VIJAY VALIA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this group of writ petitions/applications, a common question of law concerning the appointment of Special Public Prosecutor and Assistant Public Prosecutor under sections 24(8) and 25(1) respectively of the Code of Criminal Procedure, 1973, (hereinafter referred to as the Code) has been raised, and hence, they are being disposed of by this common judgment. In writ Petition No. 527 of 1986 the challenge is to the appointment of an Assistant Public Prosecutor under section 25(1) whereas in all other writ petitions the challenge is to the appointment of Special Public Prosecutors under section 24(8).

(2.) The challenge is mainly on two grounds. The first ground is that neither section 24(8) nor section 25(1) lays down any guidelines as to when Special Public Prosecutor/Assistant Public Prosecutor should be appointed. To that extent there is an excessive delegation of power, and hence the power conferred under the said sections is arbitrary and violative of Article 14 of the Constitution. The second ground is that the appointment of Special Public Prosecutor Assistant Public Prosecutor at the instance of the complainant and paid for by him is bound to act to the prejudice of the accused because : (a) the prosecutor so appointed will be inclined in favour of the complainant and against the accused, and will therefore, not conduct the prosecution impartially; (b) he may not act impartially under section 321 of the Code in exercising his power to withdraw the prosecution. In obtaining sanction of the Government for the purpose under Rule 49(7)(a) of the Rules for the Conduct of the Legal Affairs of Government, 1984, (hereinafter referred to as the Conduct Rules) and under Rule 14 of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984, (hereinafter referred to as the Appointment Rules) there will be a conflict of interests in his duty to the State as an officer of the Government and as an Advocate for the complainant who engages him; (c) in issuing certificate under section 308 of the Code to a person who has accepted the tender of pardon, such prosecutor may not act independently; and (d) he may not render impartial advice to the State Government for preferring an appeal under section 378(1) of the Code read with Rules 49(9)(b) and 50(1)(a) of the conduct Rules. Some decisions were cited at the Bar in support and against these propositions.

(3.) Before we deal with the above contentions, we feel it necessary to draw attention to certain basic features of the administration of criminal justice in this country. The First Schedule of the Code classifies offences under the Indian Penal Code and other laws into two categories-cognizable and non-cognizable. Some laws themselves specify offences under them as either cognizable or non-cognizable. The Code lays down different procedures for prosecution of the two classes of offences. Under section 156 of the Code, a cognizable offence is investigated by the police without order of the Magistrate while section 155(1) requires the police to refer the informant of a non-cognizable offence to the Magistrate. The police cannot investigate a non-cognizable case without the order of the Magistrate. If police investigation in cognizable case and when ordered by the Magistrate in non-cognizable cases, reveals in offence, the State is under an obligation to undertake the prosecution of the offender. In a non-cognizable case which is not investigated by the police and in which the complainant himself chooses to file the complaint before the Magistrate, the burden to prosecute the offender lies on the complainant. It happens some times that even when cognizable offender are committed, the State does not prosecute the offender either because the police investigation does not reveal an offence or for other reason. In such cases, the individual aggrieved by the offence may himself prosecute the offender. It also happens that before police-investigation is undertaken or is complete in an offence, a private party approaches the Court, and when subsequently the police submit their report, the complaint filed by the private party and the case arising out of the police report are tried together as if it is a prosecution launched by the State. What is therefore necessary to remember is that whether the offence is cognizable or non-cognizable, it is an offence against the State. Both the State and the private party have a right to prosecute the offender whether the offence is cognizable or non-cognizable and the prosecution, whether launched by the private party or the State, is a prosecution on behalf of the State. It is further the State alone which execute the sentence if any.