Quashed

Umesh Balasaheb Kalabhor v. the State of Maharashtra and Ors.

Bombay HC4 Jul 2008WP/628/2008

Case brief

AI extract

What is this about?

The High Court of Bombay, Bombay Appellate Jurisdiction, quashed the Government of Maharashtra's order appointing a Special Public Prosecutor in a Sessions case. The Court held that the appointment was illegal as the Rules of Legal Affairs required the Remembrancer of Legal Affairs to record specific reasons regarding the nature, gravity, and public interest, which was not done.

What did the court decide?

The impugned order appointing Shri Vijay Savant as Special Public Prosecutor in Sessions Case No. 591 of 2006 is quashed and set aside. The trial continues with the District Government Pleader.

Umesh Balasaheb Kalabhor Vs the State of Maharashtra and… — Specific Performance | Bombay HC (2008)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 628 OF 2008 Mr. Umesh Balasaheb Kalabhor ..Petitioner Vs. The State of Maharashtra and ors. ..Respondents Mr. Sudhir Halli for petitioner. Mr. Ravi Kadam, Advocate General, with Mrs. A.S. Pai, APP for State.

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CORAM: B.H. MARLAPALLE & R.Y. GANOO,JJ.

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Reserved on : June 27, 2008.

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Pronounced on: July 04, 2008.

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JUDGMENT: (Per B.H. Marlapalle,J.)

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Heard Mr. Halli the learned counsel for the petitioner. Rule. 2. Respondents waive service. The petition has

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been heard finally.

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The petitioner has challenged the order dated 29/11/2007 issued by the Government of Maharashtra through the Department of Law and Judiciary in

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exercise	of i	ts powe	rs under Section	24(8) of the	Code
of Crim	inal	Procedure,	1973 and by	the said order	Shri
Vijay	Savant	has	been appointed	as a Special	Public
Prosecutor	in	Sessions	Case No.	591 of 2006	pending
before	the S	essions	Court at Pune.	The impugned	order
has	also	fixed the	lumpsum fees	of Rs.75,000/- to	be
paid to	Shri	Vijay	Savant and the	said amount has	been
deposited	b	y	the applicant-complai	nant Shri	Ramesh
Baburao	Pokale.	Th	ough Shri Vijay	Savant has not	been
impleaded	as	one	of the resp	ondents, he has	filed
affidavit	on	18/6/2008	denying that	he is in any	way
and	even	remotely	related to the	complainant. He	has
annexed	to	the	affidavit-in-reply	a copy of	his
educational	a	nd legal	career so as	to point out	that
he was	a	right	choice for app	ointing as Special	Public
Prosecutor	at	the	request of the	complainant. He	is
enrolled	as	member	of the Bar in	1978 and has	worked
as	the	District	Government	Pleader and	Public
Prosecutor	at	Pune	during the	period from 1992	to
1996.	He	has	also given a	list of some p	rominent

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cases he had handled before the Sessions Court/TADA

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Court at Pune.

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The appointment has been challenged on various

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grounds and it has been mainly stated that the sam	e is
not in keeping with the scheme of Section 24(8) of	the
Cr.P.C. read with Rule 22 of the Rules for	the
Conduct of the Legal Affairs of Government, 1984	(for
short the Rules of Legal Affairs) and the law	laid
down by the Supreme Court in the case of Mukul	Dalal
and ors. vs. Union of India and ors. [(1988) 3	SCC
144] as well as the decision of this court in the	case
of Sushil Hiralal Chokhani & ors. vs. State	of
Maharashtra and ors. [2005 (2) Bom. C.R.	(Cri.)
654] and Omprakash Baheti and ors. vs. State	of
Maharashtra and ors. [2006 Cri. L.J. 3105].	The
challenge to the order is also on the ground that	it
is arbitrary, unreasonable, without application	of
mind and in any case not in public interest. It	is
further contended that the impugned order does	not
speak about the nature and gravity of the	case
warranting the appointment of Special	Public
Prosecutor in public interest. The learned	counsel
for the petitioner referred to the complaints	filed
against Shri Ramesh Baburao Pokale (complainant)	and
his other family members at the instance of	the
petitioner, who is one of the accused in Sessions	Case
No. 591 of 2006 and despite such serious co	mplaints

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pending	against	Shri	Ramesh		Baburao	Pokale,	the
impugned	order	has	been		passed	allowing	his
application	for	appoint	ment	of	the	Special	Public

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Prosecutor, even though his antecedents are equally

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bad.

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5.		On	b	ehalf of the respondent
affidavit-in-re	ply		has	been filed by		the
Solicitor-cum	-Joint		Se	cretary, Law &	J	udiciary
Department		so	a	s to oppose the petition and		justify
the	impu	gned	order.	It has been pointed out	that	the
complainant		s	ubmitted	an application, whic	h	was
received		by	the	Home Department on 30/5/2007,	for	the
appointment		of	Shri	Vijay Savant as a Special		Public
Prosecutor	in	Sess	ions	Case No. 591 of 2006,	which	is
pending		for	tri	al for the offences punishable		under
Section	302	and	307	read with Section 34 of	the	Indian
Penal	Co	de.	Th	e said application was examined	by	the
Home	De	partment	as	well as the Department of La	w	and
Judiciary		and	the	Principal Secretary and RL	A	applied
his min	d	and	consid	ering the nature and gravity	of	the
offence	al	ong	wit	h the element of public		interest
involved		in	the	said case, recommendation was	made	to
the	Gov	ernment	for	approving the appointment of		Shri

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Vijay		Savant	as Special Public Pros	ecutor.	The	said
file w	as	placed	before the State	Minister	(Law) a	nd on
his		approval,	it was placed before	the	Hon’ble	Chief
Minister,		who	finally approved the	appoin	tment of	Shri
Vijay		Savant	and accordingly the	impugn	ed order	was
issued.		It	is reiterated that	the	Principal	Secretary
and		RLA,	considering the peculiar	nature	of the	case,
gravity		of off	ence and circumstances	brou	ght on	record
along		with	the request of the	complai	nant,	concluded

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that it was necessary to appoint the Special Public

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Prosecutor in Sessions Case No. 591 of 2006.

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Section 24(8) of the Code of Criminal

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Procedure states,

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"The Central Government or the State

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Government may appoint, for the purposes of

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any case or class of cases, a person who has

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been in practice as an advocate for not less

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than ten years as a Special Public

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Prosecutor."

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Rule 22, as originally framed in 1984 reads as

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under:-

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"If in any case, civil or criminal, a request

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is made by any private party, interested in the case, for the appointment of its own advocate as a Special Counsel or Special Public Prosecutor, as the case may be, on the condition that the payment of fees of such advocate will be borne by that party, the Remembrancer of Legal Affairs may, after considering such case on merits, appoint such advocate for that particular case or cases."

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. In the case of Mukul Dalal (Supra) the Supreme

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Court	held	Rule	22 as	bad	and	sta	ted that	the
Government		should	properly	modify	the	said	Rule	in
keeping	with	the	conclusions	recor	ded	in	the	judgment.

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On 4/4/2002 the Government of Maharashtra amended Rule 22 as under:-

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". If in any case, civil or criminal, a

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request is made by any private party, interested in the case, of the appointment of

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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 party shall deposit the fees, in the Law and Judicial Department, of the Advocate, to be appointed as Special Counsel or Special Public Prosecutor, in advance to be determined by the Principal Secretary and Remembrancer of Legal Affairs, Law and Judiciary Department, Government of Maharashtra, and such fees shall be paid to the Special Counsel or Special Public Prosecutor, as the case may be, on completion of trial.

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. Provided that, this provision shall

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not be applicable to the public sector undertaking, a bank, whether nationalised or

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not, an educational institution and the like."

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Having realised the deficiencies in the

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amended Rule as well, the Government of Maharashtra vide its Resolution dated 13/9/2004 again amended Rule

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22 and the said Rule, applicable as of now, reads as

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under:-

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"22.Engagement of Special Prosecutor.-(1) The Government in the Law and Judiciary Department, either suo motu, or on the request of any aggrieved party or the concerned Department in the Government, may, engage an Advocate who has been in practice as an Advocate for not less than ten years, and having regard to his general repute, legal acumen and suitability, by appointing him, as a Special Public Prosecutor in any criminal case or class of cases, as the case may be:

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Public

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	Provided	that,	no order	under	this	sub-rule
regarding	appoi	ntment	of a		Special	Public
Prosecutor	shall	be	made	unless,	for	the
reasons	to	be	recorded i	n	writing,	the
Remembran	cer	of	Legal Affa	irs	is	satisfied,
having	regard	to	the nature	of	the	case,
gravity	of	the	matter and		public	interest
involved	in	the	matter that	such		appointment
is						necessary.

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(	2) On		the request	of a	private co	mplainant
not	being	the	aggrieved	party,	the Go	vernment
in the	Law		and Jud	iciary	Department	may,
appoint	any	of	the	Public	Prosecutor	or
Additional	Public		Prosecutor	as	a	Special
Public	Prosecutor		in	accordance	with	the
provisions	of	sub-r	ule (1),	for	conducting	any
such						case.

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(3)	Fees for such	Speci	al Public		Prosecutor,
appointed	under sub-rule	(1)	or (2),	may	be
borne by	the Government	or	the aggr	ieved	party
or the	private complainant,	as	may	be	directed
by the	Remembrancer	of	Legal		Affairs;
Prov	ided that, in	cases	where the		aggrieved
party is,	a Bank or an	Inst	itution or	Tr	ust or
the like,	the fees shall	be	borne	by	such
aggrieved					party;

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	Provided		further	that,	the	amount	of	the	fees
to	be	paid	to	such	Speci	al Pub	lic	Pros	ecutor,
shall	be	dep	osited	with	the	Governm	ent	in	the
Law	and		Judiciary	Depa	rtment	first,	and		the

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same shall be paid by it to such Special Public Prosecutor on completion of the trial, unless directed otherwise by the Remembrance of Legal Affairs."

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Sub-rule (1) of Rule 22 empowers the

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Government	in	the	Law	and	Judi	ciary	Departm	ent,	either
suo	motu	or on	the	request of	an	y aggr	ieved	party	to
engage	an	Advocate	as	a Spe	cial	Public	Prosec	utor	in
any	criminal	case	or	class of	case	s.	The		Advocate
sought	to	be eng	aged	is require	d	to be	in	practic	e as
an	Advocate	for	not	less than	ten	years	and	for	his
appointment		regards	be	had	to	his	general		repute,
legal	acumen	and		suitability.		The	provis	o	below
sub-rule	(1)	of Rule	22	states	that	no	order	under	the
said	s	ub-rule	regardin	g appoint	ment	of	Spec	ial	Public
Prosecutor	shall	be	made	unless,	for	the	reasons	to	be
recorded	in	writing,	the	Remem	brancer	of	Leg	al	Affairs
(RLA)	is	satisfied,	having	regard	to	the	nature	of	the
case,	gravity	of	the	matter		and	public		interest
involved	in	the	matt	er that		such	appoi	ntment	is
necessary.		Sub-rule	(2)	of Rule	22	is	for a		private
complainant		not bei	ng	the	ag	grieved	party	,	for

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appointment	of	a	Public	Prosecutor	or	Additional
Public	Prosecutor	as	a	Special	Public	Prosecutor,
whereas	sub-rule	(3) of	Rule	22 states	that the	fees
for such	Special	Public	Prosecutor	may be	borne	by the

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Government or the aggrieved party or the private

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complainant, as may be directed by the RLA.

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9.	It	is thus clear that the first part of Rule
22(1)	speaks	of the requirements to	be	met by	an
Advocate	for	being appointed as	a	Special	Public
Prosecutor	by	the Government, either	suo	motu or	on
the	request	of any aggrieved party,	whereas	in	the
second	party,	under the proviso, the	RLA	is	required
to rec	ord reas	ons in writing about	his	satisfaction	on
the	necessity	of such appointment,	having	regard	to
the	nature	of the case, gravity	of the	matter	and
public	interest	involved in the	matter	that	such
appointment	is	necessary. It is	obvious	that	the

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failure to do so on the part of the RLA, would vitiate

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the appointment.

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After the Supreme Court decision in the case of S.B. Shahane and ors. vs. State of Maharashtra

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and anr. [AIR	1995 SC	1628], t	he Governm	ent of
Maharashtra through	its Hom	e Department	issued	a G.R.
dated 10/1/2000	and laid	down, inter	alia, that	the
Sessions cases	of special	importance	would be	handled
by the Ass	istant Director	of Prosecu	tion and	Public
Prosecutor and	Director of	Prosecution	will be	the
head of all	the Prosecutors	in the	State.	Section
25-A has been	inserted in	the	Code of	Criminal
Procedure (Amendment	Act,	2005) w	ith effect	from
23/6/2006 and as	per the	same,	the Direc	tor of
Prosecution will	be the he	ad of the	Directorate	of
Prosecution and	shall	function	under	the
administrative control	of the	head	of the	Home
Department in	the State.	Every	Public	Prosecutor,
Additional Public	Prosecutor	and	Special	Public
Prosecutor appointed	by the	State	Government	under
subsection (1) or	as the	case may	be under	subsection
(8) of Section	24 to conduct	cases in	the High	Court
shall be su	bordinate to	the Director	of	Prosecution
and every Dep	uty Director	of Prosec	ution shall	be
subordinate to	the Director	of Pr	osecution.	Every
Public Prosecutor,	Addition	al Public	Prosecutor	and
Special Public	Prosecutor	appointed	by the	State
Government under	subsection (3)	or as	the case	may be

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under	subsection (8) of Section	24 to conduct cases	in
District	Courts and ever	y Assistant Public Pro	secutor
appointed	under subsection (1)	of Section 25 shall	be
subordinate	to the Deputy	Director of Pros	ecution.
Having	regards to the G.R.	dated 10/1/2000 and	the
scheme	of Section 25-A of	Cr.P.C., we had raised	a
query	as to whether it	is necessary to obtain	the
opinion	of the Director of	Prosecution before an	order
under	Rule 22 is passed	for the appointment of	a
Special	Public Prosecutor.	The response of	the
learned	Advocate General was	in the negative.	The
learned	Advocate General	further stated that	the
provisions	of Section 25-A of	Cr.P.C. have not	been
made	applicable as yet by	the State Government as	the
Directorate	of Prosecution has	been established by	the
State	Government much before	the introduction of	the
said	Section in Cr.P.C.	and, therefore, in a	given
case	the issue raised by th	e court is required to	be
considered,	but in any case	it was not necessary	for
the	State Government to	obtain the opinion of	the
Director	of Prosecution whi	le passing the im	pugned
order.	He also pointed out t	hat as of now the post	of
Director	Prosecution is vacant	and on such conti	ngency
it m	ay not be necessary	as a legal requirement	to

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consult the said authority for the appointment of

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Special Public Prosecutor.

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We are surprised that the Law & Judiciary

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Department	has not briefed the learned	Advocate
General	about the facts, as available on record	on
this	issue. We have noted from the record	placed
before	us that vide letter dated 1/6/2007	Home
Department	called for the remarks/opinion of	the
Director	of Prosecution and in reply thereto	the
proposal	for appointment of Special Public	Prosecutor
was	opposed by the said authority. As per the	GR
dated	10/1/2000 the Directorate of	Prosecution
consists	of Director of Prosecution, Deputy	Director
of	Prosecution etc. and all the Public	Prosecutors
are	functioning under the Director of	Prosecution.
The	same scheme appears in Section 25-A of	Cr.P.C.
which	has been brought into force with effect	from
26/3/2006	by the Central Government. Once the	Central
Government	has brought into force the amendment	in
Cr.P.C.,	the State Government has no option but	to

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abide by it, though it may seek suitable amendments

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thereto.

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Mr.Halli, the learned counsel for the

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petitioner	submitted that the petitioner is an	accused
in FIR	No.111/06 registered on 14/5/2006 for	the
offence	punishable under Section 307 read with	Section
34 of	IPC and he came to be arrested along with	one
more	accused in connection with the said offence.	It
was alleg	ed that in the complaint filed by Shri	Ramesh
Baburao	Pokale on 14/5/2006 at about 5.30 p.m.	he
along	with his Manager Shri Yadnesh Todankar	were
assaulted	by the petitioner and other accused	with
weapons.	The said Manager Shri Yadnesh	Todankar
succumbed	to his injuries and the FIR came to	be
amended	so as to include an additional	offence
punishable	under Section 302 read with Section 34	of
IPC.	He has further invited our attention to the	Bail
Application	No.167 of 2007 filed by the said	Ramesh
Pokale	for anticipatory bail before the	Addl.
Sessions	Judge so as to point out that	the
petitioner’s	sister Priya who was married to	the
complainant	Ramesh Pokale in the year 2002 has	been
missing	from 12/3/2006 along with her daughter	Preeti

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and de	spite all the efforts made they could not	locate
her f	or more than two months. He referred to	the
letter	dated 5/11/2005 addressed by the Sub	Divisional
Police	Officer, Haveli to the District G	overnment
Pleader	at Pune in connection with FIR No.2064 of	2005
registered	on 3/11/2005. By the said letter the	SDPO
had	requested the District Government Pleader	to
oppose	the anticipatory bail application of	the
complainant	(accused no.9 in FIR No.2064 of 2005).	It
was	stated in the said letter that the c	omplainant
Ramesh	Pokale is the owner of Laxmi Lodge at	Dhairi
and	though it was being run by another accused,	the
lodge	was being used for prostitution /	immoral
trafficking.	It was further pointed out that	though
the	lodge was given on leave and licence basis,	the
complainant	was staying next to the lodge	and,
therefore,	he was aware of the immoral	trafficking
going	on in the premises of the Laxmi Lodge.	It was,
therefore,	contended that the antecedents of	the
applicant	- complainant were such that the G	overnment
of	Maharashtra ought to have rejected his	application
for	appointment of a Special Public Prosecutor a	s the
applicant submitted	himself had a criminal record. He that the RLA did not consider all	further these

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aspects a	nd passed the impugned order wit	hout	forming
any opinion	as to the nature and gravity	of	the
offence ta	ken place on 14/5/2006 and also	the	element
of public	interest involved in the appointment	of	a
Special Public	Prosecutor. As per the lea	rned	counsel
for the	petitioner the impugned order	was	passed
without ap	plication of mind, not in public		interest
and the R	LA did not verify as to	whether	the
requirements of	Rule 22 of Rules of Legal	Affairs	were
made out	for the appointment of a Spe	cial	Public
Prosecutor u	nder Section 24(8) of Cr.P.C.	He	also
made an	allegation that Shri Vijay Savant is	a	close
relation of	the applicant - complainant. We	make	it
clear at	this stage itself that we do not	find	any

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substance in the allegation that the complainant is a

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close relation of Mr. Vijay Sawant.

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13.	I	n keeping wit	h the req	uirements in the first
part of	Rule	22(1)	of	the Rules for the	Legal	Affairs,
we had		passed	an	order on 13/6/2008	directing	the
Director	of	Prosecutio	n	to place before us	the	track
record	of	Shri	Vijay	Savant as available	on	record.
Despite	the	affi	davit	having been presented	by	Shri
R.D.Sankhe,		In-charge		Director of		Prosecutor,

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Maharasht	ra State, for	the second time, the	said
affidavit	does not	state that the record available	in
the	office of the	Director of Prosecution was	perused
and	as per the	same nothing adverse was	noticed.
Instead,	the affidavit	only stated that	Mr.Vijay
Savant	is a well known	Advocate. However, we need	not
consider	the issue	of antecedents of Shri Savant	as
the	learned counsel	for the petitioner has not	very
seriously	challenged the	same and from the	resume
annexed	by Shri S	avant to his affidavit this	issue
regarding	the requirement	s in the first part of	Rule
22(1)	of the Rule	s for the Legal Affairs does	not
arise	for our cons	ideration in this petition as	well.
Hence	we are required	to consider only the second	part
of	Rule 22(1) of	the Rules for Legal Affairs	viz.
regarding	the reasons to	be recorded in writing by	the

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RLA while making such an appointment as a Special

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Public Prosecutor.

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On the issue of scope and extent of power of judicial review, a three Judge Bench in the case of

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State of U.P. and anr. vs. Johri Mal [AIR 2004 SC

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3800] held as under:-

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". The scope and extent of power of the

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judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi judicial or administrative. The power of judicial review is not intended to assume a supervisory role or don the robes of 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 supreme lex to the other organs of the State. Decisions and actions which do not have adjudicative disposition may not strictly fall for consideration before a judicial review succinctly put are:

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(i)

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Courts, while exercising the power of

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judicial review, do not sit in appeal over the

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decisions of administrative bodies.

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(ii) A petition for a judicial review would

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lie only on certain well-defined grounds.

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(iii) An order passed by an administrative

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authority exercising discretion vested in it, cannot be interfered in judicial review unless it is shown that exercise of discretion itself

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is perverse or illegal.

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(iv) A mere wrong decision without anything

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more is not enough to attract the power of judicial review; the supervisory jurisdiction conferred on a Court is limited to seeing that Tribunal functions within the limits of its authority and that its decisions do not

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occasions miscarriage of justice.

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(v) The Courts cannot be called upon to

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undertake the Government duties and functions.

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The Court shall not ordinarily interfere with a policy decision of the State. Social and economic belief of a Judge should not be invoked as a substitute for the judgment of

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the legislative bodies. (See Ira Munn v.

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State of Ellinots, 1876 (94) US (Supreme

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Reports) 113)."

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.		The Supreme C	ourt furt	her clarified that while
exercising	the	power	of	judicial review the Court	is
more	concerne	d with	the	decision making process	than
the merit	of	the de	cision	itself. But while e	xamining
and scr	utinizing	the	de	cision making process	it
becomes	inevit	able to	also	appreciate the facts of	a
given	case	as othe	rwise	the decision cannot be	tested
under	the	grounds		of illegality, irrationality	or
procedural	im	propriety.		To a limited extent	of
scrutinizing	the	decision	ma	king process, it is	always
open to	the	Court to	rev	iew the evaluation of facts	by

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the decision maker and malicing of law can also be a

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ground for judicial review.

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15.		As per Section	225 of Cr.	P.C. that	every
trial	before	a	court	of	Sessions,	the	pr	osecution
shall	be	conducted	by a	Public	Prosec	utor.	As	per
Section	2(u)	of C	r.P.C.,	"Public	Pro	secutor"	means	any
person	appoi	nted	under	Section	24,	and incl	udes	any
person	acting	under	the		directions	of	a	Public
Prosecutor.		Section	301	of	Cr.P.c.	deals	with	the

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appearance by Public Prosecutor and it reads as

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under:-

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"301. Appearance by Public Prosecutor.- (1)

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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.

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(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."

¶134

Undoubtedly, the Public Prosecutors have

¶135

greater responsibility and they are required to

¶136

:23:

¶137

perform		sta	tutory	duties	indepe	ndently	having	regard
to	various	pro	visions	containe	d in	Cr.P.C.	The	Public
Prosecut	ors	while	p	resenting	a p	rosecution	case hav	e a
duty	to	see	that	innocent	persons	may	not be	convicted
as	well	as	an	accused	guilty	of commis	sion of	crimes
does	not		go	unpunished.	A	three-Judge	Bench in	the

¶138

case of Shiv Kumar Vs. Hukam Chand and anr. [(1999)

¶139

7 SCC 467] stated as under:

¶140

"13. From the scheme of the Code the

¶141

legislative intention is manifestly clear that

¶142

prosecution in a Sessions Court cannot be

¶143

conducted by anyone other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to

¶144

fairness in the trial of an accused in a Sessions Court. 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

¶145

:24:

¶146

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 instructions given by the Public Prosecutor.

¶147

It is not

¶148

merely an overall

¶149

supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. The role which a private counsel in such a situation can play is,

¶150

:25:

¶151

perhaps, comparable with that of a junior advocate conducting the case of his senior in a court. The private counsel is to act on behalf of the Public Prosecutor albeit the fact that he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would become a combat between the private party and the accused which would render the legislative mandate in Section 225 of the Code a dead letter."

¶152

The law laid down by the Supreme Court and

¶153

this court as well as other High Courts for the

¶154

appointment of Special Public Prosecutor could be formulated as under:-

¶155

(a) The appointment of a Special Public

¶156

Prosecutor is not to be made for the asking and it is not that whenever an application is made, it should be allowed and a Special Public Prosecutor is appointed.

¶157

:26:

¶158

	Wit	hout	srcutinizing,	on the	basis of the
guide-lines	prescrib	ed,	the	services	of a
Special	Public	Pros	ecutor should	not	be made
available	to		a	private	complainant.

¶159

¶160

Public Prosecutor should be properly examined

¶161

by the RLA and only when he is satisfied, having regards to the nature of the case, gravity of the matter and public interest involved in the matter, that such appointment

¶162

is necessary.

¶163

(d) An Advocate being appointed as a Special

¶164

Public Prosecutor has to be in practice for

¶165

not less than ten years and regard must be had

¶166

to his general repute, legal acumen and

¶167

suitability.

¶168

(e) Before acceding to the request by any

¶169

private party for appointment of a Special Public Prosecutor, it is necessary for the RLA

¶170

to get himself satisfied about the necessity

¶171

of such appointment having regard to the

¶172

:27:

¶173

nature of the case, gravity of the matter and public interest involved therein. Such satisfaction should be reflected from the order recorded in writing by the RLA while

¶174

approving the appointment.

¶175

	(f) The RLA	must be satisfied that the	case
wherein	such appoint	ment is requested	for
deserves	and the	prevailing circumstances	need
the	appointment of	a Special	Public
Prosecutor.
	(g) The points	relating to the	person’s
reputation	and experien	ce at Bar should	find
place	in the considera	tion by the RLA and	it
should	not be a	mechanical exercise on	his
part.
	(h) Such a	ppointment shall be,	on
consideration	of all	the relevant factors	in
relation	to a p	articular case or class	of
cases	and the	consideration thereof should	be
apparent	from the	order of appointment	issued
by such	authority and	it is not necessary	that

¶176

:28:

¶177

the notification for such appointment need
reflect the entire order itself.
(i) The payment of fees of the Special Public
Prosecutor, the quantum as well as source of
payment should not only be specified but
should also be reasonable and justified.

¶178

The Division Bench of this court in the case

¶179

of Sushil Hiralal Chokhani (Supra) further stated as

¶180

under:-

¶181

"	......As	already o	bserved above, the	said
Rules	require	that the	appointment of	a
Special	Public	Prosecutor	has necessarily	to
be by	a	reasoned order	in writing by	the
Remembrance	of	Legal	Affairs. The	required
criteria	prescribed	for	an Advocate to	be
appointed	as	Special	Public Prosecutor	is
satisfied	or	not is	necessarily to	be
considered	by	Remembra	ncer of Legal	Affairs
before	engaging	any A	dvocate as the	Special
Public	Prosecutor	in	a particular case	or
class	of ca	ses. So	also, consideration	of

¶182

:29:

¶183

involvement	of	the	publi	c interest	in	the
matter or		matters, as	the	case may be,	is	a
pre-requisite	for	approval	of	the pro	posal	for
appointment	of	a Spe	cial	Public Prose	cutor	and
further that	s	uch a c	onsiderat	ion has to	be	in
accordance	with	the	rules	framed	and	the
guidelines laid		down by	the	Apex Court	and	the
same should		be clearly	rev	ealed from	the	order
itself, and		such o	rder	should	be	by
Remembrancer		of		Legal		Affairs.

¶184

. The reasoned order would obviously

¶185

mean that the order should reflect consideration of all the relevant materials necessary for approval of the proposal regarding the appointment of the Special Public Prosecutor. Once an authority passing the order is required to disclose the consideration of the relevant factors while passing the order itself, it is needless to say that the order on the face of it should disclose the said consideration. The law that an order passed by the statutory authority must be judged on the fact of it, as the

¶186

:30:

¶187

reasons contained therein cannot be supplemented on an affidavit, is well settled....... In any case, when the order is challenged on account of non-consideration of materials and non-application of mind by the concerned authority, the respondents cannot merely dump the records before the Court and leave it to the Court to scrutinise the records to satisfy itself about the consideration of those materials and application of mind by the concerned authority. It is primarily for the concerned authority to satisfy the Court about such consideration of the relevant materials and application of mind by such authority before passing the order and for that matter, it would be absolutely necessary for the concerned authority to file affidavit in that regard and not by any other person. Besides, the affidavit should be of relevant facts. What merits is the quality, what persuades is the authoritative statement, what recognizes the authority is the authorship of the decision. Being so, neither the quantity

¶188

:31:

¶189

weighs, nor an unauthoritative statement

¶190

counts." (Emphasis supplied)

¶191

Mr.Kadam, the learned Advocate General has

¶192

adopted the same arguments advanced	by him in Criminal
Writ Petition No.234 of 2008	in support of the
impugned order. In the instant case	as well the RLA
has not filed the affidavit-in-reply	and instead the
Solicitor cum Joint Secretary,	Law and Judiciary
Department has filed the affi	davit-in-reply on behalf
of the respondent. This does not	meet the above
stated observations made by the Di	vision Bench of this
Court in Sushil Hiralal Chokahni’s	case (Supra). The
affidavit-in-reply as well as	the additional
affidavit-in-reply is silent on the	issue of the
family feud between the petitioner	and the applicant -
complainant. The affidavit filed	by Shri Arvind
Jayram Rohee, Solicitor cum Joint	Secretary, Law and

¶193

Judiciary Department on the requirements of second

¶194

part of Rule 22(1) states as under:

¶195

"5. I say that the P.S. & R.L.A. in

¶196

consideration of the amendment to Rule 22,

¶197

after going through the nature of the case,

¶198

:32:

¶199

gravity of the matter and public interest involved therein, he considered the same and was satisfied and the said satisfaction has been reflected by him while approving the appointment of the said Special Public Prosecutor.

¶200

I say that P.S. & R.L.A. before approving the appointment in the matter, also considered the reputation, experience and ability of the Advocate proposed to be appointed as a Special Public Prosecutor and after being satisfied, he approved the appointment of the said Special Public Prosecutor. Hence, the procedure prescribed for appointment of the Special Public Prosecutor has been duly followed in the present case. I crave leave to refer to and rely upon the records as and when required."

¶201

The record shows that the applicant -

¶202

complainant submitted an application to the Minister of State for Home, Maharashtra State on or about

¶203

:33:

¶204

30/5/2007 and	the	Hon’ble Minister on the very	same
day directed	the	Deputy Secretary (Home) to	examine
and submit	the	proposal immediately. The	applicant
stated that	the	accused Umesh Kalbhor and	Sampat
Mankar are know	n crim	inals and have spread terror a	s a
result of	which t	he witnesses are scared to	depose
against them,	despite	this and without caring for	his
safety, the	applic	ant has filed a complaint	against
the said	accused,	the colleagues of the accused	who
are political	leaders	have been pressurising	the
complainant directly	or	through his relations and	also
threatening to	weaken	the prosecution case and it	is,
therefore, necessary	to	appoint Shri Vijay Savant as	a
Special Public	Prosecutor	and the applicant would	bear
the professional	fees of	Shri Savant. On 1/6/2007	the
Section Officer	addres	sed a letter to the Director	of
Prosecution	referring	to the application submitted	by
the complainant	and	the order of the Hon’ble	Minister
for State.	The	Director of Prosecution was	called
upon to examine	the	proposal and submit his report.	A
similar letter	was	also addressed to the	Police
Superintendent,	Pune	(Rural). The Director	of
Prosecution in	turn	by his letter dated	7/6/2007
called upon the	Publi	c Prosecutor and Asst.	Director,

¶205

:34:

¶206

Pune Dist	rict to submit his report and	accordin	gly on
17/7/2007	the Public Prosecutor submitted	the	report
to the	Director of Prosecution stating	that	the
appointment	of Special Public Prosecutor	as	requested
was not in	public interest. The Public	Prosecut	or and
Additional	Public Prosecutors at Pune we	re	competent
to present	the prosecution case in	Sessions	Case
No.591 of	2006 and in addition to	the	Public
Prosecutor,	there were nine Addi	tional	Public
Prosecutors at	Pune. Thus the application	made	by the
complainant	was opposed. Whereas,	the Su	perintendent
of Police	(Pune Rural) vide his letter	dated	2/7/2007
informed the	Section Officer in Home	Department	giving
his no	objection for the appointment of	the	Special
Public Prose	cutor as the complainant had	shown	his
willingness t	o bear the professional fees	of	such
appointee.	The Director of Prosecution	vide	his
letter dated	25/7/2007 addressed to	the	Additional
Secretary,	Home Department clearly stated	that	the

¶207

appointment of Special Public Prosecutor in Sessions

¶208

Case No.591 of 2006 was not necessary.

¶209

. On or about 9/8/2007 the Home Department

¶210

prepared a note and also referred to the report

¶211

:35:

¶212

submitted		by the Public Prosecutor at Pune as wel	l as
the		Director of Prosecution opposing the app	ointment
of	Spe	cial Public Prosecutor. However, the	Home
Department		recommended the appointment solely on	the
ground		that the complainant was willing to bear	the
professional		fees to be paid to the Special	Public
Prosecutor.		The Minister of State on 21/8/2007	passed
his		order stating "Applicant’s request be accepted	on
the	con	dition that he would deposit the fees	of
Special		Public Prosecutor." On 23/8/2007 the	Home
Ministry		forwarded the proposal to the Department	of
Law		and Judiciary. The Section Officer in the	said
Department		prepared a note on 26/9/2007 and A	dditional
Secretary		in the said Department recommended	the
application		solely by accepting the allegations	made
by	th	e applicant. The Principal Secretary and	RLA

¶213

made the following endorsement on this note on

¶214

29/9/2007:

¶215

	"Considering	the	nature	of the	offence	and
	apprehension	of	the co	mplainant,	please	place
	on record		copy	of		FIR."
On	6/10/2007 the	Section	Officer	prepared	a	note

¶216

:36:

¶217

seeking	orders to call	for the co	pies	of	C.R.N	o.111/06
and	other connected re	cord in Sessio	ns	Case	No.591	of
2006	but there does	not appear any	rec	ord	to	show
whether	the said papers	were called	for.		However	, on
20/10/2007	another not	e was prep	ared	cl	early	pointing
out	the opinion of	the Public Pros	ecutor	at	Pune	as
well	as the Director	of Prosecu	tion		opposing	the
appointment	of Special	Public Prosecu	tor.		The	note
further	referred to the	order passed	by	th	e	Minister
of	State on 21/8/2007	and it concl	uded,		"By	taking
into	consideration the	fact in the	c	ase	and	the
applicant’s	willingness to	bear the	legal	fe	es of	the
Special	Public Prosecutor,	approval be	gr	anted	for	the
said	appointment in Ses	sions Case N	o.591	of	2006."	On
30/10/2007	the Principal	Secretary and	RL	A	made	the

¶218

following remark on the said note which was finally

¶219

approved by the Hon’ble Chief Minister:

¶220

	"Considering		request	of the	com	plain	ant,	his
apprehension	that		there	would	not		be	fair
trial	unless	it	is	conducted	by	Mr	.Savant	and
nature	and		gravity	of the	offen	ce,		proposal
may			be					accepted."

¶221

:37:

¶222

Thus the application of the complainant came to be

¶223

allowed by issuing the impugned order.

¶224

From the record, we have observed as under:-

¶225

	(a) The incident giving rise	to	Sessions	Case
No.	591 of 2006 has arisen out	of	a	family
feud	between the complainant		and	the
petitioner.	As per the	pet	itioner,	the
complainant	abducted the petitione	r’s		sister
Priya and	forced her to marry with	him.		It is
further	alleged that the	com	plainant	is
responsible	for the disappearance of		Priya	and
her	minor daughter. They were	not		traceable
for	more than two months and,	there	fore,	the
petitioner	was holding the		co	mplainant
responsible	for their		disap	pearance.

¶226

(b) As per the complainant’s case, he was

¶227

sought to be assaulted with sharp weapons and

¶228

when his Manager Shri Yadnesh Todankar

¶229

intervened, the Manager became a victim of

¶230

serious injuries to which he finally

¶231

succumbed. Thus as per the complainant’s own

¶232

:38:

¶233

case he is an eye witness to the incident

¶234

leading to Sessions Case No. 591 of 2006.

¶235

(c) As per	the record	of the police, the Lodge
owned by the	complainant	is being used for
prostitution /	immoral	trafficking and the
complainant stays ne	xt door	to the said Lodge.
The SDPO vide	his	letter dated 5/11/2007
addressed to the	Public	Prosecutor opposed the
application for an	ticipatory	bail filed by the
complainant on	account	of his alleged
involvement of	such	serious offences.
(d) The	Superintende	nt of Police, Pune Rural,
in his letter	dated 2/7	/2007 did not refer to
the antecedents	of	the complainant and
recommended the	appointme	nt of the Special
Public Prosecutor	solely	on the ground that
the complainant was	willing	to pay the fees of
such appointee.	The	Superintendent of Police
did not refer to	the nat	ure and gravity of the
matter, including	the	public interest involved
for appointment	of Sp	ecial Public Prosecutor
in Sessions Case	No.	591 of 2006.

¶236

:39:

¶237

	(e) The H	ome Department had calle	d upo	n the
Director	of Pros	ecution to exa	mine	the
proposal	and submit	his report	and	the
Director	of Prose	cution in turn by	his	letter
dated	7/6/2007 ha	d called upon	the	Public
Prosecutor,	Pune	to submit his report.		The
Public	Prosecutor,	Pune submitted the		report
and	stated that	the appointment	of	Special
Public	Prosecutor,	as requested, was	not	in
public	interest.	He further stated	that	the
Public	Prosecutor	and Additional		Public
Prosecutors	were	competent to repre	sent	the
prosecution	case in	Sessions Case No.		591 of
2006	and there	are in all nine		Additional
Public	Prosecutors.	The D	irector	of
Prosecution	vide	his letter dated		25/7/2007
also	opposed the	proposal for appoin	tment	of
Special		Public		Prosecutor.

¶238

	(f) On	or about	9/8/20	07	the	Home Dep	artment
prepared	a note	pointing	out		the	view of	the
Public	Prosecutor	at	Pune	as		well as	the
Director	of	Prosecution.				However,	the

¶239

:40:

¶240

appointmen	t	was recommended solely	on the
ground	that	the complainant was	willing to
bear	the p	rofessional fees and the	Minister of
State	on	21/8/2007 passed his order	only on
that	basis.	The Home Ministry forw	arded the
proposal	to	the Law and Judiciary	Department
and	on	20/10/2007 another note was	prepared,
clearly	pointing	out the opinion of	the Public
Prosecutor		and Director of	Prosecution.
	(g)	On 30/10/2007 the Principal	Secretary and
RLA	did	not refer to the report su	bmitted by
the	Public	Prosecutor at Pune as well	as the
Director	of	Prosecution. The RLA	even in his
note	of	30/10/2007 did not record	that the
public	interes	t in the case wa	rranted the
appointmen	t	of a Special Public	Prosecutor.
In	support	of his remark on the	nature and
gravity	of	the offence, there was	no material
on r	ecord	and he was overwhelmed	by the
apprehensi	on	of the complainant	that there
would	not	be a fair trial unless	it was
conducted	by	Mr. Vijay Sawant. He	also did
not	record	any reasons to disagree	with the

¶241

:41:

¶242

re	port submitted by the Public	Prosecutor	at
P	une and Director of	Pro	secution.
21.	Rule 22(1) of the Rules of Legal Affairs
clearly	states that no order thereunder	regarding	the
appointment	of Special Public Prosecutor s	hall be	made
unless, for	the reasons to be recorded by	him, the	RLA
is sat	isfied having regard to the nature	of the	case,
gravity	of the matter and public inter	est involved	in
the matter	that such an appointment is	necessary.	The
said Rule	has two parts, the first	being	the
satisfaction	of the State Government	on	the
credentials	of the Advocate being appointed	as	the
Special	Public Prosecutor, whereas the	second	part
speaks	of the satisfaction of the RLA	to be	reflected
in the	reasons to be recorded by him	regarding	the
nature	of the case, gravity of the matter	and	public
interest	involved therein. The	State Go	vernment
cannot	issue the order for appointment	of a	Special
Public Pros	ecutor unless the RLA for the	reasons to	be
recorded	and having regard to the nature	of the	case,
gravity of	the matter and the public	interest	involved
in the	matter, recommends such appointment.	In	the
instant	case, as noted above, the RLA di	d not	record

¶243

:42:

¶244

any	opini	on	regardin	g the public int	erest involved	in
Sessions	Case	No	.	591 of 2006 and	there was	no
material	bef	ore	him	regarding the nature	of the	case
and g	ravity	of	the	matter. Even	as per	the
complainant’s		case	the	assault was first	aimed at	him
and the	dece	ased,	while	coming to his	rescue, becam	e a
victim	in	the	said	alleged assault.	Just because	the
incident	happen	ed	during	the day time	and in	the
public	eye	by	itself	cannot be a reason	to hold	that
it was	a	seriou	s ca	se and the public	interest d	emanded
for	appoint	ment	of	a Special Public	Prosecutor.	Only
because	the		complain	ant offered to pay	the	Special
Public	Pros	ecutors’	fees,	that by itself	cannot be	a
reason to	in	voke	the	powers under Section	24(8) of	the
Cr.P.C.	read		with	Rule 22 of the	Rules of	Legal
Affairs.		Such	an	appointment cannot be	made	because
the	compl	ainant	had	apprehension that	there would	not
be a	fair	trial	unless	it was conducted	by the	Special
Public	Prose	cutor,	named	by him. Whil	e dealing	with
the ca	ses	in	wh	ich the Special	Public Pr	osecutor

¶245

should be appointed by the State, the Supreme Court in

¶246

the case of Mukul Dalal (Supra) stated as under:

¶247

"......There may be instances where a case

¶248

:43:

¶249

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 Remebrancer 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

¶250

:44:

¶251

Public Prosecutor’s services may be placed at the disposal of the complainant. It is 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."

¶252

The parameters laid down by their Lordships in

¶253

Mukul	Dalal’s case (Supra)	may	not	be	exh	austive	and
they may	well be taken	as	exemp	lary,	but	the	fact
remains	that the request	for	ap	pointme	nt	of	Special
Public P	rosecutor must be	found	to	be		necessary	in
public i	nterest and it cannot	be	for	the	ask	ing.	As
per the	police, the compla	inant	hims	elf	has	a	criminal
record.	When the State	Govern	ment,	thro	ugh	the	Home
Department,	had called for		the	re	port	from	the
Director	of Prosecution,	it	is	clea	r	that	the
Government	was alive to th	e s	cheme	of	Sec	tion 25-	A of
the Cr.P.C.	and its own	GR	dated	10/1/	2000.	It	could
be safely	concluded that	the	Ho	me	D	epartment	had

¶254

:45:

¶255

sought	to	consult the Director of Prosecution	while
processing	the	complainant’s application. In	our
considered	opinion,	therefore, it was necessary	for
the	RLA to	record reasons for disagreeing with	the
report	submitted by	the Director of Prosecution.	This
has	not been	done. We are satisfied that	Sessions
Case	No. 591	of 2006 was not such a special cas	e as
to w	arrant appoin	tment of a Special Public	Prosecutor,
in a	ddition to	the fact that while issuing	the
impugned	appointm	ent order the requirements of	Rules
22(1)	have no	t been complied with. The power	under
Section	24(8) of	the Cr.P.C. read with Rule 2	2(1) of
the	Rules of	Legal Affairs is required to be	used
sparingly	and	in public interest wherein the	nature
and	gravity	of the criminal cases require the	State
assistance.	For	example where the complainants	are
weaker	sections	of the society and such section	or
community	was	the victim of the incident. The	G.R.
dated	10/1/2000 i	ssued by the State Government	clearly
states	that	the special cases of public	importance
would	be handled	by the Public Prosecutor. The	record
does	not show	that either the Home Department or	the
RLA	had regards	to the said G.R. When it is	clearly
stated	in the	G.R. that the special cases of	public

¶256

:46:

¶257

importance	wo	uld	be h	andled	by	the	Public		Pro	secutor,
it was	imperative	for	the	RLA	to	record	his	r	easons	as
to	why the	case	was	required	to	be	withdrawn		from	the
Public	Prosecutor	so	as to	hand	it	over	to	th	e	Special
Public	Prosecutor		and	wheth	er	the	public			interest
warranted	that	the	Public	Pros	ecutor	was	requir	ed		to

¶258

be relieved from such special case. On this ground

¶259

also the impugned order is vitiated.

¶260

23.		When the Ho	me Ministry	processe	d the propo	sal
of		the complainant	, it	was	evide	nt	that	it	considered
unamend	ed	scheme of	Rule	22	and,		therefore,	it	appears
that	the	Minister of	State	for	Home		was	overwhel	med by
the		complainant’s	undertaki	ng	to	bear		the	Special
Public		Prosecutor’s	fees.	W	e may		usefully		reproduce
the	ca	ution given	by	the	Supreme		Court	in	Mukul
Dalal’s		case	while		entert	ainin	g	a	private

¶261

complainant’s application for appointment of the

¶262

Special Public Prosecutor in the following words:-

¶263

	".......When	an	applicati	on f	or the services
of	a Special	Public	Prosecu	tor	or an Assistant
Public	Prosecutor	is made	in	a	given case, the
power	would	be vested	in	him	(RLA) to examine

¶264

:47:

¶265

the	facts and take decision	as	to wheth	er the
case	merits the appointment	of	a	Special
Public	Prosecutor or an	Ass	istant	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 sho	uld	be	appointed;
this	would be contrary to	the	spirit of	the
scheme	of the Code. There	may	be cases	where
a po	werful complainant may	h	ave begu	n a
proceeding	to victimize his op	ponent.	If	in
such	a case the State con	cedes	to the	request
for a	ppointment of a Speci	al	Public	Prosecutor
there	will be travesty of	justic	e.	Without
screening	on the basis		of	guidelines
prescribed	or to be prescri	bed,	the	services
of	a complainant. The pri	macy	given to	the
Public	Prosecutor under the sch	eme	of the	Code
has	a social purpose and the	same	would	be
lost	if the procedure adopted	by	Rule 22	of
Maharashtra	Rules referred t	o	above	is
accepted	or what the High	Cou	rt has	indicated
is	adopted. We are inclined	to	observe	that
the	request for appointment	of	a	Special

¶266

:48:

¶267

Public		Prosecutor		should be	properly	examined
by	the	Remembra	ncer	of Legal	Affairs	and only
when	he	is	sati	sfied that	the case	deserves
the	support	of	a	Public	Prosecutor	or a
Special		Public P	rosec	utor that	such a	person
should	be	appoin	ted	to be in	charge	of the

¶268

case."

¶269

To uphold the impugned order, all the three

¶270

paramet	ers	were	requ	ired to	be	satis	fied	viz.		the
nature		of the	case,	the	gravity	of	the	matter	and	the
public		interest	in	volved	and	if	the	satisfaction		of
the	RLA	on	any	of these	grou	nds	cannot	be seen		from
the	reasons	recorded	by	him,	the	order	must	be	held	to
be	vitiated	on	the	ground	of	non-co	mpliance	of	all	the
require	ments	of	Rule	22(1)	of	the	Rules	of		Legal
Affairs		and	in the	instant	cas	e it	is	so		vitiated.

¶271

Hence the impugned order is required to be quashed and

¶272

set aside.

¶273

25.		In	the premise	s, this p	etition succeeds. The
impugned		o	rder	dated	29/11/2007	appoin	ting	Shri	Vijay
Sawant		as	Special	Pu	blic Prosecutor	in	Sess	ions	Case
No.	591	of	2006	is	hereby quashed	and	set	aside.	The

¶274

:49:

¶275

trial in the said Case shall continue further with the District Government Pleader and Public Prosecutor at Pune or his nominee appearing for the prosecution, who shall proceed further from the stage it is scheduled to continue on 5/7/2008. The evidence recorded on behalf of the prosecution by the Special Public

¶276

Prosecutor will be treated as the evidence recorded

¶277

with the appearance of the Public Prosecutor.

¶278

. Rule is made absolute accordingly.

¶279

(R.Y. Ganoo, J.)

¶280

(B.H. Marlapalle,J.)

Umesh Balasaheb Kalabhor v. the State of Maharashtra and Ors.

Case brief

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Umesh Balasaheb Kalabhor v. the State of Maharashtra and Ors.

Case brief

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