Jayesh Pratap Doshi vs State Of Maharashtra
2010 Latest Caselaw 193 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION




                                                                        
                     CRIMINAL WRIT PETITION NO.747 OF 2010




                                                
    Jayesh Pratap Doshi
    Age 40 years, Occu. : Business,




                                               
    R/at : 503, Victor Shelter, MNM Road,
    Kandarpada, Dahisar (W),
    Mumbai - 400 068                                              ..Petitioner.
                Versus




                                           
    1     State of Maharashtra 

    2.
                            
          Secretary to the Government
          of Maharashtra, Law & Judiciary
          Department, Mantralaya, Mumbai.
                           
    3.    Nimesh Shah,
          1st Floor, Mangrol Mansion,
          Fort, Bora Nazaar, Mumbai - 1.
           


    4.    Shri Vivek Sharma,
        



          Kamat Building, 19b, 2nd Floor,
          38, Cawasji Patel Street, Fort,
          Mumbai - 400 001.





    5.    Smt.Charmine Bakaroo,
          Kamat Building, 19b, 2nd Floor,
          38, Cawasji Patel Street, Fort,
          Mumbai - 400 001.                                       ..Respondents.





                      CRIMINAL APPLICATION NO.140 OF 2010
                                      IN
                     CRIMINAL WRIT PETITION NO.747 OF 2010

    Jayesh Pratap Doshi
    Age 40 years, Occu. : Business,
    R/at : 503, Victor Shelter, MNM Road,
    Kandarpada, Dahisar (W),
    Mumbai - 400 068                                              ..Petitioner.

          Versus


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    1     State of Maharashtra 




                                                                          
    2.    Secretary to the Government
          of Maharashtra, Law & Judiciary




                                                  
          Department, Mantralaya, Mumbai.

    3.    Nimesh Shah,
          6, Gunbow Street, 7, Mangrol Mansion,
          Fort, Bora Nazaar, Mumbai - 1.                            ..Respondents.




                                                 
                And

    Dharmesh Solanki,




                                           
    Solanki Niwas, 3rd Floor,
    Kumbarwada No.4,        
    Mumbai - 400 003.                                               ..Intervenor.

                    CRIMINAL APPLICATION NO.178 OF 2010
                           
                                    IN
                   CRIMINAL WRIT PETITION NO.747 OF 2010

    Jayesh Pratap Doshi
           

    Age 40 years, Occu. : Business,
    R/at : 503, Victor Shelter, MNM Road,
        



    Kandarpada, Dahisar (W),
    Mumbai - 400 068                                                ..Petitioner.

          Versus





    1     State of Maharashtra 

    2.    Secretary to the Government
          of Maharashtra, Law & Judiciary





          Department, Mantralaya, Mumbai.

    3.    Nimesh Shah,
          6, Gunbow Street, 7, Mangrol Mansion,
          Fort, Bora Nazaar, Mumbai - 1.                            ..Respondents.

                And

    Hiten Haridas Raichura,
    A/1555, Building No.2, Ganjawala Apartment,
    Ganjawala Lane, Borivli (West),
    Mumbai - 400 092                                                ..Intervenor.


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                     CRIMINAL WRIT PETITION NO.1727 OF 2009




                                                                                      
    Mohammed Iqbal Khan
    Aged 52 years, residing at




                                                              
    Room No.109, 1st Floor,
    944, Duncan Road, Mumbai - 4                                                ..Petitioner

                  Versus




                                                             
    1.     State of Maharashtra 

    2.     The Desk Officer,




                                                
           Law & Judiciary Department,
           Government of Maharashtra,
           Mantralaya, Mumbai - 400 032.
                                ig                                              ..Respondents.


    Mr.S.V. Marwadi with Mr.V.V. Katti for the applicants.
                              
    Mr.S.V. Kotwal i/by Mr.Ashish Sawant for respondent No.3.
    Mr.V.T. Tulpule, Senior Advocate with Ms.Nisha Parab for respondent Nos.4 & 
    5.
    Mr.S.S. Dube with Mr.A.A. Khan for the intervenor.
           


    Mr.Ishwar S. Badigamvar for intervenor.
    Mr.K.V. Saste, APP for State.
        



                                 CORAM : A.M. Khanwilkar, & U.D. Salvi, JJ.   

Judgment Reserved on : 8th September 2010.

Judgment Pronounced on :25th November 2010.

JUDGMENT : (Per U.D. Salvi, J.)

1. These are group of writ petitions and the intervention

applications therein moved to question the legality and propriety of the

decisions taken by the State of Maharashtra in the matters of appointment of

special Public Prosecutors under Section 24(8) of the Code of Criminal

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Procedure, 1973.

2. The applicants in Criminal Application Nos.140 of 2010 and 178

of 2010 are seeking intervention in Criminal Writ Petition No.747 of 2010 on

the ground that their interest in the appointment of Special Public

Prosecutors in Criminal Case bearing MECR No.14 of 2002 arising out of

complaint case No.279/PW of 2006 pending before the 33rd Metropolitan

Magistrate, Ballard Pier, Mumbai are akin to those of the petitioners in

Criminal Writ Petition No.747 of 2010 Mr.Jayesh Doshi, the co-accused in the

said criminal case.

3. Admittedly, the intervenors are the co-accused in the said

criminal case and, therefore, their intervention in the present proceedings is

justifiable. Their pleas, therefore, on the basis of the record produced by

them have to be heard. Intervenors are, therefore, heard along with the

parties to the petitions.

4. Rule. Taken up for final hearing by mutual consent.

5. Initially, accused No.1 - Jayesh Doshi in the said case had moved

a petition only against the State and its Secretary. Later on, the complainant

Nimesh Shah and his Advocates Mr.Vivek Sharma and Smt.Charmaine

Bokaroo were impleaded to the petition vide order dated 29th April 2010, and

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they have been duly served in the present petition.

6. The respondent No.3 - Nimesh shah accused the petitioner

Jayesh Doshi of cheating him in the transaction of sale of shares by delivering

to him forged share certificates with resultant wrongful loss of Rs.8,32,311/-,

and accused the intervenors of instigating and abetting the said crime. The

police investigation made pursuant to the directions of the learned

Metropolitan Magistrate of Borivali Court under Section 202 of the Code of

Criminal Procedure, 1973 in the Complaint Case No.26/I&R of 2002 lodged

in that regard revealed the commission of offence outside the jurisdiction and

as such the complainant was directed to present the complaint before the

appropriate Court. A second complaint in that regard was, therefore, lodged

in the 33rd Court of Metropolitan Magistrate, Ballard Pier which was initially

numbered as C.C. No.743/M of 2002. Investigations ordered under Section

156(3) of the Code of Criminal Procedure, 1973 resulted in registration of

the crime being M.E.C.R. No.14 of 2002 with M.R.A. Marg Police Station and

the case following lodging of the charge-sheet came to be numbered as

279/PW/2006.

7. According to the petitioner, the complainant Nimesh Shah in

M.E.C.R. No.14 of 2002 continued to be represented by the respondent Nos.4

& 5, who actively participated in the trial of the same. The petitioner further

states that respondent Nos.4 & 5 who represent the complainant as well as

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actively participated on their behalf in the said trial, came to be appointed as

Special Public Prosecutors in the said case - C.C. no.279/PW of 2006 vide

Notification No. SPP-3909/1696 (297) D-XIV issued by the respondent No.2

Secretary of the Judicial Department of the respondent No.1-State. After

having learnt about the said Notification, the petitioner made a

representation to the respondent No.2 for inviting its attention to the fact

that the appointment of Special Public Prosecutor vide Notification No.

SPP-3909/1696 (297) D-XIV could not have been made, especially when

both the Advocates were representing the complainant and actively

participating in the said trial on behalf of the complainant as well. This

representation, the petitioner suggests has not been responded to.

8. The objections to the appointment of respondent Nos.4 & 5 as

Special Prosecutors are:-

(i) Nothing has been shown to say that the public prosecutors in-charge of

the case is incompetent to conduct the trial or suffers from such

disqualification material to the duty casts on him.

(ii) No circumstances are evident so as to make out a case that the

appointment of Special Prosecutor is warranted out of public interest.

(iii) There is no circumstances to show that the case would not be properly

or competently conducted by the Public Prosecutor and the nature of

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the offence is such that it is required to be tried by a Special

Prosecutor.

(iv) The Special Prosecutors appointed have been remaining absent during

the course of cross examination of the complainant.

(v) No irregularity has been committed by the Prosecutor in conduct of the

case.

(vi) The appointment of the Special Prosecutors is contrary to the Rules

and Regulations as well as to the judicial pronouncements made by the

Hon'ble Supreme Court.

9. In the light of these objections, the petitioner submits that it was

incumbent upon the respondent No.2 to have considered his representation

and by not doing so, gross miscarriage of justice has been occasioned.

Intervenors have chosen to join and tow the line of arguments / submissions

made on behalf of the petitioners.

10. The petitioner in Criminal Writ Petition No.1727 of 2009 is the

complainant in C.C. No.18/P/2000 arising out of C.R. No.160 of 1998

registered with Dongri police station for offence under Section 420 of I.P.C.,

1860. He made a complaint that he was cheated by the accused and made to

suffer wrongful loss of Rs.5,00,000/- upon representation made by the

accused therein that the premises owned by them were being sublet, despite

the fact that the subject premises were occupied by some other person with

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whom the accused had entered into an agreement and handed over

possession. Using similar modus operandi, the petitioner in Criminal Writ

Petition No.1727 of 2009 states that the brothers of the accused in C.C. No.

18/P/2000 committed an offence of cheating, which came to be registered as

C.R. No.242/98 with Pydhoni Police Station and C.C. No.721/P/2003 arising

out of said C.R. is pending in the same Court of learned Additional Chief

Metropolitan Magistrate, 2nd Court, Mazgaon, Mumbai, along with C.C. No.

18/P/2000. The petitioner further states that he is also cited as witness in

C.C. No.721/P/2003 and most of the witnesses in C.C. No.18/P/2000 and

C.C. No.721/P/2003.

11. According to the petitioner in Criminal Writ Petition No.1727 of

2009, despite the aforesaid facts the Law & Judiciary Department had

accepted the request of the complainant in C.C. No.721/P/2003 for

appointment of Special Public Prosecutor and turned down similar request in

C.C. No.18/P/2000 made by the petitioner vide letter dated 22nd December

2008. His request / representation dated 14th February 2009 made in that

regard to the Law & Judiciary Department met with the same fate as

previously communicated vide letter dated 12th March 2009. Hence, the

petition.

12. The respondent - State resisted the petitions with reply dated 7th

April 2010 to the Criminal Writ Petition No.747 of 2010 and the relevant

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record. According to the respondent - State, there had been no illegality or

malice in the matters of appointment of the Special Public Prosecutors in the

aforesaid cases and the applications / representations made by the parties in

that regard were duly considered. Appointment of Special Public Prosecutors

in C.C. No.279/PW/2006 was following thorough examination of the

application dated 10th August 2009 made and the reports called in that

regard from the concerned quarters.

13.

Learned Advocate Mr.Marwadi for the petitioner in Criminal Writ

Petition No.747 of 2010 submitted that the Special Public Prosecutors

identified themselves with the complainant to such an extent that it reveal

their partisan attitude and as such they are not expected to be fair to the

accused while conducting the prosecution. Referring to the following

judgments / orders / applications :

Sr.No Date Particulars

1. 22-01-1995 Judgment in Criminal Revision No.1002 of 2004 passed by the Additional Sessions Judge, Greater Mumbai (Mr.Nimish Shah V/s. The State of Maharashtra & Others)

2. 07-12-2005 Order in Criminal Writ Petition No.2562 of 2005 (Mr.Hiten S.o,Haridas Raichura V/s. The State of Maharashtra & Others)

3. 10-04-2006 Application moved by the State at the instance of the complainant Mr.Nimish Shah in Case No.16/WP/2005 for handing over the investigation to the State C.I.D. in order to ensure detail and proper investigation.

4. 28-08-2006 Application in C.C. No.16/PW/2005 for directing in depth investigation.

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5. 03-03-2007 Order in M.A. No.94 of 2007 in Criminal Revision No.47 of 2007 passed by the Additional Sessions Judge,

Greater Mumbai.

6. 05-04-2007 Order in ABA No.392 of 2007 passed by the Additional

Sessions Judge, Greater Mumbai.

Learned Advocate Mr.Marwadi for the petitioner argued that the

role of Ms.Boccaro in the said matters sufficiently exposed her credentials as

an advocate identifying with the complainant Nimesh Shah. It is true that

Ms.Boccaro represented Mr.Nimish Shah in the proceedings referred to in the

aforesaid judgments / orders / applications. However, the fact that Advocate

Ms.Boccaro represented the complainant Mr.Nimish Shah in the said cases at

various stages of the proceedings was not concealed from the view of the

State. Mere fact that any advocate pursues a legal proceedings on behalf of

his client before any legal forum is not sufficient to stamp the concerned

advocate with a blame of identifying with the cause of his client whom he

represents. In fact, it is the legal duty of an advocate to faithfully represent

his client in lawful manner. There is nothing to blame Advocate Ms.Boccaro

of any unlawful conduct while discharging her duty as an advocate.

14. Learned Advocate Mr.Marwadi for the petitioner invited our

attention to an unreported judgment in Vijay Valia's case (1986 Cri.L.J. 2093

Vijay Valia & Others V/s. The State of Maharashtra & Others) in support of

the submission that the role of the prosecutor in any criminal trial, whether

at the instance of the State or a private party, is to safeguard the interests of

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both the complainant and the accused and in the instant case, the facts

generated legitimate apprehension in the mind of the petitioner and other co-

accused that the Special Public Prosecutor appointed in the case against them

would not fit in the role as envisaged by law. This Court observed in the said

judgment besides spelling out the role of an advocate in the criminal trial, as

under :

"The duties of the Prosecutor and the requirements of a fair

trial do not vary from case to case. Besides, there is always the Court to safeguard the interests of the accused and the

complainant, to control the proceedings and to check omissions and commissions of the Prosecutor. The Court is not a silent spectator to the proceedings, but an active participant in

it. .......... This role of the Court does not vary from prosecution to prosecution. To accept the argument advanced on behalf of the petitioners therefore is to hold that the trials in private prosecutions and those in State prosecutions vary in character and

while the latter are fair, just and impartial, the former are not. Such a proposition is not only inequitable but also perilous. For it

must logically lead to banning of all private prosecutions. It is for these reasons that we are unable to accept the theory that where Special Public Prosecutors are appointed whether paid by the State or the private party, the prosecution and the trial must be

presumed to be biased, partial or unfair."

Upon considering certain basic features of administration of

criminal justice, particularly with reference to Sections 24, 25, 321, 308, 378

of the Code of Criminal Procedure, 1973 and the Rules 18, 20 and 21 of the

Rules for the Conduct of Legal Affairs of the Government, 1984 (herein after

referred to as the 'Conduct Rules'), this Court dealt with the contention that

the Special Public Prosecutor / Assistant Public Prosecutor appointed at the

instance of the complainant and paid for by him is bound to act to the

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prejudice of the accused, and with reasons therefor; a) the Prosecutors so

appointed will be inclined in favour of the Complainant and against the

Accused and will, therefore, not conduct the prosecution impartially; b) he

may not act impartially under Section 321 of the Code in exercising of his

power to withdraw the prosecution, as in obtaining the sanction of the

Government for the said purposes, there will be a conflict of interests in his

duty as an officer of the State and as an Advocate who engages him; c) In

issuing certificate under Section 308 of the Act to a person who has accepted

the tender of pardon, such Prosecutor may not act independently; and d) he

may render impartial advice to the State Government for preferring an

appeal under Section 378(1) of the Code read with Rules 49(9)(b) and 50(1)

(a) of the Conduct Rules and to reached the conclusion that the reasons in

support of the contentions were untenable as the conduct of the prosecution

appointed and paid by the private party does not affect his capacity and

ability to perform his role as a Public Prosecutor. While rejecting the

contentions, this Court observed that the discharge of duties by a Public

Prosecutor does not depend upon the source of his fees, and if there is a

possibility of misdemeanour, it stems from human weakness, which is

common to all Prosecutors. These conclusions were reached after

considering the judicial precedents then cited namely 1982 Cri.LJ 2085 - P.G.

Narayanankutty V/s. State of Kerala, 1984 Cri LJ 499 - Babu V/s. State of

Kerala, and (1971) 2 Guj LR 999 - Dilipbhai Chhotalal Dave V/s. State of

Gujarat.

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15. In short, the judgment cited in Vijay Valia's case persuades us to

look at the matter of appointment of Special Public Prosecutors made at the

instance and expense of a private party with a clear sight and not with

jaundice eyes. The petitioner and the intervenors, who were anxious to be

joined for lending support to the petitioners cause, invited our attention to

the following judgments and submitted that the 'public interests' should

guide the appointment of Special Public Prosecutors, and the authorities

concerned are expected to follow the Rules governing such appointments.

(1988) 3 Supreme Court Cases 144 - Mukul Dalal V/s. Union of

India; 1993 Cri L.J. 1249 - Abdul Kahader Musliar V/s. Government of

Kerala; 1998 Cri.L.J. 998 - Rajendra Nigam V/s. State of Madhya Pradesh;

(1999) 7 Supreme Court Cases 467 - Shiv Kumar V/s. Hukam Chand; 2001

Cri.L.J. 3113 - Poonamchand Jain V/s. State of M.P.; 2002 Cri.L.J. 1694 -

Madho Singh V/s. State of Rajasthan; 2005 Cri.L.J. 3000 - K.V. Shiva Reddy

V/s. State of Karnataka; and 2010 Cri.L.J. 466 - State of Maharashtra V/s.

Prakas Prahlad.

In Abdul Kahader Musliar's case (supra) as well as in Rajendra

Nigam's case (supra), the Courts have observed that a Special Public

Prosecutor is not to be appointed in ordinary circumstances and the

authorities concerned should properly examine the request for appointment

of Special Public Prosecutor. Shiv Kumar's case (supra) emphasizes primacy

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of the Public Prosecutor in relation to a private counsel instructed by a

complainant in conduct of a criminal case. In Poonamchand Jain's case

(supra), absence of material showing incompetence of a Public Prosecutor to

conduct trial as well as the absence of special circumstances warranting

appointment of Special Public Prosecutor led to quashing of the order of

appointment of Special Public Prosecutor. Lack of objectivity in assessing the

facts and circumstances on the part of the concerned authorities in making

the appointment of Special Public Prosecutor also propelled quashing of such

appointment. In Madho Singh's case (supra) need to act fairly and without

undue haste in the matter of appointment of Special Public Prosecutor was

given a due weightage. In K.V. Shiva Reddy's case (supra) the need for

manifestation of the objective satisfaction of the concerned authorities in the

matter of appointment of Special Public Prosecutor was highlighted.

16. Lastly, but importantly, the judgment delivered by the Hon'ble

Apex Court in Prakas Prahlad Patil's case (supra) relied upon and cited by

both the rival camps, particularly the petitioners in Writ Petition No.747 of

2010 and the respondent - State allows the scope of judicial review in the

matters like the present one to be discerned from the following observations.

"The courts cannot be called upon to undertake governmental duties and functions. Courts should not ordinarily interfere with a policy decision of the State. While exercising power of judicial review the court is more concerned with the decision-making process than the merit of the decision itself."

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17. The decision-making process undertaken by the State in the

matters of such kind as pointed out by the learned Advocate Mr.Marwadi for

the petitioner in Writ Petition No.747 of 2010 as well as the learned Public

Prosecutor is governed by Rule 22 of the Conduct Rules. In Mukul Dalal's

case (supra), the Hon'ble Supreme Court expected the State to examine the

request made by the private parties for appointment of Special Public

Prosecutor on the basis of the guidelines prescribed, particularly in view of

the fact that the Office of the Public Prosecutor is a public office of the trust

and appointment to this Office is required to be made in the public interest.

Rule 22 of the Conduct Rules was found to be bad and the State Government

was directed by the Hon'ble Apex Court to modify the same keeping the

exposition in the said case in view. As a sequence to these directions, Rule 22

of the Conduct Rules was amended by the State Government on 4th April

2002 and thereafter again on 13-9-2004. The amended Rule as it stands now

reads as under :

"22. Engagement of Special Public 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 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 :

Provided that, no order under this sub-rule regarding appointment of a Special Public Prosecutor shall be made unless, for the reasons to be recorded in writing, the Remembrancer of

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Legal Affairs 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.

(2) On the request of a private complainant not being the aggrieved party, the Government in the Law and Judiciary Department may, appointment any of the Public Prosecutor or Additional Public Prosecutor as a Special Public Prosecutor in accordance with the provisions of sub-rule (1), for conducting

any such case.

(3) Fees for such Special Public Prosecutor, appointed under sub-rule (1) or (2), may be borne by the Government or the

aggrieved party or the private complainant, as may be directed by the Remembrancer of Legal Affairs;

Provided that, in cases where the aggrieved party is, a Bank or an Institution or Trust or the like, the fees shall be borne

by such aggrieved party;

Provided further that, the amount of the fees to be paid to such Special Public Prosecutor, shall be deposited with the

Government in the Law and Judiciary Department first, and the 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."

18. A Division Bench of this Court in Prakash Prahlad Patil's case;

2008 All MR (Cri) 2051 - Prakash Prahlad Patil V/s. State of Maharashtra

upon considering the provisions of Section 24(8) of the Code of Criminal

Procedure read with Rule 22 of the Conduct Rules and the law on the subject

formulated guidelines for the appointment of Special Public Prosecutor as

follows :

"(a) The appointment of a Special Public Prosecutor is not to be made merely for the sake of asking and it is not that whenever an application is made, it should be allowed and a Special Public Prosecutor is appointed.

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(b) Without scrutinizing, on the basis of the guide-lines

prescribed, the services of a Special Public Prosecutor should not be made available to a private complainant.

(c) The request for appointment of a Special Public Prosecutor should be properly examined 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 is necessary.

(d) An Advocate being appointed as a Special Public Prosecutor has to be in practice for not less than ten years and

regard must be had to his general repute, legal acumen and suitability.

(e) Before acceding to the request by any private party for appointment of a Special Public Prosecutor, it is necessary for

the Remembrancer of Legal Affairs RLA to get himself satisfied about the necessity of such appointment having regard to the 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 approving the appointment.

(f) The RLA must be satisfied that the case wherein such appointment 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 experience at Bar should find place in the consideration by the RLA and it should not be a mechanical exercise on his part.

(h) Such appointment shall be, on consideration of all the relevant factors in relation to a particular 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 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."

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19. It is in the light of these guidelines, it would be worthwhile to

examine the decision-making process undertaken by the State for

appointment of the Special Public Prosecutors in the cases at hand. The

record reveals that the Complainant / Respondent No.3 - Nimish Shah

moved the Ministry of Law & Judiciary for appointment of respondent Nos.4

and 5 as Special Public Prosecutors vide letter dated 10th August 2009. The

respondent No.3 placed on record the orders passed by this Court on 18th

July 2007 and 30th March 2009, expediting the trial of case No.279/PW/

2006, and further made grievance that the case was being delayed for the

reason of the Public Prosecutor remaining absent at the time of hearing of the

case. The respondent No.3 further brought to the notice of the authorities

that the case involved the offences of cheating and forgery of shares resulting

in monetary loss of about Rs.20,00,000/- and the concerned procedure

adopted in the Bombay Stock Exchange and that the Public Prosecutor was

not in a position to understand the subject. He showed his willingness to foot

the expenses required for the appointment of Special Public Prosecutor in the

said case. The respondent No.3 - complainant in response to another

communication of the same date from the Ministry responded to the

following queries made in respect of (i) consolidated fees of the respondent

Nos.4 and 5; (ii) consent letter regarding deposit of professional charges of

the respondent Nos.4 and 5 in advance with the State; (iii) appointment of a

private advocate in lieu of Public Prosecutor to act as Special Public

Prosecutor; (iv) professional experience in the criminal matters of the

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proposed incumbents for the post of Special Public Prosecutor; (v) FIR,

charge sheet etc. Requisite papers in response to such queries were placed

before the respondent No.2 - ministry by the complainant - respondent No.3,

Nimish Shah.

20. The record further reveals that the Desk Officer in the Ministry

called for the report of the District Government Pleader and the Public

Prosecutor, Mumbai on (i) whether it was in the public interest as per the

guidelines in Mukul Dalal's case to appoint a Special Public Prosecutor; (ii)

Particulars regarding the nature of the case, name of the complainant, stage

of the trial and the Public Prosecutors handling the case on behalf of the

State; (iii) Professional experience of the suggested advocates for

appointment as Special Public Prosecutors particularly in reference to the

criminal cases; (iv) whether the advocates had at any point of time handled

the cause of the accused in any case. Same queries as made through the

communication dated 24-08-2009 were made by the respondent No.2 -

Ministry with the Directorate of Prosecutions, Mumbai vide letter dated

30-10-2009. The Public Prosecutor, Mumbai responded with the brief reply

stating that the matter was from the Metropolitan Magistrate's Court at

Mumbai and not from the Sessions Court, Mumbai.

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21. Pertinent revelations as follows were made by the Directorate of

Prosecutions, Maharashtra State, Mumbai vide letter dated 16-11-2009

under:

"The case is of serious nature and Advocate Vivek Sharma and Charmine Boccaro had been handling the said case since the time of lodging of the private complaint in

that regard and they are in know of complete evidence in the said case and have been fully conversant with the court cases which arose during the intervening period on account of the case at hand between the respondent No.2 -

complainant, Nimish Shah and the accused, and, therefore, considering the gravity of the case in issue, their

appointment as Special Public Prosecutors would be in public interest and in the interest of justice. Advocate Vivek Sharma and Charmine Bocarro have been handling

criminal cases for last 25 years and they had not handled any work on behalf of the accused before."

These revelations were backed by the views of the Assistant

Public Prosecutor Mr.B.M. Shingada, Ballard Pier Court, Mumbai vide letter

No.23 of 2009 dated 2-11-2009.

23. On the basis of these revelations, it appears, perhaps, the respondent

No. 2 was prompted to recommend the appointment of respondent Nos. 4

and 5 as the Special Public Prosecutors in the said case in the following

words - Vide note of approval dated 7-1-2010:

"The case had chequered history. The matter pertains to the year 2002. Despite the directions given by the Hon'ble High Court for expeditious disposal of the matter, it is yet to be disposed of. This is the main grievance of the complainant. The Director of Prosecutions

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in his report dated 16-11-2009 opined that in the interest of justice the application for appointment of Special Public

Prosecutor may be allowed. The complainant is ready to pay the professional fee of the Special Public Prosecutor."

24. Undoubtedly, the judicial review of the issue of appointment of

Special Prosecutor in the instant case has to be more concerned with the

decision making process rather than the merits of the decision itself. Such

decision making process has been streamlined by virtue of formulation of the

guidelines in Prakash Pralhad Patil's case (supra) in order to offer to it

virtues of transparency and accountability to the people. It requires that

Remembrancer of Legal Affairs (RLA) has to get himself satisfied about the

necessity of the appointment of Special Public Prosecutor having regard to

the nature of the case, gravity of the matter and public interest involved in

the case in which a request has been made for such appointment and to

ensure that such satisfaction reflects in the order recorded in writing while

approving the appointment. Following of this procedure, ensures

transparency and accountability towards the public, which is a hallmark of

every good public administration, in the matter of such decision making

process.

25. We may have to discern the factors which weighed with the

Principal Secretary to record his satisfaction in order dated 7-1-2010. A

perusal of the said note of approval dated 7-1-2010 shows that except

making reference to the opinion of the Directorate of Prosecutions in its

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report dated 16-11-2009 about the "interest of justice" warranted

appointment of Special Prosecutor, the Principal Secretary and RLA made no

observations regarding nature and gravity of the case and more importantly

corresponding "public interest" involved therein. He has failed to record his

satisfaction with reference to those crucial factors which are essential for

making an appointment of Special Public Prosecutor. Merely observing that

the case has chequered history and pertains to year 2002 coupled with the

fact that the High Court has directed expedited disposal thereof and still it is

pending and the complainant is ready to pay the professional fee of the

Special Public Prosecutor, we are afraid, is not sufficient compliance of the

guidelines laid down in Prakash Pralhad Patil's case (supra). In that, the

satisfaction recorded by the Principal Secretary and RLA, which is crucial for

answering the point in issue, makes no mention about the nature of case,

gravity of the matter and public interest at all. The observation that the case

has chequered history, by itself, would not qualify the requirement. Inasmuch

as, it is not as if in all complicated cases or having chequered history, Special

Prosecutor should be appointed as a matter of course. The other essential

factor which ought to co-exist is that the "public interest" is involved in the

matter that such appointment is necessary. Similarly, the fact that the matter

is old as it pertains to year 2002 or that it is expedited by the High Court

does not take the matter any further. We are conscious of the fact that the

Principal Secretary has observed that "in the interest of justice" the

application for appointment of Special Public Prosecutor be allowed.

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However, there is marked difference between "interest of justice" and "public

interest" involved in the matter. Indeed, the Director of Prosecutions has

referred to both. But the Principal Secretary has only adverted to the factum

of "interest of justice" involved in the matter. This may appear to be hair

splitting approach, but going by the written remarks of the Principal

Secretary and RLA, it is not possible to hold that the satisfaction recorded by

him is to the effect that the nature of the case, gravity of the matter and

public interest involved in the matter warrants appointment of the Special

Public Prosecutor. Therefore, it is vulnerable. The exception taken to the

appointment of Respondent Nos. 4 and 5 as Special Public Prosecutors in the

said case is further fortified by the fact that the Director of Prosecutions,

Mumbai did acknowledge in response to a query made by the petitioner that

Mr. Shingada, Assistant Public Prosecutor attached to the 16th Metropolitan

Magistrate Court, Ballard Pier . Mumbai, was capable of conducting the said

case vide letter dated 10-11-2009.

26. As regards the appointment of the Special Public Prosecutor of

Advocate Merchant in the Criminal Case No.18/P/2000 it can be seen from

the record that the respondent No.3 - Law & Judiciary Department had

called for the requisite information and on considering the remark of the

Assistant Public Prosecutor, Mazgaon Court vide letter dated 7-9-2007 had

reached a conclusion that the case did not involve public interest. This led to

the rejection of the request for appointment of Special Public Prosecutor in

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the said Criminal case (subject matter in Writ Petition No.1727 of 2009).

Appointment of Special Public Prosecutor in companion Writ Petition (in

Criminal Case No.107/P/1999 under Section 420 read with Section 34 of the

Indian Penal Code, 1860) is being cited as a yardstick for the appointment of

Special Public Prosecutor in Criminal Case No.18/P/2000. In the first place,

each proposal for appointment of Special Public Prosecutor will have to be

examined by the Appropriate Authority on its own merits. Further, as

observed earlier, what is important is the decision-making process and not

the merit of the decision and, therefore, no parallel can be drawn on the

basis of merit between the decisions regarding appointment of Special Public

Prosecutors in the said two cases. Decision making process in the matter of

rejection of the request for appointment of the Special Public Prosecutor in

C.C. No.18/P/2000 as can be seen suffers from no vice or infirmity.

27. In this view of the matter, Rule is made absolute in Criminal

Writ Petition No. 747 of 2010 and the Notification No.

SPP-3909/1696(297)D-XIV dated 20-1-2010 passed by the Respondent No. 2

is quashed and set aside with no order as to costs. Rule is discharged in

Criminal Writ Petition No. 1727 of 2009 with no order as to costs. Criminal

Applications in Criminal Writ Petition No. 747 of 2010 are disposed of in the

above terms.

           (U.D.SALVI, J.)                            (A.M.KHANWILKAR, J.)