R. Sreedharan Nair vs State Of Kerala Represented By
2021 Latest Caselaw 5357 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

              THE HONOURABLE MR.JUSTICE N.NAGARESH

  MONDAY, THE 15TH DAY OF FEBRUARY 2021/26TH MAGHA,1942

                    WP(C).No.4993 OF 2015(Y)


PETITIONER:

              R. SREEDHARAN NAIR, AGED 65,
              S/O.RAGHAVAN PILLAI, MALLELIL HOUSE,
              KONNI - THAZHAM VILLAGE, KONNI TALUK,
              PATHANAMTHITTA - 699 696.

              BY ADVS.
              SRI.B.RAMAN PILLAI (SR.)
              SRI.R.ANIL
              SRI.T.ANIL KUMAR
              SRI.MANU TOM
              SRI.M.SUNILKUMAR
              SRI.SUJESH MENON V.B.
              SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
              SRI.M.VIVEK

RESPONDENTS:

     1        STATE OF KERALA REPRESENTED BY
              THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT,
              HOME & VIGILANCE DEPARTMENT,
              GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
              THIRUVANANTHAPURAM - 695 001.

     2        THE ADDITIONAL CHIEF SECRETARY TO
              GOVERNMENT, HOME & VIGILANCE DEPARTMENT,
              GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
              THIRUVANANTHAPURAM - 695 001.

              BY SENIOR GOVERNMENT PLEADER SRI. SUMAN CHAKRAVARTHY
              FOR DIRECTOR GENERAL OF PROSECUTION

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 15.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) No.4993/2015
                                  :2 :




                          JUDGMENT

~~~~~~~~~

Dated this the 15th day of February, 2021

The petitioner has approached this Court seeking

to quash Ext.P10 and to direct respondents 1 and 2 to appoint

any Advocate from among those mentioned in Ext.P7

representation of the petitioner or any other eligible,

independent, impartial and competent Advocate as the

Special Public Prosecutor in CC No.400/2013 before the

Judicial First Class Magistrate's Court-II, Pathanamthitta.

2. The petitioner states that he filed C.M.P.

No.4754/2013 against one Saritha S. Nair and K.R. Biju for

offences punishable under Section 420 read with Section 34

IPC. The Magistrate, invoking Section 156(3) Cr.P.C.,

directed the Station House Officer, Konny Police Station to

register crime and investigate the matter. A crime was

registered as Crime No.656/2013 in Ranni Police Station. WP(C) No.4993/2015

3. The petitioner contends that the accused persons

dishonestly and fraudulently induced him to part with

₹40 lakhs upon the promise made by the accused persons

that a 3 Mega Watt Solar Power Plant would be installed by

the Company of the accused at 10 Acres of land at Kinfra

Park, Palakkad District for an amount of ₹39.75 Crores. The

petitioner was required to invest ₹5 Crores and the balance

amount was to be availed as bank loan and subsidy from the

Central and State Governments.

4. A Special Investigation Team was constituted to

investigate into the crimes allegedly committed by the

accused. The Special Investigation Team laid final report

against the three accused and cognizance was taken by the

JFCM-II, Pathanamthitta, as CC No.400/2013. The petitioner

would contend that since the accused persons are rich,

powerful and influential, they would, by employing any means,

thwart the trial. Therefore, the petitioner made a request to

the respondents seeking to appoint Advocate Soni P. Bhaskar

as the Special Public Prosecutor to conduct the case of the WP(C) No.4993/2015

petitioner. The request was forwarded to the District

Magistrate, Pathanamthitta. The District Magistrate forwarded

the request along with the willingness of the said Advocate.

However, the 2nd respondent rejected the request for

appointment of Special Public Prosecutor on 30.07.2014.

5. As the petitioner's request for appointment of

Special Public Prosecutor was rejected, the petitioner

approached this Court filing W.P.(C) No.24562/2014. This

Court found that the Government have not verified the fact

whether there exists any public interest or not. This Court set

aside the impugned order and directed the 2nd respondent to

take appropriate decision in the matter in the light of Section

24(8) and also adverting to the decision of this Court in

Yousuf K.M. v. State of Kerala and others [2014 (3) ILR

740].

6. The petitioner thereupon submitted Ext.P7

representation to the 2nd respondent. In Ext.P7

representation, the petitioner pointed out the reasons based

on which he is seeking appointment of a Special Public WP(C) No.4993/2015

Prosecutor. However, in spite of the genuine reasons raised

by the petitioner, his request was rejected by the 2nd

respondent as per Ext.P10 order dated 23.01.2015. It is

aggrieved by Ext.P10 order that the petitioner is before this

Court.

7. The learned counsel for the petitioner would argue

that there is a total non-application of mind in passing Ext.P10

order. The petitioner had submitted Ext.P7 representation

which was received and acknowledged by the 2nd respondent.

However, the 2nd respondent did not consider Ext.P7

representation at all. Ext.P10 has been passed without

considering vital and relevant facts and materials.

8. Relying on the judgment in Mukal Dalal and

others v. Union of India and others [(1988) 3 SCC 144], the

learned counsel for the petitioner contended that there may be

instances where a case instituted on a private complaint is

really a public cause. In such a case, the prosecution though

initiated by a private individual is really one which should be

taken over by the State. The learned counsel for the WP(C) No.4993/2015

petitioner would argue that the request for appointment of

Special Public Prosecutor has been rejected on the ground

that the case is arising out of a private complaint and it is a

personal dispute. Ext.P10 is not liable to be sustained in view

of the judgment of the Apex Court in Mukal Dalal and others

(Supra), contended the counsel for the petitioner.

9. The learned Senior Government Pleader opposed

the writ petition and argued that the petitioner cannot as of

right, insist that a Special Public Prosecutor should be

appointed in the case. The reliance placed by the petitioner

on paragraph 3(b)(vii) of Ext.P9 Circular is unsustainable.

Clause (vii) states that only cases investigated by Special

Investigation Team constituted by Government under Section

21(2)(b) of the Kerala Police Act, 2011 and committed in an

extremely brutal and dastardly manner due to political or

communal vengeance so as to arouse intense indignation of

the community will merit appointment of Special Public

Prosecutor. The present case is not of such a nature.

Though investigation is made by a Special Investigation WP(C) No.4993/2015

Team, basically it is a dispute between two private individuals.

Therefore, in view of the advice of the Director General of

Prosecutions, the request of the petitioner was rejected. The

learned Senior Government Pleader submitted that

subsequent to Ext.P9, new Guidelines have been issued in

the matter of appointment of Special Public Prosecutors.

10. Heard learned counsel for the petitioner and

learned Senior Government Pleader appearing for the

respondents.

11. A perusal of Ext.P10 would show that the 2nd

respondent has not adverted properly to the grounds urged by

the petitioner in Ext.P7 representation filed by the petitioner. It

is seen that in paragraph 9 of Ext.P10, the 2nd respondent

found that the offences alleged are "simple cheating by two

persons in connection with a private deal between the

complainant and the accused" and this can only be treated as

a private transaction. The 2nd respondent further observed

that there is no public money involved and no other victims

involved in the case. According to the 2nd respondent, even WP(C) No.4993/2015

according to the petitioner, he has no such case that interest

of public at large is involved in the case. It is on these

premises that the representation of the petitioner for

appointment of Special Public Prosecutor was denied.

12. It is to be noted that on the complaint filed by the

petitioner and on the complaints filed by a large number of

citizens who were allegedly cheated, the Government have

constituted Justice Sivarajan Commission of Inquiry in the

matter invoking the Commission of Inquiry Act, 1952. An

inquiry under Act, 1952 is ordered only when the appropriate

Government is of the opinion that the issue involves a definite

matter of public importance. The constitution of Special

Investigation Team and appointment of a Commission of

Inquiry by the authorities are sufficient to show that the issue

involved is of public importance. Therefore, it is evident that

the 2nd respondent has not considered the request of the

petitioner in the proper perspective.

13. In the aforesaid facts of the case, this Court is of

the opinion that the request of the petitioner for appointment of WP(C) No.4993/2015

Special Public Prosecutor is liable to be reconsidered.

14. Accordingly, Ext.P10 order of the 2nd respondent is

set aside. The 2nd respondent is directed to reconsider the

issue taking into account the facts and reasons narrated by

the petitioner in Ext.P7 representation and in the light of

Ext.P9 and subsequent Government Circulars, governing

appointment of Special Public Prosecutors. A decision in this

regard shall be taken within a period of three weeks. The

petitioner shall produce a certified copy of this judgment

before the competent authority, for prompt compliance.

Writ petition is disposed of as above.

Sd/-

N. NAGARESH, JUDGE

aks/15.02.2021 WP(C) No.4993/2015

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE REPRESENTATION OF THE PETITION DATED 19/03/2014 TO THE 2ND RESPONDENT FOR THE APPOINTMENT OF SPECIAL PUBLIC PROSECUTOR.

EXHIBIT P2 THE TRUE COPY OF THE COMMUNICATION OF THE DISTRICT COLLECTOR, PATHANAMTHITTA NUMBER S2-18238/14 (1) DATED 17/06/2014.

EXHIBIT P3 THE TRUE COPY OF THE STATEMENT OF THE PETITIONER BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE, RANNI DATED 06/07/2013.

EXHIBIT P4 THE TRUE COPY OF THE COMMUNICATION OF THE PETITIONER DATED 05/06/2014.

EXHIBIT P4(a) THE TRUE COPY OF THE AFFIDAVIT OF THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P5 THE TRUE COPY OF THE LETTER NO.

32169/C4/2014/HOME DATED 30/07/2014 OF THE 2ND RESPONDENT.

EXHIBIT P6 THE TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WRIT PETITION NO. 24562 OF 2014 DATED 09/12/2014.

EXHIBIT P7 THE TRUE COPY OF THE PETITIONER'S REPRESENTATION DATED 23/12/2014 TO THE 2ND RESPONDENT.

EXHIBIT P8 THE TRUE COPY OF THE COMMUNICATION NO.

85061/C4/2014/HOME DATED 01/01/2015 FROM THE 2ND RESPONDENT.

EXHIBIT P9 THE TRUE COPY OF THE CIRCULAR NO.

95313/C4/2014 HOME DATED 29/11/2014.

EXHIBIT P10          THE    TRUE    COPY    OF   THE    GO(RT)
                     NO.170/2015/HOME DATED 23/01/2015.
 WP(C) No.4993/2015





EXHIBIT P11          THE   TRUE    COPY  OF THE    ORDER DATED
                     07.11.2014    OF THE SOLAR   SCAM INQUIRY
                     COMMISSION

RESPONDENTS' EXHIBITS
EXHIBIT R1(a)        TRUE COPY OF THE TERMS OF REFERENCE OF THE

JUDICIAL COMMISSION FORMED TO INVESTIGATE THE SOLAR CASES.

EXHIBIT R1(b) TRUE COPY OF THE FIR IN CRIME NO.656/2013 OF KONNI POLICE STATION, PATHANAMTHITTA AND THE COMPLAINT REGISTERED BY THE PETITIONER.

EXHIBIT R1(c)        TRUE COPY OF THE WRIT PETITION NO.WP(C)
                     24562/2014  FILED  BY  THE    PETITIONER
                     EARLIER.

ncd