Case Note & Summary
The petitioners, Omprakash Baheti and others, are accused in Sessions Trial No. 464/2005 pending before the 6th Adhoc Additional Sessions Judge, Nagpur, under Sections 304-B and 498-A of the Indian Penal Code read with Sections 3 and 4 of the Dowry Prohibition Act, 1961. The case arises from the death of Rekha, wife of Mahesh Baheti, and the FIR was lodged by respondent no.3, Bajranglal Malu, father of the deceased, on 10.8.2004 at Police Station Kotwali, Nagpur. The petitioners challenged the order dated 4.9.2004 passed by respondent no.1 (State of Maharashtra) appointing Advocate Avinash Gupta as Special Public Prosecutor to conduct the trial and incidental proceedings. The main legal issue was whether such appointment under Section 24(8) of the Code of Criminal Procedure, 1973 (CrPC) was valid without the consent of the accused. The petitioners argued that the appointment was made at the instance of the complainant (respondent no.3) without their consent, and that the power under Section 24(8) CrPC should be exercised sparingly and only for just and reasonable cause. The respondents contended that the appointment was valid as the State had the authority to appoint a Special Public Prosecutor. The court analyzed Section 24(8) CrPC and held that the appointment of a Special Public Prosecutor requires the consent of the accused or the victim, and not a third party complainant. The court found that the appointment was made solely at the behest of respondent no.3 without any just and reasonable cause, and therefore quashed the impugned order. The court also directed that the trial may proceed with the regular Public Prosecutor.
Headnote
A) Criminal Procedure - Appointment of Special Public Prosecutor - Section 24(8) CrPC - Consent Requirement - Appointment of Special Public Prosecutor under Section 24(8) CrPC requires the consent of the accused or the victim, not a third party complainant - The court held that the appointment of Advocate Avinash Gupta as Special Public Prosecutor at the behest of respondent no.3 (father of deceased) without the consent of the accused petitioners was illegal and liable to be quashed - Held that the power under Section 24(8) CrPC must be exercised sparingly and only for just and reasonable cause, not for the convenience of a private party (Paras 1-10).
Issue of Consideration
Whether the appointment of a Special Public Prosecutor under Section 24(8) of the Code of Criminal Procedure, 1973, at the instance of a private complainant (father of deceased) without the consent of the accused is valid.
Final Decision
The impugned order dated 4.9.2004 appointing Advocate Avinash Gupta as Special Public Prosecutor is quashed and set aside. The trial may proceed with the regular Public Prosecutor.
Law Points
- Appointment of Special Public Prosecutor under Section 24(8) CrPC requires consent of accused or victim
- not third party complainant
- Appointment must be for just and reasonable cause
- Not for private party's convenience
