AR. LAKSHMANAN, J. - (1.) HEARD Mr. T. V. Prabhakaran and Mr. T. Ravikumar for the appellant; Mr. P. Gopalakrishnan Nair for the first respondent and Mr. Antony Dominic for the third respondent.
(2.) THIS Writ Appeal is directed against the judgment of c. S. Rajan, J. in OP 7862 of 1998 dated 15-6-1998 dismissing the Original petition filed by the appellant to quash Ext. P1 authorising Mr. Kallada sukumaran, Director General of Prosecution (third respondent herein) as Special public Prosecutor to conduct the prosecution in the Court of Special Judge at ernakulam in the cases charged in connection with Crime No. 455/cr/88 investigated into and charge-sheeted by the Special Squad for Idamalayar investigation, Trivandrum. The said appointment was made by the Government of kerala in exercise of the powers conferred by sub-section (8) of Section 24 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code')and in supersession of the Notification No. 18-507/ssa2/97/home dated 15-4-1997. The reason for quashing Ext. P1 has been stated as bitter animosity of Mr. Kallada Sukumaran against the appellant, Mr. R. Balakrishna Pillai, a former Minister under the Government of Kerala. Though the case was registered as Crime No. 455/cr/88 by the special Squad of the Police as per the order of the Government consequent on the recommendation of the Enquiry Commission (Justice Sukumaran commission of Inquiry) appointed by the Government on 21-12-1985 to probe into the reasons and allied matters on the crack noticed in the power tunnel of the idamalayar Hydro Power Project during the trialrun on 15-7-1985 and later registered as CC1 of 1991 before the Special Judge (Idamalayar Investigation), the case has not reached its finality and one party or the other is litigating in court. The legal battle is still on. The State Government constituted a Special Squad headed by a Superintendent of Police to conduct the investigation of the crime. Final report of the case was filed by the Special Squad on 13-12-1990 against the appellant and other co-accused for offences involving criminal conspiracy, breach of trust, cheating, corruption etc. in respect of various transactions connected with the award and execution of contract for construction of tunnel lining, and surge-shaft of the Idamalayar Hydro Electric Project, which led to loss to the State exchequer to the tune of several crores. According to the state, the appellant, who was the Minister for Electricity during the relevant time, entered into criminal conspiracy with the co-accused in the case and in pursuance thereof some of them including the appellant, who were public servants, by abusing their official position, enabled their co-conspirators to obtain huge pecuniary advantage by settling the above contract work to one among themselves at extraordinary huge rates of 188% above the estimate rate in the case of tunnel lining work and 162% in the case of surge-shaft work by introducing special conditions in the agreement and by doing substandard construction work and other acts of malfeasance and misfeasance as detailed in the final report. The case was taken on file by the Special Judge and Enquiry commissioner, Trivandrum as CC 22 of 1990 which was later transferred and numbered as CC 1 of 1991 on the file of the Court of Special Judge, Ernakulam which was constituted by the Government for the trial of Idamalayar case. The names of Special Public Prosecutors appointed for conduct of prosecution in this case and the respective periods of their Office are shown below : "1. Mr. Kunhirama Menon till 26-7-1992. 2. Mr. P. V. Madhavan Nambiar - 27-7-1992 to 30-6-1994. 3. Mr. P. K. Appa Nair - 4-8-1994 to 17-9-1995. 4. Mr. Balagopalan Nair - 13-10-1995 to 7-7-1996. 5 Mr. P. K. Asokan - 8-7-1996 to 17-11-1996. 6 Mr. K. K. Vijayan - 18-11-1996 to 30-12-1996. 7 Mr. P. K. Haridas - 17-4-1997 to 21-4-1998. 8 Mr. Kallada Sukumaran (Director General of prosecution, Kerala) from 27-4-1998. " It is stated that prolonged adjournments of the trial of the case and frequent litigations at the instance of the parties and other accused and the pendency of the same in this Court and also in the Supreme court caused delay in completion of the trial of the case.
(3.) THE reason for filing the Original Petition and thereby to quash the order of appointment of the third respondent under Ext. P1 is the long standing enmity between the appellant, third respondent and one Mr. V. S. Achuthanandan. According to the appellant, he is very much aggrieved by the order appointing the third respondent to be in-charge of the prosecution as according to him, it is illegal and in violation of the provisions regarding appointment of Special Public Prosecutor. In support of his contention that there is ill-feeling and enmity between the appellant and the third respondent, the appellant has cited a few instances. THE first instance is the filing of an application as Cri. M. P. 64 of 1994 in CC 1 of 1991 for discharge (of the appellant) under Section 239 of the Code. THE said petition was posted for bearing. At that time, the third respondent filed a detailed objection on behalf of Mr. V. S. Achuthanandan, the then Opposition Leader, Kerala legislative Assembly and argued against the plea of discharge of the appellant. THE Special Judge considered the question whether a third party Mr. Achuthanandan can be allowed to intervene in the bearing of the case. He held that the, objection filed by the third party through the third respondent against the discharge of the appellant is entertainable and that the third party must be given an opportunity for being heard. Ext. P2 is the said order of the special Judge. THE order of the Special Judge was challenged in this court and this Court, by order dated 17-11-1994, held that a third party cannot be permitted to trespass into the region of the rights of the accused and, therefore, held that the Special Judge has committed an illegality in holding that an opportunity can be given to Mr. Achuthanandan for being heard. THE said judgment is reported in Balakrishna Pillai v. State of Kerala (1994 (2) KLT 1017) and marked as Ext. P3 herein. It is seen from Ext. P2 that Mr. Achuthanandan was being represented by the third respondent on different stages of the trial and before the Commission of Enquiry also. THErefore, it is said that the third respondent is a very interested person as far as the appellant is concerned to see that the appellant is convicted. The second instance as narrated by the appellant is that when he was in the Cabinet, the third respondent represented to the government his apprehension that his life is at risk for conducting effectively the Idamalayar investigation on behalf of Mr. Achuthanandan against the appellant. This issue was also raised in the Assembly by the C. P. I. (M ). Consequently police protection was given to the third respondent by the government which appeared in the prominent newspapers also. According to the appellant, this will show the bitter animosity of the third respondent against the appellant. The third contention is that as per Section 24 (8) of the Code, which provides for appointment of a Special Public Prosecutor, the Government, instead of appointing the third respondent as a Special Prosecutor, has authorised him to conduct the prosecution in the Court of special Judge at ernakulam. Section 24 of the Code provides for appointment of Public prosecutors which includes Special Public Prosecutors as well. Under the said section, the State Government, after consultation with the High Court, shall appoint a Public Prosecutor and may also appoint one or more Additional Public prosecutors for conducting in such Court any prosecution, appeal or other proceedings on behalf of the Central Government or State Government, as the case may be. Sub-section (8) enables the Central Government or the State 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 ten years, as a Special public Prosecutor. The expression used in Section 24 (8) of the Code is "appoint". According to the appellant, third respondent was not appointed as per Section 24 (8) and, therefore, he is not empowered to conduct the prosecution by virtue of Ext. P1 notification since he is not 'appointed', but only "authorised" to conduct the prosecution. It is represented that the said objection was rejected by order dated 27-5-1998 by the Special judge. However, this order was not challenged by the appellant before this court.;