Shivaji Rajaram Take And Another vs The State Of Maharashtra And ...
2023 Latest Caselaw 774 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


             CRIMINAL WRIT PETITION NO.379 OF 2022


 1) Shivaji S/o Rajaram Take,
    Age-68 years, Occu:Agri.,
   R/o-Take Wasti, Jeur Baibati,
   Tq-Newasa, Dist-Ahmednagar,

 2) Sharad S/o Shivaji Take,
    Age-35 years, Occu:Agri.,
    R/o-Take Wasti, Jeur Baibati,
    Tq-Newasa, Dist-Ahmednagar.

                                                      ...PETITIONERS
        VERSUS

 1) The State of Maharashtra,
    Through Secretary,
    Law and Judiciary Department,
    Madam Kama Marg, Hutatma Rajguru
    Chowk, Mantralaya, Mumbai-400 032,

 2) Ujwala S. Pawar,
    Age-Major, Occu:Lawyer,
    Office: 10, Prabha Tara Apt.,
    Apte Road, Shivaji Nagar, Pune-5.
                                                      ...RESPONDENTS

                 ...
    Mrs. Pooja V. Langhe Advocate for Petitioner.
    Mr.M.M. Nerlikar, A.P.P. for Respondent No.1 -State.
    Mr.N.N. Bhagwat Advocate h/f. Mr. C.K. Shide Advocate
    for Respondent No.2.
                 ...


             WITH



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             CRIMINAL APPLICATION NO.1086 OF 2022
                    IN
             CRIMINAL WRIT PETITION NO.379 OF 2022


 1) Shrikant S/o Sambhaji Take,
    Age-23 years, Occu:Student,
    R/o-Bhingar, Tq-Nagar,
    Dist-Ahmednagar.

                                                 ...APPLICANT
        VERSUS

 1) Shivaji S/o Rajaram Take,
    Age-68 years, Occu:Agri.,
   R/o-Take Wasti, Jeur Haibati,
   Tq-Newasa, Dist-Ahmednagar,

 2) Sharad S/o Shivaji Take,
    Age-35 years, Occu:Agri.,
    R/o-Take Wasti, Jeur Haibati,
    Tq-Newasa, Dist-Ahmednagar.

 3) The State of Maharashtra,
    Through Secretary,
    Law and Judiciary Department,
    Madam Kama Marg, Hutatma Rajguru
    Chowk, Mantralaya, Mumbai-400 032,

 4) Ujwala S. Pawar,
    Age-Major, Occu:Lawyer,
    Office: 10, Prabha Tara Apt.,
    Apte Road, Shivaji Nagar, Pune-5.
                                                 ...RESPONDENTS
                 ...
    Mr. Tushar Shinde Advocate for applicant.
    Mrs. Pooja V. Langhe Advocate Respondent Nos.1 and 2.
    Mr.M.M. Nerlikar, A.P.P. for Respondent No.3.
    Mr.N.N. Bhagwat Advocate h/f. Mr. C.K. Shide Advocate
    for Respondent No.4
                 ...

                CORAM: SMT. VIBHA KANKANWADI AND
                       ABHAY S. WAGHWASE, JJ.

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DATE OF RESERVING JUDGMENT : 20th DECEMBER 2022

DATE OF PRONOUNCING JUDGMENT : 23rd JANUARY 2023

JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :

. Rule. Rule made returnable forthwith. Heard learned

counsel for the parties finally, by consent.

. Present petitioners are the original accused persons who

are challenging the Notification dated 30th September 2021

issued by respondent No.1 appointing respondent No.2 as a

Special Public Prosecutor to conduct the Sessions Case bearing

No.12 of 2020 before the learned Additional Sessions Judge,

Newasa, District-Ahmednagar, which is filed against the

petitioners. The petitioners are also challenging the order passed

on 11th February 2022 below Exhibit-101 passed by the learned

Additional Sessions Judge-2, Newasa in the said Sessions Case

wherein they had taken objection for the appointment of

respondent No.2.

2. The factual matrix leading to the petition, are that

informant Ravindra Shankar Gosavi has filed the First

Information Report vide Crime No.652 of 2019 with Newasa

Police Station alleging that in all four accused persons have

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committed the offence of murder of Advocate Sambhaji Rajaram

Take and Santosh Sundar Ghune by means of various weapons

and also caused grievous injuries to other two persons. The said

offence came to be registered under Sections 302, 307, 341,

201, 324, 323, 504, 506 read with Section 34 of the Indian Penal

Code. Informant Ravindra Gosavi had moved an application to

assist the Public Prosecutor under Section 301 of the Code of

Criminal Procedure through respondent No.2 and also moved an

application for assist to Public Prosecutor in bail application by

separate application when the matter was before the learned

Additional Sessions Judge, Newasa. Respondent No.2 had filed

Vakalatnama on behalf of the informant. Both the applications,

i.e. application Exhibit-65 and 72 were allowed by the learned

Additional Sessions Judge-2, Newasa on 26th July 2021 and

permission was granted to file written arguments only after

conclusion of evidence. Respondent No.2 had filed written notes

of arguments and it is stated that she had also advanced the oral

arguments before the trial Court, thereby she had taken active

participation in prosecuting the case. However, later on

informant has succeeded to get the appointment of respondent

No.2 as Special Public Prosecutor and he has deposited the

amount / fees towards respondent No.1 and then Notification

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regarding the appointment of respondent No.2 was issued by

respondent No.1 on 30th September 2021.

3. The petitioners are objecting the appointment of

respondent No.2 as Special Public Prosecutor on the ground that

she had represented the original informant on the earlier stages

by taking active part and therefore, as Public Prosecutor her

conduct is prejudiced to the accused persons and would be with

bias mind. The petitioners had, therefore, moved application

Exhibit-101 before the learned Additional Sessions Judge for

reconsidering the appointment of the Special Public Prosecutor.

However, that application came to be rejected.

4. Learned Advocate appearing for the petitioners has

vehemently submitted that the Notification is the outcome of

getting the appointment of respondent No.2 by the informant by

hook or crook. The role of the prosecutor is not as mouthpiece of

the investigating agency. It is the duty of the Public Prosecutor

to ensure that the accused is tried fairly. When respondent No.2

had already represented informant, it cannot be said that she

would be the instrumentality for fair trial. Learned Advocate for

the petitioners has taken us through the record which is with the

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trial Court i.e. Exhibit-65, Exhibit-72, Notification dated 30 th

September 2021, application Exhibit-101 and the order passed

by the learned Additional Sessions Judge, Newasa while

dismissing the said application. She has drawn our attention to

the decision in Jayesh Pratap Doshi vs. State of

Maharashtra, 2011 (1) AIR Bom. R 339, wherein this Court

after relying upon the decision of the Hon'ble Supreme Court

in Mukul Dalal vs. Union of India, 1988 (3) Bom.C.R. 410

(S.C.), observed that, 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. It was

further observed that, Rule 22 of the Conduct Rules governing

appointment of Public Prosecutor 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.

Therefore, Rule 22 of the Conduct Rules was amended by the

State Government on 4th April 2002 and again on 13 th September

2004. Those amended rules have been quoted in this case.

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Thereafter, this Court in Jayesh Pratap Doshi (supra), after

relying upon the decision in Prakash Pralhad Patil vs. State

of Maharashtra, 2008(2) Bom.C.R. (Cri.) 850 and also

taking note of the State's appeal challenging the decision in

Prakash Patil by this Court i.e. in State of Maharashtra vs.

Prakash Pralhad, 2010, Cri. L.J. 466, was of the opinion that

the guidelines issued in Prakash Pralhad Patil (supra) still

govern and the judicial review of the issue of appointment of

Special Public Prosecutor can be gone into by the High Court.

Those guidelines were issued in order to offer transparency and

accountability of the public. Those guidelines required that

Remembrancer of Legal Affairs (for short "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. This Court

Jayesh Pratap Doshi (supra) also observed that, "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

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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." Therefore, after considering

all the material, this Court had quashed and set aside the

appointment of the Special Public Prosecutor made in the case

before it.

5. Learned Advocate for the petitioners has then taken us

through the decision in Prakash Pralhad Patil (supra) and the

guidelines those have been framed in respect of appointment of

the Special Public Prosecutor.

6. Learned Advocate for the petitioners further relied on the

decision in Umesh Balasaheb Kalabhor vs. State of

Maharashtra and others, 2008(3) Mh. L.J. (Cri.) 406,

wherein also the appointment of Special Public Prosecutor in a

Sessions Case was challenged and after going through the record

when it was found by this Court that the satisfaction of RLA is

not seen from the record, it was held that the order is vitiated on

the ground of non compliance of all the requirements of Rule

22(1) of the Rules.

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7. Learned Advocate for the petitioners further relied on the

decision in Dr. Tera Chinnappa Reddy vs. Government of

Andhra Pradesh and others, 2014, Cri, L.J. 2071 (Andhra

Pradesh High Court), wherein it was held that:-

" Appointing the complainant's counsel, as a Special Public Prosecutor, would undoubtedly cause a reasonable apprehension in the mind of the accused that he may prosecute the case, on behalf of the State, in a biased manner. Such an appointment would not be in furtherance of the larger public interest of ensuring a fair and impartial trial. "

. It was further observed in Dr. Tera Chinnappa Reddy

(supra) that interest of the State and the complainant are not

always the same. Though accused in criminal case cannot dictate

who should prosecute him on behalf of the State, yet it will have

to be seen that it will not be desirable to allow private passions

and prejudices to creep into the conduct of a criminal trial when

it can be avoided.

8. Learned Advocate for the petitioners has further relied on

the decision in Rajendra Nigam vs. State of M.P. and others,

1998 Cri. L.J. 998 (Madhya Pradesh High Court), wherein it

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was observed that, Special Public Prosecutor need not be

appointed in ordinary circumstances. Without disclosing special

reasons, order appointing a Special Public Prosecutor is illegal.

Similar view has been taken by the Kerala High Court in P.G.

Narayankutty vs. State of Kerala, 1982 Cri. L.J. 2085.

Learned Advocate further relied on the decision in

Poonamchand Jain vs. State of M.P., (2001) Cri. L.J. 3113,

wherein it was observed by the High Court that there was no

material showing that public prosecutor who was in-charge of

case was incompetent to conduct trial or other aspects

disqualified him to fulfill duty cast on him and no special

circumstances existing for appointment of Special Public

Prosecutor, such order was held to be liable to be quashed. It

was also held that opinion of the State Government that crime is

a heinous one is not a justifiable and reasonable ground for

appointment of special public prosecutor. Further, in Devineni

Seshagiri Rao vs. The Government of A.P. and others,

2004 Cri. L.J. 52, it was held that, appointment of Special

Public Prosecutor is prerogative of State and the complainant

cannot name any person to be appointed as Special Public

Prosecutor. Similar view has also been taken in Abdul Khader

Musliar vs. Government of Kerala, Laws(Ker)-1992-11-2,

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and Madho Singh and another vs. State of Rajasthan and

others, 2002, Cri. L.J. 1694.

9. Learned Advocate appearing for the petitioners, therefore,

submitted that the facts of the case are not such that the Public

Prosecutor at Newasa is not qualified or sufficient to handle the

case. Further, respondent No.2 is ordinarily practicing at Pune.

Though it is stated that she served as District Government

Pleader at Pune, it cannot be the proper qualification for her to

get appointment as Special Public Prosecutor in the Sessions

Case in which the petitioners are accused. Respondent No.2 has

already appeared for the informant and had taken active part

and therefore, there is reasonable apprehension in the mind of

the petitioners that there will not be a fair trial. Under such

circumstances, appointment of respondent No.2 deserves to be

quashed and set aside.

10. Per contra, learned APP representing the State has

advocated that all the rules and regulations while appointing

respondent No.2 as Special Public Prosecutor have been

followed. There was satisfaction of RLA before the approval. The

facts in the case in hand would show that how brutally a legal

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practitioner was murdered. The First Information Report was

lodged by one Ravindra Shankar Gosavi, who was the friend of

deceased Sambhaji Rajaram Take. The murder weapon was axe.

In the said incident, Santosh Sundar Ghune has also expired

and the incident had taken place at 10.00 a.m. In the same

incident, informant Ravindra Gosavi also received grievous

injuries. One Ashok Vishnu Shinde had also received the injuries

in the said incident. He has also pointed out that the injured

persons had sustained grievous injuries and were admitted in

Intensive Care Unit. Definitely the offence will have to be

categorized in heinous and serious offence and the said offence

had taken place within the area of Newasa Police Station and

therefore, public interest has been generated. The draft charge

was given to the trial Court long ago and now the accused

persons finding various ways to protract the trial. Application

Exhibit-101 was the outcome of the same. It has been rightly

rejected by the learned Additional Sessions Judge-2, Newasa.

The accused cannot decide who should conduct the prosecution

case. The State has authority and power to appoint Special

Public Prosecutors. Reliance has been placed by the learned APP

on the observations in R. Balakrishna Pillai vs. State of

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Kerala, 1999 Cri. L.J. 1286 (Kerala High Court) in Para

Nos.19 and 21, which reads thus:-

" 19. There cannot be any two opinion that the duty of the prosecution is not to secure, by any unfair means conviction in a case, but to bring out the real untarnished truth. The apprehension of bias, in our opinion, is not only premature but also baseless. The grievance, at this stage, appears to our mind as only imaginary since the trial is yet to commence. We need not say or reiterate that a Public Prosecutor can function or discharge his duties as a Prosecutor only within the framework of Section 24 and other allied provisions of the Code. He cannot misuse or abuse his official position or travel beyond his arena of jurisdiction or power vested in him. Above all, the Presiding Officer is there to protect the interest of both parties. No Presiding Officer will allow any question which is not germane to the question at issue and will not allow any unwanted questions to be put to the witnesses. Therefore, we are of the opinion that the apprehension expressed by the appellant is nothing but imaginary. "

" 21. We are of the opinion that the State Government has made the appointment of the third respondent under the statutory powers conferred on it. It is the discretionary power vested in the Government. The Government is the largest litigant in the country. The Government, like any other private party, can choose and appoint authorise any advocate to appear on their behalf in any Court of law. It is not open to an accused in the case to suggest to the

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Government that it should not appoint/authorise the third respondent as their counsel since there is enmity between him and the third respondent which has nothing to do with the conduct of the case by the third respondent. It is also not in dispute that in no proceedings in the Idamalayar case the third respondent appeared against the interest of the State/prosecution. There is no basis for the allegation that the third respondent has been appointed to vindicate the grievance of the third party for whom he had been appearing. The said allegation is not only baseless but also unsupported by any materials on record. "

11. Learned APP further relied on the decision in Varada

Rama Mohana Rao vs. State of Andhra Pradesh, 2004(4)

SCC 427, wherein it was held that the appellant has failed to

show that prejudice would be caused to him by appointment of

Special Public Prosecutor. Further, reliance has been placed on

the decision in Nemi Chand vs. State of Rajasthan and

others, 2006 Cri. L.J. 4258 (Rajasthan High Court), wherein it

has been held that the contention of the learned counsel for

appellant that appointment of advocate representing

complainant as Special Public Prosecutor would affect fair trial

was devoid of merit, when Advocate on behalf of the

complainant can address the Court along with the Public

Prosecutor, he can also be appointed as Special Public

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Prosecutor. The only embargo provided by Section 24(8) of the

Code of Criminal Procedure is that he should have 10 years

standing as an advocate. It is submitted by the learned APP that

respondent No.2 is covered under the said parameters. Learned

APP also relied on the decision of this Court in Omparakash

Baheti and others vs. State of Maharashtra and others,

2006 Cri. L.J. 3105, wherein also mere fact that a particular

advocate appeared on behalf of the complainant prior to his

appointment to assist the Public Prosecutor was held to be not a

bar to the State to appoint him as Special Public Prosecutor.

12. Learned APP has further submitted that in State of

Maharashtra and others vs. Prakash Pralhad Patil and

others, AIR 2010 SC 463 i.e. the decision challenging

Prakash Pralhad Patil (supra), the Hon'ble Apex Court

observed that:-

" 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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13. Learned APP further pointed out that the decision taken by

this Court was quashed and set aside in its entirety when it was

found that on the petition filed by the close relative of the victim

decisions were taken at various levels of the Government. It was

then observed that, in any event, the appointment of a Special

Public Prosecutor to conduct a proceeding does not in any way

cause prejudice to the accused. According to the learned APP,

therefore, the guidelines issued in Prakash Pralhad Patil

(supra) no longer withstand in view of setting aside the said

decision. Learned APP has also relied on the decision in the case

of Azeez vs. the State of Kerala and others, 1984 Cri. L.J.

1059, and Annop vs. State of M.P. and others, 2006 Cri.

L.J. 2061, wherein on the facts of the case it was held that

there is no prejudice to the accused.

14. It will not be out of place to mention here that separate

application i.e. Criminal Application No.1086 of 2022 has been

filed by the son of the deceased to intervene. He had filed the

said application for appointment of Special Public Prosecutor and

accordingly respondent No.2 came to be appointed. Hence the

concerned applicant was allowed to intervene and submissions

on behalf of his Advocate are also heard. He has also filed the

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written notes of arguments. We do not want to reproduce the

contents of the written notes of arguments. Suffice it to say that

he is advocating that the matter is serious and is father was

brutally murdered by the accused. Though respondent No.2 was

representing him earlier that does not estop respondent No.1

from appointing respondent No.2 as Special Public Prosecutor. No

prejudice would be caused to the accused persons. Respondent

No.2 has sufficient qualifications and standing as well as

experience. She cannot abuse her official position. He has

expressed faith in respondent No.2 and submitted that if the

matter is allowed to be conducted by respondent No.2, there

would be justice.

15. At the outset, we would like firstly taken note of a fact

which is undisputed that application for assist to PP was filed by

the original complainant Ravindra Shankar Gosavi under Section

301 of the Code of Criminal Procedure on 23 rd July 2021. Prior to

that at Exhibit-65 application was also filed seeking permission

to assist PP to oppose bail application, on 30 th June 2021. The

Vakalatnama is at Exhibit-74. By order dated 26 th July 2021 the

applications filed by original informant, Ravindra Gosavi at

Exhibit-65 and 72 came to be allowed. It appears that,

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thereafter on 30th September 2021, respondent No.1 appointed

respondent No.2 as Special Public Prosecutor in Sessions Case

No.12 of 2020 pending before the learned Additional Sessions

Judge, Newasa and Notification to that effect was issued by the

Section Officer, Law and Judiciary Department. Thereafter

application Exhibit-101 was filed on behalf of the accused before

the learned Additional Sessions Judge, objecting the said

appointment and for issuing directions to reconsider the

appointment of respondent No.2 and to restrain respondent No.2

from conducting the matter till reconsideration. Say of the

Special Public Prosecutor was taken, which is at Exhibit-102 and

by order dated 11th February 2022, the learned Additional

Sessions Judge-2, Newasa rejected the said application.

16. On the basis of the decisions relied upon by all the parties,

what is emerging, and as per the procedure that has been laid

down under the Code of Criminal Procedure is that a case has to

be conducted by a Public Prosecutor. There are powers to the

State as well as the Central Government under Section 24 of the

Code of Criminal Procedure to appoint Special Public Prosecutor.

It is then required to be seen as to whether a High Court can

interfere or have a judicial review on the issue of appointment of

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Special Public Prosecutor. Definitely the observations from State

of Maharashtra vs. Prakash Pralhad Patil (supra) that this

Court cannot be called upon to undertake governmental duties

and functions, will have to be borne in mind. But at the same

time it has been further observed that while exercising power of

judicial review the court is more concerned with the decision

making process than the merit of the decision itself. Thus, it can

be definitely said that such decisions are liable to be judicially

reviewed in a petition when a person is alleging that his

constitutional rights are affected by such decision of the State.

Every accused and every litigant has constitutional right of fair

trial and procedure and therefore, in this case the facts mandate

that we should consider and discern those facts which weighed

respondent No.1 to appoint respondent No.2.

17. We may not go into the aspect, as to whether in view of

decision of setting aside the Judgment and order of this Court in

Prakash Pralhad Patil (supra) by the Hon'ble Supreme Court,

the guidelines those were issued have also been washed away or

no longer binding. However, we must take note of the decision in

Mukul Dalal vs. Union of India (supra) and Rule 22 of the

Conduct Rules as amended by the State Government on 4 th April

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2002 and again on 13 th September 2004. Proviso to Rule 22(1)

of the Conduct Rules in respect of engagement of Special Public

Prosecutor provides that no order under said sub-rule regarding

appointment of a Special Public Prosecutor shall be made unless,

for the reasons to be recorded in writing, the Remembrancer of

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. We agree to the

observations in Jayesh Doshi vs. State of Maharashtra

(supra) that the decision making process in respect of

appointment of Special Public Prosecutor to ensure transparency

and accountability towards the public. Here, it will not be out of

place to mention that at every District place and Sessions

Division where there is establishment of Sessions, Government

has appointed Public Prosecutors. Definitely they would be

appointed taking into consideration the eligibility, experience and

ability to handle all those cases which are triable by the Court of

Sessions. When such application for appointment of Special

Public Prosecutor is made then apart from other criterias, it will

have to be considered by the State Government that such case

whether cannot be handled by the Public Prosecutor who is

attached to the concerned Court or Division. In other words, the

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State Government will have to consider those special reasons

about the necessity to appoint a Special Public Prosecutor and

such necessity should reflect in the order / note-sheets while

making the appointment. The satisfaction of the Member

Secretary and RLA on the point of said special reasons carries

importance.

18. We have considered those decisions, aforesaid, where it

was held that merely because the person now appointed as

Special Public Prosecutor had appeared for the complainant

earlier, his appointment cannot be quashed only on that count.

We agree to those decisions, however, when such appointment is

made, whether proper procedure has been followed and

satisfaction has been recorded, would definitely be within the

judicial review of this Court. We also state that the papers with

the Law and Judiciary Department for the appointment of such

Special Public Prosecutor may not be accessible to the

petitioners and therefore, there may not be such grounds, yet

when objection is raised and the matter comes before us to

consider, whether there was such necessity or not, then even in

absence of those pleadings this Court would be required to

consider those papers from Law and Judiciary Department to see

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where there was satisfaction and adherence to the procedure.

The observations in respect of duties of Public Prosecutor, in the

aforesaid decisions, need not be reproduced and it has been

reiterated in many cases that the job of the Public Prosecutor so

also that of the Special Public Prosecutor while representing a

case for the prosecution is not to seek conviction only nor he /

she is a mouthpiece of the investigating agency or the informant.

The main duty is to present the prosecution case and give a fair

trial to the accused.

19. We also make it clear that we are not considering the

submissions on behalf of the petitioners that as respondent No.2

was representing the informant, she would proceed with the

matter in a biased manner. No material to that effect has been

produced and another fact is that the petitioners are from

Newasa whereas respondent No.2 is from Pune. The facts of the

case definitely disclose that it was a brutal murder and murder is

one of the heinous crime. Not only one but two persons are

stated to have been killed and as against two others there was

an attempt to commit murder. Therefore, there is definitely

seriousness / gravity in the matter and the said offence is stated

to have been committed in broad daylight. In spite of these

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facts, it is now considered, as to whether there was justifiable

reason for respondent No.1 to appoint respondent No.2.

20. We had called the original file from Law and Judiciary

Department, together with its notings. Perusal of the said file

would show that Shrikant Sambhaji Take i.e. applicant in

Criminal Application No.1086 of 2022 and son of the deceased,

had made application for appointing respondent No.2 as Special

Public Prosecutor, on 8th July 2021. The endorsement below said

application would show that the original informant - Ravindra

Shankar Gosavi has given consent and made application to that

effect, which is annexed thereto. Perusal of the application by

Ravindra Shankar Gosavi (informant) also bears date as, 8 th July

2021. Further there is another annexure which is addressed to

the Desk Officer, Law and Judiciary Department, which is in the

tabular form. It is signed by the son of the deceased and is

dated 8th July 2021. In the said tabular form, in Column No.8, it

is mentioned that they are annexing the declaration by

respondent No.2 along with affidavit that no offence is pending

against her. The important point to be noted is that in the said

file, we could find the consent, affidavit and declaration given by

respondent No.2 and it is dated 17 th June 2021. The question

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that comes into mind is, as to how these documents, which are

signed by respondent No.2, carry the earlier date than the

application by the son of the deceased or informant. We could

not find any reason for the same, but it appears that the said

tabular form appears to be a standard format though not

declared or prescribed by the State and when such documents

are required to be submitted, it could have been submitted by

the informant and the son of the deceased along with their

application itself. When they were having desire to get

respondent No.2 appointed, it appears that they have taken

those documents from her in advance. In fact the State

Government should make rules to that effect also, as to whether

such documents should accompany the application or that

consent, affidavit and declaration would be sought by the State

Government after the receipt of such application by it.

21. The facts further disclose that the application by the son of

the deceased was filed, as aforesaid, on 08-07-2021 / 09-07-

2021 to the State Government and as aforesaid, the Notification

appointing respondent No.2 as Special Public Prosecutor has

been issued on 30th September 2021. Exhibit-65 seeking

permission for assisting the APP came to be filed on 30 th June

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2021, that means it was prior to the application to the State

Government. But Exhibit-72 seeking permission to assist the

prosecution in bail application was filed on 23 rd July 2021 i.e.

after the application to the State Government dated 8 th July

2021. Both these applications i.e. Exhibit-65 and 72 came to be

decided by the concerned Judge on 26 th July 2021. Under such

circumstance, reference of applications Exhibit-65 and 72

appears to be not made in the said application dated 8 th July

2021. The appointment of respondent No.2 appears to have

taken long time and therefore, till then respondent No.2 has

assisted the prosecution. It cannot be in anticipation that

application would be allowed she would have kept quiet. As there

is constitutional right to the accused to get the Advocate

appointed of his choice, definitely there is some right, may be in

a restricted way, even to the informant by seeking permission of

the State Government to get an Advocate of his choice also. Of

course, ultimate decision will have to be taken by the State

Government, taking into consideration the rules and the

regulations. The informant's / victim's right is not unfettered. So

also, in the above said catena of Judgments it has been held that

only in deserving cases the State should appoint a Special Public

Prosecutor. After the application was received in the present

cwp379.22

case, respondent No.1 had called the opinion of the Public

Prosecutor of Ahmednagar District.

22. In Umesh Balasaheb Kalabhor vs. State of

Maharashtra and others (supra), the fact is that the director

of the prosecution had called upon the Public Prosecutor and

Assistant Director of Prosecution, Pune District to submit his

report and in his report to the Director of Prosecution it was

opined that appointment of the Special Prosecutor as requested,

was not in public interest and therefore, this Court had held that

such appointment cannot be allowed to be sustained. Further, in

that case the order suffered from reasons to be recorded in

writing. Herein this case the file shows that a detailed reasons

have been given.

23. In Jayesh Pratap Doshi vs. State of Maharashtra

(supra) also it was held that the guidelines in Prakash Pralhad

Patil vs. State of Maharashtra (supra) were not followed. In

fact in that case also the Assistant Public Prosecutor, Mazgaon

Court had given opinion that the case did not involve public

interest. Therefore, when the facts of the case in hand differ,

advantage of those decisions cannot be given to the petitioners.

cwp379.22

The Hon'ble Apex Court in State of Maharashtra vs. Prakash

Pralhad (supra), found that on a petition filed by close relatives

of a victim decision was taken at various levels and it was then

observed that the appointment of a Special Public Prosecutor to

conduct the proceeding does not in any way cause prejudice to

the accused. Those observations are binding on this Court. Even

if we consider the learned Single Judge Bench decisions of other

High Courts, referred above, on the basis of facts of each case

which have been scrutinized by those Benches, they have come

to the conclusion differently. No general statement can be made

that merely because respondent No.2 had represented the

informant at a particular level / stage it will cause prejudice to

the accused persons. The informant or the victim could not have

waited till the decision by the State Government for the

appointment of respondent No.2 as Special Public Prosecutor. In

fact it had no guarantee at all and therefore, might be, to protect

the interest of the informant and the victim, application Exhibit-

72 was filed because Exhibit-65 was still pending for the decision

of the Court when the application was made by the informant /

victim to the State Government.

cwp379.22

24. Under such circumstance, taking into consideration the

original file from the Law and Judiciary Department, we not find

that the decision by respondent No.1 to appoint respondent No.2

as Special Public Prosecutor suffers from mala fides. The order of

appointing respondent No.2 as a Special Public Prosecutor also

takes note that the State Government has considered the case of

massacre and the offence which raise serious questions, planned

murders committed with common intention and it arrived to the

conclusion that these points were involved in the facts of the

case. The entire charge-sheet was also considered and therefore,

the case was held to be of public interest as well as serious in

nature.

25. We, therefore, do not find any illegality in the impugned

Notification dated 30th September 2021 issued by respondent

No.1 appointing respondent No.2 as Special Public Prosecutor.

We also do not find any error or illegality in the order passed

below Exhibit-101 by the learned Additional Sessions Judge-2,

Newasa on 11th February 2022 in Sessions Case No.12 of 2020.

There is no merit in the writ petition and it deserves to be

rejected.

cwp379.22

26. Accordingly, the Writ Petition stands rejected. Rule stands

discharged.

27. Criminal Application No.1086 of 2022, for intervention,

stands allowed and disposed of.

 [ABHAY S. WAGHWASE]                [SMT. VIBHA KANKANWADI]
     JUDGE                                    JUDGE

 asb/JAN23