- (1.) Special leave granted in each of the three cases. A common question arising for consideration in these appeals is as to the justifiability of the appointment by the State of Special Public Prosecutors and Assistant Public Prosecutors under sections 24 and 25 respectively of the Code of Criminal Procedure, 1973 at the cost of the private complaints. In Criminal Appeal arising out of S.L.P. (Cri.) No. 3027 of 1986 the appellants are facing prosecution for charges of forgery and cheating before the Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Bombay. On 4th of December, 1979 the Government of Maharashtra appointed an Assistant Public Prosecutor for conducting the said case for the prosecution in exercise of powers under section 25(1) of the Code of Criminal Procedure. In the connected Criminal Appeal arising out of S.L.P. (Cri.) No. 3048 of 1986 the appellant is accused of an offence punishable under section 409 read with sections 120-B and 34 of the Indian Penal Code and is facing his trial in the Court of the same Metropolitan Magistrate. On 3rd of August, 1983, the State of Maharashtra in exercise of the powers under section 24(8) of the Code of Criminal Procedure has appointed two Advocates as Special Public Prosecutors for conducting the prosecution. In the other connected Criminal Appeal arising out of S.L.P. (Cri.) No. 703 of 1987) the appellants are being tried for offences punishable under sections 506(ii), 337, 354, 504, 498-A, read with section 114 and 34 of the Indian Penal Code in the Court of the Metropolitan Magistrate, 40th Court, Girgaum, Bombay. By notifications dated December 4, 1979, August 3, 1983 and July 17, 1985, the Government of Maharashtra in exercise of powers under section 24(8) of the Code appointed two Advocates as Special Public Prosecutors for conducting the prosecution. These notifications were assailed in a group of writ petitions before the Bombay High Court and a Division Bench of that Court by a common judgment dated July 2, 1986, rejected the writ petitions and upheld the appointments. That common judgment of the High Court is assailed in this batch of appeals. Since common questions have been raised and argued at a time, this judgment shall dispose of all the three appeals.
(2.) The impugned appointments have been made either in exercise of powers under section 24 or section 25 of the Code of Criminal Procedure of 1973. Section 24 deals with Public Prosecutors while section 25 makes provision for Assistant Public Prosecutors. While sub-section (1) of section 24 enables the Central Government or the State Government to appoint a Public Prosecutor or an Additional Public Prosecutor for the purposes of High Courts, sub-section (2) makes provision for appointment of one or more Public Prosecutors for the purposes of conducting of case in any district or local area and sub-sections (4), (5), (6) and (7) deal with the modality of such appointments, sub-section (8) provides:- "The Central Government or the State Government may 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." Section 25 deals with the appointment of Assistant Public Prosecutors, sub-section (1) provides:- "The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the courts of Magistrates." The provisions contained in these two sections in the Code of 1973 correspond to section 492 of the Code which dealt with the appointment of Public Prosecutors.
(3.) Challenge by the appellants to the notifications in question is on the ground that the Code confers a special status on the Public Prosecutor; wherever it has been considered necessary, law has prescribed the interest to be represented by the Public Prosecutor and it would not be in proper exercise of power by the State Government to make appointment of a Special Public Prosecutor to support a private transaction and provide for his remuneration from private source. The High Court referred to some decisions of the different courts supporting and opposing the view canvassed before it and came to hold :- "According to us, the conduct of prosecution by a lawyer appointed and paid by the private party does not effect his capacity and ability to perform his role as a Public Prosecutor. To accept such a proposition is to invalidate all private prosecutions." Negativating the plea advanced by the appellants, the High Court has further held :- "For the reasons given above, with respect, it is not, possible for us to agree that a pleader engaged by a private person is a de facto complainant and cannot be expected to be as impartial as pleader appointed by the State to conduct public prosecution. On the other hand, we are of the view that as stated earlier, permission to engage an Advocate should be given freely to the complainant. The complainant has as much a right as the accused to represent his case effectively before the Court." The High Court also negatived the challenge against the appointment of the Assistant Public Prosecutors under section 25 by holding :- "Hence the absence of a provision such as section 24(8) will not bar appointment of an Assistant Public Prosecutor specially to conduct a case or class of cases." While dealing with the matter at a different place in the judgment the High Court observed :- "But apart from this, we are of the view that guidelines or no guidelines, whenever there is a request made by a private party to engage an Advocate of his choice to be paid for by him, the request should be granted as a rule. The complainant in such case is either a victim of the offence or is related to the victim or otherwise an aggrieved person. He has a right to be heard and vindicated. As stated earlier, the right to be heard implies a right to be effectively represented at the hearing of the case. He has, therefore, a right to engage an Advocate of his choice. There is therefore no reason why the State should refuse him the permission to conduct the prosecution with the help of his Advocate." Appellants' Counsel have challenged these conclusions of the High Court. Under the Criminal Procedure Code, the Public Prosecutor has a special status, and his is a statutory appointment. Under some of the provisions made in the Code, he receives special recognition. Section 2(u) of the Code defines the Public Prosecutor. Sections 199(2), 225, 301(1), 301(2), 306, 321, 377 and 378 are some of the provisions in the Code which confer a special position upon the Public Prosecutor. From the spirit contained in the scheme of the Criminal Procedure Code it is clear that it is the duty of the Public Prosecutor to support prosecutions initiated by the State. Trial before a Court of session has to be conducted by the Public Prosecutor as required under section 225 of the Code. Cases instituted on a police report are intended also to be handled by a Public Prosecutor. Cases instituted on a complaint, however stand on a different footing and the complainant has choice of his own Counsel. A set of rules known as Maharashtra Law Officers (Appointment, Conditions of service and Remuneration) Rules, 1984 made in exercise of powers conferred by proviso to Article 309 read with Article 165 of the Constitution have been placed before us in course of the hearing. Chapter III of those rules lays down qualifications of the Government Pleader and Public Prosecutor while Chapter IV prescribes the duties of the Public Prosecutor. Another set of rules known as the rules for the Conduct of the Legal Affairs of the Government, 1984, which appears to be administrative in character, was also placed before us. Chapter III of these Rules provides for Special Counsel and Special Public Prosecutors and Rule 22 thereof provides:--- "If in any case, civil or criminal, a request is made by any private party, interested in the case, for the appointment of its own Advocate as a Special Counsel or Special Public Prosecutor, as the case may be, on the condition that, the payment of fees of such Advocate will be borne by that party, the Remembrance of Legal Affairs may, after considering such case on merits, appoint such Advocate for that particular cause or cases." Appellants' Counsel challenged the validity of Rule 22 and contended that such a Rule is contrary to the spirit of Code of Criminal Procedure and this rule affects the special status conferred on the Public Prosecutor and would cause prejudice to that public office. The office of the Public Prosecutor is a public one. A learned Single Judge of the Delhi High Court in (K.C. Sood v. S.C. Gudimani)1, (1981)II Cri.L.J. 1779 (Del.), rightly held that the Public Prosecutor, the Additional Public Prosecutor and the Assistant Public Prosecutor hold an office. The learned Judge said : --- "It is public office of trust and therefore like any other Public office is susceptible to misuse and corruption if not properly insulated. It is an office of responsibility more important than many others because the holder is required to prosecute with detachment on the one hand and yet with vigour on the other. When Advocates are recruited to these offices, they have certain professional and official obligation and privileges. Some State Governments have appropriately made it an express term of their appointment that they shall not accept any brief in criminal matters and shall note even in civil matters appear in any case in which the interests of the State appear to be involved." Similar observations were made by another learned Single Judge in the case of (P.G. Narayankutty v. State of Kerala)2, (1982)88 Cri.L.J. 2085 (Kerala). In this case, Bhat, J., of the Kerala High Court pointed out :- "Special Public Prosecutor cannot be appointed with a view to secure convictions at all costs. Special Public Prosecutor could be appointed only when public interest demands it and not to vindicate the grievances of a private person, such as close relation of the deceased. In order that he discharges his duties property, he should look to the State for remuneration for his services; if he looks to a private party for his remuneration, his capacity and ability to perform his role as Public Prosecutor properly will be endangered Government cannot appoint Special Public Prosecutor on such terms, abdicating their financial responsibility or directing him to receive his remuneration from any private individual--";