Judgment : Heard the petitioner in person and learned Advocate General for the respondents. 2. By this petition filed under Articles 226 and/or 227 of the Constitution of India, the petitioner has sought the following reliefs: “(A) For a Writ of Mandamus, or a Writ in the nature of mandamus or any other appropriate Writ, directions or any other commanding the Respondent No. 3 to withdraw Order Ref. No. 4/1/2008/LD-Esst./217 dated 12.2.2013 and Order Ref. No.14/1/2008/LD-Estt./398 dated 14.3.2013. (B) For a Writ of Certiorari or writ in the nature of Certiorari, quashing and setting aside order dated 6.6.2013, passed by the Special Judge, North Goa at Panaji in Criminal Misc. Appln. No. 22/2013, after calling for records and proceeding and examining it for its legality, proprietary and correctness.” 3. Petitioner, in short, has alleged as follows: The petitioner lodged a complaint dated 04/02/2013 with respondent no. 4 against Shri Manohar Parrikar, the Chief Minister of the State of Goa alleging that he has committed offences punishable under Section 13 (d)(ii) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 193 and 420 of the Indian Penal Code. However, since respondent no. 4 failed to register the F.I.R., in terms of Section 154 of the Code of Criminal Procedure, 1973 ('Cr.P.C.'), he made a representation to respondent no. 5 calling upon him to direct respondent no. 4, to register the complaint of the petitioner as F.I.R. Since no action was taken by the respondent no. 5, the petitioner filed an application under Section 156(3) of Cr.P.C. before the Special Judge under the Prevention of Corruption Act, North Goa at Panaji which application came to be registered as Criminal Miscellaneous Application No. 22/2013. Respondents no. 4 and 5 herein were made as respondents in the said Criminal Miscellaneous Application. Upon notice of the application issued to the respondents, on 21/03/2013, learned Advocate Shri A. Lotlikar filed Vakalatnama on behalf of the said respondents and appeared before the Special Judge along with the learned Senior Counsel Shri Saresh Lotlikar. 4. The respondent no. 3, on 12/2/2013, had issued order Reference No. 4/1/2008/LD-ESTT/217 appointing Advocate Ashwin Bhobe to represent the respondents no. 4 and 5 in the said Criminal Miscellaneous Application No. 22/2013 and thereafter issued the order Reference No. 4/1/2008/LD-ESTT./393 dated 14/3/2013, appointing Shri Saresh Lotlikar, Senior Counsel to defend the interest of the respondents no. 4. The respondent no. 3, on 12/2/2013, had issued order Reference No. 4/1/2008/LD-ESTT/217 appointing Advocate Ashwin Bhobe to represent the respondents no. 4 and 5 in the said Criminal Miscellaneous Application No. 22/2013 and thereafter issued the order Reference No. 4/1/2008/LD-ESTT./393 dated 14/3/2013, appointing Shri Saresh Lotlikar, Senior Counsel to defend the interest of the respondents no. 4 and 5, as a special case. 5. The petitioner filed an application dated 21/03/2013 before the Special Judge, taking objection to the representation of the respondents by Senior Counsel Shri Saresh Lotlikar. Upon hearing the petitioner in person and learned Senior Counsel for the respondents, by order dated 06/06/2013, the Special Judge observed that the learned Sr. Counsel, Shri Saresh Lotlikar is neither appointed as a Public Prosecutor within the meaning of Section 24 of Cr.P.C. nor is he appointed to defend Shri Manohar Parrikar, the Chief Minister. It has been further observed that the applicant can have no reasonable objection for the appointment of the Sr. Counsel as it is always open to any Department, Officer, including any Investigating Officer, to get the best legal service. The Special Court observed that the name of Shri Lotlikar was proposed by the learned Advocate General and that the Chief Minister had signed the said notings after the said recommendation was approved by the Law Department and file was submitted for the approval of the Government. It was held that mere fact that the Chief Minister had signed the notings either in the capacity as the Law Minister or the Finance Minister, does not lead to an inference that the Chief Minister was involved in appointing the Senior Counsel. The application raising objection was dismissed. 6. Therefore the petitioner is before this Court challenging the said orders dated 12/2/2013 and 14/3/2013 of the respondent no. 3 and order dated 06/06/2013 of the Special Judge. 7. An affidavit-in-reply has been filed on behalf of the respondents contending that the petitioner has not made out any case and that the petition deserves to be dismissed. The petitioner has filed affidavit-in-rejoinder. 8. The petitioner submitted that conducting investigation in order to decide whether to register F.I.R. or not is wholly within the powers of the police. He submitted that by note dated 08/02/2003, the Deputy Superintendent of Police, ACB (Vigilance) referred the copy of the notice and annexures received from the Special Judge to the superior (SP. 8. The petitioner submitted that conducting investigation in order to decide whether to register F.I.R. or not is wholly within the powers of the police. He submitted that by note dated 08/02/2003, the Deputy Superintendent of Police, ACB (Vigilance) referred the copy of the notice and annexures received from the Special Judge to the superior (SP. ACB.) for instructions, saying that there will be a need for the matter to be defended for which legal assistance is required to represent the Officer-in-charge, Police Inspector, ACB and Superintendent of Police ACB before the Court in respect of non registration of FIR, in the matter. The matter was referred to the Law department and Advocate Ashwin Bhobe was appointed by order dated 12/02/2013. He further submitted that by note dated 14/02/2003, it is specifically stated by SP, ACB that a Senior Lawyer be appointed in this case as the Hon'ble Chief Minister is to be defended. He pointed out that the learned Advocate General recommended the name of Senior Counsel Shri Saresh Lotlikar, in case the Government desires to appoint a Senior Advocate. Accordingly, the copy of the noting of the file of ACB, Vigilance was forwarded to the Law Department, which put up the note for appointment of Senior Counsel Shri Saresh Lotlikar, for approval of the Government. He pointed out that this appointment was approved by the Chief Minister on 11/3/2013 and ultimately by order dated 14/3/2013, Shri Saresh Lotlikar came to be appointed. According to him, the accused was the authority who gave the go ahead and took the decision culminating in the passing of the orders of appointment of private lawyers. The petitioner submitted that the learned Senior Counsel is neither Public prosecutor nor Special Public Prosecutor. According to him, the Government (Investigating agency) cannot be represented by any private advocate. He relied upon the judgment of the Hon'ble Supreme Court in the case of “R. Sarala Vs. T. S. Velu and others” [ (2000)4 SCC 459 ]. He also relied upon the order dated 08/05/2013 passed by the Apex Court in Writ Petition (Crl.) No.120 of 2012 (Manohar Lal Sharma Vs. The Principal Secretary & ors.). He also relied upon the judgment of the Madhya Pradesh High Court in the case of “Rajendra Nigam Vs. State of M.P.” [(1998)Cri.L.J 998]. He also relied upon the order dated 08/05/2013 passed by the Apex Court in Writ Petition (Crl.) No.120 of 2012 (Manohar Lal Sharma Vs. The Principal Secretary & ors.). He also relied upon the judgment of the Madhya Pradesh High Court in the case of “Rajendra Nigam Vs. State of M.P.” [(1998)Cri.L.J 998]. He submitted that the investigation and prosecution are two different aspects of administration of criminal justice and, therefore, formation of opinion as to whether on the material collected, a case is made out to place the case for trial, is the exclusive opinion of the officer in-charge of the Police Station and/or his superior officers. He submitted that involving even the Public Prosecutor in investigation is not proper in law. He submitted that the Government had to show justifiable reasons which persuaded it to appoint the Senior Advocate, by dislodging even the Public Prosecutor. The petitioner urged that seeking approval from the Chief Minister is like seeking approval from the accused. He then relied upon the judgment dated 22/03/2013 of the Division Bench of this Court in Public Interest Litigation Writ Petition No.2/2005 (Shri Datta Naik Vs. State of Goa, through Chief Secretary and 3 ors.). According to the petitioner, the direction of the Division Bench of this Court in the above case has been violated since in the present case, the Chief Minister of the State of Goa, who is the accused in the complaint lodged by the petitioner, has participated in the matter concerning the appointment of the Senior Counsel. The petitioner relied upon the case of “M. C. Mehta (Taj Corridor Scam) Vs. Union of India” [ (2007)1 SCC 110 ]. He submitted that the Public Prosecutor is not involved in investigation and it is not the scheme of Cr.P.C. for supporting any combined operation between the Investigating Officer and Public Prosecutor for filing the report in the Court. According to him, the preliminary enquiry to be conducted before registering FIR is part of the investigation. He questioned as to under which provision of law the appointment of the Senior Counsel has been made by the Government to defend the interest of the Chief Minister. In all the circumstances above, according to the petitioner all the orders which are challenged are bound to be set aside. 9. Per contra, learned Advocate General, at the outset, submitted that the order appointing Mr. In all the circumstances above, according to the petitioner all the orders which are challenged are bound to be set aside. 9. Per contra, learned Advocate General, at the outset, submitted that the order appointing Mr. Ashwin Bhobe has been cancelled. He submitted that the challenge in the present petition is to the appointment of two lawyers which could not have been challenged before the Court, which was itself hearing the matter. Without prejudice to the above, the learned Advocate General submitted that the reasons given by the Special Judge for rejecting the objections of the petitioner, are all acceptable and no perversity is seen in the said order. He submitted that in Public Interest Litigation Writ Petition No. 2/2005 filed by Shri Datta Naik, the Law Minister was himself an accused and the Advocate, who was appearing for him, was appointed as Advocate General for the State of Goa. The said Law Minister had himself appointed a Special Public Prosecutor for defending him. He submitted that it was in those circumstances that the direction as mentioned in clause no.(V) of paragraph no.7 of the said judgment was given. He submitted that in the present matter, the case is totally different. According to the learned Advocate General, the petitioner had gone to the Court for registration of F.I.R. and the respondents in that Court were policemen and they wanted to be defended. He submitted that the Investigating Officer has freedom to decide whether the F.I.R. is to be registered or not, but who should be appointed to defend the respondents on behalf of the Government, is for the Government to decide and in such cases, the police are only the agents of the Government to make a request for appointment of advocate. Learned Advocate General read out the provisions of Articles 154, 163 and 166 of the Constitution of India. He submitted that the Chief Minister of Goa is also the Home Minister, Finance Minister and Law Minister and under the Rules of Business of the Government of Goa unless the concerned minister approves the proposal, the order cannot be issued. He further submitted that a person cannot be called as an accused until the charge sheet is filed against him. He further submitted that a person cannot be called as an accused until the charge sheet is filed against him. In any case, he submitted that the Chief Minister of the State of Goa, by signing the proposal, has done nothing except giving an approval in his capacity as Law Minister and Finance Minister. He further objected to the perusal of the notes of the departments. He submitted that if all the notes are to be seen, then, everybody concerned therein will have to be made a party and without their presence, nothing can be decided. He submitted that there is no provision in law prohibiting the appointment of a Special Counsel for defending the proceedings. He pointed out that the Chief Minister has not put up the note. According to him, no prejudice is caused to the petitioner, who otherwise could not have objected, since the petitioner himself was the applicant in the said Criminal Miscellaneous Application No. 22/2013. Learned Advocate General, therefore, urged that the petition is without any merit and liable to be dismissed, with costs. 10. Learned Advocate General relied upon the judgments in following cases: (a) “State of Maharashtra and others Vs. Prakash Pralhad Patil and others” [ (2009) 12 SCC 159 ]. (b) “Sarwan Singh Lamba Vs. Union of India” [ (1995)4 SCC 546 ]. 11. I have considered the entire material produced by the parties on record and I have considered the submissions advanced by learned Counsel for both the parties as also the judgments relied upon by them. 12. In the case of “R. Sarala” (supra), it has been held as follows: “2. Investigation and prosecution are two different facets in the administration of criminal justice. The role of a Public Prosecutor is inside the Court, whereas investigation is outside the court. Normally the role of a Public Prosecutor commences after the investigating agency presents the case in the court on culmination of investigation. Its exception is that the Public Prosecutor may have to deal with bail applications moved by the parties concerned at any stage. Involving the Public Prosecutor in investigation is unjudicious as well as pernicious in law. Normally the role of a Public Prosecutor commences after the investigating agency presents the case in the court on culmination of investigation. Its exception is that the Public Prosecutor may have to deal with bail applications moved by the parties concerned at any stage. Involving the Public Prosecutor in investigation is unjudicious as well as pernicious in law. At any rate no investigation agency can be compelled to seek the opinion of a Public Prosecutor under the orders of the court.” In the above case, the investigating officer concerned was directed by the High Court to take back the case from the court whereat it was laid by him after completing the investigation and he was further directed to consult the Public Prosecutor and submit a fresh charge sheet in tune of the opinion of the Public Prosecutor. The question was whether such a course was permissible in law? In the present case, no FIR was registered and no investigation had started and the question of consulting anyone for filing charge sheet did not arise. The above case is not at all applicable to the facts and circumstances of the present case. 13. Mr. Lotlikar, learned Senior Counsel, has not been appointed in Criminal Miscellaneous Application No. 22/2013 to guide or give opinion to the investigating agency on the point whether FIR is to be registered or not. A reply was filed by the respondents in the said Criminal Miscellaneous Application No. 22/2013, before the Special Judge stating therein that the complaint dated 04/02/2013 filed by the petitioner did not disclose any commission of cognizable offence by the chief Minister and therefore, no FIR could be registered on the basis of the complaint filed by the petitioner. This conclusion was already arrived at by the Investigating officers and that had led the petitioner to file the application under Section 156(3) of Cr.P.C., for consideration of the Special Court. Learned Senior Counsel has been appointed, by the State Government, to represent the respondents, who happen to be policemen (Government servants), and to present their case, as reflected in the reply, effectively before the Special Court and convince the said Court with regard to the stand taken by the respondents. The respondents in that Criminal Miscellaneous application No. 22/2013 have not appointed any private advocate. The State Government by following due procedure of law has appointed Sr. The respondents in that Criminal Miscellaneous application No. 22/2013 have not appointed any private advocate. The State Government by following due procedure of law has appointed Sr. Counsel, Shri Lotlikar to defend the interest of the respondents, who represent the State and this has been done as a special case. 14. The said order does not at all say that the Sr. Advocate has been appointed as a Private Advocate. Though subsections (1) to (7) of Section 24 of Cr.P.C., inter alia, provide for appointment of Public Prosecutors and Additional Public Prosecutors for conducting any prosecution, appeal and other proceeding on behalf of the State Government, however, Sub-section (8) of Section 24 provides that 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. There is no dispute that Mr. Saresh Lotlikar has completed more than ten years of practice as an Advocate. Merely because the order of the State Government does not specifically says that Advocate Lotlikar has been appointed as Special Public prosecutor, under Section 24(8) of Cr.P.C., that does not mean that he is a Private Advocate, defending the respondents. What is important is that there is order of the Government appointing Senior Counsel, Shri Saresh Lotlikar to defend the interest of the respondents in that particular case. Nomenclature and provision of law need not necessarily be stated. In the note dated 14/2/2013, the Superintendent of Police, ACB had expressed apprehension that in every case of job appointment, Activists and NGOs will approach the ACB for registration of Crime on the ground of alleged corruption. It was for this reason the Superintendent of Police had stated that it was essential to appoint a Senior Lawyer. 15. In the case of “Rajendra Nigam” (supra), respondent no. 3 was appointed as Special Public Prosecutor under Section 24(8) of the Cr.P.C. for conducting the Criminal Case No.169/1994, in which the offence punishable under Section 498A of IPC was involved. He was appointed with the condition that the fees shall not be paid to him by the Government. It did not appear that case was of special importance or there were special reasons for appointing the Special Public Prosecutor. He was appointed with the condition that the fees shall not be paid to him by the Government. It did not appear that case was of special importance or there were special reasons for appointing the Special Public Prosecutor. The order appointing him was conspicuously silent on reason for dislodging duly appointed Public Prosecutor. It was held that the State must show reasons which persuaded it to appoint a Special Public Prosecutor, the effect of which was to dislodge a duly appointed Public Prosecutor. The order of appointment of Special Public Prosecutor was quashed but the respondent no. 3 was permitted to assist the Public Prosecutor. Thus, here the charge sheet was filed upon completion of the investigation in the case registered upon F.I.R. and a Special Public Prosecutor was appointed to conduct the State case. The facts of this case cannot be said to be applicable to the present case before me. Be that as it may, in the present case, special and justifiable reason for appointing a Senior Counsel, to defend the respondents, in Criminal Miscellaneous Application No. 22/2013, has been given and the same is mentioned by the learned Special Judge in paragraph 7 of the impugned order. 16. In the order dated 08/05/2013 passed in Writ Petition (Crl.) No.120/2012 (supra), the following questions were framed for consideration by the Hon'ble Apex Court: “(a) Can the Law Minister ask the CBI to show him the details of any investigation being done by them and seek changes in the status report to be filed in Court, particularly when the investigation involves other Ministers and the PMO? (b) Can the CBI Director disclose the details of investigation to the Law Minister and the counsel for the Government and allow them to make changes in the report to be filed with the Court? Does this not subvert the integrity of the investigation? (c) Can the CBI officials disclose the details of the investigation to officials of the Ministries which are being investigated and allow them to make changes in the report to be submitted to the court about the investigation?” However, the said questions were left for consideration, if necessary, at later point of time. (c) Can the CBI officials disclose the details of the investigation to officials of the Ministries which are being investigated and allow them to make changes in the report to be submitted to the court about the investigation?” However, the said questions were left for consideration, if necessary, at later point of time. The direction, inter alia, was given by the Hon'ble Supreme Court that the Director, CBI shall henceforth ensure that the secrecy of the enquiries and investigations into the allocation of coal blocks is maintained and no access of any nature whatsoever in this regard is provided to any person or authority, including any Minister of the Central Cabinet, Law Officers, Advocates of CBI, Director of Prosecution and officials/ officers of the Central Government. Thus, in the case supra, the Law Minister not only asked the CBI to show to him the records of investigation but also sought to make changes in the status report to be filed in the Court and the CBI Director disclosed the investigation details to the Law Minister and to the Government Advocate and allowed them to make changes in the status report to be filed in the Court. The question whether the same can be done or not was left for consideration, at a later point of time. The directions that were made were in the facts and circumstances of that case only. Be that as it may, the above case was at the stage of investigation after registration of FIR. In the present case, FIR has not been registered. There is no allegation that the learned Senior Counsel suggested changes in any preliminary investigation records, if any, in respect of the FIR lodged by the petitioner. The above judgment is also not applicable to the facts and circumstances of the present case. 17. It is seen from the records that the Superintendent of Police, ACB (Vigilance) had put a note that he is not inclined to infer any malafide intention in the appointment of Ms Sonia Phadte and that immediate registration is not warranted. He put a note that it would be prudent to seek the say from C.M.'s office and Directorate of Provedoria before proceeding for regular registration of F.I.R. However, the Law Department returned the file to the Vigilance Department stating that the concerned police officer should take independent decision based on the complaint. He put a note that it would be prudent to seek the say from C.M.'s office and Directorate of Provedoria before proceeding for regular registration of F.I.R. However, the Law Department returned the file to the Vigilance Department stating that the concerned police officer should take independent decision based on the complaint. By note dated 08/02/2013, the Deputy Superintendent of Police, ACB (Vigilance) had requested for legal assistance to defend the matter. The matter was then referred to the Law Department for appointment of an advocate from the panel of the advocates to defend the interest of the ACB (Vigilance). Initially, the name of Advocate Ashwin Bhobe was selected and he was appointed to defend the interest of the respondents. Subsequently, as already discussed earlier, the department requested for appointment of some Senior Lawyer in the case. Accordingly, the name of Senior Advocate, Mr. Saresh Lotlikar was suggested/proposed. After discussion with the learned Advocate General and Law Secretary, the Government desired to appoint the Senior Advocate and learned Advocate General recommended the name of Senior Advocate Shri Saresh Lotlikar. The draft was put for approval of the Government and from the Law Department, it went to the office of the Chief Minister and the Chief Minister, in his capacity as a Law Minister and Finance Minister only signed the note regarding the approval of the draft order. Ultimately, the impugned order dated 14/03/2013 appointing Shri Saresh Lotlikar was issued. In paragraph 5 of the affidavit-in reply, it has been specifically stated that the appointments of counsels and allotment of briefs are matters looked after and assigned to the learned Advocate General of the State and that in the instant case the learned Senior Counsel has been appointed in order to defend the officials of the State Government. The above has not been denied by the petitioner. The petitioner has however denied the fact that the Chief Minister had no role in appointment of the Counsel as such. 18. Business of the Government is conducted in the manner as prescribed by law. The portfolios of Law, Home, and Finance are with the Chief Minister. In terms of the Rules of Business, the concerned Minister has to give approval to any proposal which pertains to that particular department. Till then no order is issued. 18. Business of the Government is conducted in the manner as prescribed by law. The portfolios of Law, Home, and Finance are with the Chief Minister. In terms of the Rules of Business, the concerned Minister has to give approval to any proposal which pertains to that particular department. Till then no order is issued. It is, therefore, that the file had gone for approval to the Chief Minister in his capacity as a Law Minister Home Minister and Finance Minister. Admittedly, since no F.I.R. has been registered and no charge sheet has been filed, the Chief Minister cannot be termed as an accused. As rightly contended by learned Advocate General, there is no provision prohibiting the appointment of Senior Advocate by the State Government. Admittedly, the Chief Minister himself has not put up the note nor did he take any decision or make any suggestion thereof. Learned Senior Counsel has not been appointed to defend the Chief Minister, against whom complaint was lodged by the petitioner. 19. In the case of “Datta Naik” (supra), the Law Minister, who had appointed the Special Public Prosecutor, was himself an accused and the advocate appearing for the said accused was subsequently appointed as Advocate General for the State of Goa. Therefore, the facts and circumstances of the said case are totally different and not applicable to the facts of the present case. 20. The accused can have no participation in the proceedings under Section 156(3) of Cr.P.C. In the present case there is no participation by an accused person. It cannot be said that the Chief Minister was involved in appointing the Senior Counsel. 21. I have considered the other judgments relied upon by the learned Counsel for the parties and I do not deem it necessary to quote the well known principles laid down therein. 22. In the circumstances above, the objections raised by the applicant were rightly rejected by the Special Judge. There is no merit in the petition and the question of withdrawing the order appointing the Senior Lawyer, and any other order appointing another lawyer, does not arise. The question of setting aside the order of the special Judge also does not arise. 23. In the result, the petition stands dismissed and disposed of, accordingly.