Bombay High Court Examines Validity of Special Public Prosecutor Appointments; Appointments Made at Instance of Complainants Challenged as Violative of Mukul Dalal Guidelines and CrPC.

Challenge to the validity of appointments of Special Public Prosecutors under Section 24(8) of the Code of Criminal Procedure, 1973, made at the instance and cost of the complainants.

The petitioners sought quashing of the notifications appointing the respondent No. 2 in each petition as Special Public Prosecutor.

The appointments were alleged to be in violation of the Rules for the Conduct of Legal Affairs of Government and the guidelines laid down by the Supreme Court in Mukul Dalal v. Union of India, and were challenged on grounds of bias and vagueness of the notification.

Challenge to the vires of Rule 22 was abandoned after its amendment; no prior judicial determination on these specific appointments.

Whether the appointments of Special Public Prosecutors satisfied the requirements of Section 24(8) CrPC and the relevant rules? Whether the guidelines in Mukul Dalal v. Union of India were violated? Whether prior engagement of the appointee as private counsel for the complainant disqualified him from acting as Special Public Prosecutor? Whether the notifications were vague for not specifying whether they were for a particular case or class of cases?

Petitioners argued that Section 24(8) CrPC empowers the Government to appoint Special Public Prosecutors, but the appointments were made without following the procedure under the Rules for the Conduct of Legal Affairs of Government, which was contrary to the directions in Mukul Dalal. The rule existing at the time of appointment (Rule 22 as amended) was ultra vires and the appointments were invalid. Additionally, the appointees had previously represented the complainants, creating bias and prejudice to the accused. Respondents (State and private) contended that the power under Section 24(8) CrPC is self-contained and not dependent on the rules, which are merely procedural. Even without Rule 22, the Government could appoint. Precaution was taken to comply with Rule 18. There was no vagueness; 'cases' referred to miscellaneous matters arising from the same FIR. Prior engagement as private counsel did not disqualify or necessarily indicate bias; the respondent No. 2 in WP 290/2005 offered to withdraw from the defence case.

The justifiability of the appointments of the respondent No.2 in both the petitions as the Special Public Prosecutors, at the instance and cost of the complainants in the criminal cases, is being challenged in these petitions. In Writ Petition No.1899 of 2004, the petition was initially filed challenging the vires of the Rule 22 in Chapter III of the Rules for the Conduct of the Legal Affairs of Government, 1984 as amended by the Government Amendment Rules 2002. However, the said challenge has been specifically abandoned in view of the fact that the said rule has already been amended during the pendency of the petition. It is the contention of the learned Advocate for the petitioners that though the Section 24(8) of the Code of Criminal Procedure, 1973 empowers the Government to 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 10 years as Special Public Prosecutor, the authorities have not followed the procedure prescribed for an appointment of Special Public Prosecutor and the procedure adopted is contrary to the one prescribed under the rules for the Conduct of Legal Affairs of Government, as well as contrary to the directions issued by the Apex Court in Mukul Dalal’s case (supra).

In Criminal Writ Petition No.1899 of 2004: Complaint lodged on 29-10-2000 registered as C.R.No.I-301 of 2003 under IPC Sections; prior to FIR, complainants filed Writ Petition No.1632 of 2003 seeking direction to register FIR, where respondent No.2 appeared as advocate. Petitioner filed Criminal Application No.1394 of 2003 for anticipatory bail in Sessions Court, Thane; respondent No.2 appeared first for intervenor and later as Special Public Prosecutor. Petitioner filed Criminal Application No.687 of 2004 in High Court; initially State represented by AP. Public Prosecutor, then respondent No.2 appeared on 13-02-2004 as privately engaged by respondent No.1, and from 15-03-2004 as appointed Special Public Prosecutor. Notification dated 12-03-2004 appointing respondent No.2 as SPP for all cases arising from C.R.No.I-301 of 2003 was challenged. In Criminal Writ Petition No.290 of 2005: Petitioners lodged FIR on 27-10-1996 under IPC Sections 447, 427 r/w 34; accused acquitted on 31-10-2003. On 10-02-2004, incident occurred where petitioner No.1 shot respondent No.1's father in self-defence; petitioners lodged C.R.No.34 of 2004 under Section 307 r/w 34 IPC (Sessions Case No.352 of 2004); respondent No.1 lodged C.R.No.35 of 2004 (Sessions Case No.156 of 2004). Both cross cases to be heard by same Sessions Judge. Respondent No.2 represented respondent No.1 in Sessions Case No.352 of 2004 and other civil cases. Notification dated 01-10-2004 appointing respondent No.2 as SPP in Sessions Case No.156 of 2004 was challenged. Both writ petitions were filed thereafter and heard together.

• Code of Criminal Procedure, 1973: Section 24(8)
• Indian Penal Code: Sections 467, 477(A), 408, 420, 506, 120(B), 447, 427 read with 34, 307 read with 34
• Rules for the Conduct of Legal Affairs of Government, 1984 (as amended): Rule 18 in Chapter III, Rule 22 in Chapter III