Full Judgment Text
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PETITIONER:
MUKUL DALAL ETC. ETC.
Vs.
RESPONDENT:
UNION OF INDIA & ORS. ETC. ETC.
DATE OF JUDGMENT04/05/1988
BENCH:
MISRA RANGNATH
BENCH:
MISRA RANGNATH
PATHAK, R.S. (CJ)
CITATION:
1988 SCR (3) 868 1988 SCC (3) 144
JT 1988 (2) 280 1988 SCALE (1)909
ACT:
Code of Criminal Procedure, 1973-Section 24(8)-
Appointment of Special Public Prosecutors and Section 25(1)-
Appointment of Assistant Public Prosecutors-By State
Government to support private transaction and provision of
remuneration from private source-Whether valid and
justified, Held-Duty cast on Remembrancer of Legal Affairs
of State Government to decide whether services of Special
Public Prosecutor or Assistant Public Prosecutor be provided
in a particular case and who should bear their expenses.
Rules for the Conduct of the Legal Affairs of the
Government, 1984-Rule 22-Validity of. Held-Bad-Require
proper modification by State Government.
HEADNOTE:
The appellants were facing prosecution for several
charges under the Indian Penal Code in different trials. By
different notifications the State of Maharashtra appointed
some advocates as Assistant Public Prosecutor and Special
Public Prosecutors in exercise of powers under section 25(1)
and 24(8) respectively of the Code of Criminal Procedure,
1973 for conducting the prosecution. The notifications were
challenged in a group of writ petitions before the High
Court. A Division Bench of the High Court by a common
judgment negatived the plea advanced by the appellants,
rejected the writ petitions and upheld the appointments.
Hence these appeals by special leave. The appellants
contended that the Code confers a special status on the
public prosecutor whenever it has been considered necessary,
law has prescribed the interest to be represented by the
public prosecutor and it would not be in proper exercise of
power by the State Government to make appointment of a
Special Public Prosecutor to support a private transaction
and provide for his remuneration from private source.
Allowing the appeals this Court,
^
HELD: In most of the States, the Remembrancer of Legal
Affairs looks after the State litigations. He is a
responsible officer and normally
869
with judicial experience. When an application for the
services of a Special Public Prosecutor or an Assistant
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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 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 traversity 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 is
accepted or what the High Court has indicated is adopted.
[876F-H;877A-B]
Rule 22 of the Maharashtra Rules is bad and the State
Government should properly modify the same keeping our
conclusions in view. [877H;878A]
The next question would be whether the Special Public
Prosecutor should be permitted to be paid by the private
complainant. 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. [877D,F-H]
In the instant cases the Rememberancer of Legal Affairs
of the Maharashtra Government will now decide as to whether
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. [878A-B]
870
K.C. Sood v. S.C. Gudimani, [1981] Crl. L.J. Vol. II,
1779;P.G. Narayanankutty v. State of Kerala and Ors., [1982]
Crl. L.J. Vol. 88, 2085 and Dilipbhai Chhotalal Dave v.
State of Gujarat & Ors., [1971] Guj. L.R. Vol. 12, 999,
referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
305,306 & 307 of 1988.
From the Judgment and Order dated 2nd/3rd July, 1986 of
the High Court of Bombay in Criminal application No. 1127,
527 and 866 of 1985.
S.B. Bhasme, M.C. Bhandare, Dilip Pillai, P.K. Pillai,
T. Sridharan and Amit Desai for the appellants.
V.M. Tarkunde, R.K. Garg, M.S. Rao, Y.R. Naik,
Rajadyaka, S.B. Jaisingha, Ms. R. Jethmalani, C. Ramesh and
Ashok Sharma for the Respondents.
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V.S. Desai, G.B. Sathe, A.M. Khanwilkar and A.S. Bhasme
for the State of Maharashtra.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. Special Leave granted in each of
the three cases.
A common questions arising for consideration in these
appeals is as to the justifiability of the appointment by
the State of Special Public Prosecutors and Assistant Public
Prosecutors under sections 24 and 25 respectively of the
Code of Criminal Procedure, 1973 at the cost of the private
complainants.
In Criminal Appeal arising out of S.L.P. (Crl) No. 3027
of 1986 the appellants are facing prosecution for charges of
forgery and cheating before the Additional Chief
Metropolitan Magistrate, 37th Court, Esplanade, Bombay. On
4th of December, 1979 the Government of Maharashtra
appointed as Assistant Public Prosecutor for conducting the
said case for the prosecution in exercise of powers under
section 25(1) of the Code of Criminal Procedure. In the
connected Criminal Appeal arising out of S.L.P. (Crl.) No.
3048 of 1986 the appellant is accused of an offence
punishable under section 409 read with sections 120-B and 34
of the Indian Penal Code and is facing his trial in the
871
court of the same Metropolitan Magistrate. On 3rd of August,
1983, the State of Maharashtra in exercise of powers under
section 24(8) of the Code of Criminal Procedure has
appointed two advocates as Special Public Prosecutors for
conducting the prosecution. In the other connected Criminal
Appeal arising out of S.L.P. (Crl.) No, 703 of 1987 the
appellants are being tried for offences punishable under
sections 506(ii), 337, 354, 504, 498-A, read with sections
114 and 34 of the Indian Penal Code in the Court of the same
Metropolitan Magistrate, 40th Court, Girgaum, Bombay. By
notifications dated 4th December, 1979, 3rd August, 1983 and
17th July, 1985, the Government of Maharashtra in exercise
of powers under section 24(8) of the Code appointed two
advocates as Special Public Prosecutor for conducting the
prosecution. These notifications were assailed in a group of
writ petitions before the Bombay High Court and a Division
Bench of that Court by a common judgment dated 2nd July,
1986, rejected the writ petitions and upheld the
appointments. That common judgment of the High Court is
assailed in this batch of appeals. Since common questions
have been raised and argued at a time, this judgment shall
dispose of all the three appeals.
The impugned appointments have been made either in
exercise of powers under section 24 or section 25 of the
Code of Criminal Procedure of 1973. Section 24 deals with
Public Prosecutors while section 25 makes provisions for
Assistant Public Prosecutions. While sub-section (1) of
section 24 enables the Central Government or the State
Government to appoint a Public Prosecutor or an Additional
Public Prosecutor for the purpose of High Courts, sub-
section (2) makes provision for appointment of one or more
Public Prosecutors for the purposes of conducting of cases
in any district or local area and sub-sections 4, 5, 6 and 7
deal with the modality of such appointments, sub-section (8)
provides:
"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."
Section 25 deals with the appointment of Assistant Public
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Prosecutors Sub-section (1) provides:
"The State Government shall appoint in every
district one or more Assistant Public Prosecutors
for conducting prosecutions in the courts of
magistrates."
872
The provisions contained in these two sections in the Code
of 1973 correspond to section 492 of the old Code which
dealt with the appointment of Public Prosecutors.
Challenge by the appellants to the notifications in
question is on the ground that the Code confers a special
status on the Public Prosecutor; whenever it has been
considered necessary, law has prescribed the interest to be
represented by the Public Prosecutor and it would not be in
proper exercise of power by the State Government to make
appointment of a Special Public Prosecutor to support a
private transaction and provide for his remuneration from
private source. The High Court referred to some decisions of
the different Courts supporting and opposing the view
canvassed before it and came to hold:
"According to us, the conduct of prosecution by a
lawyer appointed and paid by the private party
does not affect his capacity and ability to
perform his role as a Public Prosecutor. To accept
such a proposition is to invalidate all private
prosecutions."
Negativating the plea advanced by the appellants, the High
Court has further held:
"For the reasons given above, with respect, it is
not possible for us to agree that a pleader
engaged by a private person is a de facto
complainant and cannot be expected to be as
impartial as a pleader appointed by the State to
conduct public prosecution. On the other hand, we
are of the view that as stated earlier, permission
to engage an advocate should be given freely to
the complainant. The complainant has as much a
right as the accused to represent his case
effectively before the court."
The High Court also negatived the challenge against the
appointment of the Assistant Public Prosecutors under
section 25 by holding:
"Hence the absence of a provision such as section
24(8) will not bar appointment of an Assistant
Public Prosecutor specially to conduct a case or
class of cases."
While dealing with the matter at a different place in the
judgment the High Court observed:
873
"But apart from this, we are of the view that
guidelines or no guidelines, whenever there is a
request made by a private party to engage an
advocate of his choice to be paid for by him, the
request should be granted as a rule. The
complainant in such cases is either a victim of
the offence or is related to the victim or
otherwise an aggrieved person. He has a right to
be heard and vindicated. As stated earlier, the
right to be heard implies a right to be
effectively represented at the hearing of the
case. He has therefore a right to engage an
advocate of his choice. There is therefore no
reason why the State should refuse him the
permission to conduct the prosecution with the
help of his advocate........."
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Appellant’s counsel have challenged these conclusions of the
High Court. Under the Criminal Procedure Code, the Public
Prosecutor has a special status, and his is a statutory
appointment. Under some of the provisions made in the Code,
he receives special recognition. Section 2(u) of the Code
defines the Public Prosecutor. Sections 199(2), 225, 301(1),
301(2), 302, 308, 321, 377 and 378 are some of the
provisions in the Code which confer a special position upon
the Public Prosecutor. From the spirit contained in the
scheme of the Criminal Procedure Code it is clear that it is
the duty of the Public Prosecutor to support prosecutions
initiated by the State. Trial before a court of session has
to be conducted by the Public Prosecutor as required under
section 225 of the Code. Cases instituted on a police report
are intended also to be handled by a Public Prosecutor.
Cases instituted on a complaint, however, stand on a
different footing and the complainant has choice of his own
counsel. A set of rules known as Maharashtra Law Officers
(Appointment, Conditions of Service and Remuneration) Rules,
1984 made in exercise of powers conferred by proviso to
Article 309 read with Article 165 of the Constitution have
been placed before us in course of the hearing. Chapter III
of those rules lays down qualifications of the Government
Pleader and Public Prosecutor while Chapter IV prescribes
the duties of the Public Prosecutor. Another set of rules
known as The Rules for the Conduct of the Legal Affairs of
the Government, 1984, which appears to be administrative in
character, was also placed before us. 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
874
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 the particular case or cases."
Appellant’s counsel challenged the validity of Rule 22 and
contended that such a Rule is contrary to the spirit of the
Code of Criminal Procedure and this rule affects the special
status conferred on the Public Prosecutor and would cause
prejudice to that public office.
The office of the Public Prosecutor is a public one. A
learned Single Judge of the Delhi High Court in K.C. Sood v.
S.C. Gudimani, [1981] Crl. L.J. Vol. II, 1779 rightly held
that the Public Prosecutor, the Additional Public Prosecutor
and the Assistant Public Prosecutor hold an office. The
learned Judge said:
"It is public office of trust and therefore like
any other public office, is susceptible to misuse
and corruption and if not properly insulated. 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. When advocates are
recruited to these offices, they have certain
professional and official obligations and
privileges. Some State Governments have
appropriately made it an express term of their
appointment that they shall not accept any brief
in criminal matters and shall not even in civil
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matters appears in any case in which the interests
of the State appear to be involved."
Similar observations were made by another learned
Single Judge in the case of P.G. Narayanankutty v. State of
Kerala and Ors., [1982] Crl. L.J. Vol. 88, 2085. In this
case, Bhat, J., of the Kerala High Court pointed out:
"Special Public Prosecutor cannot be appointed
with a view to secure convictions at all costs.
Special Public Prosecutor could be appointed only
when public interest demands it and not to
vindicate the grievances 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
875
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 ...........
Some other High Courts have taken a different view of
the matter. A division Bench of the Gujarat High Court in
Dilipbhai Chhotalal Dave v. State of Gujarat & Ors., [1971]
Guj. L.R. Vol. 12, 999 considered a case of this type where
the Public Prosecutor and the Assistant Public Prosecutor
were designated as Special Public Prosecutors for conducting
a particular case. It was found by the Court that
remuneration of the advocates had been left to be fixed by
agreement between them and the Central Bank of India for
whom they were to appear was to pay them directly. The High
Court held:
"That though the Public Prosecutor would be
incharge of and is required to conduct the
prosecution before the court of sessions, the
control of proceedings before the Court is
ultimately in the hands of the presiding Judge. It
would not be unreasonable to assume that if there
is unnecessary prolongation of the trial and
consequential harassment of the accused at the
hands of the Public Prosecutor or unfair handling
of the prosecution case by the prosecutor, the
Court would always intervene and protect the
accused and ensure a fair trial."
The Court further found that:
"Rule 38 of the Gujarat Law Officers (Conditions
of Service) Rules, 1965 made provision that if a
Special Counsel was appointed, the terms and
conditions of his employment would be such as may
be determined by the State Government by an order
in writing. It was open to the State Government to
provide for fees of the Special Counsel appointed
by it to be paid by virtue of an agreement
directly arrived at between the Special Counsel
and the complainant."
Some other cases taking the same view as the Gujarat High
Court were also placed before us in course of the hearing.
876
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
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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. 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.
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
would be contrary to the spirit of the scheme of the Code.
There may be cases where a powerful complainant may have
begun a
877
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
incharge of the case.
The next question would be whether the Special Public
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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 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
878
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.
H.S.K. Appeals allowed.
879