IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Dated this the 11th day of February 2015

PRESENT

THE HON’BLE MR. JUSTICE N KUMAR

AND

THE HON’BLE MR. JUSTICE B. VEERAPPA

Writ Appeal No. 260 of 2015 (GM-RES)

BETWEEN: K. Anbazhagan Aged about 93 years General Secretary DMK Party, “Anna Arivalayam” 367 – 369, Annasalai Teynampet Chennai – 600 018 …Appellant

(By Sri C. V. Nagesh, Senior Counsel for Sri Mahesh Kumar H & P. Kumaresan,

Advocates)

AND: 1. State of Karnataka By its Chief Secretary Government of Karnataka Vidhana Soudha Bangalore – 560 001

®

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2. The Secretary Law Department Vidhana Soudha Bangalore – 560 001 3. State by Superintendent of Police Special Investigation Cell Directorate of Vigilance and Anti-Corruption Chennai – 600 028 4. The Special Public Prosecutor In Special C. C. No.208/2004 On the file of the XXXVI Additional Sessions Judge (C.H.No.36), Bangalore and Crl. Appeals Nos.835 to 838 of 2014 5. Mr. Bhavani Singh Special Public Prosecutor in Special C.C. No.208/2004 On the file of the XXXVI Additional Sessions Judge (C.H.No.36), Bangalore and Crl. Appeals Nos.835 to 838 of 2014 …Respondents

(By Prof. Ravivarmakumar, Advocate General a/w Sri D. Nagaraj, AGA for R1, 2 and 4; Sri Naganand,. Senior Counsel for M/s. Diwakara & Associates for R5;

R3 deleted)

This Writ Appeal filed Under Section 4 of the Karnataka High Court Act praying to set aside the order passed in the Writ Petition No.742 of 2015 dated 19-01-2015.

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This Writ Appeal coming on for preliminary hearing this day, N. KUMAR J., delivered the following:

J U D G M E N T

This appeal is preferred against the order dated 19th

January, 2015 passed in W.P. No.742/2015 by the learned

Single Judge declining to entertain the writ petition where

the appellant had sought for a direction to the State of

Karnataka to appoint any other Senior Lawyer as Special

Public Prosecutor in Criminal Appeal Nos. 835-838/2014.

2. The appellant is a Senior Politician and now he

is 93 years old. He is the General Secretary of Dravida

Munnetra Kazhagam (D.M.K.) party, which is the principal

opposition party in Tamil Nadu. He was elected as a

Member of the Parliament. He was later elected as a Member

of the Tamil Nadu State Legislative Assembly and served as

Cabinet Minister in the State of Tamil Nadu on four

occasions.

4

3. Selvi Jayalalitha was the Chief Minister of Tamil

Nadu. AIADMK party headed by her was defeated in the

General Election held in the year 1996. DMK party was

voted to power. The appellant was a Minister in the said

Ministry. Special Courts were constituted for the trial of

cases filed against Selvi Jayalalitha and others. The

constitution of Special Court came to be upheld by the Apex

Court. Thereafter, in the year 1997, C.C.No.7 of 1997 was

filed for the trial of accused and three others, who have been

charge-sheeted for offences under Section 120-B of IPC,

Section 13(2) read with Section 13(1)(e) of the Prevention of

Corruption Act, 1988 for the alleged accumulation of wealth

disproportionate to their known sources of income. Yet

another case in C.C.No.2/2001 was also filed against others.

Trial of C.C.No.7/1997 progressed and by August 2000, 250

prosecution witnesses had been examined. In the general

election held in May 2001, AIADMK Party headed by Selvi

Jayalalaitha secured an absolute majority in the Legislative

Assembly. She became the Chief Minister. The said

5

appointment was challenged and Apex Court nullified her

appointment. Consequently, she ceased to hold the office of

the Chief Minister. However she was declared elected in a

bye-election and was again sworn in as a Chief Minister.

With the change in Government, three Public Prosecutors

resigned. When the trial resumed as many as 76 P.Ws. had

been recalled for cross-examination on the ground that the

counsel appearing for the respondents or some of them had

earlier been busy in some other case filed against them. The

Public Prosecutor did not object. Majority of these witnesses

resiled from their previous statement-in-chief. The Public

Prosecutor did not make any attempt to declare them hostile

and cross-examine them.

4. It is in this background, the appellant moved the

Apex Court under Section 406 of the Code of Criminal

Procedure, 1973 (for short, hereinafter referred to as ‘the

Code’) for transfer of C.C. No.7/1997 and C.C. No.2/2001 on

the file of the XI Additional Sessions Judge (Special Court

No.1), Chennai in the State of Tamil Nadu to a Court of equal

6

and competent jurisdiction in any other State. In those

proceedings, the Apex Court after referring to the various

judgments after going through the evidence of some

witnesses, was of the view that it does appear that the new

Public Prosecutor was hand-in-glove with the accused

thereby creating a reasonable apprehension of likelihood of

failure of justice in the minds of the public at large. There

was a strong indication that process of justice was being

subverted. Therefore, they thought it expedient in the ends

of justice to allow the transfer petition. Then they went into

the question to which State the cases should be transferred

and came to the conclusion that the State of Karnataka

would be the most convenient due to its nearness to Tamil

Nadu. Therefore, they passed the order allowing the transfer

petition and transferred the said case from the State of Tamil

Nadu to the State of Karnataka. The said judgment is

reported in (2004) 3 SCC 767.

5. The Government of Karnataka in obedience to

the aforesaid judgment dated 18th November, 2003 issued a

7

notification dated 19th February, 2005 constituting XXXVI

Additional City Civil and Sessions Court as a Special Court

to try the said case and the said case was renumbered as

Special C.C. No.208/2004. As is clear from the said

notification, Sri.B.V.Acharya, learned Senior Advocate and

former Advocate General of Karnataka was appointed as a

Public Prosecutor under Sub-Section (8) of Section 24 of the

Code. The Public Prosecutor so appointed conducted the

trial till 02.02.2013. On his resigning from the said post,

again the State of Karnataka by its order dated 02.02.2013

appointed the 5th respondent as Special Public Prosecutor in

place of Sri. B.V.Acharya.

6. When the 5th respondent was prosecuting the

case, the appellant filed W.P. No.38075/2013 before this

Court seeking removal of the 5th respondent from the post of

Special Public Prosecutor. During the pendency of the said

writ petition, the Government of Karnataka issued a

notification dated 26.08.2013 withdrawing the appointment

of the 5th respondent as Special Public Prosecutor without

8

assigning any reason and without consulting the Chief

Justice of the Karnataka High Court. The said action was

challenged before the Apex Court by the accused. The

learned Attorney General appeared for the State of

Karnataka in the said case on 06.09.2013 and informed the

Apex Court that the notification dated 26.08.2013 would be

withdrawn with a view to consult the Chief Justice of the

Karnataka High Court. Therefore, the said writ petition was

dismissed as having become infructuous. Thereafter, the

State Government withdrew the notification dated

26.08.2013 vide notification dated 10.09.2013.

Simultaneously, by a letter of the same date asked the 5th

respondent not to appear in the matter before the Special

Judge. Then the accused challenged the said letter/order

before the Apex Court. During the pendency of the said writ

petitions, the Government of Karnataka consulted the Chief

Justice of the Karnataka High Court for withdrawing the

appointment of the 5th respondent as Special Public

Prosecutor. The Chief Justice concurred with the view of the

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State Government vide communication dated 14.09.2013.

Thus the appointment of the 5th respondent stood withdrawn

by the Government of Karnataka vide notification dated

16.09.2013.

7. Aggrieved by the said order/notification, the

accused preferred the writ petition Nos. 154/2013 with

No.166/2013 challenging the order dated 14.09.2013 as well

as 16.09.2013. After hearing the learned counsel for both

the parties and after taking note of the facts of the case, the

Apex Court observed that they have no hesitation in holding

that the notification purporting to revoke the appointment of

the 5th respondent as State Public Prosecutor is liable to be

struck down. They observed that fair trial is the main object

of criminal procedure and such fairness should not be

hampered or threatened in any manner. Fair trial entails

the interests of the accused, the victim and of the society.

Thus, fair trial must be accorded to every accused in the

spirit of the right to life and personal liberty and the accused

must get a free and fair, just and reasonable trial on the

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charge imputed in a criminal case. Any breach or violation of

public rights and duties, adversely affects the community as

a whole and it becomes harmful to the Society in general. In

all circumstances, the Courts have a duty to maintain public

confidence in the administration of justice and such duty is

to vindicate and uphold the “majesty of the law” and the

Courts cannot turn a blind eye to vexatious or oppressive

conduct that occurs in relation to criminal proceedings.

They also took note of the letter dated 29.01.2013

communicated by the learned Registrar General of the High

Court of Karnataka to the State Government with regard to

the experience of 5th respondent. In the letter it was

mentioned that the 5th respondent, who is presently working

as State Public Prosecutor II has standing experience of 38

years at the Bar exclusively on criminal side, he has

conducted the cases before the trial court as a defence

counsel and that he has served as a Government Pleader

from 1977 for a period of three years in the High Court of

Karnataka and as Additional Public Prosecutor for a period

11

of three years and currently for the past eight years working

as State Public Prosecutor II in the High Court of Karnataka.

Therefore, they were of the opinion that the order of removal

of the 5th respondent is a product of malafides and the said

order is not sustainable in the eye of law. As such the same

was quashed. The said judgment is also reported in 2014(2)

SCC 401. Therefore, the order appointing the 5th respondent

as a Special Public Prosecutor dated 02.02.2013 was

restored and he was permitted to conduct the trial before the

Special Court. It is not in dispute that the trial has ended in

conviction on 27.09.2014 and the accused were sentenced.

8. Aggrieved by the said conviction and sentence,

the accused have preferred appeals before this Court in

Criminal Appeal Nos. 835-838/2014. The Principal Secretary

to the Government of Tamil Nadu by an order dated

29.09.2014 on a request made by the Director, Vigilance and

Anti-corruption, Chennai requesting that the 5th respondent,

be authorized to appear for them before the High Court of

Karnataka, authorized the Director, Vigilance and Anti-

12

corruption, Chennai to engage the services of the 5th

respondent to appear before the High Court of Karnataka. It

is by virtue of the said authorization, the 5th respondent is

appearing on behalf of the Director, Vigilance and Anti-

corruption who is a party to the appeal. The said order

reads as under:

“O R D E R

The Director, Vigilance and Anti-Corruption,

Chennal, 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 petitioner that

may arise out of the order of the above Trial

Court.

2. The Government after careful

examination, have decided to authorize the

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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 of 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”

9. In the said appeals, the accused filed an

application for enlarging them on bail during the pendency

of the appeal. The said application was contested. The

learned Single Judge of this Court, who heard the

application by a considered order rejected the application for

grant of bail. Aggrieved by the said order, the accused

preferred an appeal to the Apex Court by way of a Special

leave to appeal (Criminal) No.7900/2014. The Apex Court

14

by an order dated 17.10.2014 released the accused on bail.

The said order reads as under:

“O R D E R

After hearing Shri Fali S. Nariman, Shri

K.T.S. Tulsi, learned senior counsel for the

petitioners and Shri Subramanium Swamy, party-

in-person and also the complainant, for the

present, we suspend the sentence and direct that

the petitioners, (i) Selvi J.Jayalalithaa, (ii)

Smt.N.Sasikala, (iii) Mr.V.N. Sudhakaran, and (iv)

Smt. J.Elasvarasi be released on bail on

executing a bond with two solvent sureties by

each of them to the satisfaction of the 36th Addl.

City Civil & Sessions Judge (Spl. Court for Trial of

Criminal Cases against Kum. Jayalalitha & Ors)

at Bangalore.

Call these matters on 18th December,

2014.”

10. Thereafter, the Hon’ble Supreme Court passed

an order on 18.12.2014 requesting the Hon’ble Chief Justice

of this Court to constitute a Special Bench for hearing of the

appeals. The said order reads as under:

15

“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.”

Now the special leave petition is to be listed on

17.04.2015 before the Apex Court.

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11. The appellant herein made a representation on

24th December, 2014 as per Annexure ‘G’ requesting the

Government of Karnataka to appoint a suitable Senior

Lawyer to appear for the respondent i.e., the Director of

Vigilance and Anti-Corruption of Tamil Nadu before the

Hon’ble High Court of Karnataka at Bangalore in Criminal

Appeal Nos. 835-838/2014. The appellant also filed a memo

in Criminal Appeal Nos. 835-838/2014 contending that the

5th respondent is not the Special Public Prosecutor appointed

by the Karnataka Government in consultation with the Chief

Justice of the High Court of Karnataka. He has filed a memo

of appearance based on G.O. No.865/2014 dated 02.01.2014

issued by DVAC, Tamil Nadu on 30.09.2014, which is illegal

and contrary to the directions issued by the Supreme Court

of India. He cannot appear in the appeals on the file of the

Hon’ble High Court. Therefore, he sought for appropriate

orders. This memo was filed on 07.01.2015 and it is

submitted that the memo is not yet considered.

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12. He submits that he has been assisting the Trial

Court and higher Courts to arrive at the truth by intervening

at various stages of the above case. His locus standi had

been recognized by the Hon’ble Supreme Court on the

ground that an opposition political party plays a vital and

important role in democracy by pointing out the misdeeds of

the ruling party. The Special C.C. No.208/2004 referred to

supra is now over and the appeals are filed by the convicted

accused before this Court in Criminal Appeal Nos. 835, 836,

837 & 838/2014. The said appeals are likely to be heard in

the near future. There is an urgent necessity to appoint an

appropriate and suitable Senior Lawyer as Special Public

Prosecutor. During the trial, he filed I.A. No.1143/2013

under Section 301(2) Cr.P.C. before the Special Judge

requesting for permission to assist the prosecution during

the trial of the case. The said application was allowed and

he was permitted to assist the prosecution. He had engaged

a counsel. He and his counsel attended every hearing and

participated in the trial court proceedings throughout. He

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has referred to the observations made by the Special Judge

in the judgment, which is the subject matter of appeal before

this Court. Then, he has referred to the conduct of the 5th

respondent during the hearing of the bail application in the

appeal and the dismissal of the said application. He also

referred to a writ petition in W.P. No.38075/2013 filed by

him before this Court seeking removal of respondent No.5

from the post of Special Public Prosecutor for conducting the

trial of the special case. The said writ petition is still

pending. Since the trial has ended in conviction and the

appeals have now been filed before this Court, he is

renewing his prayer to remove the 5th respondent, as it is not

appropriate to allow a person indicted during the trial of the

proceedings, to continue as a Special Public Prosecutor in

the appeals. He has sent a representation to the 1st and 2nd

respondents seeking removal of the 5th respondent and

appoint a new Special Public Prosecutor. His grievance is

that the said representations are not considered. In those

circumstances, he filed this writ petition No.742/2015

19

seeking a direction to replace the 5th respondent, who is

continuing to appear in the Criminal Appeals Nos. 835-

838/2014 as a counsel representing the D.V. & A.C.

13. Before the learned Single Judge, as the

appellant submitted that, he would not go into the

allegations made against the 5th respondent, but confine his

submissions to the legal issues, the 5th respondent has not

filed any statement of objections. Similarly, other

respondents also have not filed any objections. The learned

Single Judge after hearing both the parties and after taking

note of the order passed by the Apex Court granting bail on

17.10.2014 and extending the bail by an order dated

18.12.2014 and the order of the Apex Court directing the

State of Karnataka to appoint a Special Public Prosecutor for

the case, held that, notwithstanding the validity or otherwise

of the appointment of respondent No.5 as made by

respondent No.3 through the State Government of Tamil

Nadu, the fact that the very Special Public Prosecutor has

now been appointed as the Counsel to represent in the

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appeals as well, may not cause prejudice in the proceedings.

He further held 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. 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, insofar

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, as there is no

discernible prejudice caused by his continuance as Special

Public Prosecutor for the time being. This is especially so,

when the proceedings are directed by the Hon’ble Supreme

21

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. With those observations, the petition was

disposed of.

14. Aggrieved by the said order, the appellant is

before this Court. In this appeal, on 04.02.2015, the

appellant filed a memo submitting that no relief as such

against the 3rd respondent is sought for, either in the writ

petition or in the writ appeal. He was only a formal party to

the petition and appeal and he was arrayed as a party since

he happened to be the investigator of the case. Therefore, he

requested for deleting respondent No.3 from the array of the

22

parties. This Court, by an order dated 05.02.2015 granted

the said prayer and directed deletion of respondent No.3.

15. Sri C.V.Nagesh, the learned Senior Counsel,

appearing for the appellant, assailing the impugned order

contended that under Section 24(1) of the Code for every

High Court, the State Government shall appoint a Public

Prosecutor for conducting in such Court, any prosecution,

appeal or other proceeding on behalf of the State of

Karnataka. Therefore, the State of Karnataka has appointed

the 5th respondent as a Special Public Prosecutor to conduct

the trial of the case. Now that the trial is over, the accused

are convicted and sentenced, they have preferred an appeal

before this Court. In the appeal filed by the accused

challenging the conviction and sentence before this Court, it

is only the Public Prosecutor appointed by the State

Government under Section 24(1) of the Act, who is

competent to represent the State Government. Elaborating

this point, he submitted that once a case is transferred from

one State to another State, though originally, the

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prosecution was launched by the transferor State after such

transfer, it is the transferee State which would be the State

prosecuting the case. Transferor Court has no power to

appoint a Public Prosecutor in such case, which is pending

in the transferee Court. The State of Karnataka, in

pursuance of the directions issued by the Apex Court,

appointed a Special Public Prosecutor for conducting the

trial. The accused have preferred an appeal. The State of

Karnataka has abdicated its responsibility of appointing a

Special Public Prosecutor to represent the State in the High

Court where the appeals are pending. The appointment

made by the 3rd respondent, who is deleted from this appeal

is without the authority of law and is nonest. The State of

Karnataka has not appointed the 5th respondent and

therefore, the 5th respondent is an unauthorized person, who

is now representing the deleted 3rd respondent in the

pending appeal, where in fact the State of Karnataka is not

even arrayed as a respondent. He referred to Section 25 of

the Act, which provides for appointment of an Assistant

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Public Prosecutor for conducting cases in the Court of

Magistrates. Section 24(1) of the Code generally provides for

appointment of Public Prosecutor and Additional Public

Prosecutors for conducting in such Court, any prosecution,

appeal or proceedings on behalf of the State Government.

He also referred to Section 24(3) which provides for

appointment of a Public Prosecutor and one or more

additional Public Prosecutors for the District and therefore,

he contends that it is only the Public Prosecutor appointed

for such Courts, who are competent to prosecute the appeal.

Section 301 of the Code only enables such Public

Prosecutors, who are appointed to those Courts to appear

and plead without any written authority before such Court in

which that case is under inquiry, trial or appeal.

16. In the instant case, the 5th respondent is

appointed as a Special Public Prosecutor under Section 24(8)

of the Code. When the appointment of the 5th respondent as

a Special Public Prosecutor to conduct trial before the

Special Court has come to an end with the conclusion of the

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trial, he has no locus standi to appear in the pending

appeals preferred by the accused. The State of Karnataka

being the prosecuting agency is duty bound to make an

appointment of a Public Prosecutor either under Section

24(1) or under Section 24(8) of the Code to conduct the said

appeals in respect of a request made.

17. 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 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

26

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 subjudice,

they have not taken any further action in this matter.

18. Sri S.S.Naganand, learned Senior Counsel

appearing for the 5th respondent contended that the

appellant has no locus standi to prefer either writ petition or

this writ appeal. Though it is at appellant’s instance, the

Apex Court transferred the Criminal case pending in the

Madras Court to the Bangalore Court, that is, by virtue of

the power under Section 406 of the Code but Sub-Section (2)

of Section 406 enables a party interested to move the

Supreme Court for such transfer. But such an interest is not

27

sufficient to maintain a writ petition under Article 226 of the

Constitution of India to compel the State Government to

exercise its power under Section 24 of the Code in the matter

of appointment of a Public Prosecutor. Before a writ of

mandamus could be issued, the person, who has

approached the Court must have a legal right. The State

should be under an obligation to perform a duty towards

such person. If there is a breach of such duty, the person

has a right to seek a writ of mandamus. The appellant has

no such right and the writ petition itself was not

maintainable. For the same reasons, this writ appeal is also

not maintainable.

19. Adverting to the legal position, he submitted that

by exercising power under Section 406 of the Code the Apex

Court transferred the case from Madras to Bangalore and at

that time, the Apex Court specifically directed the State

Government to appoint a Senior Counsel having experience

in Criminal trials as Public Prosecutor to conduct these

cases. It is in obedience to the said direction, the State of

28

Karnataka first issued a notification dated 19th February,

2005 appointing Sri.B.V.Acharya, Senior Advocate and

former Advocate General of Karnataka as a Public

Prosecutor. Again a notification came to be issued on

02.02.2013 appointing the 5th respondent as the Special

Public Prosecutor. Section 24(8) of the Code, which is

invoked by the State for such appointment provides

appointment for the purpose of any case or class of cases.

Section 301 of the Code provides that a person so appointed

as a Public Prosecutor and incharge of a case may appear

and plead without any written authority before any Court in

which that case is under enquiry, trial or appeal. Therefore,

when the 5th respondent was appointed as a Public

Prosecutor in respect of the above case, he had conducted

the trial successfully, which has resulted in conviction and

now that case is in the High Court in appeals. Therefore,

without any written authority, he can appear in the High

Court. The contention that his appointment came to an end

with the conclusion of the trial and a fresh appointment has

29

to be made by the State of Karnataka for conducting the

appeal is contrary to the aforesaid statutory provisions and

therefore, he submits that there is no merit in this appeal.

He also pointed out that the deleted 3rd respondent has

engaged the services of the 5th respondent to represent them

in the pending appeal. Even if that order is void, unless it is

challenged by the appellant and is set at naught by a

Competent Court, it is in force and therefore, the contention

that the said order is nonest and has to be ignored is not a

correct proposition of law. He also submitted that the

appeals before the High Court is heard on day to day basis in

terms of the order passed by the Hon’ble Supreme Court.

The argument on behalf of the 1st and 2nd accused is over.

Now, it is half way through. At this stage, any order to be

passed by this Court, which would have the effect of

removing the 5th respondent, would obviously affect the

speedy disposal of the appeal as directed by the Apex Court.

The hearing began on 5th of January, 2013. He also

submitted that though certain allegations are made against

30

the 5th respondent with regard to the way he has conducted

the case, the fact remains that the accused were convicted.

That would show that there is no merit in any of the

allegations made against him and therefore, he submits that

no case for interference is made out. In fact the accused are

not made parties to these proceedings.

20. In view of the aforesaid facts and the rival

contentions, the point that arises for our consideration is as

under:

(a) Whether the appointment of the 5th

respondent as a Special Public Prosecutor

in C.C. No.7/1997, which is renumbered in

the Special Court as Special CC.

NO.208/2004 has come to an end after the

passing of the order convicting and

sentencing the accused and whether the

said authority do not enable him to appear

for the State in the pending appeals?

(b) Whether this Court has to issue any

direction to the State of Karnataka to

appoint a Special Public Prosecutor either

31

under Section 24 (1) or Section 24 (8) of the

Code to represent the State in pending

appeals?

21. The question for consideration has arisen by

virtue of a transfer of a Criminal Case from one State to

another. Section 406 of the Code deals with transfer of

criminal cases. It reads as under:-

“406. Power of Supreme Court to transfer

cases and appeals. (1) Whenever it is made to

appear to the Supreme Court that an order under

this section is expedient for the ends of justice, it

may direct that any particular case or appeal be

transferred 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.

(2) The Supreme Court may act under this

section only on the application of the Attorney-

General of India or of a party interested, and

every such application shall be made by motion,

which shall, except when the applicant is the

32

Attorney- General of India or the Advocate-

General of the State, be supported by affidavit or

affirmation.

(3) Where any application for the exercise of

the powers conferred by this section is dismissed,

the Supreme Court may, if it is of opinion that the

application was frivolous or vexatious, order the

applicant to pay by way of compensation to any

person who has opposed the application such

sum not exceeding one thousand rupees as it

may consider appropriate in the circumstances of

the case.

22. As is clear from the language employed in this

provision, the Apex Court is vested with the power to direct

any particular case or appeal to be transferred from one High

Court to another. It is in pursuance of this statutory

provision, the Apex Court passed an order of transfer dated

18-11-2003. It is as under:-

“34. ……… Accordingly, the petitions are

allowed. CC No.7 of 1997 and CC No.2 of 2001

pending on the file of the XI Addl. Sessions Judge

(Special Court No.1) Chennai, in the State of Tamil

33

Nadu shall stand transferred with the following

directions:-

(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 No.2 of 2001 pending on the

file of the XI Addl. 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) xxx xxxx

(c) The State of Karnataka in consultation with

the Chief Justice of High Court of Karnataka shall

appoint a senior lawyer having experience in

criminal trials as public prosecutor to conduct

these cases. …….. “

(underlining by us)

23. Therefore, as the case was pending for trial

before the Special Court at Chennai, the said case was

transferred to the Special Court at Bangalore, with a

34

direction to appoint a Public Prosecutor to conduct the said

case.

24. The learned Senior Counsel submitted that, after

the case is transferred from the Special Court at Madras to

the Special Court at Bangalore, the State of Tamil Nadu

ceases to be the appropriate Government which can

prosecute the case against the accused. It is the transferee

State-the State of Karnataka could become the prosecuting

State. In support of his contention, he relied on a judgment

of the Apex Court in the case of HANUMANT DASS vs VINAY

KUMAR AND OTHERS [AIR 1982 SC 1052]. After referring

to Sections 385, 225, 378, 432 of the Code, the Apex Court

held as under : -

“13. Section 432(7) extracted above

defines "appropriate Government". "Appropriate

Government" means-(a) in cases where the

sentence is for an offence against, or the order

referred to in subsection (6) is passed under any

law relating to a matter to which the executive

power of the Union extends, the Central

35

Government; (b) in other cases, the Government of

the State within which the offender is sentenced

or the said order is passed.

14. According to this section the appropriate

Government is the Government of the State of

conviction and not the Government of the State

where the offence was committed. A somewhat

similar question came up for consideration in

the State of Madhya Pradesh v. Ratan Singh &

Ors., 1976 Supp. SCR 552 where the respondent

was convicted and sentenced to imprisonment for

life by a court in the State of Madhya Pradesh. At

his request he was transferred o a Jail in the

State of Punjab, to which State he belonged. He

applied to the Government of Punjab that under

the Punjab Jail Manual he is entitled to be

released since he had completed more than 20

years of imprisonment. The application was sent

to the Government of Madhya Pradesh, which

rejected it. In a Writ petition filed by him the High

Court of Punjab and Haryana held that the State

of Punjab was the appropriate authority to

release him and directed the State of Punjab to

consider the matter. This Court in appeal

observed "a perusal of this provision clearly

36

reveals that the test to determine the appropriate

Government is to locate the State where the

accused was convicted and sentenced and the

Government of that State would be the

appropriate Government within the meaning of

sec. 401 of the Code of Criminal Procedure. Thus

since the prisoner in the instant case, was tried,

convicted and sentenced in the State of Madhya

Pradesh, the State of Madhya Pradesh would be

the appropriate Government to exercise the

discretion for remission of the sentence under sec.

401(1) of the Code of Criminal Procedure.... ."

That was a case based on section 401 of the old

Criminal Procedure Code, but the Code of

Criminal Procedure, 1973 has put the matter

completely beyond any controversy and

reiterated the provisions of section 402(3) in sub-

section (7) of section 432.”

25. Again, the Supreme Court in the case of

JAYENDRA SARASWATI SWAMIGAL ALIAS

SUBRAMANIAM vs STATE OF TAMIL NADU [(2008) 10 SCC

180] held as under:-

37

17. As is evident from various provisions of the

Cr.P.C., the State Government of Tamil Nadu can

only appoint a Public Prosecutor or an Additional

Public Prosecutor or a Special Public Prosecutor

under Section 24 of the Cr.P.C. to conduct the

prosecution and appeal, or other proceeding in

any criminal courts in respect of any case

pending before the courts of Tamil Nadu and in

respect of any case pending before the Courts at

Pondicherry, the State Government of Pondicherry

is the appropriate Government to appoint

Public Prosecutor, Additional Public Prosecutor or

Special Public Prosecutor.

18. However, we make it clear that the State of

Pondicherry can appoint any counsel as Public

Prosecutor having requisite qualifications as

prescribed under sub-section (8) of Section 24 of

Cr.P.C. whether he is a lawyer in the State of

Pondicherry or any other State. As it is a criminal

case registered by the State of Tamil Nadu the

expenses for conducting the trial are to be borne

by the State of Tamil Nadu. The Advocate fees

payable to the Public Prosecutor, Additional Public

Prosecutor or Special Public Prosecutor by the

State of Pondicherry shall be borne by the State

38

of Tamil Nadu and the Home Departments of the

two States may undertake consultations with

each other and an appropriate decision may be

taken by the authorities concerned in this

regard”.

26. The Delhi High Court in the case of STATE vs

VIKAS YADAV AND ANOTHER, Crl. M.A. 13400/2008

decided on 7.8.2009, after referring to the aforesaid

judgment of the Apex Court held as under:-

“28. The legal position is that once a case is

transferred by the Supreme Court under Section

406 Cr. P.C from one State to another State, the

transferor State no longer retains control over the

prosecution to be conducted in a Court situated in

the transferee State. While transferring a case

under Section 406 Cr. P.C, the Supreme Court can

give appropriate directions as to which State

should appoint the Public Prosecutor to conduct

that particular case. But, if no such directions are

given, then it is the transferee State which is to

appoint the Public Prosecutor and take overall

responsibility for the prosecution of the case.”

39

27. 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.

40

28. In the instant case, we have no difficulty. The

Supreme Court by its order dated 18.11.2003 while

transferring the case to State of Karnataka directed that the

State of Karnataka in consultation with the Chief Justice of

High Court of Karnataka shall appoint a senior lawyer

having experience in criminal trials as public prosecutor to

conduct these cases. It is in pursuance of the order of the

Supreme Court, the State of Karnataka issued notification

dated 19.2.2005, under Section 24(8) of the Code, which

reads as under:

“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 the Criminal Procedure

(Amendment Act 1978) and Rule 30 of the

Karnataka Law Officers (Appointment and

41

Conditions of Service) Rules 1977 Sri

B.V.Acharya, Senior Advocate and former

Advocate General of Karnataka, No.42, 5th Main,

Jayamahal Extension, Bangalore – 560 041, is

appointed as Public Prosecutor to conduct C.C.

No.7/1997 and C.C. No.2/2001 pending on the

file of the XI th 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

29. The said notification makes it clear that, it was

issued in obedience of the judgment dated 18.11.2003

passed by the Supreme Court of India in Transfer Petition in

exercise of the powers conferred by sub-section (8) of Section

24 of the Code. Sri B.V.Acharya, Senior Advocate and

42

former Advocate General of Karnataka, was appointed as

Public Prosecutor to conduct CC No. 7/1997 and C.C. No.

2/2001 pending on the file of the XI Addl. Sessions Judge

(Special Court No.1), Chennai (regarding trial of Ms.

Jayalalitha and others in the State of Karnataka). After the

Public Prosecutor so appointed resigned, by a subsequent

notification dated 02.02.2013 the 5th respondent is

appointed in place of Sri B.V. Acharya on same terms to

conduct Special C.C. No. 208/2004. The said notification

reads as under:

NOTIFICATION

In obedience 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 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 the Criminal

Procedure (Amendment Act 1978) and Rule 30 of

43

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 – 560 067, is appointed as Special

Public Prosecutor in place of Sri B. V. Acharya on

same terms to conduct Special C.C. No.208/2004

(in the case of Kum. Jayalalitha and others)

pending on the file of the XXXVIth Additional City

Civil & Sessions Court, (Special Court), Bangalore,

in pursuance.

Further, Sri Sandesh J. Chouta, Advocate,

is continued to assist Sri G. Bhavani Singh,

Special Public Prosecutor, in this case.

By Order and in the name of the

Governor of Karnataka

Sd/- 02-02-2013 (K. Narayana)

Deputy Secretary to Government,(Admn.-1) Law, Justice and Human Rights Department

30. The Apex Court while transferring the aforesaid

case from the Special Court of Tamil Nadu to the Special

Court at Bangalore specifically directed, the State of

44

Karnataka in consultation with the Chief Justice of the High

Court of Karnataka shall appoint a senior lawyer having

experience in 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.

31. 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

45

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.

32. Now, the question for consideration is, when

admittedly the State of Karnataka has appointed fifth

respondent as a Special Public Prosecutor in obedience to

the directions issued by the Apex Court, whether he can

continue to appear in the appeals preferred by the accused.

33. The learned single Judge was of the view that, as

the order of appointment was made by the State of

Karnataka in pursuance of the direction issued by the Apex

Court, it is open either for the State Government of

46

Karnataka or the petitioner himself to seek further

clarifications from the Supreme Court as to the procedure

that is to be followed in making the appointment of a Special

Public Prosecutor and an assistant or assistants, if any, to

represent the State of Karnataka.

34. The learned Senior Counsel appearing for the

appellant contended that, the order of the Supreme Court is

before us. The order appointing the Public Prosecutor is also

placed on record. The aforesaid question has to be decided

in the light of the statutory provisions and the orders passed

and, therefore, he submits the question of appellant

approaching either the State of Karnataka or the Supreme

Court for clarification would not arise.

35. In this regard, the learned counsel appearing for

both the parties have taken us through the various

provisions of the Code touching upon the subject and both of

them contend that all these provisions have to be

47

harmoniously interpreted and then the legal effect is to be

seen.

36. In fact, the learned counsel for the appellant

relied on the judgment of the Apex Court in the case of

RESERVE BANK OF INDIA vs PEERLESS GENERAL

FINANCE AND INVESTMENT COMPANY LIMITED [(1987 (1)

SCC 424] where it has been held as under : -

"33. Interpretation must depend on the text

and the context. They are the basis of

interpretation. One may well say if the text is the

texture, context is what gives the colour. Neither

can be ignored. Both are important. That

interpretation is best which makes the textual

interpretation match the contextual. A statute is

best interpreted when we know why it was

enacted. With this knowledge, the statute must

be read, first as a whole and then section by

section, clause by clause, phrase by phrase and

word by word. If a statute is looked at, in the

context of its enactment, with the glasses of the

statute- maker, provided by such context, its

scheme, the sections, clauses, phrases and

48

words may take colour and appear different than

when the statute is looked at without the glasses

provided by the context. With these glasses 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."

37. Again the Apex Court in the case of ANWAR

HASAN KHAN vs MOHD. SHAFI [(2001) 8 SCC 540] has

held as under:-

"8. ….It is a cardinal principle of construction

of a statute that effort should be made in

construing its provisions by avoiding a conflict

and adopting a harmonious construction. The

statute or rules made thereunder should be read

as a whole and one provision should be

construed with reference to the other provision to

make the provision consistent with the object

sought to be achieved."

49

38. Referring to the aforesaid two judgments, the

Constitution Bench of the Apex Court in the case of

PRAKASH KUMAR vs STATE OF GUJARAT [(2005) 2 SCC

409] held as under : -

“30. By now it is well settled Principle of Law

that 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. It is also trite that the

statute or rules made thereunder should be read

as a whole and one provision should be

construed with reference to the other provision to

make the provision consistent with the object

sought to be achieved.”

39. In the background of the statement of law by the

Apex Court, when we are called upon to construe the various

provisions in the statute harmoniously, it is necessary to

look at the said provisions.

40. Section 24 of the Code deals with Public

Prosecutors and 25 deals with Assistant Public Prosecutors.

50

In this context it is necessary to know the meaning of the

word ‘Public Prosecutor’ as it is defined under Section 2(u) of

the Code. It reads as under:-

“2(u) “Public Prosecutor” means any person

appointed under section 24, and includes any

person acting under the directions of a Public

Prosecutor.

41. Section 24 of the Code reads as

under:-

“24. Public Prosecutors. (1) For every High

Court, the Central Government or the State

Government shall, after consultation with the

High Court, appoint a Public Prosecutor and may

also appoint one or more Additional Public

Prosecutors, for conducting in such Court, any

prosecution, appeal or other proceeding on behalf

of the Central Government or State Government,

as the case may be.

(2) The Central Government may appoint one

or more Public Prosecutors for the purpose of

conducting any case or class of cases in any

district or local area.

51

(3) For every district, the State Government

shall appoint a Public Prosecutor and may also

appoint one or more Additional Public Prosecutors

for the district: Provided that the Public Prosecutor

or Additional Public Prosecutor appointed for one

district may be appointed also to be a Public

Prosecutor or an Additional Public Prosecutor, as

the case may be, for another district.

(4) The District Magistrate shall, in

consultation with the Sessions Judge, prepare a

panel of names of persons, who are, in his

opinion fit to be appointed as Public Prosecutors

or Additional Public Prosecutors for the district.

(5) No person shall be appointed by the State

Government as the Public Prosecutor or Additional

Public Prosecutor for the district unless his name

appears in the panel of names prepared by the

District Magistrate under sub- section (4).

(6) Notwithstanding anything contained in

sub- section (5), where in a State there exists a

regular Cadre of Prosecuting Officers, the State

Government shall appoint a Public Prosecutor or

52

an Additional Public Prosecutor only from among

the persons constituting such Cadre:

Provided that where, in the opinion of the

State Government, no suitable person is available

in such Cadre for such appointment that

Government may appoint a person as Public

Prosecutor or Additional Public Prosecutor, as the

case may be, from the panel of names prepared

by the District Magistrate under sub- section (4).

Explanation – For the purposes of this Sub-

Section,-

a) “Regular Cadre of Prosecuting Officers”

means a Cadre of Prosecuting Officers

which includes therein the post of a Public

Prosecutor, by whatever name called, and

which provides for promotion of Assistant

Public Prosecutors, by whatever name

called, to that post;

b) “Prosecuting Officer” means a person, by

whatever name called, appointed to

perform the functions of a Public

Prosecutor, an Additional Public Prosecutor

53

or an Assistant Public Prosecutor under

this Code.

(7) A person shall be eligible to be appointed

as a Public Prosecutor or an Additional Public

Prosecutor under sub- section (1) or sub- section

(2) or sub- section (3) or sub- section (6), only if he

has been in practice as an advocate for not less

than seven years.

(8) The Central Government or the State

Government may appoint, for the purposes of any

case or class of cases, a person who has been in

practice as an advocate for not less than ten

years as a Special Public Prosecutor.

Provided that the Court may permit the victim to

engage an advocate of his choice to assist the

prosecution under this sub-section.

(9) For the purposes of sub- section (7) and sub-

section (8), the period during which a person has

been in practice as a pleader, or has rendered

(whether before or after the commencement of this

Code) service as a Public Prosecutor or as an

Additional Public Prosecutor or Assistant Public

Prosecutor or other Prosecuting Officer, by

54

whatever name called, shall be deemed to be the

period during which such person has been in

practice as an advocate.”

42. Section 25 of the Code reads as

under:-

“25. Assistant Public Prosecutors. (1) The

State Government shall appoint in every district

one or more Assistant Public Prosecutors for

conducting prosecutions in the Courts of

Magistrates.

(1A) The Central Government may appoint one

or more Assistant Public Prosecutors for the

purpose of conducting any case or class of cases

in the Courts of Magistrates.

(2) Save as otherwise provided in sub- section

(3), no police officer shall be eligible to be

appointed as an Assistant Public Prosecutor.

(3) Where no Assistant Public Prosecutor is

available for the purposes of any particular case,

the District Magistrate may appoint any other

55

person to be the Assistant Public Prosecutor in

charge of that case;

Provided that a police officer shall not be so

appointed-

(a) if he has taken any part in the investigation

into the offence with respect to which the

accused being prosecuted; or

(b) if he is below the rank of Inspector.

43. This Section has been the subject matter of

interpretation by the Apex Court in the case of JAYENDRA

SARASWATI SWAMIGAL, referred to supra. The Supreme

Court interpreting the said Section held as under:-

“10. … Section 24 deals with the appointment of

Public Prosecutors. "Public Prosecutor" has been

defined under Section 2(u) of the Cr.P.C.

11. Section 24 (1) deals with the appointment

of Public Prosecutor or Additional Public

Prosecutor for conducting any prosecution, appeal

or other proceedings on behalf of the Central

Government or State Government in the High

56

Court. Sub-section (3) of Section 24 requires that

for every district, the State Government shall

appoint a Public Prosecutor and one or more

Additional Public Prosecutors. Sub-sections (3) to

(7) deal with the appointment of Public Prosecutor,

Additional Public Prosecutor for the district. The

power of appointment is given to the State

Government and such appointment should be

from a panel of names prepared by the District

Magistrate in consultation with the Sessions

Judge. Sub-section (7) of Section 24 provides that

a person shall be eligible to be appointed as a

Public Prosecutor or as an Additional Public

Prosecutor under sub-section (1) or sub-section (2)

or sub- section (3) or sub-section (6) only if he has

been in practice as an advocate for not less than

seven years. A conjoint reading of all these

provisions would clearly show that the State

Government has the power of appointment of

Public Prosecutor or Additional Public Prosecutor

for each district or court of Sessions in the

sessions division in the State to conduct any

prosecution, appeal or other proceedings pending

before the courts in that State. The power of the

State Government to appoint a Public Prosecutor

57

and Additional Public Prosecutor would extend

only for conducting any prosecution, appeal or

other proceedings in the courts within the State.

12. As per the procedure prescribed under

Section 24, the State of Tamil Nadu can appoint

a Public Prosecutor to conduct criminal cases in

any of the court in that State. Such powers cannot

be exercised by the State Government to conduct

cases in any other State. Once the case is

transferred as per Section 406 of the Cr.P.C. 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.

13 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

58

directions irrespective of the provisions contained

in Section 24 of the Cr.P.C. But so far as this case

is concerned, nothing had been stated in the

order of the transfer. The provisions contained in

Section 24 of Cr.P.C. 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 of the

Cr.P.C.

44. It is in this background, when we look at this

provision, it is clear that Section 24 (1) confers power on the

Central Government and the State Government to appoint a

Public Prosecutor and also one or more Additional Public

Prosecutors for every High Court, for conducting in such

Court, any prosecution, appeal or other proceeding on their

behalf. Similarly, sub-section (3) confers power on the State

Government to appoint a Public Prosecutor and also one or

more Additional Public Prosecutor for the District. Section

25 empowers the State Government to appoint in every

District one or more Assistant Public Prosecutors for

conducting prosecutions in the Courts of the Magistrates.

59

Therefore, the statute provides for the appointment of

Assistant Public Prosecutors for the Magistrate Court, the

Public Prosecutor or Additional Public Prosecutor for the

District, and also Public Prosecutor or Additional Public

Prosecutor for the High Court. All these appointments are

for the Courts. Once such appointment is made, they get

authority for conducting in “such Court”, any prosecution,

appeal or other proceeding on behalf of the Government.

The qualification prescribed for being eligible for such

appointment is not less than seven years of practice as an

advocate.

45. Sub- section (8) of Section 24 of the Code deals

with appointment of a Special Public Prosecutor for

conducting any case or class of cases. The reason is

obvious. Under Section 24(1) of the Code, a Public

Prosecutor appointed to the High Court would be dealing

with number of cases. Similarly, the Public Prosecutor

appointed to the District Court also would be dealing with

number of cases. On such appointment to the Court any

60

matter entrusted to them, they are competent to handle.

Thus they will be handling number of cases pending in such

Courts, at any given point of time. However, if a case of

public importance is tried in that Court, they may not be

able to exclusively deal with such case, because they are

entrusted with number of cases in that Court. Therefore,

statute provides for appointment of Special Public Prosecutor

for such cases of public importance. Section 24 (8) of the

Code provides for appointment of a Special Public Prosecutor

for the purpose of any case or class of cases. This is a

provision which enables the State and Central Government

to appoint a Special Public Prosecutor to a case or class of

cases, which is of public importance, where special skill and

knowledge is required. That is why the qualification

prescribed for such appointment is that he has a practice as

an Advocate for not less than ten years. Therefore, statute

makes a clear distinction between appointment of a Public

Prosecutor to a Court and to a case. Once such

appointment is made, then what is the authority and duty,

61

which flows from such appointment is to be seen. That is

spelt out in Section 301 of the Code. Section 301 of the

Code reads as under : -

“301. Appearance by Public Prosecutors.

(1) The Public Prosecutor or Assistant Public

Prosecutor in charge of a case may appear and

plead without any written authority before any

Court in which that case is under inquiry, trial or

appeal.

(2) If in any such case, any private person

instructs a pleader to prosecute any person in

any Court, the Public Prosecutor or Assistant

Public Prosecutor in charge of the case shall

conduct the prosecution, and the pleader so

instructed shall act therein under the directions of

the Public Prosecutor or Assistant Public

Prosecutor, and may, with the permission of the

Court, submit written arguments after the

evidence is closed in the case.

46. From the wording of the aforesaid provision it is

clear that, the Public Prosecutor or Assistant Public

62

Prosecutor in charge of a case may appear and plead without

any written authority before any Court in which that case is

under inquiry, trial or appeal. If a Public Prosecutor is

appointed to the High Court or to the District Court or in

terms of Section 25 in the Court of Magistrates and they are

put in charge of a case in the Court where the said case is

pending. They may appear and plead without any written

authority. If any matter is entrusted which is pending in

that Court, then he would be in charge of that case. Then he

can appear in that case, whether it is under inquiry, trial or

appeal without any written authority. When a Public

Prosecutor is appointed to the High Court or to the District

Court or before a Magistrate, normally he is expected to

appear and plead for a case in a Court to which he is so

appointed. But, the legislature has used the word, he can

appear and plead before “any Court” and not “the Court” in

which that case is under inquiry, trial or appeal. The

importance and meaning to be attached to the word “any

Court” cannot be lost sight of.

63

47. 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

every thing 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.

64

48. 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.

49. Therefore, as held by the Apex Court in the

aforesaid judgments, when the Code meticulously provides

65

for appointment of Public Prosecutors to the High Court,

District Court, Magistrate Court and Special Public

Prosecutor for a case, and under Section 301 of the Code it

declares that Special Public Prosecutor or Assistant Public

Prosecutor in charge of a case may appear and plead without

any written authority before “any Court” in which the case is

under inquiry, trial or appeal, it only means once he is

entrusted with a case, he is put in charge of the case till that

said case ultimately reaches a finality either by way of

discharge, conviction or by way of acquittal, he is entitled to

appear and plead without any written authority. A

conviction or acquittal by a trial Court is only a step

amongst the several steps in which a criminal case has to

pass through. These statutory provisions have to be read as

a whole and one provision should be construed with

reference to the other provision to make the provision

consistent with the object sought to be achieved. Otherwise,

the word ‘any Court’ used in Section 301 would become

redundant. When a Special Public Prosecutor is appointed

66

to a case, he has a right to appear during inquiry, during

trial and also during appeal. He is not appointed to any

Court but appointed to a case. When a criminal case has to

pass through the stages of inquiry, trial or appeal, by virtue

of his appointment, when he is incharge of a case he has a

right to appear and plead without any written authority

before any Court in which that case in whatever stage is

pending.

50. In fact, the Apex Court interpreting Section 301

of the Code in the case of SHIV KUMAR vs HUKAM CHAND

AND OTHERS [1999 (7) SCC 467] held as under:-

“In the backdrop of the above provisions we have

to understand the purport of Section 301 of the

Code. Unlike its succeeding provision in the Code,

the application of which is confined to magistrate

courts, this particular section is applicable to all

the courts of criminal jurisdiction. This distinction

can be discerned from employment of the words

any court in Section 301. In view of the provision

made in the succeeding section as for magistrate

67

courts the insistence contained in Section 301(2)

must be understood as applicable to all other

courts without any exception. The first sub-

section empowers the Public Prosecutor to plead

in the court without any written authority,

provided he is in charge of the case….”.

51. In this context it was submitted that, when the

legislature has used the word ‘case’ it has to be confined to

the Court in which the case is pending. ‘A case’ is different

from ‘appeal’. Relying on the word ‘in which that case is

under inquiry, trial or appeal’ it was argued that when he is

appointed to conduct a trial or appeal in a particular Court,

his appearance is to be confined to that Court. When that

case is over in that Court, his appointment comes to an end.

He has no right to appear and plead in the Court in which

the appeal is preferred or pending. Therefore, it is necessary

to understand the meaning of the word ‘case’ used in the

Code.

52. The Apex Court in a case arising from this Court

in the case of BHIMAPPA BASAPPA BHU SANNAVAR vs

68

LAXMAN SHIVARAYAPPA SAMAGOUDA AND OTHERS [AIR

1970 SC 1153] held as under : -

“8. ……… The word 'case' is not defined by the

Code but its meaning is well under-stood in legal

circles. In criminal jurisdiction means ordinarily a

proceeding for the prosecution of a person alleged

to 'have committed in offence. In other contexts

the word may represent other kinds of

proceedings but in the context of the sub-section it

must mean a proceeding which at the end results

either in discharge, conviction, or acquittal of an

accused person.”

53. Relying on this judgment, the Apex Court in the

case of MANSOOR AND OTHERS vs STATE OF MADHYA

PRADESH [1971 (2) SCC 369] held as under:-

“13. Finally the counsel laid stress on the

submission that the ,appeal in the High Court

was incompetent because the Additional

Government Advocate who had presented the

appeal was not ,the Public Prosecutor. The

Gazette Notification to which our attention has

been drawn shows that Mr. Dubey, the Additional

69

Government Advocate, was notified as Public

Prosecutor for the High Court in respect of the

cases arising in the State of Madhya Pradesh.

The counsel raised an ingenious argument,

namely, that Mr. Dubey could not be considered

to be a Public Prosecutor for presenting appeals in

the High Court against orders of acquittal,

because the appeal could not be described as a

case, which arose in the High Court in which

eventuality alone, he would act as a Public

Prosecutor. The argument has merely to be stated

to be rejected. The counsel tried to seek support

from a decision of this Court reported

as Bhiniappa Bassappa Bhu Sannavat v.

Laxman Shivrayappa Samagouda and others. In

this decision it was said that the word "case"

which is not defined by the Code of Criminal

Procedure is well understood in legal circles and

it ordinarily means a proceeding for the

prosecution of a person alleged to have committed

an offence. It was added that in other contexts

this word may represent other kinds of

proceedings. But in the context of S. 417(3) the

Court said it must mean a proceeding which at

the end results either in discharge, conviction, or

70

acquittal of an accused person. If anything, this

decision goes against the appellants' contention.

The case resulting in the acquittal of the accused

persons would clearly be a case arising in the

State and within the contemplation of the

notification, and the Additional Government

Advocate who is the Public Prosecutor for the

High Court would be entitled to present the

appeal in such a case”.

54. The Andhra Pradesh High Court in the case of

VARJIWAN P SETH vs RATANLAL JAHOTIA AND

ANOTHER [AIR 1964 SC 59] in the context of the word

‘case’ used in Section 193 explained the meaning of the word

‘case’ as under:-

“7. It would, therefore, be useful to try to

understand the meaning of the words "cases" and

'trial' used in Sub-section (2) of Section 193. The

word 'cases' 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.

That word is, in my opinion, broader and wider

than the words "trial of offences". I make no

71

attempt to fasten any formal definition of the word

'cases' which, occurs in Section 193 (2). I would

only note that it is a word of wide or

comprehensive import and clearly covers far larger

area than would be covered by such words as

'appeal', 'revision' or 'trial of offences'. There is,

therefore, in my opinion, nothing incongruous or

repugnant in holding that the word 'case' may

cover a petition filed under Section 528 of the

Code before the Sessions Judge. This word quite

often is used in the Code with an intention to give

it a wider meaning. It undoubtedly differs from the

word 'appeal' or revision'. Nevertheless it retains

its broader meaning in reference to ail other

matters which are not called as 'appeal' or

'revision', trial of offence being only a section of the

various cases which are contemplated by the

Code. The word 'case' has been held to be

comprehensive enough to include proceedings

under Section 107 of the Code….”

55. 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’.

72

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 FIR 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

73

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.

56. Therefore, when a Special Public Prosecutor is

appointed by the State under Section 24 (8) of the Code for

74

the purposes of any case and on such appointment he is put

in charge of a case, Section 301 of the Code empowers him

to appear and plead without any written authority before any

Court in which that case is under inquiry, trial or appeal. As

otherwise, the State has to appoint a Special Public

Prosecutor at every stage of a criminal case. In the scheme

of the Code that is not contemplated. When a Public

Prosecutor is appointed to a High Court under Section 24(1),

to District Court under Section 24(3), to the Magistrate

Court under Section 24(5) of the Code, the Public Prosecutor

so appointed would be incharge of a case which has been

entrusted to him in that Court. Therefore, as every Court

has a Public Prosecutor, after trial when there is an order of

conviction or acquittal, when the appeal is provided and

appeal is preferred, it is the Public Prosecutor who is in the

Appellate Court would prosecute the matter. Similarly, if the

appeal had to be prosecuted in the High Court, the Public

Prosecutor appointed under Section 24(1) of the Code would

prosecute the matter. But, that does not mean that the

75

person who is entrusted with the case, who is appointed

under Section 24 or 25 of the Code is not authorized to

prosecute that case in “any Court” that is under inquiry. He

has such power. By practice, by virtue of the appointment

made in Section 24(1) of the Code, the Public Prosecutor

attached to that Court would prosecute the case. But, a

Special Public Prosecutor appointed under Section 24 (8) of

the Code to a case and not to a Court where experience of

not less than 10 years of practice as an Advocate is insisted

upon, such Public Prosecutor not only is capable of

conducting trial at the lowest level he is equally competent to

prosecute the case in appeal or revision. During trial, if on

an interlocutory order, a revision is filed either by the

accused or to be filed by the State, if the interpretation

canvassed by the appellant is to be accepted, the Special

Public Prosecutor appointed under Section 24(8) of the Code

cannot without a fresh appointment under Section 24(8) of

the Code appear in that revisional Court. To appear in the

revisional Court, one more order under Section 24 (8) of the

76

Code has to be made. That is not the intention of the

legislature.

57. Therefore, the Public Prosecutor was appointed

to conduct CC No. 7/1997 and C.C. No. 2/2001. No doubt it

is mentioned in the brackets as regarding trial of Ms.

Jayalalitha and others in the State of Karnataka. It was

contended relying on the said words that the Public

Prosecutor was appointed only for the purpose of conducting

trial and, therefore, the Public Prosecutor so appointed

becomes functus officio with the conclusion of the trial. The

language employed in the notification is unambiguous. The

Public Prosecutor is appointed to conduct CC No. 7/1997

and CC No. 2/2001. As the name of the parties were not

mentioned, in the brackets it is mentioned as regarding trial

of Ms. Jayalalitha and others in the State of Karnataka. Not

that the Public Prosecutor is appointed only for the purpose

of the trial of the said case. However, in the subsequent

notification appointing 5th respondent in the brackets it is

mentioned, in the case of Kum. Jayalalitha and others.

77

Therefore, 5th respondent is appointed as Special Public

Prosecutor in the case of Kum. Jayalalitha and others.

Accordingly, the 5th respondent by virtue of Section 301(1) of

the Code is entitled to appear and plead in the appeals

pending in the High Court in the case of Kum. Jayalalitha

and others, without any written authority.

58. In the light of the aforesaid discussions, as the

State Government has already appointed a Public Prosecutor

under Section 24 (1) of the Code to the High Court of

Karnataka, the question of this Court issuing any direction

to the State of Karnataka to appoint a Public Prosecutor

under Section 24(1) of the Code would not arise.

59. In so far as appointment of Special Public

Prosecutor under Section 24 (8) of the Code is concerned,

the State of Karnataka has appointed the fifth respondent as

a Public Prosecutor. In fact, the attempt on the part of the

State to withdraw the appointment has been nullified by the

Apex Court and his appointment has been restored.

78

Therefore, the appointment is in pursuance and in obedience

to the directions issued by the Supreme Court under Section

406 of the Code. Therefore, the question of appointing yet

another Special Public Prosecutor on behalf of the State of

Karnataka in the pending appeals would not arise. If the

State of Karnataka wants to appoint a Special Public

Prosecutor in place of the fifth respondent, first the

appointment of the fifth respondent is to be terminated, then

only they can think of making a fresh appointment.

Therefore, the question of issuing any direction to make an

appointment under Section 24 (8) of the Code to the State

Government also would not arise. In that view of the matter,

we do not see any merit in this appeal.

60. In fact, what weighed with the learned single

Judge in rejecting the Writ Petition is the direction issued by

the Apex Court that the Appeal should be heard on day to

day basis and it should be disposed of within 3 months, any

order to be passed by this Court which would come in the

way of the disposal of the said Appeal in terms of the

79

direction of the Supreme Court should be avoided. In fact, it

is settled law that, any proceedings arising out of the

Prevention of Corruption Act, time and again the Apex Court

is reiterating that the trial should not hamper by way of any

interim orders by the High Court. It equally applies to these

proceedings also. That is why we cannot find fault with the

approach of the learned single Judge if he has just followed

the law declared by the Apex Court.

61. However, respondents contended that the

appellant has no locus standi to maintain this Writ Appeal.

As we have decided the case on a pure question of law and

we are dismissing the Appeal, we have not gone into the said

question of locus standi which we are leaving it to be decided

in any appropriate case.

62. It is submitted that, in the appeals, the State of

Karnataka itself is not made a party and, therefore, appeals

are not properly instituted. That is a matter to be decided by

the Court which is dealing with the Appeal and that cannot

80

be the subject matter of this proceeding. It is also submitted

that, it is brought to the notice of the said Court that the

fifth respondent who is representing the investigating agency

of Tamil Nadu is not competent to represent them and the

said memo is not considered. Again that is a matter to be

decided by the Court before whom the memo is filed and that

cannot be the subject matter of this proceeding. Under these

circumstances, we do not see any merit in this appeal.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE

Sd/- JUDGE

sps/ckl/-