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2018 DIGILAW 152 (KER)

P. K. Reghunathan v. State of Kerala, Represented by the Additional Chief Secretary (Home)

2018-02-16

B.KEMAL PASHA

body2018
JUDGMENT : B. Kemal Pasha, J. 1. The 5th respondent, who is a practising lawyer of the Thrissur Bar, was appointed as Special Public Prosecutor to conduct prosecution in SC No. 995/2013 of the Additional Sessions Court, Irinjalakkuda, which has arisen from Crime No. 1935/2012 of Mathilakam Police Station for the offences under Section 302 IPC and Section 5 read with Sections 27 and 30 of the Arms Act. 2. Presently, the appointment of the 5th respondent as Special Public Prosecutor itself has been challenged by the accused in the case on three grounds. The first ground is that earlier, the 5th respondent had appeared in person before the Sessions Court for and on behalf of the wife of the deceased, who is the 6th respondent herein. Ext.P2 is the copy of the Vakalat filed by one Advocate Mounish for the 6th respondent, before the Sessions Court, Thrissur. According to the petitioner, the said Advocate Mounish is attached to the office of the 5th respondent. 3. The second ground is that the 5th respondent himself got prepared Ext.P5 sketch through the present Village Officer in respect of the scene of occurrence and has also filed several other applications to bring in some fresh matters in evidence, which were not collected by the investigating officer. 4. The third ground is that the appointment of the 5th respondent as Special Public Prosecutor is not in terms of the Circular relating to such appointment. 5. Regarding the first ground, it seems that one Advocate Mounish has filed Ext.P2 Vakalat for the 6th respondent. Even though the learned Senior Counsel for the petitioner has submitted that the said Mounish is attached to the office of the 5th respondent, the learned counsel for the 6th respondent has pointed out that once the said Mounish was a junior lawyer attached to the office of the 5th respondent and presently, he is not attached to the office of the 5th respondent. It has also been denied that the 5th respondent had appeared in person in court for the 6th respondent. If at all the said lawyer was once associated with the office of the 5th respondent and was practicing as a junior under him, and when presently he is not associated with the office of the 5th respondent, it cannot be presumed that the 5th respondent is biased. If at all the said lawyer was once associated with the office of the 5th respondent and was practicing as a junior under him, and when presently he is not associated with the office of the 5th respondent, it cannot be presumed that the 5th respondent is biased. There is absolutely nothing to show that he had appeared in person before the Sessions Court for and on behalf of the 6th respondent. 6. Regarding the second ground, the Special Public Prosecutor is fully justified by the decision of a Division Bench of this Court in Koshy @ Baby vs. State, 1991 (1) KLJ 453, wherein it was held that the sketch in a sessions case should show the correct particulars in the mahazar relating to the scene of occurrence and it is required for the court to understand precisely as to where is the scene of occurrence and the location of each and every incident in the case. If the sketch is found to be not one useful for the purpose or faulty, it is the duty of the Prosecutor to see that a proper sketch is produced. 7. In this particular case, the allegation is that the Special Public Prosecutor was instrumental in getting prepared Ext.P5 and producing it before the court below. It is the duty of the Prosecutor to aid the court and to apprise the court regarding the actual location of the incident. Regarding other applications filed by the Prosecutor also, this Court is of the view that it is the duty of the Prosecutor to see relevant applications are filed before the court. The Prosecutor is not bound by the police case itself. The Prosecutor can well go beyond the matters investigated by the investigating officer. If the investigating officer has failed to cite a witness, who ought to have been cited, the law will stand in favour of the Prosecutor in citing and examining the witness, whose name does not find a place in the final report. The Prosecutor can well travel even to that extent. It cannot be said that the Prosecutor cannot file any such application to bring out evidence before the court below. Of course, the attitude of the Prosecutor should not be tainted and biased. But, at the same time, it is the duty of the Prosecutor to see that the truth comes before the court. 8. It cannot be said that the Prosecutor cannot file any such application to bring out evidence before the court below. Of course, the attitude of the Prosecutor should not be tainted and biased. But, at the same time, it is the duty of the Prosecutor to see that the truth comes before the court. 8. The learned counsel for the 6th respondent has pointed out that every attempts were made by a senior police officer to see that proper evidence was not produced in the case before the court below. Several irregularities were brought deliberately in the matter to aid the accused. In such case, the Special Public Prosecutor has got a duty to cure such defects, which have been crept in the records. Therefore, the production of Ext.P5 or the filing of other applications for bringing out materials before the court below by Special Public Prosecutor, cannot be styled as acts of bias on the part of the Special Public Prosecutor. 9. Regarding the appointment of the Special Public Prosecutor allegedly in violation of the terms of the Circular, presently, the petitioner cannot challenge it. Much waters have flown under the bridge after his appointment. The Special Public Prosecutor was appointed in the year 2014. Trial of the case commenced in the year 2017. So far, 21 witnesses have been examined. Only 6 more witnesses remain to be examined. After having chosen to proceed with the trial and to co-operate with the trial so far, the petitioner cannot be presently heard to say that the appointment of the Special Public Prosecutor was in violation of the terms of the Circular. Had it been so, he ought to have challenged the appointment through proper proceedings in the year 2014 itself. 10. It seems that unnecessarily, the trial of the sessions case has been stalled. In fact, this writ petition ought not have been admitted. This writ petition is devoid of merits, and is only to be dismissed and I do so. 11. In the result, this writ petition is dismissed. The learned Sessions Judge shall take the case out of turn and shall dispose it off, expeditiously.