K. ANBAZHAGAN Vs STATE OF KARNATAKA AND OTHERS
Bench: MADAN B. LOKUR,R. BANUMATHI
Case number: Crl.A. No.-000637-000637 / 2015
Diary number: 6087 / 2015
Advocates: V. G. PRAGASAM Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.637 OF 2015
(Arising out of S.L.P. (Crl.) No.1632 of 2015)
K. Anbazhagan …Appellant
Versus
State of Karnataka and Ors. …Respondents
WITH CRIMINAL APPEAL NO.638 OF 2015
(Arising out of S.L.P. (Crl.) No.2013 of 2015)
K. Anbazhagan ...Appellant
Versus
Selvi J. Jayalalitha and Anr. …Respondents
J U D G M E N T Madan B. Lokur, J.
1. Leave granted.
2. The question for consideration is whether Mr. G.
Bhavani Singh appointed as a Special Public Prosecutor in
the trial of the case against Ms. Jayalalithaa and other
accused persons in the Special Court in Bengaluru was
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entitled to represent the prosecution in the appeals filed in
the Karnataka High Court by the accused persons against
their conviction.
3. My answer to this question is in the negative on an
appreciation of earlier directions given by this court, on a
reading of the notification appointing Mr. Bhavani Singh as
a Special Public Prosecutor and on an interpretation of
Sections 24, 25, 25-A and 301(1) of the Code of Criminal
Procedure, 1973. The result is that the hearing of the
appeals in the High Court stands vitiated, since the
prosecution was not represented by an authorized person.
The appeals will have to be heard afresh by the High Court
with the prosecution represented by a Public Prosecutor
appointed under Section 24(1) of the Criminal Procedure
Code, 1973 or a Special Public Prosecutor appointed by
the State of Karnataka under Section 24(8) of the said
Code.
4. Before adverting to the facts of the case, it needs
mention that this case is a classic illustration of what is
wrong with our criminal justice delivery system. If the
allegations made by Mr. K. Anbazhagan1 are true that the
1
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accused persons used their power and influence to
manipulate and subvert the criminal justice system for
more than 15 years thereby delaying the conclusion of the
trial against them, then it is a reflection on the role that
power and influence can play in criminal justice delivery.
However, if the allegations made by him are not true,
even then it is extremely unfortunate that a criminal trial
should take more than 15 years to conclude. Whichever
way one looks at the unacceptable delay, it is the criminal
justice delivery system that comes out the loser.
Something drastic needs to be done to remedy the
system, if not completely overhaul it, and as this case
graphically illustrates, the time starts NOW.
Background facts
5. The background facts relating to the appeals have
been pithily stated in K. Anbazhagan v.
Superintendent of Police2 and the relevant facts are
paraphrased for the purposes of this decision.
6. From 1991 to 1996, Ms. J. Jayalalithaa was the duly
elected Chief Minister of Tamil Nadu. A political party
called the AIADMK headed by her was defeated in the Mr. Anbazhagan is the General Secretary of the DMK, a political party
2 (2004) 3 SCC 767
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general elections held in 1996 and another political party,
the DMK, was voted in with a majority. On the basis of
allegations of amassing assets disproportionate to their
known sources of income, criminal proceedings were
initiated against Ms. Jayalalithaa and her associates.
Special Courts were constituted by the new government
for the trial of the cases filed against Ms. J. Jayalalithaa,
Ms. S. Sasikala, Mr.V.N. Sudhakaran and Ms. J. Elavarasi.
The constitution of the Special Courts was upheld by this
court.3
7. In 1997, CC No. 7 of 1997 was filed before the
Principal Special Judge, Chennai for the trial of Ms. J.
Jayalalithaa, Ms. S. Sasikala, Mr. V.N. Sudhakaran and Ms.
J. Elavarasi, who were charge-sheeted for offences under
Section 120-B of the Indian Penal Code, Section 13(2) read
with Section 13(1)(e) of the Prevention of Corruption Act,
1988 for alleged accumulation of wealth of Rs 66.65
crores, disproportionate to their known sources of income.
8. The trial of CC No. 7 of 1997 progressed before the
Special Judge and by August 2000, as many as 250
prosecution witnesses were examined. In the general
3 J. Jayalalitha v. Union of India, (1999) 5 SCC 138
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elections held in May 2001, the AIADMK headed by Ms.
Jayalalithaa secured a majority of votes in the elections
and therefore a majority of seats in the Legislative
Assembly. She was chosen as the leader of the House by
the AIADMK and appointed as the Chief Minister of Tamil
Nadu. Her appointment as Chief Minister was challenged
soon thereafter and this court declared that her
appointment was not legal or valid.4 Consequently, on 21st
September, 2001 she ceased to hold the office of Chief
Minister of Tamil Nadu.
9. Sometime in January-February, 2002 the Election
Commission of India announced a bye-election to the
Andipatti Constituency. In the bye-election held on 21st
February, 2002 Ms. Jayalalithaa was declared elected and
she was sworn in as the Chief Minister of Tamil Nadu on 2nd
March, 2002. With the change in government, it appears
that three Public Prosecutors connected with CC No. 7 of
1997 resigned; a Senior Advocate appearing for the State
also resigned as also the Investigating Officer. It appears
that due to these resignations, and perhaps for other
reasons, the trial did not proceed. Eventually, on 7th
4 B.R. Kapur v. State of Tamil Nadu, AIR 2001 SC 3435
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November, 2002 the trial in CC No. 7 of 1997 resumed.
10. On the resumption of the trial, as many as 76 PWs
were recalled for cross-examination on the ground that
counsel appearing for the accused or some of them had
earlier been busy in some other case filed against them. It
seems that the Public Prosecutor did not object to the
witnesses being recalled or gave his consent for their
recall. Out of a total 76 PWs, as many as 64 PWs resiled
from their previous statement-in-chief. It also appears that
the Public Prosecutor made no attempt to declare them
hostile and/or to cross-examine them by resorting to
Section 154 of the Indian Evidence Act. It also appears
that no attempt was made to see that the court takes
action against the witnesses for perjury. Furthermore, it
seems that the presence of Ms. Jayalalithaa was dispensed
with during her examination under Section 313 of the
Code of Criminal Procedure Code, 1973 (for short ‘the
Code’) and instead a questionnaire was sent to her and
her reply to the questionnaire was sent to the court in
absentia. Apparently, the Public Prosecutor did not object
to Ms. Jayalalithaa’s application for dispensing with her
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presence at the time of examination under Section 313 of
the Code.
11. In these circumstances, the appellant, Mr.
Anbazhagan moved transfer petitions in this court under
Section 406 of the Code seeking transfer of CC No.7 of
1997 and CC No. 2 of 2001 pending in the Court of the XIth
Additional Sessions Judge (Special Court No.1), Chennai to
a court of equivalent competent jurisdiction in any other
State.5
12. The transfer petitions were allowed by this court by
its judgment and order dated 18th November, 2003 and
the decision of this court is reported as K. Anbazhagan
v. Superintendent of Police.6
13. While it is not necessary to go into great detail into
the reasons why this court transferred the cases, it is
nevertheless necessary to mention that this court
5406. Power of Supreme Court to transfer cases and appeals.— (1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.
(2) The Supreme Court may act under this section only on the application of the Attorney- General of India or of a party interested, and every such application shall be made by motion, which shall, except when the applicant is the Attorney-General of India or the Advocate-General of the State, be supported by affidavit or affirmation.
(3) Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of the case.
6 (2004) 3 SCC 767
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observed that Mr. Anbazhagan had made out a case that
confidence in the fairness of the trial was being seriously
undermined by the manner in which the prosecution was
being conducted. It was observed that the Public
Prosecutor was hand in glove with the accused thereby
creating a reasonable apprehension of likelihood of failure
of justice and there was a strong indication that the
process of justice was being subverted. Accordingly, this
court transferred the prosecution being CC No.7 of 1997
and CC No. 2 of 2001 pending in the court of the XI th
Additional Sessions Judge (Special Court No.1) Chennai
from Tamil Nadu to Karnataka with the following directions
given in paragraph 34 of the Report:
(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.
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(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 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, 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
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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.
14. The directions that are of primary concern are
directions (a), (b) and (c). They are to the effect that the
State of Karnataka should constitute a Special Court to try
the transferred cases in Bangalore (now Bengaluru); that a
Special Judge be appointed to the Special Court to try the
transferred cases on a day to day basis; that the State of
Karnataka should, in consultation with the Chief Justice of
the Karnataka High Court, appoint a senior lawyer having
experience in criminal trials as a Public Prosecutor to
conduct the transferred cases against the accused
persons.
15. Pursuant to the directions given by this court, the
State of Karnataka, in consultation with the Chief Justice of
the High Court of Karnataka appointed Mr. B.V. Acharya as
a Public Prosecutor to conduct the case against the
accused persons. The order dated 19th February, 2005
assigning the case to Mr. B.V. Acharya as a Public
Prosecutor reads as follows: NOTIFICATION
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In obedience of the judgment dated 18.11.2003 passed by the Supreme Court of India in Transfer Petition (Criminal) Nos.77-78/2003 in the matter of K. Anbazhagan vs. 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 B.V. Acharya, Senior Advocate and former Advocate General of Karnataka, No.42, 5th Main, Jayamahal Extension, Bangalore – 560041, is appointed as Public Prosecutor to conduct C.C. No.7/1997 and C.C. No.2/2001 pending on the file of the XIth Additional Sessions Judge, (Special Court No.1), Chennai, regarding trial of Ms. Jayalalitha and others in the State of Karnataka and now transferred to the XXXVI Additional City Civil and Sessions Judge in pursuance.
By Order and in the name of the Governor of Karnataka.
Sd/- (Chikkahanumanthaiah)
Under Secretary to Government, (Administration-1) Law Department
16. For reasons that are not necessary to detail, Mr.
Acharya resigned as the Public Prosecutor and in his place
the State of Karnataka appointed Mr. G. Bhavani Singh as
a Special Public Prosecutor by a notification dated 2nd
February, 2013. The order appointing Mr. Bhavani Singh
as a Special Public Prosecutor was issued in exercise of
powers conferred by Section 24(8) of the Code7 and Rule 7 The relevant portions of Section 24 of the Code read as follows:
24. Public Prosecutors.—(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also
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30 of the Karnataka Law Officers (Appointment and
Conditions of Service) Rules, 1977.8 The notification
appointing Mr. Bhavani Singh reads as follows:-
NOTIFICATION 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. Jayalalitha and others) pending on the file of XXXVIth
appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.
(2) The Central Government may appoint one or more Public Prosecutors, for the purpose of conducting any case or class of cases in any district, or local area.
(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.
(4) to (7) xxx xxx xxx (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.
(9) xxx xxx xxx 8 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 proceedings 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.
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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.
17. During the trial of Special CC No. 208 of 20049
before the Special Court, Bangalore, an application was
moved by Mr. Anbazhagan on 13th August, 2013 under
Section 301(2) of the Code requesting for permission to
assist the Special Public Prosecutor by making oral
submissions on the merits of the case.10 The application
was partly allowed by the Special Court by an order dated
21st August, 2013 and Mr. Anbazhagan was permitted to
file a Memo of Arguments and to render such assistance to
the Special Public Prosecutor as he may require. At a later
date on 19th May, 2014 Mr. Anbazhagan filed elaborate
written submissions running into about 430 pages.
18. Mr. Anbazhagan had separately objected to the 9 On transfer of the case from Tamil Nadu to Karnataka, it was renumbered from CC No.7 of 1997 to Special CC No.208 of 2004. We are not concerned with CC No.2 of 2001. 10 301. 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.
(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.
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appointment of Mr. Bhavani Singh as the Special Public
Prosecutor in representations to the Government of
Karnataka and to the Chief Justice of the High Court of
Karnataka, along with a request to remove him (Mr.
Bhavani Singh) as the Special Public Prosecutor in the trial
against the accused persons in view of some allegations
against him.
19. Since Mr. Anbazhagan did not receive any positive
response, he filed W.P. No. 38075 of 2013 in the High
Court of Karnataka on 23rd August, 2013 challenging the
appointment of Mr. Bhavani Singh as the Special Public
Prosecutor and also praying that some other eminent
lawyer may be appointed in his place.11
20. During the pendency of W.P. No. 38075 of 2013, by a
notification issued on 26th August, 2013 the appointment
of Mr. Bhavani Singh as the Special Public Prosecutor was
withdrawn by Karnataka. The ostensible reason was that
there was no proper consultation with the Chief Justice of
the Karnataka High Court when Mr. Bhavani Singh was
appointed as the Special Public Prosecutor.
21. Aggrieved by the withdrawal of Mr. Bhavani Singh’s 11 The website of the Karnataka High Court indicates that the writ petition is still pending. However, it seems to have become infructuous due to subsequent events.
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appointment as the Special Public Prosecutor, the accused
persons filed a writ petition in this court being W.P. (Crl.)
No.145 of 2013. Upon notice being issued to the State of
Karnataka, the learned Attorney General appeared for
Karnataka and informed this court on 6th September, 2013
that the impugned notification dated 26th August, 2013
would be withdrawn with a view to consult the Chief
Justice of the Karnataka High Court. Consequently, the writ
petition was dismissed as having become infructuous.
22. Soon thereafter, several developments occurred in
quick succession. On 10th September, 2013 the State of
Karnataka withdrew the notification dated 26th August,
2013 and by a letter of the same date requested Mr.
Bhavani Singh not to appear before the Special Court. This
led the accused persons to file W.P. (Crl.) No. 154 of 2013
in this court challenging the notification and the letter,
both dated 10th September, 2013. This court issued notice
in the writ petition, returnable in ten days and also passed
an interim order staying the operation of the letter dated
10th September, 2013.
23. The State of Karnataka then consulted the Chief
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Justice of the Karnataka High Court regarding the
appointment of Mr. Bhavani Singh as the Special Public
Prosecutor. On 14th September, 2013 the Chief Justice of
the Karnataka High Court concurred with the view of the
State of Karnataka that Mr. Bhavani Singh should no
longer continue as the Special Public Prosecutor before the
Special Court. On 16th September, 2013 a consequential
order was passed by Karnataka withdrawing the
appointment of Mr. Bhavani Singh as the Special Public
Prosecutor.
24. These developments led the accused persons to file
W.P. (Crl.) No.166 of 2013 in this court challenging the
orders dated 14th and 16th September, 2013.
25. Both the writ petitions, that is, W.P. (Crl.) Nos.154
and 166 of 2013 were heard together by this court and by
a judgment and order dated 30th September, 2013 both
the writ petitions were disposed of and it was held that the
order removing Mr. Bhavani Singh as the Special Public
Prosecutor is mala fide and not sustainable in the eyes of
the law and was accordingly quashed. The decision of this
court is reported as J. Jayalalithaa v. State of
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Karnataka.12
26. The trial thereafter continued before the Special
Court, though with some hiccups (major and minor), with
which we are not directly concerned.
27. In any event, on 27th September, 2014 the Special
Court delivered judgment convicting all the accused
persons including Ms. Jayalalithaa. Among the materials
considered by the Special Court were the elaborate written
submissions given by Mr. Anbazhagan to the Special Court
on 19th May, 2014.
28. At this stage, it is necessary to make a digression for
understanding the issues raised in these appeals.
29. The prosecution against Ms. Jayalalithaa and others
was at the instance of the State of Tamil Nadu but after
the prosecution was transferred to Karnataka, and in terms
of the decision of this Court rendered in Anbazhagan13
particularly paragraph 34(c) thereof, Tamil Nadu had no
further say in matters relating to the Public Prosecutor or
the Special Public Prosecutor (apart from the payment of
his fees etc.). It was for Karnataka to appoint the Public
Prosecutor, who was to be a senior lawyer having 12 (2014) 2 SCC 401 13 (2004) 3 SCC 767
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experience in criminal trials; the appointment was to be
made in consultation with the Chief Justice of the High
Court of Karnataka; the Public Prosecutor could be an
appointee from within Karnataka or outside the State; the
Public Prosecutor was entitled to the assistance of another
lawyer of his choice who could also be from Karnataka or
outside the State; all expenses and fees payable to the
Public Prosecutor and his assisting lawyer were to be paid
by Karnataka and that was to be reimbursed by Tamil
Nadu. It is under these circumstances that Karnataka
virtually stepped into the shoes of the State of Tamil Nadu
and thereby became directly involved and concerned, at
least in so far as the prosecution of the accused persons is
concerned in Special CC No. 208 of 2004.
30. It is not that by issuing the directions contained in
paragraph 34(c) above, this court adopted a procedure
that was without precedent. In Jayendra Saraswati
Swamigal v. State of Tamil Nadu14 it was held:
“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
14 (2008)10 SCC 180
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to appoint a Public Prosecutor to conduct the case which is pending in the sessions division of that State.”15
It was further held:
“Of course, this Court while passing order of transfer, can give an appropriate direction as to which State should appoint the Public Prosecutor to conduct that particular case. Such orders are passed having regard to the circumstances of the case and the grounds on which the transfer has been effected. This Court can certainly give directions irrespective of the provisions contained in Section 24 CrPC. But so far as this case is concerned, nothing had been stated in the order of the transfer. The provisions contained in Section 24 CrPC shall prevail and it is for the appropriate State Government within whose area the trial is conducted to appoint Public Prosecutor under sub-sections (3) to (7) of Section 24 CrPC.”16
31. It is in these circumstances that Karnataka first
appointed Mr. B.V. Acharya as the Public Prosecutor and
then Mr. Bhavani Singh as the Special Public Prosecutor to
conduct the trial against the accused persons.
32. Finally, this court also held:
“The purpose of transfer of the criminal case from one State to another is to ensure fair trial to the accused.”17
33. I dare say that the facts of these appeals clearly
suggest that not only should the trial be fair to the
accused persons but also that the trial should be fair to
15 Paragraph 12 of the judgment 16 Paragraph 13 of the judgment 17 Paragraph 15 of the judgment
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the prosecution also.
34. It was then clarified by this court:
“However, we make it clear that the State of Pondicherry [the transferee State in this case] can appoint any counsel as Public Prosecutor having requisite qualifications as prescribed under sub-section (8) of Section 24 CrPC whether he is a lawyer in the State of Pondicherry or any other State.”18
35. Feeling aggrieved by the conviction handed down by
the Special Court, Ms. Jayalalithaa and the other accused
persons filed Criminal Appeal Nos. 835-838 of 2014 before
the Karnataka High Court on 29th September, 2014. Since
Karnataka was not made a party in the criminal appeals,
that State did not appoint any Public Prosecutor or any
Special Public Prosecutor to contest the appeals, even
though, as mentioned above, it had stepped into the
shoes of Tamil Nadu, as it were.
36. On the other hand, Tamil Nadu acted with
remarkable alacrity and on 29th September, 2014 the
Principal Secretary to the Government of Tamil Nadu
passed an order authorizing the Directorate of Vigilance
and Anti-Corruption, Chennai to engage the services of Mr.
Bhavani Singh, Special Public Prosecutor to appear before
18 Paragraph 18 of the judgment
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the High Court of Karnataka for and on behalf of the said
Directorate in any appeal/bail petition, any other petition
that may arise out of the conviction of the accused
persons. The order passed by the Principal Secretary
reads as follows:- O R D E R
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 & Sessions Court, Bengaluru, may be authorized to appear before the High Court of Karnataka, Bengaluru, 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 services of Thiru G. Bhavani Singh, Special Public Prosecutor to appear before the Hon’ble Court of Karnataka, Bengaluru on behalf of the Directorate 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”
37. When the criminal appeals and the petitions for
suspending the sentence filed by the accused persons
came up for consideration before a learned Single Judge of
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Page 22
the Karnataka High Court on 30th September, 2014 Mr.
Bhavani Singh informed the court that he was appointed
by the State Government (Tamil Nadu) to represent the
prosecution but that he had not received any official
communication in this regard.
38. The appeals again came up before a learned Single
Judge on 1st October, 2014 for the purposes of grant or
refusal of suspension of sentence of all the accused
persons. On that date, Mr. Bhavani Singh filed his Memo of
Appearance and a statement of objections opposing the
release of the accused persons on bail. Thereafter, on 7 th
October, 2014 the learned Single Judge, after hearing
submissions of the parties, declined to suspend the
sentence awarded to the accused persons or to grant
them bail.19
39. Feeling aggrieved, the accused persons filed a
petition in this court challenging the refusal of bail by the
learned Single Judge. In that petition being SLP (Crl.)
No.7900 of 2014 bail was granted to Ms. Jayalalithaa and
other accused persons by this court on 17th October, 2014.
The grant of bail was confirmed by this court on 18th
19 Selvi J. Jayalalithaa v. State, MANU/KA/2704/2014, ILR 2014 Karnataka 5696
Crl.Appeal No._______/2015 etc. Page 22 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
Page 23
December, 2014 and it was directed that the criminal
appeals pending in the Karnataka High Court be heard on
a day to day basis so that they could be disposed of within
three months. The order passed by this court reads as
follows:-
ORDER
Pursuant to the directions issued by this Court dated 17.10.2014, the petitioners have been released 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 necessary 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.”
40. Thereafter, the criminal appeals came up for hearing
o*n 2nd/5th January, 2015 in the Karnataka High Court
before a learned Single Judge.
41. Earlier, Mr. Anbazhagan was of the view that Mr.
Crl.Appeal No._______/2015 etc. Page 23 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
Page 24
Bhavani Singh was not entitled to represent the
prosecution in the Karnataka High Court since his
appointment as a Special Public Prosecutor stood
terminated with the conclusion of the trial and the delivery
of judgment by the Special Court. Moreover, he had not
been appointed by Karnataka in consultation with the
Chief Justice of the High Court to represent the
prosecution in the appeals pending in the High Court.
Under these circumstances, Mr. Anbazhagan made a
representation dated 24th December, 2014 to the Chief
Secretary to the Government of Karnataka to immediately
appoint a senior lawyer practicing in the Karnataka High
Court as the Special Public Prosecutor to contest the
appeals filed by the accused persons. However, since he
received no response to his representation, he filed a writ
petition in the Karnataka High Court being Writ Petition No.
742 of 2015 seeking a direction to the State of Karnataka
to appoint any other senior lawyer as the Special Public
Prosecutor in the pending criminal appeals being Criminal
Appeal Nos. 835-838 of 2014. The present appeals arise
out of the proceedings in Writ Petition No. 745 of 2015.
Crl.Appeal No._______/2015 etc. Page 24 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
Page 25
Decision in the writ petition
42. After hearing learned counsels for the parties, the
learned Single Judge, by his judgment and order dated 19th
January, 2015 disposed of W.P. No. 742 of 2015.20 It was
held that the directions issued by this court in
Anbazhagan21 were confined to the procedure to be
followed in the trial. It was noted that “the very object of
transferring the case to be prosecuted in the State of
Karnataka by the State Government of Karnataka, by
adopting the special procedure prescribed, was on the
Supreme Court having lost confidence of a fair trial being
conducted within the State of Tamil Nadu and in any organ
of the Government of Tamil Nadu being involved.” It was
also noted that “It is therefore a matter of formality for the
Supreme Court to clarify as to the procedure in appointing
a counsel and his assistant, if any, and in the conduct of
further proceedings.” The writ petition was then disposed
of with the following observations:
“To hazard a guess, the indication is that the proceedings in entirety, till the same attains finality, shall be taken to its logical conclusion by the State of Karnataka. In any event, since this court would not be competent to interpret or expound on what is not spelt out in the
20 MANU/KA/0125/2015 21 (2004) 3 SCC 767
Crl.Appeal No._______/2015 etc. Page 25 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
Page 26
directions issued by the Supreme Court, in so far as the procedure to be followed in the manner or terms of appointment of Prosecution Counsel, post the judgment of the trial court, in the appeals now pending, it would be appropriate if the proceedings are allowed to continue notwithstanding the challenge as to the validity or otherwise of the appointment of respondent No. 5 [Mr. Bhavani Singh], as there is no discernible prejudice caused by his continuance as the Special Public Prosecutor for the time being. This is especially so, when the proceedings are directed by the Honourable Supreme Court to be conducted on a day to day basis, before a Special Bench and with expedition. Hence, to pronounce on the validity of the disputed appointment and to hamper the proceedings would be counter productive and undesirable. It is open either for the State Government of Karnataka or the petitioner himself, to seek further clarifications from the Supreme Court as to the procedure that is to be followed in making appointment of a Special Public Prosecutor and an assistant or assistants, if any, to represent the State of Karnataka.”
43. In this context, it is important to notice the stand
taken by Karnataka before the learned Single Judge. It was
submitted by the learned Advocate General for Karnataka
that: “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 followed in the appointment of a Public Prosecutor before this court in the pending appeals. However, 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 conducting 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 consultation between
Crl.Appeal No._______/2015 etc. Page 26 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
Page 27
the State Government of Karnataka and the Chief Justice of the High Court of Karnataka, as directed by the Supreme Court in making any appointment of a Special Public Prosecutor 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 complied with, the State Government, in consultation with the Chief Justice, shall take further steps. Since the State Government is not formally authorized to take any steps in so far as the appointment of the prosecutor or counsel to conduct the appeals, no steps have been taken.” (emphasis supplied)
44. Feeling aggrieved by the judgment and order dated
19th January, 2015 a writ appeal was filed by Mr.
Anbazhagan in the High Court being Writ Appeal No.260 of
2015. The State of Karnataka did not file any appeal
against the judgment and order of the learned Single
Judge but accepted it. The writ appeal filed by Mr.
Anbazhagan was partly allowed by the Division Bench by
its judgment and order dated 11th February, 2015.22 This
decision is under challenge in this court.
Decision in the writ appeal
45. In the writ appeal, it was contended by Mr.
Anbazhagan that it is for the transferee State (Karnataka)
alone to prosecute the case in the Special Court and the
appeals in the High Court. The transferor State (Tamil
22 MANU/KA/0386/2015
Crl.Appeal No._______/2015 etc. Page 27 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
Page 28
Nadu) has no effective role to play in the prosecution of
the appeals. Since Mr. Bhavani Singh was not appointed
by Karnataka to contest the appeals in the High Court, he
was not entitled to appear on behalf of the prosecution
and since Tamil Nadu had no role to play in the
prosecution of the appeals, his appointment by Tamil Nadu
was bad in law. It was further submitted that the
appointment of Mr. Bhavani Singh as a Special Public
Prosecutor was confined only to the trial before the Special
Court and that appointment came to an end on the
conviction of the accused persons. Unless his appointment
as a Special Public Prosecutor was notified by Karnataka
for contesting the appeals in the High Court, Mr. Bhavani
Singh could not enter appearance for the prosecution. For
this additional reason also Mr. Bhavani Singh’s appearance
in the High Court in the pending appeals filed by the
accused persons was unauthorized.
46. Karnataka appeared through its Advocate General
and the submissions made are best expressed in the
words of the Karnataka High Court in the judgment under
appeal:
Crl.Appeal No._______/2015 etc. Page 28 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
Page 29
“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.”23 (emphasis supplied)
47. Learned counsel appearing on behalf of Mr. Bhavani
Singh relied upon Section 301(1) of the Code which he
interpreted to mean that no fresh order or authorization
was necessary to enable or entitle Mr. Bhavani Singh to
appear in the criminal appeals pending in the High Court.
It was also submitted that if Mr. Anbazhagan had any
grievance with the order passed on 29th September, 2014
by the Principal Secretary to the Government of Tamil
23 Paragraph 17
Crl.Appeal No._______/2015 etc. Page 29 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
Page 30
Nadu authorizing the Directorate of Vigilance and Anti-
Corruption, Chennai to engage the services of Mr. Bhavani
Singh, Special Public Prosecutor, then he should have
challenged it. Since he has not challenged that order, it
continues to remain operative.
48. The High Court discussed the case law on the
subject of the role of the transferee State in a case such as
the present and concluded:
“From the aforesaid judgments, the law is fairly clear. In pursuance of the power conferred under Section 406 of the Code, if the Supreme Court were to transfer any particular case from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court, then the State from which the case is transferred loses control over the prosecution to be conducted in the transferee Court. It is the transferee State which acquires jurisdiction to prosecute the said case. If the order of transfer passed by the Apex Court does not specify who should appoint the Public Prosecutor to conduct a particular case, then it is the transferee State which has to appoint a Public Prosecutor under Section 24 of the Code. If the order of transfer specifies who should appoint the Public Prosecutor, then appointment should be made in accordance with such direction.”24
49. The High Court then concluded that the order
passed on 29th September, 2014 by the Principal Secretary
to the Government of Tamil Nadu was non est and was not
24 Paragraph 27
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Page 31
required to be challenged. It was held:
“Therefore, when a specific direction is issued by the Apex Court at the time of transferring the case, it is the transferee Court-State of Karnataka which shall appoint the Public Prosecutor. The State of Tamil Nadu lost control over the case transferred to the State of Karnataka. Therefore, the State of Tamil Nadu has no jurisdiction to appoint a Public Prosecutor in the Special Court nor in the appeals which are pending in this Court. Hence, the order passed by the State of Tamil Nadu authorizing the deleted third respondent herein to engage the services of the fifth respondent is without authority and non est in the eye of law. That order does not confer any right on the fifth respondent to represent either the State of Karnataka or the State of Tamil Nadu in the pending appeals before this Court. In view of our findings recorded above that the transferor Court has no power to appoint a Public Prosecutor under Section 24 of the Code in respect of a case pending in the transferee Court, the argument that the appellant has not challenged the said order of appointment has no merit.”25
50. With regard to the interpretation of Section 301(1) of
the Code and whether, by virtue of his appointment as the
Special Public Prosecutor in Special CC No. 208 of 2004 Mr.
Bhavani Singh could appear on behalf of the prosecution
in the pending appeals in the High Court, emphasis was
laid on the words “any court” appearing in Section 301(1)
of the Code and it was held:
“It is well settled that we must look at the Act as a whole and discover what each Section, each clause,
25 Paragraph 31
Crl.Appeal No._______/2015 etc. Page 31 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
Page 32
each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. The language employed is that Public Prosecutor in charge of a case may appear and plead before "any Court", in which that case is under enquiry, trial or appeal. If the intention of the legislature was to confine his appearance only to the Court in which the case is under enquiry, trial or appeal, they would have used the word "the Court" in place of "any Court". Therefore, the intention is clear and unambiguous. Once the Special Public Prosecutor is appointed to a case, and is put in charge of a case, then he may appear and plead without any written authority before "any Court" in which that case, which is entrusted to him, is under enquiry, trial or appeal.
If a Public Prosecutor is appointed under Section 24(1) or (3) and Section 25 of the Code and placed in charge of a case, then by virtue of such appointment and entrustment as a Public Prosecutor, he may appear in Court in which that case is under inquiry, trial or appeal. However, when he is appointed under Section 24(8) of the Code as Special Public Prosecutor he is appointed for the purposes of any case or class of cases. Section 301 of the Code makes it clear that, when he is in charge of a case, he may appear in "any Court" in which that case is under inquiry, trial or appeal. Therefore, a harmonious reading of these provisions makes it clear that a Public Prosecutor appointed under Section 24 or under Section 25 of the Code, though his appearance is normally confined to the Court to which he is appointed, Section 301 of the Code authorizes him to appear in "any Court" in which that case is under inquiry, trial or appeal.”26
51. Thereafter, on a discussion of the case law on the
subject, it was held that the word ‘case’ in the context in
26 Paragraphs 47 and 48
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Page 33
which it is used would include an appeal. Thereby, Mr.
Bhavani Singh had the authority to not only appear in the
case before the Special Court but also in the appeal
arising out of it. It was held:
“The word 'case' is not defined in the Code. It is a word of wide and comprehensive import. The word 'case' cannot be equated to the words 'trial', 'appeal' or 'revision'. It clearly covers for larger area than would be covered by-such words as 'appeal', 'revision' or 'trial' or 'offences'. When the word 'case' is used with reference to a criminal case, it encompasses the various stages of a criminal case i.e., Investigation/inquiry, trial and appeal. A criminal case commences with the filing of an F.I.R. and registration of the case and comes to an end when the judgment is delivered discharging or acquitting or convicting the accused, when that judgment attains finality. In other words, after trial the accused is acquitted or convicted, the trial comes to an end and not the criminal case. Trial of a case is only one step in the life of a criminal case. Criminal case encompasses investigation/inquiry, trial and appeal. They are all different stages in a criminal case. The word 'case' has no fixed or universal meaning. It must be construed with regard to the particular context in which it is used and with regard to the scheme and purpose of the measure concerned. This word is quite often used in the Code with an intention to give a wider meaning. That is the reason why in Section 301 the legislature has consciously used the word, that the Public Prosecutor "in charge of a case" may appear and plead before any Court in which "that case is under inquiry, trial or appeal". In other words, if a Public Prosecutor is appointed to conduct a case, he is entitled to appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal. Therefore, the words "any Court" used in this Section enables the Public Prosecutor to appear in all Courts of Criminal Jurisdiction and it is not confined
Crl.Appeal No._______/2015 etc. Page 33 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
Page 34
to the Court to which he is appointed. The only condition to be satisfied is that he should be put in charge of the case after his appointment as a Public Prosecutor. It is altogether different, if by a rule, regulation, practice, when once he is appointed as a Public Prosecutor to a Court, he may not appear in another Court. Therefore, the Legislature has consciously used the words "may appear and plead". It is left to his discretion.”27
52. At this stage, it is important to note that neither Ms.
Jayalalithaa nor any of the other accused persons nor any
of the other parties before the High Court have challenged
the decision of the High Court to the extent that Tamil
Nadu had no authority to appoint Mr. Bhavani Singh as the
Special Public Prosecutor in the criminal appeals pending
in the High Court. The only challenge is the one made by
Mr. Anbazhagan to the effect that Section 301(1) of the
Code does not authorize or enable or entitle Mr. Bhavani
Singh to continue as a Special Public Prosecutor in the
criminal appeals pending in the High Court and that the
appointment of Mr. Bhavani Singh as a Special Public
Prosecutor was limited only to the trial before the Special
Court and it automatically terminated on the conviction of
the accused persons.
53. It is under these circumstances that this appeal is
27 Paragraph 55
Crl.Appeal No._______/2015 etc. Page 34 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
Page 35
before this court.
Discussion
54. There is no dispute that when this court transfers a
criminal case under Section 406 of the Code, from one
State to another, the transferee State has full control in
the matter of prosecuting the case and the transferor
State has no say in that regard. Indeed, there can be no
dispute about this in view of the decision of this court in
Jayendra Saraswati Swamigal. But, what does this
imply?
55. In my opinion, on the transfer of a case by this court
under Section 406 of the Code, the transferee State not
only steps into the shoes of the transferor State but it
effectively becomes the prosecuting State. It can and does
appoint a Public Prosecutor to prosecute the case and a
Public Prosecutor who is answerable to the government of
the transferee State only – the Public Prosecutor appointed
by one State is certainly not answerable to the
government of another State.
56. On an earlier occasion in another transferred case,
the Allahabad High Court held that an appeal against a
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Page 36
conviction would not be maintainable in the High Court in
the transferor State but would be maintainable only in the
High Court of the transferee State.28
57. The Delhi High Court has gone a step further and
has held that an appeal for the enhancement of sentence
of a convicted person could be filed by the government of
the transferee State in the High Court of the transferee
State and there is nothing to preclude the government of
the transferee State from doing so.29 In other words, the
transferee State does not merely step into the shoes of
the transferor State but takes control of the prosecution. I
need not say anything more on this subject since there is
no dispute that the transferee State takes control over the
prosecution from the transferor State. All that I have
explained is the breadth of the take-over – the take-over
being complete.
58. So far as the present case is concerned, this court
did not give any direction with regard to the appointment
of a Public Prosecutor or a Special Public Prosecutor post
the decision in CC No.7 of 1997. In that sense, it could
28 Vikas Yadav v. State of Uttar Pradesh, MANU/UP/0621/2008. A petition for special leave to appeal directed against this decision was dismissed by this court being SLP (Criminal) No. 5368/2008 (Vikas Yadav v. State of U.P.) decided on 22nd October , 2008. 29 State v. Vikas Yadav, MANU/DE/1673/2008
Crl.Appeal No._______/2015 etc. Page 36 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
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possibly be argued that there was a vacuum. However, the
law is quite clear, namely, that Karnataka as the
transferee State was entitled to file an appeal in the
Karnataka High Court, should the need have arisen,
including an appeal for enhancement of sentence and that
on an appeal being filed in the High Court by the accused
persons, Karnataka as the transferee State continues to
retain its entitlement to appoint a Public Prosecutor or a
Special Public Prosecutor to contest the appeal, otherwise
the purpose of transferring the case out of Tamil Nadu to
Karnataka would stand frustrated at the appellate stage.
Really speaking, this court did not leave behind any
vacuum. That Karnataka was remiss in fulfilling its
obligation to appoint a Public Prosecutor to contest the
appeals filed in the High Court by the accused persons or
chose not to fulfill it for whatever reason, is no ground for
Tamil Nadu to appoint a Special Public Prosecutor to
appear in the appeals. This conclusion was arrived at by
the High Court in the judgment under challenge and no
one has disagreed with the view that Tamil Nadu could not
appoint Mr. Bhavani Singh as a Special Public Prosecutor to
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contest the appeals in the High Court. There the matter
rests.
59. What is the effect of Mr. Bhavani Singh’s
appointment as the Special Public Prosecutor to conduct
Special CC No.208/2004 and what is the interplay of this
appointment with Section 301(1) of the Code? The answer
to this lies in (a) The directions given by this court while
transferring the case from Tamil Nadu to Karnataka; (b)
The contents of the notification appointing Mr. Bhavani
Singh as the Special Public Prosecutor to conduct Special
CC No.208/2004 in the case of the accused persons
pending before the Special Court; and (c) The scheme of
Section 24 and Section 301(1) of the Code.
60. What is the scope and intent of the directions given
by this court while transferring the prosecution from Tamil
Nadu to Karnataka? As mentioned earlier, while it is not
necessary to advert, in great detail, to the reasons for the
transfer of the prosecution from Tamil Nadu to Karnataka,
the fact of the matter is that this court noted and cited
“only a few instances to show how the prosecution
appears to have acted hand in glove with the accused”;
Crl.Appeal No._______/2015 etc. Page 38 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
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that Mr. Anbazhagan had made out a case “that the public
confidence in the fairness of trial is being seriously
undermined”; and that “great prejudice appears to have
been caused to the prosecution which could culminate in
grave miscarriage of justice.” It is under these
circumstances that this court transferred the prosecution
from Tamil Nadu to Karnataka and the directions given by
this court have, therefore, to be understood in that light,
namely, to prevent the prosecution of the accused persons
getting derailed for collateral reasons. While deciding the
writ petition, the learned Single Judge held that this court
had “lost confidence of a fair trial being conducted within
the State of Tamil Nadu”.
61. A plain reading of the directions given by this court
on earlier occasion makes it quite clear that this court was
concerned only with the trial of CC No.7 of 1997 (and CC
No.2 of 2001 with which this court is not concerned). To
ensure that the trial is fair and is conducted in accordance
with law, this court directed the State of Karnataka to
appoint a Special Judge to try the case and also that “the
trial before the Special Judge shall commence as soon as
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possible and will then proceed from day to day till
completion”. To ensure that the Public Prosecutor does not
become hand in glove with the accused persons, this court
further directed the appointment of a Public Prosecutor in
consultation with the Chief Justice of the High Court of
Karnataka. It was made clear that the Public Prosecutor
shall be a senior lawyer having experience in criminal
trials so that he could conduct the trial in the Special
Court.
62. The first three directions given by this court in
paragraph 34 on an earlier occasion make it quite clear
that the focus and concern of this court was limited only to
the conduct of a fair trial and nothing beyond it.
63. This court did not have, and could not have had in
mind the fairness or otherwise of the proceedings
subsequent to the conclusion of the trial. There was no
basis or material to assume that after the conclusion of
the trial, on an appeal filed by the prosecution or the
accused persons (as the case may be), even the appellate
proceedings in the High Court would get subverted or
compromised in any manner whatsoever. It would be
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sacrilege if this court were to assume without any basis
that the Karnataka High Court could get compromised.
Consequently, the directions given by this court must be
understood as limited to the conduct of the trial and the
appointment of the Special Public Prosecutor was also
limited thereby. In other words, the appointment of Mr.
Bhavani Singh as the Special Public Prosecutor came to an
end on the conclusion of the trial before the Special Court.
64. This is not to say that Karnataka could not have
appointed the same Special Public Prosecutor (Mr. Bhavani
Singh in this case) as the Special Public Prosecutor to
conduct the appeals that might be filed after the
conclusion of the trial. Karnataka could certainly have
done so either through a composite notification for the
trial and possible appeal(s) or by separate notifications.
That Karnataka chose to appoint Mr. Bhavani Singh as the
Special Pubic Prosecutor for the trial only is
understandable. That Karnataka chose to sit by and not
take any steps to appoint anyone to contest the appeals
filed by the accused persons is nothing but a shirking of its
duty and responsibility – but that is not the issue. All that I
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intend to hold and do hold is that the directions given by
this court were limited only to the trial of the case before
the Special Court in Bengaluru and even Karnataka
understood the directions to be limited to the trial and
acted only to that limited extent.
65. Does the notification appointing Mr. Bhavani Singh
as a Special Public Prosecutor reflect the views of this
court? The contents of the notification dated 2nd February,
2013 appointing Mr. Bhavani Singh as a Special Public
Prosecutor are also of considerable importance, although
it has been submitted by learned counsel for the accused
persons that the notification may be ignored in view of the
provisions of Section 301(1) of the Code. I do not think
that the contents of the appointment notification can be
simply ignored or overlooked, as suggested by learned
counsel for the accused persons.
66. The notification was issued pursuant to the
directions given by this court transferring the prosecution
from Tamil Nadu to Karnataka under the circumstances
already mentioned. The intention of this court was clearly
to ensure that upon transfer of the prosecution from Tamil
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Nadu to Karnataka, the prosecution does not, inter alia,
become hand in glove with the accused, that public
confidence in the fairness of the trial is not seriously
undermined and that the prosecution does not culminate
in a grave miscarriage of justice. This court was,
therefore, concerned only with the proceedings before the
Special Court and not subsequent proceedings in the High
Court.
67. This court was certainly conscious of the procedure
required to be followed in the event of an appeal being
filed in the High Court by the accused persons or by the
prosecution and obviously did not think it necessary to
advert to the procedure required to be followed. The Code
of Criminal Procedure adequately provides for it. It would
not, therefore, be correct to say that the directions given
by this court created a vacuum in the event of an appeal
to the High Court by the accused persons or by the
prosecution. This is more particularly so since there was
nothing on record to even remotely suggest that the
proceedings in the High Court were likely to get
undermined in any manner. It is in this light that the
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notification appointing Mr. Bhavani Singh as a Special
Public Prosecutor has to be read and understood and if the
notification is so read and understood, it is quite clear that
Mr. Bhavani Singh was given authority to represent the
prosecution only before the Special Court and not in the
High Court. The notification appointing Mr. Bhavani Singh
as a Special Public Prosecutor only for the trial (and not for
subsequent proceedings) correctly reflected the intent of
this court.
68. The language employed in the notification dated 2nd
February, 2013 appointing Mr. Bhavani Singh as a Special
Public Prosecutor is quite specific and is to enable him “to
conduct Special C.C. No.208/2004 (in the case of Kum.
Jayalalitha and others) pending on the file of XXXVIth
Additional City Civil & Sessions Court (Special Court),
Bangalore”. There is no mention about anything beyond
Special CC No. 208/2004 such as an appeal filed in the
High Court either by the accused persons or by the
prosecution. It is not possible to read into the language of
the notification any authority being given to Mr. Bhavani
Singh to proceed beyond the trial in representing the
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prosecution. It would be violence to the language of the
notification if it were given an interpretation wider than
what the plain language suggests, intends and states.
69. Can it be said, under these circumstances, that the
notification appointing Mr. Bhavani Singh as a Special
Public Prosecutor could be read in conjunction with Section
301(1) of the Code as authorizing him to appear in the
High Court in the appeals filed by the accused persons?
For answering this, it is necessary to appreciate the
scheme of Section 24 and Section 301(1) of the Code. It is
necessary to look at a few provisions first.
70. Section 2(u) of the Code defines “Public
Prosecutor”.30 In terms of the definition any person
appointed under Section 24 of the Code is a Public
Prosecutor. A Special Public Prosecutor appointed under
Section 24(8) of the Code is naturally also a Public
Prosecutor.
71. Section 24 of the Code is a part of Chapter II thereof
which concerns the constitution of criminal courts and
offices. Three Sections in this chapter relate to Public
Prosecutors, namely, Section 24, Section 25 and Section 30 “Public Prosecutor” means any person appointed under section 24, and includes any person acting under the directions of a public prosecutor.
Crl.Appeal No._______/2015 etc. Page 45 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
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25-A.
72. Section 24(1) of the Code provides for the
appointment of a Public Prosecutor for a High Court. The
authority to appoint a Public Prosecutor for a High Court is
vested both in the Central Government and a State
Government. The two requirements for the appointment of
a Public Prosecutor for the High Court are that it shall be
made after consultation with the High Court and the
person so appointed shall, in terms of Section 24(7) of the
Code, have been in practice as an advocate for not less
than seven years. The ‘jurisdiction’ or ‘area of operation’
of a Public Prosecutor appointed for the High Court is
limited to the High Court and it is not possible for a Public
Prosecutor appointed for the High Court to claim that he or
she is entitled to appear in the District Court or any other
court by virtue of his or her appointment.
73. A similar power of appointment of a Public
Prosecutor for every district is given to the State
Government by Section 24(3) of the Code. There is a
similar limitation of ‘jurisdiction’ or ‘area of operation’ of a
Public Prosecutor appointed under Section 24(3) of the
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Code to the district for which he or she is appointed. A
Public Prosecutor appointed for a particular district cannot
claim any authorization to appear as a Public Prosecutor in
any other district or in the High Court of the State in which
that district is located.
74. In other words, Section 24(1) and Section 24(3) of
the Code limit the ‘jurisdiction’ or the ‘area of operation’
or the authority or the orbit of the Public Prosecutor to the
High Court [Section 24(1) of the Code] or the district
[Section 24(3) of the Code].
75. The first question that requires to be asked is
whether Mr. Bhavani Singh was appointed as a Public
Prosecutor or a Special Public Prosecutor for the High
Court under Section 24(1) of the Code. The answer to this
is in the negative. That being so, Mr. Bhavani Singh has no
authority to per se conduct the appeals in the High Court
on behalf of the prosecution. Really speaking, that should
conclude the debate.
76. The next question is whether Mr. Bhavani Singh can
claim that authority for by relying on Section 301(1) read
with Section 24(8) of the Code. The answer to this is also
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in the negative.
77. In addition to the general power or authority given
to the Central Government and the State Government to
appoint a Public Prosecutor for the High Court [Section
24(1) of the Code] and to the State Government to appoint
a Public Prosecutor for a district [Section 24(3) of the
Code] a much wider power is given to the Central
Government and the State Government by Section 24(8)
of the Code to appoint a Special Public Prosecutor, being a
person who has been a practicing advocate for not less
than ten years. The appointment of a Special Public
Prosecutor is not with reference to the High Court or a
district, but is an appointment for a case in any court or a
class of cases in any court or courts.
78. Section 25 of the Code provides for the appointment
of Assistant Public Prosecutors.31 Section 25(1) of the Code
31 25. Assistant Public Prosecutors - (1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates.
(1-A) The Central Government may appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the Courts of Magistrates.
(2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor.
(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case:
Provided that a police officer shall not be so appointed— (a) if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or (b) if he is below the rank of Inspector.
Crl.Appeal No._______/2015 etc. Page 48 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
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enables the State Government to appoint one or more
Assistant Public Prosecutors in every district of the State
to conduct prosecutions in the courts of the Magistrates.
Section 25(1A) of the Code enables the Central
Government to appoint one or more Assistant Public
Prosecutors to conduct any case or class of cases in the
courts of the Magistrates. For the present purposes,
Section 25(3) of the Code is also of importance. This
provides that a police officer can also be appointed as an
Assistant Public Prosecutor as long as he or she has not
taken part in the investigations or is below the rank of an
Inspector.
79. Section 25-A of the Code is also of importance for
understanding the ‘jurisdictional’ limitations placed on a
Public Prosecutor or a Special Public Prosecutor.32
However, this Section does not concern itself with
Assistant Public Prosecutors.
32 25-A. 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), (3) and (4) xxx xxx xxx (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 Director of Prosecution.
(6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor 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 25 shall be subordinate to the Deputy Director of Prosecution.
(7) and (8) xxx xxx xxx
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80. Section 25-A(5) of the Code provides that a Public
Prosecutor and a Special Public Prosecutor appointed by
the State Government under Section 24(8) of the Code to
conduct cases in the High Court shall be subordinate to
the Director of Prosecution.
81. Section 25-A(6) of the Code provides that a Public
Prosecutor and a Special Public Prosecutor appointed by
the State Government under Section 24(8) of the Code to
conduct cases in District Courts (as in the case of Mr.
Bhavani Singh) shall be subordinate to the Deputy Director
of Prosecution.
82. In this background, Section 301(1) of the Code is
required to be considered and appreciated. This provision
applies not only to a Public Prosecutor as defined in
Section 2(u) of the Code [which includes a Special Public
Prosecutor] but it also applies to an Assistant Public
Prosecutor. This is of some importance.
83. Section 301(1) of the Code has three ingredients for
its applicability: (1) The Public Prosecutor or the Assistant
Public Prosecutor must be in charge of the case; (2) If the
Public Prosecutor or the Assistant Public Prosecutor is in
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charge of a case, he or she is entitled to appear and plead
without any written authority; (3) The Public Prosecutor or
the Assistant Public Prosecutor in charge of a case is
entitled to appear and plead without any written authority
before any court in which that case is under enquiry, trial
or appeal.
84. Learned counsel for the accused persons read this to
mean that a Special Public Prosecutor [Mr. Bhavani Singh]
in charge of a case in the District Courts [the case of the
accused persons in the Special Court] is entitled to appear
and plead (without any written authority) in any court [the
High Court] since that ‘case’ is in appeal in the High Court.
85. If the argument of learned counsel for the accused
persons is accepted, it could lead to an anomalous result
and an anomalous situation. One anomalous result is that
a Public Prosecutor in charge of a case in a district or an
Assistant Public Prosecutor in charge of a case in the court
of a Magistrate can claim, on the basis of Section 301(1) of
the Code, to appear and plead without any written
authority before any court in which that case is under
appeal, including the High Court of the State. Since a
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police officer can also be appointed as an Assistant Public
Prosecutor, acceptance of the argument would mean that
a police officer (appointed as an Assistant Public
Prosecutor) can appear and plead without any written
authority in the High Court of the State in which that case
is under appeal! By no stretch of imagination can this be
the intent of Section 301(1) of the Code.
86. An anomalous situation can also arise if the
argument of learned counsel for the accused persons is
accepted. One such situation could arise in the following
circumstances: In an appeal in the High Court arising out
of a case in a district, the Public Prosecutor for the High
Court is engaged. However, the Public Prosecutor in
charge of that case in the district or an Assistant Public
Prosecutor (including a police officer) in charge of that
case in the court of a Magistrate appears in the High Court
in the appeal relying, for this purpose, upon Section
301(1) of the Code. Then, in the appeal, the said Public
Prosecutor or the said Assistant Public Prosecutor could
take a stand that is diametrically opposed to or in conflict
with the stand of the Public Prosecutor before the High
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Court. Is Section 301(1) of the Code liable or susceptible
to such an unlikely interpretation as is canvassed by
learned counsel for the accused persons? I do not think so.
87. That such an eventuality is not theoretical is clear
from the facts of this case itself. As mentioned above, the
accused persons applied for suspension of their sentence.
Written objections were filed opposing the suspension of
the sentence. However, when the application was heard,
the Special Public Prosecutor (Mr. Bhavani Singh) did not
oppose the suspension of the sentence. The learned Single
Judge hearing the application recorded in his order
rejecting the application as follows:
“When the Special Public Prosecutor was asked as to whether he has any submission in this regard to make, he has openly submitted that he has no arguments to make and that the sentence may be suspended and the accused may be released on imposing conditions deemed fit under the circumstances of the case. But he did not make any submission as to whether he does not press the written objections already filed.”33
88. Had the State of Karnataka appointed a Public
Prosecutor for the High Court to contest the appeals filed
by the accused persons, it is quite possible that the said
Public Prosecutor would have supported the written
33 Selvi J. Jayalalithaa v. State, MANU/KA/2704/2014, ILR 2014 Karnataka 5696
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objections and opposed the suspension of sentence. In
that event, there would have been a rather piquant
situation (if not a spectacle) – the Special Public
Prosecutor (Mr. Bhavani Singh) supporting suspension of
the sentence of the accused persons and the Public
Prosecutor for the High Court opposing suspension of the
sentence of the accused persons on the basis of the
written objections. Surely, Section 301(1) of the Code is
not required to be interpreted in a manner so as to cause
confusion.
89. The only reasonable interpretation that can be given
to the scheme laid out in Sections 24, 25, 25-A and 301(1)
of the Code is that a Public Prosecutor appointed for the
High Court and who is put in charge of a particular case in
the High Court, can appear and plead in that case only in
the High Court without any written authority whether that
case is at the stage of inquiry or trial or appeal. Similarly,
a Public Prosecutor appointed for a district and who is put
in charge of a particular case in that district, can appear
and plead in that case only in the district without any
written authority whether that case is at the stage of
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inquiry or trial or appeal. So also, an Assistant Public
Prosecutor who is put in charge of a particular case in the
court of a Magistrate, can appear and plead in that case
only in the court of a Magistrate without any written
authority whether that case is at the stage of inquiry or
trial or appeal. Equally, a Special Public Prosecutor who is
put in charge of a particular case can appear and plead in
that case only in the court in which it is pending without
any written authority whether that case is at the stage of
inquiry or trial or appeal. In other words, Section 301(1) of
the Code enforces the ‘jurisdictional’ or ‘operational’ limit
and enables the Public Prosecutor and Assistant Public
Prosecutor to appear and plead without written authority
only within that ‘jurisdictional’ or ‘operational’ limit,
provided the Public Prosecutor or the Assistant Public
Prosecutor is in charge of that case.
90. The converse is not true, and a Prosecutor (Public
Prosecutor, Assistant Public Prosecutor or Special Public
Prosecutor) who is put in charge of a particular case
cannot appear and plead in that case without any written
authority outside his or her ‘jurisdiction’ whether it is the
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High Court or the district or the court of a Magistrate. In
other words, Section 301(1) of the Code maintains a case
specific character and read along with Sections 24, 25 and
25-A of the Code maintains a court or district specific
character as well.
91. The decision rendered by the Constitution Bench in
State of Punjab v. Surjit Singh34 is not quite apposite.
[Though that decision was rendered under the Code of
Criminal Procedure, 1898 the relevant sections under
Constitution are more or less similar to those sections of
the Code that this court is concerned with]. In Surjit
Singh the issue that arose was noted in the following
words:-
“The question that arises for consideration in this criminal appeal, by special leave, is regarding the right of a Public Prosecutor to file an application, under Section 494 of the Code of Criminal Procedure (hereinafter called the Code), in respect of a complaint, filed by a private party, and which was being prosecuted by him as such”.
92. In the context of the question that arose for
consideration, it was held that a Public Prosecutor not in
charge of a particular case and not conducting the
34 [1967] 2 SCR 347
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prosecution will not be entitled to ask for withdrawal of the
prosecution under Section 494 of the old Code. On facts,
it was held that the prosecuting Deputy Superintendent of
Police was nowhere in the picture in the private complaint
when he filed an application for its withdrawal under
Section 494 of the old Code. In that view of the matter, it
was held that the High Court was right in its conclusion
that such a Public Prosecutor is not entitled to file an
application for withdrawal. It will be seen that this
decision has nothing to do with a Public Prosecutor in
charge of the case at the stage of trial being entitled to
appear in an appeal filed against an order of conviction in
the trial.
93. The Constitution Bench referred to what would be an
anomalous result if a Public Prosecutor who had nothing to
do with the particular case is entitled to file an application
for withdrawal 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 conducting the prosecution in a
particular case and desires to go on with the proceedings,
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it will be open to the other Public Prosecutor to ask for
withdrawal from the prosecution. Similarly, it was
illustratively observed that 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 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 Public Prosecutor
appointed for case A before a particular 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
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Court in an appropriate manner, merely because he was in
charge of the prosecution before the Special Court did not
entitle him to continue with the ‘case’ in the criminal
appeals filed in the High Court.
95. The High Court has, in the judgment and order
under appeal, laid emphasis on the words ‘any Court’
appearing in Section 301(1) of the Code and understood
them to mean that a Special Public Prosecutor in charge of
a case at the stage of enquiry or trial, can appear and
plead that case when an appeal is filed in respect of that
case. In view of the above discussion, I am unable to
agree with the overbroad opinion expressed by the High
Court. The words ‘any Court’ have no reference to the
hierarchy of courts. The crucial word in Section 301(1) of
the Code is ‘case’ and not ‘any Court’.
96. Consequently, Mr. Bhavani Singh having been
appointed as a Special Public Prosecutor for a specific case
pertaining to the accused persons before the Special Court
was answerable in all respects to the Deputy Director of
Prosecution in terms of Section 25-A(6) of the Code and
his authorization was limited only to that case before the
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Special Court. Therefore, this precluded him from
appearing on behalf of the prosecution in the appeals filed
by the accused persons in the High Court. He needed a
specific authorization in that regard which would have
then made him subordinate to the Director of Prosecution
and not continued his subordination to the Deputy Director
of Prosecution.
97. This interpretation of Sections 24, 25, 25-A and
301(1) of the Code also appears to have been the view of
Karnataka, appearing through its Advocate General, that
Mr. Bhavani Singh was engaged only to conduct the trial
before the Special Court and that engagement did not
automatically imply any authorization to him to appear for
the prosecution in the appeals pending in the High Court.
98. The Advocate General of Karnataka had submitted
before the learned Single Judge of the Karnataka High
Court that no fresh appointment order was issued in
favour of Mr. Bhavani Singh in respect of the criminal
appeals filed by the accused persons, meaning thereby
that for enabling Mr. Bhavani Singh to appear in those
appeals, a fresh appointment order was necessary. This
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was in the context that after the conviction of the accused
persons, there had been no further consultations between
the State Government of Karnataka and the Chief Justice
of the Karnataka High Court in making any appointment of
a Special Public Prosecutor.
99. Before the Division Bench, the submission of the
Advocate General was more explicit. It was submitted that
the appointment of the Special Public Prosecutor was
made pursuant to the directions of this court and that
“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”.
100. Right or wrong, the view expressed by the Advocate
General of Karnataka could not have been ignored by the
High Court. It is altogether another matter that the proper
course of action for Karnataka would have been to either
make a specific appointment of Mr. Bhavani Singh as a
Special Public Prosecutor to conduct the appeals pending
in the High Court or to appoint the Public Prosecutor or
another Special Public Prosecutor or to obtain a
clarification from this court, if necessary with regard to the
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appeals in the High Court. That Karnataka did neither and
entertained an unnecessary doubt is unfortunate.
101. It may be recorded here that in this court, learned
counsel for the State of Karnataka specifically stated the
appointment of Mr. Bhavani Singh as a Special Public
Prosecutor came to an end with the conviction and
sentence of the accused persons. In the written
submissions filed by the State of Karnataka, it is
categorically stated as follows:
“It is submitted that order dated 02.02.2013 appointing Bhavani Singh is confined to the Special CC No.208/2004. It is submitted that Bhavani Singh is relying on the G.O. dated 29.09.2014 issued by State of Tamil Nadu to conduct the case as SPP before the Hon’ble High Court in Crl. Appeal No.835/2014 and the Division Bench quashed this order as one without jurisdiction”.
102. This written submission is a clincher and the debate
should end with this categorical assertion by the State of
Karnataka.
103. But, to be fair to Karnataka, it is not a party to the
criminal appeals and that may perhaps be the reason for
its inaction – if action had been taken, it could be
misconstrued as interfering in a case in which it had no
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concern. That this ‘reason’ is unjustified has already been
adverted to. But then, it was equally the duty and
responsibility of Tamil Nadu to either take the opinion of
Karnataka on the future course of action with regard to
representation in the criminal appeals or to have brought
the ‘vacuum’ to the notice of the learned Judge hearing
the criminal appeals rather than rushing in with the ill-
advised order dated 29th September, 2014. That Tamil
Nadu sought to take advantage of a situation that ought
not to have even existed is also unfortunate. However, to
give it the benefit of doubt, it is possible that Tamil Nadu
was also in a state of confusion.
104. It seems that Tamil Nadu may also have been of the
view (though not so expressed) that the appointment of
Mr. Bhavani Singh as a Special Public Prosecutor had come
to an end and that is the reason why the Principal
Secretary to the Government of Tamil Nadu authorized the
Directorate of Vigilance and Anti Corruption, Chennai to
engage Mr. Bhavani Singh to appear in the High Court by
issuing the order dated 29th September, 2014. If at law Mr.
Bhavani Singh was automatically authorized to appear in
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the appeals pending in the High Court by virtue of Section
301(1) of the Code, there was no occasion for Tamil Nadu
to issue the order dated 29th September, 2014 and Mr.
Bhavani Singh could have, on the basis of the earlier
authorization given to him on 2nd February, 2013 by
Karnataka entered appearance in the High Court on behalf
of the prosecution. That the High Court held the order
dated 29th September, 2014 was without jurisdiction is of
no consequence – what is important is the understanding
of Tamil Nadu of the position at law namely, that the
appointment of Mr. Bhavani Singh as a Special Public
Prosecutor came to an end with the conviction and
sentence of the accused persons.
105. Learned counsel for the accused persons submits
that a Special Public Prosecutor can be appointed in a case
or for a class of cases and the word ‘case’ includes an
appeal. In this context reliance was placed on Mansoor v.
State of Madhya Pradesh35 wherein it was held that
‘case’ must mean a proceeding which at the end results
whether in the discharge, conviction or acquittal of an
accused person. The context in which Mansoor was
35 (1971) 2 SCC 369
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decided was completely different. In that case a gazette
notification was issued appointing the Additional
Government Advocate as a Public Prosecutor for the High
Court in respect of cases arising in the State of Madhya
Pradesh. The Additional Government Advocate cum Public
Prosecutor filed an appeal in the High Court against an
order of acquittal by the trial court. The argument raised
was that the Additional Government Advocate cum Public
Prosecutor could not be considered a Public Prosecutor for
presenting an appeal against an acquittal in the High
Court because an appeal against an acquittal could not be
described as a case which arises in the High Court. This
court observed that “The argument has merely to be
stated to be rejected.” Nevertheless, this court went on to
hold that “The case resulting in the acquittal of the
accused persons would clearly be a case arising in the
State and within the contemplation of the notification and
the Additional Government Advocate who is a Public
Prosecutor for the High Court would be entitled to present
the appeal in such a case”. It is in this context that it was
held that an appeal is a case. I am afraid this has no
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relevance, one way or another, to the controversy in this
court, namely, the authority of Mr. Bhavani Singh to
appear in the appeals filed in the High Court by the
accused persons.
106. The word ‘case’ occurring in Section 24 and Section
301(1) of the Code is required to be given its ordinary and
natural meaning and in the context in which it is used. It
cannot be given an extended meaning so as to include an
appeal. Otherwise, as pointed out above, in a given
situation, an Assistant Public Prosecutor in charge of a
case before a Magistrate can argue for the displacement
of a Public Prosecutor appointed for the High Court by the
State Government after consultation with the High Court.
How strange is that.
107. Learned counsel also sought to rely on Rule 30 of
the Karnataka Law Officers (Appointment and Conditions
of Service) Rules, 1977 which authorizes the Government
of Karnataka to appoint an advocate as a Special Counsel
for the conduct of a criminal case or any appeal or
proceeding connected therewith pending in a court
whether within the State or in any other State or in the
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Supreme Court or in any High Court in the country.
Learned counsels submits that since the appointment of
Mr. Bhavani Singh is also in terms of Rule 30 of the
aforesaid Rules, he is entitled to appear in the High Court
in the appeals filed by the accused persons.
108. I am unable to accept this submission for the simple
reason that it has not been anybody’s case at any stage
that Mr. Bhavani Singh appeared in the High Court in the
appeals filed by the accused persons in his capacity as a
Special Counsel and not in his capacity as a Special Public
Prosecutor. This submission is being made for the first
time and only in this court. That apart, the facts relating to
the appointment of Mr. Bhavani Singh as a Special Counsel
are not available on record. It is unclear whether the Chief
Justice of the Karnataka High Court was consulted only
about the appointment of Mr. Bhavani Singh as a Special
Public Prosecutor or whether he was consulted about the
appointment of Mr. Bhavani Singh as a Special Counsel as
well. Unless the facts are clear in this regard it is difficult
to come to any conclusion on this submission. If reliance
by learned counsel for the accused persons is now solely
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on the appointment of Mr. Bhavani Singh as a Special
Counsel, then relying upon his appointment as such would
fly in the face of the directions given by this court for the
appointment of a Public Prosecutor.
109. In any event, Rule 30 of the aforesaid Rules enables
the State Government to appoint an advocate as a Special
Counsel either for the conduct of a civil case or a criminal
case or any appeal or proceedings connected therewith.
The provision enabling the appointment of a Special
Counsel is obviously disjunctive. Rule 30 of the said Rules
must be read as it is and the appointment of a Special
Counsel would have to be made separately for a civil case
or for a criminal case or for any appeal or for any
proceedings connected with a civil case or a criminal case
or any appeal. There is nothing to show that Mr. Bhavani
Singh was appointed as a Special Counsel by the State of
Karnataka for the appeals filed by the accused persons in
the High Court.
110. I am not discussing the differences in the role of a
Public Prosecutor and the role of a Special Counsel since it
is not necessary to do so. All that need be said is that their
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respective roles are distinct and separate as indeed their
responsibilities with a Public Prosecutor having great
responsibilities (as submitted by learned counsel for the
accused persons), much more than a Special Counsel.
111. Learned counsel for the accused persons submit that
due to certain developments having taken place, namely,
that the hearing in the appeals has been concluded and
judgment reserved, the de facto doctrine would apply to
the facts of the present case since Mr. Bhavani Singh had
in fact been appointed as the Special Public Prosecutor to
contest the appeals filed by the accused persons in the
High Court. Reference was made to Gokaraju Rangaraju
v. State of Andhra Prades36 wherein Pulin Behari v.
King Emperor37 was referred which held that “acts of the
officers de facto performed by them within the scope of
their assumed or official authority, in the interest of the
public or third persons and not for their own benefit, are
generally as valid and binding, as if they were the acts of
officers de jure.”
112. I have serious reservations on this submission in the
36 (1981) 3 SCC 132 37 (1912) 15 Cal L.J 517, 574
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context of a lawyer representing a litigant. No lawyer
either in his capacity as a private lawyer or a lawyer for
the State or as a Public Prosecutor can purport to
represent a litigant without any authority for doing so.
Acceptance of such a proposition and then relying on the
de facto doctrine could lead to chaos in the dispensation
of justice. If Mr. Bhavani Singh is not authorized to
represent the prosecution in the High Court in the appeals
filed by the accused persons, he simply cannot do so and
if he does so, the accused persons cannot put forward a
fait accompli or rely upon the de facto doctrine and say:
So be it.
113. That apart, assuming Gokaraju Rangaraju is also
applicable to the engagement or appointment of a lawyer
by his or her client, this court has noted another rule, in
the nature of an exception to the de facto doctrine, which
is that while a collateral attack to the appointment of a
judge cannot be made, a direct attack can certainly be
made. It was held in Gokaraju Rangaraju: “A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective.
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Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. There is yet another rule also based on public policy. The defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a judge to his office. Otherwise so soon as a judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the judge is no judge. A judged title to his office cannot be brought into jeopardy in that fashion. Hence the Rule against collateral attack on validity of judicial appointments. To question a judges appointment in an appeal against his judgment is, of course, such a collateral attack.”
114. In so far as the present case is concerned, a direct
attack has been made to the claimed validity of the
continuation of Mr. Bhavani Singh as a Special Public
Prosecutor in the High Court. This case, therefore, comes
within the ‘another rule’ or the exception to the de facto
doctrine. That the objection to Mr. Bhavani Singh’s
appearance in the High Court was raised by Mr.
Anbazhagan only on 24th December, 2014 and not earlier
is neither here nor there. It is not as if the objection was
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raised belatedly. In any event, the objection was raised
before the hearing of the appeals commenced and that is
good enough.
115. The submission that Mr. Bhavani Singh has
impeccable credentials and the attempt of Mr.
Anbazhagan is to somehow or the other get rid of him as
the Special Public Prosecutor is not relevant since his
competence is not in question. It is true that this court in
Jayalalithaa38 had observed that “no issue has been
raised by the respondents [including Mr. Anbazhagan] in
respect of the eligibility, suitability or credibility of
Respondent 4 [Mr. Bhavani Singh] as an SPP.” This court
had also observed that the attempt to remove Mr. Bhavani
Singh as the Special Public Prosecutor “is a product of
mala fides”.39 Furthermore, even in the judgment under
appeal it has been noted that “Before the learned Single
Judge, as the appellant submitted that, he would not go
into the allegations made against the 5th respondent [Mr.
Bhavani Singh], but confine his submissions to the legal
issues.” Learned counsel for the accused persons submits
that in the light of this, the desire of Tamil Nadu to have 38 (2014) 2 SCC 401 paragraph 14 39 Paragraph 38 of the judgment
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the prosecuting agency effectively represented in the
appeals in the High Court through an eligible, suitable and
credible Special Public Prosecutor, in the face of Karnataka
abdicating its duty and responsibility, cannot be faulted or
misconstrued as is sought to be done by Mr. Anbazhagan.
He further submits that the appointment of Mr. Bhavani
Singh as the Special Public Prosecutor to contest the
appeals in the High Court was really an act of necessity
due to the default of the State of Karnataka. All this may
be so, but as mentioned above, this is not in controversy
in this court and I make no comment on it. However, I
would like to make it explicit that I have referred to the
credentials of Mr. Bhavani Singh only because a
submission was made in that regard. Mr. Bhavani Singh
has not been issued notice in these appeals and therefore
nothing that I have said can be or should be construed as
doubting the credentials of Mr. Bhavani Singh.
116. Learned counsel submits that Mr. Anbazhagan has
been shifting stands from time to time as per his
convenience. At the present moment, his view is that Mr.
Bhavani Singh was not authorized to appear as the Special
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Public Prosecutor in the appeals filed by the accused
persons in the High Court. On an earlier occasion (and
this fact has not been disclosed by Mr. Anbazhagan in the
list of dates supplied by him) his contention was that it is
only the Special Public Prosecutor who can appear in the
High Court in proceedings arising out of CC No.7 of 1997.
117. In K. Anbazhagan v. The Superintendent of
Police40 one of the points for consideration was whether
the Special Public Prosecutor appointed pursuant to the
directions of this court could be by-passed by the
Directorate of Vigilance and Anti-Corruption, Chennai and
whether it was permissible to have another Public
Prosecutor appear for the said Directorate in the
Karnataka High Court ignoring the Special Public
Prosecutor. It was held by the High Court that the
Directorate of Vigilance and Anti-Corruption, Chennai
could not be permitted representation in the High Court by
a counsel of its own and that it would have to be
represented by the Special Public Prosecutor.
Notwithstanding this decision (which has not been
disclosed by Mr. Anbazhagan to this court) an objection is
40 MANU/KA/2530/2011 = 2012 (4) KAR LJ 635
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now being raised in the present case to the Special Public
Prosecutor appearing for the Directorate of Vigilance and
Anti-Corruption, Chennai. This flip-flop by Mr. Anbazhagan
reveals that he is not serious in his submissions. I am
mentioning this submission only to reject it. The issue is
not whether Mr. Bhavani Singh can or cannot appear for
the Directorate of Vigilance and Anti-Corruption, Chennai –
the issue is whether he can at all appear in the High Court
as a Special Public Prosecutor without being authorized to
do so in the appeals filed by the accused persons. In my
opinion, he cannot, for more than one reason, as indicated
above.
118. Finally, learned counsel submits that Mr. B.V.
Acharya had appeared on several occasions in the High
Court in matters arising out of the case pending before the
Special Judge when he was the Special Public Prosecutor
to conduct that case. Therefore, there is nothing wrong in
Mr. Bhavani Singh appearing in the High Court in the same
manner as Mr. Acharya did. I do not know the
circumstances in which Mr. Acharya appeared and in any
event his appearance in the High Court is not in issue. It is
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not necessary to comment on this at all. For the record, it
may be mentioned that the only example cited by learned
counsel for the accused persons relates to K.
Anbazhagan v. The Superintendent of Police41 but in
that case, the Special Public Prosecutor was shown as the
second respondent and therefore Mr. Acharya was entitled
to appear in that case being a respondent therein.
Conclusion
119. For the reasons given, I hold that Mr. Bhavani Singh
is not authorized to represent the prosecution in the
Karnataka High Court in the appeals filed by the accused
persons against their conviction by the Special Court. 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.
120. The State of Karnataka should now ensure that the
prosecution is duly represented by an authorized Public
Prosecutor appointed under Section 24(1) of the Code.
However, if the State of Karnataka decides to appoint a
Special Public Prosecutor under Section 24(8) of the Code,
41 MANU/KA/2530/2011
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it must do so only in consultation with the Chief Justice of
the Karnataka High Court.
121. In line with the view expressed by the Delhi High
Court, which I endorse, it is further directed that the State
of Karnataka be made a party respondent in the appeals
filed by the accused persons.
122. The earlier directions given by this court regarding
payment of fees and assistance of another lawyer etc. will
be incorporated in the terms of appointment of the Public
Prosecutor or the Special Public Prosecutor as the case
may be.
123. Criminal Appeal arising out of S.L.P. (Crl.) No.1632 of
2015 is allowed.
124. Criminal Appeal No.638 of 2015 arises out of SLP
(Crl.) No.2013 of 2015. The challenge is to the decision of
a learned Single Judge of the Karnataka High Court dated
5th February, 2015 whereby I.A. No.1 filed under Section
301(2) of the Code in Criminal Appeal Nos. 835-838 of
2014 was dismissed by the High Court. In that I.A., Mr.
Anbazhagan had sought permission of the learned Single
Judge to intervene in the pending appeals filed by the
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accused persons and assist the Special Public Prosecutor.
125. The prayer in this court is for permission to file
written submissions in the pending appeals filed by the
accused persons. However, there is no such prayer in the
application for permission to file written submissions.
126. In the order under appeal, the learned Single Judge
framed the issues arising out of the application as follows:- 1. Whether the applicant/intervener can be permitted to
intervene as a party/respondent in the above appeals?
2. Whether the intervener can be permitted to assist the Special Public Prosecutor before this Court?
127. In my opinion, there is no question of permitting
Mr. Anbazhagan to file written submissions. Section 301(2)
of the Code does not postulate the filing of any written
submissions. That apart, I cannot permit Mr. Anbazhagan
to file written submissions in the High Court when no such
prayer was made by him before the High Court. Even if
such a prayer had been made by Mr. Anbazhagan before
the High Court, it was entirely for the learned Single Judge
to take a view in the matter.
128. In Haradhan Sen v. State42 it was observed that
there is no provision in the Code for permission to file
42 2004 Crl. L.J. 3881
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written submissions particularly at the appellate stage and
there is no scope for filing any written arguments by a
private counsel except when the court thinks it necessary
for the purposes of a fair trial and only on the basis of
permission granted by the court.
129. Under the circumstances, there is no merit in this
appeal and it is dismissed.
...…………………….J. (Madan B. Lokur)
New Delhi; April 15, 2015
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.637 OF 2015
(Arising out of S.L.P. (Crl.) No.1632/2015)
K. ANBAZHAGAN ..Appellant
Versus
STATE OF KARNATAKA & ORS. ..Respondents
WITH
CRIMINAL APPEAL NO.638 OF 2015
(Arising out of S.L.P. (Crl.) No. 2013/2015)
K. ANBAZHAGAN ..Appellant
Versus
SELVI J. JAYALALITHA & ANR. ..Respondents
J U D G M E N T
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R. BANUMATHI, J .
Leave granted.
2. I have had the benefit of going through the draft
judgment proposed by His Lordship Justice Madan B.
Lokur. For the reasons which I have indicated below, I am
unable to agree with the proposed final decision in
criminal appeal arising out of S.L.P. (Crl) No.1632/2015
and in my considered view, the criminal appeal arising out
of said S.L.P. is liable to be dismissed. However, I agree
with the final decision taken by His Lordship in the
criminal appeal arising out of SLP (Crl.) No.2013/2015.
3. Before the learned Single Judge of the Karnataka
High Court, on behalf of the appellant, it was submitted
that the appellant would not go into the allegations made
against Mr. Bhavani Singh, but would confine his
submissions only to the legal issues and the said
submission is referred to in paragraph (13) of the
impugned judgment. Before us, even though much
arguments were advanced on the credibility of fifth
respondent as a Special Public Prosecutor (SPP), in the
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High Court, since the matter was restricted only on the
legal issues, I consciously refrain from making any
reference to the submissions touching upon the credibility
of Mr. Bhavani Singh and would therefore confine my
discussion only on the legal issues.
4. The following questions arise for consideration in
this appeal:
(i) Whether the fifth respondent-Mr. Bhavani Singh appointed as Special Public Prosecutor for conducting the disproportionate assets case in Special C.C.No. 208/2004 (in the case of Kumari J. Jayalalitha and others) can continue to appear in the criminal appeals filed by the accused against the verdict of conviction and whether appearance of fifth respondent in the appeals is without authority and illegal ?
(ii) Whether the appellant is entitled to assist the prosecution in the appeal stage by filing the written submission?
5. Shorn of details of chequered history of the
case, brief facts giving rise to these appeals are as
follows:- A prosecution was launched against the
respondents under Section 13(1)(e) read with Section
13(2) of the Prevention of Corruption Act for possessing
assets disproportionate to their known sources of income
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in the year 1996-1997 in the State of Tamil Nadu.
Appellant in both the appeals is the General Secretary of
Dravida Munnetra Kazhagam(DMK) and a political
opponent of accused No.1. The appellant approached this
Court on 18.11.2003 for transferring the trial of the case
to the neighbouring State, on the ground that a fair trial
was not possible in the State of Tamil Nadu. While
transferring the matters to the State of Karnataka, in K.
Anbazhagan & Ors. vs. Supdt. of Police & Ors., reported
in (2004) 3 SCC 767, in paragraph (34), this Court issued
the following directions:
“34. In the result, we deem it expedient for the ends 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
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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 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
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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, 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. Pursuant to the above direction as in Para 34(c),
after consultation with the Chief Justice of the High Court
of Karnataka, on 19.02.2005, the Government of
Karnataka, appointed Mr. B.V. Acharya, a former Advocate
General, as Special Public Prosecutor to conduct the
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prosecution. On 12.08.2012, Mr. Acharya expressed his
inability to continue as Special Public Prosecutor. The
Government of Karnataka accepted his resignation and
discharged him from the case in January 2013.
7. The Government of Karnataka then initiated the
process for appointment of a new Special Public
Prosecutor and in pursuance with the directions of this
Court submitted names of four advocates to the High
Court for consideration by the Chief Justice. The then
Acting Chief Justice of the Karnataka High Court on
29.01.2013 recommended the name of Mr. Bhavani Singh-
respondent No.5 for appointment as Special Public
Prosecutor, though his name was not submitted by the
Government of Karnataka. The Government of Karnataka
accepted the same and issued a notification dated
2.02.2013 appointing Mr. Bhavani Singh as Special Public
Prosecutor.
8. Fifth respondent started working as Special Public
Prosecutor and number of defence witnesses were
examined and the trial of the case proceeded. Defence
commenced arguments on 2.08.2013 and later concluded
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the same. On 26.08.2013, Government of Karnataka
issued a notification withdrawing the appointment of fifth
respondent as Special Public Prosecutor without consulting
the Chief Justice of Karnataka High Court. Aggrieved by
the said notification, removing fifth respondent as Special
Public Prosecutor, the accused preferred the Writ Petition
(Crl.) No.154/2013. When the aforesaid writ petition was
pending in this Court, the Government of Karnataka
consulted the Chief Justice of the Karnataka High Court
for withdrawing the appointment of Mr. Bhavani Singh as
a Special Public Prosecutor and the Chief Justice concurred
with the view of the State Government vide
communication dated 14.09.2013. The appointment of Mr.
Bhavani Singh stood withdrawn by the Government of
Karnataka by a fresh notification No. LAW 149 LCE 2012
dated 16.9.2013. Being aggrieved, the accused have filed
another writ petition being Criminal No.166/2013 before
this Court challenging the communication dated
14.09.2013 and notification 16.09.2013. After hearing the
parties and after taking note of the facts of the case, in J.
Jayalalithaa And Ors. vs. State of Karnataka & Ors., (2014)
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2 SCC 401, this Court quashed the order of removal of fifth
respondent as Special Public Prosecutor .
9. By the judgment dated 27.09.2014, the Special
Judge convicted the accused No.1 under Section 13(1)(e)
read with Section 13(2) of the Prevention of Corruption Act
read with Section 120B IPC and other accused for the
offences punishable under Section 109 IPC read with
Section 13(2) of Prevention of Corruption Act. Challenging
the verdict of conviction and sentence of imprisonment
imposed, accused preferred appeals before the Karnataka
High Court in Criminal Appeal Nos. 835-838 of 2014.
During the pendency of the appeals in the High Court, the
accused filed an application for enlarging them on bail and
the learned Single Judge by an order dated 7.10.2014
dismissed the application for grant of bail. Aggrieved by
the said order, accused preferred appeal before this Court
by filing Special Leave Petition (Crl.) No.7900/2014. By an
order dated 17.10.2014, this Court enlarged all the
accused on bail. Thereafter, this Court passed an order on
18.12.2014 requesting the Chief Justice of Karnataka High
Court to constitute a Special Bench for hearing of the
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appeals and further directed that the criminal appeals be
heard on day-to-day basis and dispose of the same as
early as possible, at any rate not later than three months.
After Christmas vacation, High Court of Karnataka
reopened on 2.01.2015 and hearing of the arguments in
the criminal appeals started on 6.01.2015 and hearing
was concluded on 11.03.2015. It is submitted at the Bar
that the learned Single Judge reserved the judgment in the
criminal appeals on 11.03.2015.
10. After the Supreme Court has passed the Order
dated 18.12.2014, the appellant who is the General
Secretary of DMK Party made a representation on
24.12.2014 to the Government of Karnataka requesting it
to appoint a suitable senior lawyer to appear for the
Director of Vigilance and Anti-Corruption (for short ‘D.V &
A.C’), Tamil Nadu before the High Court of Karnataka at
Bangalore in the Criminal Appeal Nos. 835-838/2014.
The appellant also filed a memo on 7.01.2015 in Criminal
Appeal Nos.835-838/2014 contending that the fifth
respondent is not a Special Public Prosecutor appointed by
the Karnataka Government in consultation with the Chief
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Justice of High Court of Karnataka to appear in the appeals
and therefore fifth respondent cannot appear in the
appeals pending on the file of the High Court.
11. When the matters stood thus, on 6.01.2015, the
appellant filed a Writ Petition being No.742/2015 seeking a
direction to appoint any other Senior Lawyer as Special
Public Prosecutor in criminal appeal Nos.835-838/2014.
After hearing both the parties and after taking note of the
order passed by the Apex Court granting bail on
17.10.2014 and order dated 18.12.2014, in which this
Court has directed the appeals to be heard on day-to-day
basis and the appeals be disposed of within three months,
the learned Single Judge dismissed the writ petition
holding that Mr. Bhavani Singh’s continuance as Special
Public Prosecutor may not cause prejudice in the
proceedings. Learned Single Judge further held that since
fifth respondent was appointed pursuant to the direction
of the Supreme Court, it is therefore a matter of formality
for the Supreme Court to clarify as to the procedure in
appointing a counsel and his assistant, if any, and in the
conduct of further proceedings.
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12. Being aggrieved, the appellant has preferred
appeal before the Division Bench of High Court of
Karnataka being Writ Appeal No. 260/2015 (GM-RES). On
11.02.2015, the High Court of Karnataka passed the
impugned order rejecting the appellant’s challenge
against the fifth respondent’s authority as Special Public
Prosecutor to appear in the appeals. By an order dated
5.02.2015 passed in I.A. No.1/2015 in Criminal Appeals
No.835-838/2014, the High Court dismissed the
appellant’s plea to assist the prosecution in the above
appeals observing that the appellant has no statutory
right to intervene in the criminal appeal proceedings to
assist the prosecution in the appeals. In these appeals,
appellant has challenged the correctness of the impugned
judgment/order.
13. Appointment of respondent No5–Mr.
Bhavani Singh as Special Public Prosecutor by the
Government of Tamil Nadu to represent Directorate
of Vigilance and Anti-Corruption in the appeals in
the High Court of Karnataka: The judgment in the
criminal case was rendered by the Special Judge on
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27.09.2014. Within two days thereafter i.e. on 29.09.2014,
on the request made by Director, Vigilance and Anti-
Corruption, Principal Secretary to the Government of Tamil
Nadu passed the order authorizing D.V & A.C to engage
Mr. Bhavani Singh as the Special Public Prosecutor to
appear before the High Court of Karnataka in the criminal
appeals. The order is extracted in paragraph (36) of the
judgment of Hon’ble Justice Lokur.
14. As per the direction of this Court in K.
Anbazhagan vs. Supdt. of Police, (2004) 3 SCC 767, the
Special Public Prosecutor was appointed. The
Appointment of the Special Public Prosecutor in the
transferee court was thus as per the direction of this
Court. As extracted earlier, this Court specifically directed
the State of Karnataka to appoint a senior counsel as
Special Public Prosecutor in consultation with the Chief
Justice of Karnataka High Court.
15. While directing transfer of a criminal case from
outside the State, this Court can in exercise of powers
under Section 406 Cr.P.C. issue further direction to the
transferee court to appoint Public Prosecutors/Additional
Crl.Appeal No._______/2015 etc. Page 92 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
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Public Prosecutors/Special Public Prosecutors. In Jayendra
Saraswati Swamigal @ Subramaniam vs. State of Tamil
Nadu, (2008) 10 SCC 180, when the criminal case was
ordered to be transferred from State of Tamil Nadu to
Union Territory of Pondicherry, this Court held that the
Union Territory of the transferee court, namely,
Government of Pondicherry is the appropriate government
to appoint Public Prosecutor/ Additional Public Prosecutor
or Special Public Prosecutor, in paragraphs (13), (15), (17)
& (18) held thus:-
“13. Of course, this Court while passing order of transfer, can give an appropriate direction as to which State should appoint the Public Prosecutor to conduct that particular case. Such orders are passed having regard to the circumstances of the case and the grounds on which the transfer has been effected. This Court can certainly give directions irrespective of the provisions contained in Section 24 CrPC. But so far as this case is concerned, nothing had been stated in the order of the transfer. The provisions contained in Section 24 CrPC shall prevail and it is for the appropriate State Government within whose area the trial is conducted to appoint Public Prosecutor under sub-sections (3) to (7) of Section 24 CrPC.
15. The purpose of transfer of the criminal case from one State to another is to ensure fair trial to the accused. In this case, the main ground on which the transfer of the sessions case was ordered from the Sessions Court of Chinglepet in Tamil Nadu to the Principal District and
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Sessions Judge, Pondicherry, was that the action of the prosecution agency had created a reasonable apprehension in the mind of the appellant-accused that he would not get justice if the trial was held in the State of Tamil Nadu.
17. As is evident from various provisions of CrPC, the State Government of Tamil Nadu can only appoint 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 appropriate Government to appoint Public Prosecutor, Additional Public Prosecutor or Special Public Prosecutor.
18. However, we make it clear that the State of Pondicherry can appoint any counsel as Public Prosecutor having requisite qualifications as prescribed under sub-section (8) of Section 24 CrPC whether he is a lawyer in the State of Pondicherry or any other State. As it is a criminal case registered by the State of Tamil Nadu the expenses for conducting the trial are to be borne by the State of Tamil Nadu. The advocate’s fees payable to the Public Prosecutor, Additional Public Prosecutor or Special Public Prosecutor by the State of Pondicherry shall be borne by the State of Tamil Nadu and the Home Departments of the two States may undertake consultations with each other and an appropriate decision may be taken by the authorities concerned in this regard”.
16. When the criminal case is transferred from one
court to another court which is subordinate to another
High Court, then the transferee State acquires jurisdiction
to appoint Public Prosecutor. The transferor court, namely,
State of Tamil Nadu had no jurisdiction to appoint Special
Crl.Appeal No._______/2015 etc. Page 94 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
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Public Prosecutor to represent D.V & A.C in the criminal
appeals before the High Court of Karnataka. After
extracting Section 406 Cr.P.C. and paragraph (34) of
the judgment in (2004) 3 SCC 767 and the notification
appointing Mr. B.V. Acharya and the subsequent
notification dated 2.02.2013 appointing fifth respondent,
in the impugned judgment, Division Bench of the
Karnataka High Court observed that the State of Tamil
Nadu has no jurisdiction to appoint a Public Prosecutor in
the appeals pending before the High Court of Karnataka
and the order is non-est in the eye of law and held as
under:-
“…..Therefore, the State of Tamil Nadu has no jurisdiction to appoint a Public Prosecutor in the Special Court nor in the appeals which are pending in this Court. Hence, the order passed by the State of Tamil Nadu authorizing the deleted third respondent herein to engage the services of the fifth respondent is without authority and non est in the eye of law. That order does not confer any right on the fifth respondent to represent either the State of Karnataka or the State of Tamil Nadu in the pending appeals before this Court. In view of our findings recorded above that the transferor court has no power to appoint a Public Prosecutor under Section 24 of the Code in respect of a case pending in the transferee Court, the argument that the appellant has not challenged the said order of appointment has no merit.”
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17. 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. I fully
agree with the view taken by the High Court of Karnataka.
To this extent, I also agree with the view taken by Hon’ble
Justice Lokur.
18. Whether, fifth respondent can continue as
the Special Public Prosecutor in the criminal
appeals before the High Court of Karnataka.: Mr. T.R.
Andhyarujina, learned Senior Counsel appearing for the
appellant contended that in pursuance of the direction of
this Court in (2004) 3 SCC 767, after the disposal of the
case, in consultation with the Chief Justice of High Court
of Karnataka, a Special Public Prosecutor has to be
appointed afresh for the purpose of conducting criminal
appeals in the High Court and Mr. Bhavani Singh had no
authority to appear in the appeals as his appointment was
Crl.Appeal No._______/2015 etc. Page 96 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
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limited to conduct only Special CC No. 208/2004 in the
Court of Additional City Civil and Sessions Judge, Special
Court, Bangalore. It was submitted that in the appellate
court, the appointment of prosecutor could only be done in
terms of the Supreme Court order by the State of
Karnataka in consultation with the Chief Justice of High
Court of Karnataka. It was contended that Section 24(8)
Cr.P.C. does not authorize a Special Public Prosecutor
appointed by the government to continue to appear in
appeal and all the proceedings after the case is over and
in the present case, Mr. Bhavani Singh has been appointed
only for the limited purpose of Special CC No.208/2004
and Section 24(8) Cr.P.C. cannot overrule the express
limitation in the notification appointing Mr. Bhavani Singh.
Learned Senior Counsel further contended that Section
301 Cr.P.C. has no application in the present case and it
does not give a right to any Public Prosecutor or Assistant
Public Prosecutor to have a blanket authority to appear in
any court originating from that case in which he is in
charge.
19. Reiterating the above submissions, Mr. Vikas
Crl.Appeal No._______/2015 etc. Page 97 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
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Singh, learned Senior Counsel appearing for the appellant
in the criminal appeal arising out of S.L.P.(Crl.)
No.2013/2015 submitted that Section 301 Cr.P.C. is only a
general provision in Chapter XXIV of the Code which is
only a facilitating provision for a Public Prosecutor to
appear without any written authority if he is in charge of a
case and Section 301 Cr.P.C. does not confer unlimited
authority to a Public Prosecutor to appear in the hierarchy
of courts. In so far as SLP (Crl.) No.2013/2015 is
concerned, it was submitted that the appellant has
consistently intervened before the appropriate courts and
learned Special Judge also permitted him to assist the
prosecution and the appellant having filed written
submissions in the trial court, the High Court ought to
have permitted the appellant to intervene in the criminal
appeals also.
20. We have heard Mr. M.N. Rao, learned Senior
Counsel appearing for the State of Karnataka who
submitted that in the case of Mr. Bhavani Singh, his
appointment was limited to the conduct of trial and it
came to an end after the trial was over. It was submitted
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that Rule 30 of the Karnataka Law Officers (Appointment
and Conditions of Service) Rules 1977, the words ‘any
appeal or proceedings connected therewith’ read with
preceding words ‘civil or criminal case’ negate the
presumption that the order of appointment for trial will
continue till the matter attains finality in the High Court
or in the Supreme Court. The learned Senior Counsel
further submitted that after the judgment in the criminal
case the State Government could not take any initiative,
since it could neither approach the Supreme Court nor
the Chief Justice of the High Court on its own accord as
there was no authority for the State Government to take
action suo moto .
21. Mr. Fali S. Nariman, learned Senior Counsel
appearing for the first accused submitted that by virtue of
Section 24 (8) Cr.P.C., Mr. Bhavani Singh’s appointment as
a Special Public Prosecutor continues even in the appeal.
It was argued that sub-section (1) of Section 301 Cr.P.C.
gives right to any Public Prosecutor or Assistant Public
Prosecutor ‘in charge of a case to appear and plead in any
court in which that case is under inquiry, trial or appeal’
Crl.Appeal No._______/2015 etc. Page 99 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
Page 100
without any written authority and the High Court rightly
held that by virtue of sub-section (1) of Section 301
Cr.P.C., Mr. Bhavani Singh has the authority to continue to
appear in the criminal appeals.
22. We have heard Mr. K.T.S. Tulsi, learned Senior
Counsel appearing for other accused who reiterated the
submissions of Mr. Nariman and also placed reliance on
catena of judgments.
23. I have carefully considered the rival contentions
and perused the impugned judgment and chronology of
dates and events and material on record.
24. It will be convenient at this stage to refer to some
of the provisions which have a bearing in the matter and
are relevant for the purpose of these appeals. Section
2(u) of the Code of Criminal Procedure, 1973 (for short
‘Cr.P.C.’) defines “Public Prosecutor” to mean any person
appointed under Section 24 and includes any person
acting under the directions of a Public Prosecutor. Section
24 provides for appointment of Public Prosecutors,
Additional Public Prosecutors in High Courts and the
Districts by the Central Government or the State
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Government and also provides for appointment of the
Special Public Prosecutors for purposes of any case or
class of cases. Section 24 Cr.P.C. reads as under:-
“24. Public Prosecutors.—(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.
(2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district, or local area.
(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.
(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4).
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(6) ………………………….
(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years.
(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 his choice to assist the prosecution under this sub-section.
(9) For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.”
25. Analysis of Section 24 Cr.P.C. would show that for
appointment of a Public Prosecutor in the High Court in
terms of Section 24(1) Cr.P.C., there has to be a
consultation with the High Court. In terms of Section 24(3),
24(4) and 24(5) Cr.P.C., the Public
Prosecutor/Additional Public Prosecutor for the District or
local area, shall be appointed from out of the panel
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prepared by the District Magistrate in consultation with
the Sessions Judge. Qualification prescribed for being
eligible for appointment as Public Prosecutor, Additional
Public Prosecutor under Section 24 (1) or Section 24(2) or
Section 24(3) Cr.P.C., a person who is in practice as an
advocate for not less than seven years. In terms of
Section 24(8) Cr.P.C. for appointment of Special Public
Prosecutor to conduct the case under Section 24(8) Cr.P.C.,
there is no such consultation with the High Court or the
Sessions Judge. Section 24(8) Cr.P.C. says the Central
Government or the State Government may appoint a
Special Public Prosecutor 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. The scheme of the
Code thus makes a clear distinction between the
appointment of a Public Prosecutor ‘to a Court’ or a
‘District or local area’ and with limited territory and
appointment of Special Public Prosecutor ‘to a case or
class of cases.
26. As per the decision in K. Anbazhagan vs. Supdt.
of Police, (2004) 3 SCC 767 in paragraph 34(c), the State
Crl.Appeal No._______/2015 etc. Page 103 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
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of Karnataka was to appoint a Senior Lawyer having
experience in criminal trials as a Public Prosecutor in
consultation with the Chief Justice of the High Court of
Karnataka. After the resignation of Mr. B.V. Acharya, the
Government of Karnataka initiated the process of
appointment of new Special Public Prosecutor and
submitted names of four advocates to the High Court. The
Acting Chief Justice of the Karnataka High Court on
29.01.2013 recommended the name of Mr. Bhavani Singh,
though his name was not submitted by the Government of
Karnataka. The Government of Karnataka accepted the
same and issued a notification appointing Mr. Bhavani
Singh as a Special Public Prosecutor which reads as
under:-
“GOVERNMENT OF KARNATAKA
No. LAW 149 LCE 2012 Karnataka Government Secretariat Vidhana Soudha Bangalore, dated 02.02.2013
NOTIFICATION
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 Vs. 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,
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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 Sri B.V. Acharya on same terms to conduct Special C.C.No.208/2004 (in the case of Kum. Jayalalitha 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 Sri 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”
27. The appointment of Mr. Bhavani Singh, under
Section 24(8) Cr.P.C. as directed by this Court was in
consultation with the High Court and on the
recommendation of the Chief Justice of the High Court of
Karnataka. That is why when Mr. Bhavani Singh’s
appointment was cancelled by the Government of
Karnataka by its notification dated 26.8.2013, the same
was held to be vitiated as there was no consultation with
the Chief Justice of High Court of Karnataka vide J.
Jayalalithaa And Ors. vs. State of Karnataka And Ors.,
(2014) 2 SCC 401. Withdrawal of appointment of Mr.
Bhavani Singh by the Government of Karnataka even after
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consultation with the Chief Justice of High Court of
Karnataka by the subsequent notification dated 16.9.2013
did not find favour with this Court and was held to be
malafide and vitiated.
28. As per Section 2(u) Cr.P.C., Public Prosecutor
means any person appointed under Section 24 Cr.P.C. and
thus includes a Special Public Prosecutor appointed under
Section 24(8) Cr.P.C. In this case, we are only concerned
with the appointment of Special Public Prosecutor who can
be appointed by the Central Government or the State
Government to deal with ‘case or class of cases’ under
sub-section (8) of Section 24 Cr.P.C. By a plain reading of
Section 24 Cr.P.C., three main categories of Public
Prosecutors are discernible:- First are those who are
attached to a particular High Court, District or Local Area;
Second are those who are attached to a particular case or
class of cases but in a specified jurisdiction and lastly, the
one appointed to a particular case or class of cases. The
last category belongs to ‘Special Public Prosecutor’
appointed under sub-section (8) of Section 24 Cr.P.C., in
which there is no mention about the jurisdiction/territory in
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which Special Public Prosecutor has to conduct the case or
class of cases. The limitation of acting in particular court
or area is conspicuously absent in the provision of
Section 24(8) Cr.P.C, when compared with other provisions.
29. Thus, once Mr. Bhavani Singh was appointed as a
Special Public Prosecutor to conduct the criminal case, in
terms of Section 301 Cr.P.C. as a Public Prosecutor in
charge of a case, he can appear and plead without any
written authority before any court in which that case is
under inquiry, trial or appeal. Section 301 Cr.P.C. reads as
under:-
“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.
(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written argument after the evidence is closed in the case”.
30. Section 301 of the Code is a pivotal provision
which deals with ‘appearance of Public Prosecutor’ giving
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a substantive right to the Public Prosecutor who is ‘in
charge of a case’ to appear and plead in any court in
which that case is under inquiry, trial or appeal without
having any written authority. The scheme of the Code is
that when a case is at the stage of inquiry, trial or appeal,
the Public Prosecutor is in charge of the case and he is
authorized to appear before any court in which that case
is under inquiry, trial or appeal, without any written
authority. One of the reasons for dispensing with the
requirement of written authority to appear and plead
under Section 301 of the Code is that the Special Public
Prosecutor appears for the State to prosecute the accused.
State in turn authorize and appoint the Special Public
Prosecutor to act on its behalf by issuing a notification
and until that notification is quashed by the State, the
power under sub-section (1) of Section 301 of the Code,
will continue the authority of Special Public Prosecutor to
appear and plead even after end of trial.
31. Mr. Bhavani Singh appointed as a Special Public
Prosecutor under Section 24(8) Cr.P.C. and in charge of the
case, in terms of Section 301 Cr.P.C., may appear and
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Page 109
plead without any written authority before any court which
that case is in inquiry or trial or appeal. The word ‘any
Court’ occurring in Section 301 Cr.P.C. is significant. While
the role of Public Prosecutors under sub-sections (1) to (3)
of Section 24 Cr.P.C. is confined to the ‘Courts’ or ‘Area’ or
‘District’ to which they are attached, the role allotted to
Special Public Prosecutor under sub-section (8) of Section
24 Cr.P.C. is specific to ‘conduct a case’ or ‘class of
cases’. If the construction of the phrase ‘conduct of the
case’ or ‘class of cases’ is restricted only to the trial court
as is argued by the appellant in the instant case, then the
words ‘any Court’, ‘trial’, ‘inquiry’, ‘appeal’ occurring in
Section 301(1) Cr.P.C. would become redundant.
33. Public Prosecutor defined under sub-section (u) of
Section 2 is the genus and Special Public Prosecutor is the
species. Though there is common section 2(u) Cr.P.C.
defining all classes of Public Prosecutors i.e. Public
Prosecutor, Special Public Prosecutor, Assistant Public
Prosecutor etc., all of them stand on different footings and
there cannot be a same scale to measure their functions.
In fact, this is the intention which can be inferred from the
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changes brought in the new Code as compared to the old
Code of 1898. In the old Code, there were only two
classes (i.e. those who have been empowered to
prosecute generally and other who are empowered to deal
with specific cases) that too in a single provision, which
talked about Public Prosecutors under Section 492 of the
old Code. In the new Code, under Sections 24, 25 & 26
Cr.P.C. all of them have independent specific role to play at
various levels and it is in the light of these specific roles,
Section 301 Cr.P.C. ought to be interpreted. That is the
reason why Special Public Prosecutor can be allowed to
appear in the case, when the same went in appeal from
trial and the Public Prosecutor and the Assistant Public
Prosecutor cannot be allowed to do so because of element
of ‘Court or area’ limitation imposed upon them in which
they have to work.
34. Considering the scope of Section 301 Cr.P.C., in
Shiv Kumar vs. Hukam Chand And Anr., (1999) 7 SCC 467,
this Court has held as under:-
“12. In the backdrop of the above provisions we have to understand the purport of Section 301 of the Code. Unlike its succeeding provision in the Code, the
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application of which is confined to Magistrate Courts, this particular section is applicable to all the courts of criminal jurisdiction. This distinction can be discerned from employment of the words “any court” in Section 301. In view of the provision made in the succeeding section as for Magistrate Courts the insistence contained in Section 301(2) must be understood as applicable to all other courts without any exception. The first sub-section empowers the Public Prosecutor to plead in the court without any written authority, provided he is in charge of the case. The second sub- section, which is sought to be invoked by the appellant, imposes the curb on a counsel engaged by any private party. It limits his role to act in the court during such prosecution “under the directions of the Public Prosecutor”. The only other liberty which he can possibly exercise is to submit written arguments after the closure of evidence in the trial, but that too can be done only if the court permits him to do so.”
35. Referring to Shiv Kumar’s case(supra) and
elaborating upon sub-section (1) of Section 301 Cr.P.C. and
interpreting the word ‘a case’ in paragraph (49) of the
impugned judgment, the High Court held as under:-
“49. Therefore, as held by the Apex Court in the aforesaid judgments, when the Code meticulously provides for appointment of Public Prosecutors to the High Court, District Court, Magistrate Court and Special Public Prosecutor for a case, and under Section 301 of the Code it declares that Special Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before “any Court” in which the case is under inquiry, trial or appeal, it only means once he is entrusted with a case, he is put in charge of the case till that said case ultimately reaches a finality either by way of discharge, conviction or by
Crl.Appeal No._______/2015 etc. Page 111 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
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way of acquittal, he is entitled to appear and plead without any written authority. A conviction or acquittal by a trial court is only a step amongst the several steps in which a criminal case has to pass through. These statutory provisions have to be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved. Otherwise, the word ‘any Court’ used in Section 301 would become redundant. When a Special Public Prosecutor is appointed to a case, he has a right to appear during inquiry, during trial and also during appeal. He is not appointed to any Court but appointed to a case. When criminal case has to pass through the stages of inquiry, trial or appeal, by virtue of his appointment, when he is in charge of a case he has a right to appear and plead without any written authority before any Court in which that case in whatever stage is pending.”
I fully agree with the view taken by the High Court for the
reasonings which I have elaborated supra and hereunder.
36. Role Assigned to Special Public Prosecutor
appointed under Section 24(8) Cr.P.C. to conduct case or class of cases to be interpreted along with Section 301 Cr.P.C.:
For proper appreciation of this aspect, let us compare
Section 301 of the New Code vis-à-vis Section 493 of the
old Code.
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Section 301 Section 493 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. 2. If any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.
Public Prosecutor may plead in all Courts in cases under his charge, Pleaders privately instructed to 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, and if any private person instructs a pleader to prosecute in any Court any person in any such case, the Public Prosecutor shall conduct the prosecution, and the pleader so instructed shall act therein, under his directions.
A close look at both sections would show that Section 301
(1) of the new Code and Section 493 of the old Code are
similar in language, except of one slight change i.e. in the
new Code under Section 301(1) Cr.P.C., the word “Assistant
Public Prosecutor” has been added.
37. Further the comparison of the provisions as to
Public Prosecutors in the old Code and the new Code the
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following emerge:-
(a) In the old Code, provisions as to ‘Appointments of Public Prosecutor’, ‘Appearance of Public Prosecutor’, ‘Withdrawal from Prosecution and ‘Permission to Conduct Prosecution’ were put consecutively under Sections 492, 493, 494 & 495 respectively, in Chapter XXXVIII –‘Of The Public Prosecutor’ contained in the Part IX of the Code titled as Supplementary Provisions; (b) However, in the new Code all the provisions relating to Public Prosecutors are scattered in different chapters of the Code. Section 24 and Section 25 which deal with appointment of Public Prosecutor and Assistant Public Prosecutor respectively, finds place in Chapter II–‘Constitution of Criminal Courts and Offices’ of the Code. Provisions as to Appearance of Public Prosecutor, Permission to Conduct Prosecution, Withdrawal from Prosecution have been enumerated under Sections 301, 302, 321 of the Code respectively under Chapter XXIV–‘General Provisions as to inquiries and Trials’.
Thus, under the old Code, provisions corresponding to
Section 24 Cr.P.C. and Section 301 Cr.P.C. were under the
same Chapter. They have now been placed in different
Chapters in the 1973 Code, however, this was done as
merely a part of the scheme of the Code. Therefore, it
would be wrong to suggest that interpretation of Section
24(8) Cr.P.C. alongwith Section 301(1) Cr.P.C. would be in
violation to the scheme of the Code.
38. Whether Section 301 Cr.P.C. is only
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procedural in nature: Section 301 has been placed
under Chapter XXIV of the Code which is titled as ‘General
provisions as to inquiries and trials’. Contention of learned
Senior Counsel for the appellant is that since Section 301
Cr.P.C. finds mention in the Chapter containing ‘General
provisions as to inquiries and trials’, Section 301 Cr.P.C. is
only procedural in nature and thus does not confer any
substantive right to the Public Prosecutor who is in charge
of a case, to appear and plead and it is only a facilitating
provision to appear without any written authority. It was
further submitted that when the notification appointing Mr.
Bhavani Singh was confined only to Special CC
No.208/2004, support cannot be drawn from Section 301
Cr.P.C. for continuance of his authority to appear in the
appeal.
39. In my considered view, the said argument is
misplaced. Though Chapter XXIV deals with the ‘General
provisions as to inquiries and trials’, it also contains
various sections which if not observed mandatorily, will
have serious repercussions on the substantive rights of
the parties. For example, Section 327 provides that trial
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should be conducted in open Court. If a by-pass is allowed
through this provision which confers substantive rights in
favour of party,then it may vitiate the entire trial.
Moreover, Section 327 not only vests substantive right in
favour of parties to have open trial and to have ‘in
camera’ trial in certain matters, but also embodies the
principle of natural justice of ‘fairness in conduct of trial’.
40. Coming to the relevant Section, i.e. Section
301(1) Cr.P.C. also gives substantive right to the Public
Prosecutor who is ‘in charge of a case’ to appear and
plead without having any written authority. Further as per
sub-section (2) of Section 301 Cr.P.C., if a victim chooses
to appoint some private pleader on his/her behalf, then
such private pleader will act under the direction of the
Public Prosecutor. Mandatory nature of Section 301(2)
Cr.P.C. has been considered and upheld by this Court in a
catena of decisions. A Constitution Bench of this Court in
the case of State of Punjab vs. Surjit Singh And Anr.,
(1967) 2 SCR 347 while dealing with Section 493 of the old
Code which is in pari materia with Section 301 of the new
Code and held as under:-
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“…That s.493 deals with a single specified case that it applies only to the Public Prosecutor, who is actually in charge of that case is also made clear by the later part of s.493. That is to the effect that if the Public Prosecutor is in charge of a particular case and, in that particular case, a private person instructs a pleader to prosecute any person, the Public Prosecutor alone is entitled to conduct the prosecution and the pleader appearing in that case for the private person is only to act under his instructions…”.
Though Chapter XXIV deals with ‘General provisions as in
inquiries and trials’, it also contains various sections
dealing with substantive rights of the parties. The
appellant is not right in contending that Section 301
Cr.P.C. is only procedural and such contention is not in
consonance with the scheme of the Code. In my view,
Section 301(1) Cr.P.C. gives substantive right to the Public
Prosecutor who is in charge of a case to appear and plead
without any written authority in any Court in which that
case is under trial, inquiry or appeal.
41. Re. Contention: Special Public Prosecutor
appointed under Section 24(8) Cr.P.C. appearing in
the appeal might lead to an anomalous situation:
On behalf of the appellant it was submitted that since
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there is a Public Prosecutor in the High Court appointed
under Section 24(1) Cr.P.C. and there is a Special
Public Prosecutor in charge of a case, then in the appeal
before the High Court there might arise anomalous
situation as to who could appear for the State as both
Public Prosecutor and Special Public Prosecutor are ‘Public
Prosecutors’ within the meaning of Section 2(u) of the
Code and the Legislature would not have intended to
create such an anomaly. Since both Public Prosecutor and
Special Public Prosecutor have been entrusted with certain
overlapping task, there is bound to be overlapping. To
narrow down the overlapping, the Legislature has very
carefully placed the word ‘in charge of a case’ under
Section 301(1) Cr.P.C.
42. This issue has been addressed and answered by a
Constitution Bench in the case of Surjit Singh’s case
(supra). In that case, while interpreting in pari materia i.e.
Section 493 of the old Code and considering the question
as to whether a Public Prosecutor or a Special Public
Prosecutor will be entitled to file an application for
withdrawing from prosecution and observing that only the
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Public Prosecutor who is in charge of a particular case will
be entitled to file an application to withdraw from the
prosecution, this Court held as under:-
“……If any Public Prosecutor, who had nothing to do with a particular case is held entitled to file an application under s. 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 conducting 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 permission of the Court to withdraw from the prosecution.
The reasonable interpretation to be placed upon s. 494, in our opinion is that it is only the Public Prosecutor, who is incharge of a particular case and is actually conducting the prosecution, that can file an application under that section, 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 s. 494 of the Code.”
43. Being placed ‘in charge of a case’, there is a
specific role attributed to the Special Public Prosecutor
under sub-section (8) of Section 24 Cr.P.C. which
distinguishes the task of Special Public Prosecutor from
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that of Public Prosecutors appointed under sub-sections
(1), (2) and (3) of Section 24 Cr.P.C. and hardly there is
any anomaly.
44. Re. Contention: the term “case” is
restricted only to trial and does not ipso facto
extend to appeal: It has been contended by the
learned Senior Counsel for the appellant that the term
‘case’ is restricted to only trial of the accused and with
the disposal of the matter in the trial court, the authority
of Special Public Prosecutor comes to an end and does not
extend ipso facto to plead and appear before the
appellate forum also. Thus, the learned Senior Counsel for
the appellant argues that the term ‘case’ under Section
24(8) Cr.P.C. and Section 301 Cr.P.C. has been used in the
restrictive sense by the Legislature to include only the trial
and not the appeal. According to the appellant this is
reinforced by the appointment of Mr. Bhavani Singh by the
Government of Tamil Nadu as a Special Public Prosecutor
to represent the D.V & A.C in the criminal appeals before
the High Court of Karnataka. It was submitted that by
appointing Mr. Bhavani Singh as the Special Public
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Prosecutor to appear and plead before the appellate court,
the Government of Tamil Nadu was conscious that the
authority of Mr. Bhavani Singh has come to an end with
the conclusion of the trial.
45. The above contention does not merit acceptance.
Hasty action of Government of Tamil Nadu in appointing
Mr. Bhavani Singh is ill-advised and such non-est action of
the Government of Tamil Nadu does not whittle down the
provisions of law. In my considered view, the word ‘case’
has been given a broader meaning in the context of
Section 301 of the Code. The term ‘case’ has to be
interpreted only contextually and no universal rule can be
laid down for its interpretation and therefore the
Legislature in its wisdom has avoided to define the same
in the Code inspite of abundant presence in the various
provisions of the Code. (vide Bhimappa Bassappa Bhu
Sannavar vs. Laxman Shivarayappa Samagouda & Ors.,
(1970) 1 SCC 665).
46. I am conscious that the term ‘case’ in the Code at
certain instances has been used to link only with ‘trial’ and
has been categorically distinguished with the term
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‘appeal’. Cursory perusal of Section 407 of the Code
which deals with ‘Power of High Court to transfer cases
and appeals’, would show that the word ‘case’ and
‘appeal’ has been distinguished by the Legislature in the
context of the section. Further, sub-section (1) (ii) and (iv)
of Section 407 Cr.P.C. would show that the terms ‘case or
class of cases’ and ‘appeal or appeals’ have been used to
mean different things. Moreover, the word ‘case’ as
evident from Sub Clause (1) (ii) and (iv) of Section 407
Cr.P.C. would show that the word ‘case’ has been distinctly
used by the Legislature in respect of trial. Similar
distinction between term ‘case’ and ‘appeal’ has been
maintained under Section 406 and Section 409 Cr.P.C.
Section 209 of the Code also links the term ‘case’ with the
‘trial’ only. For example Section 209 deals “Commitment
of Case to Court of Session when offence is triable
exclusively by it”. If we insert the word ‘appeal’ in place
of word ‘case’, then such interpretation may lead to an
absurdity.
47. The term ‘case’ had also become the subject
matter of interpretation in relation to Section 429 of Code
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of Criminal Procedure, 1898 (‘Old Code’) which deals with
“Procedure where Judges of Court of appeal are equally
divided”. Section 429 of the Old Code is in pari materia
with Section 392 of the New Code with a slight but
significant change in the language. The term ‘case’ used
in old Code has been replaced with term ‘appeal’ in the
new Code, due to the reason of the mischief that had
been created by the term ‘case’ in the old Code. The
mischief was caused due to the wider meaning given to
the term ‘case’ by the Courts then. It is to rectify this
mischief; the new Code has replaced the word ‘case’ with
‘appeal’.
48. When the Legislature has remedied the mischief
under Section 429 of the old Code by replacing the term
‘case’ with term ‘appeal’ under Section 392 of the new
Code, then at that point of time, the Legislature could
have defined the term ‘case’; but the Legislature opted
not to do so and left it to the Courts of Law to interpret the
term in the context of particular section and facts of the
cases. In the light of the above discussion, in my view, the
meaning that can be assigned to the term ‘case’ under
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Section 301 Cr.P.C. is contextually different and wider than
the provisions referred above.
49. As noted earlier, the definition of ‘Public
Prosecutor’ under Section 2 (u) Cr.P.C. also includes a
Special Public Prosecutor. When sub-section (8) of Section
24 is read harmoniously with Section 301 of the Code on
the touchstone of the enunciated principles, then it would
be evident that Special Public Prosecutor who is in charge
of a case can appear and plead without any written
authority in any court of criminal jurisdiction in which such
case is under inquiry, trial or appeal and in my view there
is no limitation either on territory or hierarchy of courts.
There is no merit in the contention of the learned Senior
Counsel for the appellant that the authority of Special
Public Prosecutor ends with the conclusion of the trial and
disposal of a case. If such a contention is to be accepted
then the last few words of Section 301 Cr.P.C. ‘in any
court where that case is under inquiry, trial or appeal’
would become redundant and ineffective. It is a cardinal
rule of interpretation that every word in a section has a
meaning and essence.
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50. However, I am of the view that such authority of
the Special Public Prosecutor to appear and plead a case
in respect of which he is in charge in any court or at any
stage of proceedings in such court may not emanate from
the term ‘case’ or for that matter ‘class of cases’ as
appearing under sub-section (8) of Section 24 Cr.P.C., but
for the reason of the broader context in which term ‘case’
has been used in Section 301(1) Cr.P.C. to include any
court in which that case is under ‘inquiry, trial or appeal’.
The Special Public Prosecutor, after the trial is over,
derives its authority to continue to appear and plead
before appellate forum by virtue of language used in sub-
section (1) of Section 301 Cr.P.C. and the Special Public
Prosecutor will continue to have such authority due to
wide language of Section 301 Cr.P.C., until the notification
appointing him has been cancelled by the appropriate
State Government.
51. To summarize the conclusion: When the
accused has filed appeal against conviction in the High
Court, then who can appear before the High Court on
behalf of State-whether the Public Prosecutor appointed to
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the High Court under sub-section (1) of Section 24 Cr.P.C.,
or the Special Public Prosecutor already appointed, under
Section 24(8) Cr.P.C., to the case under appeal. In my
considered opinion, the Special Public Prosecutor
appointed for the case would continue to be in charge of
the case before the High Court also. The reason being,
Special Public Prosecutor is not attached to a particular
Court or Local area, but he is attached to the ‘case’ or
‘class of cases’ and therefore Special Public Prosecutor can
appear without any written authority before any Court
where that case is under inquiry, trial or appeal. Thus, the
authority of Special Public Prosecutor will follow the stage
of case, until his authority has been revoked by the State
in express terms. This is what can be understood by the
deliberate positioning of the words ‘inquiry, trial or appeal’
after the word ‘case’. In my considered view, once Mr.
Bhavani Singh was appointed as the Special Public
Prosecutor in charge of a case, even after end of the trial,
he has a right to appear and plead in any court where that
case is pending trial, inquiry or appeal. The matter has
been pending for more than eight years during which
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many orders passed by the Special Court came to be
challenged before the High Court, by way of revisions or
other proceedings. It was submitted by the Senior
Counsel, Mr. Nariman that in all those revisions and other
proceedings before the High Court, Mr. Acharya, the then
Special Public Prosecutor appeared in the High Court and
to substantiate the said submission, the order passed by
the High Court in Criminal Petition No. 3683/2011 dated
19.08.2011 was produced before us in which Mr. B.V.
Acharya Special Public Prosecutor himself appeared before
the High Court of Karnataka. Such appearance, in my
view, is by virtue of the authority derived under Section
301(1) Cr.P.C. Thus, after the conclusion of the trial, by
virtue of accused having filed the appeal against the
decision of Sessions Court, the right of Special Public
Prosecutor will remain subsisting to appear and plead in
the appeal also.
52. Sequence of events happened after the
conviction: In the entire matter, the conduct of the
appellant and the State of Karnataka is very much
relevant for which this Court is required to have a look on
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the sequence of events happened after the conviction. It is
apposite to briefly refer to chronology sequence of events
happened after Criminal Proceedings:
27.09.2014 - Case in Special Court in Special CC No. 208/2004 ended in conviction against the accused.
29.09.2014 - All the Accused filed the Criminal Appeal Nos.835-838/2014 before the High Court of Karnataka against the order of conviction dated 27.09.2014. State of Karnataka was not made a party-respondent in the Criminal Appeal.
30.09.2014 - Mr. Bhavani Singh (respondent No.5) appeared for the State in the Criminal Appeal. Notably, no objection was taken either by the appellant or the State, that Bhavani Singh’s authority as Special Public Prosecutor (SPP) was only till conclusion of trial.
01.10.2014 – Mr. Bhavani Singh (respondent No.5) filed Memo of Appearance in Criminal Appeal Nos. 835-838/2014 and submitted statement of objections that the accused should not be granted bail.
7.10.2014 - Learned Single Judge of the High Court of Karnataka refused to suspend the sentence awarded to the accused persons and declined to grant them bail.
17.10.2014 - Supreme Court enlarged all the accused on bail. 18.12.2014 - This Court confirmed the order dated
17.10.2014 and extended the bail of accused by another four months. This Court further requested the Chief Justice of High Court of Karnataka to constitute a Special Bench 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.
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24.12.2014 - Appellant, for the first time filed representation to the Chief Secretary, Government of Karnataka objecting to the continuation of Mr. Bhavani Singh as SPP in the Criminal Appeals and requested for appointment of some other Senior Counsels to contest the appeals filed by the accused persons.
06.01.2015 - Appellant filed writ petition praying to appoint another Senior Lawyer as Special Public Prosecutor to represent the State in the criminal proceedings.
53. Notably, from 30.09.2014 till 24.12.2014, no
objection was taken by the appellant or State of Karnataka
on Mr. Bhavani Singh continuing to appear and plead in
the Criminal Appeal for the State. In the Criminal Appeals
before the High Court of Karnataka, though the bail
applications were taken up on various hearing dates from
the available material on record, it is seen that the State
of Karnataka had not chosen to intervene raising
objections for the authority of Mr. Bhavani Singh
continuing to appear in the Criminal Appeals. There was
no whisper of protest by any party even when the matter
came to this Court in the bail proceedings on 17.10.2014
and 18.12.2014. When, this Court ordered the
constitution of Special Bench in Criminal Appeals vide
order dated 18.12.2014, none of the parties took pain to
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seek clarification from this Court, on the authority of
Special Public Prosecutor to continue in proceedings of
Criminal Appeal.
54. The timing of representation dated 24.12.2014
filed by the appellant to the State of Karnataka is also
interesting to note. The said representation was made
after this Court by its order dated 18.12.2014 had directed
hearing of the appeals on day-to-day basis and also fixed
the period of three months for disposal of the appeals.
Miserably, even the State of Karnataka did not attempt to
react on the representation of the appellant. The issue
could have been well resolved at that stage, if State would
have consulted the Chief Justice of the High Court of
Karnataka or would have asked the clarification from this
Court.
55. On 6.01.2015, appellant filed a W.P. No.742/2015
before the High Court of Karnataka, seeking replacement
of respondent No.5- Mr. Bhavani Singh, who was
continuing to appear for the State in the Criminal Appeal
Nos.835-838/2014. Interestingly, here again the appellant
chose to file the Writ Petition before the High Court
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instead of taking directly recourse to the jurisdiction of this
Court. On 7.01.2015, appellant filed memo in the Criminal
Appeal Nos. 835-838/2014 stating that respondent
No.5- Mr. Bhavani Singh is not authorized to appear in
Criminal Appeal Nos. 835-838/2014, as the
respondent No.5 has not been appointed by the State
Government of Karnataka in consultation with the Chief
Justice of Karnataka High Court to appear in the Criminal
Appeals. On 19.01.2015, learned Single Judge disposed of
the W.P. No.742/2015 with an observation that “…it is
open either for the State Government of Karnataka or the
petitioner himself, to seek further clarifications from the
Supreme Court as to the procedure that is to be followed
in making appointment of a Special Public Prosecutor and
an assistant or assistants, if any, to represent the State of
Karnataka…”. Noteworthy, in the proceedings before the
Single Judge, the Advocate General for the State of
Karnataka Mr. Ravi Kumar made the following submissions:
“The learned Advocate General would however, submit that after the judgment was pronounced by the trial court, there has been no further consultation between the State Government of Karnataka and the Chief Justice of the High Court of Karnataka, as directed by the Supreme Court in making any
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appointment of a Special Public prosecutor 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 complied with, the State Government, in consultation with the Chief Justice, shall take further steps. Since the State Government is not formally authorized to take any steps in so far as the appointments of the prosecutor or counsel to conduct the appeals, no steps have been taken.”
56. Notably, State of Karnataka, even after the
decision of Single Judge, did not take any action. The State
of Karnataka did not file any appeal against the order of
the Single Judge. They neither pursued the matter with
the Chief Justice of High Court of Karnataka nor did they
take the pain to approach the Supreme Court to seek
clarification as to the appointment of Prosecutor/Counsel
in Criminal Appeal.
57. On 28.01.2015, appellant filed the Writ Appeal
No.260/2015 (GM-RES) before the Division Bench against
the order dated 19.01.2015 of Single Judge instead of
directly coming to this Court to seek the appropriate
clarification as to the continuation of the Special Public
Prosecutor in the Criminal Appeal or to pursue the matter
with the State of Karnataka. The learned Advocate
General again made his submissions that in absence of
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clarification from Supreme Court, the State is unable to
take the decision on the appointment of
Prosecutor/Counsel for Criminal Appeal. The relevant
submissions may be noted as below: “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.”
On 11.02.2015, Division Bench disposed of the Writ Appeal
with an observation that respondent No.5 is entitled to
continue in Criminal Appeals. The Division Bench observed
as under:
“In fact, what weighed with the learned Single Judge in rejecting the Writ Petition is the direction issued by the Apex Court that the Appeal should be heard on day to day basis and it should be disposed of within three months, any order to be passed by this Court which would come in the way of the disposal of the said appeal in terms of the direction of the Supreme Court should be avoided….”
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58. Even after the decision of Division Bench in the
Writ Appeal, the State did not pursue the matter to this
Court. What the State did is that they took the shelter of
the appeals filed by the appellant and kept on rhyming
about their inability to appoint a new Prosecutor/Counsel
to conduct the appeal proceedings. If the State of
Karnataka was of the view that Mr. Bhavani Singh cannot
continue to appear for the appeals, in consultation with
the Chief Justice of Karnataka High Court, it could have
issued the notification appointing another Special Public
Prosecutor or it could have sought direction from this
Court. But that was not to be so. State of Karnataka did
not take any initiative to actively resolve the dispute so
that the appeal could have been disposed of within the
outer limits of three months from the order dated
18.12.2014. Once the case was transferred under Section
406 Cr.P.C. to the State of Karnataka, it stepped into the
shoes of State of Tamil Nadu and has the obligation to
prosecute all the accused diligently by ensuring the fair
and smooth proceedings of the case and as the transferee
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State, the State of Karnataka was conscious about its
obligations. However, the State with its inactive attitude
did not take any step to terminate Bhavani Singh’s service
and thereby appoint a new incumbent to conduct the case
in appeal. The appellant did not take steps immediately
after the disposal of the matter in the trial court as the
appellant was conscious of the right of Mr. Bhavani Singh-
respondent No.5 to continue as the Special Public
Prosecutor by virtue of the provision of Section 24 (8) and
Section 301(1) of Cr.P.C. unless cancelled by the State of
Karnataka. It is pertinent to note that the appellant had
not even chosen to challenge the appointment of Mr.
Bhavani Singh as Special Public Prosecutor by the State of
Tamil Nadu (dated 29.9.2014) which is prima facie non-est.
Only after this Court passed the order on 18.12.2014,
fixing the outer time limit for disposal of the criminal
appeals, the appellant seems to have made
representation and thereafter filed writ petition, which in
my considered view, lacks bona fide. The learned Single
Judge and the Division Bench rightly dismissed the Writ
Petition No.742/2015 and Writ Appeal No.260/2015 (GM-
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RES) and the impugned judgment warrants no
interference.
59. Criminal Appeal No.637/2015 arising out of
S.L.P. (Crl.) 1632/2015: I hold that Mr. Bhavani Singh
appointed as Special Public Prosecutor (SPP) under Section
24(8) Cr.P.C., by virtue of Section 301(1) Cr. P.C., has
authority to continue to appear as Public Prosecutor in the
criminal appeals filed by the accused in the High Court of
Karnataka and the order of the High Court in Writ Appeal
No. 260/2015 (GM-RES) is confirmed and the appeal is
dismissed.
60. Criminal Appeal No.638/2015 arising out of
SLP (Crl.) No.2013/2015: Confirming the order of the
High Court in I.A. No.1/2015 in Criminal Appeal Nos.835-
838/2014, this appeal is dismissed.
……………………J.
(R. Banumathi)
New Delhi;
April 15, 2015.
Crl.Appeal No._______/2015 etc. Page 136 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.
Page 137
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.637OF 2015 (Arising out of SLP(Crl.)No.1632 of 2015)
K. ANBAZHAGAN ... APPELLANT(S)
VS.
STATE OF KARNATAKA & ORS. ... RESPONDENT(S)
O R D E R
In view of difference of opinion, the matter
is referred to a larger Bench.
The Registry is directed to place the matter
before the Hon'ble the Chief Justice of India for
appropriate orders.
..............J. [MADAN B. LOKUR]
..............J. [R. BANUMATHI]
New Delhi; 15th April, 2015.
Crl.Appeal No._______/2015 etc. Page 137 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.