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2012 DIGILAW 101 (MP)

PARAS KUMAR JAIN v. STATE OF M. P.

2012-01-19

PRAKASH SHRIVASTAVA

body2012
JUDGMENT : 1. This writ petition is directed against the order dated 16-6-2011 (Annexure P/3), by which the respondent No. 3 has been appointed as Special Public Prosecutor under section 24(8) of the Criminal Procedure Code and also against the order dated 4-8-2011 passed by the Additional Sessions Judge, Special Jude No. 5, Indore rejecting the petitioners' objection in this regard. 2. The case of the petitioners is that they and their family members are facing the criminal trial in several criminal cases registered at the instance of the respondent No. 4, who is the daughter-in-law of the petitioner No. 1 and wife of the petitioner No. 2. In all these cases the petitioners and their family members have been released on bail, and in most of these cases the respondent No. 4 has engaged the respondent No. 3 as her Advocate. In Sessions Trial No. 15/2011 pending against the petitioners, the State has appointed the respondent No. 3 as Special Public Prosecutor by the impugned order dated 18-6-2011 exercising the powers under section 24(8) of the Criminal Procedure Code. Petitioners had objected before the trial Court to the appointment of the respondent No. 3 as Special Public Prosecutor but by the order dated 4-8-2011 the objection of the petitioners has been rejected, therefore, they have approached this Court by way of the present writ petition. 3. The respondents No. 1 and 2 have filed the reply stating that the respondent No. 4 had filed the application dated 3-11-2011 requesting for appointment of respondent No. 3 as Special Public Prosecutor under section 24(8) of the Criminal Procedure Code. On that application the No Objection was received from the Public Prosecutor and Superintendent of Police. The respondent No. 3 had sent the communication dated 14-6-2011 to the Principal Secretary, Law and Legislative Affairs Department, stating that he was not engaged as an advocate by respondent No. 4 at any point of time. He had also filed the affidavit that he will not charge any fee from the Government, and the respondent No. 4 had filed the affidavit that she would bear the expenses of the fee of the respondent No. 3. Keeping in view this aspect of the matter, the respondent No. 3 was appointed as Special Public Prosecutor. 4. He had also filed the affidavit that he will not charge any fee from the Government, and the respondent No. 4 had filed the affidavit that she would bear the expenses of the fee of the respondent No. 3. Keeping in view this aspect of the matter, the respondent No. 3 was appointed as Special Public Prosecutor. 4. The respondent No. 4 has filed the reply stating that she had made a request to the respondent No. 2 for appointment of respondent No. 3 as Special Public Prosecutor and that there is no bar for appointment of the respondent No. 3 as Special Public Prosecutor even if he has appeared on behalf of the respondent No. 4. She has admitted that the respondent No. 3 had appeared in some bail matters on her behalf. 5. Learned counsel appearing for the petitioners submits that the appointment of the respondent No. 3 as Special Public Prosecutor has been made in mechanical manner merely on asking by the respondent No. 4. He further submits that the impugned order dated 16-6-2011 is a non speaking order, and that such an appointment will cause serious prejudice to the petitioners since the respondent No. 3 has been appearing on behalf of the respondent No. 4, and that it is not an exceptional case requiring appointment of the Special Public Prosecutor. He further submitted that the respondent No. 4 would be paying the fee of the respondent No. 3 as Special Public Prosecutor out of the maintenance amount paid to her by the petitioner No. 2, which amounts to the payment of fee by the petitioner No. 2 for engaging an advocate against himself. 6. Learned counsel appearing for the respondents have supported the impugned order and submitted that as per the requirement of section 24(8) of the Criminal Procedure Code the respondent No. 3 fulfils the eligibility conditions, therefore, no reasons are required to be assigned for his appointment and it is the discretion of the State to appoint any person as Special Public Prosecutor who fulfils the eligibility conditions mentioned in section 24(8) of the Criminal Procedure Code. They have further submitted that the review is of the decision making process and not of the decision itself. 7. I have heard the learned counsel for the parties and perused the record. 8. They have further submitted that the review is of the decision making process and not of the decision itself. 7. I have heard the learned counsel for the parties and perused the record. 8. Section 24 of the Criminal Procedure Code deals with the appointment of the Public Prosecutor and sub-section (8) thereof provides for appointment of Special Public Prosecutor. A person practicing as an advocate for not less than 10 years, is eligible for appointment as Special Public Prosecutor. The section does not contain any guideline for appointment of special public prosecutor nor any rules in this regard have been pointed out by the counsel for the parties but this issue needs to be decided keeping in view the role to be performed by Special Public Prosecutor and reasonableness of the action of the State in appointing Special Public Prosecutor. 9. The Public Prosecutor is an important officer of the State. He is expected to act independently. He has much larger responsibilities to discharge than merely to ensure the conviction of the accused. His duty is to act fairly and bring all relevant facts before the Court so that truth prevails and justice is done to all the parties including the victims. The Supreme Court in the matter of Sidharth Vashisht Alias Manu Sharma vs. State (NCT of Delhi), reported in 2010(6) SCC 1 while taking into consideration earlier judgments on the point in respect of role and duties of the Public Prosecutor, has observed as under : "185. A Public Prosecutor is appointed under section 24 of the Code of Criminal Procedure. Thus, Public Prosecutor is a statutory office of high regard. This Court has observed the role of a Prosecutor in Shiv Kumar vs. Hukam Chand, (1999) 7 SCC 467 as follows : "13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to which it to the force and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the Court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor." 186. This Court has also held that the Prosecutor does not represent the investigating agencies, but the State. This Court in Hitendra Vishnu Thakur vs. State of Maharashtra, (1994) 4 SCC 602 held : (SCC pp. 630-31, para 23) "23. .... A Public Prosecutor is an important officer of the State Government and is appointed by the State under the Criminal Procedure Code. He is not a part of the investigating agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request of the investigating agency before submitting a report to the Court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. A Public Prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that thee has been unnecessary, deliberate or avoidable delay in completing the investigation." 187. He is not merely a post office or a forwarding agency. A Public Prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that thee has been unnecessary, deliberate or avoidable delay in completing the investigation." 187. Therefore, a Public Prosecutor has wider set of duties than to merely ensure that the accused is punished, the duties of ensuring fair play in the proceedings, all relevant facts are brought before the Court in order for the determination of truth and justice for all the parties including the victims. It must be noted that these duties do not allow the Prosecutor to be lax in any of his duties as against the accused." 10. This Court in the matter of Poonamchand Jain vs. State of M. P. and others, reported in 2001(2) MPLJ 61 has noted role of the Special Public Prosecutor as under : "11. ........... It is to be borne in mind that a Special Public Prosecutor is not to be appointed on mere asking on behalf of the complainant. It is to be kept in mind that when there is appointment of a Special Public Prosecutor there is ouster of the Public Prosecutor who is appointed in accordance with the provisions of the Code. The Public Prosecutor has a different role to play and is duty bound to present the complete and truthful picture of the case from all quarters. It is his obligation to assist the Court in a dispassionate and disinterested manner. It is not expected of a public prosecutor to achieve conviction at all costs. It cannot be forgotten that a crime committed is not against an individual but against the community at large. In the administration of criminal justice the public prosecutor represents the society in entirety. The collective reposes intrinsic faith in the public prosecutor and ordinarily there should be no interference in the functioning of the public prosecutor unless there are special and strong reasons ......................." 11. In the administration of criminal justice the public prosecutor represents the society in entirety. The collective reposes intrinsic faith in the public prosecutor and ordinarily there should be no interference in the functioning of the public prosecutor unless there are special and strong reasons ......................." 11. The Special Public Prosecutor performs a similar role and discharges the same responsibilities as that of public prosecutor, therefore, it can not be ignored that he has to act fairly and only that Advocate should be appointed as Special Public Prosecutor who is expected to assist the Court in a unbiased and fair manner. For this reason the Special Public Prosecutor can not be appointed by the State in a mechanical manner merely on the asking of a party but State is required to consider all the relevant circumstances while passing an order under section 24(8) of the Criminal Procedure Code. 12. The similar issue had come up before this Court in the matter of Mohammad Sartaj vs. The State of M. P. and others, reported in 2005 Cri.L.J. 2133, where the appointment of the Special Public Prosecutor was challenged on the ground that with the efforts of the younger brother of the deceased-victim, the advocate, who had defended the victim in so many cases, was appointed as Special Public Prosecutor which was prejudicial to the interest of the accused persons. This Court has noted the duties and responsibilities of the Special Public Prosecutor and has held that the position of a Public Prosecutor is one of trust and duly appointed Public Prosecutor in charge of the case, can not be ousted in a light manner. This Court in the matter of Mohammad Sartaj (supra) has held that : "10. It is to be borne in mind that the Public Prosecutor has been assigned a centripodal and pivotal role to conduct the prosecution under the Code. The language of section 225 of the Code is indicative of the fact that the Public Prosecutor has the prerogative of conducting the prosecution. On a reading of section 321 it is luminescent that the Public Prosecutor has an extremely significant role in the withdrawal of the prosecution. His opinion is of immense importance and its import can never be marginalised. A Public Prosecutor has to assist the Court to arrive at correct, sound, truthful and appropriate conclusion. On a reading of section 321 it is luminescent that the Public Prosecutor has an extremely significant role in the withdrawal of the prosecution. His opinion is of immense importance and its import can never be marginalised. A Public Prosecutor has to assist the Court to arrive at correct, sound, truthful and appropriate conclusion. He has a statutory responsibility and his function rests on a high pedestal and stands on a different position than the advocate who represents a private complainant. Many a jurist has opined that the position of the Public Prosecutor is one of trust. He represents the State and the State has a different role. On a first glance it may give an impression that the Public Prosecutor has not other duty but to obtain a verdict against the accused. But on a proper penetration into his role and deeper probe as regards his statutory duty it is clear as crystal and as plain as plain can be that he is a highly responsible officer of the Court to assist the Court to arrive at the truth and to subserve the cause of justice which is 'truth in action'. 11. The present factual matrix has to be tested on the anvil of the aforesaid enunciation of law. In the case at hand no reasons have been indicated. The ouster of the Public Prosecutor has been founded on no base. The duly appointed Public Prosecutor under the provisions of the Code seems to have been ousted in an extremely light manner. It cannot be forgotten that the Public Prosecutor enjoys the statutory power and collective reposes faith in him. There is no material to show that the Public Prosecutor who is in charge of the case is not competent to conduct the trial or there are other aspects which disqualify him to fulfil the duty cast on him. On the contrary instances have been given that the respondent No. 4 has been defending the deceased and his brother. ........................." 13. On the contrary instances have been given that the respondent No. 4 has been defending the deceased and his brother. ........................." 13. This Court in the matter of Radheshyam vs. State of M. P. and others, reported in 2000(4) MPHT 124 while considering the issue of appointment of relative of the complainant as Special Public Prosecutor, has taken the view that the Special Public Prosecutor can be appointed to protect the interest of the State in administration of criminal justice, and independent, impartial and lawyer of status and repute should be appointed, and he is expected not to act as protagonist. This Court in the matter of Radheshyam (supra) has taken note of the earlier decisions on the point as under : "7. In case of Prabhat Agrawal vs. State of M. P. and others, reported in 1999(1) MPLJ 23 Short Note 36, it has been held by this Court that the Criminal Procedure Code empowers the State Govt. to appoint a Special Public Prosecutor under section 24(8) of the code but has not provided any guidelines for making such appointments. It is, however, settled that Special Prosecutor should not be appointed on mere asking of the complainant. Such appointment, resulting in ouster of the regularly appointed public prosecutor creates feeling of distrust and thereby demoralises the Public Prosecutor as a class. The role of Public Prosecutor is difficult from the role of counsel or Advocate engaged by a party. He represents the State in administration of criminal justice. The Court has to grind against a criminal trial being converted into an individual contest between the accused and the complainant. Special Public Prosecutor can be appointed only for very special and strong reasons. Where there was no cogent, strong and valid reasons for appointing advocate who had earlier been engaged by and appearing for the complainant, as a Special Public Prosecutor on his mere asking and to be paid by him, the order was liable to be set aside. 8. In the case of Shyam Ramkrishan Sharma and others vs. State of M.P. and others, reported in 1992(2) MPLJ 703, this Court has held that when an Advocate is engaged by the complainant in the Sessions case cannot legitimately be expected to act with impartiality and detachment which is expected of a Public Prosecutor. The apprehension entertained by the petitioners was reasonable. The apprehension entertained by the petitioners was reasonable. In this case this aspect of the case was also considered that when a Special Public Prosecutor is appointed by the State to conduce the case it should not be subjected to judicial review but the learned Judge found that such an order suffers from infirmity on the ground that counsel already engaged by the petitioner could not be appointed as a Special Public Prosecutor on the analogy that as the counsel engaged by the complainant cannot act as Public Prosecutor but can only act as per section 301(2) of the Code to assist the Public Prosecutor. 9. In case of Sunil Kumar @ Chander Salariya and others vs. State of M.P. and others, reported in 1992 MPLJ 772 , the Division Bench of this Court had an occasion to consider the matter of appointment of Special Public Prosecutor made by the State Govt. and it was held that Special Public Prosecutor can be appointed by the State Govt. only in the exceptional cases and for the reasons to be recorded and in the light of the provisions of section 301 of the Criminal Procedure Code. The State Govt. can exercise its power under section 24(8) of the Criminal Procedure Code and appoint a Special Public Prosecutor only in exceptional cases and for the reasons to be recorded. The appointment made of a particular lawyer as a Special Public Prosecutor not of any necessity, but just to please and satisfy the relations of the deceased is not proper and the appointment was set aside and liberty was granted to the Special Public Prosecutor to assist in the manner provided in section 301(2) of Criminal Procedure Code." 14. Similar issue came up in the matter of Prabhat Agrwaal vs. State of M. P. and others, reported in 1999(1) MPLJ Note 36, where this Court had set aside the appointment of the advocate engaged by the complainant as Special Public Prosecutor on mere asking of the complainant by observing that Special Public Prosecutor can be appointed only for very special and strong reasons. 15. 15. The respondents have placed reliance upon the judgment of the Supreme Court in the matter of State of U. P. and another vs. Johri Mal, reported in 2004(4) SCC 714 , but in that case also it has been observed that while making such an appointment the State has to act fairly and reasonably and if the action of the State is unreasonable, the same is open to the judicial review. The counsel for the respondents have also placed reliance upon the judgment in the matter of Annop vs. State of M. P. and another, reported in 2006 Cri.L.J. 2061, but the said judgment is distinguishable on its own facts since in that case no material in support of the plea of bias was placed before the Court to show that the Special Public Prosecutor so appointed will act as prosecutor to secure conviction. 16. Thus the position in law is settled that while appointing a Special Public Prosecutor the State is required to apply its mind on the relevant aspects of the matter and see that only a fair and impartial advocate is appointed as Special Public Prosecutor. If an advocate has appeared on behalf of the complainant in earlier proceedings, then this aspect needs consideration by the State while appointing him as Special Public Prosecutor. The appointment of the Special Public Prosecutor can not be made in a mechanical manner on mere asking by the complainant. It is the responsibility of the State to ensure the fair trial and see that the advocate appointed as Special Public Prosecutor, acts in non prejudicial manner. 17. In the present matter, the record indicates that the respondent No. 3 had sent the letter dated 14-6-2011 (Annexure R/5 filed with the reply of the respondent Nos. 1 and 2) stating that he had not appeared as an advocate on behalf of the respondent No. 4, whereas the documents collectively filed along with the writ petition as Annexure P/2 indicate that the respondent No. 3 was engaged on behalf of respondent No. 4 and he had appeared on her behalf in the Court in different cases. The respondent No. 4 herself, in the reply, has admitted that the respondent No. 3 had appeared in bail matters on her behalf. The respondent No. 4 herself, in the reply, has admitted that the respondent No. 3 had appeared in bail matters on her behalf. Thus the correct position that respondent No. 3 had earlier appeared on behalf of the respondent No. 4, was not before the State while passing the impugned order under section 24(8) of the Criminal Procedure Code. Even otherwise, the reply of the respondents No. 1 and 2 does not indicate proper application of mind by the State while passing the impugned order of appointment of the respondent No. 3 as Special Public Prosecutor. 18. Another ground of challenge raised by the petitioners is that the impugned order dated 16-6-2011 is a non speaking order. The issue that State is required to pass reasoned order while appointing Special Public Prosecutor is no longer res integra. This Court in the matter of Poonamchand (supra) has examined the said aspect of the matter and has taken the view that the State Government while making appointment of Special Public Prosecutor must ascribe reasons and such appointment must be made by objectively examining the facts and circumstances. This Court has examined the legal position in this regard in the said order in paragraph 6 to 8 as under : "6. Before I advert to appreciate the obtaining factual matrix of the case it is apposite to discuss the law governing the field. The Code empowers the State Government to appoint a Special Public Prosecutor under section 24(8) but there are no guidelines in the Code for making such appointment. A controversy relating to appointment of Special Public Prosecutor in connection with Maharashtra Law Officer (Appointment, Conditions of Service and Remuneration) Rules, 1984 came up for consideration before the Apex Court in the case of Mukul Dalal and others (supra) wherein their Lordships observed as under : "............ When an application for the services of a Special Public Prosecutor or an Assistant Public Prosecutor is made in a given case, the power would be vested in him to examine the facts and take decision as to whether the case merits the appointment of a Special Public Prosecutor or an Assistant Public Prosecutor. 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; this would be contrary to the spirit of the scheme of the Code. 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; this would be contrary to the spirit of the scheme of the Code. 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. Without screening on the basis of guidelines prescribed or to be prescribed, the service of a Special Public Prosecutor should not be made available to a private complainant. 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 referred to above is accepted or what the High Court has indicted is adopted. We are inclined to observe that the request for appointment of a Special Public Prosecutor should be properly examined by the Remembrancer of Legal Affairs 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." It is relevant to state here that the Apex Court held Rule 22 of the Maharashtra Rules as ultra vires. 7. A Division Bench of this Court in the case of Sunil Kumar (supra) placing reliance on the decision rendered in the case of P. G. Narayan Kutty vs. State of Kerala, 1982 Cr.L.J. 2085 (Kerala High Court) and Mukul Dalal (supra) came to hold that only in exceptional cases and for reasons to be recorded the State Government can exercise its powers under section 24(8) of the Code and appoint a Public Prosecutor. In this context I deem it apposite to refer to a passage from the decision rendered in the case of Prabhudayal vs. State, 1986 Cri.L.J. 383 wherein a learned Judge of the Delhi High Court observed as under : "The prosecutor has to be fair in the presentation of the prosecution case. He must not suppress or keep back from the Court evidence relevant to the determination of the guilt or innocence of the accused. He must present a complete picture and not one sided picture. He must not suppress or keep back from the Court evidence relevant to the determination of the guilt or innocence of the accused. He must present a complete picture and not one sided picture. He must not be partial to the prosecution or to the accused. He has to be fair to both sides in the presentation of the case." 8. It is worth noting here that in the case of Rajendra Nigam vs. State of M. P., 1998 Cri.L.J. 998 it has been observed that Special Public Prosecutor should not be appointed in ordinary circumstances and the appointment should disclose reasons therefor. At this juncture I may profitably refer to the decision rendered in the case of Arun Sonkar vs. State of M. P. and others, rendered in W.P. 1257 of 1998 wherein this Court quashed the order of appointment on the ground that no reasons had been ascribed to make out a special case justifying the appointment of a Special Public Prosecutor. In the case of Shayam Ramkrishna Sharma (supra), S. P. Khare, J. quashed the appointment of the Special Public Prosecutor on the ground that the said counsel had already been engaged by the complainant at an earlier stage. The learned Judge opined that the counsel engaged by the complainant cannot be appointed as a Special Public Prosecutor." 19. This Court in the matter of Rajendra Nigam vs. State of M. P. and others, reported in 1998 Cri.L.J. 998 while considering the similar issue and similarly worded order, has held that : "4................... The order of the appointment does not show the reasons for which Special Public Prosecutor has been appointed. The order merely says that the State Govt. in exercise of the powers under section 24(8) of the Code of Criminal Procedure appoints the respondent No. 3 as a Special Public Prosecutor. The offence whether it is ordinary or heinous would not provide a foundation nor would make a recommendation to the State that a particular lawyer be appointed as a Special Public Prosecutor. The State must show the reasons which persuaded it to appoint a Special Public Prosecutor, the affect of which was to dislodge a duly appointed public prosecutor." 20. The offence whether it is ordinary or heinous would not provide a foundation nor would make a recommendation to the State that a particular lawyer be appointed as a Special Public Prosecutor. The State must show the reasons which persuaded it to appoint a Special Public Prosecutor, the affect of which was to dislodge a duly appointed public prosecutor." 20. The view taken by this Court in the matter of Rajendra Nigam (supra) is that the Public Prosecutor should not be mechanically appointed but the special circumstances which exist in making such appointment to meet the special situations. This Court in the matter of Rajendra Nigam (supra) in this regard has observed as under : "8. The request for appointment of Special Public Prosecutor should be properly examined by the Remembrancer of Legal Affairs on the basis of the guidelines and only when he is satisfied that the case deserves the support of a Special Public Prosecutor, only then a Special Public Prosecutor or a named person should be appointed to be in-charge of the case. It would not be appropriate to accept the position that whenever a request is made to the State, it should be allowed and a Special Public Prosecutor should be appointed. Ordinarily, the Special Public Prosecutor should be paid out of the State funds even when he appears in support of a private complainant, but there may be some special cases where the remuneration may be collected from the private source. To leave the private complainant to pay the Special Public Prosecutor would indeed not be appropriate. In the matter of P. C. Narainkutty, 1982 Cri.L.J. 2085 (Ker.), it is clearly laid down that a Special Public Prosecutor cannot be appointed with a view to secure convictions at all costs. Special Public Prosecutor can be appointed only when the public interest demands it and not to induct the grievance of a private person but such as the complaint, etc. 9. In the matter of Abdul Khader vs. Govt. of Kerala, (1993) 1 Cur Cri R 347 : (1993 Cri L J 1249), Kerala High Court has observed that the mere fact that the accused in a particular case are engaging a leading criminal lawyer is hardly sufficient to make it a special situation warranting appointment of a Special Public Prosecutor. In the matter of Abdul Khader vs. Govt. of Kerala, (1993) 1 Cur Cri R 347 : (1993 Cri L J 1249), Kerala High Court has observed that the mere fact that the accused in a particular case are engaging a leading criminal lawyer is hardly sufficient to make it a special situation warranting appointment of a Special Public Prosecutor. If the norm is accepted by Government that a Special Public Prosecutor shall be appointed when accused engages a competent or leading advocate, it is likely to bring about anomalous situation because in very many sessions trials accused would engage leading criminal lawyers to defend them. The Government in such case would be obliged to appoint Special Public Prosecutor in all such cases where a leading lawyer is defending the accused, if such a norm is accepted. The Court further observed that quite evidently that is not the purpose for which section 24(8) of the Code is provided. The philosophy involved which can be discerned from the sub-section is two fold. First it there should be special circumstances for making such appointment. Second for appointing a Special Public Prosecutor, Government shall consider a more experienced advocate for the assignment. The very idea behind conferment of the power on a Special Public Prosecutor is to meet special situations. In other words, a Special Public Prosecutor is not to be appointed in ordinary circumstances. In the instant case applying the above principles, it does not appear that the case is of special importance or there are special reasons for appointing the Special Public Prosecutor. The order of the appointment issued by the State Govt. does not justify itself when it is tested at touchstone of fair trial or at touchstone of statutory requirements." 21. The Division Bench of this Court in the matter of Sunil Kumar @ Chander Salariya vs. State of M. P. and others, reported in 1992 MPLJ 772 has taken the view that the Special Public Prosecutor can be appointed by the State Government only in exceptional cases and for reasons to be recorded. The Division Bench of this Court in Sunil Kumar (supra) has held that : "3. ............. The Division Bench of this Court in Sunil Kumar (supra) has held that : "3. ............. In the light of these provisions, we are of the view that only in exceptional cases and for reasons to be recorded, the State Government can exercise its powers under section 24(8), Criminal Procedure Code and appoint a Special Public Prosecutor. In the present case, we find that no reasons have been given in the impugned order (Annexure F) for appointment of the respondent No. 2 as Special Public Prosecutor in the case. The impugned order specifically says that the State Government would not pay any fees to Shri Dutt for conducting the said prosecution and its endorsement would show that copies of the order were also sent to the respondent No. 2 and Shri Atul Chouske, the respondent No. 3. These facts naturally lead to an inference that the respondent No. 2 was appointed as Special Public Prosecutor not of any necessity, but just to please and satisfy the relations of the deceased. As Shri Dutt could act under the directions of the Public Prosecutor or Assistant Public Prosecutor in charge of the case for conducting the prosecution by virtue of section 301(2), Criminal Procedure Code, there was no necessity of making him in charge of the case independently by making an order of appointment in his favour as a Special Public Prosecutor. The view we are taking is supported by P. G. Narayanankutty vs. State of Kerala, 1982 Cri.L.J. 2085 (Kerala), Mukul Dalal vs. Union of India, (1988) 3 SCC 144 ." 22. The counsel for the respondents have placed reliance upon the judgment of the Supreme Court in the matter of State of Maharashtra and others vs. Prakash Prahlad Patil and others, reported in 2009(12) SCC 159 , in which it has been held that scope of judicial review is limited to the decision making process. The said case does not help the respondents since in the present matter it has been found that the decision making process was faulty and relevant facts were not taken into account while taking the decision. 23. In the present matter a perusal of the impugned order indicates that the State has not assigned any reason for the appointment of the Respondent No. 3 as Special Public Prosecutor under section 24(8) of the Criminal Procedure Code. 23. In the present matter a perusal of the impugned order indicates that the State has not assigned any reason for the appointment of the Respondent No. 3 as Special Public Prosecutor under section 24(8) of the Criminal Procedure Code. The reply filed by the State before this Court also does not disclose the special circumstances in the case requiring any such appointment. It is apparent that the appointment of respondent No. 3 has been made without considering the relevant factors noted above, specially the fact that respondent No. 3 had appeared on behalf of respondent No. 4 earlier. The trial Court also committed an error in rejecting petitioners' objection without considering the relevant aspects of the matter noted above. 24. Keeping in view the aforesaid, the impugned orders can not be sustained and are hereby set aside. If any fresh prayer is made by the respondent No. 4 for appointment of Special Public Prosecutor, the State would be at liberty to consider the same keeping in view the observations made above. 25. The writ petition is accordingly allowed.