WA.No.439 of 2020

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 06TH DAY OF JULY 2020 / 15TH ASHADHA, 1942** ## **WA.No.439 OF 2020** **AGAINST THE ORDER/JUDGMENT IN WP(C) 5610/2018(A) OF HIGH COURT OF KERALA** ## **APPELLANT/S:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETEARY, HOME(C) DEPARTMENT,**| ||**GOVERNMENT OF KERALA, THIRUVANANTHAPURAM 695 001.**| |**2**|**THE SECRETARY, HOME (C) DEPARTMENT, GOVERNMENT OF**| ||**KERALA, THIRUVANANTHAPURAM**| |**3**|**THE STATE POLICE CHIEF,**| ||**POLICE HEAD QUARTERS, TIRUVANANTHAPURAM.**| |**4**|**THE DISTRICT POLICE CHIEF,**| ||**KASARGOD DISTRICT.**| **BY GOVERNMENT PLEADER** ## **RESPONDENT/S:** **ABDUL KAREEM K.A. MANAGING PARTNER, RAJADHANI GOLD SUPER MARKET, KANHANGAD P.O, KASARGOD DISTRICT 671 315 R1 BY ADV. SRI.T.K.VIPINDAS R1 BY ADV. SRI.K.V.SREE VINAYAKAN** **OTHER PRESENT:** **SRI.K.V.SOHAN, STATE ATTORNEY FOR APPELLANT.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.439 OF 2020 ..2.. ## **JUDGMENT** ## S.Manikumar, CJ. Instant Writ Appeal is against the judgment dated 31.05.2019 in WP(C) No.5610 of 2018, by which the writ court, taking note of the number of cases pending on the file of the Judicial First Class Magistrate Court, Hosdurg, and the cases to be handled by the Assistant Public Prosecutor in charge of the said court, appointed Adv.K.Prabhakaran, Roll No.K/243/1985 as Special Public Prosecutor to conduct the trial in CC No.1264 of 2011 pending on the file of the Judicial First Class Magistrate Court-I, Hosdurg, in terms of the Kerala Law Officers (Appointment and Condition of Service and Conduct of Case) Rules, sustaining the grievance of the writ petitioner that the regular Assistant Public Prosecutor would not be in a position to devote time and energy to conduct a case of theft of gold involving crores of rupees. Writ court further accepted the contention of the writ petitioner that cause of justice would suffer unless a diligent and skilled prosecutor is appointed. 2. Impugned judgment dated 31.05.2019 in WP(C) WA.No.439 OF 2020 ..3.. ## No.5610 of 2018 is assailed on the following grounds: “A) This Hon'ble Court has failed to consider the reasons behind the respondents' decision to reject the petitioner's request for the appointment of a Special Public Prosecutor. The Circular clearly states that “ the appointment of Special Public Prosecutor under Section 24(8) of Cr.PC shall be made by the Government either suo moto or on the basis of the application by any aggrieved person only when public interest demands it and not to vindicate the grievances of private persons. However, such appointment shall be made only on being satisfied that that case cannot be adequately handled by any of the duly appointed Public Prosecutors who are receiving salary out of Government funds and on being satisfied that the case is highly sensational and generates extensive public interest of such magnitude as to necessitate the appointment of a more competent Advocate of good standing, as a Special Public Prosecutor. Appointment of Special Public Prosecutor in a particular case is purely the discretion of the Government Para 3(a) of the Circular No. 264/C4/2017/Home dated 18.09.2017 stipulates that the appointment of Special Public Prosecutor u/s 24(8) of CrPC shall be made by the Government either suo-moto or on the basis of application filed by any aggrieved person only when public interest demands and not to vindicate the grievance of private person. B) This circular also lays down the specific criteria and categories of cases which shall ordinarily be considered for appointment of a Special Public Prosecutor. That the case in hand is only a theft case which does not come under any of the categories of cases mentioned in Clause 3(a) and (b) of the circular which are listed WA.No.439 OF 2020 ..4.. ## below:- (i) Cases such as heinous murder of kidnapping or rape particularly or minor and which are gruesome in character shocking the collective conscience of the community at large. (ii) Offences against property having wide ramifications such as money chain dealings, cheating cases/land grab cases, land mafia cases are or other white collor crimes involving fabrication of records, documents etc. apartment frauds, investment fraud etc. (iii) Cases involving police atrocities, custodial death, etc. where the prime accused are police personnel. (iv) Offices affecting human body in which hired assassins had been engaged. (v) Crimes having inter – state ramifications. (vi) Crimes of major magnitude involving terrorism. (vii) Cases investigated by Special Investigation Team constituted by Government under Se.21(2)(b) of the Kerala Police Act, 2011 and committed in an extremely brutal and dastardly manner due to political or communal vengeance so as to arouse intense indignation of the community. (viii) Cases which requires specialized knowledge, such as cyber crimes, intellectual property rights. Since case under the question is only a theft case, service of the Special Public Prosecutor is not necessary in this case. There are numerous theft cases in all over the State, as such it is no possible to appointment of the Special Public Prosecutors in theft cases, since these causes to financial burden to the State ex-chequer. C) The petitioner has no specific grievance that the duly appointed Public Prosecutor is motivated or incapable of adequately handling the case. It is still has to adherence to General condition set out in WA.No.439 OF 2020 ..5.. paragraph 3 of circular and quoted above. To specify the appointments are permitted only on being satisfying the duly appointment of the Public Prosecutor adequately handling the case, and that the case is highly sensational one and that generate extensive public interest of such magnitude as to necessitate the appointment of a more competent advocate of good standing. There is nothing in the fact of the case to show that the case fits the above classification. The Government had its own discretionary powers in posting Special Public Prosecutor in any case. The particular points had to be considered by the Government to is condition that a Special Public Prosecutor is inevitable in of this case it has to bringing justice to petitioner. The Public Prosecutor who is already available in the Court can handle this case also. D) Under Section 24(8) of the Cr.PC the petitioner could have requested for the Court's sanction to engage an advocate of her choice to assist the duly appointed Public Prosecutor. This is a fair and reasonable option which could have dispelled the petitioner's purported apprehension. In any event, as explained above, in the facts and circumstances of the case, there existed no grounds for appointment of a Special Public Prosecutor in the stead of the duly appointed of Public Prosecutor. E) The learned Single Judge ought to have considered that Assistant Public Prosecutor attached to the Judicial First Class Magistrate Court I, Hosdurg is over burden with the other cases is not true. The latest monthly performance report that in march of 2019 of the Assistant Public Prosecutor in the above said court shows that she has to handle only 2119 cases. In some other Courts of the State the Assistant Public Prosecutor have to handle 15000-20000 cases in a single court. This show that the work load WA.No.439 OF 2020 ..6.. of the Government Prosecutor attached to Judicial First Class Magistrate Court- I, Hosdurg is low one compared to the other Courts. The Hon'ble Court ought to have considered these issues before deciding that it is fit case for appointment of a Special Public Prosecutor. F) The Hon'ble Court ought to have found that though the victim's rights are to be given due consideration, the accused' rights too are to be balanced in a trial. The following observations by Deepak Gupta J in Mallikarjun Kodagali (Dead) v. State of Karnataka & Others ((2019 2 SCC 752) are appurtenant in this regard. “96. Though the victim has rights, one cannot forget that a victim who may have suffered, may also seek revenge. Therefore, an obligation has been cast upon the State to prosecute the accused. In fact, even now a trial under CrPC has to be conducted by the Public Prosecutor or the Assistant Public Prosecutor. No private lawyer can be engaged to conduct the trial under Section 301(2) CrPC. A private person including the victim, can only instruct a pleader to act on his behalf in court but the prosecution has to be conducted either by the Public Prosecutor or Assistant Public Prosecutor and the pleader engaged by the private person can only act as per the directions of the Public Prosecutor. The reason behind this is that the victim may fabricate evidence or hide true facts whereas the Public Prosecutor or Assistant Public Prosecutor is expected to be fair to the court, to the accused and to the victim. 97. On the one hand are the rights of the victim and on the other hand, is the well settled principle of criminal jurisprudence that ever man is presumed to be innocent till proved guilty. ..” ## 3. On this day, when the matter came up for hearing, WA.No.439 OF 2020 **==> picture [20 x 8] intentionally omitted <==** Sri.T.K.Vipindas, learned counsel for the respondent/writ petitioner, submitted that he wants to place some additional materials to sustain the impugned judgment on some other points not covered in the judgment. When the learned counsel was posed with a question as to whether those additional documents now sought to be filed at this stage can be taken note of, when the reasoning of the writ court is limited only to the number of cases pending on the file of the Judicial First Class Magistrate Court, Hosdurg, to be handled by the regular Assistant Public Prosecutor. Further, on the ground of expertise (skilled and diligence), as observed by the writ court, Sri.T.K.Vipindas, learned counsel for the respondent, fairly submitted that the impugned judgment in WP(C) No.5610 of 2018 dated 31.05.2019 be set aside and the matter be remitted back to the writ court for consideration afresh based on the additional materials now sought to be placed before the writ court. 4. Placing on record the said submission of the learned counsel for the respondent/writ petitioner, there is no need to advert to the grounds raised in instant writ appeal. Impugned judgment dated 31.05.2019 in WP(C) No.5610 of 2018 is set aside WA.No.439 OF 2020 ..8.. and WP(C) No.5610 of 2018 is remitted back to the writ court for consideration afresh. Liberty is given to the respondent/writ petitioner to make a request to the writ court to accept the additional documents and to hear the writ petition expeditiously. Accordingly, instant writ appeal is disposed of. **Sd/-** **S.MANIKUMAR** **CHIEF JUSTICE** **Sd/-** **SHAJI P.CHALY JUDGE** Bka/06.07.2020