K. ANBAZHAGAN Vs STATE OF KARNATAKA AND OTHERS
Bench: DIPAK MISRA,R.K. AGRAWAL,PRAFULLA C. PANT
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
K. Anbazhagan ... Appellant
Versus
State of Karnataka and Others ... Respondents
J U D G M E N T
Dipak Misra, J.
In view of the difference of opinion by two learned
Judges and regard being had to the referral order dated
15.4.20151, this appeal has been placed before us for
consideration and decision. We are called upon in this
appeal to decide whether the 4th respondent was authorised
to represent the case of the prosecution in the High Court of
Karnataka in the appeals filed by the accused persons
1 (2015) 5 SCALE 183
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against their conviction by the Special Court, and if he was
not so authorised, whether there is necessitous warrant of
criminal appeals to be heard afresh by the High Court.
2. The factual score exposited in this appeal has a
history. The 5th respondent, Ms. J. Jayalalithaa, was the
elected Chief Minister of Tamil Nadu from 1991 to 1996 and
she was heading the political party called AIADMK. In
1996, she faced a political defeat at the hands of another
political party, namely, DMK. Keeping in view the
allegations pertaining to amassing assets disproportionate
to the known sources of income, criminal proceedings were
initiated against her and her associates, respondent nos. 6
to 8. The State of Tamil Nadu had constituted Special
Courts for their prosecution. In pursuance of the
constitution of Special Courts, C.C. No. 7 of 1997 was filed
before the learned Special Judge, Chennai against the
accused persons and they were chargesheeted for the
offences punishable under Section 120B of the Indian Penal
Code, 1860 (IPC) read with Section 13(1) and 13(2) of the
Prevention of Corruption Act (for brevity, “the 1988 Act”).
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The constitution of the Special Courts was challenged before
this Court in J. Jayalalitha v. Union of India2, which
upheld the constitution of the Special Court. In the said
case, the two-Judge Bench observed thus:-
“Something more. The legislature has enacted the Prevention of Corruption Act and provided for a speedy trial of offences punishable under the Act in public interest as it had become aware of rampant corruption amongst the public servants. While replacing the 1947 Act by the present Act the legislature wanted to make the provisions of the Act more effective and also to widen the scope of the Act by giving a wider definition to the term “public servant”. The reason is obvious. Corruption corrodes the moral fabric of the society and corruption by public servants not only leads to corrosion of the moral fabric of the society but is also harmful to the national economy and national interest, as the persons occupying high posts in the Government by misusing their power due to corruption can cause considerable damage to the national economy, national interest and image of the country. It is in the context of public interest that we have to construe the meaning of the word “necessary” appearing in Section 3. Considering the object and scheme of the Act and the context in which it is used it would mean requirement in public interest and cannot be said to be so vague as not to provide a good guideline. Thus the exercise of discretion by the Government under Section 3 has to be guided by the element of requirement in public interest.”
(emphasis supplied)
2 (1999) 5 SCC 138
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We have reproduced the said passage, as we would be
saying something in this regard at a later stage.
3. As the exposé of facts would further reveal, the trial
continued before the Special Court but with the time rolling
by, in 2001 elections, the AIADMK headed by the 5th
respondent got elected and she was appointed as the Chief
Minister of Tamil Nadu. Her appointment was called in
question before this Court in B.R. Kapur v. State of Tamil
Nadu and Another3, wherein the majority speaking
through Bharucha, J. (as his Lordship then was) held thus:-
“54. We are satisfied that in the appointment of the second respondent as the Chief Minister there has been a clear infringement of a constitutional provision and that a writ of quo warranto must issue.
xxxx xxxxx xxxxx
58. We are of the view that a person who is convicted for a criminal offence and sentenced to imprisonment for a period of not less than two years cannot be appointed the Chief Minister of a State under Article 164(1) read with (4) and cannot continue to function as such.
59. We, accordingly, order and declare that the appointment of the second respondent as the
3 (2001) 7 SCC 231
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Chief Minister of the State of Tamil Nadu on 14-5-2001 was not legal and valid and that she cannot continue to function as such. The appointment of the second respondent as the Chief Minister of the State of Tamil Nadu is quashed and set aside.”
In pursuance of the aforesaid judgment, the 5th
respondent, ceased to hold the office of the Chief Minister of
Tamil Nadu w.e.f. 21.9.2001.
4. In the first part of 2002, the Election Commission of
India announced a bye-election of Andipatti constituency
and Ms. J. Jayalalithaa contested the said election and was
declared elected and eventually, she was sworn in as the
Chief Minister of Tamil Nadu on 2.3.2002. The trial in C.C.
No. 7 of 1997 went through some kind of a legal tumult
narration of which is not necessary. Suffice it to say, the
present appellant preferred two petitions under Section 406
of the Criminal Procedure Code (CrPC), 1973 seeking
transfer of CC No. 7 of 1997 and CC No. 2 of 2001 on the
file of 11th Additional Sessions Judge (Special Court I),
Chennai in the State of Tamil Nadu to a court of equal and
competent jurisdiction in any other State. The locus standi
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of the appellant was raised before this Court in K.
Anbazhagan v. Supdt. of Police4 and the Court upheld the
locus standi of the appellant in an application under Section
406 CrPC. It gave immense emphasis on the concept of free
and fair trial. To quote:-
“Free and fair trial is sine qua non of Article 21 of the Constitution. It is trite law that justice should not only be done but it should be seen to have been done. If the criminal trial is not free and fair and not free from bias, judicial fairness and the criminal justice system would be at stake shaking the confidence of the public in the system and woe would be the rule of law. It is important to note that in such a case the question is not whether the petitioner is actually biased but the question is whether the circumstances are such that there is a reasonable apprehension in the mind of the petitioner. In the present case, the circumstances as recited above are such as to create reasonable apprehension in the minds of the public at large in general and the petitioner in particular that there is every likelihood of failure of justice.”
5. Thereafter, the Court deliberated on all the issues and
transferred the case to the State of Karnataka. The
directions that were issued by the Court being apposite are
reproduced below:-
“In the result, we deem it expedient for the ends
4 (2004) 3 SCC 767
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of justice to allow these petitions. The only point that remains to be considered now is to which State the cases should be transferred. We are of the view that for the convenience of the parties the State of Karnataka would be most convenient due to its nearness to Tamil Nadu. Accordingly, the petitions are allowed. CC No. 7 of 1997 and CC No. 2 of 2001 pending on the file of the XIth Additional Sessions Judge (Special Court No. 1), Chennai in the State of Tamil Nadu shall stand transferred with the following directions:
(a) The State of Karnataka in consultation with the Chief Justice of the High Court of Karnataka shall constitute a Special Court under the Prevention of Corruption Act, 1988 to whom CC No. 7 of 1997 and CC No. 2 of 2001 pending on the file of the XIth Additional Sessions Judge (Special Court No. 1), Chennai in the State of Tamil Nadu shall stand transferred. The Special Court to have its sitting in Bangalore.
(b) As the matter is pending since 1997 the State of Karnataka shall appoint a Special Judge within a month from the date of receipt of this order and the trial before the Special Judge shall commence as soon as possible and will then proceed from day to day till completion.
(c) The State of Karnataka in consultation with the Chief Justice of the High Court of Karnataka shall appoint a senior lawyer having experience in criminal trials as Public Prosecutor to conduct these cases. The Public Prosecutor so appointed shall be entitled to assistance of another lawyer of his choice. The fees and all other expenses of the Public
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Prosecutor and the Assistant shall be paid by the State of Karnataka who will thereafter be entitled to get the same reimbursed from the State of Tamil Nadu. The Public Prosecutor to be appointed within six weeks from today.
(d) The investigating agency is directed to render all assistance to the Public Prosecutor and his Assistant.
(e) The Special Judge so appointed to proceed with the cases from such stage as he deems fit and proper and in accordance with law.
(f) The Public Prosecutor will be at liberty to apply that the witnesses who have been recalled and cross-examined by the accused and who have resiled from their previous statement, may be again recalled. The Public Prosecutor would be at liberty to apply to the court to have these witnesses declared hostile and to seek permission to cross-examine them. Any such application if made to the Special Court shall be allowed. The Public Prosecutor will also be at liberty to apply that action in perjury to be taken against some or all such witnesses. Any such application(s) will be undoubtedly considered on its merit(s).
(g) The State of Tamil Nadu shall ensure that all documents and records are forthwith transferred to the Special Court on its constitution. The State of Tamil Nadu shall also ensure that the witnesses are produced before the Special Court whenever they are required to attend that court.
(h) In case any witness asks for protection,
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the State of Karnataka shall provide protection to that witness.
(i) The Special Judge shall after completion of evidence put to all the accused all relevant evidence and documents appearing against them whilst recording their statement under Section 313. All the accused shall personally appear in court, on the day they are called upon to do so, for answering questions under Section 313 of the Criminal Procedure Code.”
6. After the case stood transferred, the State of Karnataka
in consultation with the Chief Justice of the High Court of
Karnataka, appointed Mr. B.V. Acharya as the Public
Prosecutor to conduct the case against the accused persons.
For certain reasons, before completion of the trial, Mr.
Acharya resigned and thereafter Bhavani Singh, the 4th
respondent, was appointed as the Special Public Prosecutor
vide notification dated 2.2.2013. The said order of
appointment was issued in exercise of powers conferred by
Section 24(8) of CrPC and Rule 30 of the Karnataka Law
Officers (Appointment and Conditions of Service) Rules,
1977. The notification appointing Bhavani Singh reads as
follows:-
“NOTIFICATION
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In obedience to the judgment dated 18-11-2003 passed by the Hon’ble Supreme Court of India in Transfer Petition No. 77-78/2003 (Criminal) in the matter of K. Anbazhagan v. The Superintendent of Police and others and in exercise of the powers conferred by Sub-section (8) of Section 24 of the Code of Criminal Procedure, 1973 (Central Act No. 2 of 1974) as amended by the Code of Criminal Procedure (Amendment)Act 1978 and Rule 30 of the Karnataka Law Officers (Appointment and Conditions of Service) Rules, 1977 Sri G. Bhavani Singh, Senior Advocate, House No. 746, Srinidhi, Kadugodi, White Field Railway Station, Bangalore-560067, is appointed as Special Public Prosecutor in place of Sh. B.V. Acharya on same terms to conduct Special C.C. No. 208/2004 (in the case of Kum. Jayalalithaa and others) pending on the file of XXXVIth Additional City Civil & Sessions Court (Special Court), Bangalore in pursuance.
Further, Sri Sandesh J. Chouta, Advocate, is continued to assist Sh. G. Bhavani Singh, Special Public Prosecutor, in this case.
By order and in the name of the Governor of Karnataka.
(K. Narayana) Deputy Secretary to Government (Admn-I)
Law, Justice and Human Rights Department.”
7. After the appointment of Bhavani Singh, the trial
continued and at that stage, the appellant filed an
application to assist the Public Prosecutor by making oral
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submissions and the written arguments. The learned
Special Judge, vide order dated 21.8.2013 permitted the
appellant to render such assistance to the Special Public
Prosecutor as he may require. The appellant objected to the
appointment of Bhavani Singh as Special Public Prosecutor
by making representations to the Government of Karnataka
as well as to the Chief Justice of the High Court of
Karnataka. As there was no response, he preferred W.P. No.
38075/2013 before the High Court of Karnataka assailing
the appointment of Bhavani Singh as a Special Public
Prosecutor and making further prayer for appointment of an
eminent lawyer in his place. During the pendency of the
writ petition, the appointment of the 4th respondent was
withdrawn on 26.8.2013 by the Government of Karnataka.
The reason ascribed was that there had been no proper
consultation with the Chief Justice of Karnataka High
Court. The order of withdrawal of the Special Public
Prosecutor was called in question in W.P.(Crl) No. 145/2013
and in pursuance of notice from this Court, a statement was
made that the impugned Notification would be withdrawn
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with a view to consult the Chief Justice of the High Court of
Karnataka and accordingly the writ petition was dismissed
having been rendered infructuous.
8. As the factual matrix would unfurl, certain
developments occurred and on 10.9.2013, the Government
of Karnataka withdrew the Notification dated 26.8.2013 and
asked the 4th respondent not to appear before the Special
Court. This compelled the accused persons to file W.P.(Crl)
No. 154/2013 before this Court. There was stay of the
operation of the Notification dated 10.9.2013 and on
14.9.2013, the Chief Justice of the Karnataka High Court
concurred with the view of the Government of Karnataka
that the 4th respondent should no longer continue as the
Public Prosecutor before the Special Court. Pursuant to the
said order on 16.9.2013, a consequential order was passed
withdrawing the appointment of the 4th respondent. This
led the accused persons to file W.P.(Crl.) No. 166/2013.
Both the writ petitions were heard together and decided by
the decision in J. Jayalalithaa and Others v. State of
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Karnataka and Others5, wherein this Court annulled the
impugned order removing the 4th respondent, the same
being unsustainable in law. The 4th respondent continued
during the trial and eventually the Special Court delivered
the judgment on 27.9.2014 convicting all the accused
persons. The elaborate submissions of the appellant were
taken into consideration by the learned Special Judge.
9. Being aggrieved by the judgment of conviction and
order of sentence, the accused persons preferred Criminal
Appeal No. 835-838 of 2014. As the State of Karnataka was
not arrayed as a party in criminal appeal, it did not appoint
any Public Prosecutor. It is interesting to note that the
State of Tamil Nadu exhibited enormous anxiety and on
29.9.2014, the Principal Secretary to the Government of
Tamil Nadu passed an order being requested by the
Directorate of Vigilance and Anti Corruption, Chennai to
engage the services of 4th respondent as the Special Public
Prosecutor to appear before the High Court of Karnataka for
and on behalf of the said Directorate in appeal/bail
5 (2014) 2 SCC 401
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application and other petition that might arise out of the
conviction of the accused persons. The order passed by the
Principal Secretary reads as follows:-
“ORDER
The Director, Vigilance and Anti-Corruption, Chennai, in the letter read above, has requested the Government that Thiru G. Bhavani Singh, Special Public Prosecutor, who has conducted the trial in Special C.C. No. 208/2004 before the Special Judge, 36th Additional City Civil & Ses- sions Court, Bengaluru, may be authorized to ap- pear before the High Court of Karnataka, Ben- galuru, on behalf of the Directorate of Vigilance and Anti-Corruption, Chennai in any Appeal/Bail petition/any other petition that may arise out of the order of the above Trial Court.
2. The Government after careful examination, have decided to authorize the Director, Vigilance and Anti-Corruption, Chennai to engage the ser- vices of Thiru G. Bhavani Singh, Special Public Prosecutor to appear before the Hon'ble Court of Karnataka, Bengaluru on behalf of the Direc- torate of Vigilance and Anti-Corruption, Chennai in any Appeal/Bail Petition/any other petition that may arise out the order dated 27-09-2014 on the above Trial Court in all hearings.
(By order of the Governor) Jatindra Nath Swain
Principal Secretary to Government”
10. Being empowered by the aforesaid order, the 4th
respondent appeared in the criminal appeals. The learned
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Single Judge declined to suspend the sentence awarded to
the accused persons and grant them bail. The said order
came to be assailed in SLP (Crl.) No. 7900 of 2014 wherein
this Court granted bail to the accused persons on
17.10.2014 and confirmed the same on 18.12.2014. The
order passed on 18.12.2014 reads as follows:-
“ORDER
Pursuant to the directions issued by this Court dated 17.10.2014, the Petitioners have been re- leased on bail.
Petitioners have filed an affidavit dated 10.12.2014 to the effect that the entire records of the trial court has been filed before the High Court. From the affidavit, it is clear that neces- sary records have been filed and the appeals are ripe for hearing.
Keeping in view the peculiar facts of the case, we request the learned Chief Justice of High Court of Karnataka to constitute a Special Bench on the date of reopening of the High Court for hearing of the appeals exclusively on day-to-day basis and dispose of the same as early as possible at any rate within three months.
Bail granted by us earlier is extended by another four months from today.
Call these special leave petitions on 17.04.2015.”
11. In the meantime, hearing of criminal appeals
proceeded in the High Court of Karnataka before the learned
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Single Judge. As the appellant was of the view that Bhavani
Singh could not have represented the prosecuting agency in
appeals, he submitted a representation on 24.12.2014 to
the Chief Secretary, Government of Karnataka to appoint a
senior lawyer but there was no response. The said situation
constrained him to file W.P. No. 742 of 2015 seeking
appropriate direction from the High Court of Karnataka.
The learned Single Judge disposed of the writ petition by
observing that when there is a direction by this Court to
hear the appeal on day to day basis before a Special Bench,
it would be appropriate to allow the proceedings in appeal to
continue notwithstanding the challenge as to the validity or
otherwise of the appointment of the 4th respondent. The
learned Single Judge further proceeded to hold that it is
open either to the State Government or the writ petitioner to
seek for clarification, if any, from this Court as to the
procedure that would be followed in making appointment of
a Special Public Prosecutor and assistant, if any, to
represent the State of Karnataka. Be it noticed, on behalf of
the State of Karnataka, which is reflectible from the order of
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the learned Single Judge, the following submission was put
forth:-
“The learned Advocate General would concur that the directions issued by the Supreme Court do not specify as to the procedure that is to be fol- lowed in the appointment of a Public Prosecutor before this Court in the pending appeals. How- ever, if the objective of the Supreme Court is to be understood in its broadest sense, it would have to be taken that the State Government of Karnataka, is entrusted with the task of conduct- ing the case at all stages, till it attains finality.
The learned Advocate General would however, submit that after the judgment was pronounced by the trial court, there has been no further con- sultation between the State Government of Kar- nataka and the Chief Justice of the High Court of Karnataka, as directed by the Supreme Court in making any appointment of a Special Public Pros- ecutor and there is no appointment order issued in favour of Respondent No. 5, afresh; he would further submit that if it is a formality to be com- plied with, the State Government, in consultation with the Chief Justice, shall take further steps. Since the State Government is not formally au- thorized to take any steps in so far as the ap- pointment of the prosecutor or counsel to con- duct the appeals, no steps have been taken.” (emphasis supplied)
12. Being dissatisfied with the judgment and order passed
by the learned Single Judge, the appellant preferred writ
appeal no. 260/2015 and the Division Bench recorded the
statement of the learned Advocate General, which is to the
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following effect:-
“Sri Prof. Ravi Verma Kumar, learned Advocate General, appearing for the State of Karnataka submitted that in pursuance of the directions issued by the Hon'ble Supreme Court in consultation with the Hon'ble Chief Justice, the State of Karnataka appointed a Senior Counsel as the Public Prosecutor, who conducted the trial. When the said Senior Counsel pleaded his inability to continue to appear, they appointed the 5th Respondent [Mr. Bhavani Singh] as the Public Prosecutor, who conducted the proceedings. Now the trial has ended in an order of conviction. Accused have preferred the appeals before this Court. As earlier, the appointment was made in pursuance of the direction issued by the Hon'ble Supreme Court, their understanding is that the obligation to appoint was only during trial. With the trial coming to an end with the order of conviction, that obligation ceases. As there is no fresh direction issued by the Hon'ble Supreme Court to appoint a Special Public Prosecutor, they have not made any such appointment. Though the State has appointed a Public Prosecutor under Section 24(1) of the Code, in the absence of any direction from the Apex Court, the said Public Prosecutor is not appearing in the pending appeals before the High Court. As the matter is sub-judice, they have not taken any further action in this matter." (emphasis supplied)
13. The Division Bench, after hearing the counsel for the
parties and discussing the law in the filed, came to hold
that the order passed on 29.9.2014 by the Principal
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Secretary to the Government of Tamil Nadu was non est
inasmuch as the transferor court had no power to appoint
Public Prosecutor under Section 24 of the CrPC in respect of
the case pending in the transferee Court. Interpreting
Section 301(1) CrPC, the Division Bench opined that the
language employed in the said provision would include an
appeal. The Division Bench laid emphasis on the words
“case” and “any court” and also referred to the language
used in Section 24(1) and Section 24(8) CrPC and opined
thus:-
“By practice, by virtue of the appointment made in Section 24(1) of the Code, the Public Prosecutor attached to that Court would prosecute the case. But, a Special Public Prosecutor appointed under Section 24(8) of the Code to a case and not to a Court where experience of not less than 10 years of practice as an Advocate is insisted upon, such Public Prosecutor not only is capable of conducting trial at the lowest level he is equally competent to prosecute the case in appeal or revision. During trial, if on an interlocutory order, a revision is filed either by the accused or to be filed by the State, if the interpretation canvassed by the appellant is to be accepted, the Special Public Prosecutor appointed under Section 24(8) of the Code cannot without a fresh appointment under Section 24(8) of the Code appear in that revisional Court. To appear in the revisional
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Court, one more order under Section 24(8) of the Code has to be made. That is not the intention of the legislature.”
Thereafter, the Division Bench referred to the
notification appointing the Public Prosecutor and ruled
that:-
“..... The language employed in the notification is unambiguous. The Public Prosecutor is appointed to conduct CC No. 7/1997 and CC No. 2/2001. As the name of the parties were not mentioned, in the brackets it is mentioned as regarding trial of Ms. Jayalalitha and others in the State of Karnataka. Not that the Public Prosecutor is appointed only for the purpose of the trial of the said case. However, in the subsequent notification appointing 5th respondent in the brackets it is mentioned, in the case of Kum. Jayalalitha and others. Therefore, 5th respondent is appointed as Special Public Prosecutor in the case of Kum. Jayalalitha and others. Accordingly, the 5th respondent by virtue of Section 301(1) of the Code is entitled to appear and plead in the appeals pending in the High Court in the case of Kum. Jayalalitha and others, without any written authority.
In the light of the aforesaid discussions, as the State Government has already appointed a Public Prosecutor under Section 24(1) of the Code to the High Court of Karnataka, the question of this Court issuing any direction to the State of Karnataka to appoint a Public Prosecutor under Section 24(1) of the Code would not arise.”
14. The first issue that arose before the two-Judge Bench
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was whether the State of Tamil Nadu could have appointed
Bhavani Singh as the Special Public Prosecutor for the
Karnataka High Court to defend the cause of the State.
Lokur, J. referred to the pronouncement by a three-Judge
Bench in Jayendra Saraswati Swamigal @
Subramaniam v. State of Tamil Nadu6 wherein at the
instance of the appellant therein, the matter had already
been transferred from the State of Tamil Nadu [See
Jayendra Saraswathy Swamigal (II) v. State of T.N.7]. After
transfer, the case was pending before the District and
Sessions Judge, Pondicherry. The Home Department of
State of Tamil Nadu had appointed one Special Public
Prosecutor and four Additional Special Public Prosecutors
for conducting the trial before the learned Sessions Judge at
Pondicherry. The High Court of Madras being moved had
ruled that offence having been committed in the State of
Tamil Nadu and the investigation having been done by the
Tamil Nadu police, the transferee court cannot normally
venture to appoint any Special Public Prosecutor to handle
6 (2008) 10 SCC 180 7 (2005) 8 SCC 771
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the case. Setting aside the order of the High Court, this
Court held:-
“12. As per the procedure prescribed under Sec- tion 24, the State of Tamil Nadu can appoint a Public Prosecutor to conduct criminal cases in any of the court in that State. Such powers can- not be exercised by the State Government to con- duct cases in any other State. Once the case is transferred as per Section 406 CrPC to another State, the transferor State no longer has control over the prosecution to be conducted in a court situated in a different State to which the case has been transferred. It is the prerogative of the State Government to appoint a Public Prosecutor to conduct the case which is pending in the ses- sions division of that State.
xxxxx xxxxx xxxxx
14. Sub-section (8) of Section 24 CrPC is a spe- cial provision regarding the appointment of a Special Prosecutor. This power can be exercised by the Central Government and the State Govern- ment for the purpose of any case or class of cases, and a person who has been in practice as an advocate for not less than ten years may be appointed as a Special Public Prosecutor. These powers are also to be exercised by the State Gov- ernment of the transferee court where the ses- sions case is pending. Of course, the transferee State can appoint any person having qualification prescribed under sub-section (8) of Section 24 CrPC.
xxxxx xxxxx xxxxx
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17. As is evident from various provisions of CrPC, the State Government of Tamil Nadu can only ap- point a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor under Section 24 CrPC to conduct the prosecution and appeal, or other proceeding in any criminal courts in respect of any case pending before the courts of Tamil Nadu and in respect of any case pending before the courts at Pondicherry, the State Government of Pondicherry is the appropri- ate Government to appoint Public Prosecutor, Ad- ditional Public Prosecutor or Special Public Pros- ecutor.”
15. Relying on the said decision and the directions given
by this Court while transferring the case, Lokur, J. opined
that the State of Tamil Nadu had no authority to appoint the
4th respondent as Public Prosecutor to contest the appeals
in the High Court. Banumathi, J. concurred with the view
expressed by Lokur, J. by holding thus:-
“As per the decision in Jayendra Saraswati Swamigal's case (supra), and the decision in 2004 3 SCC 767, only the State of Karnataka can appoint a Special Public Prosecutor. Order hastily passed by the State of Tamil Nadu on 29.09.2014 authorizing D.V. & A.C to engage Mr. Bhavani Singh as its Special Public Prosecutor is without authority and non-est in the eye of law.”
We have referred to this facet only to highlight the
anxiety expressed by the State of Tamil Nadu possibly being
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worried about the “borrowed troubles of future” and
forgetting the age old sagacious saying that “anxiety is the
poison of human life”.
16. The difference of opinion between the learned Judges
starts from here. The submission that was canvassed
before the Division Bench was to the effect that once the
State of Karnataka had appointed Bhavani Singh as the
Special Public Prosecutor under Section 24(8) and 301(1)
CrPC to conduct the trial after Mr. Acharya resigned, his
appointment would continue for the purpose of appeal.
Lokur, J. referring to the language of the Notification, which
we have already reproduced hereinbefore, and thereafter
analysed the various provisions i.e. Sections 24, 25, 25-A,
301(1) of the CrPC and came to hold thus:-
“89. The only reasonable interpretation that can be given to the scheme laid out in Sec- tions 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 in- quiry or trial or appeal. Similarly, a Public Prose- cutor appointed for a district and who is put in charge of a particular case in that district, can
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appear and plead in that case only in the district without any written authority whether that case is at the stage of 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 Mag- istrate, can appear and plead in that case only in the court of a Magistrate without any written au- thority whether that case is at the stage of in- quiry 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 writ- ten authority whether that case is at the stage of inquiry or trial or appeal. In other words, Sec- tion 301(1) of the Code enforces the 'jurisdic- tional' or 'operational' limit and enables the Pub- lic 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 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 Sec- tions 24, 25 and 25-A of the Code maintains a court or district specific character as well.”
17. After so stating, Lokur, J. referred to the Constitution
Bench judgment in State of Punjab v. Surjit Singh8 and
8 [1967] 2 SCR 347
Page 26
26
held:-
“93. The Constitution Bench referred to what would be an anomalous result if a Public Prose- cutor who had nothing to do with the particular case is entitled to file an application for with- drawal Under Section 494 of the old Code. By way of illustration, the Constitution Bench noted that if there are two Public Prosecutors appointed for a particular court and one of them is conduct- ing the prosecution in a particular case and de- sires to go on with the proceedings, it will be open to the other Public Prosecutor to ask for withdrawal from the prosecution. Similarly, it was illustratively observed that a Public Prosecu- tor appointed for case A before a particular court, can, by virtue of his being a Public Prosecutor file an application in case B, with which he has noth- ing to do, and ask for permission of the court to withdraw from the prosecution. Extrapolating this illustration to the facts of the present case, the result would certainly be anomalous if a Pub- lic Prosecutor appointed for case A before a par- ticular Court (read Mr. Bhavani Singh appointed for the case against the accused persons before the Special Court) can by virtue of being a Public Prosecutor appear in case B with which he has nothing to do (read the criminal appeals filed in the Karnataka High Court).
94. It is in this context that the Constitution Bench held that Section 494 of the old Code refers only to a Public Prosecutor in charge of a particular case and is actually conducting the prosecution who can take steps in the matter. Under the circumstances, though Mr. Bhavani Singh was entitled to conduct the trial before the Special Court in an appropriate manner, merely because he was in charge of the prosecution be- fore the Special Court did not entitle him to con-
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tinue with the 'case' in the criminal appeals filed in the High Court.
xxxxx xxxxx xxxxx
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 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.”
18. Lokur, J. in his Judgment has pointed out two
anomalous situations that are likely to arise if such an in-
terpretation is accepted. The first anomalous situation
which is pointed out by him 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 police officer can also be
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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, which, by
no stretch of imagination, can be the intent of
Section 301(1) of the Code. The other anomalous
situation which the learned Judge has taken note of is
that an appeal in the High Court arising out of a case in a
district, the Public Prosecutor for the High Court is en-
gaged. However, the Public Prosecutor in charge of that
case in the district or an Assistant Public Prosecutor (in-
cluding a police officer) in charge of that case in the court
of a Magistrate appears in the High Court in the appeal re-
lying, 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 dia-
metrically opposed to or in conflict with the stand of the
Public Prosecutor before the High Court and, therefore,
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such an interpretation cannot be placed on Section
301(1) of CrPC.
19. Banumathi, J. referred to the language employed in
Sections 24 and 301(1) of CrPC, relied upon the authority in
Shiv Kumar v. Hukam Chand and Anr.9, and came to
hold that:-
“Being placed 'in charge of a case', there is a spe- cific role attributed to the Special Public Prosecu- tor under Sub-section (8) of Section 24 Code of Criminal Procedure which distinguishes the task of Special Public Prosecutor from that of Public Prosecutors appointed under Sub-sections (1), (2) and (3) of Section 24 Code of Criminal Procedure and hardly there is any anomaly.”
After so stating, the learned Judge has referred to the
meaning of the term ‘case’ and the context in which it is
used, and expressed the opinion in following terms:-
“..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
9 (1999) 7 SCC 467
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30
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.”
20. First, we shall advert to this difference of opinion and
thereafter proceed to dwell upon the pertinent consequent
impact.
21. Section 2(u) of CrPC defines “Public Prosecutor”. It
reads as follows:-
“(u) “Public Prosecutor” means any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor.”
22. Section 24 CrPC deals with Public Prosecutors. For
our purpose, Section 24(1), 24(3) and 24(8) being relevant
are reproduced below:-
“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
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31
Central Government or State Government, as the case may be.
xxxxx xxxxx xxxxx
(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.
xxxxx xxxxx xxxxx
(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.
Provided that the Court may permit the victim to engage an advocate of this choice to assist the prosecution under this Sub-section.”
23. Sub-section (1) of Section 24 CrPC has been amended
in the State of Karnataka (vide Karnataka Act 20 of 1982
w.e.f. 3.9.1981). It provides thus:
“In Section 24, in sub-section (1), --
(i) Omit the words “or the State Government shall”;
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(ii) for the words “appoint a Public Prosecutor”, substitute the words “or the State Government shall appoint a Public Prosecutor”.”
24. Section 25A deals with the Directorate of Prosecution.
It reads as follows:-
“25A. Directorate of Prosecution. – (1) The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit.
(2) A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court.
(3) The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the Head of the Home Department in the State.
(4) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution. (5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (1), or as the case may be, sub-section (8), of section 24 to conduct cases in the High Court shall be subordinate to the Deputy Director of Prosecution.
(6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor
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appointed by the State Government under sub-section (3), or as the case may be, sub-section (8), of section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of section 24 shall be subordinate to the Deputy Director of Prosecution.
(7) The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify.
(8) The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor.”
25. Section 301(1) CrPC that deals with the appearance by
Public Prosecutors reads thus:-
“301. Appearance by Public Prosecutors.-(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.”
26. The aforesaid provisions have to be appreciated in a
schematic context. All the provisions reproduced
hereinabove are to be read and understood as one singular
scheme. They cannot be read bereft of their text and
context. If they are read as parts of different schemes, there
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34
is bound to be anomaly. Such an interpretation is to be
avoided, and the careful reading of the CrPC, in reality,
avoids the same. The dictionary clause in 2 (u) only refers
to a person appointed under Section 24 CrPC and includes
any person acting under the directions of a Public
Prosecutor. The class or status of the Public Prosecutor is
controlled by Section 24 and 25A of the CrPC. On a careful
x-ray of the provisions of Section 24 it is clearly
demonstrable that Section 24(1) has restricted the
appointment of Public Prosecutor for the High Court, for the
provision commences with words “for every High Court.”
Sub-section (3) deals with the appointment of Public
Prosecutor or Additional Public Prosecutor for the districts.
There is a procedure for appointment with which we are not
concerned. Sub-section (8) of section 24 deals with
appointment of Special Public Prosecutor for any case or
class of cases. A Public Prosecutor who is appointed in
connection with a district his working sphere has to be
restricted to the district unless he is specially engaged to
appear before the higher court. A Special Public Prosecutor
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35
when he is appointed for any specific case and that too for
any specific court, it is a restricted appointment. In this
context Section 25A of the Code renders immense
assistance. The State Government is under obligation to
establish directorate of prosecution. Section 25A clearly
stipulates that Public Prosecutor, Additional Public
Prosecutor and Special Public Prosecutor are appointed by
the State Government under sub-Section (1) or under
sub-Section (8) of Section 24 to conduct cases in the High
Court, shall be subordinate to the Director of Prosecution.
Sub-section (6) postulates that the three categories named
herein appointed by the State Government to conduct cases
in the district courts shall be subordinate to Deputy
Director of Prosecution. Thus, the scheme makes a
perceptible demarcation and compartmentalization for the
Public Prosecutor in the High Court and the district courts.
In this context we may refer with profit to Rule 30 of
Karnataka Law Officers (Appointments and Conditions of
Service) Rules 1977 (for short ‘the Rules”). The said rules
read as follows:-
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36
“30. Special Counsels – Subject to these rules the Government may appoint any advocate as a Special Counsel either for the conduct of a civil or criminal case or any appeal or proceeding connected therewith, pending in a court either within the State or in any other State or in the Supreme Court or in any High Court in the country.
(2) Before making such appointment the Government may consult the Advocate General if the appointment is to conduct a civil case or appeal and the Director of Prosecution if it is to conduct a criminal case or appeal.
(3) Remuneration payable to a special counsel shall be such as may be decided by Government in each case having regard to the nature of the case.”
27. The said rule as far as the State of Karnataka is
concerned has its own significance. It clearly lays down
that before making an appointment the Government may
consult the Advocate General if the appointment is to
conduct a civil case or appeal, and the Director of
Prosecution if it is to conduct a criminal case or appeal.
Sub-rule (1) of Rule 30 makes a distinction between a case
and an appeal and same is the language used in sub-rule
(2). We are only referring to this Rule to highlight that this
Rule has been framed by the State of Karnataka by way of
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abundant caution. This Rule clarifies that if any counsel is
to be appointed for the purpose of an appeal, the State
Government may do so after consulting the authorities
mentioned therein. There is nothing on record that the 4 th
respondent was appointed to defend the prosecution in
appeal in the High Court. The authority to appear before
the High Court as the analysis would show, is
fundamentally founded on the interpretation of Section 301
of CrPC. We have already reproduced Section 301 (1). In
this context we may refer with profit to Section 493 of the
old Code. It reads as follows:-
“493 - Public Prosecutor may plead in all Courts in cases under his charge, Pleaders privately instructed o be under his direction.- The Public Prosecutor may appear and plead without any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal, an if any private person instructs a pleader to prosecute in any Court any person in any such case, the Public Prosecution, and the pleader so instructed shall act therein, under his directions.”
28. In the aforesaid provision the legislature had
employed the words “before any Court in which any case of
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38
which he has charge”. In Bhimpappa Basappa Bhu
Sannavar v. Laxman Shivarayappa Samagouda and
others10 explaining the word “case” the court held:-
“The word “case” is not defined by the Code but its meaning is well-understood in legal circles. In criminal jurisdiction means ordinarily a proceed- ing for the prosecution of a person alleged to have committed an offence. In other contexts the word may represent other kinds of proceedings but in the context of the sub-section it must mean a proceeding which at the end results either in dis- charge, conviction, or acquittal of an accused person.”
29. In Surjit Singh (supra) while dealing with an
application for withdrawal from prosecution under Section
494 of the Code by the Public Prosecutor, though in a
different fact situation, observed that:-
“Section 492 only deals with the appointment of Public Prosecutors by the Government or by the District Magistrate, in circumstances mentioned therein and Section 493 specifically refers to the Public Prosecutor who is in charge of the case which is under enquiry, trial or appeal, when ap- pearing and pleading before such Court. Section 493 only dispenses with the Public Prosecutor having to file any written authority. That section also makes it clear that if any private person is instructing a pleader to prosecute any person “in any such case” — which must have reference to the case of which the Public Prosecutor is in
10 (1970) 1 SCC 665
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charge — nevertheless, the Public Prosecutor shall conduct the prosecution and the pleader is to act under his directions. Section 494 also, in our opinion, must refer only to the Public Prose- cutor who is in charge of the particular case in which he makes a request to withdraw from the prosecution. Some of these aspects have been al- ready adverted to by us earlier. If any Public Prosecutor, who had nothing to do with a partic- ular case, is held entitled to file an application under Section 494, in our opinion, the result will be very anomalous. For instance, if there are two Public Prosecutors appointed for a particular court, and one of the Public Prosecutors is con- ducting the prosecution in a particular case, and desires to go on with the proceedings, it will be open to the other Public Prosecutor to ask for withdrawal from the prosecution. Similarly, a Public Prosecutor appointed for case A, before a particular court, can, by virtue of his being a Public Prosecutor, file an application in case B, with which he has nothing to do, and ask for per- mission of the court to withdraw from the prose- cution.
The reasonable interpretation to be placed upon Section 494, in our opinion, is that it is only the Public Prosecutor, who is in charge of a particu- lar case and is actually conducting the prosecu- tion, that can file an application under that sec- tion, seeking permission to withdraw from the prosecution. If a Public Prosecutor is not in charge of a particular case and is not conducting the prosecution, he will not be entitled to ask for withdrawal from prosecution, under Section 494 of the Code.”
30. We have referred to this judgment in extenso only to
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show the responsibility of a Public Prosecutor in charge of a
case. Section 301 occurs in Chapter XXIV CrPC that deals
with the “General provisions as to Inquiries and Trials”.
Sections 24 (8) and 301 (1) when read together, needless to
say, confers a right on the Public Prosecutor who is in
charge of a case to appear and plead without having any
written authority. He remains and functions as the sole
authority in charge of the case. There can be no cavil over
the same. The core question is, whether “in charge of the
case” would include an appeal arising out of the said case in
the hierarchical system. Section 24 (1) deals with the
specific power of the Government to appoint Public
Prosecutor. Section 24(8) confers the power on the State
Government to appoint a Special Public Prosecutor for any
case or class of cases. To give an example, there can be a
batch of cases under the Prevention of Corruption Act
against number of persons arising out of different FIRs but
involving similar transactions. To have a proper trial the
Government is entitled to appoint a Special Public
Prosecutor. If the word “case” is given a meaning to include
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41
the appeal, it will be denuding the power of appointing
authority. The law does not so countenance. If the
Government by a notification appoints an eligible person
clearly stating that he shall conduct the trial as well as
pursue the appeal arising out of it, there will be no
difficulty. Therefore, much stress cannot be given on the
words “without any written authority” as used in Section
301. It can only mean that the Public Prosecutor once
engaged/appointed by the State, he can prosecute the
appeal without filing any formal authority for the said
purpose. It cannot be construed to the extent that solely
because he has been appointed in connection with the trial
case, he can appear before the High Court for which he has
not been appointed in pursuance of Section 24 (1) CrPC.
Section 301(1) CrPC cannot be stretched to that extent. In
that event, it would really lead to an anomalous situation.
A Public Prosecutor has to be specifically appointed for the
appeals or revisions or other proceedings in the High Court.
The anomalous situations, which have been highlighted by
Lokur, J. have our respectful concurrence. In fact, the Code
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42
does not remotely so envisage and the contextual reading of
all the provisions do not so convey. Therefore, we
ingeminate that a Public Prosecutor who is appointed to
conduct a case before the trial court cannot be deemed to be
appointed for the purpose of appeal arising therefrom solely
because of the language employed in Section 301(1) of
CrPC.
31. In view of our preceding analysis the 4th respondent
was not appointed by the State of Karnataka to argue the
appeals before the High Court. Lokur, J. after holding that
he was not authorised to represent the prosecution in the
Karnataka High in the appeals has opined thus:-
“That being so, the final hearing proceedings in this regard before the High Court are vitiated and the appeals filed by the accused persons being Criminal Appeals Nos. 835-838 of 2014 will have to be heard afresh by the High Court.”
Banumathi, J. as has been discussed has upheld the
appointment of 4th respondent and, therefore, she has
dismissed the appeal.
32. As we have already held that the 4th respondent could
not have appeared in the appeal, the issue that has become
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43
germane at this juncture is whether annulment of
appointment of Bhavani Singh as Public Prosecutor would
entail de novo hearing of the appeal. We have been apprised
that in pursuance of the order passed by this Court the
appeal has been heard on day to day basis. The learned
Judge has already heard the appeal and is in the process of
preparation of the judgment. The appellant had submitted
written note of submissions before the trial court which is
more than 400 pages. The allegations against Bhavani
Singh had been dropped by the appellant in course of
hearing of the writ petition and hence, we refrain from
delving into such allegations.
33. Be it noted, the appeal has been heard by the learned
Single Judge of the High Court and the appeal assails the
judgment of conviction and order of sentence passed under
the various provisions of the 1988 Act. It needs no special
emphasis that the appellate court has the sacrosanct duty
to evaluate, appreciate and consider each material aspect
brought on record before rendering the judgment. That is
sacred duty of a Judge; and the same gets more
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44
accentuated when the matter is in appeal assailing the
defensibility of the conviction in a corruption case.
34. The case under the 1988 Act has its own significance.
In Niranjan Hemchandra Sashittal v. State of
Maharashtra11, it has been held thus:-
“It can be stated without any fear of contradiction that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. It is worth noting that immoral acquisition of wealth destroys the energy of the people believing in honesty, and history records with agony how they have suffered. The only redeeming fact is that collective sensibility respects such suffering as it is in consonance with the constitutional morality.”
35. In Subramanian Swamy v. CBI12, the Constitution
Bench while declaring Section 6-A of the Delhi Special Police
Establishment Act, 1946 unconstitutional, observed that:-
“Corruption is an enemy of the nation and tracking down corrupt public servants and punishing such persons is a necessary mandate of the PC Act, 1988. It is difficult to justify the classification which has been made in Section
11 (2013) 4 SCC 642 12 (2014) 8 SCC 682
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45
6-A because the goal of law in the PC Act, 1988 is to meet corruption cases with a very strong hand and all public servants are warned through such a legislative measure that corrupt public servants have to face very serious consequences.”
And again,
“Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or position of public servant does not qualify such public servant from exemption from equal treatment. The decision-making power does not segregate corrupt officers into two classes as they are common crimedoers and have to be tracked down by the same process of inquiry and investigation.”
36. We have referred to the aforesaid two authorities only
to highlight the gravity of the offence. We are absolutely
sure that the learned Single Judge, as the appellate Judge,
shall keep in mind the real functioning of an appellate
court. The appellate court has a duty to make a complete
and comprehensive appreciation of all vital features of the
case. The evidence brought on record in entirety has to be
scrutinized with care and caution. It is the duty of the
Judge to see that justice is appropriately administered, for
that is the paramount consideration of a Judge. The said
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46
responsibility cannot be abdicated or abandoned or
ostracized, even remotely, solely because there might not
have been proper assistance by the counsel appearing for
the parties. The appellate court is required to weigh the
materials, ascribe concrete reasons and the filament of
reasoning must logically flow from the requisite analysis of
the material on record. The approach cannot be cryptic. It
cannot be perverse. The duty of the Judge is to consider the
evidence objectively and dispassionately. The reasonings in
appeal are to be well deliberated. They are to be resolutely
expressed. An objective judgment of the evidence reflects
the greatness of mind – sans passion and sans prejudice.
The reflective attitude of the Judge must be demonstrable
from the judgment itself. A judge must avoid all kind of
weakness and vacillation. That is the sole test. That is the
litmus test. This being the position of a Judge, which is
more elevated as the appellate Judge, we are of the
considered opinion that there is no justification for
rehearing of the appeal as the matter has been heard at
length and reserved for verdict. The appellant has
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47
submitted his written note of submissions before the trial
court and, therefore, we are inclined to permit him to file a
written note of submissions within 90 pages before the
learned Single Judge/Appellate Judge. The State of
Karnataka, which is the prosecuting agency, is granted
permission to file written note of submissions within 50
pages. The written submissions be filed latest by
28.4.2015. The written note of submissions filed before the
trial court and the High Court along with written note of
submissions of State of Karnataka shall be considered by
the learned Single Judge and the consideration should be
manifest in the judgment. Written note of submissions, if
any, by the 4th respondent shall not be considered by the
learned Judge. A copy of our judgment be sent by the
Registry of this Court in course of the day to the Registrar
General of the High Court of Karnataka so that he can place
the judgment before the learned Single Judge for perusal
and guidance.
37. In view of our preceding analysis, we proceed to record
our conclusions in seriatim:-
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48
(a) The State of Tamil Nadu had no authority to appoint
the 4th respondent, Bhavani Singh as the Public Prosecutor
to argue the appeal.
(b) It is the State of Karnataka which is the sole
prosecuting agency and it was alone authorized to appoint
the Public Prosecutor.
(c) The appointment of 4th respondent, Bhavani Singh as
the Public Prosecutor for the trial did not make him eligible
to prosecute the appeal on behalf of prosecuting agency
before the High Court.
(d) The appointment of a Public Prosecutor, as envisaged
under Section 24(1) CrPC in the High Court is different than
the appointment of a Public Prosecutor for the District
Courts; and that the Notification appointing the 4th
respondent did not enable him to represent the State of
Karnataka in appeal.
(e) Though the appointment of the 4th respondent is bad
in law, yet there is no justification to direct for de novo
hearing of the appeal, regard being had to the duties of the
appellate Judge, which we have enumerated hereinbefore,
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49
especially in a case pertaining to the Prevention of
Corruption Act, 1988;
(f) The appellant as well as the State of Karnataka are
entitled to file their written note submissions within the
framework, as has been indicated in para 36.
(g) The learned Appellate Judge, after receipt of our
judgment sent today, shall peruse the same and be guided
by the observations made therein while deciding the appeal.
38. Consequently, the appeal stands disposed of in above
terms.
.............................J. [Dipak Misra]
..........................., J. [R.K. Agrawal]
..........................., J. [Prafulla C. Pant]
New Delhi April 27, 2015