The Additional Chief Secretary to Government, Home (C) Department, Thiruvananthapuram & The State of Kerala, represented by the Chief Secretary to Government of Kerala, Government Secretariat, Thiruvananthapuram v P P Prabhakaran

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU THURSDAY, THE 22ND DAY OF FEBRUARY 2018 / 3RD PHALGUNA, 1939 WA.No. 462 of 2018 IN WPC. 5747/2017 AGAINST THE JUDGMENT IN WP(C) 5747/2017 of HIGH COURT OF KERALA DATED 12-12-2017 APPELLANT(S)/RESPONDENTS IN W.P.(C) 1 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME (C) DEPARTMENT, THIRUVANANTHAPURAM. 2 THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY SR.GOVERNMENT PLEADER SRI.V.MANU RESPONDENT(S)/PETITIONER IN W.P.(C): P P PRABHAKARAN, S/O. KUNHAPPA NAMBIAR, PRABHATHAM, MUKKUNNU, KUPPAM P.O., KANNUR DISTRICT. BY SRI.SUNNY MATHEW THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.No. 462 of 2018 IN WPC. 5747/2017 ## APPENDIX ## APPELLANT'S ANNEXURES I: TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.326/2014 A/W ENGLISH TRANSLATION II: TRUE COPY OF THE FINAL REPORT IN CRIME NO.326/2014 A/W ENGLISH TRANSLATION //TRUE COPY// P S TO JUDGE CSS ## **Antony Dominic, C.J. & Dama Seshadri Naidu, J.** ------------------------------------------- W.A.No.462 of 2018 -------------------------------------------- Dated this the 22[nd] day of February, 2018 ## **JUDGMENT** ## **Antony Dominic, C.J.** This writ appeal is filed by the respondents in WPC No.5747 of 2017 which was allowed by the learned Single Judge by judgment dated 12[th] December 2017. 2. We heard the Government Pleader appearing for the appellants and the learned counsel appearing for the respondent. 3. The short facts of the case, as stated by the appellants, are that on 13.5.2014 at 7 p.m. the accused in S.C.No.401/2016 of the Sessions Court, Thalassery, barged into the residence of the respondent, and with deadly weapons attacked him, W.A.No.462 of 2018 2 his wife and his son Prejul causing very serious injuries. Soon thereafter Prajul succumbed to the injuries while undergoing treatment. This led to the of a crime which was registration eventually charge-sheeted and committed to the Sessions Court with offences punishable under Sections 143, 147, 148, 447, 427, 323, 324, 326, 307, 302 and 506 (ii) read with Section 149 IPC. 4. It appears that the respondent, the de facto complainant, submitted an application to the then Home Minister of the State, requesting for the appointment of Advocate Sri C.K.Sreedharan as Special Prosecutor in the case. A copy of the representation made available by the learned Government Pleader would show that the respondent had alleged that the accused are affluent people with political connections and that, therefore he apprehended that they were likely to sabotage the investigation and prosecution of the case. The matter was considered by the Government and Ext.P1 is the W.A.No.462 of 2018 3 report submitted by the Director General of Prosecution, Kerala on 19.4.2016. This report shows that he recommended the appointment of the aforesaid advocate as the Special Prosecutor for conducting the prosecution of the case. It appears that the matter was processed by the Government and Ext.P2 is the notes in the file which shows that the recommendation of the DGP was accepted by the Government and it was proposed to make appointment of Sri.C.K.Sreedharan as the Special Prosecutor subject to the fee as prescribed in the Kerala Government Law Officers Rules, 1978. The file contains endorsement of officers including the Joint Secretary to Government, Home Department, Additional Chief Secretary to Government, Home & Vigilance Department and in addition, the then Chief Minister himself. On that basis Ext.P3 draft notification appointing Sri C.K.Sreedharan as the Special Prosecutor was also prepared. W.A.No.462 of 2018 4 5. Soon, there was a turn of events and the Government issued letter dated 30.6.2016 requesting for a fresh report from the Director General of Prosecution who had assumed office in the meanwhile. Ext.P4 is the report submitted by the DGP where he expressed his opinion that this was not a fit case wherein appointment of a Special Prosecutor was necessary. On that basis, the Government issued Ext.P5 order dated 23.9.2016 informing the de facto complainant that his request for appointment of the Special Prosecutor is rejected. He was further informed that he shall be at liberty to engage a counsel of his choice to assist the prosecution in view of the provisions contained in Section 24(8) of the Cr.P.C. It is in this background the de facto complainant filed the writ petition. 6. The learned Single Judge, by the judgment under appeal, set aside Ext.P5 and directed the Government to publish the notification appointing Sri C.K.Sreedharan, Advocate Hosdurg, Kasargode as W.A.No.462 of 2018 5 Special Prosecutor for conducting prosecution in S.C. 401/2016 of the Sessions Court, Thalassery. It is this judgment which is challenged before us. 7. The learned Government Pleader contended that the judgment is the outcome of the inferences drawn by the learned Single Judge that Exts.P4 and P5 were motivated by political ill-will. According to the learned Government Pleader, the very representation submitted by the de facto complainant did not contain any such allegation and therefore, the conclusion arrived at by the learned Single Judge has no basis. Counsel also contended that Ext.P2 or Ext.P3 did not result in a Government order and that, therefore, the Government always was at liberty to reconsider the matter. In support of this contention, the counsel relied on a Division Bench judgment of this Court in **State of Kerala** v **P.Krishnan Nair and another** (2017(1) KHC 719). These contentions were refuted by the counsel appearing for the de facto complainant. W.A.No.462 of 2018 6 8. We have considered the submissions made. As regards the contention of the learned Government Pleader regarding the inference of the learned Single Judge about the political motives behind Exts.P4 and P5, we agree with the learned Government Pleader that the complaint which led to Exts.P1 to P3 did not contain any allegation of political motives behind either the murder or the request of the de facto complainant to seek appointment of Special Prosecutor. Such allegations were raised in the writ petition and we find that those allegations were contradicted by the appellants in the statement filed by them. In such circumstances, we find force in the contention of the learned Government Pleader. 9. There is also merit in the plea of the learned Government Pleader that Ext.P2 or Ext.P3, the note file or the draft notification, cannot be construed as a Government decision as contemplated under Article 166 of the Constitution of India. This conclusion is ## W.A.No.462 of 2018 7 ## fully supported by the judgment of this Court in **State of Kerala v P.Krishnan Nair** (supra) where the ## Division Bench has held thus: “We are unable to accept the aforesaid contention raised by the learned counsel for the respondent in view of the law laid down by the Apex Court in Shanti Sports Club v Union of India, 2010 KHC 6158 : 2009(15) SCC 705 : AIR 2010 SC 433, a decision relied on by the learned Advocate General, in which the Apex Court, after referring to its earlier decision in State of Bihar v Kripalu Shankar, 1987 KHC 988 : 1987(3) SCC 34 : 1987 SCC (Crl) 442 : AIR 1987 SC 1554 : 1987(2) SLJ 96 : 1987 CrlLJ 1860, reiterated that Art.166(1) requires that all executive action of the State Government shall be expressed to be taken in the name of the Governor. This clause relates to cases where executive action has to be expressed in the shape of a formal order or notification. It prescribes the mode in which an executive action has to be expressed. Noting by an official in the departmental file will not, therefore, come within this Article nor even noting by a Minister. Every executive decision need not be laid down under Art.166(1) but if it takes the form of an order it has to comply with Art.166(1). Art.166(2) states that orders and other instruments made and executed under Art.166(1) shall be authenticated in the manner prescribed. While clause (1) relates to the mode of expression, Clause (2) lays down the manner in which the order is to be authenticated and Clause (3) relates to the making of the rules by the Governor for the more convenient transaction of the business of the Government. After analysing the aforesaid clauses of Art.166 of the Constitution, the Apex Court observed that Art.166, therefore, makes it clear that the noting in a file gets culminated into an order affecting right of parties only when it reaches the Head of the Department and is expressed in the name of the Governor, authenticated in the manner provided under Art.166(2). (See para.45 at page 729 of SCC). W.A.No.462 of 2018 8 10. However, we cannot ignore the fact that this is a case in which the de facto complainant and his family members were allegedly brutally attacked and as a result thereof he lost his son. He has expressed genuine apprehensions in the representation made by him to the Home Minister of the State where it is inter alia stated that the accused are affluent and politically connected persons and are capable of derailing the investigation and trial of the case. These allegations made by the de facto complainant were considered by the Director General of Prosecution and in his report, he has stated that on meticulous analysis of the facts and circumstances of the case, it appeared to him to be a very sensational case and the public at large were closely watching the very result of the trial. According to him, any lapse in the conduct of the prosecution will invite public wrath and resentment and that the same would badly affect the profile of the prosecution machinery in the State. Therefore, according to him, in cases of W.A.No.462 of 2018 9 this nature, prosecution should be conducted properly and effectively or otherwise the confidence of the public in the efficiency of the administration of justice will be badly affected. It is on the basis of this, he has made Ext.P1 recommendation for appointment of the Special Prosecutor. 11. The recommendation of the Director General of Prosecution was accepted by the Government as is seen from Ext.P2. When the matter had progressed thus far, suddenly and without any material justifying a different course being placed on record, the Government obtained a fresh opinion from the successor Director General of Prosecution and it is on that basis Ext.P5 order was issued. This, according to us, was totally unwarranted and the reconsideration of the matter was absolutely without any material or basis. Therefore, though we find force in the submissions made by the learned Government Pleader, we still do not see any reason to interfere with the ultimate order passed by the W.A.No.462 of 2018 10 learned Single Judge directing that the Special Prosecutor be appointed as recommended by the Director General of Prosecution. The writ appeal is dismissed. Sd/- **Antony Dominic Chief Justice Sd/Dama Seshadri Naidu Judge** css/