IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 9002 of 2011(A) 1. RAGHAVAN, S/O.KELLI, CHETTIKULAM, ... Petitioner Vs 1. THE DISTRICT COLLECTOR, PALAKKAD. ... Respondent 2. ADDITIONAL CHIEF SECRETARY, For Petitioner :SRI.K.M.KURIAN For Respondent : No Appearance The Hon'ble MR. Justice THOMAS P.JOSEPH Dated :25/03/2011 O R D E R THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.9002 of 2011 -------------------------------------- Dated this the 25th day of March, 2011. JUDGMENT
This petition is to quash Ext.P7, order No.66270/C2/2010/Home dated January 5, 2011 rejecting Ext.P4, application made by the petitioner for appointment of a Special Public Prosecutor for conduct of S.C.No.387 of 2006 of the court of learned Second Additional Sessions Judge, Palakkad. According to the petitioner, on account of political enmity his son was murdered by his adversaries on 20.02.2004 and the Police after investigation submitted Ext.P3, final report. The case is pending for trial. 29 witnesses are cited by the prosecution. Petitioner filed Ext.P4, application before the Additional Chief Secretary to Home (C) Department requesting to appoint a Special Public Prosecutor for conduct of the case. It is submitted that pursuant to that request the District Collector, Palakkad sought willingness of an Advocate for being appointed as Special Public Prosecutor vide Ext.P5, dated September 24, 2010. Accordingly that Advocate gave Ext.P6, willingness on September 28, 2010. Thereafter the Government have come out with Ext.P7, order stating that by letter dated September 25, 2010 the Director General of Prosecution, Ernakulam informed the Government that there is no contingency requiring appointment of a Special Public Prosecutor for conduct of the case. Taking the letter of the Director General of Prosecution the Government have issued Ext.P7, order rejecting Ext.P4, application of petitioner. Ext.P7, order is sought to be WP(C) No.9002/2011 2 quashed. Learned counsel submits that so far as appointment of Special Public Prosecutor under Section 24(8) of the Code of Criminal Procedure (for short, "the Code") is concerned, it is the satisfaction of the Government and the Director General of Prosecutor has no role to play in the matter. This is a fit case to appoint a Special Public Prosecutor as revealed by the conduct of the District Collector calling for willingness of the Advocate suggested by petitioner for such appointment. Learned counsel submitted that this being a political murder on the facts set forth in the petition it is necessary to appoint a Special Public Prosecutor. I have heard the learned Public Prosecutor also.
2. Section 24(8) of the Code empowers the Central or State Government as the case may be to appoint for 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. The Central or State Government while deciding the question whether a Special Public Prosecutor has to be appointed or not will have various considerations including opinion of the Director General of Prosecution or such other officer otherwise heading the prosecution agency. It is not as if there is any bar in seeking the opinion of Director General of Prosecution who is able to give better information regarding the need to appoint a Special Public Prosecutor. In Abdul Khader v. Government of Kerala (1992(2) KLT 948) it was held that there should be special circumstances for appointing a Special Public Prosecutor though circumstances may differ in different situations. In otherwords a Special Public Prosecutor is not to be appointed in the ordinary circumstances. It is only when the public interest WP(C) No.9002/2011 3 demanded and not to vindicate grievance of a private person that appointment of a Special Public Prosecutor is required. I have gone through the averments in the petition. True, it is stated that it is a political murder. But the main reasons stated for appointment of Special Public Prosecutor are work load of existing Public Prosecutors in the District and their alleged political affiliations. In that regard there are only vague allegations. It is not as if the Public Prosecutor who is entrusted with the responsibility to conduct prosecution in this case will not discharge his duty honestly and sincerely. At least I do not find reason to think so. It is open to the petitioner to engage a lawyer of his choice invoking Section 301 of the Code, and such lawyer can discharge the duties as provided under the said provision. I must bear in mind that the court is not a silent spectator in the trial that is being conducted before it. The court is an active participant in the trial of the case. In such a situation mere allegation of political affiliation or, work load of Public Prosecutors who are concerned is not sufficient to direct the Government to appoint a Special Public Prosecutor. I therefore find no reason to interfere with the impugned order.
Resultantly this petition is dismissed without prejudice to the right of petitioner to engage a lawyer of his choice as provided under Section 301 of the Code.
THOMAS P.JOSEPH, Judge.