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2006 DIGILAW 2294 (RAJ)

Nemi Chand v. State of Rajasthan

2006-07-20

SHIV KUMAR SHARMA

body2006
Honble SHARMA, J.–Heard rival submissions. (2). The appellant seeks to challenge the order dated March 5, 2003 of the learned Single Judge, whereby the writ petition assailing the appointment of Shri Mani Ram Sharma, Advocate as Special Public Prosecutor to handle the criminal case, was dismissed. (3). Brief resume of the case is that Shri Mani Ram Sharma, Advocate, who already represented the complainant, was appointed as Special Public Prosecutor by the State Government u/S. 24(8) of the Code of Criminal Procedure in a criminal case bearing F.I.R. No. 15/2000 registered at Police Station Sadar, Jhunjhunu u/S. 147, 148, 149, 365, 302 IPC. Contention of learned counsel before the learned Single Judge was that the State Government while appointing Shri Mani Ram Sharma as Special P.P. did not apply its mind. Shri Mani Ram Sharma had already appeared on behalf of the complainant and in view of the fair trial, his appointment was bad in law. Learned Single Judge did not agree with the submissions an dismissed the writ petition. (4). Calling in question the afore-quoted orders learned counsel for the appellant placed reliance on Madho Singh & Anr. vs. State of Rajasthan & Ors. (2002 Criminal Law Journal, 1694) and Varada Rama Mohana Rao vs. State of A.P. (2004 (4) Supreme Court Cases 427). (5). In Madho Singh vs. State of Rajasthan (supra), learned Single Judge of this Court indicated in para 45 thus:- ``There is nothing on record to show that any authority had applied its mind. It is also doubtful whether the order could have been passed by the Honble Minister on the same date when the application was moved, particularly in view of the fact that the application was made to the Law Secretary and not to the Honble Minister. Whether the order could have been passed by the Honble Minister or by the Law Secretary, also remains unexplained. Even if the Honble Minister was competent to pass the order, the application should have reached to him through proper channel after being processed by the Law Department. No comments/remarks have been called from any person nor any inquiry has been made on the ground taken in the application. Thus, it is a clear case of non-application. Thus, it is a clear case of non- application of mind by the Statutory Authority. No comments/remarks have been called from any person nor any inquiry has been made on the ground taken in the application. Thus, it is a clear case of non-application. Thus, it is a clear case of non- application of mind by the Statutory Authority. The said authority did not consider it proper to record any reason as what was the public interest involved in passing such order and what were the special features of the case which warranted appointment of Special Public Prosecutor. (6). Having scanned the material on record, we notice that District Magistrate, Jhunjhunu made a request to the State Government vide letter dated October 21, 2002 to appoint Special Public Prosecutor in the case. Panel of three advocates namely Mani Ram Sharma, Beerbal Singh Gajraj and Ved Prakash Kulhari was sent. Beerbal Singh Gajraj and Ved Prakash expressed their inability to conduct the case, therefore, the State Government appointed Shri Mani Ram Sharma u/S. 24(8) of the Code of Criminal Procedure as a Special Public Prosecutor. (7). Section 24(8) of the Code of Criminal Procedure provides as under:- ``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. (8). Undeniably Shri Mani Ram Sharma, Advocate has practiced as an Advocate for more than 10 years and his appointment was made pursuant to the mandate of sub-section (8) of Section 24. In our opinion the personal opinion of Mani Ram Sharma has no placed in the decision making process of the Court as the manner he presents his case is always subject of judicial scrutiny of the trial Court. The appointment of Mani Ram Sharma as Special P.P. would not cause any prejudice to the appellant or the decision making process of the trial. (9). The appointment of Mani Ram Sharma as Special P.P. would not cause any prejudice to the appellant or the decision making process of the trial. (9). Their Lordships of the Supreme Court in Varada Rama Mohana Rao vs. State of A.P. (supra) propounded in para 7 of the judgment as under:- ``That apart, it is to be noted that the appellant has not been able to establish how the conducting of a criminal trial by a counsel who according to the accused is inimically disposed towards him would prejudice his trial because the learned counsel does not give evidence in this case and the manner in which he presents his case is always subject to judicial scrutiny by the court concerned. His personal opinion has no place in the decision-making process of the court. At the most he may present his case with vehemence and with a touch of vengeance but this would not in any manner either influence the decision-making process of the court or would cause any prejudice to the accused in his defence. Thus, however, does not mean that we approve the fact that a person who is admittedly on bad terms with the accused should be appointed as prosecuting counsel unless for good reasons. Maybe, in this case in view of the strained relationship between the parties, the learned prosecutor could have rescued himself but that was a choice left entirely to him and that by itself does not prejudice the trial in any manner. The learned counsel for the appellant also has failed to show any prejudice that has occurred to the accused because of the selection of the prosecutor. (10). The contention of learned counsel for the appellant that appointment of advocate representing the complainant as Special P.P. would affect the fair trial is devoid of merit, when Advocate on behalf of the complainant can address the Court alongwith the Public Prosecutor, he can also be appointed as Special P.P. The only embargo provided by Section 24(8) is that he should have 10 years standing as an advocate. (11). In the instant case as already noticed, panel of three advocates was forwarded by the District Magistrate and the competent authority on considering the said panel appointed Shri Mani Ram Sharma as Special P.P. under Section 24(8) Cr.P.C. We see no illegality in the said order. (12). (11). In the instant case as already noticed, panel of three advocates was forwarded by the District Magistrate and the competent authority on considering the said panel appointed Shri Mani Ram Sharma as Special P.P. under Section 24(8) Cr.P.C. We see no illegality in the said order. (12). For these reasons, the appeal being devoid of merit, stands dismissed.