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Monday, April 27, 2015

“Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or position of public servant does not qualify such public servant from exemption from [pic]equal treatment. The decision-making power does not segregate corrupt officers into two classes as they are common crimedoers and have to be tracked down by the same process of inquiry and investigation.” 36. We have referred to the aforesaid two authorities only to highlight the gravity of the offence. We are absolutely sure that the learned Single Judge, as the appellate Judge, shall keep in mind the real functioning of an appellate court. The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely, solely because there might not have been proper assistance by the counsel appearing for the parties. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasonings in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test. This being the position of a Judge, which is more elevated as the appellate Judge, we are of the considered opinion that there is no justification for rehearing of the appeal as the matter has been heard at length and reserved for verdict. The appellant has submitted his written note of submissions before the trial court and, therefore, we are inclined to permit him to file a written note of submissions within 90 pages before the learned Single Judge/Appellate Judge. The State of Karnataka, which is the prosecuting agency, is granted permission to file written note of submissions within 50 pages. The written submissions be filed latest by 28.4.2015. The written note of submissions filed before the trial court and the High Court along with written note of submissions of State of Karnataka shall be considered by the learned Single Judge and the consideration should be manifest in the judgment. Written note of submissions, if any, by the 4th respondent shall not be considered by the learned Judge. A copy of our judgment be sent by the Registry of this Court in course of the day to the Registrar General of the High Court of Karnataka so that he can place the judgment before the learned Single Judge for perusal and guidance. 37. In view of our preceding analysis, we proceed to record our conclusions in seriatim:- (a) The State of Tamil Nadu had no authority to appoint the 4th respondent, Bhavani Singh as the Public Prosecutor to argue the appeal. (b) It is the State of Karnataka which is the sole prosecuting agency and it was alone authorized to appoint the Public Prosecutor. (c) The appointment of 4th respondent, Bhavani Singh as the Public Prosecutor for the trial did not make him eligible to prosecute the appeal on behalf of prosecuting agency before the High Court. (d) The appointment of a Public Prosecutor, as envisaged under Section 24(1) CrPC in the High Court is different than the appointment of a Public Prosecutor for the District Courts; and that the Notification appointing the 4th respondent did not enable him to represent the State of Karnataka in appeal. (e) Though the appointment of the 4th respondent is bad in law, yet there is no justification to direct for de novo hearing of the appeal, regard being had to the duties of the appellate Judge, which we have enumerated hereinbefore, especially in a case pertaining to the Prevention of Corruption Act, 1988; (f) The appellant as well as the State of Karnataka are entitled to file their written note submissions within the framework, as has been indicated in para 36. (g) The learned Appellate Judge, after receipt of our judgment sent today, shall peruse the same and be guided by the observations made therein while deciding the appeal. 38. Consequently, the appeal stands disposed of in above terms.

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.637 OF 2015



K. Anbazhagan                                ...  Appellant

                                Versus

State of Karnataka and Others                ...  Respondents




                               J U D G M E N T



Dipak Misra, J.

      In view of the difference of opinion by two learned Judges and  regard
being had to the referral order dated 15.4.2015[1],  this  appeal  has  been
placed before us for consideration and decision.   We  are  called  upon  in
this  appeal  to  decide  whether  the  4th  respondent  was  authorised  to
represent the case of the prosecution in the High Court of Karnataka in  the
appeals filed by  the  accused  persons  against  their  conviction  by  the
Special  Court,  and  if  he  was  not  so  authorised,  whether  there   is
necessitous warrant of criminal appeals to  be  heard  afresh  by  the  High
Court.
2.    The factual score exposited in this appeal has  a  history.   The  5th
respondent, Ms. J. Jayalalithaa, was the elected  Chief  Minister  of  Tamil
Nadu from 1991 to 1996 and  she  was  heading  the  political  party  called
AIADMK.  In 1996, she faced a political  defeat  at  the  hands  of  another
political party, namely, DMK.  Keeping in view  the  allegations  pertaining
to  amassing  assets  disproportionate  to  the  known  sources  of  income,
criminal  proceedings  were  initiated  against  her  and  her   associates,
respondent nos. 6 to 8.  The State of Tamil  Nadu  had  constituted  Special
Courts for their prosecution.  In pursuance of the constitution  of  Special
Courts, C.C. No. 7 of 1997 was  filed  before  the  learned  Special  Judge,
Chennai against the accused persons and  they  were  chargesheeted  for  the
offences punishable under Section 120B of the Indian Penal Code, 1860  (IPC)
read with Section 13(1) and 13(2) of the Prevention of Corruption  Act  (for
brevity, “the 1988 Act”).   The  constitution  of  the  Special  Courts  was
challenged before this Court in J. Jayalalitha v. Union of  India[2],  which
upheld the constitution of the Special Court.  In the said  case,  the  two-
Judge Bench observed thus:-
“Something more. The legislature has enacted the  Prevention  of  Corruption
Act and provided for a speedy trial of offences punishable under the Act  in
public interest as it had become aware of  rampant  corruption  amongst  the
public servants. While replacing  the  1947  Act  by  the  present  Act  the
legislature wanted to make the provisions of  the  Act  more  effective  and
also to widen the scope of the Act by giving a wider definition to the  term
“public servant”. The reason  is  obvious.  Corruption  corrodes  the  moral
fabric of the society and corruption by public servants not  only  leads  to
corrosion of the moral fabric of the society but  is  also  harmful  to  the
national economy and national interest, as the persons occupying high  posts
in the Government by misusing  their  power  due  to  corruption  can  cause
considerable damage to the national economy, national interest and image  of
the country. It is in the  context  of  public  interest  that  we  have  to
construe the meaning  of  the  word  “necessary”  appearing  in  Section  3.
Considering the object and scheme of the Act and the context in which it  is
used it would mean requirement in public interest and cannot be said  to  be
so vague  as  not  to  provide  a  good  guideline.  Thus  the  exercise  of
discretion by the Government under  Section  3  has  to  be  guided  by  the
element of requirement in public interest.”
                                                         (emphasis supplied)
      We have reproduced the said passage, as we would be  saying  something
in this regard at a later stage.
3.    As the exposé of facts  would  further  reveal,  the  trial  continued
before the Special Court but with the time rolling by,  in  2001  elections,
the AIADMK headed by the 5th respondent got elected and  she  was  appointed
as the Chief  Minister  of  Tamil  Nadu.   Her  appointment  was  called  in
question before this Court  in  B.R.  Kapur  v.  State  of  Tamil  Nadu  and
Another[3], wherein the majority  speaking  through  Bharucha,  J.  (as  his
Lordship then was) held thus:-

“54. We are satisfied that in the appointment of the  second  respondent  as
the Chief Minister there has been a clear infringement of  a  constitutional
provision and that a writ of quo warranto must issue.
                      xxxx        xxxxx           xxxxx

58. We are of the view that  a  person  who  is  convicted  for  a  criminal
offence and sentenced to imprisonment for a period  of  not  less  than  two
years cannot be appointed the  Chief  Minister  of  a  State  under  Article
164(1) read with (4) and cannot continue to function as such.

59. We, accordingly, order and declare that the appointment  of  the  second
respondent as the Chief Minister of the State of  Tamil  Nadu  on  14-5-2001
was not legal and valid and that she cannot continue to  function  as  such.
The appointment of the second respondent as the Chief Minister of the  State
of Tamil Nadu is quashed and set aside.”

      In pursuance of the aforesaid judgment, the 5th respondent, ceased  to
hold the office of the Chief Minister of Tamil Nadu w.e.f. 21.9.2001.
4.    In the first part of 2002, the Election Commission of India  announced
a bye-election of Andipatti constituency and Ms. J.  Jayalalithaa  contested
the said election and was declared elected and eventually, she was sworn  in
as the Chief Minister of Tamil Nadu on 2.3.2002.  The trial in  C.C.  No.  7
of 1997 went through some kind of a legal tumult narration of which  is  not
necessary.   Suffice  it  to  say,  the  present  appellant  preferred   two
petitions under Section 406 of the  Criminal  Procedure  Code  (CrPC),  1973
seeking transfer of CC No. 7 of 1997 and CC No. 2 of 2001  on  the  file  of
11th Additional Sessions Judge (Special Court I), Chennai in  the  State  of
Tamil Nadu to a court of equal  and  competent  jurisdiction  in  any  other
State.  The locus standi of the appellant was raised before  this  Court  in
K. Anbazhagan v. Supdt. of Police[4] and the Court upheld the  locus  standi
of the appellant in an application under Section 406 CrPC.  It gave  immense
emphasis on the concept of free and fair trial.  To quote:-
“Free and fair trial is sine qua non of Article 21 of the  Constitution.  It
is trite law that justice should not only be done but it should be  seen  to
have been done. If the criminal trial is not free  and  fair  and  not  free
from bias, judicial fairness and the criminal justice  system  would  be  at
stake shaking the confidence of the public in the system and  woe  would  be
the rule of law. It is important to note that in such a  case  the  question
is not whether the  petitioner  is  actually  biased  but  the  question  is
whether the circumstances are such that there is a  reasonable  apprehension
in the mind of the petitioner. In the present  case,  the  circumstances  as
recited above are such as to create reasonable apprehension in the minds  of
the public at large in general and the petitioner in particular  that  there
is every likelihood of failure of justice.”

5.    Thereafter, the Court deliberated on all the  issues  and  transferred
the case to the State of Karnataka.  The directions that were issued by  the
Court being apposite are reproduced below:-
“In the result, we deem it expedient for the ends of justice to allow  these
petitions. The only point that remains to be  considered  now  is  to  which
State the cases should be transferred. We are  of  the  view  that  for  the
convenience of the parties the State of Karnataka would be  most  convenient
due to its nearness to Tamil Nadu. Accordingly, the petitions  are  allowed.
CC No. 7 of 1997 and CC No. 2 of 2001  pending  on  the  file  of  the  XIth
Additional Sessions Judge (Special Court No. 1), Chennai  in  the  State  of
Tamil Nadu shall stand transferred with the following directions:

(a) The State of Karnataka in consultation with the  Chief  Justice  of  the
High  Court  of  Karnataka  shall  constitute  a  Special  Court  under  the
Prevention of Corruption Act, 1988 to whom CC No. 7 of 1997 and CC  [pic]No.
2 of 2001 pending  on  the  file  of  the  XIth  Additional  Sessions  Judge
(Special Court No. 1), Chennai in  the  State  of  Tamil  Nadu  shall  stand
transferred. The Special Court to have its sitting in Bangalore.

(b) As the matter is  pending  since  1997  the  State  of  Karnataka  shall
appoint a Special Judge within a month from the  date  of  receipt  of  this
order and the trial before the Special  Judge  shall  commence  as  soon  as
possible and will then proceed from day to day till completion.

(c) The State of Karnataka in consultation with the  Chief  Justice  of  the
High Court of Karnataka shall appoint a senior lawyer having  experience  in
criminal trials as Public Prosecutor to  conduct  these  cases.  The  Public
Prosecutor so appointed shall be entitled to assistance  of  another  lawyer
of his choice. The fees and all other expenses of the Public Prosecutor  and
the Assistant shall be paid by the State of Karnataka  who  will  thereafter
be entitled to get the same reimbursed from the State  of  Tamil  Nadu.  The
Public Prosecutor to be appointed within six weeks from today.

(d) The investigating agency is directed to render  all  assistance  to  the
Public Prosecutor and his Assistant.

(e) The Special Judge so appointed to  proceed  with  the  cases  from  such
stage as he deems fit and proper and in accordance with law.

(f) The Public Prosecutor will be at liberty to  apply  that  the  witnesses
who have been recalled and  cross-examined  by  the  accused  and  who  have
resiled from their previous statement, may be  again  recalled.  The  Public
Prosecutor would be  at  liberty  to  apply  to  the  court  to  have  these
witnesses declared hostile and to seek  permission  to  cross-examine  them.
Any such application if made to the Special  Court  shall  be  allowed.  The
Public Prosecutor will also be at liberty to apply that  action  in  perjury
to be taken against some or all  such  witnesses.  Any  such  application(s)
will be undoubtedly considered on its merit(s).

(g) The State of Tamil Nadu shall ensure that all documents and records  are
forthwith transferred to the Special Court on its  constitution.  The  State
of Tamil Nadu shall also ensure that the witnesses are produced  before  the
Special Court whenever they are required to attend that court.

(h) In case any witness asks for protection, the State  of  Karnataka  shall
provide protection to that witness.

(i) The Special Judge shall after completion of  evidence  put  to  all  the
accused all relevant evidence and documents appearing  against  them  whilst
recording  their  statement  under  Section  313.  All  the  accused   shall
personally appear in court, on the day they are called upon to  do  so,  for
answering questions under Section 313 of the Criminal Procedure Code.”

6.     After  the  case  stood  transferred,  the  State  of  Karnataka   in
consultation with  the  Chief  Justice  of  the  High  Court  of  Karnataka,
appointed Mr. B.V. Acharya as the Public  Prosecutor  to  conduct  the  case
against the accused persons.  For certain reasons, before completion of  the
trial,  Mr.  Acharya  resigned  and  thereafter  Bhavani  Singh,   the   4th
respondent,  was  appointed  as   the   Special   Public   Prosecutor   vide
notification dated 2.2.2013.  The said order of appointment  was  issued  in
exercise of powers conferred by Section 24(8) of CrPC and  Rule  30  of  the
Karnataka Law Officers (Appointment and Conditions of Service) Rules,  1977.
 The notification appointing Bhavani Singh reads as follows:-
                                “NOTIFICATION
In obedience to the judgment dated 18-11-2003 passed by the Hon’ble  Supreme
Court of India in Transfer Petition No. 77-78/2003 (Criminal) in the  matter
of K. Anbazhagan v. The Superintendent of Police and others and in  exercise
of the powers conferred by Sub-section (8) of Section  24  of  the  Code  of
Criminal Procedure, 1973 (Central Act No. 2 of 1974) as amended by the  Code
of Criminal Procedure (Amendment)Act 1978 and Rule 30 of the  Karnataka  Law
Officers (Appointment and Conditions of Service) Rules, 1977 Sri G.  Bhavani
Singh, Senior Advocate, House  No.  746,  Srinidhi,  Kadugodi,  White  Field
Railway  Station,  Bangalore-560067,  is   appointed   as   Special   Public
Prosecutor in place of Sh. B.V. Acharya on same  terms  to  conduct  Special
C.C. No. 208/2004 (in the case of Kum. Jayalalithaa and others)  pending  on
the file of XXXVIth Additional City Civil & Sessions Court (Special  Court),
Bangalore in pursuance.

Further, Sri Sandesh J. Chouta, Advocate, is  continued  to  assist  Sh.  G.
Bhavani Singh, Special Public Prosecutor, in this case.

By order and in the name of the Governor of Karnataka.

                                                               (K. Narayana)
                                     Deputy Secretary to Government (Admn-I)
                                Law, Justice and Human Rights   Department.”

7.    After the appointment of Bhavani Singh, the  trial  continued  and  at
that stage,  the  appellant  filed  an  application  to  assist  the  Public
Prosecutor by making  oral  submissions  and  the  written  arguments.   The
learned Special Judge, vide order dated 21.8.2013  permitted  the  appellant
to render such assistance  to  the  Special  Public  Prosecutor  as  he  may
require.  The appellant objected to the  appointment  of  Bhavani  Singh  as
Special Public Prosecutor by making representations  to  the  Government  of
Karnataka as well as to the Chief Justice of the High  Court  of  Karnataka.
As there was no response, he preferred W.P. No. 38075/2013 before  the  High
Court of Karnataka assailing the appointment of Bhavani Singh as  a  Special
Public Prosecutor and making further prayer for appointment  of  an  eminent
lawyer in his  place.   During  the  pendency  of  the  writ  petition,  the
appointment of  the  4th  respondent  was  withdrawn  on  26.8.2013  by  the
Government of Karnataka.  The reason ascribed was that  there  had  been  no
proper consultation with the Chief Justice of  Karnataka  High  Court.   The
order of withdrawal of the Special Public Prosecutor was called in  question
in W.P.(Crl) No. 145/2013 and in pursuance of  notice  from  this  Court,  a
statement was made that the impugned Notification would be withdrawn with  a
view to consult the Chief  Justice  of  the  High  Court  of  Karnataka  and
accordingly  the  writ  petition  was   dismissed   having   been   rendered
infructuous.
8.    As the factual matrix would unfurl, certain developments occurred  and
on 10.9.2013, the Government of Karnataka withdrew  the  Notification  dated
26.8.2013 and asked the 4th respondent not  to  appear  before  the  Special
Court.  This compelled the accused persons to file  W.P.(Crl)  No.  154/2013
before this Court.  There was stay of  the  operation  of  the  Notification
dated 10.9.2013 and on 14.9.2013, the Chief Justice of  the  Karnataka  High
Court concurred with the view of the Government of Karnataka  that  the  4th
respondent should no longer continue as the  Public  Prosecutor  before  the
Special Court.  Pursuant to the said order  on  16.9.2013,  a  consequential
order was passed withdrawing the appointment of the 4th  respondent.    This
led the accused persons to file W.P.(Crl.)  No.  166/2013.   Both  the  writ
petitions  were  heard  together  and  decided  by  the   decision   in   J.
Jayalalithaa and Others v. State of Karnataka and  Others[5],  wherein  this
Court annulled the impugned order removing  the  4th  respondent,  the  same
being unsustainable in law.  The 4th respondent continued during  the  trial
and eventually  the  Special  Court  delivered  the  judgment  on  27.9.2014
convicting all the  accused  persons.   The  elaborate  submissions  of  the
appellant were taken into consideration by the learned Special Judge.
9.    Being aggrieved by the judgment of conviction and order  of  sentence,
the accused persons preferred Criminal Appeal No. 835-838 of 2014.   As  the
State of Karnataka was not arrayed as a party in  criminal  appeal,  it  did
not appoint any Public Prosecutor.  It  is  interesting  to  note  that  the
State of Tamil  Nadu  exhibited  enormous  anxiety  and  on  29.9.2014,  the
Principal Secretary to the Government of Tamil Nadu passed  an  order  being
requested by the Directorate of Vigilance  and Anti Corruption,  Chennai  to
engage the services of 4th respondent as the Special  Public  Prosecutor  to
appear before the High Court of Karnataka for and  on  behalf  of  the  said
Directorate in appeal/bail application and other petition that  might  arise
out of the conviction of the accused  persons.   The  order  passed  by  the
Principal Secretary reads as follows:-


                                   “ORDER

The Director, Vigilance and Anti-Corruption, Chennai,  in  the  letter  read
above, has requested the Government that Thiru  G.  Bhavani  Singh,  Special
Public Prosecutor, who has conducted the trial in Special C.C. No.  208/2004
before the Special Judge, 36th  Additional  City  Civil  &  Sessions  Court,
Bengaluru, may be authorized to appear before the High Court  of  Karnataka,
Bengaluru, on behalf of the Directorate of  Vigilance  and  Anti-Corruption,
Chennai in any Appeal/Bail petition/any other petition that  may  arise  out
of the order of the above Trial Court.

2. The Government after careful examination, have decided to  authorize  the
Director, Vigilance and Anti-Corruption, Chennai to engage the  services  of
Thiru G. Bhavani Singh, Special  Public  Prosecutor  to  appear  before  the
Hon'ble Court of Karnataka,  Bengaluru  on  behalf  of  the  Directorate  of
Vigilance and  Anti-Corruption,  Chennai  in  any  Appeal/Bail  Petition/any
other petition that may arise out the order dated 27-09-2014  on  the  above
Trial Court in all hearings.

                                                  (By order of the Governor)
                                                         Jatindra Nath Swain
                                          Principal Secretary to Government”

10.   Being empowered by the aforesaid order, the  4th  respondent  appeared
in the criminal appeals.  The learned Single Judge declined to  suspend  the
sentence awarded to the accused persons  and  grant  them  bail.   The  said
order came to be assailed in SLP (Crl.) No. 7900 of 2014 wherein this  Court
granted bail to the accused persons on 17.10.2014 and confirmed the same  on
18.12.2014.  The order passed on 18.12.2014 reads as follows:-
                                   “ORDER

Pursuant to the directions  issued  by  this  Court  dated  17.10.2014,  the
Petitioners have been released on bail.

Petitioners have filed an affidavit dated 10.12.2014 to the effect that  the
entire records of the trial court has been  filed  before  the  High  Court.
From the affidavit, it is clear that necessary records have been  filed  and
the appeals are ripe for hearing.

Keeping in view the peculiar facts of  the  case,  we  request  the  learned
Chief Justice of High Court of Karnataka to constitute a  Special  Bench  on
the date of  reopening  of  the  High  Court  for  hearing  of  the  appeals
exclusively on day-to-day  basis  and  dispose  of  the  same  as  early  as
possible at any rate within three months.

Bail granted by us earlier is extended by another four months from today.

Call these special leave petitions on 17.04.2015.”

11.   In the meantime, hearing of criminal appeals  proceeded  in  the  High
Court of Karnataka before the learned Single Judge.  As  the  appellant  was
of the view that Bhavani Singh could not have  represented  the  prosecuting
agency in appeals, he submitted a representation on 24.12.2014 to the  Chief
Secretary, Government of Karnataka to appoint a senior lawyer but there  was
no response.  The said situation constrained him to file  W.P.  No.  742  of
2015 seeking appropriate direction from the High Court  of  Karnataka.   The
learned Single Judge disposed of the writ petition by  observing  that  when
there is a direction by this Court to hear the appeal on day  to  day  basis
before a Special Bench, it would be appropriate to allow the proceedings  in
appeal to continue notwithstanding the  challenge  as  to  the  validity  or
otherwise of the appointment of the  4th  respondent.   The  learned  Single
Judge further proceeded to  hold  that  it  is  open  either  to  the  State
Government or the writ petitioner to seek for clarification,  if  any,  from
this Court as to the procedure that would be followed in making  appointment
of a Special Public Prosecutor and  assistant,  if  any,  to  represent  the
State of Karnataka.  Be it noticed, on behalf of  the  State  of  Karnataka,
which is reflectible from  the  order  of  the  learned  Single  Judge,  the
following submission was put forth:-
“The learned Advocate General would concur that  the  directions  issued  by
the Supreme Court do not specify as to the procedure that is to be  followed
in the appointment of a Public Prosecutor before this Court in  the  pending
appeals. However, if the objective of the Supreme Court is to be  understood
in its broadest sense, it would have to be taken that the  State  Government
of Karnataka, is entrusted with the task  of  conducting  the  case  at  all
stages, till it attains finality.

The learned Advocate General would however, submit that after  the  judgment
was pronounced by the trial court, there has been  no  further  consultation
between the State Government of Karnataka and the Chief Justice of the  High
Court of  Karnataka,  as  directed  by  the  Supreme  Court  in  making  any
appointment of a Special  Public  Prosecutor  and there  is  no  appointment
order issued in favour of Respondent No. 5, afresh; he would further  submit
that if it is a formality to be complied  with,  the  State  Government,  in
consultation with the Chief Justice, shall take  further  steps.  Since  the
State Government is not formally authorized to take any steps in so  far  as
the appointment of the prosecutor or counsel  to  conduct  the  appeals,  no
steps have been taken.”  (emphasis supplied)

12.   Being dissatisfied with the judgment and order passed by  the  learned
Single Judge, the appellant preferred  writ  appeal  no.  260/2015  and  the
Division Bench recorded the  statement  of  the  learned  Advocate  General,
which is to the following effect:-
“Sri Prof. Ravi Verma Kumar, learned Advocate  General,  appearing  for  the
State of Karnataka submitted that in pursuance of the directions  issued  by
the Hon'ble Supreme Court in consultation with the  Hon'ble  Chief  Justice,
the State of Karnataka appointed a Senior Counsel as the Public  Prosecutor,
who conducted the trial. When the said Senior Counsel pleaded his  inability
to continue to appear,  they  appointed  the  5th  Respondent  [Mr.  Bhavani
Singh] as the Public Prosecutor, who  conducted  the  proceedings.  Now  the
trial has ended in an  order  of  conviction.  Accused  have  preferred  the
appeals  before  this  Court. As  earlier,  the  appointment  was  made   in
pursuance of the direction  issued  by  the  Hon'ble  Supreme  Court,  their
understanding is that the obligation to appoint was only during trial.  With
the trial coming to an end with the order  of  conviction,  that  obligation
ceases. As there is no fresh direction issued by the Hon'ble  Supreme  Court
to appoint a  Special  Public  Prosecutor,  they  have  not  made  any  such
appointment. Though the  State  has  appointed  a  Public  Prosecutor  under
Section 24(1) of the Code, in the absence of any  direction  from  the  Apex
Court, the said Public Prosecutor is not appearing in  the  pending  appeals
before the High Court. As the matter is sub-judice, they have not taken  any
further action in this matter."
(emphasis supplied)

13.   The Division Bench, after hearing the  counsel  for  the  parties  and
discussing the law in the filed, came to  hold  that  the  order  passed  on
29.9.2014 by the Principal Secretary to the Government  of  Tamil  Nadu  was
non est inasmuch as the transferor court had  no  power  to  appoint  Public
Prosecutor under Section 24 of the CrPC in respect of the  case  pending  in
the transferee Court.  Interpreting Section 301(1) CrPC, the Division  Bench
opined that the language employed in the said  provision  would  include  an
appeal.  The Division Bench laid emphasis  on  the  words  “case”  and  “any
court” and also referred to the language used in Section 24(1)  and  Section
24(8) CrPC and opined thus:-
“By practice, by virtue of the appointment made  in  Section  24(1)  of  the
Code, the Public Prosecutor attached  to  that  Court  would  prosecute  the
case.  But, a Special Public Prosecutor appointed  under  Section  24(8)  of
the Code to a case and not to a Court where experience of not less  than  10
years of practice as an Advocate is insisted upon,  such  Public  Prosecutor
not only is capable of conducting trial at the lowest level  he  is  equally
competent to prosecute the case in appeal or revision.  During trial, if  on
an interlocutory order, a revision is filed either by the accused or  to  be
filed by the State, if the interpretation canvassed by the appellant  is  to
be accepted, the Special Public Prosecutor appointed under Section 24(8)  of
the Code cannot without a fresh appointment under Section 24(8) of the  Code
appear in that revisional Court. To appear  in  the  revisional  Court,  one
more order under Section 24(8) of the Code has to be made.  That is not  the
intention of the legislature.”

       Thereafter,  the  Division  Bench  referred   to   the   notification
appointing the Public Prosecutor and ruled that:-
“..... The language  employed  in  the  notification  is  unambiguous.   The
Public Prosecutor is appointed to conduct CC No. 7/1997 and CC  No.  2/2001.
As the name of the parties  were  not  mentioned,  in  the  brackets  it  is
mentioned as regarding trial of Ms. Jayalalitha and others in the  State  of
Karnataka.  Not that  the  Public  Prosecutor  is  appointed  only  for  the
purpose of  the  trial  of  the  said  case.   However,  in  the  subsequent
notification appointing 5th respondent in the brackets it is  mentioned,  in
the case of Kum. Jayalalitha  and  others.   Therefore,  5th  respondent  is
appointed as Special Public Prosecutor in the case of Kum.  Jayalalitha  and
others.  Accordingly, the 5th respondent by virtue of Section 301(1) of  the
Code is entitled to appear and plead in the  appeals  pending  in  the  High
Court in the case of  Kum.  Jayalalitha  and  others,  without  any  written
authority.

In the light of the aforesaid  discussions,  as  the  State  Government  has
already appointed a Public Prosecutor under Section 24(1)  of  the  Code  to
the High Court  of  Karnataka,  the  question  of  this  Court  issuing  any
direction to the State of Karnataka to appoint  a  Public  Prosecutor  under
Section 24(1) of the Code would not arise.”

14.   The first issue that arose before the two-Judge Bench was whether  the
State of Tamil Nadu could  have  appointed  Bhavani  Singh  as  the  Special
Public Prosecutor for the Karnataka High Court to defend the  cause  of  the
State.  Lokur, J. referred to the pronouncement by a  three-Judge  Bench  in
Jayendra Saraswati Swamigal @ Subramaniam v. State of Tamil Nadu[6]  wherein
at the instance of the  appellant  therein,  the  matter  had  already  been
transferred from the State of Tamil Nadu [See Jayendra  Saraswathy  Swamigal
(II) v. State of T.N.[7]].  After transfer, the case was pending before  the
District and Sessions Judge, Pondicherry.  The Home Department of  State  of
Tamil Nadu had appointed one Special Public Prosecutor and  four  Additional
Special Public Prosecutors for  conducting  the  trial  before  the  learned
Sessions Judge at Pondicherry.  The High Court of  Madras  being  moved  had
ruled that offence having been committed in the State of Tamil Nadu and  the
investigation having been done by the  Tamil  Nadu  police,  the  transferee
court cannot normally venture to appoint any Special  Public  Prosecutor  to
handle the case.  Setting aside the order of  the  High  Court,  this  Court
held:-
“12. As per the procedure prescribed under Section 24, the  State  of  Tamil
Nadu can appoint a Public Prosecutor to conduct criminal  cases  in  any  of
the court in that State. Such  powers  cannot  be  exercised  by  the  State
Government  to  conduct  cases  in  any  other  State.  Once  the  case   is
transferred as per Section 406 CrPC to another State, the  transferor  State
no longer has control over the  prosecution  to  be  conducted  in  a  court
situated in a different State to which the case has been transferred. It  is
the prerogative of the State Government to appoint a  Public  Prosecutor  to
conduct the case which is pending in the sessions division of that State.

                              xxxxx xxxxx xxxxx

14. Sub-section (8) of Section 24 CrPC is a special provision regarding  the
appointment of a Special Prosecutor. This power  can  be  exercised  by  the
Central Government and the State Government for the purpose of any  case  or
class of cases, and a person who has been in practice  as  an  advocate  for
not less than ten years may be appointed as  a  Special  Public  Prosecutor.
These powers are also to  be  exercised  by  the  State  Government  of  the
transferee court  where  the  sessions  case  is  pending.  Of  course,  the
transferee State can appoint  any  person  having  qualification  prescribed
under sub-section (8) of Section 24 CrPC.

                              xxxxx xxxxx xxxxx

17. As is evident from various provisions of CrPC, the State  Government  of
Tamil Nadu can only appoint a Public  Prosecutor  or  an  Additional  Public
Prosecutor or a Special Public Prosecutor under Section 24 CrPC  to  conduct
the prosecution and appeal, or other proceeding in any  criminal  courts  in
respect of any case pending before the courts of Tamil Nadu and  in  respect
of any case pending before the courts at Pondicherry, the  State  Government
of Pondicherry is the appropriate Government to appoint  Public  Prosecutor,
Additional Public Prosecutor or Special Public Prosecutor.”

15.   Relying on the said decision and the directions given  by  this  Court
while transferring the case, Lokur, J. opined that the State of  Tamil  Nadu
had no authority to appoint the  4th  respondent  as  Public  Prosecutor  to
contest the appeals in the High Court.  Banumathi,  J.  concurred  with  the
view expressed by Lokur, J. by holding thus:-
“As per the decision in Jayendra Saraswati Swamigal's case (supra), and  the
decision in 2004 3 SCC 767, only  the  State  of  Karnataka  can  appoint  a
Special Public Prosecutor. Order hastily passed by the State of  Tamil  Nadu
on 29.09.2014 authorizing D.V. & A.C to engage  Mr.  Bhavani  Singh  as  its
Special Public Prosecutor is without authority and non-est  in  the  eye  of
law.”

      We  have  referred  to  this  facet  only  to  highlight  the  anxiety
expressed by the State of  Tamil  Nadu  possibly  being  worried  about  the
“borrowed troubles of future” and forgetting the age  old  sagacious  saying
that “anxiety is the poison of human life”.
16.   The difference of opinion  between  the  learned  Judges  starts  from
here.  The submission that was canvassed before the Division  Bench  was  to
the effect that once the State of Karnataka had appointed Bhavani  Singh  as
the Special Public  Prosecutor  under  Section  24(8)  and  301(1)  CrPC  to
conduct  the  trial  after  Mr.  Acharya  resigned,  his  appointment  would
continue for the purpose of appeal.   Lokur, J. referring  to  the  language
of the Notification, which we  have  already  reproduced  hereinbefore,  and
thereafter analysed the various  provisions  i.e.  Sections  24,  25,  25-A,
301(1) of the CrPC and came to hold thus:-
“89. The only reasonable interpretation that can  be  given  to  the  scheme
laid out in Sections 24, 25, 25-A and 301(1) of the Code is  that  a  Public
Prosecutor appointed for the High Court and  who  is  put  in  charge  of  a
particular case in the High Court, can appear and plead in  that  case  only
in the High Court without any written authority whether that case is at  the
stage of  inquiry  or  trial  or  appeal.  Similarly,  a  Public  Prosecutor
appointed for a district and who is put in charge of a  particular  case  in
that district, can appear and plead  in  that  case  only  in  the  district
without any written authority whether that case is at the stage  of  inquiry
or trial or appeal. So also, an Assistant Public Prosecutor who  is  put  in
charge of a particular case in the court of a  Magistrate,  can  appear  and
plead in that case only in the court of a  Magistrate  without  any  written
authority whether that case is at the stage of inquiry or trial  or  appeal.
Equally, a Special Public Prosecutor who is put in charge  of  a  particular
case can appear and plead in that case only in the  court  in  which  it  is
pending without any written authority whether that case is at the  stage  of
inquiry or trial or appeal.  In  other  words,  Section 301(1) of  the  Code
enforces the 'jurisdictional' or 'operational' limit and enables the  Public
Prosecutor and Assistant Public  Prosecutor  to  appear  and  plead  without
written authority only within that 'jurisdictional' or 'operational'  limit,
provided the Public Prosecutor or the  Assistant  Public  Prosecutor  is  in
charge of that case.

90.  The  converse  is  not  true,  and  a  Prosecutor  (Public  Prosecutor,
Assistant Public Prosecutor or Special Public  Prosecutor)  who  is  put  in
charge of a particular case cannot appear and plead  in  that  case  without
any written authority outside his or her 'jurisdiction' whether  it  is  the
High Court or the district or the court of a  Magistrate.  In  other  words,
Section 301(1) of the Code maintains a  case  specific  character  and  read
along  with  Sections 24, 25 and 25-A of  the  Code  maintains  a  court  or
district specific character as well.”

17.   After so  stating,  Lokur,  J.  referred  to  the  Constitution  Bench
judgment in State of Punjab v. Surjit Singh[8] and held:-
“93. The Constitution Bench referred to what would be  an  anomalous  result
if a Public Prosecutor who had nothing to do with  the  particular  case  is
entitled to file an application for withdrawal Under Section 494 of the  old
Code. By way of illustration, the Constitution Bench  noted  that  if  there
are two Public Prosecutors appointed for a particular court and one of  them
is conducting the prosecution in a particular case  and  desires  to  go  on
with the proceedings, it will be open to the other Public Prosecutor to  ask
for withdrawal  from  the  prosecution.  Similarly,  it  was  illustratively
observed that a Public Prosecutor appointed for case A before  a  particular
court, can, by virtue of his being a Public Prosecutor file  an  application
in case B, with which he has nothing to do, and ask for  permission  of  the
court to withdraw from the prosecution. Extrapolating this  illustration  to
the facts of the present case, the result would certainly be anomalous if  a
Public Prosecutor appointed for case A before a particular Court  (read  Mr.
Bhavani Singh appointed for the case against the accused persons before  the
Special Court) can by virtue of being a Public Prosecutor appear in  case  B
with which he has nothing to do (read the  criminal  appeals  filed  in  the
Karnataka High Court).

94.  It  is  in  this  context  that  the  Constitution  Bench   held   that
Section 494 of the old Code refers only to a Public Prosecutor in charge  of
a particular case and is actually conducting the prosecution  who  can  take
steps in the matter. Under the circumstances, though Mr. Bhavani  Singh  was
entitled to conduct the trial before the Special  Court  in  an  appropriate
manner, merely because he was  in  charge  of  the  prosecution  before  the
Special Court did not entitle  him  to  continue  with  the  'case'  in  the
criminal appeals filed in the High Court.

                      xxxxx       xxxxx           xxxxx

96. Consequently, Mr. Bhavani Singh  having  been  appointed  as  a  Special
Public Prosecutor for a specific case  pertaining  to  the  accused  persons
before the Special Court was  answerable  in  all  respects  to  the  Deputy
Director of Prosecution in terms of  Section 25-A(6) of  the  Code  and  his
authorization was limited only  to  that  case  before  the  Special  Court.
Therefore, this precluded him from appearing on behalf  of  the  prosecution
in the appeals filed by the accused persons in the High Court. He  needed  a
specific authorization in  that  regard  which  would  have  then  made  him
subordinate  to  the  Director  of  Prosecution  and   not   continued   his
subordination to the Deputy Director of Prosecution.”

18.   Lokur, J. in his Judgment has pointed  out  two  anomalous  situations
that are likely to arise if such an interpretation is accepted.   The  first
anomalous situation which is pointed out by him is that a Public  Prosecutor
in charge of a case in a district  or  an  Assistant  Public  Prosecutor  in
charge of a case in the court of a Magistrate can claim,  on  the  basis  of
Section 301(1) of  the  Code,  to  appear  and  plead  without  any  written
authority before any court in which that case  is  under  appeal,  including
the High Court of the State. Since a police officer can  also  be  appointed
as an Assistant Public Prosecutor, acceptance of  the  argument  would  mean
that a police officer (appointed as  an  Assistant  Public  Prosecutor)  can
appear and plead without any written authority in  the  High  Court  of  the
State in  which  that  case  is  under  appeal,  which,  by  no  stretch  of
imagination, can be the intent of Section 301(1) of  the  Code.   The  other
anomalous situation which the learned Judge has taken note  of  is  that  an
appeal in the High Court arising out of a case in  a  district,  the  Public
Prosecutor for the High Court is engaged. However, the Public Prosecutor  in
charge of that case in  the  district  or  an  Assistant  Public  Prosecutor
(including a police officer) in charge of  that  case  in  the  court  of  a
Magistrate appears in the  High  Court  in  the  appeal  relying,  for  this
purpose, upon Section 301(1) of the Code. Then,  in  the  appeal,  the  said
Public Prosecutor or the said  Assistant  Public  Prosecutor  could  take  a
stand that is diametrically opposed to or in conflict with the stand of  the
Public  Prosecutor  before  the  High  Court   and,   therefore,   such   an
interpretation cannot be placed on Section 301(1) of CrPC.
19.   Banumathi, J. referred to the language employed  in  Sections  24  and
301(1) of CrPC, relied upon the authority in Shiv Kumar v. Hukam  Chand  and
Anr.[9], and came to hold that:-
“Being placed 'in charge of a case', there is a specific role attributed  to
the Special Public Prosecutor under Sub-section (8)  of  Section 24 Code  of
Criminal  Procedure  which  distinguishes  the  task   of   Special   Public
Prosecutor from that of  Public  Prosecutors  appointed  under  Sub-sections
(1), (2) and (3) of Section 24 Code of Criminal Procedure and  hardly  there
is any anomaly.”

      After so stating, the learned Judge has referred  to  the  meaning  of
the term ‘case’ and the context in which  it  is  used,  and  expressed  the
opinion in following terms:-
“..I am of the view that such authority of the Special Public Prosecutor  to
appear and plead a case in respect of which he is in charge in any court  or
at any stage of proceedings in such court may  not  emanate  from  the  term
'case' or for that matter 'class of cases' as  appearing  Under  Sub-section
(8) of Section 24 Cr.P.C., but for the reason  of  the  broader  context  in
which term 'case' has been used in  Section 301(1) Cr.P.C.  to  include  any
court in which that case is under 'inquiry, trial or  appeal'.  The  Special
Public Prosecutor, after  the  trial  is  over,  derives  its  authority  to
continue to appear and plead before appellate forum by  virtue  of  language
used in Sub-section  (1)  of  Section 301 Cr.P.C.  and  the  Special  Public
Prosecutor will continue to have such authority  due  to  wide  language  of
Section 301  Cr.P.C.,  until  the  notification  appointing  him  has   been
cancelled by the appropriate State Government.”

20.   First, we shall advert to this difference of  opinion  and  thereafter
proceed to dwell upon the pertinent consequent impact.
21.   Section 2(u)  of  CrPC  defines  “Public  Prosecutor”.   It  reads  as
follows:-
“(u)  “Public Prosecutor” means any person appointed under Section  24,  and
includes any person acting under the directions of a Public Prosecutor.”

22.   Section 24 CrPC deals  with  Public  Prosecutors.   For  our  purpose,
Section 24(1), 24(3) and 24(8) being relevant are reproduced below:-
“24. Public Prosecutors.-(1) For every High Court,  the  Central  Government
or the State Government shall,  after  consultation  with  the  High  Court,
appoint a Public Prosecutor and may also  appoint  one  or  more  Additional
Public Prosecutors, for conducting in such Court,  any  prosecution,  appeal
or  other  proceeding  on  behalf  of  the  Central  Government   or   State
Government, as the case may be.

                      xxxxx       xxxxx           xxxxx

(3)   For every district,  the  State  Government  shall  appoint  a  Public
Prosecutor and may also appoint one or more  Additional  Public  Prosecutors
for the district:

      Provided that the Public Prosecutor or  Additional  Public  Prosecutor
appointed for one district may be appointed also to be a  Public  Prosecutor
or an Additional  Public  Prosecutor,  as  the  case  may  be,  for  another
district.

                      xxxxx       xxxxx           xxxxx

(8) 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.

Provided that the Court may permit the victim to engage an advocate of  this
choice to assist the prosecution under this Sub-section.”

23.   Sub-section (1) of Section 24 CrPC has been amended in  the  State  of
Karnataka (vide Karnataka Act 20 of  1982  w.e.f.  3.9.1981).   It  provides
thus:
“In Section 24, in sub-section (1), --
(i)   Omit the words “or the State Government shall”;

(ii)  for the words “appoint a Public Prosecutor”, substitute the words  “or
the State Government shall appoint a Public Prosecutor”.”

24.   Section 25A deals with the Directorate of Prosecution.   It  reads  as
follows:-
“25A. Directorate of Prosecution. – (1) The State Government  may  establish
a Directorate of Prosecution consisting of a Director of Prosecution and  as
many Deputy Directors of Prosecution as it thinks fit.

(2)   A  person  shall  be  eligible  to  be  appointed  as  a  Director  of
Prosecution or a Deputy Director of Prosecution, only  if  he  has  been  in
practice as an advocate for not less than ten  years  and  such  appointment
shall be made with the concurrence of the Chief Justice of the High Court.

(3)   The Head of the Directorate of Prosecution shall be  the  Director  of
Prosecution, who shall function under  the  administrative  control  of  the
Head of the Home Department in the State.

(4)   Every Deputy Director of  Prosecution  shall  be  subordinate  to  the
Director of Prosecution.

(5)   Every Public Prosecutor,  Additional  Public  Prosecutor  and  Special
Public Prosecutor appointed by the State Government under  sub-section  (1),
or as the case may be, sub-section (8), of section 24 to  conduct  cases  in
the High Court shall be subordinate to the Deputy Director of Prosecution.

(6)   Every Public Prosecutor,  Additional  Public  Prosecutor  and  Special
Public Prosecutor appointed by the State Government under  sub-section  (3),
or as the case may be, sub-section (8), of section 24 to  conduct  cases  in
District Courts and every Assistant Public Prosecutor appointed  under  sub-
section (1) of section 24 shall be subordinate to  the  Deputy  Director  of
Prosecution.

(7)   The powers and functions  of  the  Director  of  Prosecution  and  the
Deputy Directors of Prosecution and the areas for which each of  the  Deputy
Directors of Prosecution have been appointed shall  be  such  as  the  State
Government may, by notification, specify.

(8)   The provisions of  this  section  shall  not  apply  to  the  Advocate
General  for  the  State  while  performing  the  functions  of   a   Public
Prosecutor.”

25.    Section  301(1)  CrPC  that  deals  with  the  appearance  by  Public
Prosecutors reads thus:-
“301.  Appearance  by  Public  Prosecutors.-(1)  The  Public  Prosecutor  or
Assistant Public Prosecutor in  charge  of  a  case  may  appear  and  plead
without any written authority before any Court in which that case  is  under
inquiry, trial or appeal.”

26.   The aforesaid  provisions  have  to  be  appreciated  in  a  schematic
context.  All the provisions reproduced  hereinabove  are  to  be  read  and
understood as one singular scheme.  They cannot  be  read  bereft  of  their
text and context.  If they are read as parts of different schemes, there  is
bound to be anomaly.  Such an interpretation  is  to  be  avoided,  and  the
careful reading of the CrPC, in reality, avoids the  same.   The  dictionary
clause in 2 (u) only refers to a person appointed under Section 24 CrPC  and
includes any person acting under the  directions  of  a  Public  Prosecutor.
The class or status of the Public Prosecutor is  controlled  by  Section  24
and 25A of the CrPC.  On a careful x-ray of the provisions of Section 24  it
is clearly demonstrable that Section 24(1) has  restricted  the  appointment
of Public Prosecutor for the High Court, for the  provision  commences  with
words “for every High Court.” Sub-section (3) deals with the appointment  of
Public Prosecutor or Additional Public Prosecutor for the districts.   There
is a procedure for appointment  with  which  we  are  not  concerned.   Sub-
section  (8)  of  section  24  deals  with  appointment  of  Special  Public
Prosecutor for any case or class of  cases.   A  Public  Prosecutor  who  is
appointed in connection with  a  district  his  working  sphere  has  to  be
restricted to the district unless he is specially engaged to  appear  before
the higher court.  A Special Public Prosecutor when he is appointed for  any
specific case and that too for  any  specific  court,  it  is  a  restricted
appointment.  In this context  Section  25A  of  the  Code  renders  immense
assistance.   The  State  Government  is  under  obligation   to   establish
directorate of prosecution.  Section  25A  clearly  stipulates  that  Public
Prosecutor, Additional Public Prosecutor and Special Public  Prosecutor  are
appointed by the State  Government  under  sub-Section  (1)  or  under  sub-
Section (8) of Section 24 to conduct cases  in  the  High  Court,  shall  be
subordinate to the Director  of  Prosecution.   Sub-section  (6)  postulates
that the three categories named herein appointed by the State Government  to
conduct cases  in  the  district  courts  shall  be  subordinate  to  Deputy
Director of Prosecution.  Thus, the scheme makes a  perceptible  demarcation
and compartmentalization for the Public Prosecutor in  the  High  Court  and
the district courts.   In this context we may refer with profit to  Rule  30
of Karnataka Law Officers (Appointments and  Conditions  of  Service)  Rules
1977 (for short ‘the Rules”).  The said rules read as follows:-
“30.  Special Counsels – Subject to these rules the Government  may  appoint
any advocate as a Special Counsel either for  the  conduct  of  a  civil  or
criminal case or any appeal or proceeding connected therewith, pending in  a
court either within the State or in any other State or in the Supreme  Court
or in any High Court in the country.

(2)    Before  making  such  appointment  the  Government  may  consult  the
Advocate General if the appointment is to conduct a  civil  case  or  appeal
and the Director of Prosecution if it is  to  conduct  a  criminal  case  or
appeal.

(3)   Remuneration payable to a special counsel shall  be  such  as  may  be
decided by Government in each case  having  regard  to  the  nature  of  the
case.”

27.   The said rule as far as the State of Karnataka is  concerned  has  its
own significance.  It clearly lays down that before  making  an  appointment
the Government may consult the Advocate General if  the  appointment  is  to
conduct a civil case or appeal, and the Director of Prosecution if it is  to
conduct a criminal case  or  appeal.   Sub-rule  (1)  of  Rule  30  makes  a
distinction between a case and an appeal and same is the  language  used  in
sub-rule (2).  We are only referring to this Rule  to  highlight  that  this
Rule has been framed by the State of Karnataka by way of  abundant  caution.
 This Rule clarifies that if any counsel is to be appointed for the  purpose
of  an  appeal,  the  State  Government  may  do  so  after  consulting  the
authorities mentioned therein.  There is nothing  on  record  that  the  4th
respondent was appointed to defend the prosecution in  appeal  in  the  High
Court.  The authority to appear before the High Court as the analysis  would
show, is fundamentally founded on  the  interpretation  of  Section  301  of
CrPC.  We have already reproduced Section 301 (1).  In this context  we  may
refer with profit to Section 493 of the old Code.  It reads as follows:-
“493 - Public Prosecutor may plead in all Courts in cases under his  charge,
Pleaders  privately  instructed  o  be  under  his  direction.-  The  Public
Prosecutor may appear and plead without any  written  authority  before  any
Court in which any case of which he has charge is under  inquiry,  trial  or
appeal, an if any private person instructs a pleader  to  prosecute  in  any
Court any person in any such case, the Public Prosecution, and  the  pleader
so instructed shall act therein, under his directions.”

28.    In the aforesaid provision the legislature  had  employed  the  words
“before any Court in which any case of which he has charge”.   In  Bhimpappa
Basappa  Bhu  Sannavar  v.  Laxman  Shivarayappa  Samagouda  and  others[10]
explaining the word “case” the court held:-
“The word “case” is not defined  by  the  Code  but  its  meaning  is  well-
understood in legal circles. In criminal  jurisdiction  means  ordinarily  a
proceeding for the prosecution of a person  alleged  to  have  committed  an
offence.  In  other  contexts  the  word  may  represent  other   kinds   of
proceedings but in the context of the sub-section it must mean a  proceeding
which at the end results either in discharge, conviction,  or  acquittal  of
an accused person.”

29.   In  Surjit  Singh  (supra)  while  dealing  with  an  application  for
withdrawal from prosecution under Section 494 of  the  Code  by  the  Public
Prosecutor, though in a different fact situation, observed that:-
“Section 492 only deals with the appointment of Public  Prosecutors  by  the
Government  or  by  the  District  Magistrate,  in  circumstances  mentioned
therein and Section 493 specifically refers to the Public Prosecutor who  is
in charge of the  case  which  is  under  enquiry,  trial  or  appeal,  when
appearing and pleading before such Court. Section 493  only  dispenses  with
the Public Prosecutor having to file any  written  authority.  That  section
also makes it clear that if any private person is instructing a  pleader  to
prosecute any person “in any such case” — which must have reference  to  the
case of which the Public Prosecutor is in charge — nevertheless, the  Public
Prosecutor shall conduct the prosecution and the pleader  is  to  act  under
his directions. Section 494 also, in our opinion, must  refer  only  to  the
Public Prosecutor who is in charge of the particular case in which he  makes
a request to withdraw from the prosecution. Some of these aspects have  been
already adverted to by  us  earlier.  If  any  Public  Prosecutor,  who  had
nothing to  do  with  a  particular  case,  is  held  entitled  to  file  an
application under Section 494, in our  opinion,  the  result  will  be  very
anomalous. For instance, if there are two Public Prosecutors  appointed  for
a particular court, and one of the  Public  Prosecutors  is  conducting  the
prosecution  in  a  particular  case,  and  desires  to  go  on   with   the
proceedings, it will be open to the  other  Public  Prosecutor  to  ask  for
withdrawal from the prosecution. Similarly, a  Public  Prosecutor  appointed
for case A, before a particular court, can, by virtue of his being a  Public
Prosecutor, file an application in case B, with which he has nothing to  do,
and ask for permission of the court to withdraw from the prosecution.

The reasonable  interpretation  to  be  placed  upon  Section  494,  in  our
opinion, is that it is only the Public Prosecutor, who is  in  charge  of  a
particular case and is actually conducting the prosecution,  that  can  file
an application under that section, seeking permission to withdraw  from  the
prosecution. If a Public Prosecutor is not in charge of  a  particular  case
and is not conducting the prosecution, he will not be entitled  to  ask  for
withdrawal from prosecution, under Section 494 of the Code.”

30.   We have referred  to  this  judgment  in  extenso  only  to  show  the
responsibility of a Public Prosecutor in charge  of  a  case.   Section  301
occurs in Chapter XXIV CrPC that deals with the “General  provisions  as  to
Inquiries and Trials”.  Sections 24 (8) and  301  (1)  when  read  together,
needless to say, confers a right on the Public Prosecutor who is  in  charge
of a case to appear and plead without having  any  written  authority.    He
remains and functions as the sole authority in charge of  the  case.   There
can be no cavil over the same.  The core question is, whether “in charge  of
the case” would include an appeal arising  out  of  the  said  case  in  the
hierarchical system.   Section 24 (1) deals with the specific power  of  the
Government to appoint Public Prosecutor.  Section 24(8)  confers  the  power
on the State Government to appoint a Special Public Prosecutor for any  case
or class of cases.  To give an example, there can be a batch of cases  under
the Prevention of Corruption Act against number of persons  arising  out  of
different FIRs but involving similar transactions.  To have a  proper  trial
the Government is entitled to appoint a Special Public Prosecutor.   If  the
word “case” is given a meaning to include the appeal, it  will  be  denuding
the power of appointing authority.  The law does  not  so  countenance.   If
the Government  by  a  notification  appoints  an  eligible  person  clearly
stating that he shall conduct  the  trial  as  well  as  pursue  the  appeal
arising out of it, there will be  no  difficulty.   Therefore,  much  stress
cannot be given on the words “without any  written  authority”  as  used  in
Section  301.   It  can  only  mean  that   the   Public   Prosecutor   once
engaged/appointed by the State, he can prosecute the appeal  without  filing
any formal authority for the said purpose.   It cannot be construed  to  the
extent that solely because he has been  appointed  in  connection  with  the
trial case, he can appear before the High Court for which he  has  not  been
appointed in pursuance of Section 24 (1) CrPC.  Section 301(1)  CrPC  cannot
be stretched to that extent.  In that event, it  would  really  lead  to  an
anomalous situation.  A Public Prosecutor has to be  specifically  appointed
for the appeals or revisions or other proceedings in the  High  Court.   The
anomalous situations, which have been highlighted  by  Lokur,  J.  have  our
respectful concurrence.  In fact, the Code does  not  remotely  so  envisage
and the  contextual  reading  of  all  the  provisions  do  not  so  convey.
Therefore, we ingeminate that  a  Public  Prosecutor  who  is  appointed  to
conduct a case before the trial court cannot be deemed to be  appointed  for
the purpose of appeal arising  therefrom  solely  because  of  the  language
employed in Section 301(1) of CrPC.
31.   In  view  of  our  preceding  analysis  the  4th  respondent  was  not
appointed by the State of Karnataka to argue the  appeals  before  the  High
Court.  Lokur, J. after holding that he was not authorised to represent  the
prosecution in the Karnataka High in the appeals has opined thus:-
“That being so, the final hearing proceedings  in  this  regard  before  the
High Court are vitiated and the appeals filed by the accused  persons  being
Criminal Appeals Nos. 835-838 of 2014 will have to be heard  afresh  by  the
High Court.”

      Banumathi, J. as has been discussed has upheld the appointment of  4th
respondent and, therefore, she has dismissed the appeal.
32.   As we have already  held  that  the  4th  respondent  could  not  have
appeared in the appeal, the issue that has become germane at  this  juncture
is whether annulment of appointment of Bhavani Singh  as  Public  Prosecutor
would entail de novo hearing of the appeal.  We have been apprised  that  in
pursuance of the order passed by this Court the appeal  has  been  heard  on
day to day basis.  The learned Judge has already heard the appeal and is  in
the process of preparation of the judgment.   The  appellant  had  submitted
written note of submissions before the trial court which is  more  than  400
pages.  The allegations against  Bhavani  Singh  had  been  dropped  by  the
appellant in course of hearing of the writ petition and  hence,  we  refrain
from delving into such allegations.
33.   Be it noted, the appeal has been heard by the learned Single Judge  of
the High Court and the appeal assails the judgment of conviction  and  order
of sentence passed under the various provisions of the 1988 Act.   It  needs
no special emphasis that the appellate court  has  the  sacrosanct  duty  to
evaluate, appreciate and consider each material  aspect  brought  on  record
before rendering the judgment.  That is sacred duty  of  a  Judge;  and  the
same gets more accentuated when  the  matter  is  in  appeal  assailing  the
defensibility of the conviction in a corruption case.
34.   The case under the 1988 Act has its  own  significance.   In  Niranjan
Hemchandra Sashittal v. State of Maharashtra[11], it has been held thus:-
“It can be stated without any fear of contradiction that corruption  is  not
to  be  judged  by  degree,  for  corruption  mothers   disorder,   destroys
[pic]societal will to progress, accelerates undeserved ambitions, kills  the
conscience, jettisons the glory of the institutions, paralyses the  economic
health of a country, corrodes the sense of civility and mars the marrows  of
governance. It is worth noting that immoral acquisition of  wealth  destroys
the energy of the people believing in  honesty,  and  history  records  with
agony how they have suffered. The only redeeming  fact  is  that  collective
sensibility respects  such  suffering  as  it  is  in  consonance  with  the
constitutional morality.”

35.    In  Subramanian  Swamy  v.  CBI[12],  the  Constitution  Bench  while
declaring Section 6-A of the Delhi Special Police  Establishment  Act,  1946
unconstitutional, observed that:-
“Corruption is an enemy of the  nation  and  tracking  down  corrupt  public
servants and punishing such persons is a necessary mandate of  the  PC  Act,
1988. It is difficult to justify the classification which has been  made  in
Section 6-A because the goal  of  law  in  the  PC  Act,  1988  is  to  meet
corruption cases with a very strong hand and all public servants are  warned
through such a legislative measure that  corrupt  public  servants  have  to
face very serious consequences.”

And again,
“Corruption is an enemy of nation and tracking down corrupt public  servant,
howsoever high he may be, and punishing such person is a  necessary  mandate
under the PC Act, 1988. The status or position of public  servant  does  not
qualify such public servant from exemption from  [pic]equal  treatment.  The
decision-making power does not segregate corrupt officers into  two  classes
as they are common crimedoers and have  to  be  tracked  down  by  the  same
process of inquiry and investigation.”

36.   We have referred to the aforesaid two authorities  only  to  highlight
the gravity of the offence.  We are absolutely sure that the learned  Single
Judge, as the appellate Judge, shall keep in mind the  real  functioning  of
an appellate court.  The appellate court has a duty to make a  complete  and
comprehensive appreciation of all vital features of the case.  The  evidence
brought on record in entirety has to be scrutinized with care  and  caution.
It  is  the  duty  of  the  Judge  to  see  that  justice  is  appropriately
administered, for that is the paramount consideration of a Judge.  The  said
responsibility  cannot  be  abdicated  or  abandoned  or  ostracized,   even
remotely, solely because there might not have been proper assistance by  the
counsel appearing for the parties.   The  appellate  court  is  required  to
weigh the materials, ascribe concrete reasons and the filament of  reasoning
must logically flow from the requisite analysis of the material  on  record.
The approach cannot be cryptic.  It cannot be perverse.   The  duty  of  the
Judge is to consider the  evidence  objectively  and  dispassionately.   The
reasonings in appeal are to be well deliberated.  They are to be  resolutely
expressed.  An objective judgment of the evidence reflects the greatness  of
mind – sans passion and sans prejudice.   The  reflective  attitude  of  the
Judge must be demonstrable from the judgment itself.   A  judge  must  avoid
all kind of weakness and vacillation.  That is the sole test.  That  is  the
litmus test.  This being the position of a Judge, which is more elevated  as
the appellate Judge, we are of the  considered  opinion  that  there  is  no
justification for rehearing of the appeal as the matter has  been  heard  at
length and reserved for verdict.  The appellant has  submitted  his  written
note of submissions before the trial court and, therefore, we  are  inclined
to permit him to file a written note of submissions within 90  pages  before
the learned Single Judge/Appellate Judge.  The State of Karnataka, which  is
the prosecuting agency, is  granted  permission  to  file  written  note  of
submissions within 50 pages.  The written submissions  be  filed  latest  by
28.4.2015.  The written note of submissions filed  before  the  trial  court
and the High Court along with  written  note  of  submissions  of  State  of
Karnataka  shall  be  considered  by  the  learned  Single  Judge  and   the
consideration  should  be  manifest  in  the  judgment.    Written  note  of
submissions, if any, by the 4th respondent shall not be  considered  by  the
learned Judge.  A copy of our judgment be  sent  by  the  Registry  of  this
Court in course of the day to the Registrar General of  the  High  Court  of
Karnataka so that he can place the judgment before the learned Single  Judge
for perusal and guidance.
37.    In  view  of  our  preceding  analysis,  we  proceed  to  record  our
conclusions in seriatim:-
(a)   The  State  of  Tamil  Nadu  had  no  authority  to  appoint  the  4th
respondent, Bhavani Singh as the Public Prosecutor to argue the appeal.
(b)   It is the State of Karnataka which is the sole prosecuting agency  and
it was alone authorized to appoint the Public Prosecutor.
(c)   The appointment  of  4th  respondent,  Bhavani  Singh  as  the  Public
Prosecutor for the trial did not make him eligible to prosecute  the  appeal
on behalf of prosecuting agency before the High Court.
(d)   The appointment of a Public Prosecutor,  as  envisaged  under  Section
24(1) CrPC in the High Court is different than the appointment of  a  Public
Prosecutor for the District Courts; and  that  the  Notification  appointing
the 4th respondent did not enable him to represent the  State  of  Karnataka
in appeal.
(e)   Though the appointment of the 4th respondent is bad in law, yet  there
is no justification to direct for de novo  hearing  of  the  appeal,  regard
being had to the duties of the appellate Judge,  which  we  have  enumerated
hereinbefore,  especially  in  a  case  pertaining  to  the  Prevention   of
Corruption Act, 1988;
(f)   The appellant as well as the State of Karnataka are entitled  to  file
their written note submissions within the framework, as has  been  indicated
in para 36.
(g)   The learned Appellate  Judge,  after  receipt  of  our  judgment  sent
today, shall peruse the same and be guided by the observations made  therein
while deciding the appeal.
38.   Consequently, the appeal stands disposed of in above terms.


                                             .............................J.
                                                               [Dipak Misra]



                                             ..........................., J.
      [R.K. Agrawal]



                                             ..........................., J.
                                                          [Prafulla C. Pant]
New Delhi
April 27, 2015
-----------------------
[1]     (2015) 5 SCALE 183
[2]     (1999) 5 SCC 138
[3]     (2001) 7 SCC 231
[4]     (2004) 3 SCC 767
[5]     (2014) 2 SCC 401
[6]     (2008) 10 SCC 180
[7]     (2005) 8 SCC 771
[8]     [1967] 2 SCR 347
[9]     (1999) 7 SCC 467
[10]   (1970) 1 SCC 665
[11]    (2013) 4 SCC 642
[12]    (2014) 8 SCC 682

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