Mukul Dalal
Vs. Union of India & Ors [1988] INSC 139
(4 May 1988)
Misra
Rangnath 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.
HEAD NOTE:
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 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.
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.
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 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........." 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 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 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 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.
Back
