The right to be heard includes the right to be represented by an able spokesman of one's confidence. This right belongs both to the accused and the complainant. It is not only the accused who is in need of assistance, and protection of his rights but also the complainant, In fact, it is to vindicate the rights and grievances of the complainant and through him, of the State, that the prosecution is launched whether by the State or the private party. The purpose of a criminal prosecution is to bring home the guilt of the accused and to punish him. The Prosecutor has therefore to discharge his duties diligently towards this end. A Prosecutor who fails in and neglects his duties is doing no service to the administration of justice. In the discharge of his duties as a 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 to desist from resorting to unjust and wrongful means.
1. In this group of writ petitions/applications, a common question of law concerning the appointment of Special Public Prosecutor and Assistant Public Prosecutor under Sections 24(8) and 25(1) respectively of the Code of Criminal Procedure, 1973, (hereinafter referred to as 'the Code') has been raised, and hence, they are being disposed of by this common judgment. In Writ Petition No. 527 of 1986 the challenge is to the appointment of an Assistant Public Prosecutor under Section 25(1) whereas in all other writ petitions the challenge is to the appointment of Special Public Prosecutors under Section 24(8).
2. The challenge is mainly on two grounds. The first ground is that neither Section 24(8) nor Section 25(1) lays down any guidelines as to when Special Public Prosecutor Assistant Public Prosecutor should be appointed. To that extent there is an excessive delegation of power, and hence the power conferred under the said sections is arbitrary and violative of Article 14 of the Constitution. The second ground is that the appointment of Special Public Prosecutor Assistant Public Prosecutor at the instance of the complainant and paid for by him is bound to act to the prejudice of the accused because : (a) the prosecutor so appointed will be inclined in favour of the complainant and against the accused, and will therefore not conduct the prosecution impartially; (b) he may not act impartially under Section 321 of the Code in exercising his power to withdraw the prosecution. In obtaining sanction of the Government for the purpose under Rule 49(7)(a) of the Rules for the Conduct of the Legal Affairs of Government, 1984, (hereinafter referred to as the Conduct Rules) and under Rule 14 of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984, (hereinafter referred to as the Appointment Rules) there will be a conflict of interets in his duty to the State as an officer of the Government and as an advocate for the complainant who engages him; (c) in issuing certificate under Section 308 of the Code to a person who has accepted the tender of pardon, such prosecutor may not act independently; and (d) he may not render impartial advice to the State Government for preferring an appeal under Section 378(1) of the Code read with Rules 49(9)(b) and 50(1)(a) of the Conduct Rules. Some decisions were cited at the Bar in support and against these propositions.
3. Before we deal with the above contentions, we feel it necessary to draw attention to certain basic features of the administration of criminal justice in this country. The First Schedule of the Code classifies offences under the Indian Penal Code and other laws into two- categories - cognizable and non-cognizable. Some laws themselves specify offences under them as either cognizable or non-cognizable. The Code lays down different procedures for prosecution of the two classes of offences. Under Section 156 of the Code, a cognizable offence is investigated by the police without the order of the Magistrate while Section 155(1) requires the police to refer the informant of a non-cognizable offence to the Magistrate. The police cannot investigate a non-cognizable case without the order of the Magistrate. If police investigation in cognizable case and when ordered by the Magistrate in non-cognizable case, reveals an offence, the State is under an obligation to undertake the prosecution of the offender. In a non-cognizable case which is not investigated by the police and in which the complainant himself chooses to file the complaint before the Magistrate, the burden to prosecute the offender lies on the complainant. It happens some times that even when cognizable offences are committed, the State does not prosecute the offender either because the police-investigation does not reveal an offence or for other reasons. In such cases, the individual aggrieved by the offence may himself prosecute the offender. It also happens that before police-investigation is undertaken or is complete in an offence, a private party approaches the Court, and when subsequently the police submit their report, the complaint filed by the private party and the case arising out of the police report are tried together as if it is a prosecution launched by the State. What is therefore necessary to remember is that whether the offence is cognizable or non-cognizable, it is an offence against the State. Both the State and the private party have a right to prosecute the offender whether the offence is cognizable or non-cognizable, and the prosecution, whether launched by the private party or the State, is a prosecution on behalf of the State. It is further the State alone which executes the sentence, if any.
4. The Code provides that the prosecution launched by the State should be conducted by a Public Prosecutor who is defined under Sub-clause (u) of Section 2 of the Code to mean any person appointed under Section 24 and includes any person acting under the directions of a Public Prosecutor. The Prosecutor is paid by the State unless he is appointed at the request of a private party as a Special Public Prosecutor and the State requires such private party to pay his fees. In the prosecution launched by the private individual, it is of course he who pays the prosecutor. The private individual may however himself conduct his prosecution and the Code permits it.
5. There is an additional provision made in Section 25 of the Code where the State is given power to appoint one or more Assistani Public Prosecutors for conducting prosecutions in the Courts of Magistrates. This power is in addition to the power given under Section 24 to appoint Public Prosecutor. Additional Public Prosecutor and Special Public Prosecutor. The combined reading of Sections 24 and 25 shows that for conducting prosecutions in all Courts the Siaie is empowered to appoint Public Prosecutors or Additional Public Prosecutors or Special Prosecutors while for conducting prosecutions in the Courts of Magistrates, the State is empowered to appoint, in addition, Assistant Public Prosecutors.
6. It is also necessary to understand the difference between Sections 24 and 25. Under Section 24(1), the Central or the State Government is required to appoint a Public Prosecutor or one or more Additional Public Prosecutors for every High Court for conducting their prosecutions, appeals and other proceedings. Under Section 24(2), the Central Government is also empowered lo appoint one or more Public Prosecutors to conduct a case or class of cases in any district or local area. Unlike the State Government, the Central Government is not required to appoint the Public Prosecutors and Additional Public Prosecutors for the district or local area from the cadre of Prosecuting Officers or the panel prepared by the District Magistrate. The Slate Government however is required to appoint the Public Prosecutor or Additional Public Prosecutor for the district first from the cadre of prosecuting officers where such a cadre exists. Where the cadre does not exist, the State has lo make the appointment from the panel prepared by the District Magistrate with the approval of the State Government. The qualification of the Public Prosecutor or Additional Public Prosecutor, whether of the Central or the State Government, is practice as an advocate for not less than seven years. In addition to and independently of the Public Prosecutor and Additional Public Prosecutor, both the Central and the State Government are, by Section 24(8), empowered to appoint a Special Public Prosecutor for the purpose of any case or class of cases, and the qualification for such appointment is practice for not less than ten years.
As compared to these provisions for the appointment of Public Prosecutors, Additional Public Prosecutors and Special Public Prosecutors, there is no qualification laid down for the appointment of Assistant Public Prosecutors under Section 25 whether by the Central or the State Government. There is neither a State Cadre nor a panel of Assistant Public Prosecutors prepared by the District Magistrate. Any person and even a police officer not below the rank of Inspector and not concerned with the investigation of the offence concerned can be appointed as an Assistant Public Prosecutor. There is no restriction under Section 25 further that the Assistant Public Prosecutor must be appointed to conduct prosecutions in general and that he should not be appointed to conduct a case or class of cases.
7. The Appointment Rules provide for the appointment and payment of fees to Public Prosecutors and Additional Public Prosecutors appointed by the State Government whereas the Conduct Rules provide for the appointment and payment of fees to Special Public Prosecutors appointed at the instance of the State or the private party. The Conduct Rules also lay down the procedure for, the circumstances in which and the conditions on which the Special Public Prosecutors are appointed by the State at its instance and at the instance of a private party. Rules 18, 20 and 22 of the said Rules are particularly noteworthy in this connection. We will deal with them in details a little later. Suffice it to point out here that Rule 22 which deals with the engagement of Special Public Prosecutor at the request of a private party lays down a condition that in such cases his fees are to be borne by the party. The Rules made by the Central Government in this behalf are not before us nor is any appointment of Special Public Prosecutor by the Central Government under challenge before us. It is therefore not necessary to consider them here.
8. We may now deal with the contentions raised before us. The first contention is that neither Section 24(8) nor Section 25(1) lay down any guidelines for the appointment of Special Public Prosecutor or Assistant Public Prosecutor for a particular case or class of cases. We will proceed on the assumption that this is so. However we fail to understand as to how this contention can be raised on behalf of the accused. The petitioners applicants before us are the accused in the respective cases and none of them is a complainant. The accused cannot claim a right that the prosecution against him be conducted by a particular prosecutor and not by any other. The contention, if at all can be raised only by a complainant whose request to conduct the prosecution by a lawyer of his choice is rejected. It however appears, that this contention is raised on behalf of the accused on the presumption that whenever a Special Public Prosecutor is appointed whether by the State or at the instance of a private party, a fair trial is denied to the accused. This is particularly so in the latter case where, it is contended, the prosecutor is; bound to identify himself with the complainant and try to secure conviction by any means, fair or foul. The conduct of the prosecution may not be impartial and circumstances favourable to the accused and unfavourable to the complainant may not be placed before the Court.
9. According to us this argument is based on certain erroneous conceptions. We have pointed out earlier that criminal prosecutions are launched not only by the State but also by private parties. The role of the Prosecutor in any criminal trial whether at the instance of the State or a private party is to safeguard the interests of both the complainant and the accused. The right to be heard includes the right to be represented by an able spokesman of one's confidence. This right belongs both to the accused and the complainant. It is not only the accused who is in need of assistance, and protection of his rights but also the complainant, In fact, it is to vindicate the rights and grievances of the complainant and through him, of the State, that the prosecution is launched whether by the State or the private party. The purpose of a criminal prosecution is to bring home the guilt of the accused and to punish him. The Prosecutor has therefore to discharge his duties diligently towards this end. A Prosecutor who fails in and neglects his duties is doing no service to the administration of justice. In the discharge of his duties as a 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 to desist from resorting to unjust and wrongful means. This is so whether the prosecution is private or State. The duties of the Prosecutor and the requirements of a fair trial do not vary from case to case. Besides, there is always the Court to safeguard the interests of the accused and the- complainant, to control the proceedings and to check omissions and commissions of the Prosecutor. The Court is not a silent spectator to the proceedings, but} an active participant in it. It has to hold the scales even between the complainant and the accused. In the State prosecution, all relevant material including the statements of all persons recorded during the course of investigation, is furnished to the accused and the Court. If all the required witnesses are not examined or the relevant material is not brought on record, both the_accused and the Court have a right to call, for them. This role of the Court does not vary from prosecution to prosecution. To accept the argument advanced on behalf of the petitioners therefore is to hold that the trials in private prosecutions and those in State prosecutions vary in character and while the latter are fair, just and impartial, the former are not. Such a proposition is not only inequitable but also perilous. For it must logically lead to banning of all private prosecutions. It is for these reasons that we are unable to accept the theory that where Special Public Prosecutors are appointed whether paid by the State or the private party, the prosecution and the trial must be presumed to be biased, partial or unfair.
10. Even from the point of view of the complainants, the provisions of Sections 24(8) and 25(1) are not assailable on the ground of arbitrariness. Under these provisions there can be three classes of Special Public Prosecutors Assistant Public Prosecutors. (1) those appointed at the instance of the State and paid by the State; (2) those appointed at the instance of the complainant but paid for by the State; and (3) those appointed at the instance of the complainant and also paid for by him.
There are no special rules made for the appointment of Assistant Public Prosecutors under Section 25. However Rule 21 read with Rules 18 and 20 of the Conduct Rules lay down the procedure for the appointment of Special Public Prosecutors, and the terms on which they are appointed under Section 24(8) at the instance of the State, and Rule 22 of the said Rules specifies the procedure for and the terms for their appointment at the request of a private party. Rule 21 read with Rule 18 states that the proposal for the appointment of a Special Public Prosecutor for the State is to be made either by the District Magistrate, Commissioner of Police, Public Prosecutor or the Government Officer concerned through his administrative department to the Remebrancer of Legal Affairs. The proposal must contain full information among other things on (i) the nature of the case; (ii) the evidence to be brought forward; (iii) the reasons for justifying the engagement of a special counsel; (iv) the circumstances on account of which the Government Pleader concerned cannot be entrusted with the case; (v) the approximate number of days of hearing of the case and (vi) the name of the Special Public Prosecutor and the fees proposed to be paid to him. Unless, further, the Legal Remembrancer thinks it fit, the Special Public Prosecutor is not appointed. Both Section 24(8) and Rule 21 of the said Rules further lay down that the Special Public Prosecutor must be an advocate of not less than ten years' practice to his credit, and is to be appointed for a case or a class of cases. There is no reason to believe that in appointing an Assistant Public Prosecutor specially for a case or a class of cases, these guidelines will not be followed mutatis mutandis. What applies to the proposal initiated by the department will also apply to the proposal coming from the private party when the Special Public Prosecutor Assistant Public Prosecutor is to be paid by the State. We are therefore of the view that there are sufficient guidelines and there is enough control on the appointment of Special Public Prosecutors falling in the first two categories above.
As regards the Special Public Prosecutors falling in the third category viz., those sought and paid for by a private party, the procedure for their appointment is laid down in Rule 22 of the Conduct Rules. It is the Remembrancer of Legal Affairs, again, who has to consider the merits of the particular case and appoint the advocate suggested by the party. There is reason to believe that the same rule will govern the appointment of Assistant Public Prosecutors at the instance of a private party. There is further no reason why barring the financial burden which is to be borne by the private party, the other considerations mentioned in Rule 18 should not equally weigh with the Remembrancer while considering the appointment of this category of Prosecutors as well. But apart from this, we are of the view that, guidelines or no guidelines, whenever there is a request made by a private party to engage an advocate of his choice to be paid for by him, the request should be granted as a rule. The complainant in such cases is either a victim of the offence or is related to the victim or otherwise an aggrieved person. He has a right to be heard and vindicated. As stated earlier, the right to be heard implies a right to be effectively represented at the hearing of the case. He has therefore a right to engage an advocate of his choice. There is therefore no reason why the State should refuse him the permission to conduct the prosecution with the help of his advocate. If there are any reasons for refusal, they should be stated and communicated to him in writing. For the reasons are; in the circumstances, justiciable. If we are right in this view, the provision for the appointment of the third category of Special Public Prosecutors/Assistant Public Prosecutors cannot indiscriminately be challenged on the ground of arbitrariness, even by the complainants. The challenge can only be in individual cases and directed against the reasons given by the State for refusal of permission to engage Prosecutors of one's choice.
Hence we are of the view that the provisions of Sections 24(8) and 25(1) are not violative of Article 14 of the Constitution.
11. Coming now to the second ground of attack and it's various facets, we have already dealt with sub-ground (a) thereof, while discussing the first ground. The other sub-grounds are only an extension of the attack on the Special Public Prosecutor appointed and paid for by a private party and we will deal with them here.
As regards the powers of the Pubjjc Prosecutor Assistant Public Prosecutor to withdraw from prosecution under Section 321 of the Code read with Rule 15(5)(v) of the Appointment Rules which is the subject-matter of sub-ground (b), the decision to withdraw from the prosecution is to be taken by the prosecutor. What is argued is that the Prosecutor engaged by the complainant may proceed with his case notwithstanding the fact that the prosecution should have been withdrawn at an earlier stage. In the first instance, there is no untrammelled power given to the Public ProsecutorAssistant Public Prosecutor to withdraw from the prosecution. If he decides to do so, he has, under Rule 15(5)(v), to substantiate his decision and he cannot withdraw from the prosecution without first obtaining the sanction of the Government in the Home Department through the District Magistrate or the Commissioner of Police as the case may be. Further, he cannot do so without the consent of' the Court and the Court is not obliged to grant the consent merely because the Public Prosecutor/Assistant Public Prosecutor applies for it. Both the Prosecutor and the Court have to weigh the objective circumstances meriting withdrawal from the prosecution. Although, therefore, it is true that the initiative to withdraw from the prosecution has to come from the Prosecutor, there is no reason to believe that the Prosecutor appointed by the complainant will move for such withdrawal against all objective circumstances, and succeed in it.
As- regards sub-ground (e), the provisions of Section 308(1) give power to the Public Prosecutor to certify that in his opinion, a person who has accepted the tender of pardon, has either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which tender was made and, therefore, such person be tried for the offence in respect of which pardon was so tendered or for any other offence of which he appears to have been guilty, and also for the offence of giving false evidence. We are unable to understand as to how and why the Special Public Prosecutor appointed at the instance of the complainant will abuse this power and give a certificate when it is not warranted. Further, the certificate cannot be granted merely because a particular Public Prosecutor feels so. He has to justify his action by adducing relevant objective material in support. What is more, even if such certificate is granted, that is not the end of the matter, for at the trial such a person is entitled to show that he has complied with the conditions on which tender was made and in that case the burden shifts on the prosecution to show the contrary.
To deal now with sub-ground (d), Section 378(1) of the Code read with Rules 49(9)(b) and 50(1)(a) of the Conduct Rules lay down an elaborate procedure for taking a decision whether to file an appeal/revision, etc. in cases of acquittals. They state that an Assistant Public Prosecutor or Public Prosecutor may make a proposal or a recommendation to file an appeal against an order of acquittal or for enhancement of sentence or for revision or any application. A copy of this proposal is to be sent simultaneously to the Remembrancer for Legal Affairs or the Joint Secretary or the Deputy Secretary as the case may be, and to the District Magistrate or the Police Commissioner concerned, and also to the Superintendent of Police or the Government Officer concerned. These latter officers have also a power to recommend filing of proceedings against acquittals. Along with the proposal, the relevant information and case papers are required to be forwarded. The Government takes its decision only after going through the relevant material, and the recommendations of all concerned. If it decides to file an appeal, a resolution is passed to that effect. An appeal or revision is not filed automatically on receipt of the proposal from the Prosecutor. There is therefore no reason to believe that the Government will act differently merely because the proposal is received from the Special Public Prosecutor.
Thus all the aforesaid arguments are based only on the apprehension of the possible misuse of the powers by the Prosecutor appointed by a private party. For the reasons stated above we cannot countenance these arguments. The discharge of his duties by a Public Prosecutor further does not depend upon the source of his fees. If there is a possibility of misdemeanour, it stems from human weakness which is common to all Prosecutors.
12. That takes us to the authorities cited at the Bar. In support of their contentions, the learned Counsel on behalf of the Petitioner-accused relied upon two decisions of the Kerala High Court one in P. G. Narayanankutty v. State of Kerala 1982 Cri LJ 2085 and another in Babu v. State of Kerala reported in 1984 Cri LJ 499 and a decision of the Gujarat High Court in Dilipbhai Chhotalal Dave v. State of Gujarat (1971) 12 Guj LR 999.
13. The first decision in Narayanankutty v. State of Kerala, 1982 Cri LJ 2085 (Ker), no doubt supports the contentions of the accused although it appears that in that case the Special Public Prosecutor appointed by the State walked out on his appointment being objected to and, therefore, to that extent it may be said that the decision is obiter. However certain observations made by the learned Single Judge in paragraph 7 there, can be availed of by the accused in the present case since they relate very much to the main issue involved before us. Those observations are as follows:
Special Public Prosecutor, it is needless to say, cannot be appointed with a view to secure convictions at all costs. Special Public Prosecutor could be appointed only when interest demands it and not to vindicate the grievances of a private person, such as close relation of the deceased. In order that he discharges his duties properly, he should look to the State for remuneration for his services; if he looks to a private party for his remuneration, his capacity and ability to perform his role as Public Prosecutor properly will be endangered. Government cannot appoint Special Public Prosecutor on such terms, abdicating their financial responsibility or directing him to receive his remuneration from any private individual or expecting him to work without remuneration.
With utmost respect to the learned Judge, for the reasons which we have discussed earlier, we are unable to agree with the above observations. According to us, the conduct of prosecution by a lawyer appointed and paid by the private party does not affect his capacity and ability to perform his role as a Public Prosecutor. To accept such a proposition is to invalidate all private prosecutions.
14. The second decision of the Kerala High Court in Babu v. State of Kerala, 1984 CrrLJ 499 is under Section 302 of the Code and not under Section 24(8) or 25(1) thereof with which we are concerned. In that case, the Magistrate had refused permission to the complainant to engage his advocate under Section 302 of the Code. In that connection the Court there made the following observations:
But the Pleader engaged by a private person who is a de facto complainant cannot be expected to be so impartial. Not only that, it will be his endeavour to get a conviction even if a conviction may not be possible. So, the real assistance that a Public Prosecutor is expected to render will not be there if a pleader engaged by a private person is allowed to take the role of a public prosecutor by granting permission under Section 302. This does not mean that permission cannot at all be granted under Section 302. Under very very exceptional circumstances permission can be granted under Section 302. Otherwise, there is no reason why the provisionis there in the Code. But that is to be done only in cases where the circumstances are such that a denial of permission-under Section 302 will stand in the way of meeting out justice in the case. A mere apprehension of a party that the Public Prosecutor will not be serious in conducting the prosecution simply because a conviction or an acquittal in the case will affect another case pending will not by itself be enough. At the same time, if the apprehension of the party is going to materialise the court can, pending the trial grant permission under Section 302 even if a request for permission was rejected at the outset.
For the reasons given above, with respect, it is not possible for us to agree that a pleader engaged by a private person is a de facto complainant and cannot be expected to be as impartial as a pleader appointed by the State to conduct public prosecution. On the other hand, we are of the view, that as stated earlier, permission to engage an advocate should be given freely to the complainant. The complainant has as much a right as the accused to represent his case effectively before the Court.
15. As regards the observations made by the Gujarat High Court in paragraph 18 of its judgment in (1971) 12 Guj LR999, we have already pointed out that in the view we have taken, there is no need for more guidelines. The individual complainants, if aggrieved by the rejection of their request to appoint lawyers of their choice as Special Public Prosecutors, can always approach the Court to vindicate their rights.
16. As against the aforesaid decisions, we have the decision of the Delhi High Court reported in Ajay Kumar v. State 1986 Cri IJ 932, cited on behalf of the Respondents, which, more or less takes the same view as ours, though not in the same language. It is not therefore necessary to discuss the same.
17. The last ground of attack is solely directed against the appointment of Assistant Public Prosecutors under Section 25 for conducting a particular case or class of cases. It is contended that unlike Section 24(8), there is no provision in Section 25 for such special appointment. We have earlier discussed and compared the provisions of Sections 24 and
25 and have pointed out their differential features. It is true that there is no specific provision like Section 24(8), in Section 25. But that by itself does not spell out a bar for the appointment of an Assistant Public Prosecutor to conduct a case or class of cases. The power to appoint Assistant Public Prosecutors for conducting prosecutions generally will also include power to appoint an Assistant Public Prosecutor to. conduct a particular case of cases. Unlike the Public Prosecutors and Additional Public Prosecutors appointed under section' 24, the Assistant Public Prosecutors need not be from the cadre, or the panel prepared by the District Magistrate. There is further no qualification prescribed for the appointment of Assistant Public Prosecutors and a.ny person including a police officer not below the rank of Inspector can be appointed at any time by the State or the Central Government to conduct any prosecution or prosecutions. Hence" the absence of a provision such as Section 24(8), will not bar appointment of an Assistant Public Prosecutor specially to conduct a case or class of cases. We see therefore no merit in this contention.
18. The result, therefore, is that:
(1) Criminal Writ Petition No. 527 of 1985 is dismissed. Appointment of the Assistant Public Prosecutor under Section 25(1) is upheld and the rule is discharged.
(2) Criminal Application No. 1127 of 1985 is dismissed. The appointment of Shri Ram Jethmalani and Shri S. R. Jaisinghani as Special Public Prosecutors under Section 24(8) of the Code is upheld and the rule is discharged.
(3) Criminal Writ Petition No. 361 of 1986 is allowed. The notification dated the 20th March 1986 which was admittedly issued pursuant to the decision of the Sessions Court is hereby quashed and the notification dated the 20th January 1986 appointing Shri B. R. Gadgil as Public Prosecutor under Section 24(8) of the Code is restored. Rule is made absolute accordingly.
(4) Criminal Application No. 304 of 1982 in Criminal Appeal No. 549 of 1979 is dismissed. The notification dated the 12th December 1980 appointing Shri V. P. Vashi as Special Public Prosecutor is upheld under Section 24(8) of the Code:
(5) Criminal Writ Petition No. 424 of 1982 is hereby rejected. The appointment of Sarvashri K. M. Desai and N. C. Maniar as Special Public Prosecutors under Section 24(8) of the Code is upheld.
. (6) Criminal Writ Petition No. 437 of 1982 ; is hereby rejected. The appointment of Shri B. P. Saptarashi as a Special Public Prosecutor under Section 24(8) of the Code is upheld.
(7) Criminal Writ Petition No. 866 of 1985 is hereby dismissed. The appointment of Mr. and Mrs. H. H. Ponda under Section 24(8) of the Code as Special Public Prosecutors is hereby upheld and the rule is discharged I accordingly:
(8) Criminal Revision Application No. 281 of 1985 is hereby allowed. The impugned order dated 22nd May 1985 passed by the learned Additional Chief Metropolitan Magistrate is quashed to the extent that it requires the State Government to pay remuneration of the Special Public Prosecutor Shri Shrikant Bhat appointed under Section 24(8) at the instance of the complainant. It is made clear that the appointment of Shri Shrikant Bhat as Public Prosecutor is valid and the complainant will pay remuneration to him and not the State Government. Rule is made absolute accordingly.
The matters in the Writ Petitions Applications above which were kept pending because of the stay granted by this Court will now be expeditiously disposed of by the Courts concerned. It is needless to say that interim stay granted in all the said writ
petitions/applications is. hereby vacated.
Bombay High Court
Vijay Valia And Etc. vs The State Of Maharashtra And Etc. on 2 July, 1986
Equivalent citations: 1986 CriLJ 2093
Bench: Sawant, Kantharia
1. In this group of writ petitions/applications, a common question of law concerning the appointment of Special Public Prosecutor and Assistant Public Prosecutor under Sections 24(8) and 25(1) respectively of the Code of Criminal Procedure, 1973, (hereinafter referred to as 'the Code') has been raised, and hence, they are being disposed of by this common judgment. In Writ Petition No. 527 of 1986 the challenge is to the appointment of an Assistant Public Prosecutor under Section 25(1) whereas in all other writ petitions the challenge is to the appointment of Special Public Prosecutors under Section 24(8).
2. The challenge is mainly on two grounds. The first ground is that neither Section 24(8) nor Section 25(1) lays down any guidelines as to when Special Public Prosecutor Assistant Public Prosecutor should be appointed. To that extent there is an excessive delegation of power, and hence the power conferred under the said sections is arbitrary and violative of Article 14 of the Constitution. The second ground is that the appointment of Special Public Prosecutor Assistant Public Prosecutor at the instance of the complainant and paid for by him is bound to act to the prejudice of the accused because : (a) the prosecutor so appointed will be inclined in favour of the complainant and against the accused, and will therefore not conduct the prosecution impartially; (b) he may not act impartially under Section 321 of the Code in exercising his power to withdraw the prosecution. In obtaining sanction of the Government for the purpose under Rule 49(7)(a) of the Rules for the Conduct of the Legal Affairs of Government, 1984, (hereinafter referred to as the Conduct Rules) and under Rule 14 of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984, (hereinafter referred to as the Appointment Rules) there will be a conflict of interets in his duty to the State as an officer of the Government and as an advocate for the complainant who engages him; (c) in issuing certificate under Section 308 of the Code to a person who has accepted the tender of pardon, such prosecutor may not act independently; and (d) he may not render impartial advice to the State Government for preferring an appeal under Section 378(1) of the Code read with Rules 49(9)(b) and 50(1)(a) of the Conduct Rules. Some decisions were cited at the Bar in support and against these propositions.
3. Before we deal with the above contentions, we feel it necessary to draw attention to certain basic features of the administration of criminal justice in this country. The First Schedule of the Code classifies offences under the Indian Penal Code and other laws into two- categories - cognizable and non-cognizable. Some laws themselves specify offences under them as either cognizable or non-cognizable. The Code lays down different procedures for prosecution of the two classes of offences. Under Section 156 of the Code, a cognizable offence is investigated by the police without the order of the Magistrate while Section 155(1) requires the police to refer the informant of a non-cognizable offence to the Magistrate. The police cannot investigate a non-cognizable case without the order of the Magistrate. If police investigation in cognizable case and when ordered by the Magistrate in non-cognizable case, reveals an offence, the State is under an obligation to undertake the prosecution of the offender. In a non-cognizable case which is not investigated by the police and in which the complainant himself chooses to file the complaint before the Magistrate, the burden to prosecute the offender lies on the complainant. It happens some times that even when cognizable offences are committed, the State does not prosecute the offender either because the police-investigation does not reveal an offence or for other reasons. In such cases, the individual aggrieved by the offence may himself prosecute the offender. It also happens that before police-investigation is undertaken or is complete in an offence, a private party approaches the Court, and when subsequently the police submit their report, the complaint filed by the private party and the case arising out of the police report are tried together as if it is a prosecution launched by the State. What is therefore necessary to remember is that whether the offence is cognizable or non-cognizable, it is an offence against the State. Both the State and the private party have a right to prosecute the offender whether the offence is cognizable or non-cognizable, and the prosecution, whether launched by the private party or the State, is a prosecution on behalf of the State. It is further the State alone which executes the sentence, if any.
4. The Code provides that the prosecution launched by the State should be conducted by a Public Prosecutor who is defined under Sub-clause (u) of Section 2 of the Code to mean any person appointed under Section 24 and includes any person acting under the directions of a Public Prosecutor. The Prosecutor is paid by the State unless he is appointed at the request of a private party as a Special Public Prosecutor and the State requires such private party to pay his fees. In the prosecution launched by the private individual, it is of course he who pays the prosecutor. The private individual may however himself conduct his prosecution and the Code permits it.
5. There is an additional provision made in Section 25 of the Code where the State is given power to appoint one or more Assistani Public Prosecutors for conducting prosecutions in the Courts of Magistrates. This power is in addition to the power given under Section 24 to appoint Public Prosecutor. Additional Public Prosecutor and Special Public Prosecutor. The combined reading of Sections 24 and 25 shows that for conducting prosecutions in all Courts the Siaie is empowered to appoint Public Prosecutors or Additional Public Prosecutors or Special Prosecutors while for conducting prosecutions in the Courts of Magistrates, the State is empowered to appoint, in addition, Assistant Public Prosecutors.
6. It is also necessary to understand the difference between Sections 24 and 25. Under Section 24(1), the Central or the State Government is required to appoint a Public Prosecutor or one or more Additional Public Prosecutors for every High Court for conducting their prosecutions, appeals and other proceedings. Under Section 24(2), the Central Government is also empowered lo appoint one or more Public Prosecutors to conduct a case or class of cases in any district or local area. Unlike the State Government, the Central Government is not required to appoint the Public Prosecutors and Additional Public Prosecutors for the district or local area from the cadre of Prosecuting Officers or the panel prepared by the District Magistrate. The Slate Government however is required to appoint the Public Prosecutor or Additional Public Prosecutor for the district first from the cadre of prosecuting officers where such a cadre exists. Where the cadre does not exist, the State has lo make the appointment from the panel prepared by the District Magistrate with the approval of the State Government. The qualification of the Public Prosecutor or Additional Public Prosecutor, whether of the Central or the State Government, is practice as an advocate for not less than seven years. In addition to and independently of the Public Prosecutor and Additional Public Prosecutor, both the Central and the State Government are, by Section 24(8), empowered to appoint a Special Public Prosecutor for the purpose of any case or class of cases, and the qualification for such appointment is practice for not less than ten years.
As compared to these provisions for the appointment of Public Prosecutors, Additional Public Prosecutors and Special Public Prosecutors, there is no qualification laid down for the appointment of Assistant Public Prosecutors under Section 25 whether by the Central or the State Government. There is neither a State Cadre nor a panel of Assistant Public Prosecutors prepared by the District Magistrate. Any person and even a police officer not below the rank of Inspector and not concerned with the investigation of the offence concerned can be appointed as an Assistant Public Prosecutor. There is no restriction under Section 25 further that the Assistant Public Prosecutor must be appointed to conduct prosecutions in general and that he should not be appointed to conduct a case or class of cases.
7. The Appointment Rules provide for the appointment and payment of fees to Public Prosecutors and Additional Public Prosecutors appointed by the State Government whereas the Conduct Rules provide for the appointment and payment of fees to Special Public Prosecutors appointed at the instance of the State or the private party. The Conduct Rules also lay down the procedure for, the circumstances in which and the conditions on which the Special Public Prosecutors are appointed by the State at its instance and at the instance of a private party. Rules 18, 20 and 22 of the said Rules are particularly noteworthy in this connection. We will deal with them in details a little later. Suffice it to point out here that Rule 22 which deals with the engagement of Special Public Prosecutor at the request of a private party lays down a condition that in such cases his fees are to be borne by the party. The Rules made by the Central Government in this behalf are not before us nor is any appointment of Special Public Prosecutor by the Central Government under challenge before us. It is therefore not necessary to consider them here.
8. We may now deal with the contentions raised before us. The first contention is that neither Section 24(8) nor Section 25(1) lay down any guidelines for the appointment of Special Public Prosecutor or Assistant Public Prosecutor for a particular case or class of cases. We will proceed on the assumption that this is so. However we fail to understand as to how this contention can be raised on behalf of the accused. The petitioners applicants before us are the accused in the respective cases and none of them is a complainant. The accused cannot claim a right that the prosecution against him be conducted by a particular prosecutor and not by any other. The contention, if at all can be raised only by a complainant whose request to conduct the prosecution by a lawyer of his choice is rejected. It however appears, that this contention is raised on behalf of the accused on the presumption that whenever a Special Public Prosecutor is appointed whether by the State or at the instance of a private party, a fair trial is denied to the accused. This is particularly so in the latter case where, it is contended, the prosecutor is; bound to identify himself with the complainant and try to secure conviction by any means, fair or foul. The conduct of the prosecution may not be impartial and circumstances favourable to the accused and unfavourable to the complainant may not be placed before the Court.
9. According to us this argument is based on certain erroneous conceptions. We have pointed out earlier that criminal prosecutions are launched not only by the State but also by private parties. The role of the Prosecutor in any criminal trial whether at the instance of the State or a private party is to safeguard the interests of both the complainant and the accused. The right to be heard includes the right to be represented by an able spokesman of one's confidence. This right belongs both to the accused and the complainant. It is not only the accused who is in need of assistance, and protection of his rights but also the complainant, In fact, it is to vindicate the rights and grievances of the complainant and through him, of the State, that the prosecution is launched whether by the State or the private party. The purpose of a criminal prosecution is to bring home the guilt of the accused and to punish him. The Prosecutor has therefore to discharge his duties diligently towards this end. A Prosecutor who fails in and neglects his duties is doing no service to the administration of justice. In the discharge of his duties as a 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 to desist from resorting to unjust and wrongful means. This is so whether the prosecution is private or State. The duties of the Prosecutor and the requirements of a fair trial do not vary from case to case. Besides, there is always the Court to safeguard the interests of the accused and the- complainant, to control the proceedings and to check omissions and commissions of the Prosecutor. The Court is not a silent spectator to the proceedings, but} an active participant in it. It has to hold the scales even between the complainant and the accused. In the State prosecution, all relevant material including the statements of all persons recorded during the course of investigation, is furnished to the accused and the Court. If all the required witnesses are not examined or the relevant material is not brought on record, both the_accused and the Court have a right to call, for them. This role of the Court does not vary from prosecution to prosecution. To accept the argument advanced on behalf of the petitioners therefore is to hold that the trials in private prosecutions and those in State prosecutions vary in character and while the latter are fair, just and impartial, the former are not. Such a proposition is not only inequitable but also perilous. For it must logically lead to banning of all private prosecutions. It is for these reasons that we are unable to accept the theory that where Special Public Prosecutors are appointed whether paid by the State or the private party, the prosecution and the trial must be presumed to be biased, partial or unfair.
10. Even from the point of view of the complainants, the provisions of Sections 24(8) and 25(1) are not assailable on the ground of arbitrariness. Under these provisions there can be three classes of Special Public Prosecutors Assistant Public Prosecutors. (1) those appointed at the instance of the State and paid by the State; (2) those appointed at the instance of the complainant but paid for by the State; and (3) those appointed at the instance of the complainant and also paid for by him.
There are no special rules made for the appointment of Assistant Public Prosecutors under Section 25. However Rule 21 read with Rules 18 and 20 of the Conduct Rules lay down the procedure for the appointment of Special Public Prosecutors, and the terms on which they are appointed under Section 24(8) at the instance of the State, and Rule 22 of the said Rules specifies the procedure for and the terms for their appointment at the request of a private party. Rule 21 read with Rule 18 states that the proposal for the appointment of a Special Public Prosecutor for the State is to be made either by the District Magistrate, Commissioner of Police, Public Prosecutor or the Government Officer concerned through his administrative department to the Remebrancer of Legal Affairs. The proposal must contain full information among other things on (i) the nature of the case; (ii) the evidence to be brought forward; (iii) the reasons for justifying the engagement of a special counsel; (iv) the circumstances on account of which the Government Pleader concerned cannot be entrusted with the case; (v) the approximate number of days of hearing of the case and (vi) the name of the Special Public Prosecutor and the fees proposed to be paid to him. Unless, further, the Legal Remembrancer thinks it fit, the Special Public Prosecutor is not appointed. Both Section 24(8) and Rule 21 of the said Rules further lay down that the Special Public Prosecutor must be an advocate of not less than ten years' practice to his credit, and is to be appointed for a case or a class of cases. There is no reason to believe that in appointing an Assistant Public Prosecutor specially for a case or a class of cases, these guidelines will not be followed mutatis mutandis. What applies to the proposal initiated by the department will also apply to the proposal coming from the private party when the Special Public Prosecutor Assistant Public Prosecutor is to be paid by the State. We are therefore of the view that there are sufficient guidelines and there is enough control on the appointment of Special Public Prosecutors falling in the first two categories above.
As regards the Special Public Prosecutors falling in the third category viz., those sought and paid for by a private party, the procedure for their appointment is laid down in Rule 22 of the Conduct Rules. It is the Remembrancer of Legal Affairs, again, who has to consider the merits of the particular case and appoint the advocate suggested by the party. There is reason to believe that the same rule will govern the appointment of Assistant Public Prosecutors at the instance of a private party. There is further no reason why barring the financial burden which is to be borne by the private party, the other considerations mentioned in Rule 18 should not equally weigh with the Remembrancer while considering the appointment of this category of Prosecutors as well. But apart from this, we are of the view that, guidelines or no guidelines, whenever there is a request made by a private party to engage an advocate of his choice to be paid for by him, the request should be granted as a rule. The complainant in such cases is either a victim of the offence or is related to the victim or otherwise an aggrieved person. He has a right to be heard and vindicated. As stated earlier, the right to be heard implies a right to be effectively represented at the hearing of the case. He has therefore a right to engage an advocate of his choice. There is therefore no reason why the State should refuse him the permission to conduct the prosecution with the help of his advocate. If there are any reasons for refusal, they should be stated and communicated to him in writing. For the reasons are; in the circumstances, justiciable. If we are right in this view, the provision for the appointment of the third category of Special Public Prosecutors/Assistant Public Prosecutors cannot indiscriminately be challenged on the ground of arbitrariness, even by the complainants. The challenge can only be in individual cases and directed against the reasons given by the State for refusal of permission to engage Prosecutors of one's choice.
Hence we are of the view that the provisions of Sections 24(8) and 25(1) are not violative of Article 14 of the Constitution.
11. Coming now to the second ground of attack and it's various facets, we have already dealt with sub-ground (a) thereof, while discussing the first ground. The other sub-grounds are only an extension of the attack on the Special Public Prosecutor appointed and paid for by a private party and we will deal with them here.
As regards the powers of the Pubjjc Prosecutor Assistant Public Prosecutor to withdraw from prosecution under Section 321 of the Code read with Rule 15(5)(v) of the Appointment Rules which is the subject-matter of sub-ground (b), the decision to withdraw from the prosecution is to be taken by the prosecutor. What is argued is that the Prosecutor engaged by the complainant may proceed with his case notwithstanding the fact that the prosecution should have been withdrawn at an earlier stage. In the first instance, there is no untrammelled power given to the Public ProsecutorAssistant Public Prosecutor to withdraw from the prosecution. If he decides to do so, he has, under Rule 15(5)(v), to substantiate his decision and he cannot withdraw from the prosecution without first obtaining the sanction of the Government in the Home Department through the District Magistrate or the Commissioner of Police as the case may be. Further, he cannot do so without the consent of' the Court and the Court is not obliged to grant the consent merely because the Public Prosecutor/Assistant Public Prosecutor applies for it. Both the Prosecutor and the Court have to weigh the objective circumstances meriting withdrawal from the prosecution. Although, therefore, it is true that the initiative to withdraw from the prosecution has to come from the Prosecutor, there is no reason to believe that the Prosecutor appointed by the complainant will move for such withdrawal against all objective circumstances, and succeed in it.
As- regards sub-ground (e), the provisions of Section 308(1) give power to the Public Prosecutor to certify that in his opinion, a person who has accepted the tender of pardon, has either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which tender was made and, therefore, such person be tried for the offence in respect of which pardon was so tendered or for any other offence of which he appears to have been guilty, and also for the offence of giving false evidence. We are unable to understand as to how and why the Special Public Prosecutor appointed at the instance of the complainant will abuse this power and give a certificate when it is not warranted. Further, the certificate cannot be granted merely because a particular Public Prosecutor feels so. He has to justify his action by adducing relevant objective material in support. What is more, even if such certificate is granted, that is not the end of the matter, for at the trial such a person is entitled to show that he has complied with the conditions on which tender was made and in that case the burden shifts on the prosecution to show the contrary.
To deal now with sub-ground (d), Section 378(1) of the Code read with Rules 49(9)(b) and 50(1)(a) of the Conduct Rules lay down an elaborate procedure for taking a decision whether to file an appeal/revision, etc. in cases of acquittals. They state that an Assistant Public Prosecutor or Public Prosecutor may make a proposal or a recommendation to file an appeal against an order of acquittal or for enhancement of sentence or for revision or any application. A copy of this proposal is to be sent simultaneously to the Remembrancer for Legal Affairs or the Joint Secretary or the Deputy Secretary as the case may be, and to the District Magistrate or the Police Commissioner concerned, and also to the Superintendent of Police or the Government Officer concerned. These latter officers have also a power to recommend filing of proceedings against acquittals. Along with the proposal, the relevant information and case papers are required to be forwarded. The Government takes its decision only after going through the relevant material, and the recommendations of all concerned. If it decides to file an appeal, a resolution is passed to that effect. An appeal or revision is not filed automatically on receipt of the proposal from the Prosecutor. There is therefore no reason to believe that the Government will act differently merely because the proposal is received from the Special Public Prosecutor.
Thus all the aforesaid arguments are based only on the apprehension of the possible misuse of the powers by the Prosecutor appointed by a private party. For the reasons stated above we cannot countenance these arguments. The discharge of his duties by a Public Prosecutor further does not depend upon the source of his fees. If there is a possibility of misdemeanour, it stems from human weakness which is common to all Prosecutors.
12. That takes us to the authorities cited at the Bar. In support of their contentions, the learned Counsel on behalf of the Petitioner-accused relied upon two decisions of the Kerala High Court one in P. G. Narayanankutty v. State of Kerala 1982 Cri LJ 2085 and another in Babu v. State of Kerala reported in 1984 Cri LJ 499 and a decision of the Gujarat High Court in Dilipbhai Chhotalal Dave v. State of Gujarat (1971) 12 Guj LR 999.
13. The first decision in Narayanankutty v. State of Kerala, 1982 Cri LJ 2085 (Ker), no doubt supports the contentions of the accused although it appears that in that case the Special Public Prosecutor appointed by the State walked out on his appointment being objected to and, therefore, to that extent it may be said that the decision is obiter. However certain observations made by the learned Single Judge in paragraph 7 there, can be availed of by the accused in the present case since they relate very much to the main issue involved before us. Those observations are as follows:
Special Public Prosecutor, it is needless to say, cannot be appointed with a view to secure convictions at all costs. Special Public Prosecutor could be appointed only when interest demands it and not to vindicate the grievances of a private person, such as close relation of the deceased. In order that he discharges his duties properly, he should look to the State for remuneration for his services; if he looks to a private party for his remuneration, his capacity and ability to perform his role as Public Prosecutor properly will be endangered. Government cannot appoint Special Public Prosecutor on such terms, abdicating their financial responsibility or directing him to receive his remuneration from any private individual or expecting him to work without remuneration.
With utmost respect to the learned Judge, for the reasons which we have discussed earlier, we are unable to agree with the above observations. According to us, the conduct of prosecution by a lawyer appointed and paid by the private party does not affect his capacity and ability to perform his role as a Public Prosecutor. To accept such a proposition is to invalidate all private prosecutions.
14. The second decision of the Kerala High Court in Babu v. State of Kerala, 1984 CrrLJ 499 is under Section 302 of the Code and not under Section 24(8) or 25(1) thereof with which we are concerned. In that case, the Magistrate had refused permission to the complainant to engage his advocate under Section 302 of the Code. In that connection the Court there made the following observations:
But the Pleader engaged by a private person who is a de facto complainant cannot be expected to be so impartial. Not only that, it will be his endeavour to get a conviction even if a conviction may not be possible. So, the real assistance that a Public Prosecutor is expected to render will not be there if a pleader engaged by a private person is allowed to take the role of a public prosecutor by granting permission under Section 302. This does not mean that permission cannot at all be granted under Section 302. Under very very exceptional circumstances permission can be granted under Section 302. Otherwise, there is no reason why the provisionis there in the Code. But that is to be done only in cases where the circumstances are such that a denial of permission-under Section 302 will stand in the way of meeting out justice in the case. A mere apprehension of a party that the Public Prosecutor will not be serious in conducting the prosecution simply because a conviction or an acquittal in the case will affect another case pending will not by itself be enough. At the same time, if the apprehension of the party is going to materialise the court can, pending the trial grant permission under Section 302 even if a request for permission was rejected at the outset.
For the reasons given above, with respect, it is not possible for us to agree that a pleader engaged by a private person is a de facto complainant and cannot be expected to be as impartial as a pleader appointed by the State to conduct public prosecution. On the other hand, we are of the view, that as stated earlier, permission to engage an advocate should be given freely to the complainant. The complainant has as much a right as the accused to represent his case effectively before the Court.
15. As regards the observations made by the Gujarat High Court in paragraph 18 of its judgment in (1971) 12 Guj LR999, we have already pointed out that in the view we have taken, there is no need for more guidelines. The individual complainants, if aggrieved by the rejection of their request to appoint lawyers of their choice as Special Public Prosecutors, can always approach the Court to vindicate their rights.
16. As against the aforesaid decisions, we have the decision of the Delhi High Court reported in Ajay Kumar v. State 1986 Cri IJ 932, cited on behalf of the Respondents, which, more or less takes the same view as ours, though not in the same language. It is not therefore necessary to discuss the same.
17. The last ground of attack is solely directed against the appointment of Assistant Public Prosecutors under Section 25 for conducting a particular case or class of cases. It is contended that unlike Section 24(8), there is no provision in Section 25 for such special appointment. We have earlier discussed and compared the provisions of Sections 24 and
25 and have pointed out their differential features. It is true that there is no specific provision like Section 24(8), in Section 25. But that by itself does not spell out a bar for the appointment of an Assistant Public Prosecutor to conduct a case or class of cases. The power to appoint Assistant Public Prosecutors for conducting prosecutions generally will also include power to appoint an Assistant Public Prosecutor to. conduct a particular case of cases. Unlike the Public Prosecutors and Additional Public Prosecutors appointed under section' 24, the Assistant Public Prosecutors need not be from the cadre, or the panel prepared by the District Magistrate. There is further no qualification prescribed for the appointment of Assistant Public Prosecutors and a.ny person including a police officer not below the rank of Inspector can be appointed at any time by the State or the Central Government to conduct any prosecution or prosecutions. Hence" the absence of a provision such as Section 24(8), will not bar appointment of an Assistant Public Prosecutor specially to conduct a case or class of cases. We see therefore no merit in this contention.
18. The result, therefore, is that:
(1) Criminal Writ Petition No. 527 of 1985 is dismissed. Appointment of the Assistant Public Prosecutor under Section 25(1) is upheld and the rule is discharged.
(2) Criminal Application No. 1127 of 1985 is dismissed. The appointment of Shri Ram Jethmalani and Shri S. R. Jaisinghani as Special Public Prosecutors under Section 24(8) of the Code is upheld and the rule is discharged.
(3) Criminal Writ Petition No. 361 of 1986 is allowed. The notification dated the 20th March 1986 which was admittedly issued pursuant to the decision of the Sessions Court is hereby quashed and the notification dated the 20th January 1986 appointing Shri B. R. Gadgil as Public Prosecutor under Section 24(8) of the Code is restored. Rule is made absolute accordingly.
(4) Criminal Application No. 304 of 1982 in Criminal Appeal No. 549 of 1979 is dismissed. The notification dated the 12th December 1980 appointing Shri V. P. Vashi as Special Public Prosecutor is upheld under Section 24(8) of the Code:
(5) Criminal Writ Petition No. 424 of 1982 is hereby rejected. The appointment of Sarvashri K. M. Desai and N. C. Maniar as Special Public Prosecutors under Section 24(8) of the Code is upheld.
. (6) Criminal Writ Petition No. 437 of 1982 ; is hereby rejected. The appointment of Shri B. P. Saptarashi as a Special Public Prosecutor under Section 24(8) of the Code is upheld.
(7) Criminal Writ Petition No. 866 of 1985 is hereby dismissed. The appointment of Mr. and Mrs. H. H. Ponda under Section 24(8) of the Code as Special Public Prosecutors is hereby upheld and the rule is discharged I accordingly:
(8) Criminal Revision Application No. 281 of 1985 is hereby allowed. The impugned order dated 22nd May 1985 passed by the learned Additional Chief Metropolitan Magistrate is quashed to the extent that it requires the State Government to pay remuneration of the Special Public Prosecutor Shri Shrikant Bhat appointed under Section 24(8) at the instance of the complainant. It is made clear that the appointment of Shri Shrikant Bhat as Public Prosecutor is valid and the complainant will pay remuneration to him and not the State Government. Rule is made absolute accordingly.
The matters in the Writ Petitions Applications above which were kept pending because of the stay granted by this Court will now be expeditiously disposed of by the Courts concerned. It is needless to say that interim stay granted in all the said writ
petitions/applications is. hereby vacated.
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