Dr Madhukar B Angur Vs State of Karnataka

(BY SRI. M S SHYAMSUNDAR, SENIOR ADVOCATE FOR SMT. DR. VANDANA P L, ADVOCATE FOR R6; SRI. MAHANTESH SHETTAR, AGA FOR R1-R3 & R5; SRI. B M ARUN, ADVOCATE FOR R4)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 26.02.2016 PASSED BY THE R-1 UNDER SECTION 24(8) OF THE CODE OF CRIMINAL PROCEDURE PRODUCED HEREWITH AT ANNEXURE-A AND ETC.,

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE R. NATARAJ

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ORAL ORDER

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The petitioners have challenged an order dated

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26.02.2016 passed by respondent No.1 under Section 24(8) of the Code of Criminal Procedure (henceforth referred to as 'Cr.P.C.' for short), vide notification bearing No.OE57 PPE 2016.

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The respondent No.6 set the criminal law into motion by filing a report before the respondent No.5 about the commission of cognizable offences by the petitioners. The respondent No.6 made a request before the respondent No.1 under Section 24(8) of the Cr.P.C. for appointment of a Special Public Prosecutor to conduct the trial and participate in the proceedings. The respondent No.1 in terms of a notification dated 26.02.2016 bearing No.OE57 PPE 2016, appointed the respondent No.4 as a Special Public Prosecutor and also notified that the professional fee of the respondent No.4 shall be borne by the respondent No.6. The petitioners are therefore before this Court challenging the notification, by which the respondent No.4 was appointed as a Special Public Prosecutor.

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The learned counsel for the petitioners submitted that the respondent No.1 is bound to apply its mind before considering the request by the respondent No.6 for appointment of a Special Public Prosecutor. He contends that the appointment under Section 24(8) of the Cr.P.C. is not a matter of course, but the respondent No.1 is bound to apply its mind to ascertain whether there is a need for appointment of a Special Public Prosecutor. He also contends that the case on

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hand is not too complicated for a regular public prosecutor to handle and therefore there was total non-application of mind in exercising discretion by respondent No.1. In support of this contention, he relied upon the judgment of the Hon’ble Apex Court in the case of Jayalalithaa and Others vs. State of

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Karnataka and Others - 2013 SCC Online SC 901 and the judgment of the Co-ordinate Bench of this Court in the case of

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K.V.Shiva Reddy vs. State of Karnataka and Others - ILR 2005 KAR 4780 .

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The learned counsel for the petitioners reiterated the above contentions and submitted that a certain amount of application of mind is required before appointing a Special Public Prosecutor under Section 24(8) of Cr.P.C. and the same is not a matter of course. He contends that the impugned notification does not indicate that respondent No.1 had considered whether there was a need to appoint a Special Public Prosecutor.

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The writ petition is opposed by the State, which has filed a cryptic statement of objections inter alia contending that under Section 24(8) of Cr.P.C., the State Government is

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entitled to appoint a person who has been in practice as an advocate for not less than 10 years as a Special Public Prosecutor. It has also contended that the appointment of the Special Public Prosecutor does not affect any rights of the petitioner guaranteed under the Constitution of India and therefore, the impugned order is not justiciable.

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The learned Additional Government Advocate

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reiterated the above contentions and submitted that there is no error in the respondent No.1 appointing the respondent No.4 as a Special Public Prosecutor.

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I have considered the submissions of the learned counsel for the petitioners and the learned counsel for the respondent No.6 as well as the learned Additional Government Advocate.

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The respondent No.6 had reported the commission of cognizable offences punishable under Sections 109, 506, 376, 504 of the Indian Penal Code (henceforth referred to as 'IPC' for short). The allegation against the petitioners was that the petitioner No.1 had sexually assaulted a woman aged about 33 years, who was mentally unwell. The petitioner No.1 was

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allegedly arrested by the respondent No.5 on the intervening night of 05.02.2016 and 06.02.2016 and was produced before the Court on 06.02.2016. The petitioners are enlarged on bail. It appears that the respondent No.6 claims to be the mother of the victim and she is the complainant in the case. As regards the right of respondent No.6 to request respondent No.1 for appointment of a Special Public Prosecutor, the same cannot be doubted, as she would be the guardian of the victim in case the victim is really afflicted by some mental illness. However, in matters of appointment of a Special Public Prosecutor under Section 24(8) of the Cr.P.C., as rightly contended by the learned counsel for the petitioners, the same cannot be done as a matter of course, as confirmed by a Co-ordinate bench of this Court in K.V.Shiva Reddy's case referred supra. In paragraph No.35, it was held as follows:

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”35. The aforesaid note makes it very clear it is the MLA who is behind this appointment of a Special Public Prosecutor. The subsequent note shows a P.A. to a Minister is interested in serving the order of appointment on the Special Public Prosecutor personally. It also shows the name of the second respondent is suggested by the said MLA and it is he who states that the complainant would bear the advocates fee. In the records I do not find

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any consent letter given by the second respondent for appointment. On the contrary MLA informs ALS-3 that the second respondent has given his consent for appointment. It is on the basis of the said representation the order of appointment is made by the Law Minister. Therefore, it is clear from the aforesaid material there is no application of mind by any one concerned before an order of appointment of Special Public Prosecutor is made. There is no indication in the entire record to show why a Special Public Prosecutor was appointed for the case. In the absence of a specific request from the complainant and a consent for such appointment by the second respondent how an order came to be passed appointing second respondent as the Special Public Prosecutor is not discernable from the records. Though under the provisions of the Code of Criminal Procedure, 1973 the Government has the power to appoint a Special Public Prosecutor in a case, it does not mean that such an appointment could be made by the Government as a matter of course, at the request of total strangers and in the absence of a request by the complainant and consent by the learned Advocate to be appointed as the Special Public Prosecutor and without any reasons. It is clear, appointment of Special Public Prosecutor is made in a mechanical way without there being any reason. It is not that the order appointing a Special Public Prosecutor should disclose the reasons for such appointment and it should disclose any special circumstances for such appointment. But, once such an appointment is challenged before the Court an obligation is cast upon the

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State to justify the appointment by making available the records. The said records should disclose the special circumstances justifying such appointment. If the record do not disclose any such special circumstances then the order of appointment cannot be sustained and is liable to be quashed. The letter of the MLA do not disclose the reasons for appointment. The order of the Hon'ble Minister do not disclose the reasons. The record also do not disclose any other material justifying such appointment. The letter discloses a request is made to the Chief Minister. On the basis of the letter Hon'ble Law Minister has directed the Law Secretary to take steps to appoint Special Public Prosecutor. Therefore, from the records no reasons for dislodging the services of the Public Prosecutor is made out. No special circumstances justifying such appointment is forth coming. The Government had no intention of appointing the Special Public Prosecutor on its own. It did not notice that no request for such appointment came from the relatives of the victims. It failed to notice the request is from an M.L.A. of Srinivasapura Taluk and Chairman of Mysore Sales International Limited, which did not disclose his relation to the victim nor any reasons and that he has nothing to do with the crime number referred to by him in his letter."

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The respondent No.1 is bound to apply its mind as

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to the necessity of appointment of a Special Public Prosecutor. It is also incumbent upon respondent No.1 to ensure that the

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professional fee payable to the Special Public Prosecutor should be paid by the respondent No.1 and not by respondent No.6. In the instant case, the impugned order does not show any application of mind. When this Court called upon the respondent No.1 to place on record the file relating to the appointment of the respondent No.4 as a Special Public Prosecutor, an affidavit was filed on 18.04.2022, where at paragraph No.6 it is stated as follows:

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” 6. Para 225 deals with provision for custody of records in the General Records Section of the records of the Government and they shall be kept in the General Records Section as provide in Para 232 and they are classified as A, B and C class files as per para 190. These files are kept in General Records Section and will be shown in the Registers maintained by the State Archives Department. As per Para 190, the files which are classified as 'A' are all of Historical importance and they will be preserved for ever. Files classified as 'B' are of greater importance reflecting the larger decisions taken by the Government or the Service records of the Employees and they will be preserved for a period not less than 30 years. The files classified as 'C' are classified considering the nature of the Order affecting larger Public Interest etc. and depending upon the discretion of the Authority of the State Archives Department, they may be preserved for about 10 years. Thus records which are

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classified by the respective department as 'D' are preserved for one year and they are treated as not so important."

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It is shocking that the concerned file was classified as 'D', though a challenge to the notification issued pursuant to the request made by the respondent No.6 is under consideration before this Court. The under secretary to the Department of Home, who is present today in the Court submitted that the respondents are unable to even take a printout of the office note. This conduct of the respondents in destroying the files related to the impugned order is unbecoming and reflects poorly on the respondent Nos.1 and 2. This Court hopes that the respondent Nos.1 and 2 shall take appropriate departmental action against the concerned officials responsible for destruction of the record.

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In view of the fact that the impugned order does not spell out application of mind by the respondent Nos.1 and 2 as to the need of appointment of a Special Public Prosecutor and also as the impugned order indicates that the professional fee for the respondent No.4 would be met by the respondent No.6 and not by the State, the same deserves to be quashed.

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However, the liberty deserves to be reserved in favour of respondent No.6 to again approach the respondent Nos.1 and2 for appointment of a Special Public Prosecutor. It is needless to mention that when such a request is made, the respondent Nos.1 and 2 shall strictly follow the law declared by a Coordinate Bench of this Court in the case of K.V.Shiva Reddy .

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In view of the above, this petition is disposed off on the following terms:

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i. The impugned order appointing the respondent No.4 as a Special Public Prosecutor is quashed. It is however open for the respondent No.6 to approach the respondent Nos.1 and 2 with a fresh request setting reasons for appointment of a Special Public Prosecutor.

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ii. If such a request is made, the respondents Nos.1 and 2 shall duly apply their minds in the light of the judgment of the Co-ordinate Bench of this Court in the case of K.V.Shiva Reddy and take an appropriate decision in the matter.

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iii. The respondents Nos.1 and 2 are directed to take suitable action against the concerned officials for destroying the record relating to the impugned order and report the outcome of the same to this Court. Till consideration of any request that may be filed by the respondent No.6, the prosecution shall continue through the regular prosecutor attached to the office of the Directorate of Prosecution.

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Sd/-

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(R. NATARAJ) JUDGE

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BKN/List No.: 1 Sl No.: 1

Dr Madhukar B Angur v. State of Karnataka

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Dr Madhukar B Angur v. State of Karnataka

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