JUDGMENT : S. Manikumar, J. Being aggrieved by the judgment made in W.P.(C).No.25323 of 2019 dated 17.10.2019, declining to quash Ext.P4 notification by which respondent No.3 has been appointed as a Special Public Prosecutor for the conduct of the prosecution in S.C.No.471 of 2011 on the file of the Additional Sessions Court-III, Thalassery, instant appeal is filed. 2. Facts deduced from the materials on record are that, writ petitioner is the father of one Salim who was murdered on 23.7.2008. Consequent to the registration of Crime No.515 of 2008 of Thalassery Police Station and investigation, case was made over to the Additional Sessions Court-III, Thalassery. Earlier, the writ petitioner has filed W.P.(C) No.5896 of 2013 before this Court seeking for entrustment of the investigation of Crime No.515 of 2008 of Thalassery Police Station to Central Bureau of Investigation. Writ petitioner has received Ext.P2 lawyer's notice dated 14.2.2017 from Mr. K. Viswan, Advocate, respondent No.3, in his capacity as a lawyer representing one Mr.K.P. Prabhakaran. In Ext.P2 notice, it is stated that the writ petitioner has made baseless and malafide allegations with regard to the death of Mr. Prabhakaran's son. Writ petitioner sent Ext.P3 reply notice dated 3.3.2017. Alleging that respondent No.3 usually appears for activists, workers and leaders of Communist Party of India (Marxist), and appears for the leaders and activists of CPI(M) in Thalassery Courts in several cases, writ petitioner has objected to the appointment of respondent No.3 as a Special Public Prosecutor in S.C.No.471 of 2011 on the file of the Additional Sessions Court-III, Thalassery. Taking note of legislative policy underlined in Section 24(8) of the Code of Criminal Procedure, 1973 (for brevity, 'the Code') and also the submission of the writ petitioner, writ court, declined to quash Ext.P4 notification dated 19.9.2017 and dismissed the writ petition. 3. Inviting the attention of this Court to Ext.P2 lawyer's notice dated 14.2.2017 sent by Mr.K. Viswan, Advocate, respondent No.3, Mr. K. Ramakumar, learned Senior Counsel for the appellant, submitted that when respondent No.3 has made baseless allegations in the said notice, particularly, in connection with the murder of Mr.Prabhakaran's son, appearance of the said counsel as a Special Public Prosecutor in S.C.No.471 of 2011 on the file of the Additional Sessions Court-III, Thalassery would be a conflict of interest with reference to Rules 7(1) and 7(2) of the Rules Regarding Conditions of Practice of Advocates, 1969. Placing reliance on the decision of the Hon'ble Supreme Court in Mukul Dalal v. Union of India [ (1988) 3 SCC 144 ], learned Senior Counsel submitted that as per the said decision, a Special Public Prosecutor should not be appointed based on the request of a private complainant. 4. Mr.V.Tekchand, learned Senior Government Pleader, submitted that during the course of hearing of the writ petition, writ court had taken note of the fact that the trial was fixed on 1.10.2019. Government Pleader further submitted that trial commenced has been adjourned. According to him, a well considered order of the writ court need not be interfered with. 5. Before adverting to the rival contentions, let us have a cursory look at the provisions relevant for the purpose of consideration of this case. Section 24(8) of the Code 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. As per the decision in Narayanankutty v. State of Kerala ( 1982 KLT 605 ), the legislative policy underlined in subsection (8) of Section 24 of the Code is to preserve the interests of the State and to protect public interest in individual cases or class of cases and for that purpose power is vested in the Government to appoint Special Public Prosecutors in appropriate cases, where public interest demands such a course. 6. 6. Rules 7(1) and (2) of the Rules Regarding Conditions of Practice of Advocates, 1969 read thus:- “7(1) Except when specially authorised by the Court or by consent of the party, an advocate, who has advised in connection with the institution of a suit, appeal or other proceeding, or has drawn up pleadings in connection with such matter, or has during the progress of any suit, appeal or other proceeding, appeared, acted or pleaded for a party, shall not, unless he first gives the party whom he has advised or for whom he has drawn up pleadings, appeared, acted or pleaded an opportunity of engaging his services, appear or act or plead in such suit, appeal or other proceeding or in an appeal or application for revision arising there from or in any matter connected therewith for any person whose interest is in any manner in conflict with that of such party. Provided that the consent of the party may be presumed if he engages another advocate to appear, act or plead as the case may be for him in such suit, appeal or other proceeding without offering an engagement to the advocate whose services were originally engaged by him or on his behalf. (2) Where it appears on the face of the record that the appearance of an advocate in any proceeding for any party is prejudicial to the interest of any other party on account of the reasons mentioned in sub-rule (i) above, the Court may refuse to permit the appearance to be filed, or cancel such appearance, if it has already been filed, after giving the said advocate an opportunity of being heard. 7. Notification issued by the Government of Kerala in G.O. (Rt).No.2467/2017/Home dated 19.9.2017 (Ext.P4) appointing the respondent No.3 as a Special Public Prosecutor, is extracted:- “S.R.O.No.624/2017--In exercise of the powers conferred by sub-section (8) of section 24 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), read with sub-rules (2), (3) and (4) of rule 11 of the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of cases Rules, 1978, the Government of Kerala hereby appoint Shri.K. Viswan, Advocate (Thalasseri Court Road Junction, Thalasseri Court P.O, Kannur) as Special Public Prosecutor for the conduct of prosecution in Crime No.515/2008 of Thalasseri Police Station.” 8. Rule 11 of the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of cases Rules, 1978 reads thus:- 11. Appointment of Special Government Pleaders and Special Public Prosecutors-- (1) The Government may appoint for the purpose of conducting any civil case or class of civil cases in which the Government is a party, an advocate, who has been in practice as such for not less than seven years, as a Special Government Pleader. (2) The Government may appoint for the purpose of conducting any criminal case or class of criminal cases, an advocate, who has been in practice as such for not less than ten years, as a Special Public Prosecutor. (3) A Special Government Pleader or Special Public Prosecutor appointed under subrule (1) or sub-rule (2), as the case may be, for the purpose of conducting any particular case shall cease to hold office with the pronouncement of the judgment in that case. The term of appointment of a Special Government Pleader or Special Public Prosecutor appointed for the purpose of conducting any class of cases shall be such as may be specified in the order appointing him. (4) The Government may terminate the service is of a Special Government Pleader or Special Public Prosecutor at any time before the expiry of his normal term of appointment without assigning any reasons therefore.” 9. A perusal of the decision in Mukul Dalal's case (supra), relied on by the learned Senior Counsel for the appellant, would show that it was a case where a Public Prosecutor was appointed for mere asking by the private complainant and the Court held that such appointment must be examined by the Legal Remembrancer on the basis of the guidelines prescribed or to be prescribed and the decision taken with reference to Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984. Rule considered by the Hon'ble Supreme Court in Mukul Dalal's case (supra) is reproduced:- “Chapter III of these Rules provides for Special Counsel and Special Public Prosecutors and Rule 22 thereof provides: If in any case, civil or criminal, a request is made by any private party, interested in the case, for the appointment of its own advocate as a Special Counsel or Special Public Prosecutor, as the case may be, on the condition that the payment of fees of such advocate will be borne by that party, the Remembrancer of Legal Affairs may, after considering such case on merits, appoint such advocate for that particular case or cases.” The Hon'ble Supreme Court in Mukul Dalal's case (supra) held:- “8. The pattern that prevails in most of the States is that there is a Remembrancer of Legal Affairs who inter alia looks after the cases instituted by the State. At the district level such interest of the State is looked after by the District Magistrate. There may be instances where a case instituted on a private complaint is really a public cause. In such a case the prosecution though initiated by a private individual is really one which should be taken over by the State. If the complainant thereof approaches the State for assistance in a case of that type by appointing a Special Public Prosecutor or an Assistant Public Prosecutor to support the prosecution it would be for the Legal Remembrancer or the District Magistrate to favourably consider such a request and it would ordinarily be expected that government would appoint a Special Public Prosecutor to take charge of the prosecution. There may also be cases of private complainants where for various other reasons it would be appropriate for the State to support the prosecution by appointing a Public Prosecutor or a Special Public Prosecutor to look after the case. Instances of this type would be cases where the victims are of economically backward classes who are not in a position to vindicate their rights through court without the assistance of the State. Here again the Public Prosecutor's services may be placed at the disposal of the complainant. Instances of this type would be cases where the victims are of economically backward classes who are not in a position to vindicate their rights through court without the assistance of the State. Here again the Public Prosecutor's services may be placed at the disposal of the complainant. It is a well known position in Criminal Jurisprudence that the State is the prosecutor and that is why the primary position is assigned to the Public Prosecutor and where the Public Prosecutor appears, the request of the complainant or the victim to be represented by any other counsel is subject to permission of the court. 9. Two questions have now to be dealt with--whether as a rule whenever there is a request made by a private complainant for the appointment of a Special Public Prosecutor, should the same be accepted and whether such Special Public Prosecutor should be paid by the private party availing his services. In most of the States, as we have already observed, the Remembrancer of Legal Affairs looks after the State litigations. He is a responsible officer and normally with judicial experience. 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. 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 services 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 indicated is adopted. 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 indicated 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. 10. The next question would be whether the Special Public Prosecutor should be permitted to be paid by the private complainant. There is considerable force in what has been stated by the Kerala High Court in the case we have referred to above. There may be certain cases where exception may be made, such as where the prosecutor is a public sector undertaking, a bank whether nationalised or not, an educational institution and the like. The rate of fees should be prescribed and the private complainant should be called upon to deposit the fees either with the Remembrancer of Legal Affairs or a prescribed State agency from where the fees would be drawn by the Special Public Prosecutor. To leave the private complainant to pay to the Special Public Prosecutor would indeed not be appropriate. We would make it clear that we do not support the conclusion of the High Court that as a rule whenever there is request of appointment of a Special Public Prosecutor or An Assistant Public Prosecutor, the same should be accepted. The Remembrancer of Legal Affairs should scrutinise every request, keeping a prescribed guideline in view and decide in which cases such request should be accepted, keeping the facts of such case in view. 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 case where the Special Public Prosecutor's remuneration may be collected from the private source. In such cases the fees should either be deposited in advance or paid to a prescribed State agency from where the Special Public Prosecutor could collect the same. In such cases the fees should either be deposited in advance or paid to a prescribed State agency from where the Special Public Prosecutor could collect the same. In view of these conclusions and our disagreeing with the view of the High Court, the appeals shall stand allowed. Rule 22 of the Maharashtra Rules, referred to above, in our view is bad and the State Government should properly modify the same keeping our conclusions in view. The Remembrancer of Legal Affairs of the Maharashtra Government will now decide as to whether in the three cases referred to here, the services of a Special Public Prosecutor, a Public Prosecutor or an Assistant Public Prosecutor should be provided and in case he comes to the conclusion that such provision should be made, he should decide as to whether the State administration should pay for such Public Prosecutor or the private complainant should bear the same. There would be no order as to costs.” 10. On the aspect of Section 24(8) of Cr.P.C., we deem it fit to consider few decisions. (i) In Tera Chinnappa Reddy v. Govt. of Andhra Pradesh and Others, reported in 2014 KHC 2753, the High Court of Andhra Pradesh held thus: 9. S.24(8) CrPC in that no consultation or preparation of a panel is envisaged in the latter. The consultation and panel preparation process for appointment to the office of a Public Prosecutor, under the preceeding sub-sections, have no application for appointment to the post of a Special Public Prosecutor. The legislature, in its wisdom, has dispensed with the consultation process and the requirement of preparation of a panel for appointment as a Special Public Prosecutor. (The State of A.P. v. Margadarsi Financiers, 2009 (2) ALD (Cri) 300). No consultation with any authority is required and the Government is fully empowered and has the discretion to appoint anyone, with the requisite qualification, as a Special Public Prosecutor. (Shankar Sinha v. State of Bihar, 1995 CRLLJ 3743). This submission, urged on behalf of the petitioner, necessitates rejection. 12. The State, while appointing a public prosecutor, must bear in mind that, for the purpose of upholding the rule of law, good administration of justice is imperative. (State of U.P. v. Johri Mal, - AIR 2004 SC 3800 ). The expression "Special Public Prosecutor", used in S.24(8) CrPC, is not defined. (Margadarsi Financiers, 2009 (2) ALD (Cri) 300). 12. The State, while appointing a public prosecutor, must bear in mind that, for the purpose of upholding the rule of law, good administration of justice is imperative. (State of U.P. v. Johri Mal, - AIR 2004 SC 3800 ). The expression "Special Public Prosecutor", used in S.24(8) CrPC, is not defined. (Margadarsi Financiers, 2009 (2) ALD (Cri) 300). The definition of "Public Prosecutor", under S.2(u) CrPC, takes within its fold a Special Public Prosecutor appointed under S.24(8) CrPC also. (P.V. Antony v. State of Kerala, - 1989 CriLJ 2482 ). A Special Public Prosecutor, appointed under S.24(8) CrPC, would be a Public Prosecutor for all purposes under the Act. (Assistant Commissioner of Central Excise v. Sabnife Power Systems Ltd, - 2002 (9) SCC 389). As the powers conferred are wide and unfettered, it is evident that Parliament reposed confidence of great magnitude in the office a Public Prosecutor. (Abdul Khader Musliar v. Government of Kerala, - 1993 CriLJ 1249 (Kerala HC)). S.24(8) is a special provision which is in contra - distinction with, and an exception to, the provisions of general appointment of a public prosecutor. (Modugula Mallikarjuna Reddy v. Government of A.P9). This power can be exercised to appoint a person having the prescribed qualifications. (Jayendra Saraswati Swamigal v. State of Tamil Nadu, - 2008 (10) SCC 180 ). The expression "Special" is used as an adjunct to the words "Public Prosecutor", and such appointment being permitted for the purpose of any case, or class of cases, emphasizes the distinction. In the exigencies of a given situation the Government may, in their discretion and wherever necessary and expedient, appoint any Advocate with ten years standing as a Special Public Prosecutor. This appointment is in addition to the regular public prosecutors functioning in the respective Courts. (Margadarsi Financiers, 2009 (2) ALD (Cri) 300). The philosophy discernable from S.24(8) CrPC is that there should be special circumstances for making such appointment. Though circumstances may vary, the very idea behind conferment of the power is to meet special situations. In other words, a Special Public Prosecutor is not to be appointed in ordinary circumstances. The legislative policy underlying S.24(8) CrPC is to preserve the interest of the State and to protect public interest in individual cases or class of cases. Though circumstances may vary, the very idea behind conferment of the power is to meet special situations. In other words, a Special Public Prosecutor is not to be appointed in ordinary circumstances. The legislative policy underlying S.24(8) CrPC is to preserve the interest of the State and to protect public interest in individual cases or class of cases. Power is vested in the government to appoint a special public prosecutor where public interest demands, and not to vindicate the grievance of a private person. (Narayanankutty v. State of Kerala, - 1982 KLT 605 : ( - 1982 CriLJ 2085; Rajendra Nigam v. State of M.P, - 1998 CriLJ 998 (MP) and Abdul Khader, - - 1993 CriLJ 1249 (Kerala HC)). The discretionary power vested in the government, (Johri Mal, - AIR 2004 SC 3800 ), is not to be exercised on the mere asking of the complainant, (Poonamchand Jain v. State of M.P., - 2001 CriLJ 3113; Abdul Kadir, 1993 Cri.L.J. 1249 (Kerala HC); Deveneni Seshagiri Rao v. The Govt. of A.P, - 2004 CriLJ 52), as the primacy given to the Public Prosecutor, under the scheme of the Code, has a social purpose and would be lost thereby. The facts should be examined and a decision taken whether the case merits the appointment of a Special Public Prosecutor. (Mukul Dalal v. Union Of India, - 1988 (3) SCC 144 ). It is not necessary that, whenever an application is made, it should be allowed and a Special Public Prosecutor should be appointed as that would run 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. It would be a travesty of justice if, in such a case, the State concedes to the request for the appointment of a Special Public Prosecutor. The primacy given to the Public Prosecutor, under the scheme of the Code, would be defeated if the services of a Special Public Prosecutor are made available to a private complainant as a rule or for the mere asking. The request should be properly examined and, only if the case deserves such support, should a Special Public Prosecutor be appointed. The primacy given to the Public Prosecutor, under the scheme of the Code, would be defeated if the services of a Special Public Prosecutor are made available to a private complainant as a rule or for the mere asking. The request should be properly examined and, only if the case deserves such support, should a Special Public Prosecutor be appointed. (Mukul Dalal, - 1988 (3) SCC 144 ; K. C. Sud v. S.G. Gudimani, - 1981 (2) CriLJ 1779 (Delhi HC); Omprakash Baheti v. State of Maharashtra, - 2006 CriLJ 3105). The office of the Public Prosecutor is unique in its nature and status, and cannot be permitted to be controlled by, or slip into the hands of, private individuals. The request of the complainant for appointment of a Special Public Prosecutor cannot, therefore, be acceded to as a matter of course. (Deveneni Seshagiri Rao, (2004 CriLJ 52). 14. A. EXERCISE OF POWER, UNDER SECTION 24(8) CrPC, IS DISCRETIONARY: All power has legal limits. Courts refuse to countenance arbitrary power and unfettered discretion. Statutory powers should be exercised reasonably and in good faith, for proper purposes only, and in accordance with the spirit as well as the letter of the empowering Act. (H.W.R.WADE & C.F. FORSYTH'S ADMINISTRATIVE LAW - TENTH EDITION). In a system governed by the rule of law discretion, when conferred upon the Executive, must be confined within clearly defined limits. There is no such thing as an absolute or untrammelled discretion, the nursery of despotic power, in a democracy based on the rule of law (United States v. M. Wunderlich, - 1951 (342) US 98). Exercise of discretionary administrative power will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. The authority must genuinely address itself to the matter before it. In the purported exercise of its discretion, it must act in good faith, must have regard to all relevant considerations, must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. (Indian Railway Construction Co. (Indian Railway Construction Co. Ltd. v. Ajay Kumar, - 2003 (4) SCC 579 ; State of U.P. v. Renusagar Power Co, - 1988 (4) SCC 59 ; de Smith: Judicial Review of Administrative Action, 4th Edn.). If, in the discharge of a public duty, the authority exercising his discretion takes into account matters which the Courts consider improper for the guidance of his discretion, then the authority has not exercised that discretion in the eye of law. (Maxwell on the Interpretation of Statutes, llth Edition, page 118). 15. Appointment of a Public Prosecutor is an executive or administrative act exercised at the discretion of the Government. (A. Mohambaram v. M.A. Jayavelu, - AIR 1970 Mad. 63 ). Even in administrative matters, State action must be informed by "reasons" as it follows that an "act uninformed by reason is arbitrary". No authority is entitled to take irrelevant or irrational factors into consideration or appear arbitrary in its decision. The "duty to act fairly" is a part of the fair procedure envisaged under Art.14 and Art.21 of the Constitution. Every State action must be guided by public interest. The duty to give reasons is implicit in the exercise of such power. The obligation to give reasons not only introduces clarity but it also excludes, or at any rate minimizes the chance of arbitrariness and the higher forum can test the correctness of those reasons. Passing an order, without application of mind, is an arbitrary exercise of power. (Madho Singh, 2002 CriLJ 1694; Charan Singh v. Healing Touch Hospital, - 2000 (7) SCC 668 ). Public authorities cannot play fast and loose with the power vested in them. An enabling power, conferred for public reasons and for public benefit, is coupled with a duty to exercise it when the circumstances so demand. It is a duty which cannot be shirked or shelved nor can it be evaded, and performance of it can be compelled. (Madho Singh, - 2002 CriLJ 1694; Commissioner of Police v. Gordhandas Bhanji, - AIR 1952 SC 16 ; Julius v. Lord Bishop of Oxford, 1880 (5) AC 214). 17. Exercise of discretionary power under S.24(8) CrPC, to appoint a Special Public Prosecutor, must accord with law and cannot be whimsical or arbitrary. (Madho Singh, - 2002 CriLJ 1694; Commissioner of Police v. Gordhandas Bhanji, - AIR 1952 SC 16 ; Julius v. Lord Bishop of Oxford, 1880 (5) AC 214). 17. Exercise of discretionary power under S.24(8) CrPC, to appoint a Special Public Prosecutor, must accord with law and cannot be whimsical or arbitrary. A request, for the appointment of a Special Public Prosecutor, must be carefully examined to ascertain whether it is in public interest; why prosecution cannot be entrusted to the regular public prosecutor of the said Court; and whether the person, for whose appointment a request is made, would be able to discharge his functions as a Public Prosecutor uninfluenced either by the complainant or the accused. 22. This Court may not be understood to have held that, in cases where allegations of corruption are levelled against a Minister or a Public Servant, no Special Public Prosecutor should be appointed. This statutory discretionary power, under S.24(8) CrPC, undoubtedly enables the Government to appoint a Special Public Prosecutor. Before doing so, however, the Government should independently examine the necessity of appointing a Special Public Prosecutor; and, if it is satisfied that it is so necessary, then consider the suitability of the person to be appointed as the Special Public Prosecutor to prosecute the accused. 28. Courts in India have recognised the practice of the Government appointing a Special Public Prosecutor at the instance of aggrieved persons in criminal cases. Criminal prosecutions are launched not only by the State but also by private parties. The role of the Prosecutor in any criminal trial, whether at the instance of the State or a private party, is to safeguard the interests of both the complainant and the accused. In the discharge of his duties as a prosecutor he is ordained by law, by professional ethics and by his role as an officer of the Court, to employ only such means as are fair and legitimate, and to desist from resorting to unjust and wrongful means. The duties of the prosecutor and the requirements of a fair trial do not vary from case to case. (Vijay Valia v. The State of Maharashtra, - 1986 CriLJ 2093; Susey Jose v. G. Janardhana Kurup, - 1994 CriLJ 2780 (Kerala HC)). 33. The duties of the prosecutor and the requirements of a fair trial do not vary from case to case. (Vijay Valia v. The State of Maharashtra, - 1986 CriLJ 2093; Susey Jose v. G. Janardhana Kurup, - 1994 CriLJ 2780 (Kerala HC)). 33. After noting the other sub-sections of S.24 CrPC, the Supreme Court referred to S.24(8) and the submission urged on behalf of the appellant that the Code conferred a special status on the Public Prosecutor; wherever considered necessary, the law had prescribed the interest to be represented by the Public Prosecutor; and it was not a proper exercise of power by the State Government to appoint a Special Public Prosecutor to support a private transaction, and provide for his remuneration from a private source. It is in this context that the Supreme Court observed that, under the CrPC, the office of the Special Public Prosecutor has a special status, and is a statutory appointment; S.199(2), S.225, S.301(1) & (2), 302, 308, 321, 377 and 378 CrPC conferred a special position on the Public Prosecutor; it was the duty of the Public Prosecutor to support the prosecution initiated by the State; trial before a Court of Session should be conducted by the Public Prosecutor as required under S.225 of the Code; the public prosecutor held a public office; and, in Criminal Jurisprudence, the State is the prosecutor and that is why a primary position is assigned to the Public Prosecutor. The Supreme Court made it clear that it did not support the conclusion of the Bombay High Court that as a rule, whenever there is a request for appointment of a Special Public Prosecutor, the same should be accepted. The law laid down in this regard by the Delhi High Court in K.C. Sud, - 1981 (2) CriLJ 1779 (Delhi HC) was approved, and the Supreme Court found considerable force in what was stated, by the Kerala High Court, in P.G. Narayanankutty, - 1982 KLT 605 : ( - - 1982 CriLJ 2085). The Supreme Court also noted the different view expressed by the Gujarat High Court in Dilipbhai Chhotalal Dave v. State of Gujarat, - 1971 (12) Guj LR 999. 36. The Supreme Court also noted the different view expressed by the Gujarat High Court in Dilipbhai Chhotalal Dave v. State of Gujarat, - 1971 (12) Guj LR 999. 36. In Mukul Dalal, - 1988 (3) SCC 144 the Supreme Court examined the scope of S.24(8) CrPC and, while rejecting the conclusions of the Bombay High Court that an aggrieved person's right to heard implies a right to be effectively represented at the hearing and he has, therefore, the right to engage an advocate to be appointed as a Special Public Prosecutor, held that a Public Prosecutor has a special status and is conferred a primary position under the CrPC; and it was not a proper exercise of power by the State Government to appoint a Special Public Prosecutor for the mere asking or to support a private transaction. The ratio, in Mukul Dalal, 1988 (3) SCC 144 , squarely applies to the facts of the present case and the law declared therein is binding on this Court. 41. Unlike in Mukul Dalal, - 1988 (3) SCC 144 where the scope of S.24(8) CrPC was directly in issue, the validity of the appointment of a Special Public Prosecutor was not the subject matter of appeal before the Supreme Court in Varada Rama Mohan Rao, - 2004 (4) SCC 427 , as a challenge thereto was rejected by this Court earlier, and the said order had attained finality. The observations of the Supreme Court, relating to the possibility of the Special Public Prosecutor being biased against the appellant accused, is, therefore, not the ratio - decidendi of the judgment but is an obiter dicta. When the High Court is confronted with the judicial dicta and an obiter dicta contained in two Judgments of the Supreme Court it is, necessarily, bound by the judicial dicta. (Government of A.P. v. N. Chowdary, 1993(2) A.P.L.J. 479 = 1993(3) ALT 391 ). Having regard to the decision in Mukul Dalal, - - 1988 (3) SCC 144 which is directly in point, this Court is bound by the said decision and not the observations in Varada Rama Mohan Rao, - 2004 (4) SCC 427 .” (ii) In Anoop v. State of M.P. And Another, reported in 2006 KHC 2464, the High Court of Madhya Pradesh held thus: "6. S.24(8) of the Code has come up for consideration in number of cases and law relating to appointment of Special Public Prosecutor is now well settled. It is, therefore, not necessary to burden this order with various citations, except to point out that appointment of respondent No. 2 is made by the State Government in exercise of statutory powers conferred on it. It is the discretionary power vested in the Government. The State Government is the largest litigant in the country. The Government, like any other private litigant, can choose and appoint / authorize any eligible advocate to appear on their behalf in any Court of Law. It is not open to petitioner to suggest to the Government that it should not appoint respondent No. 2 as the counsel. An accused cannot claim as matter of right that the prosecution be conducted by a particular prosecutor and not by any other. Nor it is open for an accused to ask this Court to test the exercise of discretion under S.24(8) on the touchstone of 'Judicial Review' as an appellate authority or Court. This is permissible only when such exercise and the resultant decision is palpably arbitrary and against the public interest. The scope of interference is very limited as pointed out in the recent decision reported in 2004 (4) SCC 714 : AIR 2004 SC 3800 State of U. P. v. Johri Mal. 7. In the case in hand, the eligibility, and qualification of respondent No. 2 for appointment as Special Public Prosecutor are not in dispute. It seems that objection to his appointment is, basically on the ground of his alleged previous representation of complainant in the Court of Law. We find no force in the submission. Firstly, there is no prima facie material on record to show that respondent No. 2 bears any animus against accused persons. Secondly, except for bald assertions, there is no worthy material in support of plea of bias, unfairness or that respondent No. 2 will act as prosecutor to secure conviction. To say the least, this line of argument is like chasing a teasing illusion. The purpose of all criminal prosecution is to bring home the guilt of the accused and to punish him in accordance with law. The prosecutor has therefore to discharge his duties diligently towards this end. To say the least, this line of argument is like chasing a teasing illusion. The purpose of all criminal prosecution is to bring home the guilt of the accused and to punish him in accordance with law. The prosecutor has therefore to discharge his duties diligently towards this end. A prosecutor who fails in and neglects his duties is rather doing ill service to the administration of justice and ultimately to the Society. In discharge of his duties as prosecutor, he is ordained by law, by professional ethics and by his role as an officer of the Court, to employ only such means as are fair and legitimate, and to desist from resorting to unjust and wrongful means to secure conviction. Besides, there is always the Court to safeguard interests of accused and complainant, against omissions and commissions of the prosecutor. The Court may be away from the dust and din of legal battle in the arena, but not as a silent spectator to the proceedings. The Court can always intervene to prevent foul play. In view of the forgoing, there is no merit and substance in the present petition and contentions made in support thereof." 11. A careful perusal of Ext.P2 lawyer's notice dated 14.2.2017 sent by respondent No.3 to the writ petitioner/appellant shows that acting on the instructions and as authorised by Mr.Prabhakaran, whose son has been murdered, Mr.K. Viswan, Advocate, respondent No.3, has issued Ext.P2 lawyer's notice setting out the details as to how the writ petitioner has made allegations regarding the murder of Mr.Prabhakaran's son. On instructions and as per the authorisation, Mr.K. Viswan, Advocate, respondent No.3 has also stated that the writ petitioner has made baseless statements, and towards the end of the notice, respondent No.3 has stated thus:- “Therefore, you are hereby called upon to withdraw all the statements made by you in W.P.(C). 5896/2013 about the murder of my son immediately after receipt of this notice and inform my client about it within 15 days from today and if you act contrary to this, my client would be constrained to initiate appropriate civil and criminal proceedings against you.” 12. 5896/2013 about the murder of my son immediately after receipt of this notice and inform my client about it within 15 days from today and if you act contrary to this, my client would be constrained to initiate appropriate civil and criminal proceedings against you.” 12. Though the learned Senior Counsel for the appellant laid stress on the use of the words 'murder of my son' in Ext.P2 lawyer's notice dated 14.2.2017 and contended that there is conflict of interest with reference to Rules 7(1) and 7(2) of the Rules Regarding Conditions of Practice of Advocates, 1969, we are not inclined to accept the said contention. Ext.P2 lawyer's notice dated 14.2.2017 has been sent on the instructions and authorisation given by Mr.Prabhakaran whose son has been murdered. Whatever is stated in the said notice, is on the basis of the instructions of the client of respondent No.3. Merely because respondent No.3 has inadvertently used the words 'murder of my son', at the end of Ext.P2 notice, it cannot be said to be an admitted fact for the reason that reading of the entire Ext.P2 notice would make it clear that son of Mr.Prabhakaran was murdered and Crime No.515 of 2008 of Thalassery Police Station has been registered, which culminated in S.C.No.471 of 2011 on the file of the Additional Sessions Court-III, Thalassery. Adverting to the said objection of the writ petitioner/appellant on the ground of conflict of interest, writ court, at paragraph 18 of the impugned judgment made in W.P.(C).No.25323 of 2019 dated 17.10.2019, has observed that there is no merit in the aforesaid contention. 13. Ext.P2 notice dated 14.2.2017 refers to the death of Mr.Prabhakaran's son, whereas in the case on hand, Crime No.515 of 2008 of Thalassery Police Station relates to the murder of one Salim, son of the writ petitioner/appellant. Merely because Mr.K. Viswan, Advocate, respondent No.3, has sent Ext.P2 notice, contention of the writ petitioner/appellant that appointment of respondent No.3 as a Special Public Prosecutor, in a case where the writ petitioner's son was murdered, cannot be said to be contrary to the provisions of Rules 7(1) and 7(2) of the Rules Regarding Conditions of Practice of Advocates, 1969. 14. On the aspect of “Conflict of interest”, it has to be seen as to whether it is a case of conflict of personal interest or professional misconduct, on case to case basis. 14. On the aspect of “Conflict of interest”, it has to be seen as to whether it is a case of conflict of personal interest or professional misconduct, on case to case basis. Said fact has to be pleaded and proved. Conflict of interest should be manifest. Conflict of interest should adversely affect the trial, shake the confidence of the public at large. Person appointed as a Special Public Prosecutor in a case should not have a personal interest. In the case on hand, respondent No.3, is not representing his client, who had instructed and authorised him to issue Ext.P2 notice dated 14.2.2017 whereas, he is appearing on behalf of State. He is expected to adhere to the norms and ethics, to protect the interest of 'State' and not Mr.Prabhakaran, on whose instructions, he had sent Ext.P2 notice dated 14.2.2017. 15. Mr.K. Ramakumar, learned Senior Counsel, has not made any submission as to how the appointment of Mr.K. Viswan, Advocate, respondent No.3, is contrary to the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of cases Rules, 1978. Appellant/petitioner who has alleged violation of Rules 7(1) and 7(2) of the Rules Regarding Conditions of Practice of Advocates, 1969, has not substantiated the alleged violation. Giving careful consideration to the material on record, it is our considered view that there is no conflict of interest and violation of the rules. Though the learned Senior Counsel submitted that appointment of Mr. K. Viswan, Advocate, respondent No.3 as Special Public Prosecutor is erroneous on the ground of conflict of interest and the said appointment is contrary to the decision in Mukul Dalal's case, we are not inclined to accept the submissions. Writ court has rightly held that the appointment of respondent No.3 as a Special Public Prosecutor in S.C.No.471 of 2011 on the file of the Additional Sessions Court-III, Thalassery would not amount to professional misconduct. In the light of the above discussions and decisions, writ appeal is dismissed.