Harish Kumar v. State of Kerala and others

CR IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 WP(C).No. 13213 of 2010(Q) -------------------------SC.745/2007 of DISTRICT COURT, THALASSERY .................... PETITIONER(S): - ----------- HARISH KUMAR, S/O.RAGHAVAN, AGED 46 YEARS, DRIVER, MOOKAMBIKA, PUNNOL P.O., ACHUKULANGARA, THALASSERY. BY ADV. SRI.S.RAJEEV RESPONDENT(S): - --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE (LAW AND ORDER), POLICE HEADQUARTERS, THIRUVANANTHAPURAM. 3. DISTRICT COLLECTOR, COLLECTORATE, KANNUR. 4. PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM (CRIME NO.76 OF 1998 OF CHOKLI POLICE STATION). PUBLIC PROSECUTOR SRI. HRITHICK THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **CR** ## V.RAMKUMAR, J. ............................................ ## W.P(C) No. 13213 of 2010 -------------------------------------- Dated this the 29[th] day of July, 2010 ## J U D G M E N T In this writ petition filed under Article 226 of the Constitution of India, the petitioner who is the brother of one Shaji who was allegedly murdered by nine or more CPI (M) activists on 18.5.1998 seeks the following reliefs:- - i) A writ of certiorari quashing Exhibit P2 order dated 26.3.2007 - ii) A direction to appoint a Special Public Prosecutor to conduct the prosecution in Sessions Case Nos.34/2001 and 745/2007 on the file of the Sessions Court, Thalassery iii) To stay all further proceedings in the above Sessions Case till the appointment of the Special Public Prosecutor. **W.P(C) No.13213 of 2010** **: 2 :** **==> picture [146 x 12] intentionally omitted <==** ## 2. The case of the petitioner can be summarised as follows:- Petitioner's brother Shaji was brutally murdered on 18-5- 1998 at a place called Madapeedika. The Chockli Police registered Crime No. 76 of 1998 against the following persons:- - 1) Biiju, S/o. Paputty - 2) Sajith, S/o. Sreedharan - 3) Thaliath Shaji, - 4) Ranjith, S/o. Nanu - 5) Kalesh - 6) Manikutthu Rajivan The offences for which the F.I.R. was registered were those punishable under Sections 143, 147, 148, 341, 324 and 302 read with Sec. 149 I.P.C. Even though initially the case was registered against six persons named in the FIR, due to political influence the name of A3 was substituted by one Ayyathan Shaji and A4 to A6 were deleted from the array of accused. All the said four persons were close relatives of those who are office bearers of the ruling party either at the time of occurrence or at the time of filing the final report. Brother of Thaliyath Shaji was the local Secretary of the **W.P(C) No.13213 of 2010** ## **: 3 :** C.P. I (M) at the time of occurrence. The father of A4 and A5 (Ranjith and Kalesh) is the present local Secretary of the ruling party . Father of A6 (Rajivan) was the Branch Secretary of the party at the relevant time. When the mother of the petitioner came to know about this, she filed a private complaint for implicating all the six accused persons with witnesses in support of her contentions. The Chokli Police, who investigated the case submitted a final report, which after committal, was numbered as S.C.No.34/2001. The private complaint filed by the petitioner's mother was taken cognizance of and that was also committed to the Court of Sessions, where it was registered as S.C.No.744/2007. Both the Sessions cases are allotted to the common Public Prosecutor who is a close associate of the ruling party and who wanted to protect the interests of the four accused persons whose names were deleted by the Police. Hence, proper conduct of Sessions Case No.744/2007 by the Public Prosecutor who is politically prejudiced against the petitioner cannot be expected. As per Section 225 Cr.P.C the prosecution in a Sessions case has to be conducted by a Public Prosecutor and since the two Sessions Cases arose out of a police report and a private complaint, by virtue of Section 210 (2) Cr.P.C. both the cases are to be tried as if they arose out of a police report and a Special Public Prosecutor alone can conduct both the cases. The petitioner's mother, therefore, filed Ext.P1 application before the Home Secretary, seeking **W.P(C) No.13213 of 2010** **: 4 :** appointment of a Special Public Prosecutor under Section 24 (8) Cr.P.C. She had also suggested the name of Advocate Sri.T.Sunil Kumar, whose consent had been obtained. The Government have rejected the request and the Home Secretary has issued Ext.P2 letter dated 26.3.2007 which reads as follows:- ന�പര 65808/സ�2/2006/ആഭ�നര� ആഭ�നര (സ�) വക�പ� ത�ര�വനനപ�ര�, ത�യത� 26.03.2007 പപ�നസ�പല സസപകടറ� പ'�മത� സരസ)ത�, W/o. ര,ഘവന , അജ�ത� ന�വ,സ�, ത�ര�വങ,ട� അ�'�, ഒയല,ല� ദ5'�, കണ7ര ജ�ല8. സര വ�ഷയ�: അഭ�നര�- എസ�.സ�.34/01 (പപ�നസ�പല സസഷനസ� ജഡജ�,തലദ@ര�)- ദകസ�ല സസപഷ�ല പബ�ക� സപപ,സ�കEടസറ ന�യമ�കണസമന ത,ങള7സട അദപക എസ�.സ� 34/01 ദകസ� ഡയറ�യ�� ദകസ�ന,സപ5മ,യ സ,ഹചര�ങളN� വ�ലയ�ര�ത�യ ഡയറകര ജനറല ഓഫ� സപപ,സ�ക�Eഷന എറണ,ക�ള�, ഈ ദകസ�ല ഒര� സസപഷ�ല പബ�ക� സപപ,സ�കEടസറ ന�യമ�ദകണട സ,ഹചര�സമ,ന�� ന�ലന�ലക�ന�സല8ന� സരക,ര�സന അറ�യ�ച�ര�ക�നന�ന,ല ത,ങളNസട അദപക പര�ഗണ�ക�ഗവ,ന ന�രX,ഹമ�സല8ന� അറ�യ�ചNസക,ളNന�. വ�')സതതദയ,സട ബ� . ബ,ബ�, അണടരസസപകടറ� പപ�നസ�പലസസപകടറ�ക�ദവണട� ഉതരവ�ന പപക,ര� സസകന ഓഫ�സര ” The order rejecting her request was not communicated to the petitioner's mother. The petitioner got information **W.P(C) No.13213 of 2010** **: 5 :** regarding the order only when he approached this Court by filing a writ petition as WP(C) No.3794/2010 for a direction to dispose of Ext.P1 application. Ext.P3 is a recent order passed by the State Government on 6-5-2010 appointing a special public prosecutor to conduct Sessions Case No. 783 of 2005 on the file of the Addl. Sessions Court, Thalassery arising out of Crime No. 267/2004 of Iritty Police Station. In the affidavit in support of I.A. 10556 of 2010 the petitioner has categorically stated that in the above case registered by the Iritty Police the victim was a person belonging to C.P. I (M) the ruling party. When it came to defending a member of the ruling party the Government have without any compunction appointed a Special Public Prosecutor to conduct the above case without reference to the guidelines issued by the Government. Ext.P2 order is therefore liable to be quashed and a Special Public Prosecutor is to be appointed. ## THE STAND OF THE STATE GOVERNMENT 3. The learned Government Pleader submitted as follows:- A Special Public Prosecutor under Section 24(8) Cr.P.C **W.P(C) No.13213 of 2010** **: 6 :** cannot be appointed on a mere asking in each and every case. The same has to be considered objectively by the Government, which have issued a circular dated 25.3.1992 laying down the norms for appointment of a Special Public Prosecutor. The said circular reads as follows:- "Special Public Prosecutors are appointed by Government by invoking section 24(8) of the Code of Criminal Procedure, which provides that the Central Government or a State Government may appoint for the purpose of any case or classes of cases a person, who has been in practice as an Advocate for not less than ten years, as a Special Public Prosecutor. A large number of petitions are received by Government with the request to appoint Special Public Prosecutors and in almost all the petitions, the aggrieved parties suggest the name of the Advocates also. The Special Public Prosecutors are eligible for regulation fee prescribed in Rule 39 of the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978. The proviso to rule 39 provides that the Government may, in special circumstances, sanction the payment of fees at a higher rate or a consolidated fee to any Special Public Prosecutor. 2. Considering the volume of applications received by Government for appointment of Special Public Prosecutors and the heavy financial commitment involved, it has become necessary to formulate the following guidelines in the appointment of Special Public Prosecutors:- **(a) the appointment of Special Public Prosecutors will be permitted only** **W.P(C) No.13213 of 2010** **: 7 :** **in very exceptional circumstances, where the cases involved are highly sensational or have extensive public interest.** **(b) The appointment will be made only after consultation with the District Collector / Superintendent of Police concerned who will specifically express his view whether the appointment of Special Public Prosecutor is absolutely necessary to conduct the prosecution effectively.** **(c) If the District Collector/ Superintendent of Police is so satisfied he will also forward to Government a letter from the Advocate proposed to be appointed as Special Public Prosecutor, indicating his willingness to conduct the prosecution on payment of regulation fee prescribed in the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules 1978.** **(d) No private individual will be permitted to meet expenses connected with engagement of a Special Public Prosecutor.** **(e) Requests for appointment of a Junior Counsel to assist the Special Public Prosecutor will not be entertained when the appointment is made under Section 24(8) of Criminal Procedure Code.** 3.These instructions supersede all existing orders on the subject, and will be scrupulously adhered to." Since the present case did not fall under any of the norms in the above circular, the request of the petitioner's mother to appoint a Special Public Prosecutor was rejected by the Government and Ext.P2 order does not warrant interference by **W.P(C) No.13213 of 2010** **: 8 :** this Court. ## **JUDICIAL EVALUATION** 4. I am afraid that I find myself unable to agree with the above submissions made on behalf of the prosecution. I do not understand as to why the occurrence leading to the murder of a person has to be a highly sensational case to persuade the Government to appoint a Special Public Prosecutor. Why not in a case, as the present, where rival political interests are involved ? When the very set up of the prosecuting machinery of the State is such that it is not free from political interference and maneuvering, in a case like the present one, those at the farther end of the administration will always be vulnerable. There is nobody to lament for the premature and homicidal death of the bread-winner of a family which occurred as a bolt from the blue driving the family to a perpetual gloom, vagrancy and untold misery. When the State is espousing the cause of the victims of crimes the State has a duty to be neutral, impartial and fair. Justice to the victims should be the only consideration. The views of the State in this **W.P(C) No.13213 of 2010** **: 9 :** behalf cannot be allowed to be eclipsed by political, religious, communal or plutocratic considerations. 5. There is no whisper in Ext.P2 communication as to why a Special Public Prosecutor could not be appointed in this case. Norms in the guidelines issued by the Government in the circular extracted above have not been adverted to in Ext.P2. It was at a time when the very same circular issued by the Government has been in force that the Government issued Ext.P3 order appointing a Special Public Prosecutor in the Iritty Crime Case where the victim was admittedly a C.P.I (M) activist. Ext.P3 reads as follows:- ## GOVERNMENT OF KERALA ## HOME ( C ) DEPARTMENT ## NOTIFICATION G.O. (Rt) No. 1539/2010/Home. Dated,Thiruvananthapuram,3[rd] May 2010 S.R.O. No. 450/2010 - In exercise of the power conferred by sub-section (8) of section 24 of the code of Criminal Procedure, 1973 (Central Act 2 of 1974) , the Government of Kerala hereby appoint Shri.C.K. Sreedharan, Advocate, Hosdurg, Kanhangad as Special Public Prosecutor for the conduct of prosecution in Cr.No. 267/2004 of the Iritty Police Station (Sessions Case No. 783 of 2005 on the file of the Addl. Sessions Judge, Thalassery). By order of the Governor, **W.P(C) No.13213 of 2010** ## **: 10 :** K. Sreekumaran Nair, Joint Secretary to Government. ## Explanatory Note (This does not form part of the notification,but it is intended to indicate its general purport). Government consider it necessary to appoint Shri.C.K. Sredharan, Advocate, who is having the requisite qualification for being appointed as Special Public Prosecutor for the conduct of prosecution in Cr. No. 267/2004 of the Iritty Police Station (Sessions Case No. 783/2005 on the file of the Additional Sessions Judge, Thalassery). The notification is intended to achieve the above object”. 6. There is no dispute that the accused persons in the private complaint filed by the petitioner's mother were the very same accused who were originally arrayed by the Chockli Police. Four of them were thereafter deleted from the array of the accused. But there is still the possibility of the real culprits being arrayed as accused during trial if the prosecution were to be conducted by a competent and dexterous hand . If, on the other hand, the prosecution is conducted by the Public Prosecutor himself there is the assurance that the party men will be salvaged. In sharp contrast, when the victim in the Iritty Murder case was a party comrade, the Government had no qualms or hesitation to appoint a Special Public Prosecutor **W.P(C) No.13213 of 2010** ## **: 11 :** throwing to the winds the norms and guidelines laid down . Much strain is not necessary to infer that it was political considerations alone which weighed with the Government while appointing a Special Public Prosecutor for the Irittty case. This shows that Ext.P1 application has not been dealt with impartially and objectively. On the contrary, political considerations alone were the guiding factors which induced the Government to reject Ext.P1 application seeking the appointment of a Special Public Prosecutor. It is pertinent to note that in **State of Uttar Pradesh v. Jorimal 2004 (3) KLT (SN) 116,** the Apex Court has very pertinently observed that the District Government Pleader / Public Prosecutor plays an important role in the administration of justice and he has a public duty to perform and **his appointment should not be on political considerations and change of the panel of District Government Pleader / Public Prosecutor should not be with the change in the Government .** But what is really happening in this sphere of the prosecuting mechanism of the State is a re-introduction of the **“Spoils system”** which has been deprecated in all civilized countries and held to be alien to our constitutional scheme. **W.P(C) No.13213 of 2010** **: 12 :** (Vide para 2 of **Kumari Shrilekha Vidhyarthi v. State of U.P. - AIR 1991 SC 537;** Para 6 of S **tate of Mysore v. R.V. Bidap - AIR 1973 SC 2355** ; para 14 of **Mundrika Prasad Singh v. State of Bihar - AIR 1979 SC 1871** ; H **argovind Pant v. Reghukul Tilak and other** s **- AIR 1979 SC 1109 ; Mohanlal Tripathi v. District Magistrate, Rai Bareilly - AIR 1993 SC 2042; State of U.P. v. U.P. Law Officer's Association - (1994) 2 SCC 204; Parameswaran v. State of Kerala - 2002 (2) KLT 863 and State of Bihar v. Upendra Narain Singh and Others - (2009) 5 SCC 65** . Every new Ministry appoints its own Public Prosecutors whose tenure is very often co-terminus with the Ministry. 7. The Cr.P.C does not enjoin that the Public Prosecutors should be changed by every Ministry. The Cr.P.C does not say that the District Government Pleader/Public Prosecutor should be appointed whenever there is a change in the Ministry. But what is actually taking place is that every 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. It has been judicially settled **W.P(C) No.13213 of 2010** ## **: 13 :** that the choice of the persons to be appointed as Public Prosecutor always lies with the Sessions Judge and the role of the District Magistrate (Collector) is only to disapprove a candidate from an administrative point of view. (See Para 11 of **Harpal Singh Chauhan v. State of U.P. - AIR 1993 SC 2436).** Even though the scheme under Section 24 (4) Cr.P.C envisages the submission of a panel by the District Magistrate to the Government, the mechanics of the process as judicially settled is that the persons to be included in the panel are to be selected by the Sessions Judge who alone is competent to make the choice regarding the suitability, competency and acumen of the legal practitioner. Appointment of Government Law Officers has to be made on the basis of their qualification, experience, integrity, reliability, reputation, character and antecedents and not on the basis of their political philosophy or ideology. **( Vide Madhavan v. State of Kerala - 1997 (2) KLT 558).** Consideration of merit alone should be uppermost in the mind of the Sessions Judge while recommending names of Advocates for inclusion in the panel. The role of the District Magistrate is only to include those names in the panel and **W.P(C) No.13213 of 2010** ## **: 14 :** forward the same to the Government for eventual appointment. But what is happening very often is that, if the names recommended by the Sessions Judge are not to the liking of the party in power, the panel is either returned either from the State Capital or from the District Magistrate with a request to send fresh names for inclusion in the panel. The Sessions Judges also have a meaningful role in making their choice regarding the persons to be appointed as Public Prosecutors. It will not be proper for the Sessions Judge to put up a notice or issue a notification inviting applications or bio-data from Advocates for being included in the panel for the appointment of Public Prosecutors since that would indirectly amount to asking the Advocates to solicit work from the State. (Vide **V. Kishore** **Kumar v. State of A.P. - XXXV MLJ Reports (Criminal) 630).** Members of the legal profession are required to maintain high standard of legal ethics and dignity of profession. They are not supposed to solicit work or seek mandamus from Courts in matters of professional engagements. (See para 19 of **Harpal Singh Chauhan's Case** (Supra). The names of the persons to be included in the panel should be found out by a **W.P(C) No.13213 of 2010** ## **: 15 :** process of pick and choose so that the most meritorious candidates alone (subject, of course, to their consent) find a place in the panel. The Sessions Judges are not expected to yield to the political or other pressures in the process of selecting the right persons for eventual appointment as Public Prosecutors. Since all the members of the Bar concerned need not necessarily appear before the Court of the Sessions Judge, the Sessions Judge may not know the merit and competence of all the members of the Bar . Hence, there is nothing wrong in the Sessions Judge consulting his or her fellow judicial officers to find out the suitability of Advocates to be recommended for inclusion in the panel. 8. This was a case in which the petitioner's brother was brutally murdered way back in the year 1998. His prayer for justice in the matter of appointment of a Special Public Prosecutor stands rejected after 12 years of the occurrence. The circumstances adverted to above will show that far from an objective evaluation, political considerations alone weighed with the Government in deciding whether a Special Public Prosecutor is to be appointed or not in the case. Ext.P3 order shows that **W.P(C) No.13213 of 2010** ## **: 16 :** the Government has been taking a discriminatory attitude in the matter of appointment of Special Public Prosecutors. Hence no useful purpose will be served by this Court by requesting the Government to re-consider Ext.P1 application. I am told that the accused in the case are represented by efficient lawyers of the Thalassery Bar. Having regard to the fact that the Public Prosecutors in the districts are also appointees of the present Ministry and rival political interests are involved in the case, a fair trial cannot be expected if the conduct of the prosecution were to be entrusted with them. Accordingly, I am of the view that the petitioner should be permitted to engage his own private lawyer to conduct the prosecution under Section 301(2) Cr.P.C. It is well settled that such a private lawyer who is permitted to conduct the prosecution can examine and cross examine the witnesses and do whatever act which the Public Prosecutor is entitled to perform (Vide **Hamza v. A.P.P. - 1978 KLT 816** ). In Ext.P1 application the petitioner's mother after getting the consent of one Advocate Mr.T.Sunil Kumar had suggested his name to be appointed as Special Public Prosecutor . I see no reason why the same counsel should not be **W.P(C) No.13213 of 2010** ## **: 17 :** permitted to be engaged by the petitioner for the conduct of the prosecution in the aforementioned two Sessions Cases which can be clubbed together since all the accused persons in the private complaint do not figure in the police charge case and all the material objects and vital documentary and other evidence collected by the Police do not figure in the private complaint. The petitioner is therefore permitted to have the prosecution conducted by Advocate T.Sunil Kumar who shall be deemed to be acting under the directions of the Public Prosecutor. He would be entitled to file petitions and perform all other acts which can be performed by the Public Prosecutor. If need be, the petitioner can be permitted to change his private lawyer or engage separate lawyers in both cases and the expenses of such private lawyer shall be borne by the State in accordance with the scales of payment applicable for Special Public Prosecutors appointed under Sections 24 (8) Cr.P.C. This writ petition is disposed of as above. _Dated this the 29th day of July, 2010._ ## **V.RAMKUMAR, JUDGE** dmb/ani/