Katari Praveen, vs State Of Andhra Pradesh,
2021 Latest Caselaw 122 AP

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                 WRIT PETITION NO.21280 OF 2019

ORDER:

This writ petition is filed under Article 226 of the

Constitution of India to declare G.O.Rt.No.1070 Home (Courts.A)

Department dated 18.12.2019 (for short 'G.O.Rt.No.1070 dated

18.12.2019') issued by the first respondent as illegal, arbitrary and

against principles of natural justice and consequently permit the

cadre Public Prosecutor Grade-II appointed through G.O.Rt.No.977

Home (Courts.A) Department dated 15.11.2019 (for short

'G.O.Rt.No.977 dated 15.11.2019') to conduct prosecution of

S.C.No.110 of 2016 pending on the file of VI Additional District and

Sessions Judge, Chittoor.

The brief facts of the case are that, the petitioner is the son

of Smt. Katari Anuradha (Deceased No.1) and Katari Mohan

(Deceased No.2), who were murdered on 17.11.2015 in the office of

Municipal Corporation Chittoor. Crime No.110 of 2016 was

registered for the offences punishable under Sections 302, 307,

326 of Indian Penal Code and Arms Act. At that time, mother of the

petitioner was Chairperson of the Municipal Corporation. The

petitioner's parents were shot dead and brutally killed in the office.

After investigation, the inspector of police filed charge sheet and in-

turn the jurisdictional magistrate committed the case to sessions

division and the same was registered as S.C.No.110 of 2016

pending on the file of VI Additional District and Sessions Judge,

Chittoor. The petitioner is a victim within the definition of 'victim'

under Section 2(wa) of Cr.P.C.

MSM,J WP.No.21280 of 2019

It is specifically contended that, when the sessions case was

coming for enquiry for framing the charges, there was no regular

public prosecutor attached to the Sessions Court. The first

respondent through G.O.Rt.No.562 dated 06.07.2017 appointed

Sri G. Raja Ram, advocate and former Additional Public Prosecutor

as Special Public Prosecutor to conduct prosecution of the

Sessions Case. Thoti Manjunath who was Accused No.4 in

Sessions case filed W.P.No.25586 of 2018 and W.P.No.42523 of

2018 questioning the appointment of Special Public Prosecutor on

the ground that the Special Public Prosecutor in earlier occasion

appeared for his father as a defense counsel in a criminal case, on

the ground of alleged bias. This Court vide interim order dated

19.11.2018 stayed the order of appointment.

The petitioner filed W.A Nos.1657 and 1658 of 2018 against

the interim stay granted by the learned single Judge of this Court.

But, in those appeals, writ petitioner expressed that he had no

grievance if any other advocate other than Sri G. Raja Ram was

appointed. These writ appeals were disposed of on 25.06.2019

directing Respondent Nos. 1 and 2 to appoint any person as

Special Public Prosecutor to conduct the prosecution.

As there was no response from Respondent Nos. 1 and 2,

and the sessions case was coming on for trial and being postponed

from time to time, the petitioners submitted a representation to the

Superintendent of Police, Chittoor, who is the district investigating

authority, requesting to take steps to appoint the Special Public

Prosecutor. Thereafter, the first respondent after obtaining report

from the second respondent/Director of Prosecutions and on MSM,J WP.No.21280 of 2019

examination of the matter, issued G.O.Rt.No.977 dated 15.11.2019

entrusting the conduct of prosecution of the sessions case to

Sri S. Venkata Narayana who is in the cadre of Additional Public

Prosecutor-Grade-II, who can be called as Special Public

Prosecutor. Thereafter, the sessions case came for trial, schedule

was fixed for trial and it was postponed on account of delay in

prosecution.

After appointment, Sri Venkata Narayana took charge to

conduct prosecution in S.C.No.110 of 2016 on 28.11.2019,

intimated the same to the Director of Prosecutions/second

respondent. While the matter stood thus, the first respondent

issued G.O.Rt.No.1070 dated 18.12.2019 entrusting conduct of

prosecution in the sessions case to the third respondent herein.

G.O.Rt.No.1070 dated 18.12.2019 appointing the third respondent

as Special Public Prosecutor for conducting prosecution is

challenged on the ground that the impugned G.O is contrary to law

and it is in violation of principles of natural justice and without

jurisdiction, as there was no whisper about earlier G.O.Rt.No.977

dated 15.11.2019, wherein the conduct of sessions case was

entrusted to the cadre Public Prosecutor Sri Venkata Narayana.

When the earlier entrustment is in subsistence, when

Sri Venkata Narayana has already taken charge and conducting

the prosecution, the first respondent/Government cannot entrust

the prosecution of the case to the third respondent mechanically

without application of mind even without cancelling earlier

G.O.Rt.No.977 dated 15.11.2019.

MSM,J WP.No.21280 of 2019

It is further contended that, cadre Public Prosecutor is not

only a public servant but also an experienced public prosecutor.

Whereas, the third respondent was recently appointed as

Additional Public Prosecutor for the Court of I Additional District

and Sessions Judge, Chittoor through G.O.Rt No.752 dated

03.09.2019, thereby, appointment of the third respondent is

without any justification.

It is contended that S.C.No.110 of 2016 is a double murder

case and as many as 22 accused are facing trial and 130 witnesses

are to be examined on behalf of the prosecution. The third

respondent had no sufficient experience to conduct prosecution of

such complicated case and the petitioner came to know that

Accused Nos. 1 and 23 in S.C.No.110 of 2016 prevailed over

Respondent Nos. 1 and 2 and got the third respondent appointed

for conducting prosecution in the sessions case. It is contended

that Accused No.23 supplied pistol to Accused No.1 who along with

others killed the petitioner's parents. Accused No.23 threatened

two Inspectors of Police for his arrest and filing charge sheet

against him. These two officers submitted written reports which

were registered as separate crimes.

Apart from that, in another case i.e. S.C.No.330 of 2010 on

the file of IX Additional District and Sessions Judge, the father of

this petitioner (Deceased No.2) was one of the accused. The third

respondent herein filed petition on behalf of the defacto

complainant to assist the Public Prosecutor during enquiry and

trial. When the trial of the case was going on, the parents of the

petitioner were brutally murdered. Therefore, the third respondent

cannot conduct prosecution in S.C.No.110 of 2016.

MSM,J WP.No.21280 of 2019

The petitioner further contended that, one N. Sai Ganesh -

LW-40 in S.C.No.110 of 2016 is the person who spoke about the

conspiracy to commit murder of the parents of the petitioner. Sri

N. Sai Ganesh filed contempt case C.C.No.810 of 2019 before this

Court against the third respondent herein and others alleging that

even though there is no stay from the High Court, the third

respondent being the counsel for the accused in the complaint

case, went on filing memos before the Judicial First Class

Magistrate, as if stay granted by the High Court was subsisting.

The petitioner came to know that the third respondent is facing

disciplinary enquiry before the Andhra Pradesh Bar Council for

committing misconduct, on a complaint filed by Sri B. Krishna

Murthy who was his client.

It is further contended that, the petitioner being the son of

the deceased, has been requesting Respondent Nos. 1 and 2 to

appoint an experienced person as prosecutor for conducting the

sessions case. The earlier G.O.Rt.No.977 dated 15.11.2019 says

that the conduct of the prosecution was entrusted to the cadre

public prosecutor as he has been requesting for appointment of

Special Public Prosecutor without sufficient justifiable grounds and

that, if the prosecution is allowed to be conducted by the third

respondent, much prejudice would be caused to this petitioner and

requested to declare G.O.Rt.No.1070 dated 18.12.2019 as illegal

and arbitrary.

The first respondent/State filed counter affidavit admitting

issue of impugned G.O i.e. G.O.Rt.No.1070 dated 18.12.2019

appointing the third respondent as Special Public Prosecutor to MSM,J WP.No.21280 of 2019

conduct prosecution in S.C.No.110 of 2016. The first respondent

explained the reason for appointment of the third respondent as

Special Public Prosecutor to conduct trial in the sessions case. It is

the contention of the first respondent/State that the Government

received letter dated 13.12.2019 from the Director of Proseuctions

stating that, Sri S. Venkata Narayana, Additional Public Prosecutor

Grade-II, Principal Assistant Sessions Judge Court, Tirupati,

Chittoor is working as in-charge Additional Public Prosecutor,

Additional Assistant Sessions Judge Court, Tirupati and in-charge

to the Court of VI Additional Judicial First Class Magistrate Court,

Tirupati; and due to attending various courts, Sri S. Venkata

Narayana, Additional Public Prosecutor Grade-II, Principal

Assistant Sessions Judge Court, Tirupati to conduct prosecution

on every adjournment by going from Tirupati to Chittoor, causing

dislocation of Court work in the Court of Principal Assistant

Sessions Judge, Tirupati, Additional Assistant Sessions Judge,

Tirupati and VI Additional Judicial First Class Magistrate Court,

Tirupati. To avoid dislocation of Court work at Chittoor and

Tirupati to conduct trial in S.C.No.110 of 2016 on the file of VI

Additional District and Sessions Judge, Chittoor on regular basis,

the second respondent/Director of Prosecutions sent the list of

Prosecuting Officers working at Chittoor, they are:

(1) Smt. M. Vidyavathi, Public Prosecutor, Principal District and Sessions Judge Court, Chittoor (2) Sri V. Lokanath Reddy, Additional Public Prosecutor, I Additional District and Sessions Judge Court, Chittoor (3) Sri V.R. Rama Krishna, Additional Public Prosecutor, IX Additional District and Sessions Judge, Chittoor (4) Sri K. Rajendra, Additional Public Prosecutor, VIII Additional District and Sessions Judge Court, Chittoor and MSM,J WP.No.21280 of 2019

(5) Smt. G.S. Sailaja, Additional Public Prosecutor Grade-II, Principal Assistant Sessions Judge Court, Chittoor

requested the Government for entrustment of trial in S.C.No.110 of

2016, to anyone of the Additional Public Prosecutor working in

Chittoor.

On examination of the said letter in detail, the Government

entrusted conduct of trial in S.C.No.110 of 2016 pending on the

file of VI Additional District and Sessions Judge, Chittoor to

Sri V. Loknath Reddy/third respondent herein, who is working as

Additional Public Prosecutor, I Additional District and Sessions

Judge Court, Chittoor vide G.O.Rt.No.1070 dated 18.12.2019,

which is impugned in the writ petition. It is further submitted that,

vie G.O.Rt.No.809 dated 14.08.2020, Smt. Tharigonda Nirmala is

appointed as Additional Public Prosecutor (Tenure) to the Court of

VI Additional District and Sessions Judge, Chittoor, where

S.C.No.110 of 2016 is pending trial and that due to special

circumstances in the district, conduct of trial in S.C.No.110 of

2016 is entrusted to third respondent for administrative reasons

stated above and finally requested to dismiss the writ petition.

The third respondent/Sri V. Lokanadha Reddy filed

independent counter affidavit and reiterated that his appointment

as Special Public Prosecutor in different G.Os., including

G.O.Rt.No.1070 dated 18.12.2019 entrusting conduct of trial

initially to Sri G. Raja Ram, advocate and former Additional Public

Prosecutor as Special Public Prosecutor to conduct prosecution of

the Sessions Case. The same was challenged before this Court in

W.P.No.25586 of 2018 and W.P.No.42523 of 2018 questioning the MSM,J WP.No.21280 of 2019

appointment of Special Public Prosecutor. This Court vide interim

order dated 19.11.2018 stayed the order of appointment. The

petitioner filed W.A Nos.1657 and 1658 of 2018 against the interim

stay granted by the learned single Judge of this Court. The writ

appeals were disposed of on 25.06.2019 directing Respondent Nos.

1 and 2 to appoint any person other than Sri G. Raja Ram as

Special Public Prosecutor to conduct trial in the prosecution in

S.C.No.110 of 2016. Thereafter, Sri S. Venkata Narayana was

appointed as Special Public Prosecutor vide G.O.Rt.No.977 dated

15.11.2019 to conduct prosecution in sessions case. He was

thereafter promoted as In-charge Deputy Director (Prosecution).

Since he hailed from Tirupati which is far off place from Chittoor,

therefore, it would be difficult for him to conduct cases in Chittoor

District headquarters, as such, the third respondent was

appointed by the Government as Public Prosecutor to conduct the

sessions case on administrative grounds. It is further contended

that, there is absolutely no illegality or irregularity in

G.O.Rt.No.1070 dated 18.12.2019 issued by the first respondent.

The third respondent denied the allegation that he had no

experience in conduct of prosecution in sessions case, while

contending that he was appointed as Additional Public Prosecutor

in the Court of Assistant Sessions Judge, Chittoor during the

period 2012-2015 and he successfully conducted number of

prosecution in sessions cases and even recently, he was appointed

as Additional Public Prosecutor to conduct prosecution in cases

registered under POCSO Act and successfully conducted several

cases.

MSM,J WP.No.21280 of 2019

The third respondent denied pendency of contempt case and

complaint, facing disciplinary enquiry before the A.P. Bar Council

for his misconduct on a complaint filed by Sri B. Krishna Murthy.

Only to throw mud on the integrity and honesty of the third

respondent, allegations are made by the writ petitioner while

contending that, the first respondent on considering the experience

and character of the third respondent, was pleased to appoint as

Special Public Prosecutor to conduct prosecution in S.C.No.110 of

2016 pending on the file of VI Additional District and Sessions

Judge, Chittoor, as such, there is no illegality or irregularity

committed by the third respondent and consequently prayed for

dismissal of the writ petition.

During pendency of the writ petition, Memo dated

16.12.2020 was filed by the learned counsel for the petitioner

intimating that Smt. T. Nirmala was appointed as regular Public

Prosecutor for conducting prosecution in S.C.No.110 of 2016

pending on the file of VI Additional District and Sessions Judge,

Chittoor and entrustment to conduct prosecution in the above

sessions case to Smt. T. Nirmala who is a regular Public

Prosecutor of VI Additional District and Sessions Judge, Chittoor

where S.C.No.110 of 2016 is pending at the time of passing the

order.

During hearing, Sri Posani Venkateswarlu, learned counsel

for the petitioner mainly contended that, when conduct of

prosecution in S.C.No.110 of 2016, pending on the file of VI

Additional District and Sessions Judge, Chittoor was entrusted to

Sri S. Venkata Narayana, who took charge of the sessions case was MSM,J WP.No.21280 of 2019

not removed by any order specifically and in fact, there is no

reference in the impugned G.O about his removal, on this ground

alone, appointment of third respondent cannot be sustained.

Yet, another contention raised by the learned counsel for the

petitioner is that, differences between father of the petitioner

(Deceased No.2) and third respondent herein to whom conduct of

trial in S.C.No.110 of 2016 was entrusted specially by impugned

G.O, as he appeared before the sessions court in S.C.No.330 of

2010 on the file of IX Additional District and Sessions Judge to

assist the prosecution. Thus, there were serious differences

between father of this petitioner (Deceased No.2) and the third

respondent and in case, he is allowed to continue prosecution,

there is every likelihood of causing prejudice to this petitioner. Fair

trial is a fundamental right guaranteed under the Constitution of

India, but on account of conducting prosecution in S.C.No.110 of

2016 by the third respondent, chances of conducting fair trial are

bleak. Learned counsel for the petitioner also highlighted the

enquiry pending against the third respondent including contempt

case pending before this Court, while pointing out the honesty,

integrity of the third respondent and the animosity between the

petitioner's father and the third respondent due to his appearance

in S.C.No.330 of 2010 pending on the file of VI Additional District

and Sessions Judge, Chittoor, against father of this petitioner,

more particularly, to assist the Public Prosecutor in the case. He

also made a specific request to pass appropriate order for

entrustment of conduct of prosecution to Smt. T. Nirmala, who is

the regular Public Prosecutor appointed to conduct prosecution in MSM,J WP.No.21280 of 2019

VI Additional District and Sessions Judge, Chittoor, on tenure

basis.

Learned Government Pleader for Home did not dispute about

issue of G.Os and failure of the Government to refer G.O.Rt.No.977

dated 15.11.2019 in G.O.Rt.No.1070 dated 18.12.2019, while

appointing the third respondent as Special Public Prosecutor to

conduct prosecution in the sessions case. But, by necessary

implication, G.O.Rt.No.977 dated 15.11.2019 is deemed to have

been cancelled when the prosecution was entrusted to a particular

Public Prosecutor. Therefore, on that ground, the G.O. cannot be

set-aside. Learned Government Pleader for home highlighted that

the third respondent is equally competent to conduct prosecution

in the sessions case on par with Sri S. Venkata Narayana while

pleading ignorance about pendency of contempt case before this

Court and disciplinary enquiry before A.P. Bar Council, while

admitting that Smt. T. Nirmala is also equally competent to

conduct prosecution in sessions case before the VI Additional

District and Sessions Judge, Chittoor. He further submitted that,

the accused or the victim have no role in appointing a Public

Prosecutor for conducting prosecution and it is for the State to

appoint a competent Public Prosecutor to conduct trail in the

sessions cases. At best, the victim/defacto complainant, if he want

to take assistance of any other advocate to assist the Public

Prosecutor, he can engage an advocate to assist the Public

Prosecutor on behalf of the prosecution in terms of Section 24 of

Cr.P.C, but it is not the choice of the victim or the defacto

complainant to claim appointment of a particular person as Public

Prosecutor to conduct prosecution. Finally, he submitted that MSM,J WP.No.21280 of 2019

Smt. T. Nirmala is also a competent Public Prosecutor to conduct

prosecution.

Sri N. Ranga Reddy, learned counsel for the third respondent

contended that the third respondent is honest advocate who had

previous experience on civil and criminal side while discharging his

duties as Additional Public Prosecutor in the Court of Assistant

Sessions Judge, Chittoor during the period 2012-2015 and now

appointed as Additional Public Prosecutor to conduct cases

registered under POCSO Act, discharging his functions as

effectively as possible. Hence, he is more competent than

Sri S. Venkata Narayana, who is a Cadre Public Prosecutor.

However, the petitioner or the accused have no choice to select

their own men as Public Prosecutor(s) to conduct prosecution in

the sessions case and denied the alleged pendency of contempt

before this Court and complaint made by Sri B. Krishna Murthy

before A.P. Bar Council and requested to dismiss the writ petition.

One Sriram Chandrasekhar @ Chintu, approached Supreme

Court by filing S.L.P (Criminal) No.5490 of 2020, questioning the

order passed by this Court in Crl.P.No.2032 of 2020. The Hon'ble

Supreme Court on 17.11.2020 called for report from the Registrar

of Andhra Pradesh High Court, as to when the W.P.No.21280 of

2019 can be taken up, considering the limited scope in which the

matter has been filed. But, as seen from the record, no report was

sent by the Registry. However, in view of limited question involved

in the present writ petition, it is taken up.

Considering rival contentions, perusing the material

available on record, the points that arise for consideration are:

MSM,J WP.No.21280 of 2019

1. Whether appointment of third respondent as Special Public Prosecutor vide G.O.Rt.No.1070 dated 18.12.2019 without cancelling G.O.Rt.No.977 dated 15.11.2019, entrusting conduct of prosecution to Sri Venkata Narayana (Grade-II Public Prosecutor) is legal?

2. Whether conduct of prosecution by the third respondent herein on the ground of alleged animosity/differences between the petitioner's father (Deceased No.2) and the third respondent is a ground to quash G.O.Rt.No.1070 dated 18.12.2019 on the ground of alleged bias and violative of fundamental right guaranteed under Article 21 of the Constitution of India. If so, whether G.O.Rt.No.1070 dated 18.12.2019 is liable to be quashed?

As both the points are interconnected, I find that it is

appropriate to decide both the points by common discussion.

Indisputably, Sri G. Raja Ram was appointed as Special

Public Prosecutor for conducting prosecution in S.C.No.110 of

2016 pending on the file of VI Additional District and Sessions

Judge, Chittoor. The same was challenged before this Court in

W.P.No.25586 of 2018 and W.P.No.42523 of 2018 questioning the

appointment of Special Public Prosecutor. This Court vide interim

order dated 19.11.2018 stayed the order of appointment.

W.A Nos.1657 and 1658 of 2018 were preferred against the interim

stay granted by the learned single Judge of this Court. The writ

appeals were disposed of by his Court on 25.06.2019 directing

Respondent Nos. 1 and 2 to appoint any person other than

Sri G. Raja Ram as Special Public Prosecutor to conduct trial in

the prosecution in S.C.No.110 of 2016. After careful consideration MSM,J WP.No.21280 of 2019

of the material available on record, Sri S. Venkata Narayana,

Additional Public Prosecutor Grade-II (cadre), working in Principal

Assistant Sessions Judge Court, Tirupati, Chittoor, was entrusted

conduct of prosecution in S.C.No.110 of 2016. Sri S. Venkata

Narayana took charge of the trial of the case on 28.11.2019,

intimated the same to the second respondent/Director of

Prosecutions. However, within a month, G.O.Rt.No.1070 dated

18.12.2019 was issued entrusting conduct of prosecution to the

third respondent. Since the appointment of Sri G. Rajaram as

Special Public Prosecutor to conduct prosecution in the said case

was set-aside by this Court in W.A Nos.1657 and 1658 of 2018 on

25.06.2019 directing Respondent Nos. 1 and 2 to appoint any

person other than Sri G. Raja Ram as Special Public Prosecutor to

conduct prosecution in S.C.No.110 of 2016, the second

respondent/Director of Prosecutions addressed Letter

No.993115/Legal/2019 dated 30.09.2019 to the first respondent,

with a request to appoint Public Prosecutor for conducting

prosecution in S.C.No.110 of 2016. Considering the request of the

second respondent, the first respondent issued G.O.Rt.No.977

dated 15.11.2019 based on the letter referred in the reference of

G.O for conduct of prosecution in sessions case. However,

reference was shown in G.O.Rt.No.1070 dated 18.12.2019 i.e. a

Letter No.1055669/Legal/2019 dated 13.12.2019 from second

respondent/Director of Prosecutions to the first respondent

entrusting to conduct prosecution to the third respondent on

administrative ground. Thus, G.O.Rt.No.977 dated 15.11.2019 was

issued on the request of the complainant, entrusting conduct of

prosecution in S.C.No.110 of 2016 to Sri S. Venkata Narayana, MSM,J WP.No.21280 of 2019

Additional Public Prosecutor Grade-II, Principal Assistant Sessions

Judge Court, Tirupati, whereas, the third respondent was

appointed vide impugned G.O on administrative grounds. When a

Public Prosecutor was appointed for conducting prosecution in

sessions case, without cancelling G.O.Rt.No.977 dated 15.11.2019

either by separate order or in G.O.Rt.No.1070 dated 18.12.2019

while appointing the third respondent. But, for one reason or the

other, no reference was made in the impugned G.O about

appointment of Sri S. Venkata Narayana vide G.O.Rt.No.977 dated

15.11.2019. On the other hand, it is stated in the G.O that on

administrative grounds, the third respondent was entrusted with

conduct of prosecution in S.C.No.110 of 2016. The letter

addressed by Director of Prosecution is the basis for the

Government to appoint the third respondent. However, it is not

placed on record by the State for one reason or the other. If, such

letter is placed on record before this Court, the Court can find out

whether there is any justification in appointing the third

respondent on administrative grounds to conduct prosecution in

sessions case. Therefore, question of cancellation of entrustment of

conduct of prosecution in S.C.No.110 of 2016 to Sri S. Venkata

Narayana cannot be inferred either by necessary implication by

express cancellation. When entrustment was made by issuing

G.O.Rt.No.977 dated 15.11.2019, cancellation must be by issuing

independent order or atleast such entrustment shall be cancelled

while appointing the third respondent as Special Public Prosecutor

for conducting prosecution. But, the first respondent did no do so,

obviously for the reasons best known to the first respondent.

MSM,J WP.No.21280 of 2019

Though a letter was addressed by the second respondent to

the first respondent for appointment of Public Prosecutor, the

second respondent did not file counter affidavit as to what lead

him to address letter for appointment of Public Prosecutor. In the

absence of any request from anyone, either by the accused or by

the petitioner, addressing a letter by the second respondent

without cancelling G.O.Rt.No.977 dated 15.11.2019 creates any

amount of suspicion in appointing the third respondent as a Public

Prosecutor to conduct prosecution in the sessions case. Therefore,

in the absence of cancellation of entrustment of conduct of

prosecution vide G.O.Rt.No.977 dated 15.11.2019, Sri S. Venkata

Narayana is deemed to continue as Special Public Prosecutor to

conduct prosecution, but on account of appointment of third

respondent, two public prosecutors cannot conduct prosecution in

one sessions case. Such appointment will lead to anomalous

situation creating chaos in the mind of the victims. such

appointment without cancelling the entrustment to Sri S. Venkata

Narayana vide G.O.Rt.No.977 dated 15.11.2019 is illegal and this

Court cannot infer that G.O.Rt.No.977 dated 15.11.2019 is

cancelled on account of appointment of the third respondent vide

impugned G.O. On this ground also, the impugned G.O cannot be

sustained.

Yet, another contention raised by the learned counsel for the

petitioner is that, the third respondent appeared against father of

the petitioner in S.C.No.330 of 2010 on the file of IX Additional

District and Sessions Judge to assist the Public Prosecutor by

filing appropriate application. But, during pendency of the trial,

father of the petitioner was murdered in a ghastly incident that MSM,J WP.No.21280 of 2019

took place in the chambers of Mayor's office, Municipal

Corporation, Chittoor. Therefore, the third respondent is having

interest on the victims in S.C.No.330 of 2010, though the third

respondent denied any bias. However, justice must not only be

done, but appears to have been done and on the basis of such

principle, bias can be inferred taking into consideration of the

circumstances of the case, since the third respondent conducted

prosecution and assisted the Public Prosecutor in S.C.No.330 of

2010, thereby, possibility of bias cannot be ruled out. The third

respondent did not deny his appearance to assist the prosecution

in S.C.No.330 of 2010 on the file of IX Additional District and

Sessions Judge, against the father of this petitioner (deceased

No.2). In such circumstances, bias cannot be ruled out. So far as,

other grounds regarding pendency of contempt case and

disciplinary enquiry in A.P. Bar Council are concerned, they are

not substantiated by any material.

An ideal Prosecutor must consider herself/himself as an

agent of justice. In India, we have a public prosecutor who acts in

accordance with the procedure. Normally, the control of entire trial

is in the hands of the trial judge. Investigation is the prerogative of

the police. However, it is generally believed that traditional right of

"nulle prosequi" (we shall no longer prosecute) is available to the

prosecutor. The public prosecutor in India does not seem to be an

advocate of the state in the sense that the prosecutor is not

supposed to seek conviction at any cost. The prosecutor must be

impartial, fair and truthful, not only as a public executive but also

because the prosecutor is a member of honourable profession of

law, the ethics of which demand these qualities.

MSM,J WP.No.21280 of 2019

The role of the Prosecutor is not to single-mindedly seek a

conviction regardless of the evidence but his/her fundamental duty

is to ensure delivery of justice. The Indian judiciary interpreted

role, responsibilities and duties of prosecution as follows:

a) The ideal Public Prosecutor is not concerned with securing convictions, or with satisfying departments of the State Governments with which she/he has been in contact. He must consider herself/himself as an agent of justice. The Courts have ruled that it is the duty of the Public Prosecutor to see that justice is vindicated and that he should not obtain an unrighteous conviction.

b) Public Prosecutor should not exhibit a seemly eagerness for, or grasping at a conviction" The purpose of a criminal trial being to determine the guilt or innocence of the accused person, the duty of a Public Prosecutor is not to represent any particular party, but the State. The prosecution of the accused persons has to be conducted with utmost fairness. In undertaking the prosecution, the State is not actuated by any motives of revenge but seeks only to protect the community. There should not therefore be "a seemly eagerness for, or grasping at a conviction.

c) A Public Prosecutor should not by statement aggravate the case against the accused, or keep back a witness because her/his evidence may weaken the case for prosecution. The only aim of a Public Prosecutor should be to aid the court in discovering truth. A Public Prosecutor should avoid any proceedings likely to intimidate or unduly influence witnesses on either side.

d) A Public Prosecutor should place before the Court whatever evidence is in her/his possession .The duty of a public Prosecutor is not merely to secure the conviction of the accused at all costs but to place before the court whatever evidence is in the possession of the prosecution, whether it be in favour of or against the accused and to leave the court to decide upon all such evidence, whether the accused had or had not committed the offence with which he stood charged. It is as much the duty of the Prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice.

e) The duty of the Public Prosecutor is to represent the State and not the police. A Public Prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure, 1973. She/he is not a part of the investigating MSM,J WP.No.21280 of 2019

agency. She/he is an independent statutory authority. She/he is neither the post office of the investigating agency, nor its forwarding agency; but is charged with a statutory duty.

f) The purpose of a criminal trial is not to support at all cost a theory, but to investigate the offence and to determine the guilt or innocence of the accused and the duty of the Public Prosecutor is to represent not the police, but the State and her/his duty should be discharged by her/him fairly and fearlessly and with a full sense of responsibility that attaches to her/his position.

g) Time and again, the Courts have held that prosecution should not mean persecution and the Prosecutor should be scrupulously fair to the accused and should not strive for conviction in all these cases. It further stated that the courts should be zealous to see that the prosecution of an offender should not be given to a private party. The Court also said that if there is no one to control the situation when there was a possibility of things going wrong, it would amount to a legalised manner of causing vengeance.

h) A Public Prosecutor cannot appear on behalf of the accused .It is inconsistent with the ethics of legal profession and fair play in the administration of justice for the Public Prosecutor to appear on behalf of the accused.

i) No fair trial when the Prosecutor acts in a manner as if he was defending the accused, It is the Public Prosecutors duty to present the truth before the court. Fair trial means a trial before an impartial Judge, a fair Prosecutor and atmosphere of judicial calm. The Prosecutor who does not act fairly and acts more like a counsel for the defense is a liability to the fair judicial system.

j) If there is some issue that the defense could have raised, but has failed to do so, then that should be brought to the attention of the court by the Public Prosecutor The Supreme Court stated that the duty of the Public Prosecutor is to ensure that justice is done. It stated that if there is some issue that the defense could have raised, but has failed to do so, then that should be brought to the attention of the court by the Public Prosecutor. Hence, she/he functions as an officer of the court and not as the counsel of the State, with the intention of obtaining a conviction. The District Magistrate or the Superintendent of Police cannot order the Public Prosecutor to move for the withdrawal, although it may be open to the District Magistrate to bring to the notice of the Public Prosecutor materials and suggest to her/him to consider whether the MSM,J WP.No.21280 of 2019

prosecution should be withdrawn or not. But, the District Magistrate cannot command and can only recommend.

To discharge the duties of Public Prosecutor as enumerated

above, though elliptic, procedure is prescribed in

Section 24 of the Cr.P.C which deals with appointment of public

prosecutors in the High Courts and the district by the central

government or state government. Sub-section (3) says down

that for every district, the state government shall appoint a

public prosecutor and may also appoint one or more additional

public prosecutors for the district. Sub-section (4) requires the

district magistrate to prepare a panel of names of persons

considered fit for such appointment, in consultation with the

sessions judge. Sub-section (5) explains an embargo against

appointment of any person as the public prosecutor or

additional public prosecutor in the district by the state

government unless his name appears in the panel prepared

under sub-section (4). Sub-section (6) provides for such

appointment wherein a state has a local cadre of prosecuting

officers, but if no suitable person is available in such cadre,

then the appointment has to be made from the panel prepared

under subsection (4). Subsection (4) says that a person shall be

eligible for such appointment only after he has been in practice

as an advocate for not less than seven years.

In R. Rathinam vs. State1 the Supreme Court permitted a

lawyer to file an application for cancellation of bail. This view was

approved by the Apex Court in Puran vs. Rambilas2. In R.

Rathinam's case (supra) the Apex Court held that the frame of

AIR 2000 SCC 1851

(2001) 6 SCC 338 MSM,J WP.No.21280 of 2019

sub-Section 2 of Section 439 Cr.P.C. indicates that it is a power

conferred on the court mentioned therein. It was held that there

was nothing to indicate that the said power could be exercised only

if the State or investigating agency or the Public Prosecutor moved

an application. It was held that the power so vested in the High

Court can be invoked by any aggrieved party he can addressed the

court.

The Apex Court in Dawarika Prasad Agarwal vs. B.D.

Agarwal3 held that party can not made to suffer adversely either

directly or indirectly by reason of an order passed by any court of

law which is not binding on him. The very basic upon which a

judicial process can be resorted to is reasonableness and fairness

in a trial. The fair trial is fundamental right of every citizen

including the victim of the case under Article 21 of our

Constitution as held in Nirmal Singh Kahlon vs. State of

Punjab4.

On the careful scrutiny of the criminal procedure, I find that

Legislature has not framed any section by which mechanism has

been given that in what manner, the appeal and prosecution

applications are to be conducted. However, the hallmark of

criminal justice system is to conduct fair trial, which is a

fundamental right guaranteed under the Constitution of India.

From the scheme of the Code, the legislative intention is

manifestly clear that prosecution in a sessions court cannot be

conducted by any one other than the Public Prosecutor. The

legislature reminds the State that the policy must strictly conform

(2003) 6 SCC 230

(2009) 1 SCC 441 MSM,J WP.No.21280 of 2019

to 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 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, 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

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.

It is not merely an overall 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, 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 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 MSM,J WP.No.21280 of 2019

legislative mandate in Section 225 of the Code a dead letter. (vide

Shiv Kumar v. Hukam Chand5)

The Full Bench of the Allahabad High Court in Queen

Empress v. Durga6 has pinpointed the role of a Public Prosecutor

as follows:

"It is the duty of a Public Prosecutor to conduct the case for the Crown fairly. His object should be, not to obtain an unrighteous conviction, but, as representing the Crown, to see that justice is vindicated: and, in exercising his discretion as to the witnesses whom he should or should not call, he should bear that in mind. In our opinion, a Public Prosecutor should not refuse to call or put into the witness box for cross examination a truthful witness returned in the calendar as a witness for the Crown, merely because the evidence of such witness might in some respects be favorable to the defence. If a Public Prosecutor is of opinion that a witness is a false witness or is likely to give false testimony if put into the witness box, he is not bound, in our opinion, to call that witness or to tender him for cross examination."

The Division Bench of the High Court of Andhra Pradesh

in Medichetty Ramakistiah & Ors. vs. The State of Andhra

Pradesh7 observed as follows:

"A prosecution, to use a familiar phrase, ought not to be a persecution. The principle that the Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing any anxiety to secure a conviction, is based upon high policy and as such courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the Court to obtain its decision thereon and not to obtain a conviction by any means fair or foul. Therefore, it is right and proper that courts should be zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman instructed by a private party."

Equally forceful is the observation of Bhimasankaram, J. for

the Division Bench in Medichetty Ramakistiah (cited supra)

which is worthy of quotation here:

(1999) 7 SCC 467

ILR 1894 Allahabad 84

AIR 1959 A.P. 659 MSM,J WP.No.21280 of 2019

"Unless, therefore, the control of the Public Prosecutor is there, the prosecution by a pleader for a private party may degenerate into a legalized means for wreaking private vengeance. The prosecution instead of being a fair and dispassionate presentation of the facts of the case for the determination of the Court, would be transformed into a battle between two parties in which one was trying to get better of the other, by whatever means available. It is true that in every case there is the overall control of the court in regard to the conduct of the case by either party. But it cannot extend to the point of ensuring that in all matters one party is fair to the other."

Keeping in view the role of Public Prosecutor to conduct fair

prosecution, the Government may entrust conduct of prosecution

in a particular case. Prosecution cannot be entrusted mechanically

at the whim and caprice of any individual by the Government at

the instance of any person who is interested over any conviction or

acquittal of the accused.

Following the judgments of the Apex Court, Full Bench of

Allahabad High Court and Division Bench of High Court of Andhra

Pradesh, the Division Bench of Allahabad High Court in Suneel

Kumar Singh v. State of Uttar Pradesh8 held as follows:

"22. Accordingly, we permit the learned counsel for the informant/complainant (victim) to make his argument after conclusion of the argument of Public Prosecutor."

In view of the above said discussion we held as under:-

(a) In any appeal filed under Section 374 Cr.P.C. by the accused persons challenging the conviction and sentence passed by trial Court and if a bail application filed under Section 389 Cr.P.C. is also filed, G.A./A.G.A. etc. on behalf of the State Government can file written objections and make arguments.

(b) If a person has already been engaged as G.A/A.G.A. etc. and subsequently, he has been discharging his duties from the said capacity, then there is no legal impediment in his way to appear on behalf of the complainant in an appeal which has been filed by the accused-appellant against his conviction under Section 374 Cr.P.C. or to oppose in the bail application filed under Section 389 Cr.P.C but only with the permission of the Court otherwise he shall only assists the State Government.

(c) If G.A./A.G.A. etc. who has been appointed as per under Section 24 (1) of Cr.P.C. by the State Government, filed any objections/ conduct of the case filed on behalf of the State in an appeal filed by the accused-persons against his conviction or in a bail application

MSM,J WP.No.21280 of 2019

under Section 389 Cr.P.C., subsequently, disengaged from the said capacity, then in that circumstances, he cannot appear on behalf of the complainant."

In Zahira Habibullah vs State of Gujarat9, which is known

as 'BEST BAKERY' case, the Supreme Court ordered retrial of the

matter and observed that in Gujarat, ''The Public Prpsecutor

appears to have acted more as a defence counsel than one whose

duty was to present the truth before the Court''.

In Rajendra Kumar Jain vs. State through Special

Police Establishment10, the Supreme Court held quoting

Shamsher Singh v. State of Punjab11, as regards the meaning

and content of executive powers tends to treat the public

prosecutor's office as executive. But the conclusions of some

courts create doubt as to its exact nature. To the suggestion that

the public prosecutor should be impartial (a judicial quality), the

Kerala High Court equated the public prosecutor with any other

counsel and responded thus: Every counsel appearing in a case

before the court is expected to be fair and truthful. He must of

course, champion the cause of his client as efficiently and

effectively as possible, but fairly truthfully. He is not expected to be

impartial but only fair and truthful. (vide Aziz v. State of

Kerala12)

In Thakur Ram vs. State of Bihar13, the Hon'ble Apex

Court held: "Barring a few exceptions, in criminal matters the

party who is treated as aggrieved party is the State which is the

custodian of the social interests of the community at large and so

9 2004 (4) SCALE 375

AIR 1980 SC 1510

(1974) 2 SCC 831

(1984) Cri. LJ 1060 (Ker)

AIR 1996 SC 911 MSM,J WP.No.21280 of 2019

it is for the State to take all steps necessary for bringing the person

who has acted against the social interests of the community to

book" The rationale behind the State undertaking prosecutions

appears to be that no private person uses the legal apparatus to

wreak private vengeance on anyone.

In Jitendra [email protected] Ajju vs. State (NCT of Delhi)14, Delhi

High Court observed that, in the Criminal Justice System this role

is performed by the Public Prosecutor on behalf of the State. The

Public Prosecutor has been described as a Minister of Justice who

plays a critical role in maintaining purity and impartiality in the

field of administration of criminal justice.

The Punjab & Haryana High Court in Krishan Singh Kundu

v. State of Haryana15 has ruled that the very idea of appointing a

police officer to be in charge of a prosecution agency is abhorrent

to the letter and spirit of Sections 24 and 25 of the Code. In the

same vein the ruling from the Supreme Court in S.B Sahana v.

State of Maharashtra16 found that irrespective of the executive or

judicial nature of the office of the public prosecutor, it is certain

that one expects impartiality and fairness from it in criminal

prosecution. The Supreme Court in Mukul Dalal v. Union of

India17 also categorically ruled that the office of the public

prosecutor is a public one and the primacy given to the public

prosecutor under the scheme of the court has a social purpose.

But the malpractice of some public prosecutors has eroded this

value and purpose.

2000 (53) DRJ 707

1989 Cri. LJ 1309 (P&H)

(1995) SCC (Cri) 787

(1988 3 SCC 144 MSM,J WP.No.21280 of 2019

In view of the law declared by the Court in the judgments

referred supra, the role of a Public Prosecutor is vital in conclusion

of criminal trials and it is clear that it is not the duty of Public

Prosecutors to quest conviction at all cost. Nor, is their duty to act

as an avenging angle for the victim. On the contrary, their

fundamental duty is to ensure that justice is delivered and in

pursuance of this they should lay before the court all relevant

evidence including the evidence that favours the accused. Corollary

to this is the duty of a Public Prosecutor to bring to attention of the

Court, any issue that the defense could have raised, but has failed

to do. But, in doing so, they cannot act as if they are defending the

victim, nor can they appear on behalf of the accused. When the

Prosecutor acts in a manner as if she/he was defending the

accused, then there is no fair trial. A Public Prosecutor is an

independent entity from police and police cannot order her/him to

conduct prosecution in a particular way. Police, politicians or any

other extraneous party cannot influence her/his actions, including

her/his discretion to decide withdrawal of a case. The Public

Prosecutor represents the State but not the police and can only be

influenced by public interest. In pursuance of their duties, public

prosecutors should not use improper methods calculated to

produce wrongful convictions and she/he must discharge her/his

functions in a scrupulously fair and honest way. A fortiori, a Public

Prosecutor has the responsibility of a minister of justice and not

simply that of an advocate.

Keeping in view of the principles laid down by the judgments

of the Apex Court, I would like to examine the issue in nut-shell.

MSM,J WP.No.21280 of 2019

The first grievance, as stated above, is that, G.O.Rt.No.977

dated 15.11.2019 entrusting to conduct of prosecution to Sri S.

Venkata Narayana is not cancelled either by issuing any separate

order or mentioning in G.O.Rt.No.1070 dated 18.12.2019 i.e.

impugned G.O in the writ petition. At the same time, as the third

respondent appeared against the interest of the father of this

petitioner (Deceased No.2) in S.C.No.330 of 2010 on the file of IX

Additional District and Sessions Judge, to assist the Public

Prosecutor creates any amount of suspicion of conduct of fair trial.

Apart from that, bias can be inferred in view of the allegations

made in the counter affidavit filed by the third respondent, since

the third respondent is an independent Public Prosecutor, he is

expected to raise different pleas and therefore, appointment of

third respondent to conduct prosecution in case if allowed, there

will not be any fair trial which is a fundamental right guaranteed

under the Constitution of India. On the other hand, appointment

as Special Public Prosecutor to conduct trial appears to be tainted

with illegalities, as the second respondent did not disclose the

reason for addressing letter and the contents, either by placing the

same before this Court or by filing independent counter by the

second respondent. Thus, the second respondent intentionally

suppressed material facts and addressed letter to the first

respondent for appointment of Special Public Prosecutor without

cancelling the entrustment of G.O.Rt.No.977 dated 15.11.2019.

The cumulative effect of these circumstances creates any amount

of suspicion in the mind of the petitioner that no fair trial would be

conducted, if the third respondent is allowed to conduct MSM,J WP.No.21280 of 2019

prosecution in S.C.No.110 of 2016 pending on the file of VI

Additional District and Sessions Judge, Chittoor.

It is the duty of the State to wipe of such impression in the

mind of the victim and guarantee that a fair trial would take place

by appointing any competent eligible Public Prosecutor to conduct

fair trial which is a fundamental right guaranteed to the victim

under the Constitution of India.

Curiously, during pendency of this writ petition,

Smt. T. Nirmala was appointed as regular Public Prosecutor on

tenure basis to conduct prosecution in the VI Additional Sessions

Court, Chittoor, where S.C.NO.110 of 2016 is pending. The

petitioner by filing a memo requested to entrust conduct of

prosecution in S.C.No.110 of 2016 pending on the file of VI

Additional District and Sessions Judge, Chittoor to

Smt. T. Nirmala. Fairly, learned Government Pleader for Home did

not object for entrustment of prosecution to Smt. T. Nirmala, for

conducting prosecution in the Court where S.C.No.110 of 2016 is

pending. But, this Court while exercising power under Article 226

of the Constitution of India cannot entrust conduct of prosecution

to any Public Prosecutor, since it is for the State in view of Section

24 of Cr.P.C. Hence, taking into consideration of the facts and

circumstances of the case, appointment of third respondent as

Special Public Prosecutor and entrustment of conduct of

prosecution in S.C.No.110 of 2016 pending on the file of VI

Additional District and Sessions Judge, Chittoor is liable to be set-

aside, as there is no possibility of conduct of fair trail without any

bias in view of undisputed conflict of interest. Apart from that, MSM,J WP.No.21280 of 2019

earlier G.O.Rt.No.977 dated 15.11.2019 entrusting conduct of

prosecution to Sri G. Rajaram was not cancelled.

In the result, writ petition is allowed, declaring

G.O.Rt.No.1070 Home (Courts.A) Department dated 18.12.2019

appointing the third respondent as Special Public Prosecutor to

conduct trial of prosecution in S.C.No.110 of 2016 pending on the

file of VI Additional District and Sessions Judge, Chittoor, as illegal

and arbitrary, consequently G.O.Rt.No.1070 Home (Courts.A)

Department dated 18.12.2019 is set-aside. However, it is left open

to the State to entrust the prosecution to any of the Public

Prosecutors, subject to cancellation of G.O.Rt.No.977 Home

(Courts.A) Department dated 15.11.2019 by specific order, if the

State is not interested to continue Sri S. Venkata Narayana to

conduct prosecution in S.C.No.110 of 2016 in accordance with law

and entrust conduct of prosecution to a Public Prosecutor who has

no conflict of interest and to conduct fair prosecution/trial without

any bias. Respondent Nos. 1 and 2, at their discretion, may also

consider entrustment of conduct of prosecution to the regular

Public Prosecutor appointed to conduct prosecution in the Court

where S.C.No.110 of 2016 is pending.

Consequently, miscellaneous applications pending if any,

shall also stand dismissed. No costs.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:18.01.2021

SP