Abdul Kareem K.A vs State Of Kerala
2021 Latest Caselaw 4844 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MR. JUSTICE P.SOMARAJAN

    WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

                       WP(C).No.5610 OF 2018(A)


PETITIONER:

               ABDUL KAREEM K.A.,
               MANAGING PARTNER,
               RAJADHANI GOLD SUPER MARKET,
               KANHANGAD P.O., KASARGOD DISTRICT

               BY ADVS.SRI.T.K.VIPINDAS
                       SRI.K.M.MUHAMMED HUSSAIN

RESPONDENTS:

      1        STATE OF KERALA,
               REPRESENTED BY THE SECRETARY,
               HOME (C) DEPARTMENT,
               GOVERNMENT OF KERALA, THIRUVANANTHAPURAM

      2        THE SECRETARY, HOME (C) DEPARTMENT,
               GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.

      3        THE STATE POLICE CHIEF,
               POLICE HEAD QUARTERS, THIRUVANANTHAPURAM

      4        THE DISTRICT POLICE CHIEF,
               KASARGOD DISTRICT

               BY PUBLIC PROSECUTOR SRI. M.R.DHANIL



     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD        ON
10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.5610 of 2018                  2




                                     JUDGMENT

The matter came up for hearing after remand by the

Division Bench of this Court.

2. During the course of argument, Ext.P6 Circular

was brought to the notice of this Court, wherein a

revised guideline was formulated. Highly sensational

cases, which generates extensive public interest of

such magnitude as to necessitate appointment of a more

competent person having good standing in the profession

of Advocacy and inadequacy to handle the same by the

appointed Public Prosecutor, was taken as the basic

requirement for appointing a Special Public Prosecutor

by specifying certain categories of cases, in which a

Special Public Prosecutor can ordinarily be appointed.

The principle is that it shall not be used to vindicate

the grievances of a private person, but only when

public interest demands.

3. The factual scenario of the instant case would

prima facie show the extent of allegation regarding

theft and misappropriation of gold ornaments weighing

15.85 kg. and an amount of Rs.64,000/-, out of which

6.4 kg. alone were recovered from various places, where

it was pledged for a total amount of Rs. 1,15,00,000/-

(Rupees One Crore Fifteen Lakhs). The nature of

allegation, if proved would be a big threat to the

entire society, especially to the persons doing the

business of gold ornaments. The offence of theft by

its nature, when it involves large quantity of gold and

currency kept in a business place, would be a big

menace to the society. Primarily, it is the duty of

the government to give ample protection to the assets

of each and every citizen. The machinery who is bound

to provide ample protection to the assets from any

theft or pilferage failed in their duty, which would

certainly cast a liability on the State Government to

prosecute the culprit properly so as to advance

justice, for which, the assistance of a competent

person having sufficient expertise in the field cannot

be avoided. Hence it is fit and proper, even going by

the Circular referred above, to appoint a Special

Prosecutor.

4. The learned counsel for the petitioner fairly

conceded that the petitioner is prepared to meet the

expenditure in that behalf, by relying on the legal

proposition settled in Mallikarjan Kodagali (Dead)

represented through Legal Representative v. State of

Karnataka and Others [( 2019) 2 SCC 752].

The writ petition is allowed in the following

lines:

(i) Ext.P5 order issued by the State

Government is hereby set aside.

(ii)Adv.Sri.K.Prabhakaran Roll No.K/243/1985

shall be appointed as the Special Prosecutor

to conduct the trial in C.C.No.1264/2011 of

JFCM I, Hosdurg in terms of the Kerala Law

Officers (Appointment and Condition of

Service and Conduct of Case) Rules, without

any financial obligation/burden on the State

Government.

(iii) The petitioner shall deposit the

entire remuneration that may be fixed by

the Home Department to the Special

Prosecutor within thirty days from the date

of its fixation.

(iv) The Home Department shall fix the

remuneration in consultation with the

Special Prosecutor Sri.K.Prabhakaran and the

petitioner within two weeks from the date of

receipt of a copy of this judgment.

Sd/-

                                               P.SOMARAJAN

DMR/-                                             JUDGE




                                 APPENDIX
PETITIONER'S EXHIBITS:

EXHIBIT P1:               TRUE COPY OF THE ORDER DATED 02/12/2013 IN
                          THE CRIMINAL MC 4701/2013

EXHIBIT P2:               TRUE COPY OF THE ORDER DATED 01/06/2017 IN
                          CRIMINAL MC 1443/2017

EXHIBIT P3:               TRUE COPY OF THE APPLICATION DATED

07/10/2017 BEFORE THE GOVERNMENT

EXHIBIT P4: TRUE COPY OF THE REPRESENTATION ALONG WITH THE FORWARDING LETTER DATED 07/10/2017

EXHIBIT P5: TRUE COPY OF THE COMMUNICATION DATED 03/01/2018 ISSUED BY THE 2ND RESPONDENT

EXHIBIT P6: TRUE COPY OF THE CIRCULAR DATED 18/09/2017 OF HOME DEPARTMENT

EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 22/11/2016 IN C.C NO.123/2016 CHIEF JUDICIAL MAGISTRATE, KASARAGOD

EXHIBIT P8 TRUE COPY OF THE FINAL REPORT IN CRIME NO.402/2010 OF HOSDURG POLICE STATION

EXHIBIT P9 TRUE COPY OF THE MEMO OF EVIDENCE IN CRIME NO.402/2010 OF HOSDURG POLICE STATION.

RESPONDENTS' EXHIBIT:      NIL


                                                 // TRUE COPY   //



                                                  P.A. TO JUDGE