K. Anbazhagan Vs. State of Karnataka and Ors. [15th April, 2015]
2015 Latest Caselaw 300 SC

K. Anbazhagan Vs. State of Karnataka and Ors.

[Criminal Appeal No.637 of 2015 arising out of S.L.P. (CRL.) No.1632 of 2015]

K. Anbazhagan Vs. Selvi J. Jayalalitha and ANR.

[Criminal Appeal No.638 of 2015 arising out of S.L.P. (CRL.) No.2013 of 2015]

Madan B. Lokur, J.

1. Leave granted.

2. The question for consideration is whether Mr. G. Bhavani Singh appointed as a Special Public Prosecutor in the trial of the case against Ms. Jayalalithaa and other accused persons in the Special Court in Bengaluru was entitled to represent the prosecution in the appeals filed in the Karnataka High Court by the accused persons against their conviction.

3. My answer to this question is in the negative on an appreciation of earlier directions given by this court, on a reading of the notification appointing Mr. Bhavani Singh as a Special Public Prosecutor and on an interpretation of Sections 24, 25, 25-A and 301(1) of the Code of Criminal Procedure, 1973. The result is that the hearing of the appeals in the High Court stands vitiated, since the prosecution was not represented by an authorized person. The appeals will have to be heard afresh by the High Court with the prosecution represented by a Public Prosecutor appointed under Section 24(1) of the Criminal Procedure Code, 1973 or a Special Public Prosecutor appointed by the State of Karnataka under Section 24(8) of the said Code.

4. Before adverting to the facts of the case, it needs mention that this case is a classic illustration of what is wrong with our criminal justice delivery system. If the allegations made by Mr. K. Anbazhagan[1] are true that the accused persons used their power and influence to manipulate and subvert the criminal justice system for more than 15 years thereby delaying the conclusion of the trial against them, then it is a reflection on the role that power and influence can play in criminal justice delivery.

However, if the allegations made by him are not true, even then it is extremely unfortunate that a criminal trial should take more than 15 years to conclude. Whichever way one looks at the unacceptable delay, it is the criminal justice delivery system that comes out the loser. Something drastic needs to be done to remedy the system, if not completely overhaul it, and as this case graphically illustrates, the time starts NOW.

Background facts

5. The background facts relating to the appeals have been pithily stated in K. Anbazhagan v. Superintendent of Police[2] and the relevant facts are paraphrased for the purposes of this decision.

6. From 1991 to 1996, Ms. J. Jayalalithaa was the duly elected Chief Minister of Tamil Nadu. A political party called the AIADMK headed by her was defeated in the general elections held in 1996 and another political party, the DMK, was voted in with a majority. On the basis of allegations of amassing assets disproportionate to their known sources of income, criminal proceedings were initiated against Ms. Jayalalithaa and her associates. Special Courts were constituted by the new government for the trial of the cases filed against Ms. J. Jayalalithaa, Ms. S. Sasikala, Mr.V.N. Sudhakaran and Ms. J. Elavarasi. The constitution of the Special Courts was upheld by this court.[3]

7. In 1997, CC No. 7 of 1997 was filed before the Principal Special Judge, Chennai for the trial of Ms. J. Jayalalithaa, Ms. S. Sasikala, Mr. V.N. Sudhakaran and Ms. J. Elavarasi, who were charge-sheeted for offences under Section 120-B of the Indian Penal Code, Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 for alleged accumulation of wealth of Rs 66.65 crores, disproportionate to their known sources of income.

8. The trial of CC No. 7 of 1997 progressed before the Special Judge and by August 2000, as many as 250 prosecution witnesses were examined. In the general elections held in May 2001, the AIADMK headed by Ms. Jayalalithaa secured a majority of votes in the elections and therefore a majority of seats in the Legislative Assembly. She was chosen as the leader of the House by the AIADMK and appointed as the Chief Minister of Tamil Nadu. Her appointment as Chief Minister was challenged soon thereafter and this court declared that her appointment was not legal or valid.[4] Consequently, on 21st September, 2001 she ceased to hold the office of Chief Minister of Tamil Nadu.

9. Sometime in January-February, 2002 the Election Commission of India announced a bye-election to the Andipatti Constituency. In the bye-election held on 21st February, 2002 Ms. Jayalalithaa was declared elected and she was sworn in as the Chief Minister of Tamil Nadu on 2nd March, 2002. With the change in government, it appears that three Public Prosecutors connected with CC No. 7 of 1997 resigned; a Senior Advocate appearing for the State also resigned as also the Investigating Officer. It appears that due to these resignations, and perhaps for other reasons, the trial did not proceed. Eventually, on 7th November, 2002 the trial in CC No. 7 of 1997 resumed.

10. On the resumption of the trial, as many as 76 PWs were recalled for cross-examination on the ground that counsel appearing for the accused or some of them had earlier been busy in some other case filed against them. It seems that the Public Prosecutor did not object to the witnesses being recalled or gave his consent for their recall. Out of a total 76 PWs, as many as 64 PWs resiled from their previous statement-in-chief.

It also appears that the Public Prosecutor made no attempt to declare them hostile and/or to cross-examine them by resorting to Section 154 of the Indian Evidence Act. It also appears that no attempt was made to see that the court takes action against the witnesses for perjury. Furthermore, it seems that the presence of Ms. Jayalalithaa was dispensed with during her examination under Section 313 of the Code of Criminal Procedure Code, 1973 (for short 'the Code') and instead a questionnaire was sent to her and her reply to the questionnaire was sent to the court in absentia. Apparently, the Public Prosecutor did not object to Ms. Jayalalithaa's application for dispensing with her presence at the time of examination under Section 313 of the Code.

11. In these circumstances, the appellant, Mr. Anbazhagan moved transfer petitions in this court under Section 406 of the Code seeking transfer of CC No.7 of 1997 and CC No. 2 of 2001 pending in the Court of the XIth Additional Sessions Judge (Special Court No.1), Chennai to a court of equivalent competent jurisdiction in any other State.[5]

12. The transfer petitions were allowed by this court by its judgment and order dated 18th November, 2003 and the decision of this court is reported as K. Anbazhagan v. Superintendent of Police.[6]

13. While it is not necessary to go into great detail into the reasons why this court transferred the cases, it is nevertheless necessary to mention that this court observed that Mr. Anbazhagan had made out a case that confidence in the fairness of the trial was being seriously undermined by the manner in which the prosecution was being conducted.

It was observed that the Public Prosecutor was hand in glove with the accused thereby creating a reasonable apprehension of likelihood of failure of justice and there was a strong indication that the process of justice was being subverted. Accordingly, this court transferred the prosecution being CC No.7 of 1997 and CC No. 2 of 2001 pending in the court of the XIth Additional Sessions Judge (Special Court No.1) Chennai from Tamil Nadu to Karnataka with the following directions given in paragraph 34 of the Report:

(a) The State of Karnataka in consultation with the Chief Justice of the High Court of Karnataka shall constitute a Special Court under the Prevention of Corruption Act, 1988 to whom CC No. 7 of 1997 and CC [pic]No. 2 of 2001 pending on the file of the XIth Additional Sessions Judge (Special Court No.1), Chennai in the State of Tamil Nadu shall stand transferred. The Special Court to have its sitting in Bangalore.

(b) As the matter is pending since 1997 the State of Karnataka shall appoint a Special Judge within a month from the date of receipt of this order and the trial before the Special Judge shall commence as soon as possible and will then proceed from day to day till completion.

(c) The State of Karnataka in consultation with the Chief Justice of the High Court of Karnataka shall appoint a senior lawyer having experience in criminal trials as Public Prosecutor to conduct these cases. The Public Prosecutor so appointed shall be entitled to assistance of another lawyer of his choice. The fees and all other expenses of the Public Prosecutor and the Assistant shall be paid by the State of Karnataka who will thereafter be entitled to get the same reimbursed from the State of Tamil Nadu. The Public Prosecutor to be appointed within six weeks from today.

(d) The investigating agency is directed to render all assistance to the Public Prosecutor and his Assistant.

(e) The Special Judge so appointed to proceed with the cases from such stage as he deems fit and proper and in accordance with law.

(f) The Public Prosecutor will be at liberty to apply that the witnesses who have been recalled and cross-examined by the accused and who have resiled from their previous statement, may be again recalled. The Public Prosecutor would be at liberty to apply to the court to have these witnesses declared hostile and to seek permission to cross-examine them. Any such application if made to the Special Court shall be allowed. The Public Prosecutor will also be at liberty to apply that action in perjury to be taken against some or all such witnesses. Any such application(s) will be undoubtedly considered on its merit(s).

(g) The State of Tamil Nadu shall ensure that all documents and records are forthwith transferred to the Special Court on its constitution. The State of Tamil Nadu shall also ensure that the witnesses are produced before the Special Court whenever they are required to attend that court.

(h) In case any witness asks for protection, the State of Karnataka shall provide protection to that witness.

(i) The Special Judge shall after completion of evidence put to all the accused all relevant evidence and documents appearing against them whilst recording their statement under Section 313. All the accused shall personally appear in court, on the day they are called upon to do so, for answering questions under Section 313 of the Criminal Procedure Code .

14. The directions that are of primary concern are directions (a), (b) and (c). They are to the effect that the State of Karnataka should constitute a Special Court to try the transferred cases in Bangalore (now Bengaluru); that a Special Judge be appointed to the Special Court to try the transferred cases on a day to day basis; that the State of Karnataka should, in consultation with the Chief Justice of the Karnataka High Court, appoint a senior lawyer having experience in criminal trials as a Public Prosecutor to conduct the transferred cases against the accused persons.

15. Pursuant to the directions given by this court, the State of Karnataka, in consultation with the Chief Justice of the High Court of Karnataka appointed Mr. B.V. Acharya as a Public Prosecutor to conduct the case against the accused persons. The order dated 19th February, 2005 assigning the case to Mr. B.V. Acharya as a Public Prosecutor reads as follows:

NOTIFICATION:

In obedience of the judgment dated 18.11.2003 passed by the Supreme Court of India in Transfer Petition (Criminal) Nos.77-78/2003 in the matter of K. Anbazhagan vs. The Superintendent of Police and others and in exercise of the powers conferred by sub-section (8) of Section 24 of the Code of Criminal Procedure , 1973 (Central Act No.2 of 1974) as amended by the Code of Criminal Procedure (Amendment) Act 1978 and Rule 30 of the Karnataka Law Officers (Appointment and Conditions of Service) Rules 1977 Sri B.V. Acharya, Senior Advocate and former Advocate General of Karnataka, No.42, 5th Main, Jayamahal Extension, Bangalore - 560041, is appointed as Public Prosecutor to conduct C.C. No.7/1997 and C.C. No.2/2001 pending on the file of the XIth Additional Sessions Judge, (Special Court No.1), Chennai, regarding trial of Ms. Jayalalitha and others in the State of Karnataka and now transferred to the XXXVI Additional City Civil and Sessions Judge in pursuance.

By Order and in the name of the Governor of Karnataka.

Sd/-

(Chikkahanumanthaiah)

Under Secretary to Government,

(Administration-1) Law Department

16. For reasons that are not necessary to detail, Mr. Acharya resigned as the Public Prosecutor and in his place the State of Karnataka appointed Mr. G. Bhavani Singh as a Special Public Prosecutor by a notification dated 2nd February, 2013. The order appointing Mr. Bhavani Singh as a Special Public Prosecutor was issued in exercise of powers conferred by Section 24(8) of the Code[7] and Rule 30 of the Karnataka Law Officers (Appointment and Conditions of Service) Rules, 1977.[8] The notification appointing Mr. Bhavani Singh reads as follows:-

NOTIFICATION

In obedience to the judgment dated 18-11-2003 passed by the Hon'ble Supreme Court of India in Transfer Petition No.77-78/2003 (Criminal) in the matter of K. Anbazhagan v. The Superintendent of Police and others and in exercise of the powers conferred by Sub-section (8) of Section 24 of the Code of Criminal Procedure , 1973 (Central Act No.2 of 1974) as amended by the Code of Criminal Procedure (Amendment Act 1978) and Rule 30 of the Karnataka Law Officers (Appointment and Conditions of Service) Rules, 1977 Sri G. Bhavani Singh, Senior Advocate, House No.746, Srinidhi, Kadugodi, White Field Railway Station, Bangalore-560067, is appointed as Special Public Prosecutor in place of Sh. B.V. Acharya on same terms to conduct Special C.C. No.208/2004 (in the case of Kum. Jayalalitha and others) pend on the file of XXXVIth Additional City Civil & Sessions Court (Special Court), Bangalore in pursuance.

Further, Sri Sandesh J. Chouta, Advocate, is continued to assist Sh. G. Bhavani Singh, Special Public Prosecutor, in this case.

By order and in the name of the Governor of Karnataka.

(K. Narayana)

Deputy Secretary to Government (Admn-I)

Law, Justice and Human Rights Department.

17. During the trial of Special CC No. 208 of 2004[9] before the Special Court, Bangalore, an application was moved by Mr. Anbazhagan on 13th August, 2013 under Section 301(2) of the Code requesting for permission to assist the Special Public Prosecutor by making oral submissions on the merits of the case.[10] The application was partly allowed by the Special Court by an order dated 21st August, 2013 and Mr. Anbazhagan was permitted to file a Memo of Arguments and to render such assistance to the Special Public Prosecutor as he may require. At a later date on 19th May, 2014 Mr. Anbazhagan filed elaborate written submissions running into about 430 pages.

18. Mr. Anbazhagan had separately objected to the appointment of Mr. Bhavani Singh as the Special Public Prosecutor in representations to the Government of Karnataka and to the Chief Justice of the High Court of Karnataka, along with a request to remove him (Mr. Bhavani Singh) as the Special Public Prosecutor in the trial against the accused persons in view of some allegations against him.

19. Since Mr. Anbazhagan did not receive any positive response, he filed W.P. No. 38075 of 2013 in the High Court of Karnataka on 23rd August, 2013 challenging the appointment of Mr. Bhavani Singh as the Special Public Prosecutor and also praying that some other eminent lawyer may be appointed in his place.[11]

20. During the pendency of W.P. No. 38075 of 2013, by a notification issued on 26th August, 2013 the appointment of Mr. Bhavani Singh as the Special Public Prosecutor was withdrawn by Karnataka. The ostensible reason was that there was no proper consultation with the Chief Justice of the Karnataka High Court when Mr. Bhavani Singh was appointed as the Special Public Prosecutor.

21. Aggrieved by the withdrawal of Mr. Bhavani Singh's appointment as the Special Public Prosecutor, the accused persons filed a writ petition in this court being W.P. (Crl.) No.145 of 2013. Upon notice being issued to the State of Karnataka, the learned Attorney General appeared for Karnataka and informed this court on 6th September, 2013 that the impugned notification dated 26th August, 2013 would be withdrawn with a view to consult the Chief Justice of the Karnataka High Court. Consequently, the writ petition was dismissed as having become infructuous.

22. Soon thereafter, several developments occurred in quick succession. On 10th September, 2013 the State of Karnataka withdrew the notification dated 26th August, 2013 and by a letter of the same date requested Mr. Bhavani Singh not to appear before the Special Court. This led the accused persons to file W.P. (Crl.) No. 154 of 2013 in this court challenging the notification and the letter, both dated 10th September, 2013. This court issued notice in the writ petition, returnable in ten days and also passed an interim order staying the operation of the letter dated 10th September, 2013.

23. The State of Karnataka then consulted the Chief Justice of the Karnataka High Court regarding the appointment of Mr. Bhavani Singh as the Special Public Prosecutor. On 14th September, 2013 the Chief Justice of the Karnataka High Court concurred with the view of the State of Karnataka that Mr. Bhavani Singh should no longer continue as the Special Public Prosecutor before the Special Court. On 16th September, 2013 a consequential order was passed by Karnataka withdrawing the appointment of Mr. Bhavani Singh as the Special Public Prosecutor.

24. These developments led the accused persons to file W.P. (Crl.) No.166 of 2013 in this court challenging the orders dated 14th and 16th September, 2013.

25. Both the writ petitions, that is, W.P. (Crl.) Nos.154 and 166 of 2013 were heard together by this court and by a judgment and order dated 30th September, 2013 both the writ petitions were disposed of and it was held that the order removing Mr. Bhavani Singh as the Special Public Prosecutor is mala fide and not sustainable in the eyes of the law and was accordingly quashed. The decision of this court is reported as J. Jayalalithaa v. State of Karnataka.[12]

26. The trial thereafter continued before the Special Court, though with some hiccups (major and minor), with which we are not directly concerned.

27. In any event, on 27th September, 2014 the Special Court delivered judgment convicting all the accused persons including Ms. Jayalalithaa. Among the materials considered by the Special Court were the elaborate written submissions given by Mr. Anbazhagan to the Special Court on 19th May, 2014.

28. At this stage, it is necessary to make a digression for understanding the issues raised in these appeals.

29. The prosecution against Ms. Jayalalithaa and others was at the instance of the State of Tamil Nadu but after the prosecution was transferred to Karnataka, and in terms of the decision of this Court rendered in Anbazhagan[13] particularly paragraph 34(c) thereof, Tamil Nadu had no further say in matters relating to the Public Prosecutor or the Special Public Prosecutor (apart from the payment of his fees etc.). It was for Karnataka to appoint the Public Prosecutor, who was to be a senior lawyer having experience in criminal trials;

the appointment was to be made in consultation with the Chief Justice of the High Court of Karnataka; the Public Prosecutor could be an appointee from within Karnataka or outside the State; the Public Prosecutor was entitled to the assistance of another lawyer of his choice who could also be from Karnataka or outside the State; all expenses and fees payable to the Public Prosecutor and his assisting lawyer were to be paid by Karnataka and that was to be reimbursed by Tamil Nadu.

It is under these circumstances that Karnataka virtually stepped into the shoes of the State of Tamil Nadu and thereby became directly involved and concerned, at least in so far as the prosecution of the accused persons is concerned in Special CC No. 208 of 2004.

30. It is not that by issuing the directions contained in paragraph 34(c) above, this court adopted a procedure that was without precedent. In Jayendra Saraswati Swamigal v. State of Tamil Nadu[14]

it was held:

"Once the case is transferred as per Section 406 CrPC to another State, the transferor State no longer has control over the prosecution to be conducted in a court situated in a different State to which the case has been transferred.

It is the prerogative of the State Government to appoint a Public Prosecutor to conduct the case which is pending in the sessions division of that State."[15] It was further held: "Of course, this Court while passing order of transfer, can give an appropriate direction as to which State should appoint the Public Prosecutor to conduct that particular case. Such orders are passed having regard to the circumstances of the case and the grounds on which the transfer has been effected.

This Court can certainly give directions irrespective of the provisions contained in Section 24 CrPC . But so far as this case is concerned, nothing had been stated in the order of the transfer. The provisions contained [pic]in Section 24 CrPC shall prevail and it is for the appropriate State Government within whose area the trial is conducted to appoint Public Prosecutor under sub-sections (3) to (7) of Section 24 CrPC ."[16]

31. It is in these circumstances that Karnataka first appointed Mr. B.V. Acharya as the Public Prosecutor and then Mr. Bhavani Singh as the Special Public Prosecutor to conduct the trial against the accused persons.

32. Finally, this court also held: "The purpose of transfer of the criminal case from one State to another is to ensure fair trial to the accused."[17]

33. I dare say that the facts of these appeals clearly suggest that not only should the trial be fair to the accused persons but also that the trial should be fair to the prosecution also.

34. It was then clarified by this court: "However, we make it clear that the State of Pondicherry [the transferee State in this case] can appoint any counsel as Public Prosecutor having requisite qualifications as prescribed under sub-section (8) of Section 24 CrPC whether he is a lawyer in the State of Pondicherry or any other State."[18]

35. Feeling aggrieved by the conviction handed down by the Special Court, Ms. Jayalalithaa and the other accused persons filed Criminal Appeal Nos. 835-838 of 2014 before the Karnataka High Court on 29th September, 2014. Since Karnataka was not made a party in the criminal appeals, that State did not appoint any Public Prosecutor or any Special Public Prosecutor to contest the appeals, even though, as mentioned above, it had stepped into the shoes of Tamil Nadu, as it were.

36. On the other hand, Tamil Nadu acted with remarkable alacrity and on 29th September, 2014 the Principal Secretary to the Government of Tamil Nadu passed an order authorizing the Directorate of Vigilance and Anti- Corruption, Chennai to engage the services of Mr. Bhavani Singh, Special Public Prosecutor to appear before the High Court of Karnataka for and on behalf of the said Directorate in any appeal/bail petition, any other petition that may arise out of the conviction of the accused persons. The order passed by the Principal Secretary reads as follows:-

O R D E R

The Director, Vigilance and Anti-Corruption, Chennai, in the letter read above, has requested the Government that Thiru G. Bhavani Singh, Special Public Prosecutor, who has conducted the trial in Special C.C. No. 208/2004 before the Special Judge, 36th Additional City Civil & Sessions Court, Bengaluru, may be authorized to appear before the High Court of Karnataka, Bengaluru, on behalf of the Directorate of Vigilance and Anti-Corruption, Chennai in any Appeal/Bail petition/any other petition that may arise out of the order of the above Trial Court.

2. The Government after careful examination, have decided to authorize the Director, Vigilance and Anti-Corruption, Chennai to engage the services of Thiru G. Bhavani Singh, Special Public Prosecutor to appear before the Hon'ble Court of Karnataka, Bengaluru on behalf of the Directorate of Vigilance and Anti-Corruption, Chennai in any Appeal/Bail Petition/any other petition that may arise out the order dated 27-09-2014 on the above Trial Court in all hearings.

(By order of the Governor)

Jatindra Nath Swain

Principal Secretary to Government"

37. When the criminal appeals and the petitions for suspending the sentence filed by the accused persons came up for consideration before a learned Single Judge of the Karnataka High Court on 30th September, 2014 Mr. Bhavani Singh informed the court that he was appointed by the State Government (Tamil Nadu) to represent the prosecution but that he had not received any official communication in this regard.

38. The appeals again came up before a learned Single Judge on 1st October, 2014 for the purposes of grant or refusal of suspension of sentence of all the accused persons. On that date, Mr. Bhavani Singh filed his Memo of Appearance and a statement of objections opposing the release of the accused persons on bail. Thereafter, on 7th October, 2014 the learned Single Judge, after hearing submissions of the parties, declined to suspend the sentence awarded to the accused persons or to grant them bail.[19]

39. Feeling aggrieved, the accused persons filed a petition in this court challenging the refusal of bail by the learned Single Judge. In that petition being SLP (Crl.) No.7900 of 2014 bail was granted to Ms. Jayalalithaa and other accused persons by this court on 17th October, 2014. The grant of bail was confirmed by this court on 18th December, 2014 and it was directed that the criminal appeals pending in the Karnataka High Court be heard on a day to day basis so that they could be disposed of within three months. The order passed by this court reads as follows:-

ORDER

Pursuant to the directions issued by this Court dated 17.10.2014, the petitioners have been released on bail.

Petitioners have filed an affidavit dated 10.12.2014 to the effect that the entire records of the trial court has been filed before the High Court.

From the affidavit, it is clear that necessary records have been filed and the appeals are ripe for hearing. Keeping in view the peculiar facts of the case, we request the learned Chief Justice of High Court of Karnataka to constitute a Special Bench on the date of reopening of the High Court for hearing of the appeals exclusively on day-to-day basis and dispose of the same as early as possible at any rate within three months.

Bail granted by us earlier is extended by another four months from today.

Call these special leave petitions on 17.04.2015."

40. Thereafter, the criminal appeals came up for hearing o*n 2nd/5th January, 2015 in the Karnataka High Court before a learned Single Judge.

41. Earlier, Mr. Anbazhagan was of the view that Mr. Bhavani Singh was not entitled to represent the prosecution in the Karnataka High Court since his appointment as a Special Public Prosecutor stood terminated with the conclusion of the trial and the delivery of judgment by the Special Court. Moreover, he had not been appointed by Karnataka in consultation with the Chief Justice of the High Court to represent the prosecution in the appeals pending in the High Court.

Under these circumstances, Mr. Anbazhagan made a representation dated 24th December, 2014 to the Chief Secretary to the Government of Karnataka to immediately appoint a senior lawyer practicing in the Karnataka High Court as the Special Public Prosecutor to contest the appeals filed by the accused persons. However, since he received no response to his representation, he filed a writ petition in the Karnataka High Court being Writ Petition No. 742 of 2015 seeking a direction to the State of Karnataka to appoint any other senior lawyer as the Special Public Prosecutor in the pending criminal appeals being Criminal Appeal Nos. 835- 838 of 2014.

The present appeals arise out of the proceedings in Writ Petition No. 745 of 2015.

Decision in the writ petition

42. After hearing learned counsels for the parties, the learned Single Judge, by his judgment and order dated 19th January, 2015 disposed of W.P. No. 742 of 2015.[20] It was held that the directions issued by this court in Anbazhagan[21] were confined to the procedure to be followed in the trial. It was noted that "the very object of transferring the case to be prosecuted in the State of Karnataka by the State Government of Karnataka, by adopting the special procedure prescribed, was on the Supreme Court having lost confidence of a fair trial being conducted within the State of Tamil Nadu and in any organ of the Government of Tamil Nadu being involved."

It was also noted that "It is therefore a matter of formality for the Supreme Court to clarify as to the procedure in appointing a counsel and his assistant, if any, and in the conduct of further proceedings."

The writ petition was then disposed of with the following observations:

"To hazard a guess, the indication is that the proceedings in entirety, till the same attains finality, shall be taken to its logical conclusion by the State of Karnataka. In any event, since this court would not be competent to interpret or expound on what is not spelt out in the directions issued by the Supreme Court, in so far as the procedure to be followed in the manner or terms of appointment of Prosecution Counsel, post the judgment of the trial court, in the appeals now pending, it would be appropriate if the proceedings are allowed to continue notwithstanding the challenge as to the validity or otherwise of the appointment of respondent No. 5 [Mr. Bhavani Singh], as there is no discernible prejudice caused by his continuance as the Special Public Prosecutor for the time being.

This is especially so, when the proceedings are directed by the Honourable Supreme Court to be conducted on a day to day basis, before a Special Bench and with expedition. Hence, to pronounce on the validity of the disputed appointment and to hamper the proceedings would be counter productive and undesirable. It is open either for the State Government of Karnataka or the petitioner himself, to seek further clarifications from the Supreme Court as to the procedure that is to be followed in making appointment of a Special Public Prosecutor and an assistant or assistants, if any, to represent the State of Karnataka."

43. In this context, it is important to notice the stand taken by Karnataka before the learned Single Judge. It was submitted by the learned Advocate General for Karnataka that: "The learned Advocate General would concur that the directions issued by the Supreme Court do not specify as to the procedure that is to be followed in the appointment of a Public Prosecutor before this court in the pending appeals. However, if the objective of the Supreme Court is to be understood in its broadest sense, it would have to be taken that the State Government of Karnataka, is entrusted with the task of conducting the case at all stages, till it attains finality.

The learned Advocate General would however, submit that after the judgment was pronounced by the trial court, there has been no further consultation between the State Government of Karnataka and the Chief Justice of the High Court of Karnataka, as directed by the Supreme Court in making any appointment of a Special Public Prosecutor and there is no appointment order issued in favour of respondent No. 5, afresh; he would further submit that if it is a formality to be complied with, the State Government, in consultation with the Chief Justice, shall take further steps. Since the State Government is not formally authorized to take any steps in so far as the appointment of the prosecutor or counsel to conduct the appeals, no steps have been taken."

(emphasis supplied)

44. Feeling aggrieved by the judgment and order dated 19th January, 2015 a writ appeal was filed by Mr. Anbazhagan in the High Court being Writ Appeal No.260 of 2015. The State of Karnataka did not file any appeal against the judgment and order of the learned Single Judge but accepted it. The writ appeal filed by Mr. Anbazhagan was partly allowed by the Division Bench by its judgment and order dated 11th February, 2015.[22] This decision is under challenge in this court. Decision in the writ appeal

45. In the writ appeal, it was contended by Mr. Anbazhagan that it is for the transferee State (Karnataka) alone to prosecute the case in the Special Court and the appeals in the High Court. The transferor State (Tamil Nadu) has no effective role to play in the prosecution of the appeals. Since Mr. Bhavani Singh was not appointed by Karnataka to contest the appeals in the High Court, he was not entitled to appear on behalf of the prosecution and since Tamil Nadu had no role to play in the prosecution of the appeals, his appointment by Tamil Nadu was bad in law.

It was further submitted that the appointment of Mr. Bhavani Singh as a Special Public Prosecutor was confined only to the trial before the Special Court and that appointment came to an end on the conviction of the accused persons. Unless his appointment as a Special Public Prosecutor was notified by Karnataka for contesting the appeals in the High Court, Mr. Bhavani Singh could not enter appearance for the prosecution. For this additional reason also Mr. Bhavani Singh's appearance in the High Court in the pending appeals filed by the accused persons was unauthorized.

46. Karnataka appeared through its Advocate General and the submissions made are best expressed in the words of the Karnataka High Court in the judgment under appeal: "Sri Prof. Ravi Verma Kumar, learned Advocate General, appearing for the State of Karnataka submitted that in pursuance of the directions issued by the Hon'ble Supreme Court in consultation with the Hon'ble Chief Justice, the State of Karnataka appointed a Senior Counsel as the Public Prosecutor, who conducted the trial. When the said Senior Counsel pleaded his inability to continue to appear, they appointed the 5th respondent [Mr. Bhavani Singh] as the Public Prosecutor, who conducted the proceedings. Now the trial has ended in an order of conviction.

Accused have preferred the appeals before this Court. As earlier, the appointment was made in pursuance of the direction issued by the Hon'ble Supreme Court, their understanding is that the obligation to appoint was only during trial. With the trial coming to an end with the order of conviction, that obligation ceases. As there is no fresh direction issued by the Hon'ble Supreme Court to appoint a Special Public Prosecutor, they have not made any such appointment. Though the State has appointed a Public Prosecutor under Section 24(1) of the Code, in the absence of any direction from the Apex Court, the said Public Prosecutor is not appearing in the pending appeals before the High Court. As the matter is sub-judice, they have not taken any further action in this matter."[23]

(emphasis supplied)

47. Learned counsel appearing on behalf of Mr. Bhavani Singh relied upon Section 301(1) of the Code which he interpreted to mean that no fresh order or authorization was necessary to enable or entitle Mr. Bhavani Singh to appear in the criminal appeals pending in the High Court. It was also submitted that if Mr. Anbazhagan had any grievance with the order passed on 29th September, 2014 by the Principal Secretary to the Government of Tamil Nadu authorizing the Directorate of Vigilance and Anti-Corruption, Chennai to engage the services of Mr. Bhavani Singh, Special Public Prosecutor, then he should have challenged it. Since he has not challenged that order, it continues to remain operative.

48. The High Court discussed the case law on the subject of the role of the transferee State in a case such as the present and concluded: "From the aforesaid judgments, the law is fairly clear. In pursuance of the power conferred under Section 406 of the Code, if the Supreme Court were to transfer any particular case from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court, then the State from which the case is transferred loses control over the prosecution to be conducted in the transferee Court.

It is the transferee State which acquires jurisdiction to prosecute the said case. If the order of transfer passed by the Apex Court does not specify who should appoint the Public Prosecutor to conduct a particular case, then it is the transferee State which has to appoint a Public Prosecutor under Section 24 of the Code. If the order of transfer specifies who should appoint the Public Prosecutor, then appointment should be made in accordance with such direction."[24]

49. The High Court then concluded that the order passed on 29th September, 2014 by the Principal Secretary to the Government of Tamil Nadu was non est and was not required to be challenged. It was held: "Therefore, when a specific direction is issued by the Apex Court at the time of transferring the case, it is the transferee Court-State of Karnataka which shall appoint the Public Prosecutor. The State of Tamil Nadu lost control over the case transferred to the State of Karnataka.

Therefore, the State of Tamil Nadu has no jurisdiction to appoint a Public Prosecutor in the Special Court nor in the appeals which are pending in this Court. Hence, the order passed by the State of Tamil Nadu authorizing the deleted third respondent herein to engage the services of the fifth respondent is without authority and non est in the eye of law.

That order does not confer any right on the fifth respondent to represent either the State of Karnataka or the State of Tamil Nadu in the pending appeals before this Court. In view of our findings recorded above that the transferor Court has no power to appoint a Public Prosecutor under Section 24 of the Code in respect of a case pending in the transferee Court, the argument that the appellant has not challenged the said order of appointment has no merit."[25]

50. With regard to the interpretation of Section 301(1) of the Code and whether, by virtue of his appointment as the Special Public Prosecutor in Special CC No. 208 of 2004 Mr. Bhavani Singh could appear on behalf of the prosecution in the pending appeals in the High Court, emphasis was laid on the words "any court" appearing in Section 301(1) of the Code and it was held:

"It is well settled that we must look at the Act as a whole and discover what each Section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.

The language employed is that Public Prosecutor in charge of a case may appear and plead before "any Court", in which that case is under enquiry, trial or appeal. If the intention of the legislature was to confine his appearance only to the Court in which the case is under enquiry, trial or appeal, they would have used the word "the Court" in place of "any Court". Therefore, the intention is clear and unambiguous.

Once the Special Public Prosecutor is appointed to a case, and is put in charge of a case, then he may appear and plead without any written authority before "any Court" in which that case, which is entrusted to him, is under enquiry, trial or appeal. If a Public Prosecutor is appointed under Section 24(1) or (3) and Section 25 of the Code and placed in charge of a case, then by virtue of such appointment and entrustment as a Public Prosecutor, he may appear in Court in which that case is under inquiry, trial or appeal.

However, when he is appointed under Section 24(8) of the Code as Special Public Prosecutor he is appointed for the purposes of any case or class of cases. Section 301 of the Code makes it clear that, when he is in charge of a case, he may appear in "any Court" in which that case is under inquiry, trial or appeal. Therefore, a harmonious reading of these provisions makes it clear that a Public Prosecutor appointed under Section 24 or under Section 25 of the Code, though his appearance is normally confined to the Court to which he is appointed, Section 301 of the Code authorizes him to appear in "any Court" in which that case is under inquiry, trial or appeal."[26]

51. Thereafter, on a discussion of the case law on the subject, it was held that the word 'case' in the context in which it is used would include an appeal. Thereby, Mr. Bhavani Singh had the authority to not only appear in the case before the Special Court but also in the appeal arising out of it. It was held:

"The word 'case' is not defined in the Code. It is a word of wide and comprehensive import. The word 'case' cannot be equated to the words 'trial', 'appeal' or 'revision'. It clearly covers for larger area than would be covered by-such words as 'appeal', 'revision' or 'trial' or 'offences'. When the word 'case' is used with reference to a criminal case, it encompasses the various stages of a criminal case i.e., Investigation/inquiry, trial and appeal. A criminal case commences with the filing of an F.I.R. and registration of the case and comes to an end when the judgment is delivered discharging or acquitting or convicting the accused, when that judgment attains finality. In other words, after trial the accused is acquitted or convicted, the trial comes to an end and not the criminal case. Trial of a case is only one step in the life of a criminal case. Criminal case encompasses investigation/inquiry, trial and appeal. They are all different stages in a criminal case.

The word 'case' has no fixed or universal meaning. It must be construed with regard to the particular context in which it is used and with regard to the scheme and purpose of the measure concerned. This word is quite often used in the Code with an intention to give a wider meaning. That is the reason why in Section 301 the legislature has consciously used the word, that the Public Prosecutor "in charge of a case" may appear and plead before any Court in which "that case is under inquiry, trial or appeal". In other words, if a Public Prosecutor is appointed to conduct a case, he is entitled to appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.

Therefore, the words "any Court" used in this Section enables the Public Prosecutor to appear in all Courts of Criminal Jurisdiction and it is not confined to the Court to which he is appointed. The only condition to be satisfied is that he should be put in charge of the case after his appointment as a Public Prosecutor. It is altogether different, if by a rule, regulation, practice, when once he is appointed as a Public Prosecutor to a Court, he may not appear in another Court. Therefore, the Legislature has consciously used the words "may appear and plead". It is left to his discretion."[27]

52. At this stage, it is important to note that neither Ms. Jayalalithaa nor any of the other accused persons nor any of the other parties before the High Court have challenged the decision of the High Court to the extent that Tamil Nadu had no authority to appoint Mr. Bhavani Singh as the Special Public Prosecutor in the criminal appeals pending in the High Court. The only challenge is the one made by Mr. Anbazhagan to the effect that Section 301(1) of the Code does not authorize or enable or entitle Mr. Bhavani Singh to continue as a Special Public Prosecutor in the criminal appeals pending in the High Court and that the appointment of Mr. Bhavani Singh as a Special Public Prosecutor was limited only to the trial before the Special Court and it automatically terminated on the conviction of the accused persons.

53. It is under these circumstances that this appeal is before this court.

Discussion

54. There is no dispute that when this court transfers a criminal case under Section 406 of the Code, from one State to another, the transferee State has full control in the matter of prosecuting the case and the transferor State has no say in that regard. Indeed, there can be no dispute about this in view of the decision of this court in Jayendra Saraswati Swamigal. But, what does this imply?

55. In my opinion, on the transfer of a case by this court under Section 406 of the Code, the transferee State not only steps into the shoes of the transferor State but it effectively becomes the prosecuting State. It can and does appoint a Public Prosecutor to prosecute the case and a Public Prosecutor who is answerable to the government of the transferee State only - the Public Prosecutor appointed by one State is certainly not answerable to the government of another State.

56. On an earlier occasion in another transferred case, the Allahabad High Court held that an appeal against a conviction would not be maintainable in the High Court in the transferor State but would be maintainable only in the High Court of the transferee State.[28]

57. The Delhi High Court has gone a step further and has held that an appeal for the enhancement of sentence of a convicted person could be filed by the government of the transferee State in the High Court of the transferee State and there is nothing to preclude the government of the transferee State from doing so.[29] In other words, the transferee State does not merely step into the shoes of the transferor State but takes control of the prosecution. I need not say anything more on this subject since there is no dispute that the transferee State takes control over the prosecution from the transferor State. All that I have explained is the breadth of the take-over - the take-over being complete.

58. So far as the present case is concerned, this court did not give any direction with regard to the appointment of a Public Prosecutor or a Special Public Prosecutor post the decision in CC No.7 of 1997. In that sense, it could possibly be argued that there was a vacuum. However, the law is quite clear, namely, that Karnataka as the transferee State was entitled to file an appeal in the Karnataka High Court, should the need have arisen, including an appeal for enhancement of sentence and that on an appeal being filed in the High Court by the accused persons, Karnataka as the transferee State continues to retain its entitlement to appoint a Public Prosecutor or a Special Public Prosecutor to contest the appeal, otherwise the purpose of transferring the case out of Tamil Nadu to Karnataka would stand frustrated at the appellate stage.

Really speaking, this court did not leave behind any vacuum. That Karnataka was remiss in fulfilling its obligation to appoint a Public Prosecutor to contest the appeals filed in the High Court by the accused persons or chose not to fulfill it for whatever reason, is no ground for Tamil Nadu to appoint a Special Public Prosecutor to appear in the appeals. This conclusion was arrived at by the High Court in the judgment under challenge and no one has disagreed with the view that Tamil Nadu could not appoint Mr. Bhavani Singh as a Special Public Prosecutor to contest the appeals in the High Court. There the matter rests.

59. What is the effect of Mr. Bhavani Singh's appointment as the Special Public Prosecutor to conduct Special CC No.208/2004 and what is the interplay of this appointment with Section 301(1) of the Code? The answer to this lies in

(a) The directions given by this court while transferring the case from Tamil Nadu to Karnataka;

(b) The contents of the notification appointing Mr. Bhavani Singh as the Special Public Prosecutor to conduct Special CC No.208/2004 in the case of the accused persons pending before the Special Court; and

(c) The scheme of Section 24 and Section 301(1) of the Code.

60. What is the scope and intent of the directions given by this court while transferring the prosecution from Tamil Nadu to Karnataka? As mentioned earlier, while it is not necessary to advert, in great detail, to the reasons for the transfer of the prosecution from Tamil Nadu to Karnataka, the fact of the matter is that this court noted and cited "only a few instances to show how the prosecution appears to have acted hand in glove with the accused"; that Mr. Anbazhagan had made out a case "that the public confidence in the fairness of trial is being seriously undermined"; and that "great prejudice appears to have been caused to the prosecution which could culminate in grave miscarriage of justice."

It is under these circumstances that this court transferred the prosecution from Tamil Nadu to Karnataka and the directions given by this court have, therefore, to be understood in that light, namely, to prevent the prosecution of the accused persons getting derailed for collateral reasons. While deciding the writ petition, the learned Single Judge held that this court had "lost confidence of a fair trial being conducted within the State of Tamil Nadu".

61. A plain reading of the directions given by this court on earlier occasion makes it quite clear that this court was concerned only with the trial of CC No.7 of 1997 (and CC No.2 of 2001 with which this court is not concerned). To ensure that the trial is fair and is conducted in accordance with law, this court directed the State of Karnataka to appoint a Special Judge to try the case and also that "the trial before the Special Judge shall commence as soon as possible and will then proceed from day to day till completion". To ensure that the Public Prosecutor does not become hand in glove with the accused persons, this court further directed the appointment of a Public Prosecutor in consultation with the Chief Justice of the High Court of Karnataka. It was made clear that the Public Prosecutor shall be a senior lawyer having experience in criminal trials so that he could conduct the trial in the Special Court.

62. The first three directions given by this court in paragraph 34 on an earlier occasion make it quite clear that the focus and concern of this court was limited only to the conduct of a fair trial and nothing beyond it.

63. This court did not have, and could not have had in mind the fairness or otherwise of the proceedings subsequent to the conclusion of the trial. There was no basis or material to assume that after the conclusion of the trial, on an appeal filed by the prosecution or the accused persons (as the case may be), even the appellate proceedings in the High Court would get subverted or compromised in any manner whatsoever. It would be sacrilege if this court were to assume without any basis that the Karnataka High Court could get compromised. Consequently, the directions given by this court must be understood as limited to the conduct of the trial and the appointment of the Special Public Prosecutor was also limited thereby. In other words, the appointment of Mr. Bhavani Singh as the Special Public Prosecutor came to an end on the conclusion of the trial before the Special Court.

64. This is not to say that Karnataka could not have appointed the same Special Public Prosecutor (Mr. Bhavani Singh in this case) as the Special Public Prosecutor to conduct the appeals that might be filed after the conclusion of the trial. Karnataka could certainly have done so either through a composite notification for the trial and possible appeal(s) or by separate notifications. That Karnataka chose to appoint Mr. Bhavani Singh as the Special Pubic Prosecutor for the trial only is understandable. That Karnataka chose to sit by and not take any steps to appoint anyone to contest the appeals filed by the accused persons is nothing but a shirking of its duty and responsibility - but that is not the issue. All that I intend to hold and do hold is that the directions given by this court were limited only to the trial of the case before the Special Court in Bengaluru and even Karnataka understood the directions to be limited to the trial and acted only to that limited extent.

65. Does the notification appointing Mr. Bhavani Singh as a Special Public Prosecutor reflect the views of this court? The contents of the notification dated 2nd February, 2013 appointing Mr. Bhavani Singh as a Special Public Prosecutor are also of considerable importance, although it has been submitted by learned counsel for the accused persons that the notification may be ignored in view of the provisions of Section 301(1) of the Code. I do not think that the contents of the appointment notification can be simply ignored or overlooked, as suggested by learned counsel for the accused persons.

66. The notification was issued pursuant to the directions given by this court transferring the prosecution from Tamil Nadu to Karnataka under the circumstances already mentioned. The intention of this court was clearly to ensure that upon transfer of the prosecution from Tamil Nadu to Karnataka, the prosecution does not, inter alia, become hand in glove with the accused, that public confidence in the fairness of the trial is not seriously undermined and that the prosecution does not culminate in a grave miscarriage of justice. This court was, therefore, concerned only with the proceedings before the Special Court and not subsequent proceedings in the High Court.

67. This court was certainly conscious of the procedure required to be followed in the event of an appeal being filed in the High Court by the accused persons or by the prosecution and obviously did not think it necessary to advert to the procedure required to be followed. The Code of Criminal Procedure adequately provides for it. It would not, therefore, be correct to say that the directions given by this court created a vacuum in the event of an appeal to the High Court by the accused persons or by the prosecution.

This is more particularly so since there was nothing on record to even remotely suggest that the proceedings in the High Court were likely to get undermined in any manner. It is in this light that the notification appointing Mr. Bhavani Singh as a Special Public Prosecutor has to be read and understood and if the notification is so read and understood, it is quite clear that Mr. Bhavani Singh was given authority to represent the prosecution only before the Special Court and not in the High Court. The notification appointing Mr. Bhavani Singh as a Special Public Prosecutor only for the trial (and not for subsequent proceedings) correctly reflected the intent of this court.

68. The language employed in the notification dated 2nd February, 2013 appointing Mr. Bhavani Singh as a Special Public Prosecutor is quite specific and is to enable him "to conduct Special C.C. No.208/2004 (in the case of Kum. Jayalalitha and others) pending on the file of XXXVIth Additional City Civil & Sessions Court (Special Court), Bangalore". There is no mention about anything beyond Special CC No. 208/2004 such as an appeal filed in the High Court either by the accused persons or by the prosecution. It is not possible to read into the language of the notification any authority being given to Mr. Bhavani Singh to proceed beyond the trial in representing the prosecution. It would be violence to the language of the notification if it were given an interpretation wider than what the plain language suggests, intends and states.

69. Can it be said, under these circumstances, that the notification appointing Mr. Bhavani Singh as a Special Public Prosecutor could be read in conjunction with Section 301(1) of the Code as authorizing him to appear in the High Court in the appeals filed by the accused persons? For answering this, it is necessary to appreciate the scheme of Section 24 and Section 301(1) of the Code. It is necessary to look at a few provisions first.

70. Section 2(u) of the Code defines "Public Prosecutor".[30] In terms of the definition any person appointed under Section 24 of the Code is a Public Prosecutor. A Special Public Prosecutor appointed under Section 24(8) of the Code is naturally also a Public Prosecutor.

71. Section 24 of the Code is a part of Chapter II thereof which concerns the constitution of criminal courts and offices. Three Sections in this chapter relate to Public Prosecutors, namely, Section 24, Section 25 and Section 25-A.

72. Section 24(1) of the Code provides for the appointment of a Public Prosecutor for a High Court. The authority to appoint a Public Prosecutor for a High Court is vested both in the Central Government and a State Government. The two requirements for the appointment of a Public Prosecutor for the High Court are that it shall be made after consultation with the High Court and the person so appointed shall, in terms of Section 24(7) of the Code, have been in practice as an advocate for not less than seven years. The 'jurisdiction' or 'area of operation' of a Public Prosecutor appointed for the High Court is limited to the High Court and it is not possible for a Public Prosecutor appointed for the High Court to claim that he or she is entitled to appear in the District Court or any other court by virtue of his or her appointment.

73. A similar power of appointment of a Public Prosecutor for every district is given to the State Government by Section 24(3) of the Code. There is a similar limitation of 'jurisdiction' or 'area of operation' of a Public Prosecutor appointed under Section 24(3) of the Code to the district for which he or she is appointed. A Public Prosecutor appointed for a particular district cannot claim any authorization to appear as a Public Prosecutor in any other district or in the High Court of the State in which that district is located.

74. In other words, Section 24(1) and Section 24(3) of the Code limit the 'jurisdiction' or the 'area of operation' or the authority or the orbit of the Public Prosecutor to the High Court [Section 24(1) of the Code] or the district [Section 24(3) of the Code].

75. The first question that requires to be asked is whether Mr. Bhavani Singh was appointed as a Public Prosecutor or a Special Public Prosecutor for the High Court under Section 24(1) of the Code. The answer to this is in the negative. That being so, Mr. Bhavani Singh has no authority to per se conduct the appeals in the High Court on behalf of the prosecution. Really speaking, that should conclude the debate.

76. The next question is whether Mr. Bhavani Singh can claim that authority for by relying on Section 301(1) read with Section 24(8) of the Code. The answer to this is also in the negative.

77. In addition to the general power or authority given to the Central Government and the State Government to appoint a Public Prosecutor for the High Court [Section 24(1) of the Code] and to the State Government to appoint a Public Prosecutor for a district [Section 24(3) of the Code] a much wider power is given to the Central Government and the State Government by Section 24(8) of the Code to appoint a Special Public Prosecutor, being a person who has been a practicing advocate for not less than ten years. The appointment of a Special Public Prosecutor is not with reference to the High Court or a district, but is an appointment for a case in any court or a class of cases in any court or courts.

78. Section 25 of the Code provides for the appointment of Assistant Public Prosecutors.[31] Section 25(1) of the Code enables the State Government to appoint one or more Assistant Public Prosecutors in every district of the State to conduct prosecutions in the courts of the Magistrates. Section 25(1A) of the Code enables the Central Government to appoint one or more Assistant Public Prosecutors to conduct any case or class of cases in the courts of the Magistrates. For the present purposes, Section 25(3) of the Code is also of importance. This provides that a police officer can also be appointed as an Assistant Public Prosecutor as long as he or she has not taken part in the investigations or is below the rank of an Inspector.

79. Section 25-A of the Code is also of importance for understanding the 'jurisdictional' limitations placed on a Public Prosecutor or a Special Public Prosecutor.[32] However, this Section does not concern itself with Assistant Public Prosecutors.

80. Section 25-A(5) of the Code provides that a Public Prosecutor and a Special Public Prosecutor appointed by the State Government under Section 24(8) of the Code to conduct cases in the High Court shall be subordinate to the Director of Prosecution.

81. Section 25-A(6) of the Code provides that a Public Prosecutor and a Special Public Prosecutor appointed by the State Government under Section 24(8) of the Code to conduct cases in District Courts (as in the case of Mr. Bhavani Singh) shall be subordinate to the Deputy Director of Prosecution.

82. In this background, Section 301(1) of the Code is required to be considered and appreciated. This provision applies not only to a Public Prosecutor as defined in Section 2(u) of the Code [which includes a Special Public Prosecutor] but it also applies to an Assistant Public Prosecutor. This is of some importance.

83. Section 301(1) of the Code has three ingredients for its applicability:

(1) The Public