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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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Page 16

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  

Crl.Appeal No._______/2015 etc.                                        Page 16 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 17

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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Page 18

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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Page 19

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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Page 20

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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Page 21

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

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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.  

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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

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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  

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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

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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:

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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

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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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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

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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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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  

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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

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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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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

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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”;  

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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.

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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.

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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

Crl.Appeal No._______/2015 etc.                                        Page 78 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 79

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

Crl.Appeal No._______/2015 etc.                                        Page 79 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 80

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

Crl.Appeal No._______/2015 etc.                                        Page 80 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 81

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  

Crl.Appeal No._______/2015 etc.                                        Page 81 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 82

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  

Crl.Appeal No._______/2015 etc.                                        Page 82 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 83

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  

Crl.Appeal No._______/2015 etc.                                        Page 83 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 84

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  

Crl.Appeal No._______/2015 etc.                                        Page 84 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 85

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  

Crl.Appeal No._______/2015 etc.                                        Page 85 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 86

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  

Crl.Appeal No._______/2015 etc.                                        Page 86 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 87

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)  

Crl.Appeal No._______/2015 etc.                                        Page 87 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 88

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  

Crl.Appeal No._______/2015 etc.                                        Page 88 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 89

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  

Crl.Appeal No._______/2015 etc.                                        Page 89 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 90

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.     

Crl.Appeal No._______/2015 etc.                                        Page 90 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 91

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  

Crl.Appeal No._______/2015 etc.                                        Page 91 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

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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.

Page 93

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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Page 94

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.

Page 95

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.”   

Crl.Appeal No._______/2015 etc.                                        Page 95 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 96

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.

Page 97

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.

Page 98

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  

Crl.Appeal No._______/2015 etc.                                        Page 98 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 99

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  

Crl.Appeal No._______/2015 etc.                                        Page 100 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 101

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).

Crl.Appeal No._______/2015 etc.                                        Page 101 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 102

(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  

Crl.Appeal No._______/2015 etc.                                        Page 102 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 103

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.

Page 104

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,  

Crl.Appeal No._______/2015 etc.                                        Page 104 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 105

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  

Crl.Appeal No._______/2015 etc.                                        Page 105 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

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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  

Crl.Appeal No._______/2015 etc.                                        Page 106 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

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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  

Crl.Appeal No._______/2015 etc.                                        Page 107 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

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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  

Crl.Appeal No._______/2015 etc.                                        Page 108 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

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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  

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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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Page 125

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  

Crl.Appeal No._______/2015 etc.                                        Page 130 of 137 (Arising out of SLP (Crl.) No.1632/2015) etc.

Page 131

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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Page 134

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.       

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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.      

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