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2021 DIGILAW 893 (KAR)

Mangalpady Naresh Shenoy v. State Of Karnataka

2021-09-30

M.NAGAPRASANNA

body2021
JUDGMENT : 1. Petitioner in this writ petition calls in question the Government Notification dtd. 21/12/2016 issued under sub-sec. (8) of Sec. 24 of the Code of Criminal Procedure appointing one Sri Ravindranatha Kamath/respondent No.5 herein as Special Public Prosecutor and all further proceedings taken up thereto. 2. Shorn of unnecessary details, facts germane for consideration of the lis are as follows:- One Smt. Anuradha Baliga daughter of Sri Ramachandra Baliga lodges a complaint on 21/3/2016 against unknown persons alleging that her brother Vinayaka Baliga was assaulted at 5.45 a.m. and one Dr. Subbaraya Pai has seen the body of her brother. After assault, the body was shifted to KMC medical hospital and on examination the doctor informed that he was brought dead. Based on the said complaint, respondent No.4/Barke Police registers a case in Crime No.35 of 2016 for the offences punishable under Sec. 302 read with Sec. 34 of the IPC against unknown persons. 3. During the course of investigation three persons were arrested and based on their statements the petitioner was also arrested. The respondent/Police after investigation filed a charge sheet and additional charge sheet implicating the petitioner for the offences punishable under Sec. 302 of the IPC. The petitioner apprehending arrest appears to have filed anticipatory bail application in Criminal Miscellaneous No.399 of 2016 which was rejected on 29/4/2016 and thereafter, the petitioner approached this Court in Criminal Petition No.3400 of 2016 seeking anticipatory bail. In the said criminal petition, respondent-5/Ravindranath Kamath appeared on behalf of the father of the deceased. He also opposed the bail application filed by the petitioner on behalf of 6th respondent/father of the deceased. This Court by order dtd. 9/6/2016 rejected the bail application filed by the petitioner. Thus, it appears, that the Apex Court also declined to interfere with the said order. 4. It is further averred that the 5th respondent conducted many meetings and press conferences against the petitioner in support of Vinayaka Baliga which was rightly published in various newspapers and social media. The petitioner was arrested on his anticipatory bail being rejected and after his arrest, he filed an application for regular bail under Sec. 439 of the Cr.P.C. in Criminal Miscellaneous No.766 of 2016 before the Sessions Court at Mangalore, which came to be rejected on 9/8/2016. Respondent No.5 appeared on behalf of respondent No.6 and opposed the bail application. The petitioner was arrested on his anticipatory bail being rejected and after his arrest, he filed an application for regular bail under Sec. 439 of the Cr.P.C. in Criminal Miscellaneous No.766 of 2016 before the Sessions Court at Mangalore, which came to be rejected on 9/8/2016. Respondent No.5 appeared on behalf of respondent No.6 and opposed the bail application. The petitioner filed a petition under Sec. 439 of the Cr.P.C. in Criminal Petition No.6189 of 2016 before this Court. Again the 5th respondent appeared on behalf of the 6th respondent by filing an impleading application and objections to the bail petition. This Court after hearing the 5th respondent granted bail to the petitioner by its order dtd. 15/9/2016. 5. After all these proceedings, the State Government appointed the 5th respondent as Special Public Prosecutor by exercising its powers under Sec. 24(8) of the Cr.P.C. with a further observation that fees to be paid by the respondent No.6 to the 5th respondent. It is this order that is called in question in this petition. 6. This Court while entertaining the petition has granted an interim order of stay of all further proceedings before the criminal Court in S.C.No.143 of 2017 by its order dtd. 23/1/2017 and the said interim order is in operation even as on date. 7. Heard Sri.Gautam.S.Bharadwaj, learned counsel along with Sri.Suyog Herele, learned counsel for petitioner, Smt.Namitha Mahesh.B.G., learned High Court Government Pleader appearing for respondent Nos.1 to 4, Sri.Ravindranath Kamath, respondent No.5 party-in-person and Sri.H.P.Leeladhar, learned counsel appearing for respondent No.6. 8. The learned counsel appearing for the petitioner Sri Gautam S. Bharadwaj along with Sri Suyog Herele would vehemently argue and contend that the 5th respondent who has always been the counsel for the deceased and later, counsel for the daughter of the deceased in several proceedings cannot be appointed as Special Public Prosecutor in this case as the proceedings are under Sec. 302 IPC and would entail dire consequences. It is his submission that what should be conducted even to the one, who is accused of murder, should be a fair trial and the trial if conducted by appointment of the 5th respondent as counsel for the complainant, would not be far from fairness, as the Special Public Prosecutor assumes a significant role in the conduct of trial against the petitioner. 8.1. 8.1. The learned counsel for the petitioner places reliance on the following judgments: (i) Sri.K.V.Shiva Reddy vs. State of Karnataka and others - ILR 2005 KAR 4780 (ii) Sri.Gopalkrishna and another vs. State of Karnataka and others - WA Nos.1199- 1200 of 2018 c/w WA No.1220 of 2018 (iii) Sri.Naresh Kumar vs. State of Karnataka and others - WP No.54624 of 2016 (iv) Sri.R.Lokesh and others vs. The State of Karnataka and others - WP No.37559 of 2014 (v) Sri Thimme Gowda vs. The State of Karnataka and others - WP No.28969 of 2015 (vi) Mukul Dalal and others vs. Union of India and others - (1988) 3 SCC 144 9. On the other hand, the learned High Court Government Pleader, Smt. Namitha Mahesh B.G., appearing for respondents 1 to 4 and Sri H.P.Leeladhar, learned counsel appearing for respondent No.6 would vehemently oppose the contentions advanced by the petitioner and would submit that it is for the Court to decide as to how it should regulate the functioning even with that of the Special Public Prosecutor. The apprehension of the petitioner with regard to the appointment of 5th respondent being biased against the petitioner is an unfounded apprehension and would submit that the petitioner is only trying to drag the proceedings further by taking such frivolous objections against the 5th respondent. 10. The 5th respondent/Sri Ravindranath Kamath, has appeared as a respondent in-person and has submitted that the law does not bar his appearance for the complainant or for the deceased earlier and being appointed as a Special Public Prosecutor it is the confidence of the complainant that has prevailed on the State Government to appoint him as Special Public Prosecutor and the remuneration is also to be paid by the complainant. Therefore, no grievance can be made out against his appointment as Special Public Prosecutor is the emphatic submission of the learned counsel. He would place reliance upon the following judgments: (i) Varada Rama Mohana Rao Vs. State of A.P. - 2004 (4) SCC 427 (ii) Sri Balachandra Prabhakar Kodlekare and others vs. The State of Karnataka and others - W.P.No.77242/2013 and W.P.Nos.77249-77259/2013 dated 17-09- 2013. (iii) Sri Rajeshwari Shetty W/o K.Bhaskar Shetty vs. State of Karnataka - LAWS(KAR) 2018 7 123. (iv) Sri Jagadish Chidanand Kore vs. The State of Karnataka - ILR 2010 KAR 3540. State of A.P. - 2004 (4) SCC 427 (ii) Sri Balachandra Prabhakar Kodlekare and others vs. The State of Karnataka and others - W.P.No.77242/2013 and W.P.Nos.77249-77259/2013 dated 17-09- 2013. (iii) Sri Rajeshwari Shetty W/o K.Bhaskar Shetty vs. State of Karnataka - LAWS(KAR) 2018 7 123. (iv) Sri Jagadish Chidanand Kore vs. The State of Karnataka - ILR 2010 KAR 3540. (v) State of Maharashtra and others vs. Prakash Prahlad Patil and others - (2009) 12 SCC 159 . (vi) Sri Jaikeshan Virwani vs. The State of Karnataka - W.A.No.5818/2012 dtd. 23/1/2013. (vii) Sri P.L.G.Manu Vs. State of Karnataka - W. P. No.43765/2013 dtd. 8/7/2019. 11. I have given my anxious consideration to the submissions made by respective learned counsel, in furtherance thereof, the only issue that calls for my consideration is, whether the appointment of 5th respondent as Special Public Prosecutor would result in the apprehension of the petitioner to an unfair trial? 12. Before embarking upon the journey of consideration of the case at hand, it is germane to notice the interpretation of the Constitutional Courts, in the cases identical to the one that has arisen in the case at hand. 13. This Court in the case of K.V.SHIVA REDDY VS. STATE OF KARNATAKA, ILR 2005 KAR 4780 while considering the very provision of the Cr.P.C. empowering the State to appoint a Special Public Prosecutor has held as follows: "12. In the case of P.G. Narayanankutty v. State of Kerala [1982 Crl. LJ 2085.] a learned Judge of the Kerala High Court has held that, Special Public Prosecutor cannot be appointed with a view to secure conviction at all cost. Special Public Prosecutor could be appointed only when public interest demands it and not to vindicate the grievance of a private person, such as close relation of the deceased. In order that he discharges his duties properly, he should look to the State for remuneration for his services if he looks to a private party for his remuneration, his capacity and ability to perform his role as Public Prosecutor properly will be endangered. Government cannot appoint Special Public Prosecutor on such terms, abdicating their financial responsibility or directing him to receive his remuneration from any private individual or expecting him to work without remuneration. xx xx xx xx 15. Government cannot appoint Special Public Prosecutor on such terms, abdicating their financial responsibility or directing him to receive his remuneration from any private individual or expecting him to work without remuneration. xx xx xx xx 15. A public prosecutor has no client or constituency apart from the State and State is not a party like any other party. He is not paid by an individual who may be aggrieved or by the accused who is on trial. He, therefore, does not have the disability of a dual personality, which is certainly true of an ordinary advocate, who is tom, in the thick of his practice in Court, between the wider loyalty to public interest, to the Court system, claim of straight and rigid adherence to truth and discipline on the one hand, and his narrow, as also monetary, association with the individual litigant or the institution, whom he represents on the other. An advocate-client relationship introduces a personal element from which the public prosecutor must be considered immune. He is above the personal loyalty. He does not have a dual capacity. xx xx xx xx 21. The Supreme Court in the case of Shivkumar v. Hukam Chand [1999 SCC (Cri) 1277.] observed as under: - A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it on the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the Court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instruction given by the Public Prosecutor. xx xx xx xx 26. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instruction given by the Public Prosecutor. xx xx xx xx 26. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused some how or the other irrespective of the true facts of the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court to the investigation agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial, the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel over looked it, the Public Prosecutor has the added responsibility to bring it to the notice of the Court, if it comes to his knowledge. xx xx xx xx 32. In the matter of remuneration payable to the Special Public Prosecutor, 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 cases where Special Public Prosecutors remuneration may be collected from private source. The rate of fees should be prescribed and the complainant should be called upon to deposit the fees in advance to the Government and the Special Public Prosecutor be paid out of the said amount by the Government. To leave the complainant to pay to the Special Public Prosecutor would indeed not be appropriate. If he looks to a private party for his remuneration, his capacity and ability to perform his role as Public Prosecutor properly will be endangered. Government cannot appoint Special Public Prosecutor on such terms, abdicating their financial responsibility or directing him to receive his remuneration from any private individual. Then it introduces an advocate-client relationship, a personal element from which the Public Prosecutor must be considered immune. He is above the personal loyalty. He does not have a dual capacity. 36. Government cannot appoint Special Public Prosecutor on such terms, abdicating their financial responsibility or directing him to receive his remuneration from any private individual. Then it introduces an advocate-client relationship, a personal element from which the Public Prosecutor must be considered immune. He is above the personal loyalty. He does not have a dual capacity. 36. The impugned order is an administrative order by the Government under Sec. 24(8) of the Code. It is a statutory order. If all State actions must be just, fair and reasonable, the Special Public Prosecutor would be under less duty as a functionary of the State to discharge his functions as a Public Prosecutor in an equally just, fair and reasonable manner irrespective of the outcome of the trial. In that sense, he is a part of the judicature system and an upright Public Prosecutor has no friends and foes in Court. He has no prejudices, preconceived notions, bias, hostility or his own axe to grind. He represents public interest, but is not a partisan in the narrow sense of the terms." (Emphasis supplied) This Court in the aforesaid judgment quashed the appointment of a particular Special Public Prosecutor who was appointed at the instance of the complainant on the ground that the Court cannot ignore the right of the accused and genuine apprehension in the matter of effective trial and it was also held that fair trial does not necessarily mean that it must be fair only to the victim but to the accused also. Later, the Division Bench approving the case of K.V.SHIVA REDDY (supra) in the case of SRI.GOPALKRISHNA AND ANOTHER VS. STATE OF KARNATAKA AND OTHERS,WA No.1199-1200 of 2018 c/w WA No.1220 of 2018 has held as follows: "11. xxxxxxxxxxxx If his appointment is not made in public interest; or not made in accordance with law; or made for extraneous considerations; or made with any mala fide intentions; or made with intention to prosecute the accused, such appointment offends the concept of fair trial, a fundamental right guaranteed to the accused. xxxxxxx" A little earlier to the judgment of the Division Bench (supra), this Court in the case of SRI.R.LOKESH AND OTHERS VS. THE STATE OF KARNATAKA AND OTHERS, W.P.No.37559 of 2014 dd. 30/8/2016 again considering the case of K.V.SHIVA REDDY (supra), has held as follows: "6. xxxxxxx" A little earlier to the judgment of the Division Bench (supra), this Court in the case of SRI.R.LOKESH AND OTHERS VS. THE STATE OF KARNATAKA AND OTHERS, W.P.No.37559 of 2014 dd. 30/8/2016 again considering the case of K.V.SHIVA REDDY (supra), has held as follows: "6. On the other hand, the learned counsel representing the 3rd respondent has relied on the decision of this Court in the case of Sri.Jagadish Chidanand Kore Vs. The State of Karnataka, Department of Law, Rep. by its Secretary and others reported in ILR 2010 KAR 3540 and the order dtd. 17/2/2011 in W.P. No.6552/2011 wherein the learned Judges of this Court, after referring to the very same decision in the case of Sri.K.V.Shiva Reddy has taken a different view with regard to the appointment of a Special Public Prosecutor and to hold that the accused cannot assail such order and does not have locus-standi in that regard. The learned counsel has also referred to the decision in the case of Rajiv Singh 'Lalan' and another Vs. Union of India and others reported in 2006 SCW 4287 and in the case of State of Maharashtra and others Vs. Prakas Prahlad Patil and others reported in AIR 2010 SC 463 . 7. At the outset, it is necessary to notice that in the decision of the learned Single Judge of this Court in Sri.K.V.Shiva Reddy's case, the entire conspectus of the appointment of the Special Public Prosecutor was taken into consideration after referring to certain decisions of the Hon'ble Supreme Court. In that circumstances, when in the subsequent decisions, the learned Single Judges were considering the matter, the said decision though distinguished in those facts, in the present facts, I am of the opinion that it still has the value of a precedent and the subsequent decisions have not altered the position. Be that as it may, ultimately the conclusion reached in the said orders is also to effect that in appropriate case, the State Government could exercise its power to appoint the Special Public Prosecutor on application of its mind to the fact situation and the requirement. 8. xx xx xx xx 9. In that light a perusal of the impugned order dtd. 8. xx xx xx xx 9. In that light a perusal of the impugned order dtd. 26/6/2014 would disclose that the name of the Special Public Prosecutor is indicated as appointed therein and a direction is issued that the professional fee payable shall be paid by the private party. In order to take note of the situation which prompted the Government to make such appointment and for the prima facie satisfaction of this Court the dire need which prompted the Government to pass the order it is necessary to take note of the objection statement filed herein. A perusal of the paragraph 5 of the objection statement would indicate that except for taking note of the request made by the 5th respondent to appoint the Special Public Prosecutor, no other consideration is indicated. Further, in paragraph 6 all that has been stated therein is that the procedure as contemplated under the Karnataka Law Officers (Appointment and Conditions of the Service) Rules, 1977 has been followed. 10. Insofar as the appointment, certainly the said Rules would be relevant. However, insofar as the need for appointing a Special Public Prosecutor, the mere request of a person would not be sufficient without application of mind to accept such request as otherwise the very scheme of representation in criminal justice delivery system will stand altered. Through the very decision relied on by the learned counsel for the 3rd respondent also it has been indicated that both the interest of the accused as well as the victim is a matter to be kept in view by the Government even in circumstances where the appointment of Special Public Prosecutor becomes necessary. Therefore, if the contention as taken by the respondents 1 and 2 is taken into consideration, there is absolutely no consideration with regard to the interest of the accused, the need for which the Special Public Prosecutor is required to be appointed and the reason for which the Regular Public Prosecutor, who is conducting the said case is not competent enough to prosecute the matter. Therefore, if these aspects of the matter are kept in view, certainly there is absolutely no application of mind pointed out on behalf of the respondents 1 and 2 before arriving at the conclusion to appoint a Special Public Prosecutor. Therefore, if these aspects of the matter are kept in view, certainly there is absolutely no application of mind pointed out on behalf of the respondents 1 and 2 before arriving at the conclusion to appoint a Special Public Prosecutor. In such circumstances, both in the earlier order passed by me in an earlier petition as well as in the case of Sri.K.V.Shiva Reddy, though this Court had taken the view that the orders are not sustainable, liberty had been left to the respondents 1 and 2 to take an appropriate decision in accordance with law. Therefore, in the present circumstances, when I find that the order dtd. 26/6/2014 is without application of mind and without indication of any reasons either in the order or in the objection statement and is passed in a routine manner, the same cannot be sustained. The order dtd. 26/6/2014 is accordingly quashed. Liberty is however, reserved to the respondents 1 and 2 to pass fresh orders if need be and if they find that it is expedient for them to appoint a Special Public Prosecutor in the instant case, for the reasons to be recorded. The petition is accordingly disposed of." It is also germane to notice the judgment of Apex Court in the case of MUKUL DALAL AND OTHERS VS. UNION OF INDIA AND OTHERS, (1988) 3 SCC 144 wherein the Apex Court considering Sec. 24(8) of the Cr.P.C. has held as follows: "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. 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 power 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. 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. 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 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." The Apex Court, in the aforesaid judgment, has held that there may be cases where the complainant may have begun proceedings to victimize the opponent and in such a case, if the State concedes to the request for appointment of Special Public Prosecutor of the choice of the complainant it would be travesty of justice. 14. 14. The Apex Court in its latest judgment in the case of REKHA MURARKA VS. STATE OF WEST BENGAL, (2020) 2 SCC 474 has held as follows: "7. In our criminal justice system, the Public Prosecutor occupies a position of great importance. Given that crimes are treated as a wrong against the society as a whole, his role in the administration of justice is crucial, as he is not just a representative of the aggrieved person, but that of the State at large. Though he is appointed by the Government, he is not a servant of the Government or the investigating agency. He is an officer of the court and his primary duty is to assist the court in arriving at the truth by putting forth all the relevant material on behalf of the prosecution. While discharging these duties, he must act in a manner that is fair to the court, to the investigating agencies, as well to the accused. This means that in instances where he finds material indicating that the accused legitimately deserves a benefit during the trial, he must not conceal it. The space carved out for the Public Prosecutor is clearly that of an independent officer who secures the cause of justice and fair play in a criminal trial. 8. In light of this exposition, we find it useful to advert to certain provisions of CrPC that highlight the role of a Public Prosecutor and the prerequisites for a person holding that office, most significant amongst which is Sec. 24: "24. Public Prosecutors. -(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. *** (7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor ... only if he has been in practice as an advocate for not less than seven years. *** (7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor ... only if he has been in practice as an advocate for not less than seven years. (8) 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: Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-sec. ." (emphasis supplied) Other important provisions are as follows: "225. Trial to be conducted by Public Prosecutor. -In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor. *** 301. Appearance by Public Prosecutors. -(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any court in which that case is under inquiry, trial or appeal. (2) If in any such case any private person instructs a pleader to prosecute any person in any court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case. 302. Permission to conduct prosecution. -(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission: *** (2) Any person conducting the prosecution may do so personally or by a pleader." xx xx xx xx 11. In light of this, we now proceed to consider the extent to which such assistance can be accorded. As mentioned supra, the learned Senior Counsel for the appellant has argued that there may be instances where the Public Prosecutor may fail to perform his functions properly, whether deliberately or due to oversight, which may obstruct justice instead of furthering it. In light of this, we now proceed to consider the extent to which such assistance can be accorded. As mentioned supra, the learned Senior Counsel for the appellant has argued that there may be instances where the Public Prosecutor may fail to perform his functions properly, whether deliberately or due to oversight, which may obstruct justice instead of furthering it. To meet the ends of justice in such cases, he submitted that the role of the victim's counsel should not be limited to filing of written arguments as provided with respect to pleaders engaged by private parties under Sec. 301(2). Instead, it should extend to making oral arguments and examining witnesses as well. On a perusal of the arguments advanced and the decisions relied on by both the parties, we find that such a broad mandate for the victim's counsel cannot be given effect to, as it is not rooted in the text of CrPC. 11.1. The use of the term "assist" in the proviso to Sec. 24(8) is crucial, and implies that the victim's counsel is only intended to have a secondary role qua the Public Prosecutor. This is supported by the fact that the original Amendment Bill to CrPC had used the words "coordinate with the prosecution". However, a change was later proposed and in the finally adopted version, the words "coordinate with" were substituted by "assist". This change is reflective of an intention to only assign a supportive role to the victim's counsel, which would also be in consonance with the limited role envisaged for pleaders instructed by private persons under Sec. 301(2). In our considered opinion, a mandate that allows the victim's counsel to make oral arguments and cross-examine witnesses goes beyond a mere assistive role, and constitutes a parallel prosecution proceeding by itself. Given the primacy accorded to the Public Prosecutor in conducting a trial, as evident from Ss. 225 and 301(2), permitting such a free hand would go against the scheme envisaged under CrPC. 11.2. In some instances, such a wide array of functions may also have adverse consequences on the fairness of a trial. For instance, there may be a case where the Public Prosecutor may make a strategic call to examine some witnesses and leave out others. 11.2. In some instances, such a wide array of functions may also have adverse consequences on the fairness of a trial. For instance, there may be a case where the Public Prosecutor may make a strategic call to examine some witnesses and leave out others. If the victim's counsel insists upon examining any of the left-out witnesses, it is possible that the evidence so brought forth may weaken the prosecution case. If given a free hand, in some instances, the trial may even end up becoming a vindictive battle between the victim's counsel and the accused, which may further impact the safeguards put in place for the accused in criminal trials. These lapses may be aggravated by a lack of advocacy experience on the part of the victim's counsel. In contrast, such dangers would not arise in the case of a Public Prosecutor, who is required to have considerable experience in the practice of law, and act as an independent officer of the court. Thus, it is important to appreciate why the role of a victim's counsel is made subject to the instructions of the Public Prosecutor, who occupies a prime position by virtue of the increased responsibilities shouldered by him with respect to the conduct of a criminal trial. 11.3. At the same time, the realities of criminal prosecutions, as they are conducted today, cannot be ignored. There is no denying that Public Prosecutors are often overworked. In certain places, there may be a single Public Prosecutor conducting trials in over two-three courts. Thus, the possibility of them missing out on certain aspects of the case cannot be ignored or discounted. A victim-centric approach that allows for greater participation of the victim in the conduct of the trial can go a long way in plugging such gaps. To this extent, we agree with the submission made by the learned Senior Counsel for the appellant that the introduction of the proviso to Sec. 24(8) acts as a safety valve, inasmuch as the victim's counsel can make up for any oversights or deficiencies in the prosecution case. Further, to ensure that the right of appeal accorded to a victim under the proviso to Sec. 372 CrPC is not rendered meaningless due to the errors of the Public Prosecutor at the trial stage itself, we find that some significant role should be given to the victim's counsel while assisting the prosecution. Further, to ensure that the right of appeal accorded to a victim under the proviso to Sec. 372 CrPC is not rendered meaningless due to the errors of the Public Prosecutor at the trial stage itself, we find that some significant role should be given to the victim's counsel while assisting the prosecution. However, while doing so, the balance inherent in the scheme of CrPC should not be tampered with, and the prime role accorded to the Public Prosecutor should not be diluted. 11.4. In this regard, given that the modalities of each case are different, we find that the extent of assistance and the manner of giving it would depend on the facts and circumstances of each case. Though we cannot detail and discuss all possible scenarios that may arise during a criminal prosecution, we find that a victim's counsel should ordinarily not be given the right to make oral arguments or examine and cross-examine witnesses. As stated in Sec. 301(2), the private party's pleader is subject to the directions of the Public Prosecutor. In our considered opinion, the same principle should apply to the victim's counsel under the proviso to Sec. 24(8), as it adequately ensures that the interests of the victim are represented. If the victim's counsel feels that a certain aspect has gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor himself. This would not only preserve the paramount position of the Public Prosecutor under the scheme of Cr.P.C., but also ensure that there is no inconsistency between the case advanced by the Public Prosecutor and the victim's counsel. 11.5. However, even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim's counsel, the victim's counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim's counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the court. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim's counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Sec. 311 Cr.P.C. or Sec. 165 of the Evidence Act, 1872. In this regard, we agree with the observations made by the Tripura High Court in Uma Saha v. State of Tripura [Uma Saha v. State of Tripura.] that the victim's counsel has a limited right of assisting the prosecution, which may extend to suggesting questions to the court or the prosecution, but not putting them by himself."(emphasis supplied) Therefore, the case at hand will have to be considered on the bedrock of the law laid down in the afore-extracted judgments interpreting Sec. 24(8) of the Cr.P.C. 15. Before proceeding further, it is germane to notice the judgments relied on by the Special Public Prosecutor - party-in-person. The Apex Court in the case of VARADA RAMA MOHANA RAO vs. STATE OF A.P., (2004) 4 SCC 427 has held as follows: "7. Apart from the fact that the ratio laid therein does not apply to the facts of the present case, it is to be seen that in this case the appellant had independently challenged the appointment of the prosecutor in a criminal petition. This was not a proceeding initiated in the course of the present trial and the challenge to the said appointment was on facts and circumstances outside the scope of the prosecution case, therefore, he having failed in that attempt and the High Court having upheld the appointment of Sethu Madhava Rao as a prosecutor in this case, that issue stands closed. Therefore, it is not open to the appellant to reopen the same for the first time in this appeal. Therefore, it is not open to the appellant to reopen the same for the first time in this appeal. That apart, it is to be noted that the appellant has not been able to establish how the conducting of a criminal trial by a counsel who according to the accused is inimically disposed towards him would prejudice his trial because the learned counsel does not give evidence in this case and the manner in which he presents his case is always subject to judicial scrutiny by the court concerned. His personal opinion has no place in the decision-making process of the court. At the most he may present his case with vehemence and with a touch of vengeance but this would not in any manner either influence the decision-making process of the court or would cause any prejudice to the accused in his defence. This, however, does not mean that we approve the fact that a person who is admittedly on bad terms with the accused should be appointed as a prosecuting counsel unless for good reasons. Maybe, in this case in view of the strained relationship between the parties, the learned prosecutor could have recused himself but that was a choice left entirely to him and that by itself does not prejudice the trial in any manner. The learned counsel for the appellant also has failed to show any prejudice that has occurred to the accused because of the selection of the prosecutor. 16. Further, this Court in the case of RAJESHWARI SHETTY VS. STATE OF KARNATAKA, LAWS (KAR) 2018 7 123 has held as follows: "5. It is the contention of Sri Aruna Sham, learned Advocate appearing for petitioner that 6threspondent is having personal interest in the case in which he has been appointed as Special Public Prosecutor. It is contended that 6th respondent has openly supported respondent No.7 (complainant) and had conducted many a meetings including a press conferences in support of deceased Sri Bhaskar as reflected in the print and electronic media. Sixth respondent has been issuing notice and demanding reports from the Superintendent of Mangalore District Prison and being a Special Public Prosecutor he would play a important and vital role in criminal administration of justice and as an Officer of the Court, he is expected to assist the court in a fair, transparent and unbiased manner. Sixth respondent has been issuing notice and demanding reports from the Superintendent of Mangalore District Prison and being a Special Public Prosecutor he would play a important and vital role in criminal administration of justice and as an Officer of the Court, he is expected to assist the court in a fair, transparent and unbiased manner. He would draw the attention of the court to the communication dtd. 10/12/2016 – Annexure-J written by 6th respondent to the Jail Superintendent which shows that he is prejudiced against petitioner - accused. He would elaborate his submissions by contending that at the first instance itself, he had expressed no confidence in the Special Public Prosecutor by filing an affidavit in W.P.No.1771/2017 on 27/11/2017 - Annexure-L and he would also draw the attention of the Court to the order of appointment to contend that it would disclose the pay master of 6th respondent is the complainant and not the State and impugned order is also not a reasoned order. Hence, by relying upon the following judgments, he prays for allowing the writ petition by quashing the impugned order: (1) (2013)2 KCCR 994 SHANKAR vs. STATE OF KARNATAKA (2) (2005)4 Kar.LJ 22 K.V.SHIVA REDDY vs. STATE OF KARNATAKA (3)W.P.No.58876/2014 disposed of on 1/7/2015. 17. The pleadings in writ petition would not disclose that petitioner at first available opportunity, had not raised the plea of she having briefed the 6th respondent in crime No.199/2016 which was the least expected of her when she filed the writ petition. The additional affidavit which has been filed on 27/11/2017 - Annexure-R3 would clearly disclose that plea raised in the said affidavit about being briefed 6th respondent is an after thought. Thus, petitioner has been trying to improve her plea stage by stage and step by step. 18. The original records has also been perused by this Court. Same would disclose that pursuant to the direction issued on 31/1/2018 in W.P.No.1771/2017 by this Court, petitioner has filed her representation/objections on 1/2/2018 before first respondent. Complainant-7th respondent herein has been intimated of adjudication of petitioner's claim by first respondent vide communication dtd. 17/2/2018. 7th respondent has filed her objections to the complainant lodged by petitioner and same has been received by first respondent on 22/2/2018. Complainant-7th respondent herein has been intimated of adjudication of petitioner's claim by first respondent vide communication dtd. 17/2/2018. 7th respondent has filed her objections to the complainant lodged by petitioner and same has been received by first respondent on 22/2/2018. In the writ petition No.1771/2017 filed on 11/1/2017, as already noticed herein above, statement of objections came to be filed by 6th respondent therein i.e., 7th respondent herein on 5/4/2017. Likewise, 5th respondent in W.P.No.1771/2017 i.e., 6th respondent herein filed statement of objections on 1/6/2017. An additional affidavit came to be filed by the petitioner on 27/11/2017, where under for the first time petitioner contended that she had met 6th respondent (Sri Shantaram Shetty who has been appointed as Public Prosecutor) and she had discussion with him in respect of Crime No.199/2016. This is an important event which has taken place according to petitioner. If it were to be so, this plea would have been urged by her at first instance itself. However, in the writ petition i.e., W.P.No.1771/2017 no such plea was raised. It is also very intriguing to note that, after said W.P.No.1771/2017 came to be disposed of by co-ordinate Bench on 31/1/2018, petitioner herein has filed objections on 3/2/2018 to the appointment of 6th respondent herein as Public Prosecutor and said objection is found in the original records at page Nos.149 to 169. A perusal of the same would disclose, even in this objection, petitioner has not made a whisper about she having discussed about Crime No.195/2016 with Sri Shantharam Shetty. In fact, said Sri Shantharam Shetty (6th respondent herein) had filed a counter affidavit in W.P.No.1771/2017 in reply to the affidavit dtd. 27/11/2017 filed by petitioner in said writ petition. In said counter affidavit, 6th respondent herein, who was 5th respondent in W.P.No.1771/2017 has categorically denied about meeting of petitioner and her son or conversing with her or any member of petitioner's family meeting him. He has denied every statement made by petitioner in her affidavit dtd. 27/11/2017. Thus, initial burden cast on petitioner to prove prima facie case has not been established by her. In the absence of it, 6th respondent herein cannot be called to prove negative. All these aspects have been taken note of by the first respondent while dealing with the petitioner's objections. 27/11/2017. Thus, initial burden cast on petitioner to prove prima facie case has not been established by her. In the absence of it, 6th respondent herein cannot be called to prove negative. All these aspects have been taken note of by the first respondent while dealing with the petitioner's objections. The decision of the State would not be subject to judicial review but only the decision making process and on examination of the original records, this court is of the considered view that there is no flaw or infirmity in the decision making process adopted by first respondent in exercise of it power under Sec. 24(8) of Cr.P.C. and even otherwise apprehension of the petitioner is without any basis and liable to be rejected for the reasons aforestated."(emphasis supplied) Earlier to the said judgment, this Court in the case of SRI.JAGADISH CHIDANAND KORE VS. THE STATE OF KARNATAKA,ILR 2010 KAR 3540 has held as follows; "8. Much water has flown between (1916) Maung Pu, and the 2003 Recommendations made by Dr. Justice V.S. Malimath. The need of the hour is to provide the required attention to the victim. The victim cannot be kept out of the proceedings, especially when the same has commenced by him and for him. Even though the rights of the accused are well addressed based on sound legal principles, the victim however has been completely ignored. Sec. 24(8) therefore comes to the aid of the complainant/victim to protect his rights. This right is the individual right of the victim. The victim's rights therefore, should not only be enforced but is also a State obligation to do so. 9. The contention of the Learned Counsel for the petitioner that by virtue of the impugned order he would not get a fair trial, is only a mere apprehension and there is no basis for such an apprehension. The Learned Counsel for the petitioner pleads apprehension but the same would have to be adequately supported and should be reasonably justified. Only because the complainant has chosen to engage a lawyer of his choice, it cannot be presumed that the trial would not be just or fair. The accused does not have a right to question an appointment of an Advocate of the choice of the complainant. The right to a fair trial is a fundamental right and it cannot be restricted to the accused alone. The accused does not have a right to question an appointment of an Advocate of the choice of the complainant. The right to a fair trial is a fundamental right and it cannot be restricted to the accused alone. The right to a fair trial is the fundamental right of every citizen of this Country and more so in the case of a complainant or a victim who has suffered. Therefore, the apprehension of the Learned Counsel for the petitioner is ill-founded. 10. Moreover, it is to be seen that the Presiding Officer is there to protect both the parties, to control the proceedings, and also to check the omissions and commissions of both the counsels. The Court is not a mute spectator in a criminal trial but an effective participant therein. The aim of a trial is ultimately the quest for truth. In the pursuit of the quest for truth nothing should come in the way. Therefore, the apprehension of the petitioner being ill-founded deserves to be rejected. 11. Delay has not been satisfactorily explained. The accused has no locus standi to question the appointment of a Special Public Prosecutor, made at the behest of the complainant/victim. On an application made by the complainant/victim, the State is bound to accede to such a request subject to restrictions of qualification vide Sec. 24(8) of the Cr.P.C." (emphasis supplied) The Apex Court in the case of STATE OF MAHARASHTRA AND OTHERS VS. PRAKASH PRAHLAD PATIL AND OTHERS, (2009)12 SCC 159 has held as follows: "3. The appointment of Respondent 3 appears to have been made on the basis of a petition filed by the brother and the son of the victim. This was a case where two persons were killed. Several accused persons are facing trial. Though initially it was not disclosed by Respondent 1 that he is related to one of the accused, but later on that fact surfaced during the hearing of the matter before the High Court. Then Respondent 1 took the stand that he was a social worker and in greater public interest the writ petition was filed. 4. The State opposed the petition on several grounds: primarily indicating that the scope of judicial review of the executive, administrative and quasi-judicial action, was extremely limited and this is not a case where any interference was called for. 4. The State opposed the petition on several grounds: primarily indicating that the scope of judicial review of the executive, administrative and quasi-judicial action, was extremely limited and this is not a case where any interference was called for. It appears from the impugned order of the High Court that the original file was called for and scanned as if the High Court was hearing an appeal against a decision taken. 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 the 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 suprema 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." (emphasis supplied) Much emphasis is laid by the learned counsel on the recent judgment of this Court in Writ Petition No.43675 of 2013, disposed on 8/7/2019, wherein, this Court considering a similar order of appointing Special Public Prosecutor who was the counsel for the complainant has turned down the contention that it would not be a free and fair trial, if the counsel for the complainant is appointed as Special Public Prosecutor. 17. The other judgments apart, the judgment of the Co-ordinate Bench in W.P.No.43675 of 2013 disposed on 8/7/2019, in the case of Mr.P.L.G. MANU VS. STATE OF KARNATAKA, which concerns an identical appointment under the Cr.P.C. is taken in appeal in W.A.No.2873 of 2019, and the judgment rendered by the Co-ordinate Bench (supra) has been stayed. The interim order granted is after hearing the parties and on an elaborate consideration. This was a case where the allegation was concerning offence punishable under Sec. 302 IPC and the complainant's counsel was appointed as Special Public Prosecutor. Interpreting Sec. 24(8) of the Cr.P.C., the judgment of the Co- ordinate Bench is stayed. The interim order granted is after hearing the parties and on an elaborate consideration. This was a case where the allegation was concerning offence punishable under Sec. 302 IPC and the complainant's counsel was appointed as Special Public Prosecutor. Interpreting Sec. 24(8) of the Cr.P.C., the judgment of the Co- ordinate Bench is stayed. The interim order granted by this Court in the case of P.L.G. MANU was challenged before the Apex Court in SLP No.2543 of 2020. The Apex Court declined to interfere with the interim order of stay granted by the Division Bench of this Court. Therefore, in a situation of this kind, the decision rendered by a Co-ordinate Bench would not become binding. 18. This Court in the case of G.R.VENKATESHWARA REDDY v. KSRTC, ILR 1994 Kar 2736 has held as follows:- "18. In regard to the Decision in W.P. 28043/93, it is stated by the learned Counsel for the respondent that the respondent has challenged the said Decision in an Appeal and an Interim Order of stay of operation of the Decision in W.P. 28043/1993 has been granted. Learned Counsel for the petitioner confirmed that not only the Decision was stayed, but further Enquiry in the said case was also stayed. The Decision in W.P. 28043/1993 is contrary to the Decision of the Supreme Court in Crescent Dyes and Chamical's case1 which holds that a delinquent has no right to be represented through Counsel or Agent unless the law or Rules specifically confers such a right. Rule 23(8) does not confer specifically, such a right. Hence the petitioner cannot rely on the Decision in W.P. No. 28043/1993 nor is the said Decision binding precedent. 19. Mr. K. Subba Rao however contended that what was stayed was the 'implementation' of the Decision in W.P. 28043/1993 and not the 'ratio decidendi' or the 'reasoning' in that case and as long as the Decision in W.P. 28043/1993 was not reversed, Judicial propriety requires that this Court should follow the Decision in W.P. 28043/1993. 19. Mr. K. Subba Rao however contended that what was stayed was the 'implementation' of the Decision in W.P. 28043/1993 and not the 'ratio decidendi' or the 'reasoning' in that case and as long as the Decision in W.P. 28043/1993 was not reversed, Judicial propriety requires that this Court should follow the Decision in W.P. 28043/1993. He relied on the Decision of the Supreme Court in Ayyaswami Gounder v. Muniswamy Gounder and Shridhar v. Nagar Palika, Naunpur14 to contend that a Single Judge not agreeing with an earlier Decision of another Single Judge of the same Court, should refer the matter to a larger Bench and propriety and decorum did not warrant the Single Judge to hold contrary to the earlier Decision of the same High Court. There is no doubt that a Single Judge is bound by the Decision of another Single Judge of the same Court. But where the earlier Decision has been stayed, it means that the Decision is not in operation, but kept in abeyance and should not be acted upon. Thus, where the earlier Decision of the Single Judge is stayed in appeal, there is in effect no Decision to be followed. Therefore the contention that I am bound to follow the earlier Decision or refer the matter to a larger Bench is untenable." (emphasis supplied) This Court has considered the effect of a judgment of the Co-ordinate Bench being stayed by the Division Bench. Here the judgment is stayed by the Division Bench and the interim order of stay is not interfered with by the Apex Court, by dismissing the SLP. Therefore, I deem it appropriate not to take into consideration the decision rendered in the case of Mr.P.L.G. MANU and consider the case at hand on the parameters laid down by the judgments as aforesaid. 19. The facts are not in dispute. The 5th respondent has appeared for the 6th respondent every time when some dispute cropped against the 6th respondent, is also not in dispute. The learned counsel for the petitioner has filed a memo of cases, which the 5th respondent has represented the complainant. 19. The facts are not in dispute. The 5th respondent has appeared for the 6th respondent every time when some dispute cropped against the 6th respondent, is also not in dispute. The learned counsel for the petitioner has filed a memo of cases, which the 5th respondent has represented the complainant. Few of the cases where the complainant has represented by the 5th respondent before his appointment as Special Public Prosecutor and after his appointment as Special Public Prosecutor, are as follows: "BEFORE APPOINTMENT OF THE 5TH RESPONDENT AS SPECIAL PUBLIC PROSECUTOR 1) NARESH SHENOY v. STATE BY BARKE PS - Crl.P.No.3400/2016 decided on 9/6/2016. 2) M.NARESH SHENOY v. THE STATE - Crl. Misc.Case No.766 of 2016 decided on 9/8/2016. 3) Memo filed in Crl.P.No.6189 of 2016 4) Impleading application filed in Crl.P.No.6189 of 2016. 5) M.NARESH SHENOY v. THE STATE - Crl.P.No.6189 of 2016 decided on 15/9/2016. 6) RAMACHANDRA BALIGA v. THE STATE - Crl.R.P.No.127 of 2016 decided on 22/9/2016. AFTER APPOINTMENT OF THE 5TH RESPONDENT AS SPECIAL PUBLIC PROSECUTOR 7) Impleading application in Crl.P.No.48 of 2017. 8) RAMACHANDRA BALIGA v. THE STATE - Crl.P.No.7613 of 2016 decided on 12/6/2017. 9) ANURADHA BALIGA v. STATE - Crl.P.No.4415 of 2018 decided on 26/3/2019." The afore-mentioned appearances of the 5th respondent for the complainant is admitted by the 5th respondent who defends it on the ground that it has not caused any prejudice to the petitioner or an apprehension that there would not be a fair trial. 20. The Special Public Prosecutor has a pivotal role in the conduct of trial against any accused as is held by this Court in the case of SHIVA REDDY. The learned Single Judge while considering the submissions has considered what is the status and responsibility of a Public Prosecutor in a criminal trial and the right of the accused to challenge the order of appointment of the Special Public Prosecutor. This Court while answering the issue in the case of SHIVA REDDY, has held as follows: "27. It is an office of responsibility more important than many others because the holder is required to prosecute with detachment on the one hand and yet with vigour on the other. An upright Public Prosecutor has no friends and foes in Court. He has no prejudices, preconceived notions, bias, hostility or his own axe to grind. He represents public interest. It is an office of responsibility more important than many others because the holder is required to prosecute with detachment on the one hand and yet with vigour on the other. An upright Public Prosecutor has no friends and foes in Court. He has no prejudices, preconceived notions, bias, hostility or his own axe to grind. He represents public interest. He has no client or constituency apart from the State. He is above the personal loyalty. He does not have a dual capacity. He has to safeguard public interest in prosecuting the case. Public interest also demands that the trial should be conducted in a fair manner, heedful of the rights granted to the accused under the laws of the country including code. It is no part this obligation to secure conviction of an accused in any event or at all costs. Nor is he intended to play a partisan role or become party to the prosecution of the accused or lend support, directly or indirectly to a denial of justice or of fair trial to the accused. 28. Sec. 24 of the Code confers unfettered power on the Central Government and the State Government to appoint a Special Public Prosecutor for purposes of any case, if the person so appointed satisfies the qualification laid down in Sub-Sec. (8). Once a person is appointed as a Special Public Prosecutor, he would be the "Public Prosecutor" within the meaning of Sec. 2(u). Therefore, all rules applicable to the Public Prosecutor equally applies to the Special Public Prosecutor. 29. Merely because the Central and State Government has the power to appoint for the purposes of any case or class of cases a Special Public Prosecutor that power cannot be exercised, mechanically without any reason, as a rule. There must be some justifiable reason to dislodge the Public Prosecutor and for requestioning the assistance of an experienced Advocate for the case. The record must disclose the existence of circumstances which warrants such appointment, application of mind to such material and recording such reasons for such appointment. Reasons are the links between the material, the foundation for those erections and the actual conclusions. They would also administer how the mind of the maker was activated and actuated and these rational nexus and synthesis with the facts considered and the conclusions reached. Reasons are the links between the material, the foundation for those erections and the actual conclusions. They would also administer how the mind of the maker was activated and actuated and these rational nexus and synthesis with the facts considered and the conclusions reached. Rest it may not be arbitrary, unfair and unjust, violate Article 14 or unfair procedure offending Article 21. When wide discretionary power is conferred, the Government must exercise the power in a most reasonable manner in accordance with the spirit of the statute and in public interest. 30. Special Public Prosecutor could be appointed only when public interest demands. There should be special circumstances warranting such appointment. The mere fact that the accused in a particular case are engaging a leading criminal lawyer alone cannot be a ground to appoint a Special Public Prosecutor. But that factor may be one of the factor which may be taken note of along with or other weighty reasons for such appointment. A Special Public Prosecutor cannot be appointed with a view to secure conviction at all cost. The said office should not permitted to be degenerated into a legalized means for wreaking private vengeance. xx xx xx xx 32. In the matter of remuneration payable to the Special Public Prosecutor, 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 cases where Special Public Prosecutors remuneration may be collected from private source. The rate of fees should be prescribed and the complainant should be called upon to deposit the fees in advance to the Government and the Special Public Prosecutor be paid out of the said amount by the Government. To leave the complainant to pay to the Special Public Prosecutor would indeed not be appropriate. If he looks to a private party for his remuneration, his capacity and ability to perform his role as Public Prosecutor properly will be endangered. Government cannot appoint Special Public Prosecutor on such terms, abdicating their financial responsibility or directing him to receive his remuneration from any private individual. Then it introduces an advocate-client relationship, a personal element from which the Public Prosecutor must be considered immune. He is above the personal loyalty. Government cannot appoint Special Public Prosecutor on such terms, abdicating their financial responsibility or directing him to receive his remuneration from any private individual. Then it introduces an advocate-client relationship, a personal element from which the Public Prosecutor must be considered immune. He is above the personal loyalty. He does not have a dual capacity." (emphasis supplied) and insofar as the right of the accused to challenge the appointment of Special Public Prosecutor is concerned, this Court has held as follows: "33. POINT NOS. (4) AND (5): - The learned Government Advocate has made available the record pertaining to the appointment of the Special Public Prosecutor. Admittedly, there is no application by the third respondent, the widow of one of the deceased victim, seeking appointment of a Special Public Prosecutor. The Government has not appointed the second respondent suo moto in public interest. On the contrary the process of appointment has emanated on the basis of a letter addressed by Sri. GV. Venkatashiva Reddy, M.L.A. to the Hon'ble Law Minister. The said letter is produced and it reads as under: - 34. The said letter was written by him in connection with Crime 4/2003 registered in Gownipalli Police Station. It states he had made a request to the Chief Minister to appoint Sri. H.M. Thimmarayappa, the second respondent herein, as an Advocate to argue on behalf of the complainant. Further, it is stated that the advocates fee would be borne by Smt. (Late) Shiva Shankara Reddy. The Law Secretary placed the said letter before the Law Minister. The Law Minister made an order directing the Law Secretary to take steps to appoint Special Public Prosecutors. Thereafter, the record discloses the following notings: - "Dy. No. 3268 LAW 1769 WCM 03 P.U.D. placed on the c/f is for kind perusal, wherein it is requested to appoint Sri H.M. Thimmarayappa as Special Counsel. As such draft notification is placed on the c/f for kind approval. (sd/- 28/4/2003) HML has ordered for appointment of Sri H.M. Thimma rayappa as Special Counsel and Sri. Venkatashiva Reddy G.K., MLA, has stated to ALS-3 that the Counsel has consented for the appointment and Smt. Shamashankar Reddy has consented to bear the expenses of the S.P.P. Hence, draft is approved. Put up FC. The copy of notification marked to H.M. Thimmarayappa was given to Junior Assistant of ALS-3, Sri. Venkatashiva Reddy G.K., MLA, has stated to ALS-3 that the Counsel has consented for the appointment and Smt. Shamashankar Reddy has consented to bear the expenses of the S.P.P. Hence, draft is approved. Put up FC. The copy of notification marked to H.M. Thimmarayappa was given to Junior Assistant of ALS-3, Sri. Gopala Reddy, along with the office copy, on oral directions from ALS-3, for getting it served on Sri H.M. Thimmarayappa. The P.S. to Minister for Mines and Geology (Sri Muniyappa) is stated to have taken both the copies on the ground that he will return O.C. after serving the copy marked to counsel personally along with endorsement/acknowledgment from the counsel. But so far the O.C. is not returned by Sri Reddy. Meanwhile get the notification xeroxed and then issue the other copies. Pursue Sri Reddy to get back O.C." xx xx xx xx 36. The impugned order is an administrative order by the Government under Sec. 24(8) of the Code. It is a statutory order. If all State actions must be just, fair and reasonable, the Special Public Prosecutor would be under less duty as a functionary of the State to discharge his functions as a Public Prosecutor in an equally just, fair and reasonable manner irrespective of the outcome of the trial. In that sense, he is a part of the judicature system and an upright Public Prosecutor has no friends and foes in Court. He has no prejudices, preconceived notions, bias, hostility or his own axe to grind. He represents public interest, but is not a partisan in the narrow sense of the terms. xx xx xx xx 38. The second respondent is appointed at the instance of the M.L.A. who has nothing to do with the crime in question. In the statement of objections he has stated that he is appointed after detailed inquiries made through the Deputy Director of Prosecution and also through the representation given by the deceased wife Suiya Kalavathi, which is not borne out from the record. He has referred to the political rivalry in the Taluk and has dragged the name of the present sitting MLA who was also the former speaker and alleges that the wife of the deceased has no confidence even on the Government since sitting M.L.A. and Ex - Speaker of Karnataka is also one of the accused, who is competent to manage things. The third respondent in her objection statement has not alleged these things, as on the date of appointment of the second respondent, Sri G.K. Venkatashiva Reddy was the MLA and on his request the appointment was made, and the facts pleaded for justifying the appointment are subsequent events to appointment. Therefore, the second respondent is acting as a spoken person of not even of the complainant but that of the MLA who got appointed him and is bent upon persecuting the accused and wants a conviction at any cost. The statement made by him clearly demonstrates that he is unable to prosecute the case with detachment. He has prejudices, pre-conceived notions, bias and hostility against the accused. Though he may not have his own axe to grind, he has allowed to him to be used by the MLA to fight his political battle in the Court under the garb of a Public Prosecutor. The records and the statement of objections speaks for itself. Realising his folly in exposing himself in the aforesaid manner, a memo was filed to withdraw the statement of objections. It is relevant to notice that the second respondent has served as a Public Prosecutor earlier. He ought to know his status and role better. The allegations in the statements of objections therefore cannot be considered as unintentional or born out of inexperience. Moreover the Writ Petition do not contain any personal allegations against him. In spite of the same not only he defends his appointment, which was totally unwarranted, but makes allegations against the accused and his mentors, bringing in politics and political rivalry to the fore, thus disentitling him to be appointed as a Special Public Prosecutor. Therefore, his appointment cannot be sustained." A deeper delving in the circumstances is not required as the present issue, which is akin to the one decided by this Court in the case of SHIVA REDDY (supra), is considered by the Division Bench in the subsequent judgment in Writ Appeal Nos.1199-1200 of 2018 and the learned single Judge, rendered earlier to the Division Bench judgment, in Writ Petition No.37559 of 2014 (supra). 21. Therefore, the apprehension of the petitioner that he would not be subjected to a fair trial in the light of the 5th respondent/counsel for the complainant being appointed as Special Public Prosecutor is well founded. 21. Therefore, the apprehension of the petitioner that he would not be subjected to a fair trial in the light of the 5th respondent/counsel for the complainant being appointed as Special Public Prosecutor is well founded. The other judgments relied on by the 5th respondent were all concerning who should pay remuneration to a Special Public Prosecutor, who enjoys the confidence of the complainant. Therefore, those judgments relied on by the learned counsel are all inapplicable to the facts of the case at hand and the ones that are relied on by the learned counsel for the petitioner sound acceptance as they consider the appointment on both the issues of appointment and remuneration. 22. In view of the aforementioned observations, the appointment of the 5th respondent to be the Special Public Prosecutor, in the case at hand, was erroneous and unwarranted. The impugned order is thus rendered unsustainable. Quashing of the impugned order would not however come in the way of Government exercising the power under Sec. 24(8) of the Cr.P.C. to appoint any Special Public Prosecutor. 23. For the aforesaid reasons, I pass the following order: ORDER (i) Writ Petition is allowed. (ii) The impugned Government Notification dtd. 21/12/2016, stands quashed. (iii) Liberty is reserved to the 6th respondent to approach the Government for appointment of Special Public Prosecutor and in case such a request is made by the 6th respondent, the State shall consider the same in accordance with law, bearing in mind the observations made and the judgments relied on, in the course of this order.