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2002 DIGILAW 627 (MAD)

T. J. Shine v. Government of Tamil Nadu

2002-07-16

V.KANAGARAJ

body2002
Judgment : 1. Writ Petition praying to issue a Writ of Certiorari calling for the records from the respondent relating to the impugned order G.O. (1) No.534, Home (Courts VI) Department dated 9.5.2002 and quash the same. 2. In the affidavit filed in support of the writ petition, the petitioner would submit that he is a member of CPI (M) Iduki District, Kerala and also a Treasurer of High range Thottam Thozhilalar Union; that at the instances of the owner of the Cardaman Estate viz., Ayya Naidu, a false complaint was given implicating the petitioner and others in a criminal case in which they were charge sheeted under various Sections of the I.P.C. and the case has been committed by the Court of Judicial Magistrate No.II, Usilampatti to the Court of Assistant Sessions Judge, Periyakulam and from there the said case has been transferred to the Fast Track Court where it is pending trial in S.C.No. 48 of 1994. 3. The petitioner would further submit that one of the witnesses filed a petition seeking permission of the Court under Section 24 of the Cr.P.C. to assist the prosecution, that the Additional Public Prosecutor also filed a counter in support of the petition and to allow the same; that to their shock and surprise on an order dated 9.5.2002, the Government of Tamil Nadu appointed Mr. M.S.Kandasami, as a special Public Prosecutor to conduct the said case on behalf of the prosecution; that the order does not state any reason for appointing the Special Public Prosecutor and it is discriminatory and violative of Articles 14 and 21 of the Constitution of India and it is liable to be quashed. On such reasons, the petitioner would file the writ petition praying for the relief extracted supra. 4. On such reasons, the petitioner would file the writ petition praying for the relief extracted supra. 4. When the above writ petition was taken up for consideration in the presence of the learned counsel for the petitioner and the learned Additional Government Pleader (Writs) taking notice on behalf of the Government, upon hearing their arguments and in consideration of the pleadings of the writ petition and having regard to the materials placed on record, it could be gathered that the petitioner, who is one of the accused in the Sessions Case No.48 of 1994 on the file of the Fast Track Court, Periyakulam objecting to G.O.(1) NO.534 HOME (COURTS VI) Department, dated 9.5.2002, issued by the Home Department, Government of Tamil Nadu thereby appointing Mr.M.S.Kandasami as the Special Public Prosecutor to conduct the case on behalf of the prosecution and seeking to quash the same, has come forward to file the above writ petition. 5. Learned counsel appearing on behalf of the petitioner submitted that it is a case registered against the Labour force without any truth attached to the same in order to quell their union activities; that there is absolutely no necessity for a Special Public Prosecutor to be appointed to project the prosecution's case and would cite the decision of the Honourable Supreme Court reported in Mukul Dalal and others v. Union of India and others, 1988 (3) S.C.C. 144 wherein it has been held that: "The request for appointment of a Special Public Prosecutor should be properly examined by the Remembrancer of Legal Affairs on the basis of guidelines prescribed or to be prescribed and only when he is satisfied that the case deserves the support of a Public Prosecutor or a Special Public Prosecutor that such a person should be appointed to be in charge of the case. There may be instances where a case instituted on a private complaint is really a public cause. In such a case the prosecution though initiated by a private individual is really one which should be taken over by the State. There may also be appropriate for the State to support the prosecution by appointing a Public Prosecutor or a Special Public Prosecutor to look after the case. Similarly there may be cases where a powerful complainant may have begun a proceeding to victimize his opponent. There may also be appropriate for the State to support the prosecution by appointing a Public Prosecutor or a Special Public Prosecutor to look after the case. Similarly there may be cases where a powerful complainant may have begun a proceeding to victimize his opponent. If in such a case the State concedes to the request for appointment of a Special Public Prosecutor there will be travesty of justice. Therefore, it would not be appropriate to accept the position that whenever an application is made it should be allowed and a Special Public Prosecutor should be appointed. The primacy given to the Public Prosecutor under the scheme of the Code has a social purpose and the same would be lost if the procedure adopted by Rule 22 of Maharashtra Rules is accepted". 6. Learned counsel for the petitioner would also cite the Order passed by the Rajasthan High Court, reported in Madho Singh and another v. State of Rajasthan & others, 2002 Crl.L.J. 1694 wherein the said Court has held that:- "the appointment of the Public Prosecutor cannot be made automatically on the application of the complainant and there have to be special reasons which should be recorded in writing as to why deviation from the General Rule is made appointing the Special Public Prosecutor. The application has to be properly examined by the authority and on being satisfied on the basis of the material on record, the special Public Prosecutor can be appointed. Without application of mind, if an order is passed it may amount to arbitrariness. Such appointment can be made only when public interest so demands". 7. The judgment cited supra requires the application to be properly examined by the authority and on being satisfied on the basis of the materials placed on record to appoint the special public prosecutor. So far as the case in hand is concerned, the report of the Superintendent of Police cited in the G.O. would be sufficient to hold that only in consideration of such materials made available, the Government have passed orders appointing the special public prosecutor and it cannot be said that the order is either arbitrarily made or without application of mind. 8. 8. A careful study made into the Government order impugned dated 9.5.2002 would reveal, as it could be seen from the reference cited therein, that only based on the representation made on the part of the Superintendent of Police, Periyakulam in C.No.G2/4927/2002 dated 16.3.2002 and consequent to the said representation, the Government have decided to pass the order appointing Mr.M.S.Kandasami, the retired Principal Judge, City Civil Court, Chennai as a special Public Prosecutor to conduct the case of the prosecution on behalf of the Government. 9. Factually, it is not correct on the part of the petitioner to have pleaded or argued by his counsel that merely based on a petition filed by one of the witnesses seeking permission of the Court under Section 24 of the Cr.P.C., the appointment of the special Public Prosecutor has been made. 10. Further more, even the regular Additional Public Prosecutor, in his counter had made it clear that the appointment of the Special Public Prosecutor is necessary in S.C.No.48 of 1994 and had prayed to allow the said application and therefore, it is not only based on the strength of the counter filed before the lower Court by the regular Additional Public Prosecutor but also based on the recommendations of the Superintendent of Police, Periyakulam, the impugned G.O. had come to be passed by the Government/respondent under Section 24 (8) of the Cr.P.C. which is clear to the effect of the decision of the appointment of the Special Public Prosecutor which is within the discretion and the parameters fixed therein. 11. It is not the case of the petitioner that the appointment has been effected in violation of the requirements of Section 24 (8) of the Cr.P.C. So long as order has been passed in adherence of the concerned provision of law, it cannot be said that the same is either arbitrary or highhanded but only in obedience to the said Section. There does not also seem to be any motive behind the passing of the impugned G.O. nor any strong motive is attributed by the petitioner and therefore, the impugned G.O. passed by the Government of Tamil Nadu appointing Mr. There does not also seem to be any motive behind the passing of the impugned G.O. nor any strong motive is attributed by the petitioner and therefore, the impugned G.O. passed by the Government of Tamil Nadu appointing Mr. M.S.Kandsami, retired Principal Judge, City Civil Court, Madras as the Special Public Prosecutor to conduct the Sessions Case No.48 of 1994 in the Fast Tract Court, Periyakulam, does not require any interference of this Court and therefore, the above writ petition only becomes liable to be dismissed since the same is devoid of merits. 12. In result, The above writ petition is devoid of merits and the same is dismissed as such. No costs. Consequently, WP.M.P. No. 30751 and 30752 of 2002 are also dismissed.