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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.637 OF 2015

K. Anbazhagan ... Appellant

                               Versus

State of Karnataka and Others ... Respondents

J U D G M E N T

Dipak Misra, J.

In  view  of  the  difference  of  opinion  by  two  learned

Judges  and regard  being  had to  the  referral  order  dated

15.4.20151,  this  appeal  has  been  placed  before  us  for

consideration  and  decision.   We  are  called  upon  in  this

appeal to decide whether the 4th respondent was authorised

to represent the case of the prosecution in the High Court of

Karnataka  in  the  appeals  filed  by  the  accused  persons

1  (2015) 5 SCALE 183

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against their conviction by the Special Court, and if he was

not so authorised, whether there is necessitous warrant of

criminal appeals to be heard afresh by the High Court.  

2. The  factual  score  exposited  in  this  appeal  has  a

history.  The 5th respondent, Ms. J. Jayalalithaa, was the

elected Chief Minister of Tamil Nadu from 1991 to 1996 and

she  was  heading  the  political  party  called  AIADMK.   In

1996, she faced a political defeat at the hands of another

political  party,  namely,  DMK.   Keeping  in  view  the

allegations pertaining to amassing assets disproportionate

to the known sources of income, criminal proceedings were

initiated against her and her associates, respondent nos. 6

to  8.   The  State  of  Tamil  Nadu  had  constituted  Special

Courts  for  their  prosecution.   In  pursuance  of  the

constitution of Special Courts, C.C. No. 7 of 1997 was filed

before  the  learned  Special  Judge,  Chennai  against  the

accused  persons  and  they  were  chargesheeted  for  the

offences punishable under Section 120B of the Indian Penal

Code, 1860 (IPC) read with Section 13(1) and 13(2) of the

Prevention of  Corruption Act (for  brevity,  “the 1988 Act”).

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The constitution of the Special Courts was challenged before

this  Court  in  J.  Jayalalitha v.  Union of  India2,  which

upheld the constitution of the Special Court.  In the said

case, the two-Judge Bench observed thus:-

“Something more. The legislature has enacted the Prevention of Corruption Act and provided for a speedy trial of offences punishable under the Act in  public  interest  as  it  had  become  aware  of rampant corruption amongst the public servants. While replacing the 1947 Act by the present Act the legislature wanted to make the provisions of the Act more effective and also to widen the scope of the Act by giving a wider definition to the term “public  servant”.  The  reason  is  obvious. Corruption  corrodes  the  moral  fabric  of  the society  and  corruption  by  public  servants  not only leads to corrosion of the moral fabric of the society  but  is  also  harmful  to  the  national economy  and  national  interest,  as  the  persons occupying  high  posts  in  the  Government  by misusing their power due to corruption can cause considerable  damage  to  the  national  economy, national interest and image of the country. It is in the  context  of  public  interest  that  we  have  to construe  the  meaning  of  the  word  “necessary” appearing  in  Section  3.  Considering  the  object and scheme of the Act and the context in which it is  used  it  would  mean  requirement  in  public interest and cannot be said to be so vague as not to provide a good guideline. Thus the exercise of discretion  by  the  Government  under  Section  3 has to be guided by the element of requirement in public interest.”

(emphasis supplied)

2  (1999) 5 SCC 138

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We have reproduced the said passage, as we would be

saying something in this regard at a later stage.  

3. As the exposé of facts would further reveal, the trial

continued before the Special Court but with the time rolling

by,  in  2001  elections,  the  AIADMK  headed  by  the  5th

respondent got elected and she was appointed as the Chief

Minister  of  Tamil  Nadu.   Her  appointment  was  called  in

question before this Court in B.R. Kapur v. State of Tamil

Nadu  and  Another3,  wherein  the  majority  speaking

through Bharucha, J. (as his Lordship then was) held thus:-

“54. We are satisfied that in the appointment of the second respondent as the Chief Minister there has been a clear infringement of a constitutional provision and that a writ of quo warranto must issue.

xxxx xxxxx xxxxx

58. We  are  of  the  view  that  a  person  who  is convicted for a criminal offence and sentenced to imprisonment for a period of  not less than two years cannot be appointed the Chief Minister of a State  under  Article  164(1)  read  with  (4)  and cannot continue to function as such.

59. We, accordingly, order and declare that the appointment  of  the  second  respondent  as  the

3  (2001) 7 SCC 231

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Chief  Minister  of  the  State  of  Tamil  Nadu  on 14-5-2001 was not legal and valid and that she cannot  continue  to  function  as  such.  The appointment  of  the  second  respondent  as  the Chief  Minister  of  the  State  of  Tamil  Nadu  is quashed and set aside.”

In  pursuance  of  the  aforesaid  judgment,  the  5th

respondent, ceased to hold the office of the Chief Minister of

Tamil Nadu w.e.f. 21.9.2001.

4. In the first part of 2002, the Election Commission of

India  announced  a  bye-election  of  Andipatti  constituency

and Ms. J. Jayalalithaa contested the said election and was

declared elected and eventually,  she was sworn in as the

Chief Minister of Tamil Nadu on 2.3.2002.  The trial in C.C.

No.  7 of  1997 went through some kind of a legal  tumult

narration of which is not necessary.  Suffice it to say, the

present appellant preferred two petitions under Section 406

of  the  Criminal  Procedure  Code  (CrPC),  1973  seeking

transfer of CC No. 7 of 1997 and CC No. 2 of 2001 on the

file  of  11th Additional  Sessions  Judge  (Special  Court  I),

Chennai in the State of Tamil Nadu to a court of equal and

competent jurisdiction in any other State.  The locus standi

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of  the  appellant  was  raised  before  this  Court  in  K.

Anbazhagan v. Supdt. of Police4 and the Court upheld the

locus standi of the appellant in an application under Section

406 CrPC.  It gave immense emphasis on the concept of free

and fair trial.  To quote:-

“Free and fair trial is sine qua non of Article 21 of the Constitution. It is trite law that justice should not only be done but it should be seen to have been done. If the criminal trial is not free and fair and not free from bias, judicial fairness and the criminal justice system would be at stake shaking the confidence of  the public in the system and woe would be the rule of law. It is important to note  that  in  such  a  case  the  question  is  not whether the petitioner is actually biased but the question is whether the circumstances are such that  there  is  a  reasonable  apprehension in  the mind of the petitioner. In the present case, the circumstances  as  recited  above  are  such  as  to create reasonable apprehension in the minds of the public at large in general and the petitioner in particular that there is every likelihood of failure of justice.”

5. Thereafter, the Court deliberated on all the issues and

transferred  the  case  to  the  State  of  Karnataka.   The

directions that were issued by the Court being apposite are

reproduced below:-

“In the result, we deem it expedient for the ends

4  (2004) 3 SCC 767

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of justice to allow these petitions. The only point that  remains to be considered now is  to which State the cases should be transferred. We are of the view that for the convenience of the parties the State of Karnataka would be most convenient due to its nearness to Tamil Nadu. Accordingly, the petitions are allowed. CC No. 7 of 1997 and CC No. 2 of 2001 pending on the file of the XIth Additional Sessions Judge (Special Court No. 1), Chennai in the State of Tamil Nadu shall stand transferred with the following directions:

(a)  The  State  of  Karnataka  in  consultation with the Chief  Justice of  the High Court of Karnataka  shall  constitute  a  Special  Court under the Prevention of Corruption Act, 1988 to whom CC No. 7 of 1997 and CC No. 2 of 2001  pending  on  the  file  of  the  XIth Additional Sessions Judge (Special Court No. 1), Chennai in the State of Tamil Nadu shall stand transferred. The Special Court to have its sitting in Bangalore.

(b)  As the matter is pending since 1997 the State  of  Karnataka  shall  appoint  a  Special Judge within a month from the date of receipt of this order and the trial before the Special Judge shall  commence  as  soon as  possible and  will  then  proceed  from day  to  day  till completion.

(c)  The  State  of  Karnataka  in  consultation with the Chief  Justice of  the High Court of Karnataka  shall  appoint  a  senior  lawyer having experience in criminal trials as Public Prosecutor to conduct these cases. The Public Prosecutor so appointed shall  be entitled to assistance  of  another  lawyer  of  his  choice. The fees and all other expenses of the Public

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Prosecutor and the Assistant shall be paid by the State of Karnataka who will thereafter be entitled to get the same reimbursed from the State of Tamil Nadu. The Public Prosecutor to be appointed within six weeks from today.

(d)  The  investigating  agency  is  directed  to render all assistance to the Public Prosecutor and his Assistant.

(e) The Special Judge so appointed to proceed with the cases from such stage as he deems fit and proper and in accordance with law.

(f) The Public Prosecutor will be at liberty to apply  that  the  witnesses  who  have  been recalled and cross-examined by the accused and  who  have  resiled  from  their  previous statement, may be again recalled. The Public Prosecutor would be at liberty to apply to the court to have these witnesses declared hostile and  to  seek  permission  to  cross-examine them.  Any  such  application  if  made  to  the Special  Court  shall  be  allowed.  The  Public Prosecutor will also be at liberty to apply that action in perjury to be taken against some or all  such  witnesses.  Any  such  application(s) will  be  undoubtedly  considered  on  its merit(s).

(g) The State of Tamil Nadu shall ensure that all  documents  and  records  are  forthwith transferred  to  the  Special  Court  on  its constitution.  The State  of  Tamil  Nadu shall also ensure that the witnesses are produced before the Special  Court  whenever  they are required to attend that court.

(h)  In case any witness asks for  protection,

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the  State  of  Karnataka  shall  provide protection to that witness.

(i) The Special Judge shall after completion of evidence put to all  the accused all  relevant evidence  and  documents  appearing  against them whilst recording their statement under Section 313. All the accused shall personally appear in court,  on the day they are called upon to do so, for answering questions under Section 313 of the Criminal Procedure Code.”

6. After the case stood transferred, the State of Karnataka

in consultation with the Chief Justice of the High Court of

Karnataka,  appointed  Mr.  B.V.  Acharya  as  the  Public

Prosecutor to conduct the case against the accused persons.

For  certain  reasons,  before  completion  of  the  trial,  Mr.

Acharya  resigned  and  thereafter  Bhavani  Singh,  the  4th

respondent, was appointed as the Special Public Prosecutor

vide  notification  dated  2.2.2013.   The  said  order  of

appointment was issued in exercise of powers conferred by

Section 24(8) of  CrPC and Rule 30 of the Karnataka Law

Officers  (Appointment  and  Conditions  of  Service)  Rules,

1977.  The notification appointing Bhavani Singh reads as

follows:-  

“NOTIFICATION

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In obedience to the judgment dated 18-11-2003 passed by the Hon’ble Supreme Court of India in Transfer  Petition  No.  77-78/2003  (Criminal)  in the  matter  of  K.  Anbazhagan  v.  The Superintendent  of  Police  and  others  and  in exercise of the powers conferred by Sub-section (8)  of  Section  24  of  the  Code  of  Criminal Procedure, 1973 (Central Act No. 2 of  1974) as amended  by  the  Code  of  Criminal  Procedure (Amendment)Act  1978  and  Rule  30  of  the Karnataka  Law  Officers  (Appointment  and Conditions of Service) Rules, 1977 Sri G. Bhavani Singh, Senior Advocate, House No. 746, Srinidhi, Kadugodi,  White  Field  Railway  Station, Bangalore-560067, is appointed as Special Public Prosecutor in place of Sh. B.V. Acharya on same terms to conduct Special C.C. No. 208/2004 (in the  case  of  Kum.  Jayalalithaa  and  others) pending  on  the  file  of  XXXVIth  Additional  City Civil & Sessions Court (Special Court), Bangalore in pursuance.

Further,  Sri  Sandesh  J.  Chouta,  Advocate,  is continued to assist Sh. G. Bhavani Singh, Special Public Prosecutor, in this case.

By  order  and  in  the  name  of  the  Governor  of Karnataka.

(K. Narayana) Deputy Secretary to Government (Admn-I)

Law, Justice and Human Rights   Department.”    

7. After  the  appointment  of  Bhavani  Singh,  the  trial

continued  and  at  that  stage,  the  appellant  filed  an

application to assist the Public Prosecutor by making oral

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submissions  and  the  written  arguments.   The  learned

Special  Judge,  vide  order  dated  21.8.2013  permitted  the

appellant  to render such assistance to the Special  Public

Prosecutor as he may require.  The appellant objected to the

appointment of Bhavani Singh as Special Public Prosecutor

by making representations to the Government of Karnataka

as  well  as  to  the  Chief  Justice  of  the  High  Court  of

Karnataka.  As there was no response, he preferred W.P. No.

38075/2013 before the High Court of Karnataka assailing

the  appointment  of  Bhavani  Singh  as  a  Special  Public

Prosecutor and making further prayer for appointment of an

eminent lawyer in his place.  During the pendency of the

writ  petition,  the  appointment  of  the  4th respondent  was

withdrawn on 26.8.2013 by the Government of Karnataka.

The  reason  ascribed  was  that  there  had  been  no  proper

consultation  with  the  Chief  Justice  of  Karnataka  High

Court.   The  order  of  withdrawal  of  the  Special  Public

Prosecutor was called in question in W.P.(Crl) No. 145/2013

and in pursuance of notice from this Court, a statement was

made that the impugned Notification would be withdrawn

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with a view to consult the Chief Justice of the High Court of

Karnataka and accordingly the writ petition was dismissed

having been rendered infructuous.  

8. As  the  factual  matrix  would  unfurl,  certain

developments occurred and on 10.9.2013, the Government

of Karnataka withdrew the Notification dated 26.8.2013 and

asked the 4th respondent not to appear before the Special

Court.  This compelled the accused persons to file W.P.(Crl)

No.  154/2013  before  this  Court.   There  was  stay  of  the

operation  of  the  Notification  dated  10.9.2013  and  on

14.9.2013, the Chief Justice of the Karnataka High Court

concurred with the view of  the Government of  Karnataka

that the 4th respondent should no longer continue as the

Public Prosecutor before the Special Court.  Pursuant to the

said order on 16.9.2013, a consequential order was passed

withdrawing the appointment of the 4th respondent.   This

led  the  accused  persons  to  file  W.P.(Crl.)  No.  166/2013.

Both the writ petitions were heard together and decided by

the decision in  J. Jayalalithaa and Others v. State of

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Karnataka and Others5, wherein this Court annulled the

impugned  order  removing  the  4th respondent,  the  same

being unsustainable in law.  The 4th respondent continued

during the trial and eventually the Special Court delivered

the  judgment  on  27.9.2014  convicting  all  the  accused

persons.  The elaborate submissions of the appellant were

taken into consideration by the learned Special Judge.  

9. Being  aggrieved  by  the  judgment  of  conviction  and

order of sentence, the accused persons preferred Criminal

Appeal No. 835-838 of 2014.  As the State of Karnataka was

not arrayed as a party in criminal appeal, it did not appoint

any  Public  Prosecutor.   It  is  interesting  to  note  that  the

State  of  Tamil  Nadu  exhibited  enormous  anxiety  and  on

29.9.2014,  the  Principal  Secretary  to  the  Government  of

Tamil  Nadu  passed  an  order  being  requested  by  the

Directorate of  Vigilance  and Anti Corruption, Chennai to

engage the services of 4th respondent as the Special Public

Prosecutor to appear before the High Court of Karnataka for

and  on  behalf  of  the  said  Directorate  in  appeal/bail

5  (2014) 2 SCC 401

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application and other petition that might arise out of  the

conviction of the accused persons.  The order passed by the

Principal Secretary reads as follows:-

“ORDER

The  Director,  Vigilance  and  Anti-Corruption, Chennai, in the letter read above, has requested the  Government  that  Thiru  G.  Bhavani  Singh, Special Public Prosecutor, who has conducted the trial  in  Special  C.C.  No.  208/2004  before  the Special Judge, 36th Additional City Civil & Ses- sions Court, Bengaluru, may be authorized to ap- pear  before  the High Court  of  Karnataka,  Ben- galuru, on behalf of the Directorate of Vigilance and Anti-Corruption, Chennai in any Appeal/Bail petition/any other petition that may arise out of the order of the above Trial Court.

2.  The  Government  after  careful  examination, have decided to authorize the Director, Vigilance and Anti-Corruption, Chennai to engage the ser- vices of Thiru G. Bhavani Singh, Special Public Prosecutor to appear before the Hon'ble Court of Karnataka,  Bengaluru  on  behalf  of  the  Direc- torate of Vigilance and Anti-Corruption, Chennai in  any  Appeal/Bail  Petition/any  other  petition that may arise out the order dated 27-09-2014 on the above Trial Court in all hearings.

(By order of the Governor) Jatindra Nath Swain

Principal Secretary to Government”

10. Being  empowered  by  the  aforesaid  order,  the  4th

respondent appeared in the criminal appeals.  The learned

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Single Judge declined to suspend the sentence awarded to

the accused persons and grant them bail.  The said order

came to be assailed in SLP (Crl.) No. 7900 of 2014 wherein

this  Court  granted  bail  to  the  accused  persons  on

17.10.2014 and confirmed the same on 18.12.2014.  The

order passed on 18.12.2014 reads as follows:-

“ORDER

Pursuant to the directions issued by this Court dated 17.10.2014, the Petitioners have been re- leased on bail.

Petitioners  have  filed  an  affidavit  dated 10.12.2014 to the effect that the entire records of the  trial  court  has  been  filed  before  the  High Court. From the affidavit, it is clear that neces- sary records have been filed and the appeals are ripe for hearing.

Keeping in view the peculiar facts of the case, we request the learned Chief Justice of High Court of Karnataka to constitute a Special Bench on the date of reopening of the High Court for hearing of the appeals exclusively on day-to-day basis and dispose of the same as early as possible at any rate within three months.

Bail granted by us earlier is extended by another four months from today.

Call these special leave petitions on 17.04.2015.”

11. In  the  meantime,  hearing  of  criminal  appeals

proceeded in the High Court of Karnataka before the learned

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Single Judge.  As the appellant was of the view that Bhavani

Singh could not have represented the prosecuting agency in

appeals,  he  submitted a  representation on 24.12.2014 to

the Chief Secretary, Government of Karnataka to appoint a

senior lawyer but there was no response.  The said situation

constrained  him  to  file  W.P.  No.  742  of  2015  seeking

appropriate  direction  from  the  High  Court  of  Karnataka.

The learned Single Judge disposed of the writ petition by

observing that when there is a direction by this Court to

hear the appeal on day to day basis before a Special Bench,

it would be appropriate to allow the proceedings in appeal to

continue notwithstanding the challenge as to the validity or

otherwise of  the appointment of  the 4th respondent.   The

learned Single  Judge further  proceeded to hold that  it  is

open either to the State Government or the writ petitioner to

seek  for  clarification,  if  any,  from  this  Court  as  to  the

procedure that would be followed in making appointment of

a  Special  Public  Prosecutor  and  assistant,  if  any,  to

represent the State of Karnataka.  Be it noticed, on behalf of

the State of Karnataka, which is reflectible from the order of

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the learned Single Judge, the following submission was put

forth:-

“The learned Advocate General would concur that the directions issued by the Supreme Court do not specify as to the procedure that is to be fol- lowed in the appointment of a Public Prosecutor before this Court in the pending appeals.  How- ever, if the objective of the Supreme Court is to be  understood  in  its  broadest  sense,  it  would have to be taken that the State Government of Karnataka, is entrusted with the task of conduct- ing the case at all stages, till it attains finality.

The  learned  Advocate  General  would  however, submit that after the judgment was pronounced by the trial court, there has been no further con- sultation between the State Government of Kar- nataka and the Chief Justice of the High Court of Karnataka, as directed by the Supreme Court in making any appointment of a Special Public Pros- ecutor and there is no appointment order issued in favour of Respondent No. 5, afresh; he would further submit that if it is a formality to be com- plied with, the State Government, in consultation with the Chief Justice, shall take further steps. Since the State Government is not formally au- thorized to take any steps in so far  as the ap- pointment of  the prosecutor or  counsel  to  con- duct  the  appeals,  no  steps  have  been  taken.” (emphasis supplied)

12. Being dissatisfied with the judgment and order passed

by the  learned Single  Judge,  the  appellant  preferred writ

appeal no. 260/2015 and the Division Bench recorded the

statement of the learned Advocate General, which is to the

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following effect:-

“Sri  Prof.  Ravi  Verma Kumar,  learned Advocate General,  appearing  for  the  State  of  Karnataka submitted  that  in  pursuance  of  the  directions issued  by  the  Hon'ble  Supreme  Court  in consultation with the Hon'ble Chief Justice, the State of Karnataka appointed a Senior Counsel as the Public Prosecutor,  who conducted the trial. When  the  said  Senior  Counsel  pleaded  his inability  to  continue  to  appear,  they  appointed the 5th Respondent [Mr. Bhavani Singh] as the Public  Prosecutor,  who  conducted  the proceedings. Now the trial has ended in an order of conviction. Accused have preferred the appeals before  this  Court. As  earlier,  the  appointment was made in pursuance of the direction issued by the Hon'ble Supreme Court, their understanding is that the obligation to appoint was only during trial.  With the trial  coming to  an end with the order  of  conviction,  that  obligation  ceases. As there is no fresh direction issued by the Hon'ble Supreme  Court  to  appoint  a  Special  Public Prosecutor,  they  have  not  made  any  such appointment. Though the State has appointed a Public  Prosecutor  under  Section 24(1) of  the Code,  in the absence of  any direction from the Apex  Court,  the  said  Public  Prosecutor  is  not appearing in the pending appeals before the High Court. As the matter is sub-judice, they have not taken any further action in this matter." (emphasis supplied)

13. The Division Bench, after hearing the counsel for the

parties and discussing the law in the filed,  came to hold

that  the  order  passed  on  29.9.2014  by  the  Principal

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Secretary  to  the  Government  of  Tamil  Nadu was  non est

inasmuch as the transferor court had no power to appoint

Public Prosecutor under Section 24 of the CrPC in respect of

the  case  pending  in  the  transferee  Court.   Interpreting

Section 301(1)  CrPC,  the  Division Bench opined that  the

language employed in the said provision would include an

appeal.   The Division Bench laid emphasis  on the  words

“case”  and “any court”  and also  referred to  the language

used in Section 24(1) and Section 24(8) CrPC and opined

thus:-

“By practice, by virtue of the appointment made in  Section  24(1)  of  the  Code,  the  Public Prosecutor  attached  to  that  Court  would prosecute  the  case.   But,  a  Special  Public Prosecutor appointed under Section 24(8) of the Code  to  a  case  and  not  to  a  Court  where experience of not less than 10 years of practice as an  Advocate  is  insisted  upon,  such  Public Prosecutor not only is capable of conducting trial at  the  lowest  level  he  is  equally  competent  to prosecute the case in appeal or revision.  During trial,  if  on  an interlocutory  order,  a  revision is filed either by the accused or to be filed by the State,  if  the  interpretation  canvassed  by  the appellant  is  to  be  accepted,  the  Special  Public Prosecutor appointed under Section 24(8) of the Code cannot without a fresh appointment under Section  24(8)  of  the  Code  appear  in  that revisional  Court.  To  appear  in  the  revisional

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Court, one more order under Section 24(8) of the Code has to be made.  That is not the intention of the legislature.”

Thereafter,  the  Division  Bench  referred  to  the

notification  appointing  the  Public  Prosecutor  and  ruled

that:-

“..... The language employed in the notification is unambiguous.   The  Public  Prosecutor  is appointed to conduct CC No. 7/1997 and CC No. 2/2001.   As  the  name of  the  parties  were  not mentioned,  in  the  brackets  it  is  mentioned  as regarding trial  of  Ms.  Jayalalitha and others in the  State  of  Karnataka.   Not  that  the  Public Prosecutor is appointed only for the purpose of the  trial  of  the  said  case.   However,  in  the subsequent notification appointing 5th respondent in the  brackets  it  is  mentioned,  in  the  case  of Kum.  Jayalalitha  and  others.   Therefore,  5th respondent  is  appointed  as  Special  Public Prosecutor in the case of  Kum. Jayalalitha and others.  Accordingly, the 5th respondent by virtue of Section 301(1) of the Code is entitled to appear and  plead  in  the  appeals  pending  in  the  High Court in the case of Kum. Jayalalitha and others, without any written authority.  

In the light of the aforesaid discussions, as the State Government has already appointed a Public Prosecutor under Section 24(1) of the Code to the High  Court  of  Karnataka,  the  question  of  this Court  issuing  any  direction  to  the  State  of Karnataka to appoint a Public Prosecutor under Section 24(1) of the Code would not arise.”

14. The first issue that arose before the two-Judge Bench

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was whether the State of Tamil Nadu could have appointed

Bhavani  Singh  as  the  Special  Public  Prosecutor  for  the

Karnataka  High  Court  to  defend  the  cause  of  the  State.

Lokur, J. referred to the pronouncement by a three-Judge

Bench  in  Jayendra  Saraswati  Swamigal  @

Subramaniam v.  State  of  Tamil  Nadu6 wherein  at  the

instance of  the appellant  therein,  the matter  had already

been  transferred  from  the  State  of  Tamil  Nadu  [See

Jayendra Saraswathy Swamigal (II) v. State of T.N.7].  After

transfer,  the  case  was  pending  before  the  District  and

Sessions  Judge,  Pondicherry.   The  Home  Department  of

State  of  Tamil  Nadu  had  appointed  one  Special  Public

Prosecutor and four Additional  Special Public  Prosecutors

for conducting the trial before the learned Sessions Judge at

Pondicherry.  The High Court of Madras being moved had

ruled that  offence having been committed in the State  of

Tamil Nadu and the investigation having been done by the

Tamil  Nadu  police,  the  transferee  court  cannot  normally

venture to appoint any Special Public Prosecutor to handle

6  (2008) 10 SCC 180 7  (2005) 8 SCC 771

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the case.  Setting aside the order of  the High Court,  this

Court held:-

“12. As per the procedure prescribed under Sec- tion 24, the State of Tamil Nadu can appoint a Public  Prosecutor  to  conduct  criminal  cases  in any of the court in that State. Such powers can- not be exercised by the State Government to con- duct cases in any other State. Once the case is transferred as per Section 406 CrPC to another State, the transferor State no longer has control over the prosecution to be conducted in a court situated in a different State to which the case has been transferred. It is the prerogative of the State Government  to  appoint  a  Public  Prosecutor  to conduct  the  case  which is  pending  in  the  ses- sions division of that State.

xxxxx xxxxx xxxxx

14. Sub-section (8) of Section 24 CrPC is a spe- cial  provision  regarding  the  appointment  of  a Special Prosecutor. This power can be exercised by the Central Government and the State Govern- ment  for  the  purpose  of  any  case  or  class  of cases, and a person who has been in practice as an advocate for not less than ten years may be appointed as a Special Public Prosecutor. These powers are also to be exercised by the State Gov- ernment  of  the  transferee court  where  the  ses- sions case is pending. Of course, the transferee State can appoint any person having qualification prescribed  under  sub-section  (8)  of  Section  24 CrPC.

xxxxx xxxxx xxxxx

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17. As is evident from various provisions of CrPC, the State Government of Tamil Nadu can only ap- point a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor under Section 24 CrPC to conduct the prosecution and appeal,  or  other  proceeding  in  any  criminal courts in respect of any case pending before the courts of Tamil Nadu and in respect of any case pending  before  the  courts  at  Pondicherry,  the State Government of Pondicherry is the appropri- ate Government to appoint Public Prosecutor, Ad- ditional Public Prosecutor or Special Public Pros- ecutor.”

15. Relying on the said decision and the directions given

by this Court while transferring the case, Lokur, J. opined

that the State of Tamil Nadu had no authority to appoint the

4th respondent as Public Prosecutor to contest the appeals

in the High Court.  Banumathi, J. concurred with the view

expressed by Lokur, J. by holding thus:-  

“As  per  the  decision  in  Jayendra  Saraswati Swamigal's case (supra), and the decision in 2004 3  SCC  767,  only  the  State  of  Karnataka  can appoint a Special Public Prosecutor. Order hastily passed by the State of Tamil Nadu on 29.09.2014 authorizing  D.V.  &  A.C  to  engage  Mr.  Bhavani Singh as its Special Public Prosecutor is without authority and non-est in the eye of law.”

We  have  referred  to  this  facet  only  to  highlight  the

anxiety expressed by the State of Tamil Nadu possibly being

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held:-

“93.  The  Constitution  Bench  referred  to  what would be an anomalous result if a Public Prose- cutor who had nothing to do with the particular case  is  entitled  to  file  an  application  for  with- drawal  Under  Section 494 of  the  old  Code.  By way of illustration, the Constitution Bench noted that if there are two Public Prosecutors appointed for a particular court and one of them is conduct- ing the prosecution in a particular case and de- sires  to  go  on  with  the  proceedings,  it  will  be open  to  the  other  Public  Prosecutor  to  ask  for withdrawal  from  the  prosecution.  Similarly,  it was illustratively observed that a Public Prosecu- tor appointed for case A before a particular court, can, by virtue of his being a Public Prosecutor file an application in case B, with which he has noth- ing to do, and ask for permission of the court to withdraw  from  the  prosecution.  Extrapolating this illustration to the facts of the present case, the result would certainly be anomalous if a Pub- lic Prosecutor appointed for case A before a par- ticular Court (read Mr. Bhavani Singh appointed for the case against the accused persons before the Special Court) can by virtue of being a Public Prosecutor appear in case B with which he has nothing to do (read the criminal appeals filed in the Karnataka High Court).

94.  It  is  in  this  context  that  the  Constitution Bench  held  that  Section 494 of  the  old  Code refers only to a Public Prosecutor in charge of a particular  case  and  is  actually  conducting  the prosecution  who can  take  steps  in  the  matter. Under  the  circumstances,  though  Mr.  Bhavani Singh was entitled to conduct the trial before the Special Court in an appropriate manner, merely because he was in charge of the prosecution be- fore the Special Court did not entitle him to con-

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Central Government or State Government, as the case may be.

xxxxx xxxxx xxxxx

(3) For  every  district,  the  State  Government shall appoint a Public Prosecutor and may also appoint  one  or  more  Additional  Public Prosecutors for the district:

Provided  that  the  Public  Prosecutor  or Additional  Public  Prosecutor  appointed  for  one district  may  be  appointed  also  to  be  a  Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.

xxxxx xxxxx xxxxx

(8)  The  Central  Government  or  the  State Government may appoint, for the purposes 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.

Provided that the Court may permit the victim to engage an advocate of  this choice to assist  the prosecution under this Sub-section.”

23. Sub-section (1) of Section 24 CrPC has been amended

in the State of Karnataka (vide Karnataka Act 20 of 1982

w.e.f. 3.9.1981).  It provides thus:

“In Section 24, in sub-section (1), --  

(i) Omit  the  words  “or  the  State  Government shall”;

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(ii) for the words “appoint a Public Prosecutor”, substitute  the  words “or  the  State  Government shall appoint a Public Prosecutor”.”

24. Section 25A deals with the Directorate of Prosecution.

It reads as follows:-  

“25A.  Directorate  of  Prosecution.  –  (1)  The State Government may establish a Directorate of Prosecution  consisting  of  a  Director  of Prosecution  and  as  many  Deputy  Directors  of Prosecution as it thinks fit.

(2) A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate  for  not  less  than ten years  and such appointment shall be made with the concurrence of the Chief Justice of the High Court.  

(3) The Head of the Directorate of Prosecution shall  be  the  Director  of  Prosecution,  who shall function under the administrative control of the Head of the Home Department in the State.  

(4) Every Deputy Director of  Prosecution shall be subordinate to the Director of Prosecution.    (5) Every  Public  Prosecutor,  Additional  Public Prosecutor  and  Special  Public  Prosecutor appointed  by  the  State  Government  under sub-section  (1),  or  as  the  case  may  be, sub-section (8), of section 24 to conduct cases in the  High  Court  shall  be  subordinate  to  the Deputy Director of Prosecution.  

(6) Every  Public  Prosecutor,  Additional  Public Prosecutor  and  Special  Public  Prosecutor

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appointed  by  the  State  Government  under sub-section  (3),  or  as  the  case  may  be, sub-section (8), of section 24 to conduct cases in District  Courts  and  every  Assistant  Public Prosecutor  appointed  under  sub-section  (1)  of section  24  shall  be  subordinate  to  the  Deputy Director of Prosecution.

(7) The powers and functions of the Director of Prosecution  and  the  Deputy  Directors  of Prosecution and the areas for which each of the Deputy  Directors  of  Prosecution  have  been appointed shall be such as the State Government may, by notification, specify.  

(8) The provisions of this section shall not apply to  the  Advocate  General  for  the  State  while performing the functions of a Public Prosecutor.”

25. Section 301(1) CrPC that deals with the appearance by

Public Prosecutors reads thus:-

“301. Appearance by Public Prosecutors.-(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.”

26. The aforesaid provisions have to be appreciated in a

schematic  context.   All  the  provisions  reproduced

hereinabove are to be read and understood as one singular

scheme.   They  cannot  be  read  bereft  of  their  text  and

context.  If they are read as parts of different schemes, there

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is bound to be anomaly.  Such an interpretation is to be

avoided,  and  the  careful  reading  of  the  CrPC,  in  reality,

avoids the same.  The dictionary clause in 2 (u) only refers

to a person appointed under Section 24 CrPC and includes

any  person  acting  under  the  directions  of  a  Public

Prosecutor.  The class or status of the Public Prosecutor is

controlled by Section 24 and 25A of the CrPC.  On a careful

x-ray  of  the  provisions  of  Section  24  it  is  clearly

demonstrable  that  Section  24(1)  has  restricted  the

appointment of Public Prosecutor for the High Court, for the

provision  commences  with  words  “for  every  High  Court.”

Sub-section  (3)  deals  with  the  appointment  of  Public

Prosecutor or Additional Public Prosecutor for the districts.

There is a procedure for appointment with which we are not

concerned.   Sub-section  (8)  of  section  24  deals  with

appointment of  Special  Public  Prosecutor  for  any case or

class  of  cases.   A Public  Prosecutor  who is  appointed in

connection  with  a  district  his  working  sphere  has  to  be

restricted to the district unless he is specially engaged to

appear before the higher court.  A Special Public Prosecutor

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when he is appointed for any specific case and that too for

any specific court, it is a restricted appointment.  In this

context  Section  25A  of  the  Code  renders  immense

assistance.   The State  Government is  under obligation to

establish  directorate  of  prosecution.   Section  25A clearly

stipulates  that  Public  Prosecutor,  Additional  Public

Prosecutor and Special Public Prosecutor are appointed by

the  State  Government  under  sub-Section  (1)  or  under

sub-Section (8) of Section 24 to conduct cases in the High

Court, shall be subordinate to the Director of Prosecution.

Sub-section (6) postulates that the three categories named

herein appointed by the State Government to conduct cases

in  the  district  courts  shall  be  subordinate  to  Deputy

Director  of  Prosecution.   Thus,  the  scheme  makes  a

perceptible demarcation and compartmentalization for  the

Public Prosecutor in the High Court and the district courts.

In  this  context  we  may  refer  with  profit  to  Rule  30  of

Karnataka  Law Officers  (Appointments  and  Conditions  of

Service) Rules 1977 (for short ‘the Rules”).  The said rules

read as follows:-

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“30. Special  Counsels –  Subject  to these rules the Government may appoint any advocate as a Special Counsel either for the conduct of a civil or criminal  case  or  any  appeal  or  proceeding connected  therewith,  pending  in  a  court  either within the State or in any other State or in the Supreme  Court  or  in  any  High  Court  in  the country.  

(2) Before  making  such  appointment  the Government may consult the Advocate General if the  appointment  is  to  conduct  a  civil  case  or appeal and the Director of Prosecution if it is to conduct a criminal case or appeal.  

(3) Remuneration payable to a special counsel shall be such as may be decided by Government in each case having regard to the nature of the case.”

27. The  said  rule  as  far  as  the  State  of  Karnataka  is

concerned has its  own significance.   It  clearly  lays down

that before  making an appointment  the Government  may

consult  the  Advocate  General  if  the  appointment  is  to

conduct  a  civil  case  or  appeal,  and  the  Director  of

Prosecution if  it  is  to  conduct  a criminal  case or appeal.

Sub-rule (1) of Rule 30 makes a distinction between a case

and an appeal and same is the language used in sub-rule

(2).  We are only referring to this Rule to highlight that this

Rule has been framed by the State of Karnataka by way of

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abundant caution.   This Rule clarifies that if any counsel is

to  be  appointed  for  the  purpose  of  an  appeal,  the  State

Government  may  do  so  after  consulting  the  authorities

mentioned therein.  There is nothing on record that the 4 th

respondent  was  appointed  to  defend  the  prosecution  in

appeal in the High Court.  The authority to appear before

the  High  Court  as  the  analysis  would  show,  is

fundamentally founded on the interpretation of Section 301

of CrPC.  We have already reproduced Section 301 (1).  In

this context we may refer with profit to Section 493 of the

old Code.  It reads as follows:-   

“493 -  Public Prosecutor may plead in all Courts in cases under his charge, Pleaders privately  instructed  o  be  under  his direction.- The Public Prosecutor may appear and  plead  without  any  written  authority before any Court in which any case of which he  has  charge  is  under  inquiry,  trial  or appeal,  an if  any private  person instructs  a pleader to prosecute in any Court any person in any such case, the Public Prosecution, and the  pleader  so  instructed  shall  act  therein, under his directions.”  

28.  In  the  aforesaid  provision  the  legislature  had

employed the words “before any Court in which any case of

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which  he  has  charge”.    In  Bhimpappa  Basappa  Bhu

Sannavar  v.  Laxman  Shivarayappa  Samagouda  and

others10 explaining the word “case” the court held:-

“The word “case” is not defined by the Code but its meaning is well-understood in legal circles. In criminal jurisdiction means ordinarily a proceed- ing for the prosecution of a person alleged to have committed an offence. In other contexts the word may represent other kinds of proceedings but in the  context  of  the  sub-section it  must  mean a proceeding which at the end results either in dis- charge,  conviction,  or  acquittal  of  an  accused person.”

29. In Surjit  Singh (supra) while  dealing  with  an

application for withdrawal from prosecution under Section

494  of  the  Code  by  the  Public  Prosecutor,  though  in  a

different fact situation, observed that:-

“Section 492 only deals with the appointment of Public Prosecutors by the Government or by the District Magistrate, in circumstances mentioned therein and Section 493 specifically refers to the Public  Prosecutor  who is  in  charge of  the case which is under enquiry, trial or appeal, when ap- pearing and pleading before such Court. Section 493  only  dispenses  with  the  Public  Prosecutor having to file any written authority. That section also makes it clear that if any private person is instructing a pleader to prosecute any person “in any such case” — which must have reference to the  case  of  which  the  Public  Prosecutor  is  in

10 (1970) 1 SCC 665

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charge  —  nevertheless,  the  Public  Prosecutor shall conduct the prosecution and the pleader is to act under his directions. Section 494 also, in our opinion, must refer only to the Public Prose- cutor who is in charge of the particular case in which he makes a request to withdraw from the prosecution. Some of these aspects have been al- ready  adverted  to  by  us  earlier.  If  any  Public Prosecutor, who had nothing to do with a partic- ular case, is held entitled to file  an application under Section 494, in our opinion, the result will be very anomalous. For instance, if there are two Public  Prosecutors  appointed  for  a  particular court, and one of the Public Prosecutors is con- ducting the prosecution in a particular case, and desires to go on with the proceedings, it will be open  to  the  other  Public  Prosecutor  to  ask  for withdrawal  from  the  prosecution.  Similarly,  a Public Prosecutor appointed for case A, before a particular  court,  can,  by  virtue  of  his  being  a Public Prosecutor, file an application in case B, with which he has nothing to do, and ask for per- mission of the court to withdraw from the prose- cution.

The reasonable interpretation to be placed upon Section 494, in our opinion, is that it is only the Public Prosecutor, who is in charge of a particu- lar case and is actually conducting the prosecu- tion, that can file an application under that sec- tion,  seeking  permission  to  withdraw  from  the prosecution.  If  a  Public  Prosecutor  is  not  in charge of a particular case and is not conducting the prosecution, he will not be entitled to ask for withdrawal from prosecution, under Section 494 of the Code.”

30. We have referred to this judgment in extenso only to

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show the responsibility of a Public Prosecutor in charge of a

case.  Section 301 occurs in Chapter XXIV CrPC that deals

with  the  “General  provisions  as  to  Inquiries  and  Trials”.

Sections 24 (8) and 301 (1) when read together, needless to

say,  confers  a  right  on  the  Public  Prosecutor  who  is  in

charge of a case to appear and plead without having any

written authority.   He remains and functions as the sole

authority in charge of the case.  There can be no cavil over

the same.  The core question is, whether “in charge of the

case” would include an appeal arising out of the said case in

the  hierarchical  system.    Section  24  (1)  deals  with  the

specific  power  of  the  Government  to  appoint  Public

Prosecutor.  Section 24(8) confers the power on the State

Government to appoint a Special Public Prosecutor for any

case or class of cases.  To give an example, there can be a

batch  of  cases  under  the  Prevention  of  Corruption  Act

against number of persons arising out of different FIRs but

involving similar transactions.  To have a proper trial the

Government  is  entitled  to  appoint  a  Special  Public

Prosecutor.  If the word “case” is given a meaning to include

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the  appeal,  it  will  be  denuding  the  power  of  appointing

authority.   The  law  does  not  so  countenance.   If  the

Government  by  a  notification  appoints  an  eligible  person

clearly  stating  that  he  shall  conduct  the  trial  as  well  as

pursue  the  appeal  arising  out  of  it,  there  will  be  no

difficulty.  Therefore, much stress cannot be given on the

words “without any written authority”  as used in Section

301.   It  can  only  mean  that  the  Public  Prosecutor  once

engaged/appointed  by  the  State,  he  can  prosecute  the

appeal  without  filing  any  formal  authority  for  the  said

purpose.   It cannot be construed to the extent that solely

because he has been appointed in connection with the trial

case, he can appear before the High Court for which he has

not been appointed in pursuance of  Section 24 (1)  CrPC.

Section 301(1) CrPC cannot be stretched to that extent.  In

that event, it would really lead to an anomalous situation.

A Public Prosecutor has to be specifically appointed for the

appeals or revisions or other proceedings in the High Court.

The anomalous situations, which have been highlighted by

Lokur, J. have our respectful concurrence.  In fact, the Code

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does not remotely so envisage and the contextual reading of

all  the  provisions  do  not  so  convey.   Therefore,  we

ingeminate  that  a  Public  Prosecutor  who is  appointed  to

conduct a case before the trial court cannot be deemed to be

appointed for the purpose of appeal arising therefrom solely

because  of  the  language  employed  in  Section  301(1)  of

CrPC.

31. In view of  our preceding analysis the 4th respondent

was not appointed by the State of Karnataka to argue the

appeals before the High Court.  Lokur, J. after holding that

he was not authorised to represent the prosecution in the

Karnataka High in the appeals has opined thus:-  

“That being so, the final hearing proceedings in this regard before the High Court are vitiated and the appeals  filed by the accused persons being Criminal Appeals Nos. 835-838 of 2014 will have to be heard afresh by the High Court.”

Banumathi, J. as has been discussed has upheld the

appointment  of  4th respondent  and,  therefore,  she  has

dismissed the appeal.   

32. As we have already held that the 4th respondent could

not have appeared in the appeal, the issue that has become

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germane  at  this  juncture  is  whether  annulment  of

appointment of Bhavani Singh as Public Prosecutor would

entail de novo hearing of the appeal.  We have been apprised

that  in  pursuance of  the  order  passed by this  Court  the

appeal has been heard on day to day basis.  The learned

Judge has already heard the appeal and is in the process of

preparation of the judgment.  The appellant had submitted

written note of submissions before the trial court which is

more  than  400  pages.   The  allegations  against  Bhavani

Singh  had  been  dropped  by  the  appellant  in  course  of

hearing  of  the  writ  petition  and  hence,  we  refrain  from

delving into such allegations.    

33. Be it noted, the appeal has been heard by the learned

Single Judge of the High Court and the appeal assails the

judgment of conviction and order of sentence passed under

the various provisions of the 1988 Act.  It needs no special

emphasis that the appellate court has the sacrosanct duty

to evaluate,  appreciate and consider each material  aspect

brought on record before rendering the judgment.  That is

sacred  duty  of  a  Judge;  and  the  same  gets  more

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accentuated  when  the  matter  is  in  appeal  assailing  the

defensibility of the conviction in a corruption case.  

34. The case under the 1988 Act has its own significance.

In  Niranjan  Hemchandra  Sashittal  v.  State  of

Maharashtra11, it has been held thus:-

“It can be stated without any fear of contradiction that corruption is not to be judged by degree, for corruption  mothers  disorder,  destroys  societal will  to  progress,  accelerates  undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of  a country,  corrodes the sense of  civility  and mars  the  marrows  of  governance.  It  is  worth noting  that  immoral  acquisition  of  wealth destroys  the  energy  of  the  people  believing  in honesty, and history records with agony how they have  suffered.  The  only  redeeming  fact  is  that collective sensibility respects such suffering as it is  in  consonance  with  the  constitutional morality.”

35. In  Subramanian Swamy v.  CBI12,  the  Constitution

Bench while declaring Section 6-A of the Delhi Special Police

Establishment Act, 1946 unconstitutional, observed that:-

“Corruption  is  an  enemy  of  the  nation  and tracking  down  corrupt  public  servants  and punishing such persons is a necessary mandate of the PC Act, 1988. It is difficult to justify the classification  which  has  been  made  in  Section

11  (2013) 4 SCC 642 12  (2014) 8 SCC 682

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6-A because the goal of law in the PC Act, 1988 is to meet corruption cases with a very strong hand and all public servants are warned through such a legislative measure that corrupt public servants have to face very serious consequences.”

And again,

“Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may  be,  and  punishing  such  person  is  a necessary mandate under the PC Act, 1988. The status  or  position  of  public  servant  does  not qualify such public servant from exemption from  equal treatment. The decision-making power does not segregate corrupt officers into two classes as they  are  common  crimedoers  and  have  to  be tracked down by the same process of inquiry and investigation.”

36. We have referred to the aforesaid two authorities only

to highlight the gravity of  the offence.  We are absolutely

sure that the learned Single Judge, as the appellate Judge,

shall  keep  in  mind  the  real  functioning  of  an  appellate

court.  The appellate court has a duty to make a complete

and comprehensive appreciation of all vital features of the

case.  The evidence brought on record in entirety has to be

scrutinized  with  care  and caution.   It  is  the  duty  of  the

Judge to see that justice is appropriately administered, for

that is the paramount consideration of a Judge.  The said

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responsibility  cannot  be  abdicated  or  abandoned  or

ostracized,  even remotely,  solely  because there  might  not

have been proper assistance by the counsel appearing for

the parties.   The appellate court is required to weigh the

materials,  ascribe  concrete  reasons  and  the  filament  of

reasoning must logically flow from the requisite analysis of

the material on record.  The approach cannot be cryptic.  It

cannot be perverse.  The duty of the Judge is to consider the

evidence objectively and dispassionately.  The reasonings in

appeal are to be well deliberated.  They are to be resolutely

expressed.  An objective judgment of the evidence reflects

the greatness of mind – sans passion and sans prejudice.

The reflective attitude of the Judge must be demonstrable

from the judgment itself.   A judge must avoid all  kind of

weakness and vacillation.  That is the sole test.  That is the

litmus test.  This being the position of a Judge, which is

more  elevated  as  the  appellate  Judge,  we  are  of  the

considered  opinion  that  there  is  no  justification  for

rehearing of  the appeal  as the matter  has been heard at

length  and  reserved  for  verdict.   The  appellant  has

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submitted his written note of submissions before the trial

court and, therefore, we are inclined to permit him to file a

written  note  of  submissions  within  90  pages  before  the

learned  Single  Judge/Appellate  Judge.   The  State  of

Karnataka,  which  is  the  prosecuting  agency,  is  granted

permission  to  file  written  note  of  submissions  within  50

pages.   The  written  submissions  be  filed  latest  by

28.4.2015.  The written note of submissions filed before the

trial  court and the High Court along with written note of

submissions of State of  Karnataka shall be considered by

the learned Single Judge and the consideration should be

manifest in the judgment.   Written note of submissions, if

any, by the 4th respondent shall not be considered by the

learned  Judge.   A  copy  of  our  judgment  be  sent  by  the

Registry of this Court in course of the day to the Registrar

General of the High Court of Karnataka so that he can place

the judgment before the learned Single Judge for  perusal

and guidance.  

37. In view of our preceding analysis, we proceed to record

our conclusions in seriatim:-

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(a) The State of Tamil Nadu had no authority to appoint

the 4th respondent, Bhavani Singh as the Public Prosecutor

to argue the appeal.

(b) It  is  the  State  of  Karnataka  which  is  the  sole

prosecuting agency and it was alone authorized to appoint

the Public Prosecutor.

(c) The appointment of 4th respondent, Bhavani Singh as

the Public Prosecutor for the trial did not make him eligible

to  prosecute  the  appeal  on  behalf  of  prosecuting  agency

before the High Court.

(d) The appointment of a Public Prosecutor, as envisaged

under Section 24(1) CrPC in the High Court is different than

the  appointment  of  a  Public  Prosecutor  for  the  District

Courts;  and  that  the  Notification  appointing  the  4th

respondent  did  not  enable  him to  represent  the  State  of

Karnataka in appeal.

(e) Though the appointment of the 4th respondent is bad

in  law,  yet  there  is  no  justification to  direct  for  de  novo

hearing of the appeal, regard being had to the duties of the

appellate Judge, which we have enumerated hereinbefore,

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especially  in  a  case  pertaining  to  the  Prevention  of

Corruption Act, 1988;

(f) The appellant  as well  as the State  of  Karnataka are

entitled  to  file  their  written  note  submissions  within  the

framework, as has been indicated in para 36.

(g) The  learned  Appellate  Judge,  after  receipt  of  our

judgment sent today, shall peruse the same and be guided

by the observations made therein while deciding the appeal.

38. Consequently, the appeal stands disposed of in above

terms.  

.............................J. [Dipak Misra]

..........................., J.       [R.K. Agrawal]

..........................., J. [Prafulla C. Pant]

New Delhi April 27, 2015