- (1.) APPOINTMENT of the second respondent as the Special Public Prosecutor to conduct the prosecution of the case relating to Crime No.433 of 2012 of the Vadakara Police Station (otherwise known a T.P. Chandrasekharan case) and Crime No.233 of 2012 of the Chombala Police Station, Kozhikode and other auxiliary proceedings including the bail application before this Court and lower courts, is the subject matter of challenge. The main grounds of challenge are; absence of public interest, absence of any consultation in view of the mandate under Section 25A of the Cr.P.C; non satisfaction of the course and proceedings stipulated under sub-sections (4) and (5) of Section 24 Cr.P.C. and the non-desirability or suitability of the 2nd respondent, to be appointed as Special Public Prosecutor .
(2.) THE first petitioner is the 50th accused in Crime No.433 of 2012 of Vadakara Police Station, which stands committed for trial to the Sessions Court and is pending before the Addl. Sessions Judge (Marad cases), Kozhikode as SC. 867 of 2012. The second petitioner is a person, who was an aspirant to the post of Clerk in the Kasaragod District Co-operative Bank in the selection conducted in the year 1994, who, allegedly came to be sidelined, while giving appointment to some others, pursuant to the alleged conspiracy and manipulation of records by some Members of the Board of Directors of the Bank. The second respondent, who was a member of the Board of Directors, is stated as the 2nd accused in Crime No. 81 of 1995 of the Kasaragod Police Station registered in this regard under the relevant provisions of the IPC and the Prevention of Corruption Act; which is now pending before the Enquiry Commissioner and Special judge, Kozhikode as CC.28/2006. Alleging that the second respondent is a politically influential person and apprehending chance for denial of opportunity for a fair trial, (if the second respondent is permitted to conduct the prosecution as Special Public Prosecutor) in both the cases, the petitioners are before this Court challenging Ext.P3 order of appointment on various grounds. A detailed statement has been filed on behalf of the first respondent, pointing out that the idea and understanding of the petitioners as to the scope and applicability of Section 25A of the Cr.P.C. and also as to the course and procedure in respect of appointment of Spl. Public Prosecutor under Section 24(8) of the Cr.P.C. are quite wrong and misconceived. It has been asserted that Section 25A of the Cr.PC, which was incorporated in the statute as per Act 25/2005 w.e.f. 23.06.2006, has not been implemented as such in the State of Kerala, as it is not at all mandatory to constitute the Directorate of Prosecution under Section 25A, it being optional. It is stated that, no Directorate as contemplated under Section 25A has been constituted in the State of Kerala and hence, no concurrence of the Director General of Prosecution is necessary for appointing an eligible hand as the Special Public Prosecutor. The case in hand is stated as an instance of brutal murder by a hired gang, in conspiracy with several others and implemented with the help of many others, who have been arrayed as accused. It is specifically contended that appointment of Special Public Prosecutor under Section 24(8) of the Cr.PC. stands on a different footing and it is not governed by the requirements under Section 24(4 ) and 24 (5). The first respondent asserts that it is a case of much public importance and of sensational nature. 76 accused are involved and as many as 280 witnesses are there on the side of the Prosecution. Competency of the second respondent is sought to be highlighted with reference to his appointment as Spl. Public Prosecutor in various cases, even by the previous Government, irrespective of the political ideology of the second respondent. The personal insinuation against the 2nd respondent in Ext.P2 case, where he has been implicated as an accused in the capacity as a Director of the concerned Co--operative Bank in connection with selection and appointment to various posts in the Bank in 1994 cannot be a bar with regard to such appointment as Spl. Public Prosecutor.
(3.) MR . K. Ramkumar, the learned Sr. Counsel appearing for the petitioners asserted that no 'public interest' is involved in this case, to have appointed a Special Public Prosecutor. Ext.P3 is totally silent in this regard, which according to the petitioners,has been passed merely on the basis of the request made by the widow of the deceased. Such course has been heavily deprecated by Courts always, highlighting the necessity to have 'public interest'. It is stated that 'consultation' being mandatory to have anybody appointed as Prosecutor/Addl. Prosecutor, appointment of 'Special Public Prosecutor' is not a matter of exception. Reliance is sought to be placed on the decision reported in 1982 KLT 605 (Narayanankutty vs. State of Kerala and others), 2002 CRL.L.J. 1694 (Madhu Singh vs. State of Rajasthan) (Rajasthan High Court) 2005 CRL.L.J 3000 (K.V. Shiva Reddy vs. State of Karnataka) (Karnataka High Court ), 2008(2) KLT 941 (A.P)) (Paramjit Singh Sadana vs. State of A.P.) and of this Court in Shibu N.N. vs. State of Kerala (2010 (2) KLD 601). It is also highlighted that the second respondent, by virtue of being an accused in a Vigilance case, which is pending trial, is 'not a fit person' to be appointed as Spl. Public Prosecutor in a murder case and by virtue of the chances to have close association with the police officers at higher levels, there will not be any fair trial in both the cases.;