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
®
2
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.
3
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
9
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
10
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
13
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.
16
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.
17
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
18
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
20
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
23
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
24
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
25
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/-