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2010 DIGILAW 501 (MP)

Mayuresh S/o Sharad Vyas v. State of M. P.

2010-04-29

SHANTANU KEMKAR

body2010
JUDGMENT : With consent heard finally. 2. Feeling aggrieved by the order dt. 28-4-2009 (Annexure P/l) passed by the Secretary, Law and Legislative Department of the State Government thereby appointing the third respondent as Special Public Prosecutor in Sessions Trial No. 197/2009 pending before the Sessions Judge, Ujjain, the petitioner/accused has filed this petition. 3. Briefly stated Police Madhavnagar, Ujjain has filed a challan against the petitioner in Crime No. 804/2008 before the Chief Judicial Magistrate, Ujjain for committing offence under sections 302, 394/34 the Indian Penal Code. On 23-3-2009 before committal of the case by the Chief Judicial Magistrate to the Sessions Court, the complainant/intervenor submitted an application (Annexure P/2) before the Collector/District Magistrate, Ujjain for appointment of the third respondent as Special Public Prosecutor for conducting the said case. On receipt of the said application the Collector, Ujjain sought report from the Dy. Director Prosecution, Ujjain. The Deputy Director vide his letter dt. 25-3-2009 (Annexure P/4) recommended for appointment of the third respondent as Special Public Prosecutor for conducting the said case. The Collector agreeing with the proposal and recommendation of the Deputy Director Prosecution, Ujjain forwarded the same vide letter dt. 25-3-2009 (Annexure P/5) to the State Government with his recommendation for the same. Thereafter in exercise of its powers under section 24(8) of the Criminal Procedure Code (for short Cr.P.C.) the impugned order dt. 28-4-2009 (Annexure P/l) has been issued by the first respondent appointing the third respondent as Special Public Prosecutor. Aggrieved, the petitioner has filed this petition. 4. According to the petitioner the impugned order dt. 28-4-2009 (Annexure P/l) is illegal and arbitrary. He submitted that the third respondent has been engaged as Special Public Prosecutor by the State Government without assigning any valid reasons. It has been alleged that in the absence of any allegation that the regular Public Prosecutor is not competent or is not able to contest the case on behalf of the State Government it was not open for the first respondent to have appointed the third respondent as Special Public Prosecutor. It has been alleged that in the absence of any allegation that the regular Public Prosecutor is not competent or is not able to contest the case on behalf of the State Government it was not open for the first respondent to have appointed the third respondent as Special Public Prosecutor. In support of his contentions the petitioner has placed reliance on the Division Bench judgment passed by this Court in the case of Sunil Kumar @ Chander Salariya vs. State of M. P. and others, 1992 MPLJ 772 , judgment of Single Bench of this Court in the case Poonamchand Jain vs. State of M. P. and others, 2001 Cri.L.J. 3113 = 2001(2) MPLJ 61 . He also placed reliance on the judgment of the Supreme Court in the case of Mukul Dalai and others vs. Union of India and others, 1988(3) SCC 144 . 5. The respondent Nos. 1 and 2 have filed reply and have stated that the third respondent has been appointed as a Special Public Prosecutor by the State Government in exercise of powers under section 24(8) of the Criminal Procedure Code which empowers the State Government to appoint Special Public Prosecutor who has been in practice as an Advocate for not less than ten years. It has been stated that the third respondent Advocate is possessing the requisite years of practice necessary for such appointment. According to the respondents in the absence of any prejudice to the petitioner it is not open for him to challenge the appointment made by the State Government in exercise of powers vested in it. In support the respondents as also the intervenor/complainant father of the deceased victim have relied upon the recent judgment of the Supreme Court in the case of State of Maharashtra and others vs. Prakash Prahlad Patil and others, 2009 AIR SCW 6985. 6. Having heard learned counsel for the parties and having gone through averments made in the petition and the reply as also considering the judgments relied upon by them I find no merit in this writ petition. 7. True it is in case of Sunil Kumar vs. State of M. P. and others (supra) a Division Bench of this Court has held that Special Public Prosecutor can be appointed by the State Government only in exceptional cases and for the reasons to be recorded. 7. True it is in case of Sunil Kumar vs. State of M. P. and others (supra) a Division Bench of this Court has held that Special Public Prosecutor can be appointed by the State Government only in exceptional cases and for the reasons to be recorded. In the case of Poonamchand Jain vs. State of M. P. and others (supra) the learned Single Judge of this Court placing reliance on the Division Bench judgment of this Court in the case of Sunil Kumar vs. State of M. P. and others (supra) held that in the absence of special circumstances existing for appointment for Special Public Prosecutor the appointment cannot be made. The Supreme Court in the case of Mukul Dalai and others vs. Union of India and others (supra) has held that the Special Public Prosecutor cannot be appointed on mere asking of private complainant. The request of the private complainant for such appointment must be examined by Legal Remembrancer on the basis of the guidelines prescribed or to be prescribed and decision be taken accordingly. However, recently the Supreme Court had an occasion to examine the question of appointment of Special Public Prosecutor in the case of State of Maharashtra and others vs. Prakash Prahlad Patil and others (supra) in which taking note of the view expressed by the Supreme Court in the case of Mukul Dalai and others vs. Union of India and others (supra), the Supreme Court while upholding the appointment of Special Public Prosecutor has observed thus: "The appointment of respondent No. 3 appears to have been made on the basis of a petition filed by the brother and the son of the victim. This was a case where two persons were killed. Several accused persons are facing trial. Though initially it was not disclosed by respondent No. 1 that he is related to one of the accused, but later on the fact surfaced during the hearing of the matter before the High Court. Then respondent No. 1 took the stand that he was social worker and in greater public interest the writ petition was filed. The State opposed the petition on several grounds; primarily indicating that the scope of judicial review of the executive, administrative and quasi-judicial action, was extremely limited and this is not a case where any interference was called for. Then respondent No. 1 took the stand that he was social worker and in greater public interest the writ petition was filed. The State opposed the petition on several grounds; primarily indicating that the scope of judicial review of the executive, administrative and quasi-judicial action, was extremely limited and this is not a case where any interference was called for. It appears from the impugned order of the High Court that the original file was called for and scanned as if the High Court was hearing an appeal against a decision taken. The scope for judicial review has been examined by this Court in several x-Bases. It has been consistently held that the power of judicial review is not intended to assume a supervisory role or don the robes of omnipresent. The power is not intended either to review governance under the rule of law nor do the Courts step into the areas exclusively reserved by the supreme lex to other organs of the State. A mere wrong decision, without anything more, in most of the cases will not be sufficient to attract the power of judicial review. The supervisory jurisdiction conferred upon a Court is limited to see that the authority concerned functions within its limits of its authority and that its decision do not occasion miscarriage of justice." The Supreme Court further observed in paras 3 and 4 of the judgment that: "3. The Courts cannot be called upon to undertake governmental duties and functions. Courts should not ordinarily interfere with a policy decision of the State. While exercising power of judicial review the Court is more concerned with the decision making process than the merit of the decision itself. 4. In the instant case, acting on a petition filed by close relatives of a victim decisions have been taken at various levels. The High Court was not justified to pick up stray sentences from the records to conclude that there was non-application of mind. In any event, the appointment of a Special Public Prosecutor to conduct a proceeding does not in any way cause prejudice to the accused. In that sense the writ petition before the High Court was wholly misconceived. The impugned judgment of the High Court is set aside." 8. In any event, the appointment of a Special Public Prosecutor to conduct a proceeding does not in any way cause prejudice to the accused. In that sense the writ petition before the High Court was wholly misconceived. The impugned judgment of the High Court is set aside." 8. In the present case as would be clear from correspondence between the Deputy Director Prosecution, Ujjain, District Collector, Ujjain and the first respondent Secretary, Law and Legislative Department, Government of M. P., that the decision to appoint the third respondent as a Special Public Prosecutor has been taken at various levels on the basis of an application submitted by father of the deceased victim. In the decision making process I find no arbitrary exercise of powers nor it is a case that the State Government has acted beyond its jurisdiction causing miscarriage of justice. It has been observed by the Supreme Court in the case of State of Maharashtra vs. Prakash Prahlad Patil and others (supra) that in such matters the scope for judicial review is not intended to assume a supervisory role or don the robes of omnipresent. The power is not intended either to review governance under the rule of law nor do the Courts step into the areas exclusively reserved by the supreme lex to other organs of the State. The supervisory jurisdiction conferred upon a Court is limited to see that the authority concerned functions within its limits of its authority and that its decision do not occasion miscarriage of justice. The petitioner has not made any averment or allegation about mala fide nor he has made any averment prejudice that will cause to him. The decision which has been taken as aforesaid, at various levels, cannot be interfered into merely because the complainant who is father of the deceased victim has sought for appointment of the third respondent as Special Public Prosecutor. 9. In the circumstances in my considered view the law laid down by the Supreme Court in the case of State of Maharashtra vs. Prakash Prahlad Patil (supra) which governs the field fully applies to the facts of the present case. As a result no case for interference into the impugned order dt.28-4-2009 (Annexure P/l) by this Court is made out. 10. Accordingly the petition fails and is hereby dismissed. No orders as to the costs. Petition dismissed.