged to a particular political party, will not be in a position to undertake the prosecution in a free and fair manner. The prosecutor should be a person without any prejudice and must be a person with no adverse interest in the case in which he is engaged. It is further stated that the consultation that was made by the 1[st] respondent was in consonance with Exhibit-P6 circular. According to the 1[st] respondent, the trial has not commenced till date and it cannot be said that the appointment of the 3[rd] respondent was terminated as he was diligently prosecuting the case. 13. Sri.Bechu Kurian Thomas, the learned Senior Counsel appearing for the petitioner, as instructed by Sri.Enoch David Simon Joel, submitted that it is quite evident from the sequence of events that the appointment of the 3[rd] respondent was terminated to aid the **W.P(C) No.27334/18** **9** accused. Exhibit-P3 petition filed by the 3[rd] respondent before the Sessions Court, Thodupuzha and the order passed by the learned Sessions Judge, which is produced as Exhibit-P4, are relied on by the learned Senior Counsel to point out that serious efforts were taken by the 3[rd] respondent to ensure that truth prevails and justice is done. Exhibit-P4 order was passed by the learned Sessions Judge on 24.12.2016 and it was later, on 24.07.2018, that the appointment of the 3[rd] respondent was terminated. One of the accused, being a Minister, and the rest of the accused, being prominent party members, the intention of the 1[st] respondent is clear. The 4[th] respondent, who has now been appointed, owes allegiance to the ruling political party and he cannot be expected to be fair and objective while prosecuting the accused. The learned Senior Counsel would refer to Exhibit-P5 order and it is argued that no reasons whatsoever has been assigned by the 1[st] respondent. Failure to assign any reason for terminating the appointment of the 3[rd] respondent is arbitrary and is liable to be interfered by this Court, submits the learned Senior Counsel. 14. The learned Senior Counsel would rely on the judgment of the Apex Court in **J.Jayalalithaa and others** v. **State of Karnataka and others** [(2014) 2 SCC 401] and it is argued that fair trial is the **W.P(C) No.27334/18** **10** main object of criminal procedure and such fairness should not be hampered or threatened in any manner. The termination of appointment of the 3[rd] respondent is against public interest and has been made solely to suit the cause of the accused, who owe allegiance to the ruling political party. Reliance is also placed on the judgment in **Harish Kumar** v. **State of Kerala and others** [2010 (3) KHC 467] and it is argued that when State is espousing the cause of the victims of the crimes, it has a duty to be neutral, impartial and fair. According to the learned Senior Counsel, terminating the appointment of the 3[rd] respondent midway during the trial is to subvert the case of the prosecution and to aid the accused. The learned Senior Counsel would also rely on the decision of this Court in **Prabhakaran P.P.** v. **Additional Chief Secretary to Government Tvm and Another** [2018 (1) KHC 121] and it is argued that the appointment of a Special Public Prosecutor was varied when there was a change of Government and this is a tell tale sign to conclude that there are other things that what meets the eye. 15. Sri.V.Manu, the learned Senior Government Pleader, would refute the submissions of the petitioner with vehemence. He would contend that Exhibit-P5 order was passed after getting inputs from the District Collector, the District Police Chief and the Director **W.P(C) No.27334/18** **11** General of Prosecution. The 3[rd] respondent owes allegiance to a particular political party and it cannot be expected from him to safeguard the interest of both the complainant and the accused. It is for the State to ensure that the prosecuting counsel would conduct the case with a sense of responsibility without taking a vengeful stand against the accused or the prosecution. It is the duty of the Special Public Prosecutor to fairly present his case before the Court and nothing more. In the case on hand, after the appointment of the 3[rd] respondent was terminated, the names of three Advocates with a good track record and extensive experience, were placed before the 1[st] respondent and after considering all the relevant aspects, the 4[th] respondent was appointed. It is submitted that the KGLO Rules empowers the Government to terminate the service of a Special Public Prosecutor “at any time” and “without assigning any reason” and that being the case, it is idle for the petitioner to contend that Exhibit-P5 is arbitrary. 16. The learned Senior Government Pleader would rely to the judgment of this Court in **Abdul Khader Musaliar** v. **Government of Kerala and others** [1993 (Crl.L.J) 1249] and it is argued that if the Government on the basis of inputs found that the appointment of Special Public Prosecutor was bad in law, the Government was **W.P(C) No.27334/18** **12** justified in rescinding the same. Reliance is also placed on the report in **Liberty Oil Mills and others** v. **Union of India and others** [(1984) 3 SCC 465] to support his contention that the expression “without assigning any reason” implies that the decision has to be communicated, but reasons for the decision have not to be stated. Without assigning reasons only means that there is no obligation to formulate reasons and nothing more. In view of the said position, the contention of the petitioner that Exhibit-P5 is liable to be set aside for want of reasons cannot be sustained, contends Sri.Manu. The learned Senior Public Prosecutor would rely on the judgment of a Division Bench of this Court in W.A. No.462 of 2018 and it is contended that certain observations made by the learned Single Judge in **Prabhakaran** (supra) were found to be unwarranted. 17. I have considered the submissions advanced and have gone through the materials on record. Though the respondents 3 and 4 were made parties to this petition, in view of the nature of dispute, this Court did not deem it necessary to issue notice to them. 18. Exhibit P5 order which is under challenge is crisp and brief. The said order which was issued on 24.7.2018 states that the Government are pleased to appoint the 4[th] respondent as Special Public Prosecutor for the conduct of prosecution in Crime No.118 of **W.P(C) No.27334/18** **13** 1982 of the Santhapara Police Station on payment of the prescribed fees under KGLO Rules by terminating the appointment of the 3[rd] respondent. It is the case of the 1[st] respondent that no reasons need to be stated as the Rule provides that the services of a Special Public Prosecutor at any time before the expiry of his normal term of appointment without assigning any reason. However, in the course of arguments certain materials have been handed over by the learned Public Prosecutor to convince this Court that the opinion of the District Collector, the District Police Chief and the Director General of Prosecution was sought before passing the order. 19. Records reveal that the instant was a case charge sheeted alleging the offence of murder against a Minister of the State Cabinet and few others. Ordinarily, the said case is to be conducted by the Public Prosecutor appointed by the State Government under Section 24 of the Code. However, sub-section (6) of Section 24 provides an exception to the general rule which can be adopted in appropriate cases. It states that 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 legislative policy underlying Subsection (6) of Section 24 of the Code is to preserve the interests of the **W.P(C) No.27334/18** **14** State and to protect public interest in individual cases or class of cases. For justifiable reasons, the Government in Power was satisfied that public interest justified the appointment of the 3[rd] respondent as the Special Public Prosecutor. His skill and competency is not in doubt and has not been challenged by the 1[st] respondent. 20. The Prosecutor is indubitably an officer of the Court and is expected to assist the Court in arriving at the truth in a given case. The Prosecutor has to vigorously and conscientiously prosecute the case so as to serve the high public interest of finding out the truth and in ensuring adequate punishment to the offender. At the same time, it is no part of his duty to secure by unfair means a conviction in a given case. He has to safeguard public interest in prosecuting the case. Public interest also demands that the trial should be conducted in a fair manner, heedful of the rights granted to the accused under the laws of the country including the Code. The Prosecutor, while being fully aware of his duty to prosecute the case vigorously and conscientiously, must also be prepared to respect and protect the rights of the accused. In the discharge of his duties of a Public Prosecutor, he is ordained by law, by professional ethics and by his role as an officer of the Court to employ only such means as are fair and legitimate and desist from resorting to unjust and wrongful **W.P(C) No.27334/18** **15** means. (See **P.G. Narayankutty v. State of Kerala** (1982 CriLJ 2085); **Vijay Valia v. State of Maharashtra** (1986 CriLJ 2093); **Susey Jose v. G. Janardhana Kurup** (1994 CriLJ 2780). 21. It is pellucid from the materials made available that the 3[rd] respondent was diligently prosecuting the case with all the fire power at his command. One need not look further than Exhibit P3 petition filed by the 3[rd] respondent to appreciate the earnestness with which he was prosecuting the matter. Exhibit P3 is the petition filed by him before the Sessions Court with a prayer to arraign some persons who were left out by the Investigating officer. His efforts found fruition and this is evident from the order dated 24.12.2016 passed by the learned Sessions Judge. By the very same order, the petition filed by the accused for discharge was also dismissed. It was, after a lapse of more than a year, thereafter that Exhibit P5 terminating the appointment of the 3[rd] respondent was issued by the 1[st] respondent. 22. The records made available shows that the reason for terminating the appointment is his purported allegiance to the rival political party. In **P.G. Narayankutty** (supra), U.L Bhat J., as he then was had occasion to observe that in every case where one of the parties involved is of a particular political persuasion, no Public Prosecutor, who shares the particular persuasion, should be allowed **W.P(C) No.27334/18** **16** to conduct the prosecution cannot be a sound proposition. It was held that acceptance of such a state of affairs as an invariable rule would not only be contrary to sound practice, but would seriously offend the dignity of the Bar. Every socially conscious individual may have opinions on all social and political matters and if that is taken as the criteria to ascertain the individuals eligibility to take up an assignment, it would lead to undesirable results. One cannot also fail to take note of the ominous note of caution sounded by another learned Single Judge of this Court in **Harish Kumar V State of Kerala and Others** (2010 (3) KHC 467). His Lordship had occasion to observe that as soon as change of Government occurs, the Ministry appoints persons of their choice after getting a panel from the District Magistrate and the person so appointed continue in the office during the pleasure of the Ministry. Though the said practice was strongly deprecated by this Court, nothing meaningful has transpired. If the political allegiance of a Prosecutor is taken as the benchmark instead of his competence, integrity, sense of responsibility and devotion to the duty as ministers of justice, it would result in travesty of justice. Having considered the entire aspects, I am inclined to agree with the assertion of the petitioner that the termination of appointment of the 3[rd] respondent was on political considerations. The said fact is clearly evident from the circumstances presented in the instant case. In view **W.P(C) No.27334/18** **17** of the above, the termination of appointment of the 3[rd] respondent on the ground that he owes allegiance to a political party cannot be sustained. 23. I am unable to accept the submission of Sri.Manu that the Government has acted in terms of Rule 11(4) of the KGLO Rules. There cannot be any doubt that the Hon'ble Supreme Court in **Liberty Oil Mills** (supra) had laid down that the expression 'without assigning any reason' implies that the decision has to be communicated, but reasons for the decision need not be stated. However, it was also observed in the same decision that reasons must exist, otherwise, the decision would be arbitrary. It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. The non-assigning of reasons or the non-communication thereof may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the object for which the power is given would be arbitrary and, therefore, against public policy. 24. This Court, in exercise of the powers under Article 226 of **W.P(C) No.27334/18** **18** the Constitution, has the power to issue a mandamus where the Government has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or has exercised such discretion malafide or on irrelevant considerations or by ignoring relevant considerations and materials or has acted in such a manner as to frustrate the object for which such discretion is conferred. I am of the view that the termination of the appointment of the 3[rd] respondent was whimsical and arbitrary and on irreverent considerations. The same is liable to be set aside. For the aforementioned reasons, Exhibit-P5 is quashed. The 3[rd] respondent shall be permitted to conduct the prosecution of S.C.No. 68 of 2018 on the file of the Court of Session, Thodupuzha. Parties are ordered to suffer their respective costs. Sd/- **RAJA VIJAYARAGHAVAN V., JUDGE** ps/8/05/19 //TRUE COPY// P.A. TO JUDGE **W.P(C) No.27334/18** **19** ## **APPENDIX** ## **PETITIONER’S EXHIBITS:** - P1:- COPY OF THE ORDER NUMBERED AS G.O(RT) NO.2043/2013/HOME DATED 22.07.2013. P2:- COPY OF THE JUDGMENT DATED 19.11.2015 IN W.P© NO.28838OF 2014 ON THE FILES OF THIS COURT. P3:- COPY OF THE PETITION NUMBERED AS C.M.P. NO.3178/2016 DATED 6.9.2016 FILED BY SPECIAL PUBLIC PROSECUTOR IN SC. NO.68/2016 ON THE FILES OF ADDITIONAL SESSIONS COURT IV, THODUPUZHA. P4:- COPY OF THE ORDER DATED 24.12.2016 IN CRL.M.P. NO.2119/2013/HOME DATED 24.07.2018. P5:- COPY OF THE ORDER NUMBERED AS G.O.(RT) NO.2119/2013/HOME DATED 24.07.2018. P6:- COPY OF THE CIRCULAR NUMBERED AS NO.264/C4/2017/HOME, DATED 18.9.2017 ISSUED BY THE 1ST RESPONDENT. ## **RESPONDENTS’ EXHIBITS:-NIL**