Appropriate Govt. Has Power To Consider Victim's Request For Appointment Of A Lawyer Of His/Her Choice As Special Public Prosecutor: Kerala HC
The Kerala High Court observed that the appropriate government has power to consider the representation and appoint Public Prosecutor (PP) or Special Public Prosecutor (SPP) as requested by the victim or somebody on behalf of the victim in an appropriate case.
The Court observed thus in a writ petition preferred by a mother of victims seeking appointment of the Public Prosecutor, in a time-bound manner.
A Single Bench of Justice A. Badharudeen held, “To put it otherwise, appropriate Government has the power to consider the representation and appoint Public Prosecutor or Special Public Prosecutor, as requested by the victim or somebody on behalf of the victim in an appropriate case, taking note of the grievance of the party, who makes the request. Further the Government can consider the genesis of the prosecution case and its aftermath to ensure fair investigation as well as meaningful prosecution. The ordeals of the victim or somebody on behalf of the victim may also to be considered.”
Advocate P.V. Jeevesh represented the petitioner while Senior Counsel Sreelal N. Warriar, Additional Director General of Prosecution Grashious Kuriakose, and Senior Public Prosecutor Renjit George represented the respondents.
In this case, it was submitted by the counsel for the respondents that as per Sections 2 and 3 of the Delhi Special Police Establishment Act, 1946, Central Bureau of Investigation (CBI) was entrusted with investigation of the crime and a final report was filed arraying the accused nos. 1 to 4. Thereafter, further investigation was going on to find out involvement of any other person. As per the counsel, the victim or the representatives of the victim had no right to seek appointment of SPP and the same was absolutely a power vested with the Central Government or State Government as the case may be.
It was further submitted that since the investigation was at the helm of CBI, Central Government alone had the power to appoint SPP in such matter. It was also submitted that the victim’s right in the matter of appointment of a lawyer of her choice is subject to proviso to Section 24(8) of the Criminal Procedure Code (CrPC). Section 24(8) of CrPC provides that 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. Proviso to Section 24(8) of CrPC says that the court may permit the victim to engage an advocate of her choice to assist the prosecution under this sub section.
The High Court in view of the above submissions noted, “… a victim or somebody on behalf of victim can request for appointment of a lawyer of his/her choice for appointment of Public Prosecutor or Special Public Prosecutor, though, indubitably, appointment of Public Prosecutor or Special Public Prosecutor in the absolute power of the appropriate Government. But that does not mean that while exercising the power to appoint Public Prosecutor or Special Public Prosecutor the appropriate Government should negate the request of the victim or somebody on behalf of the victim.”
The Court said that this is a matter, where the apprehension of the petitioner, who is the mother of the victims, is having force since her attempt to get justice in the matter of death of her children failed, in the first round of litigation.
“Therefore, the request made by the learned counsel for the petitioner/mother of the victims to appoint Adv.Rajesh M.Menon, who, in fact, is competent to deal with complex cases of this nature, should have predominance and the same need not be brushed aside. … To sum up, at present the petitioner wants to consider her representations, Exts.P2, P3, P4 and P6, pending before the respondents concerned. Though the learned senior counsel for the CBI argued that the writ petition has become infructuous, the said contention cannot be appreciated for the simple reason that the Central Government not so far finalised the appointment of Adv.Pius Mathew and decision in this regard is awaiting”, it added.
Furthermore, the Court emphasised that at the time when the Central Government considers appointment of Special Public Prosecutor in the case, it could very well consider the representations filed by the petitioner also.
“Thus, while holding that, appointment of Public Prosecutor or Special Public Prosecutor is the absolute power of the appropriate Government, it is ordered that the respondents concerned may consider prayers in Exts.P2, P3, P4 and P6 representations, in consideration of the plight of the petitioner in the facts of the given case, so as to appoint Adv.Rajesh M.Menon as the Special Public Prosecutor in the present case”, it also held and directed.
Accordingly, the High Court disposed of the writ petition and ordered that an appropriate decision in the case shall be taken within 3 months.
Cause Title- XXXXX v. The Union of India and Ors. (Neutral Citation: 2024:KER:41667)
