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2018 DIGILAW 1018 (MP)

Kamlendra Sinh v. State of M. P.

2018-12-12

ROHIT ARYA

body2018
JUDGMENT : Rohit Arya, J. This writ petition under Article 226 & 227 of the Constitution of India by an accused in sessions trial No.471/2013 pending in the Court of Thirteenth Additional Sessions Judge, Indore is preferred challenging the legality, validity and propriety of the order dated 09/12/2018 whereby the application filed under section 225 Cr.P.C., 1973 has been rejected by the trial Court. 2. Facts in hand have somewhat chequered history. A private complaint for the offence punishable under sections 420, 415 and 477 IPC has been filed by one Sanghi Brothers (Indore) Private Limited on 13/08/2004 (Annexure P/4) through counsel Shri Vinay Saraf (respondent No.2). The Judicial Magistrate First Class, Indore (for short, 'the JMFC') had taken cognizance of the offence under section 204 Cr.P.C., 1973 on 16/02/2005 (Annexure R/2/1). The petitioner has challenged the said order dated 16/02/2005 through Mis. Cr. Case No.1837/2005 but, dismissed on 10/10/2006 by this Court (Annexure R/2/2). Special Leave Petition (Cr.) No.6641/2006 against the said order was also dismissed on 05/01/2007 by the Hon'ble Supreme Court (Annexure R/2/3). During the course of trial, petitioner appeared before the JMFC and recorded his evidence against the above charge. However, the petitioner has avoided appearance in the hearing resulting into delay of cross-examination of the complainant, therefore, his right to cross-examination was closed on 28/06/2012 by the trial Court. Petitioner challenged the same in Mis. Cr. Case No.8012/2012 and this Court while allowing the same vide order dated 08/01/2013 has further directed the Court below to dispose of the complaint case within nine months (Annexure R/2/4). Through the State amendment in the First Schedule of the Cr.P.C., vide Code of Criminal Procedure (Madhya Pradesh Amendment) Act, 2007 (Madya Pradesh Act 2 of 2008) with effect from 14/02/2008 where under the offence punishable under section 477 IPC is now triable by the Court of Sessions. As the charges were yet to be framed and in view of the aforesaid amendment, the JMFC has committed the criminal case under section 209 Cr.P.C., 1973 to the Court of Sessions on 20/062003. The petitioner has challenged the said order before this Court by filing Mis. Cr. Case No.6588/2013 and the same was dismissed on 23/09/2013 (Annexure R/2/5). Against the said order, the petitioner had preferred special leave petition before the Hon'ble Supreme Court being S.L.P. (Cr.) No.282/2014 but, it was dismissed on 27/01/2017 (Annexure R/2/6). The petitioner has challenged the said order before this Court by filing Mis. Cr. Case No.6588/2013 and the same was dismissed on 23/09/2013 (Annexure R/2/5). Against the said order, the petitioner had preferred special leave petition before the Hon'ble Supreme Court being S.L.P. (Cr.) No.282/2014 but, it was dismissed on 27/01/2017 (Annexure R/2/6). At this stage, the complainant has filed an application before the State Government through the competent authority (Annexure R/1) with a request to appoint the respondent No.2 as Special Public Prosecutor in the case for the reason that the respondent No.2 has been engaged since the year 2004 with the filing of the complaint case and as there are huge documentation in support of the complaint, he is well acquainted with the case and he has well expertise to prosecute the criminal cases. The State Government upon due consideration of the facts and circumstances of the case has appointed the respondent No.2 as Special Public Prosecutor on 07/06/2014 (Annexure P/1). On 27/07/2017, the examination-in-chief of the complainant (P.W.1) started and the cross-examination is yet to be concluded. In the meantime, the respondent No.2 was designated as senior advocate by the High Court on 05/06/2017. The petitioner has filed an application before the Court below on 12/01/2018 (Annexure P/5) on the ground that the respondent No.2 who is now senior advocate cannot act as Special Public Prosecutor under the Advocates Act, 1961 and the Rules of Bar Council of India. The Additional Sessions Judge by a detailed order with due advertence to the relevant provisions of the aforesaid Act and the Rules dismissed the application on 09/02/2018 (Annexure P/2). This order is impugned in this writ petition. 3. Learned counsel For the Petitioner contends that while passing the order impugned, the trial Court has wrongly rejected the objection as regards continuance of the respondent No.2 as Special Public Prosecutor consequent upon his designation as senior advocate. Learned counsel further attempted to question the appointment of respondent No.2 as Special Public Prosecutor dated 07/06/2014 by the State Government under section 24 (8) Cr.P.C., 1973 though no such challenge was made before the Court below as evident from the application and the prayer made there under and considered by the Court of Sessions. Learned counsel further attempted to question the appointment of respondent No.2 as Special Public Prosecutor dated 07/06/2014 by the State Government under section 24 (8) Cr.P.C., 1973 though no such challenge was made before the Court below as evident from the application and the prayer made there under and considered by the Court of Sessions. It is contended that the appointment of respondent No.2 as Special Public Prosecutor is in violation of section 24(8) Cr.P.C., 1973 as the respondent No.2 was counsel for the complainant, he could not have been appointed as Special Public Prosecutor. Besides, no reasons have been assigned by the State Government for such appointment of the respondent No.2. 4. Per contra, learned senior counsel contends that the appointment of respondent No.2 as Special Public Prosecutor by the State Government is in the realm of administrative function though under the statutory provisions, the same is not open to judicial review under Article 226 of the Constitution of India inter alia contending that the writ petition is not maintainable as the decision to appoint Special Public Prosecutor is the prerogative of the State Government, unless; the process of making appointment is pregnable or if the decision so taken suffers from vice, arbitrariness, mala fide, miscarriage of justice or prejudice to the petitioner. Neither there is any averment nor allegation of such type in the entire application, Annexure P/5. Petitioner has challenged continuance of the respondent No.2 as Special Public Prosecutor on the ground that subsequent to his designation as senior advocate, he cannot continue as Special Public Prosecutor. Learned senior counsel has relied upon the judgment of the Hon'ble Supreme Court in the case of State of Maharashtra and others v. Prakash Prahlad Patil and others, (2009) 12 SCC 159 ; Division Bench of this Court at Indore in Writ Appeal No.549/2012 decided on 01/03/2013 (Badrilal Patidar S/o Mr. Siddhanath Singh Patidar v. State of Madhya Pradesh and others), coordinate Bench decisions in the cases of Mayuresh s/o Sharad Vyas v. State of M.P., and others, 2010(3) MPLJ 473 & Pawan Kumar Saraswat and others v. State of M.P., W.P.No.212 of 2017 decided on 11/12/2017 and this Court in W.P.No.2835 of 2017 decided on 19/12/2017 - Dev Raj Kataria v. State of M.P., and others) to bolster his submission. 5. 5. Learned State's counsel appearing For the Respondent No.1/State besides adopting the contentions advanced by the respondent No.2, further submits that the State Government upon relevant considerations has appointed the respondent No.2 as Special Public Prosecutor under section 24(8) Cr.P.C., 1973 particularly; the justification in the matter of appointment of respondent No.2 as Special Public Prosecutor as detailed in paragraph 4.6 of the counter-affidavit. Learned counsel further submits that the trial Judge has rightly rejected the application filed under section 225 Cr.P.C., 1973 in view of provision of rule (b) (ii) of Chapter I of Part VI of the Bar Council of India Rules, quoted below: "Part VI Rules Governing Advocates CHAPTER - I Restrictions on Senior Advocates (Rules Under Sections 16 (3) and 49(1)(g) of the Act) Senior Advocates shall, in the matter of their practice of the profession of law mentioned in Section 30 of the Act, be subject to the following restrictions: (a) ............ (b) (i)......... (ii) Where a Senior Advocate has been engaged prior to the coming into force of the rules in this Chapter, he shall not continue thereafter unless an advocate in Part-II of the State Roll is engaged along with him. Provided that a Senior Advocate may continue to appear without an advocate in Part II of the State Roll in cases in which he had been briefed to appear for the prosecution or the defence in a criminal case, if he was so briefed before he is designated as senior advocate or before coming into operation of the rules in this Chapter as the case may be." He further submits that the aforesaid rule has been comprehensively and elaborately dealt with by the Division Bench of Kerala High Court in the case of Kuriachan Chacko and others v. The Secretary to Government, Home (C) Department Thiruvanthapuram and others, 2016 Cr. L.J. 1489 and also refers to the Orders passed by this Court in the case of Radheshyam v. State of M.P., 2000(2) JLJ 321 and Anup v. State of M.P., and another, 2006(2) MPLJ 12 . 6. Heard. 7. L.J. 1489 and also refers to the Orders passed by this Court in the case of Radheshyam v. State of M.P., 2000(2) JLJ 321 and Anup v. State of M.P., and another, 2006(2) MPLJ 12 . 6. Heard. 7. Before adverting to the rival contentions, it may be observed that; (i) the respondent No.2 is the counsel in the complaint case since beginning while he has filed the complaint in the year 2004 before the JMFC; (ii) the respondent No.2 continued to be counsel in the said case even after amendment in the Cr.P.C., in the First Schedule of the Cr.P.C., vide Code of Criminal Procedure (Madhya Pradesh Amendment) Act, 2007 (Madhya Pradesh Act 2 of 2008) with effect from 14/02/2008 where under the offence punishable under section 477 IPC is now triable by the Court of Sessions; (iii) the respondent No.2 continued to appear for the complainant before the Court of Sessions after the case was committed; (iv) respondent No.2 was appointed by the State Government as Special Public Prosecutor on 07/06/2014 and continued to conduct the case for complainant even after designated as senior advocate on 05/06/2017 by the High Court; During the entire period from the year 2014 to January, 2018, the appointment of respondent No.2 as Special Public Prosecutor remained unchallenged and after four years, the same was challenged on 12/01/2018 on the premise that the respondent No.2 has been designated as senior counsel by the High Court albeit it is the contention of the petitioner that S.L.P. (Cr.) No.282/2014 was pending consideration before the Hon'ble Supreme Court and the same was dismissed on 27/01/2017 (Annexure R/2/6). 8. The jurisdiction of this Court under Article 226 of the Constitution of India is subject to self-imposed limitations. It is essentially an equitable jurisdiction to be exercised with circumspection. It ensures that the authority taking a decision was competent to do so in law, the decision making process is based on relevant considerations and is free from the elements like bias, malice, arbitrariness, unreasonableness, or perversity. This Court does not sit as an appellate Court to examine the decision taken by the authority on merits. The power of judicial review under writ jurisdiction is not omnipresent to set right anything under its sky. 9. This Court does not sit as an appellate Court to examine the decision taken by the authority on merits. The power of judicial review under writ jurisdiction is not omnipresent to set right anything under its sky. 9. The appointment of respondent No.2 as Special Public Prosecutor in exercise of the powers under section 24(8) Cr.P.C., 1973 by itself may not be vulnerable unless; the same falls within the scope of interference as detailed above under Article 226 of the Constitution of India. At this stage, it is apposite to quote the judgment of the Hon'ble Supreme Court in the case of State of Maharashtra and others (supra) arising out of appointment of Special Public Prosecutor under section 24(8) Cr.P.C,, 1973 "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 occasions miscarriage of justice. The courts cannot be called upon the 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." 10. A careful reading of the application dated 12/01/2018 with prayer clause (Annexure P/5) suggests that the petitioner sought to assail the continuance of respondent No.2 as Special Public Prosecutor for the reason that he has been designated as senior advocate but, it is not an application questioning the appointment of respondent No.2 as Special Public Prosecutor, per se. That apart, the respondent No.2 has been the counsel for the complainant since the time of institution of the complaint on 13/08/2004 before the JMFC, Indore. He has been continuously piloting the instant criminal case. That apart, the respondent No.2 has been the counsel for the complainant since the time of institution of the complaint on 13/08/2004 before the JMFC, Indore. He has been continuously piloting the instant criminal case. The complainant M/s Sanghi Brothers (India) Pvt. Ltd., has filed an application before the State Government through the competent authority for appointment of respondent No.2 as Special Public Prosecutor on 10/01/2014 (Annexure R/1). In his application, the complainant has given various reasons. The reasons shown for such appointment being germane inasmuch, the respondent No.2 is familiar with the case, numerous documentation, he has sufficient expertise as he has conducted many more criminal cases as prosecutor and he is dealing with the case since the year 2004, the Additional Collector vide communication dated 30/01/2014 forwarded the application to the State Government. The State Government upon due consideration has accordingly appointed the respondent No.2 as Special Public Prosecutor vide order dated 07/06/2014 (Annexure P/l). The respondent No.2 continued to perform his duties as counsel for complainant but, in the wake of the fact that First Schedule of Cr.P.C.,was amended by the State of Madhya Pradesh, viz., the Code of Criminal Procedure (Madhya Pradesh Amendment) Act, 2007 (Madhya Pradesh Act No.2 of 2008) with effect from 14/02/2008 and the case was committed to the Court of Sessions by the JMFC vide order dated 20/06/2013 under section 209 Cr.P.C., 1973 a request was made for his appointment as Special Public Prosecutor; otherwise there was no requirement for filing such an application. Thereafter, the respondent No.2 was designated as senior advocate on 05/06/2017 by the High Court. It appears that the petitioner harboured a notion that after designation of respondent No.2 as senior advocate, he could not continue to act as Special Public Prosecutor and, therefore, he has filed the application under section 225 Cr.P.C., 1973 on 12/01/2018. 11. The trial Court has considered the application and by a speaking order and in view of provision of rule (b) (ii) of Chapter I of Part VI of the Bar Council of India Rules quoted above has found that continuance of respondent No.2 as Special Public Prosecutor is in no way prohibited. Accordingly dismissed the application. 12. 11. The trial Court has considered the application and by a speaking order and in view of provision of rule (b) (ii) of Chapter I of Part VI of the Bar Council of India Rules quoted above has found that continuance of respondent No.2 as Special Public Prosecutor is in no way prohibited. Accordingly dismissed the application. 12. This Court has carefully gone through the Division Bench judgment of the Kerala High Court in the case of Kuriachan Chacko and others (supra) and the learned counsel has correctly relied upon the ratio of the said judgment. 13. To summarize again, in his application under section 225 Cr.P.C., 1973 (i) there is no challenge to the appointment of respondent No.2 as Special Public Prosecutor under section 24(8) Cr.P.C., 1973 (ii) neither the jurisdiction nor the decision making process of the authority exercising the power under section 24(8) Cr.P.C., 1973 in the matter of appointment of respondent No.2 as Special Public Prosecutor has been questioned; (iii) there is no allegation of malice or bias or unreasonableness; (iv) there is no allegation of prejudice or animus against the accused; (v) there is nothing on record to show as to how the appointment of respondent No.2 as Special Public Prosecutor to conduct the proceedings in any way caused prejudice to the petitioner. Under the circumstances, this Court sees no reason to interfere in the matter of appointment of respondent No.2 as Special Public Prosecutor. 14. In the opinion of this Court, the trial Court did not commit any illegality or jurisdictional error while rejecting the application filed by the petitioner under section 225 Cr.P.C., 1973 15. Consequently, writ petition is found to be misconceived. Accordingly, dismissed.