K.P. Yousuf v. The Additional Secretary to Government Home (C) Department, Government of Kerala, and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 17TH DAY OF OCTOBER 2019 / 25TH ASWINA, 1941** ## **WP(C).No.25323 OF 2019(M)** ## **PETITIONER:** **K.P.YOUSUF AGED 73 YEARS S/O LATE ABOOBACKER, SABIRA MANZIL, P O KURICHIYIL, NEW MAHE, THALASSERY, KANNUR DISTRICT - 670 102** **BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SRI.G.RENJITH SMT.R.S.ASWINI SANKAR SRI.T.H.ARAVIND** ## **RESPONDENTS:** **1 THE ADDITIONAL SECRETARY TO GOVERNMENT HOME (C) DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001, REPRESENTING THE STATE OF KERALA** - **2 THE DISTRICT COLLECTOR KANNUR - 670 101** - **3 K. VISWAN ADVOCATE. COURT ROAD JUNCTION, THALASSERY, KANNUR - 670 101** ## **ADDL.R4 IMPLEADED** **4 ADDL.R4.NAFNAS K.P., KALLINPURATH, KODIYERI AMSOM, THALASSERY, KANNUR. IS SUOMOTO IMPLEADED AS ADDITIONAL R4 AS PER ORDER DATED 25.09.2019 IN WP(C) 25323/2019.** ## **R1BY DIRECTOR GENERAL OF PROSECUTION P SREEDHARAN NAIR** **R2 BY SRI.C S HRITHWIK-SR PP R3 BY ADV. SRI.ABHISHEK KURIAN R3 BY ADV. SMT.ANUROOPA JAYADEVAN R4 BY ADV. SRI.P.N.SUKUMARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-092019, THE COURT ON 17-10-2019 DELIVERED THE FOLLOWING:** **WP(C).No.25323 OF 2019(M)** **2** ## **R.NARAYANA PISHARADI, J** ************************ W.P.(C) No.25323 of 2019 -----------------------------------------------Dated this the 17[th] day of October, 2019 ## **J U D G M E N T** This writ petition is filed for quashing the appointment of the third respondent as Special Public Prosecutor in the case S.C.No.471/2011 on the file of the Additional Sessions Court-III, Thalassery. 2. The material averments in the writ petition can be stated as follows: The petitioner is the father of Salim, who was murdered on 23.07.2008. The case S.C No. 471/2011 relates to the murder of the son of the petitioner. As per Ext.P4 notification, the third respondent has been appointed as the Special Public Prosecutor for the conduct of the prosecution in the aforesaid case, which is based on Crime No.515/2008 of Thalassery police station. 3. The petitioner has filed W.P.(C) No.5896/2013 before this Court for issuing a direction to entrust the investigation of the aforesaid case by the Central Bureau of Investigation (CBI). The petitioner received Ext.P2 lawyer notice in February, 2017 from the third respondent in his capacity as the lawyer representing one **WP(C).No.25323 OF 2019(M)** **3** K.P.Prabhakaran. In Ext.P2 notice sent by the third respondent, it is stated that the petitioner has made baseless and malafide allegations with regard to the death of the son of Prabhakaran. The petitioner has sent Ext.P3 reply to Ext.P2 lawyer notice. 4. The third respondent usually appears for activists, workers and leaders of Communist Party of India (Marxist). He has got close association with that political party. He had appeared for the leaders and activists of CPI(M) in Thalassery Courts in several cases. 5. The petitioner has recently got information that the third respondent has been appointed as the Special Public Prosecutor in the case relating to the murder of his son. Since the petitioner is not a party in the case pending before the Court of Session, he was not aware that the third respondent was appointed as the Special Public Prosecutor in the case. If the third respondent conducts the prosecution of the case, justice would be totally denied to the petitioner. 6. Heard learned senior counsel for the petitioner, learned senior counsel for the third respondent, learned counsel for the fourth respondent and the learned Public Prosecutor. 7. Learned senior counsel for the petitioner has challenged Ext.P4 notification, appointing the third respondent as Special Public **WP(C).No.25323 OF 2019(M)** **4** Prosecutor in the case, on the ground that the aforesaid appointment is made not in public interest. Learned senior counsel has contended that the political inclinations of the third respondent are well known and that the petitioner cannot expect that justice would be done by conducting the prosecution by such a person. Learned senior counsel has also reiterated the several other grounds mentioned in the writ petition challenging the appointment of the third respondent as Special Public Prosecutor in the case. 8. Learned senior counsel for the third respondent submitted that the third respondent has got no special interest to hold the post of Special Public Prosecutor in the case. However, learned senior counsel submitted that the allegations made against the third respondent in the writ petition are totally baseless. 9. Learned counsel for the fourth respondent would contend that the appointment of the third respondent as Special Public Prosecutor in the case was made at his instance who was injured in the same incident. Learned counsel would submit that there are no sufficient grounds to quash Ext.P4 notification. 10. Section 24(8) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) provides that the Central Government or the State Government may appoint, for the purposes **WP(C).No.25323 OF 2019(M)** **5** 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. 11. The legislative policy underlying sub-section (8) of Section 24 of the Code is to preserve the interests of the State and to protect public interest in individual cases or class of cases; for that purpose power is vested in the Government to appoint Special Public Prosecutors in appropriate cases, where public interest demands such a course (See **Narayanankutty v. State of Kerala : 1982 KLT 605** ). 12. Learned senior counsel for the petitioner submitted that Ext.P4 notification does not reveal that the third respondent was appointed as a Special Public Prosecutor in the case in public interest. In the explanatory note given to the notification, it is only stated that the Government considered it necessary to appoint him as Special Public Prosecutor. 13. Merely for the reason that the notification issued for appointment of a Special Public Prosecutor does not contain the words “public interest”, it cannot be found that such appointment was not made in public interest. The case relating to the murder of the son of the petitioner was investigated by the Crime Branch. That itself shows that there was public interest involved in the case. Moreover, the **WP(C).No.25323 OF 2019(M)** **6** petitioner himself has got no plea that it is not a case which does not involve public interest. His plea is only with regard to the unsuitability of the third respondent to hold the post of Special Public Prosecutor in the case. 14. It may be true that it was at the request of the fourth respondent that the third respondent was appointed as Special Public Prosecutor in the case. It is not enough for one to call in question the appointment of a Special Public Prosecutor only on the basis of the plea that it was made at the request of a person injured in the incident. It must be shown that the Government had failed to apply its mind with regard to the nature of the case before appointing a Special Public Prosecutor. 15. Another ground of challenge against the appointment of the third respondent as Special Public Prosecutor in the case is that he is a person closely associated with CPI(M) and its leaders. The decision in **Narayanankutty** (supra) cited by the learned senior counsel for the petitioner itself gives the answer to this contention. It has been stated in **Narayanankutty** (supra) as follows: _“The Government in the instant case were satisfied that public interest justified the appointment of Special Public Prosecutor. The necessity or desirability of such appointment is not challenged in this original petition. This is not to say that in every case where one of the_ **WP(C).No.25323 OF 2019(M)** **7** _parties involved is of a particular political persuasion, no Public Prosecutor, who shares the particular persuasion, should be allowed to conduct the prosecution. To accept 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 as such”._ (emphasis supplied). 16. In this context, it is to be noted that the petitioner has not challenged the professional competency of the third respondent to conduct the prosecution of the case. Under 'ground C' in the writ petition, it is stated that the third respondent may have professional competence in dealing with murder cases. 17. It is stated in the writ petition that a lawyer who has been actively involved in defending party leaders of CPI(M) has become Prosecutor in a case where there are allegations against such party members. There is no basis for this contention. The petitioner has got no plea that the accused in the case are party workers of the CPI(M). 18. Based on the provisions contained in Rules 7(1) and (2) of the Rules Regarding Conditions of Practice of Advocates, 1969 (framed by the High Court of Kerala), learned senior counsel for the petitioner would contend that appointment of the third respondent as the Special Public Prosecutor in the case would result in conflict of interest. This **WP(C).No.25323 OF 2019(M)** **8** contention is based on Ext.P2 lawyer notice sent by the third respondent. 19. There is no merit in the aforesaid contention. Ext.P2 lawyer notice was sent by the third respondent to the petitioner not in his personal capacity. It was sent in his capacity as a lawyer representing one Prabhakaran. It is stated in the writ petition that it amounts to gross professional misconduct to accept the position of Special Public Prosecutor after acting for one of the parties who is likely to become a witness in the case. Prabhakaran, on behalf of whom Ext.P2 notice was sent by the third respondent, is not an accused or a witness in the case S.C.No.471/2011. The petitioner herein is also not a witness in that case. Therefore, there is no basis for the allegation regarding professional misconduct on the part of the third respondent or conflict of interest raised on the basis of Rules 7(1) and 7(2) of the Rules Regarding Conditions of Practice of Advocates, 1969. 20. Ext.P4 notification is dated 19.09.2017. It is stated in the writ petition that the trial of the case was scheduled to commence on 01.10.2019. The writ petition was filed only on 23.09.2019. The plea of the petitioner is that he came to know about the appointment of the third respondent as Special Public Prosecutor in the case only as per Ext.P5 information received by him under the Right to Information Act. **WP(C).No.25323 OF 2019(M)** **9** It is very difficult to believe this plea. The information under Ext.P5 is given not to the petitioner but to one Sajeer. Even if it is accepted that the petitioner got information regarding the appointment of the third respondent as the Special Public Prosecutor only under the Right to Information Act, Ext.P5 would reveal that such information was given as per letter dated 20.06.2019 by the Public Information Officer. But, this writ petition was filed only three months later, just before the commencement of the trial of the case in the Court of Session. In such circumstances, the contention of the fourth respondent that the attempt of the petitioner is to somehow derail the schedule of trial of the case, cannot be totally ignored. 21. It is not proper to jeopardize the trial of the case by quashing the appointment of the Special Public Prosecutor in the midst of the trial of the case. The petitioner should have approached this Court at the proper time, on proper grounds, challenging the appointment of the third respondent as Special Public Prosecutor in the case. 22. The petitioner has no case that necessary formalities have not been complied with before the appointment of the third respondent as Special Public Prosecutor in the case. A mere wrong decision, without anything more, in most of the cases, will not be sufficient to attract the power of judicial review. While exercising **WP(C).No.25323 OF 2019(M)** **10** power of judicial review, the court is more concerned with the decision making process than the merit of the decision itself (See **State of Maharashtra v. Prakash Prahlad Patil : AIR 2010 SC 463** ). 23. In the light of the discussion above, I find no sufficient grounds to quash Ext.P4 notification. Consequently, the writ petition is dismissed. Sd/- **R.NARAYANA PISHARADI, JUDGE** jsr **WP(C).No.25323 OF 2019(M)** **11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CHARGE PRODUCED IN SC NO. 471 OF 2011 ON THE FILES OF THE ADDL. SESSIONS JUDGE-III, THALASSERY** **EXHIBIT P2 TRUE COPY OF THE LAWYER NOTICE DATED 14.02.2017 SENT BY THE 3RD RESPONDENT TO THE PETITIONER EXHIBIT P3 TRUE COPY OF THE REPLY NOTICE DATED 03.03.2017 SENT ON BEHALF OF THE PETITIONER EXHIBIT P4 TRUE COPY OF G O (RT) NO. 2467/2017/HOME DATED 19.09.2017** **EXHIBIT P5 TRUE COPY OF COMMUNICATION DATED 20.06.2019 RECEIVED UNDER THE RIGHT TO INFORMATION ACT** **RESPONDENTS EXHIBITS: NIL** **TRUE COPY** **P.A TO JUDGE** ## **LSN**