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Adbul Khader Musliar v. State
Structured Summary of the Provided Opinion
Factual and Procedural Background
The Government of Kerala appointed the fourth respondent as Special Public Prosecutor and the fifth respondent as Additional Special Public Prosecutor to conduct prosecution in a particular murder trial (Ext. P1). Later, the Government cancelled that appointment by issuing Ext. P2. The petitioner, the father of the deceased in the murder case, filed an Original Petition challenging Ext. P2.
The petitioner alleged that the Muslim community in Malappuram District is faction-ridden, with one faction ("A.P group") loyal to the Congress party and another ("E.K group") loyal to the Muslim League, and asserted that all the accused belonged to the "E.K group" while the deceased was loyal to the rival group. The petitioner contended that Ext. P2 was passed at the behest of the Muslim League (a dominant party in the ruling front) to help the accused.
The Government filed a counter-affidavit, sworn by the Joint Secretary to the Home Department, defending Ext. P2 on several grounds: the original appointment had been made without deliberation or enquiry; upon receiving a petition alleging political motivation, the Government obtained reports from the Superintendent of Police, District Collector and Director General of Prosecution, who recommended cancellation because there was no special situation warranting a special public prosecutor; financial constraints; and the contention that regularly appointed public prosecutors were competent and that appointing a special public prosecutor would, except in extraordinary circumstances, impair the morale of existing prosecutors.
Legal Issues Presented
- Whether the Government's cancellation of the appointment of the Special Public Prosecutor and Additional Special Public Prosecutor (Ext. P2) was arbitrary or otherwise violative of principles of fairness, thereby attracting Article 14 of the Constitution.
- Whether the original appointment of a Special Public Prosecutor (Ext. P1) was valid in law — specifically, whether the circumstances then existing constituted the "special circumstances" required under Section 24(8) of the Code of Criminal Procedure, 1973.
- Whether an appointment of a Special Public Prosecutor can be justified merely because the accused engaged a leading criminal advocate to defend them.
Arguments of the Parties
Petitioner's Arguments
- The cancellation order (Ext. P2) was issued at the behest of the Muslim League, intending to help the accused who belonged to a particular faction (the "E.K group").
- The local political factionalism (A.P group vs. E.K group) and the fact that all accused belonged to the rival faction impelled the petitioner to assert that the cancellation was politically motivated and discriminatory.
Government's Arguments (as set out in the counter-affidavit)
- The original appointment (Ext. P1) was made without deliberation or enquiry.
- Following receipt of a petition alleging political motivation, enquiries were conducted through the Superintendent of Police, District Collector and Director General of Prosecution, who recommended cancellation because there was no special situation warranting a special public prosecutor.
- Financial constraints justified cancellation.
- Regularly appointed public prosecutors were capable of conducting the prosecution fairly and honestly; appointing a special public prosecutor (except in extraordinary circumstances) would impair the morale of existing prosecutors.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| S.R. Tewari v. District Board, Agra (AIR 1964 S.C. 1680) | Recognising the Government's power to cancel or revoke its own orders (in conjunction with statutory provisions cited). | Referenced to support the proposition that the Government has statutory power to cancel its own orders, subject to fairness and reasonableness. |
| Union of India v. Gurbaksh Singh ((1975) 3 SCC 638 : AIR 1975 S.C. 641) | Recognition of the Government's power to cancel or revoke its own orders. | Cited alongside S.R. Tewari to show legal recognition of governmental power to rescind its own actions. |
| Shrilekha Vidyarthi v. State of U.P. ((1991) 1 SCC 212 : AIR 1991 S.C. 537) | State actions (including contractual/appointment matters) are subject to Article 14; unfairness and unreasonableness in State action are not permissible and attract judicial review. | Relied upon to emphasize that the Government must act fairly and reasonably when rescinding appointments; the opinion quotes at length the principle that Article 14 cannot be excluded. |
| Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay ((1989) 3 SCC 293 : AIR 1989 S.C. 1642) | Affirmation of the legal position regarding judicial review of State actions for fairness/reasonableness (as cited with Shrilekha). | Followed as authority reinforcing the scope of judicial review applied in Shrilekha Vidyarthi's case. |
| Mahabir Auto Stores v. Indian Oil Corporation ((1990) 3 SCC 752 : AIR 1990 S.C. 1031) | Reaffirmation of the legal position regarding fairness of State action and judicial review. | Followed to reaffirm the same legal position addressed in Shrilekha Vidyarthi and Dwarkadas Marfatia. |
| Mohammed Ashraff v. State of Kerala (1991 (2) K.L.T 818) | Application of the ratio in Shrilekha Vidyarthi to termination of government pleaders; emphasises that facts of each case must be considered to determine arbitrariness. | Cited for the proposition that the factual matrix must be examined in each case to decide whether termination or rescission is arbitrary; the Court referred to this decision in assessing whether cancellation was arbitrary. |
| P. Seethi Haji v. State of Kerala & Others (1986 K.L.T 1274) | Illustration of the special status of the office of a public prosecutor in the administration of criminal justice. | Used to support the discussion of the special position and responsibilities of a Public Prosecutor under the Code. |
| Narayanankutty v. State of Kerala & Others (1982 K.L.T 603) | Statement that a Special Public Prosecutor could be appointed only when public interest demands it and not to vindicate the grievances of a private person (close relation of the deceased). | Cited to support the proposition that appointments under Section 24(8) should be made only for public-interest special circumstances, not to satisfy a private individual's grievance. |
Court's Reasoning and Analysis
The Court proceeded in a stepwise manner:
- The Court acknowledged the Government's statutory power to cancel or revoke its own orders (referencing Sec. 16 and Sec. 21 of the General Clauses Act, 1897 and precedents such as S.R. Tewari and Union of India v. Gurbaksh Singh), but emphasised that the exercise of that power must be fair and reasonable; otherwise it would be arbitrary and discriminatory in violation of Article 14.
- The Court relied on the Supreme Court's decision in Shrilekha Vidyarthi and subsequent decisions (Dwarkadas Marfatia and Mahabir Auto Stores) to underline that State actions are subject to Article 14 scrutiny and that fairness is required even in matters of appointments or contracts involving the State.
- The Court noted a division bench decision of this High Court in Mohammed Ashraff, which applied Shrilekha's reasoning and emphasised that whether an action is arbitrary depends on the facts of each case.
- The Court examined the file that led to the appointment (Ext. P1). That file showed that the petitioner had sent a representation on 4-9-90 urging appointment of respondents 4 and 5 on the sole ground that the accused had engaged Shri K. Kunhiraman Menon (a leading criminal lawyer). The Government had, without enquiry or calling for remarks from other officers, acceded to that request and made the appointments.
- The Court analysed the statutory scheme under the Code of Criminal Procedure. Section 24(8) permits the Central or State Government to appoint as a Special Public Prosecutor a person with at least ten years' practice, "for the purposes of any case or class of cases." The Court reasoned that the scheme of Section 24 shows that such appointment is meant for "special circumstances."
- The Court described Section 24(3) and related provisions, noting the statutory safeguards in appointment of public prosecutors and additional public prosecutors: district-level panels, consultation with the Sessions Judge, eligibility based on years of practice (seven years for public prosecutors generally), and the consultative process not being a mere formality. The Court emphasised the special public importance of the public prosecutor's office.
- The Court highlighted the unique privilege that a case before a Sessions Court must be prosecuted by a public prosecutor (Section 225) and elaborated the wide powers and responsibilities of the public prosecutor under the Code (including Sections 199 and 321 as described in the opinion).
- Drawing on Narayanankutty, the Court reaffirmed that appointment of a Special Public Prosecutor is justified only when public interest demands it and not to vindicate a private person's grievance (such as a close relation of the deceased).
- The Court concluded that the mere fact that the accused had engaged a leading criminal lawyer did not, by itself, create the special circumstances required for appointment of a Special Public Prosecutor. Accepting such a norm would create anomalous and impracticable obligations on the Government.
- The Court observed that, before issuing Ext. P2 (the order of cancellation), the Government obtained reports from the Superintendent of Police, District Collector, and Director General of Prosecution and considered them. Given that the original appointment could not be legally supported (having been made without the requisite enquiry and not falling within the special circumstances contemplated by Section 24(8)), the Government's rescission of its appointment was held to require no judicial interference.
Holding and Implications
Holding: The Original Petition was dismissed. The Court effectively upheld the Government's cancellation of the appointment of the Special Public Prosecutor and Additional Special Public Prosecutor (Ext. P2).
Direct Effect on the Parties: The Government's cancellation of the appointments stands; the Court declined to interfere with Ext. P2.
Implications: The opinion reiterates and applies existing principles — that the Government may rescind its own orders but must act fairly and reasonably and that appointment of a Special Public Prosecutor under Section 24(8) requires special circumstances in the public interest (not merely the private wish of a complainant or the fact that accused have engaged a leading advocate). The opinion did not purport to lay down a novel legal principle; rather, it applied established authorities and statutory interpretation to the facts and dismissed the petition on that basis.
1. Government of Kerala appointed fourth respondent as special public prosecutor and fifth respondent as additional special public prosecutor for conducting prosecution in the trial of a particular murder case. Subsequently, government cancelled the said appointment as per Ext. P2 proceedings. Petitioner, father of the deceased in the said murder case, has filed this Original Petition challenging Ext. P2. According to the petitioner, the Muslim community in Malappuram District is faction ridden, one group known as “A.P group” owing allegiance to Congress party and the other known as “E.K group” owing allegiance to Muslim League party and that all the accused in the murder case belong to “E.K group” while deceased was loyal to the rival group. Petitioner challenges Ext. P2 order mainly on the ground that it was passed at the behest of Muslim League which is a dominent constituted of the ruling front in Kerala State, solely for the purpose of helping the accused in the murder case.
2. Government of Kerala tried to defend Ext. P2 order on different grounds in the affidavit sworn to by the Joint Secretary to its Home Department. It is pointed out in the counter affidavit that the order appointing respondents 4 and 5 as special public prosecutor respectively, was passed without any deliberation much less any enquiry and that when Government received a petition alleging that the appointment order was politically motivated, it was enquired into through the Superintendent of police, District Collector and Director General of Prosecution and all of them recommended for cancellation of the appointment order on the premise that there was no special situation for appointing a special public prosecutor in the case. Another reason advanced in defence of the cancellation order is that “government is in utmost financial constraints”. A third ground is that the regularly appointed public prosecutors are competent to conduct prosecution fairly and honestly and if a special public prosecutor is appointed, except in extraordinary circumstances, the morale of the existing public prosecutors would be impaired.
3. It is not disputed that the government has the power to cancel or revoke its own order. This power has been recognised in Sec. 16 as well as in Sec. 21 of the General Clauses Act, 1897 (vide S.R Tewari v. District Board, Agra - AIR 1964 S.C 1680 and Union of India v. Gurbaksh Singh - (1975) 3 SCC 638 : AIR 1975 S.C 641). However in exercising such power, Government must act fairly and reasonably. Otherwise, the exercise is arbitrary and consequently discriminatory and would offend Article 14 of the Constitution. Recently the Supreme Court has considered the question in the wake of termination of a batch of government counsel appointed in Uttar Pradesh (vide Shrilekha Vidyarthi V. State of U.P - (1991) 1 SCC 212 : AIR 1991 S.C 537). J.S Verma, J., who wrote the judgment, pointed out thus:—
“The Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity contrary to the professed ideals in the Preamble. Exclusion of Art. 14 in contractual matters is not permissible in constitutional scheme. The scope and permissible grounds of judicial review in such matters and the relief which may be available are different matters but that does not justify the view of its total exclusion. Even assuming that it is necessary to import the concept of presence of some public element in a State action to attract Art. 14 and permit judicial review, it can be said that the ultimate impact of all actions of the State or a public body being undoubtedly on public interest, the requisite public element for this purpose is present also in contractual matters. Therefore it would be difficult and unrealistic to exclude the State actions in contractual matters, after the contract has been made, from the purview of judicial review to test its validity on the anvil of Art. 14.”
4. Their Lordships followed the decision in Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay ((1989) 3 SCC 293 : AIR 1989 S.C 1642) and Mahabir Auto Stores v. Indian Oil Corporation ((1990) 3 SCC 752 : AIR 1990 S.C 1031) in reaffirming the aforesaid legal position.
5. Learned Additional Advocate General (Shri. V.K Beeran) invited my attention to the decision of a division bench of this Court in Mohammed Ashraff v. State of Kerala (1991 (2) K.L.T 818) where the ratio laid down in Shrilekha Vidyarthi's case (cited supra) was pressed into service. Learned Chief Justice, who wrote the judgment, found that in the termination of a batch of government pleaders there was no arbitrariness. The judgment speaks of the need to consider facts of each case separately to verify whether the allegation of arbitrariness is true or not.
6. In the present case, Government appointed respondents 4 and 5 as Special Public Prosecutor and Additional Special Public Prosecutor respectively as per Ext. P1 notification. The file relating to the said appointment has been produced by the Additional Advocate General. The file shows that this petitioner had sent a representation to the Government on 4-9-90 urging the Government to appoint respondents 4 and 5 as Special Public Prosecutor and Additional Special Public Prosecutor respectively on the mere ground that the accused in the murder case have engaged Shri. Kunhiraman Menon, a leading criminal lawyer as their advocate to defend them. It appears that the government without conducting any enquiry, without even calling for the remarks of any other officer, acceded to the said request and appointed respondents 4 and 5 as special public prosecutor and additional special prosecutor to conduct prosecution in crime No. 56 of 1989 of Tanur Police Station (which is the murder case in question).
7. A special public prosecutor can be appointed under Sec. 24(8) of the Code of Criminal Procedure, 1973 (for short ‘the Code).’ The Code does not lay down in specific terms the conditions for appointment of a special public prosecutor. But the scheme of Sec. 24 would unmistakably reveal that a special public prosecutor can be appointed only in special circumstances.
8. Sec. 24(3) of the Code casts an obligation on the State to appoint a public prosecutor in every district. Sub-section confers a discretion on the Government to appoint additional public prosecutor for the district. A Public prosecutor can be appointed only from a panel of names prepared by the District Magistrate. While preparing a panel, the District Magistrate concerned is under obligation to consult the Sessions Judge concerned in order to form the opinion whether a particular person is fit to be appointed as public Prosecutor or additional public prosecutor. It is specifically made clear that unless a person has put in practice as an advocate for seven years, he is not eligible to be appointed. A District Magistrate is obligned to consult the Sessions Judge because it is the Sessions Judge who has better opportunities to asses the merits and capabilities of an advocate. His views on the person, therefore, acquires considerable weight to help the District Magistrate in preparing the panel. A District Magistrate is not supposed to delete a person recommended by the Sessions Judge from the panel, nor could She District Magistrate include a came which has not been recommended by the Sessions Judge. Consultative process envisaged in the provision cannot be made a mere formality. So much statutory trammels are provided in the appointment of a public prosecutor and additional public prosecutor. This is because the office of a public prosecutor carries very great public importance in the scheme of criminal trials in Sessions Courts.
9. A special feature of the administration of justice in the field of criminal law in India is that an accused before a Sessions Court is conferred With a privilege that the case against him can be prosecuted only by a public prosecutor. This is reflected in the mandate contained in S. 225 of the Code. There is no exception to this rule. Any private counsel engaged by the injured, or any advocate briefed by the relatives of the deceased, however influential they may be, is not entitled to conduct the prosecution in Sessions Courts. This system is the glaring acknowledgement of the special status and position which the office of Public Prosecutor is expected to weild in our legal system (vide P. Seethi Haji v. State Of Kerala & Others 1986 K.L.T 1274). Public Prosecutor is defined in Sec. 2(u) of the Code as “any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor”. Thus, a special public prosecutor also would be a public prosecutor in respect of the particular case or class of cases for which he is appointed. The powers conferred on him are seemingly so wide and unfettered that Parliament reposed confidence of great magnitude in the office of a public prosecutor. The definition clause farther indicates that a person once appointed as a public prosecutor can even make another public prosecutor for many practical purposes if the latter would act under the directions of the former. It is the public prosecutor who shall open his case by decribing charge brought against the accused. It is the public prosecutor who is empowered to file a complaint in writing before the Sessions Court alleging that an offence falling under Chapter XXI of the Indian Penal Code has been committed against the President of India or the Vice President of India or the Governor of a State or the Administrator of a Union territory or a Minister of the Union or of a State or of a Union territory or any other public servant in respect of his conduct in discharge of public functions (vide Sec. 199 of the Code). Then again, it is on a public prosecutor the absolute descrition is conferred to decide whether a case should be withdrawn from prosecution or whether any person either generally or in respect of any one or more of the offences for which he is tried should be withdrawn from prosecution (vide Sec. 321 of the Code). Thus, special status and position as well as great powers have been conferred on the office of public prosecutor. Every public prosecutor must remind himself constantly of this enviable position of trust and responsibility.
10. It is in the aforesaid background that the power conferred on the Government to appoint a special public prosecutor need be understood. Sec. 24(8) of the Code Reads thus:
“The Central Government or the State Government may, appoint for the purposes of any cate 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.”
11. The philosophy involved which can be discerned from the sub-section is two fold. First is that there should be special circumstances for making such appointment. Second is that, when a situation arises for appointing a special public prosecutor, government shall consider a more experienced advocate for the assignment. Though circumstances may differ in different stuations, the very idea behind conferment of the power is to meet special situations. In other words, a special public prosecutor is not to be appointed in ordinary circumstances. Bhat, J. (as His Lordship then was) has pointed out in Narayanankutty v. State Of Kerala & Others (1982 K.L.T 603) that ‘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’.
12. The mere fact that the accused in a particular case are engaging a leading criminal lawyer is hardly sufficient to make it a special situation warranting appointment of a special public prosecutor. If a norm is accepted by Government that a special public prosecutor shall be appointed when accused engage a competent or leading advocate, it is likely to bring about anomalous situation because in very many sessions trials accused would engage leading criminal lawyers to defend them. Eg:— Government would be obliged to appoint special prosecutor in all cases in which accused engage Shri. K. Kunhiraman Menon to defend the accused, if such a norm is accepted. Quite evidently this is not the purpose for which Sec. 24(8) of the Code is provided. When the Government found that the appointment of special public prosecutor was bad in law, Government was justified in rescinding the same Before passing Ext. P2 order Government railed for reports from Superintendent of Police, District Collector and Director General of Prosecution and considered those reports also. As the appointment cannot be supported, its cancellation by government needs no interference.
13. Original Petition is, therefore, dismissed.
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