Ganendra Naryan Ray, J. - (1.) This writ petition is moved with notice to the respondents and Mr. Bhattacharya has entered appearance for the respondent No. 2 and Mr. Mukherjee has entered appearance on behalf of the added respondent No. 8, Prabhat Chandra Ghose. In this writ petition, the order of appointment of the respondent No. 4, Birendra Nath Bose as Public Prosecutor in a sessions trial in the Court of the 1st Additional Sessions Judge, 24-Parganas in the case of State v. Dilip Ghose is under challenge. The impugned order of appointment is Annexure 'A' to the writ petition. It appears that by an order dated 28th July, 1980, the Governor was pleased to appoint Shri Birendra Nath Bose as a Special Public Prosecutor under section 24(6) of the Code of Criminal Procedure to conduct the prosecution in the said sessions trial on usual terms. It was also stated in the said order that the fees of the lawyers would be borne by the complainant.
(2.) It is contended by the petitioner that over an incident concerning Jadavpur P. S. Case No. 90 dated 2'6th January, 1977, a charge sheet was submitted by the police against the accused petitioners, Dilip Ghosh and others and the case was ultimately transferred to the Court of the Judicial Magistrate, 2nd Court, Alipore. Upon an application being made by the State asking permission to withdraw the case against the accused persons, the learned Judicial Magistrate was pleased to accord such permission and the case was withdrawn by the State and the accused petitioners were thereafter discharged from the case. It appears that the father of the deceased victim, Gopinath Ghose, filed a revisional application before this Court, being Criminal Revision Case No. 688 of 1978 challenging the legality and/or validity of the order granting permission to withdraw the prosecution. The said criminal revision case was heard by a Division Bench of this Court but the said revisional application was dismissed but it was, inter alia, observed by their Lordships in the judgment passed in the said criminal revisional proceeding that the de facto complainant had an alternative remedy and if he would choose, he could file a petition of complainant before a competent Court. It appears that thereafter the father of the said deceased Gopinath Ghose filed a petition of complaint before the learned Subdivisional Judicial Magistrate, Alipore, and the accused petitioners were summoned to stand their trial for offences under sections 147, 304/34 of the Indian Penal Code and the said complaint case was subsequently transferred to the Fourth Court of the Judicial Magistrate, Alipore. In the said complaint case, Shri Birendra Nath Bose, who has been appointed a Special Public Prosecutor by the impugned order appeared for the complainant at the cost of the complainant and conducted the said complaint case on behalf of complainant. The learned Fourth Judicial Magistrate ultimately committed the case to the Court of Sessions whereupon the Sessions Trial Case No. 42(6)/1980 of the First Court of the learned Additional Sessions Judge, Alipore, has been started.
(3.) The petitioners contend that when the said case was committed to the Court of Sessions, the said learned Advocate, Shri Birendra Nath Bose and Shri Biraj Mohan Chaklanabis appeared for the de facto complainant and wanted to make some submissions before the learned Sessions Judge but the learned Sessions Judge had observed that the said Advocates had been engaged by the de facto complainant and as such they had no locus standi. It appears that one Shri Rabin Brahma appeared as a Prosecutor in the said case and the said Shri Brahma was a member in the panel of the Government Prosecutors. The petitioners contend that the de facto complainant, namely, the father of the victim thereafter made an application to the Government of West Bengal for appointing Shri Birendra Nath Bose, Advocate, as a Special Public Prosecutor under section 24(6) of the Cr. P.C. to conduct the prosecution in the said sessions trial and by the impugned order the Governor was pleased to appoint said Shri Bose as a Special Public Prosecutor. It also appears from the said Memorandum that Shri Biraj Mohan Chaklanabis and Shri Jyotirmoy Chakrabarty, two other learned Advocates who are respondent Nos. 5 and 6 in the instant writ petition were also engaged as Counsel to assist said Shri Bose and it was directed that the costs of the said lawyers would be borne by the complainant.;