ORDER : Sanjay Yadav, J. An FIR dated 13.2.2013 at 23:30 hours at Police Station City Kotwali Sagar by Rammilan Dubey, Head Constable 901 on behalf of Anoop Kumar, son of Rajababu Dubey, led to registration of an offence under Section 302 read with Section 34 of the Indian Penal Code against Dr. P.S. Thakur and one Martand Singh Thakur. 2. The commission of crime reported was due to death of one Abhishek Dubey. Material on record reveals that both the accused absconded which led the police to take steps under Section 83 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') whereon order was passed on 18.5.2013 by the Chief Judicial Magistrate Sagar. Later, by an order-dated 12.11.2013 passed in Misc. Criminal Case No.13433/2013 on an application under Section 438 of the Code, the petitioner was granted benefit of anticipatory bail and was directed to join the investigation and fully co-operate with the investigation. The arrest memo on record reveals that the petitioner remained absconded from 13.2.2013 to 27.11.2013. 3. Later, by an order-dated 12.11.2013 passed in Misc. Criminal Case No.13433/2013 on an application under Section 438 of the Code, the petitioner was granted benefit of anticipatory bail and was directed to join the investigation and fully co-operate with the investigation. The arrest memo on record reveals that the petitioner remained absconded from 13.2.2013 to 27.11.2013. 3. The FIR borne out from the complaint which led to registration of an offence under Section 302 read with 34 IPC reads thus – ^eSa iqfyl pkSdh fryh vLirky Fkkuk xksikyxat lkxj esa izvkj0 ds in ij inLFk gwa] vkt fnukad 13-02-2013 djhc 23-00 cts Fkkuk dksrokyh ds l0m0fu0 ,l0lh0 JhokLro us eq>s ,d nsgkrh ukylh /kkjk 302, 34, vkbZ-ih-lh- ds vly uEcj ij dk;eh gsrq nh gS tks is'k djrk gwa dk;eh dh tk;s nsgkrh ukylh udy tsy gS& nsgkrh ukylh Fkkuk dksrokyh ftyk lkxj vi0dz0 0@13 /kkjk 302, 34, vkbZ-ih-lh- ?kVuk fnukad le; 13-02-2013 ds 20%30 cts] ?kVuk LFky gksVy jke ljkst iSys'k ifjlj frydxat lkxj fnukad le; fjiksVZ 13-02-2013 ds 23%30 cts uke Qfj;knh vuwi dqekj nqcs iq= jkt ckcw nqcs mez 35 tokgjxat ijdksVk lkxj uke e`rd vfHk"ksd nqcs iq= jkt ckcw nqcs mez 30 lky tokgjxat ijdksVk lkxj uke vkjksih 1 MkWDVj ih0,l0 Bkdqj 2- ekrZ.M flag Bkdqj dk;ehdrkZ ,l0lh0 JhokLro Fkkuk dksrokyh ftyk lkxj] fooj.k eSa Bsdknkjh o d`f"k dk dk;Z djrk gwa] eSa vkSj esjs lkFk esa lqjsUnz pkScs] c`ts'k nqcs] fouksn xq:] /kesUnz xq: ,oa esjs pkpk dk yM+dk ';ke th nqcs vuh'k jkor dh ckjkr esa gksVy jke ljkst iSys'k frydxat x;s Fks] ogka ij MkWDVj ih0,l0 Bkdqj ,oa ekrZ.M flag Bkdqj ekmtj fy, Fks xkuk py jgk Fkk eqUuh cnuke gqbZ] ml ij ih0,l0 Bkdqj tks ekmtj ysdj MkUl dj jgs Fks MkUl ij ls vfHk"ksd nqcs vkSj ih0,l0 Bkdqj MkWDVj dh >wek >Vdh gksus yxh] rHkh ekrZ.M flag us dgk fd cgqr mMrk gS] ekjks lkys dks brus esa ih0,l0 Bkdqj us xksyh pykbZ tks lh/ks vfHk"ksd nqcs ds lhus esa yxh ml le; jkts'oj lsu] c`ts'k nqcs] nhid nqcs] ';ke th nqcs] jkts'k jtd] vkuUn nqcs vkfn yksx Fks ftUgksus lEiw.kZ ?kVuk ns[kh gSA ekSds ij vfHk"ksd nqcs xaHkhj :i ls ?kk;y gks x;k] rks mls fouksn xq:] yky Vosjk ls ';ke th nqcs] jkts'oj lsu xkM+h esa Mkydj ftyk vLirky lkxj yk;sA MkWDVj ih0,l0 Bkdqj ogka ls Hkkx x;kA ge yksxksa us vfHk"ksd nqcs dks vLirky yk;k HkrhZ djk;k] MkWDVj }kjk fryh vLirky esa psd dj crk;k fd bldh e`R;q gks xbZ gSA bl ?kVuk esa ih0,l0 Bkdqj }kjk ?kVuk le; tku cw>dj vfHk"ksd nqcs dks xksyh ekjh gS] ftlls vfHk"ksd nqcs dh e`R;q gqbZ gS] fjiksVZ djrk gwa] dk;Zokgh dh tk;sA gLrk{kj viBuh; vuwi dqekj nqcs 13-02-2013 gLrk{kj viBuh; ,l0lh0 JhokLro 13&02&2013* 4. That, before committal of the proceedings to the Court of Session, i.e. during pendency of the matter before Judicial Magistrate First Class, the complainant filed an application on 2.2.2014 addressed to the District Magistrate, Sagar requesting for appointment of one Satish Chandra Rawat as Special Public Prosecutor by invoking powers under sub-section (8) of Section 24 of the Code. The applicant also proposed to bear the expenses of the Special Public Prosecutor. 5. At this stage, it is pertinent to note that the said application by the complainant was endorsed by the Minister, Panchayat and Rural Development, Social Justice, specially abled welfare, co-operation, Govt. of Madhya Pradesh and though a feeble submissions were made that a political interference has been sought; however, the submissions were not carried further in absence of any pleadings therefor and non-impleadment of the concerned Minister. Be that as it may. 6. The application routed through the District Magistrate, culminated into an order-dated 27.8.2014 passed by the State Government appointing one Shri Satish Chandra Rawat, Advocate Sagar as Special Public Prosecutor on the terms and conditions contained in the Department of Law and Legislative Affairs's Order No.17bZ/60/95/21-c0@nks dated 23.11.2006 as amended on 15.11.2007 on State Govt. expenses. For a ready reference, the order is reproduced – ^Qk0dzekad 1¼lh½@25@21&c¼nks½@2014] jkT; 'kklu] n.M izfdz;k lafgrk] 1973 ¼dza0 2 lu~ 1974½ dh /kkjk 24¼8½ }kjk iznRr 'kfDr;ksa dks iz;ksx esa ykrs gq,] l= U;k;ky; lkxj ds U;k;ky; esa fopkjk/khu l= izdj.k dzekad 114@2014 e/;izns'k 'kklu fo:) ih0,l0 Bkdqj ,oa vU; esa jkT; 'kklu dh vksj ls iSjoh djus gsrq Jh lrh'k pUnz jkor] vf/koDrk lkxj dks ,rn~}kjk] fo'ks"k yksd vfHk;kstd fu;qDr djrk gSA Jh lrh'k pUnz jkor] vf/koDrk lkxj dks mijksDr izdj.k esa fo'ks"k yksd vfHk;kstd ds :i esa iSjoh djus ds QyLo:i bl foHkkx ds vkns'k dzekad 17¼bZ½@60@95@21&c¼nks½ fnukad 23-11-2006 esa fd;s x;s la'kks/ku vkns'k fnukad 15-11-2007 esa of.kZr 'krksZa ds v/khu Qhl dk Hkqxrku 'kklu }kjk fd;k tk;sxkA* 7. It is this order which is being challenged by the petitioner on the following grounds - (a) That State has not assigned any reasons for appointment of Special Public Prosecutor. (b) The impugned order is a non-speaking order. (c) The impugned order will cause serious prejudice to the petitioner because the Special Public Prosecutor is of the choice of the complainant. (d) The appointment is on mere asking and in a mechanical manner. (b) The impugned order is a non-speaking order. (c) The impugned order will cause serious prejudice to the petitioner because the Special Public Prosecutor is of the choice of the complainant. (d) The appointment is on mere asking and in a mechanical manner. (e) That because the complainant and the Special Public Prosecutor are close relatives, the petitioner apprehends that he will be deprived of fair trial if the Special Public Prosecutor is continued. (f) That it is not shown that existing Public Prosecutor who was handling the matter is not competent to deal with the same. And, the appointment of Special Public Prosecutor despite the objection raised by existing Public Prosecutor would demoralize the public prosecutor-in-charge of prosecution in the Session Court. (g) That, the basic precept that the Public Prosecutor should be unbiased and independent, has been given the go-bye by appointing public prosecutor of complainant's choice. (h) There being no exceptional circumstances, the appointment of Special Public Prosecutor is not tenable. 8. To substantiate these submissions, besides the note-sheets maintained by the Department of Law and Legislative Affairs, obtained through application under the Right to Information Act, 2005, reliance is placed on the decision in Paras Kumar Jain v. State of M.P. 2012 (3) MPLJ 223 and the judgments relied therein. 9. Besides, State of M.P., the complainant and Special Public Prosecutor who are impleaded, have filed their respective reply, denying adverse allegations and defending the appointment. Whereas, the State Government placing reliance on the very note-sheets which the petitioner has filed, has to submit that the decision for appointment of Special Public Prosecutor was taken after objectively considering the report furnished by the District Magistrate and the Superintendent of Police, Sagar. It is submitted that there being the circumstances warranting appointment of Special Public Prosecutor, State Government is justified in appointing Shri Satish Chandra Rawat as Special Public Prosecutor. It is further contended that the competency of the Special Public Prosecutor has never been questioned even by the public prosecutor who had expressed his reservation, nor is there any allegation in the petition regarding competency. It is further contended that the competency of the Special Public Prosecutor has never been questioned even by the public prosecutor who had expressed his reservation, nor is there any allegation in the petition regarding competency. As to contention that the Special Public Prosecutor who has been appointed is the close relative of the complainant which will jeopardise the trial, learned Government Advocate relying on the uncontroverted contention made by respondent No.3 in his reply contends that there is no relationship between the complainant and Special Public Prosecutor. It is urged that since there is no relationship between the two and no instances have been shown as to the Special Public Prosecutor representing the complainant in any matter prior to his appointment by the State as Special Public Prosecutor, petitioner's apprehension about the trial being jeopardised is ill-found as there is no cogent material on record to substantiate the same. It is submitted that the State with an object to have a fair trial in the given facts deliberated upon, appointed the Special Public Prosecutor. Learned Government Advocate further deny the petitioner's contention that Special Public Prosecutor has been appointed to secure the conviction. It is urged that as the petitioner, an accused, has a right of fair trial, the victim also has the same right and merely because a person whose name has been suggested, is appointed as Special Public Prosecutor, his appointment cannot be said to be on a mere asking, as the decision is taken only after the District Magistrate and Superintendent of Police gave their opinion. There being no allegation against these two officers nor the competency of the Special Public Prosecutor who is appointed is being questioned, the apprehension that the petitioner will not get justice is ill-found. Accordingly, the State seeks dismissal of the petition. 10. Reply is filed by the complainant, whereby he denies any relationship between the complainant and the Special Public Prosecutor. In paragraph 5 of the reply, the complainant has given reasons which led him to believe and apprehend that his cause of justice may get prejudiced at the hand of existing Public Prosecutor, it is stated :- “.. 10. Reply is filed by the complainant, whereby he denies any relationship between the complainant and the Special Public Prosecutor. In paragraph 5 of the reply, the complainant has given reasons which led him to believe and apprehend that his cause of justice may get prejudiced at the hand of existing Public Prosecutor, it is stated :- “.. It is pertinent to mention here on behalf of answering respondent that he has right to fair and free trial and as he had no faith in the earlier Public Prosecutor looking to the bitter experience of the answering respondent, at the time of cross-examination, examination-in-chief in other cases, as a result of which, the Prosecution Agency has failed to establish its case beyond reasonable doubt, as a result of which, the accused concerned were discharged/acquitted by the trial Court, hence the answering respondent No.1 and 2 assigned the reason that the case is serious in nature.” 11. Respondent-complainant has also placed reliance on the findings recorded by the Chief Judicial Magistrate, Sagar on an application under Section 82 of the Code whereon by order-dated 18.5.2013, the CJM, Sagar found :- fopkj fd;k x;kA pwafd vkjksihx.k U;k;ky; }kjk tkjh fxjQ~rkjh okjaV ij fxjQ~rkj ugha gq,] muds }kjk vius dks fNik;k x;k rFkk os Qjkj gSA blds laca/k esa /kkjk 82 n0iz0la0 ds varxZr mn~?kks"k.kk Hkh tkjh dh xbZA ftldk izdk'ku Hkh gqvk] ftlds lekpkj i= dh izfr dsl Mk;jh ds lkFk izLrqr dh xbZ gSA vkjksih /kkjk 82 n0iz0la0 ds vUrxZr tkjh mn~?kks"k.kk ds i'pkr~ Hkh gkftj ugha gq, gSA ,slh fLFkfr esa /kkjk 83 n0iz0la0 ds vUrxZr mudh laifRr dh dqdhZ dk vkns'k fn;k tkkrk gSA vkns'k bl funsZ'k ds lkFk fn;k tkrk gS fd vkjksihx.k dh dsoy O;fDrxr laifRr gh dqdZ dh tkos] lkFk gh vkns'k fd;k tkrk gS fd ,slh laifRr tks jktLo nsus okyh gS og dysDVj ds ek/;e ls dqdZ dh tkosA tgka rd vkjksih dh vksj ls bl vk'k; dk vkosnu izLrqr fd;k x;k gS fd vijk/k ds laca/k esa tkap vfrfjDr iqfyl v/kh{kd }kjk dh tk jgh gS bl dkj.k dksbZ vkns'k u fn;k tkos bl laca/k esa iqfyl Fkkuk dksrokyh }kjk izfronsu fn;k x;k gS fd tkap py jgh gS] ijarq mudh fxjQ~rkjh djus ls jksdus gsrq dksbZ funsZ'k ugha gSA ,slh fLFkfr esa tks vkifRr /kkjk 83 n0iz0la0 ds laca/k esa dh xbZ gS] og mfpr ugha gSA /kkjk 83 n0iz0la0 ds varxZr tks vkifRr Jhefr y{eh Bkdqj }kjk is'k dh xbZ gSA mlds laca/k esa tkap Jh vuwi f=ikBh U;k0 eft0 izFke Js.kh dh vksj leqfpr fujkdj.k gsrq Hksth tkrh gSA iqfyl Fkkuk dksrokyh dh vksj ls izLrqr dh xbZ izkFkZuk /kkjk 83 n0iz0la0 Lohdkj dh tkrh gS rFkk ek= vkjksihx.k dh O;fDrxr laifRr ds laca/k esa /kkjk 83 n0iz0la0 ds varxZr laifRr dqdhZ djus dk vkns'k fn;k tkrk gSA 12. It is contended that even after the order-dated 18.5.2013, two accused including the petitioner did not surrender. And, it was only when they had an anticipatory bail order in the hand, the petitioner surrendered on 27.11.2013. All these eventualities, it is urged, has given rise to an apprehension that the accused being an influential person and capable of even influencing the conduct of trial at the hand of existing Public Prosecutor that he requested for appointment of a most competent lawyer as a Special Public Prosecutor. All these eventualities, it is urged, has given rise to an apprehension that the accused being an influential person and capable of even influencing the conduct of trial at the hand of existing Public Prosecutor that he requested for appointment of a most competent lawyer as a Special Public Prosecutor. It is submitted that the petitioner did not exert any pressure as has been argued on behalf of petitioner. As to the competency of the State Government, it is not disputed on behalf of complainant that it is the State Government which has sole discretion to appoint Special Public Prosecutor which being satisfied that the circumstances so warrants and having appointed the Special Public Prosecutor need not be interfered with as due process has been followed. 13. Special Public Prosecutor whose appointment has been questioned has also filed the reply. In paragraph 4 of his reply, it is stated that he is not related to either the complainant or any of his family members. It is also stated that he is also not related to the Rawat Family in whose marriage celebration the alleged incident occurred. It is further stated in paragraph 6 of his reply that “the petitioner has not alleged any allegation against the answering respondent about his conduct of fairness and impartiality. The function of Public Prosecutor is to conduct the trial with all fairness and impartiality. There are no allegation of any apprehension with regard to these two elements in the writ petition”. It is further stated in paragraph 7 of his reply that he has been public prosecutor in the Session Court, Sagar for over 35 years during which period he has conducted numerous important and sensational criminal trials and that the State previously has appointed him Special Public Prosecutor in five cases. It is stated that his impartiality and fairness in conducting the criminal trials is undisputed. 14. The petitioner though filed the rejoinder to the reply filed by respondent No.3 but has chosen not to controvert the stand taken by respondent No.4. 15. In its rejoinder to the return filed by respondent No.3, the petitioner in paragraph 6 of the rejoinder has contradicted the stand of respondent No.3 about the competency of the existing public prosecutor. It is stated that these were not the reasons given by the respondent-complainant in his application for appointment of Special Public Prosecutor. 15. In its rejoinder to the return filed by respondent No.3, the petitioner in paragraph 6 of the rejoinder has contradicted the stand of respondent No.3 about the competency of the existing public prosecutor. It is stated that these were not the reasons given by the respondent-complainant in his application for appointment of Special Public Prosecutor. However, an averment of relationship of respondents No.3 and 4 is reiterated but no details are given as to how they are related except that they are cousin brothers. Whereas, respondent No.4 in his reply denied any sort of relationship either with respondent No.3 or even those where the marriage has solemnized. The averments are not controverted by the petitioner. That, vide I.A. No.12798/2015 the petitioner has brought on record additional documents which include the objection raised by him before the State Government on 14.10.2014 and the proceedings drawn thereon, to state that they are not taken to logical end. As to these objections, it is for the State Government to consider the same. And, it being not the claim of the petitioner that the State Government be directed to take a decision on the objection raised. The objections are left to be dwelt by the State Government. For the present, since relief sought in present petition is being perused, the matter is heard and decided after considering the rival contentions. 16. There can be no cavil to the proposition that the Public Prosecutor does not represent the investigating agencies, but the State. And, that he is an important officer of the State, acting independently, fairly and bring all relevant facts before the Court so that truth prevails and justice is done to all the parties including the victim (please see. Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 , Shiv Kumar v. Hukum Chand (1999) 7 SCC 467 , Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 . That, the appointment of Special Public Prosecutor could be in cases in which the Govt. on the basis of material on record and nature of the case objectively exercise the discretion. (please see Sunil Kumar v. State of M.P. 1992 MPLJ 772 ). 17. It is also trite, as has been spelt out in Rajendra Nigam v. State of M.P. 1998 CrLJ 998 that, “The philosophy involved which can be discerned from the sub-section is two fold. (please see Sunil Kumar v. State of M.P. 1992 MPLJ 772 ). 17. It is also trite, as has been spelt out in Rajendra Nigam v. State of M.P. 1998 CrLJ 998 that, “The philosophy involved which can be discerned from the sub-section is two fold. First, if there should be special circumstance 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 circumstance. 18. These stipulations though are not provided under the Statute, but are carved out from various judicial pronouncement to meet out the ends of justice to both the victim as also the accused. In this context, it was observed in Mukul Dalal v. Union of India (1988) 3 SCC 144 that “The primacy given to the Public Prosecutor under the scheme of the Code has a social purpose. … 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.” 19. Thus, the appointment as such of a Special Public Prosecutor is not thwarted. What has been discouraged is non-consideration of the circumstance leading to request for appointment. Therefore, the competent authority has been cautioned to be careful while considering the request for appointment. In each of the cases relied upon by the petitioners, the observations are in the context of the given facts in respective cases. Each of the observation, however, aims at that role of a Public Prosecutor and the care to be taken by the State Government while considering the request for appointment of a Special Public Prosecutor. Thus, a decision to appoint or not to appoint a Special Public Prosecutor has to be examined in the light of given facts. 20. Each of the observation, however, aims at that role of a Public Prosecutor and the care to be taken by the State Government while considering the request for appointment of a Special Public Prosecutor. Thus, a decision to appoint or not to appoint a Special Public Prosecutor has to be examined in the light of given facts. 20. In the case at hand, as evident from the impugned order that the State Government does not abruptly take a decision, but takes an action on the basis of the report furnished by the District Magistrate and the Superintendent of Police. There is no allegation against these two officers that they acted with any malice. Thus, a proper procedure has been adopted by the State Government before taking a decision for appointment of Special Public Prosecutor, after satisfying itself that the case deserves to be conducted by Special Public Prosecutor. In this context, reference can be had of a decision in State of Maharashtra v. Prakash Prahlad Patil (2009) 12 SCC 159 , wherein it is held - “5. The scope for judicial review has been examined by this court in several cases. 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 decisions do not occasion miscarriage of justice. 6. 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. 7. 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. 7. 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. ..” 21. Be it noted that the verdict in Prakash Prahlad Patil (supra) is in the context of the case wherein several accused were facing trial and though initially it was not disclosed that respondent No.1 was related to one of the accused opposing the appointment of respondent No.3 as Special Public Prosecutor at the instance of brother and son of victim. Whereas, in the present case, appointment is primarily opposed on the ground of close relationship which may cause prejudice. However, since the petitioner fails to establish the relationship between the complainant and the Special Public Prosecutor and that there is no allegation against the competency of the Special Public Prosecutor nor could it be established as to what prejudice would be caused to the petitioner with the appointment of respondent No.4 as Special Public Prosecutor, the State is well within its right in appointing respondent No.4 as Special Public Prosecutor. 22. In view whereof, since no relief can be granted to the petitioner, petition is dismissed. However, no costs.