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Thursday, April 16, 2015

whether Mr. G. Bhavani Singh appointed as a Special Public Prosecutor in the trial of the case against Ms. Jayalalithaa and other accused persons in the Special Court in Bengaluru was entitled to represent the prosecution in the appeals filed in the Karnataka High Court by the accused persons against their conviction.-In view of difference of opinion, the matter is referred to a larger Bench. The Registry is directed to place the matter before the Hon'ble the Chief Justice of India for appropriate orders.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO.637 OF 2015
               (Arising out of S.L.P. (Crl.) No.1632 of 2015)

K. Anbazhagan                                    ...Appellant
                                   Versus
State of Karnataka and Ors.               ...Respondents
                                    WITH
                       CRIMINAL APPEAL NO.638 OF 2015
               (Arising out of S.L.P. (Crl.) No.2013 of 2015)

K. Anbazhagan                                   ...Appellant
                                   Versus
Selvi J. Jayalalitha and Anr.             ...Respondents

                               J U D G M E N T
Madan B. Lokur, J.
   Leave granted.
2.     The question for  consideration  is  whether  Mr.  G.  Bhavani  Singh
appointed as a Special Public Prosecutor in the trial of  the  case  against
Ms.  Jayalalithaa  and  other  accused  persons  in  the  Special  Court  in
Bengaluru was entitled to represent the prosecution in the appeals filed  in
the Karnataka High Court by the accused persons against their conviction.
3.     My answer to this question is in the negative on an  appreciation  of
earlier directions given by this court, on a  reading  of  the  notification
appointing Mr. Bhavani Singh as  a  Special  Public  Prosecutor  and  on  an
interpretation of Sections 24, 25, 25-A and 301(1) of the Code  of  Criminal
Procedure, 1973. The result is that the hearing of the appeals in  the  High
Court stands vitiated, since the  prosecution  was  not  represented  by  an
authorized person.  The appeals will have to be heard  afresh  by  the  High
Court with the prosecution represented  by  a  Public  Prosecutor  appointed
under Section 24(1) of the  Criminal  Procedure  Code,  1973  or  a  Special
Public Prosecutor appointed by the State of Karnataka  under  Section  24(8)
of the said Code.
4.     Before adverting to the facts of the  case,  it  needs  mention  that
this case is a classic illustration of  what  is  wrong  with  our  criminal
justice delivery system.  If the allegations made by  Mr.  K.  Anbazhagan[1]
are true that  the  accused  persons  used  their  power  and  influence  to
manipulate and subvert the criminal justice system for more  than  15  years
thereby delaying the conclusion of the trial against  them,  then  it  is  a
reflection on the role  that  power  and  influence  can  play  in  criminal
justice delivery.  However, if the allegations made by  him  are  not  true,
even then it is extremely unfortunate that  a  criminal  trial  should  take
more  than  15  years  to  conclude.   Whichever  way  one  looks   at   the
unacceptable delay, it is the criminal justice delivery  system  that  comes
out the loser.  Something drastic needs to be done to remedy the system,  if
not completely overhaul it, and as this case  graphically  illustrates,  the
time starts NOW.
Background facts
5.     The background facts  relating  to  the  appeals  have  been  pithily
stated in K. Anbazhagan v. Superintendent  of  Police[2]  and  the  relevant
facts are paraphrased for the purposes of this decision.
6.     From 1991 to 1996, Ms. J. Jayalalithaa was  the  duly  elected  Chief
Minister of Tamil Nadu. A political party called the AIADMK  headed  by  her
was defeated in the general elections held in  1996  and  another  political
party, the DMK, was voted in with a majority. On the  basis  of  allegations
of amassing assets  disproportionate  to  their  known  sources  of  income,
criminal  proceedings  were  initiated  against  Ms.  Jayalalithaa  and  her
associates. Special Courts were constituted by the new  government  for  the
trial of the cases filed against  Ms.  J.  Jayalalithaa,  Ms.  S.  Sasikala,
Mr.V.N. Sudhakaran and Ms. J. Elavarasi. The  constitution  of  the  Special
Courts was upheld by this court.[3]
7.     In 1997, CC No. 7 of 1997 was  filed  before  the  Principal  Special
Judge, Chennai for the trial of Ms. J. Jayalalithaa, Ms.  S.  Sasikala,  Mr.
V.N. Sudhakaran and Ms. J. Elavarasi, who were charge-sheeted  for  offences
under Section 120-B of the  Indian  Penal  Code,  Section  13(2)  read  with
Section 13(1)(e) of the Prevention  of  Corruption  Act,  1988  for  alleged
accumulation of wealth of Rs 66.65 crores, disproportionate to  their  known
sources of income.
8.     The trial of CC No. 7 of 1997 progressed  before  the  Special  Judge
and by August 2000, as many as 250 prosecution witnesses were  examined.  In
the  general  elections  held  in  May  2001,  the  AIADMK  headed  by   Ms.
Jayalalithaa secured a majority of votes in the elections  and  therefore  a
majority of seats in the Legislative Assembly. She was chosen as the  leader
of the House by the AIADMK and appointed as  the  Chief  Minister  of  Tamil
Nadu. Her appointment as Chief Minister was challenged soon  thereafter  and
this court  declared  that  her  appointment  was  not  legal  or  valid.[4]
Consequently, on 21st September, 2001 she  ceased  to  hold  the  office  of
Chief Minister of Tamil Nadu.
9.     Sometime in January-February, 2002 the Election Commission  of  India
announced a bye-election to the Andipatti Constituency. In the  bye-election
held on 21st February, 2002 Ms. Jayalalithaa was declared  elected  and  she
was sworn in as the Chief Minister of Tamil Nadu on 2nd  March,  2002.  With
the  change  in  government,  it  appears  that  three  Public   Prosecutors
connected with CC No. 7 of 1997 resigned; a Senior  Advocate  appearing  for
the State also resigned as also the Investigating Officer. It  appears  that
due to these resignations, and perhaps for other reasons, the trial did  not
proceed. Eventually, on 7th November, 2002 the trial in CC  No.  7  of  1997
resumed.
10. On the resumption of the trial, as many as  76  PWs  were  recalled  for
cross-examination on the ground that counsel appearing for  the  accused  or
some of them had earlier been busy in some other case  filed  against  them.
It seems that the Public Prosecutor did not object to  the  witnesses  being
recalled or gave his consent for their recall. Out of a  total  76  PWs,  as
many as 64 PWs resiled  from  their  previous  statement-in-chief.  It  also
appears that the Public Prosecutor made no attempt to declare  them  hostile
and/or to cross-examine them by resorting  to  Section  154  of  the  Indian
Evidence Act. It also appears that no attempt  was  made  to  see  that  the
court takes action against the witnesses for perjury. Furthermore, it  seems
that the  presence  of  Ms.  Jayalalithaa  was  dispensed  with  during  her
examination under Section 313 of the Code of Criminal Procedure  Code,  1973
(for short 'the Code') and instead a questionnaire was sent to her  and  her
reply to the questionnaire was sent to the court  in  absentia.  Apparently,
the Public Prosecutor did not object to Ms. Jayalalithaa's  application  for
dispensing with her presence at the time of examination  under  Section  313
of the Code.
11. In these circumstances, the appellant,  Mr.  Anbazhagan  moved  transfer
petitions in this court under Section 406 of the Code  seeking  transfer  of
CC No.7 of 1997 and CC No. 2 of 2001  pending  in  the  Court  of  the  XIth
Additional Sessions Judge (Special  Court  No.1),  Chennai  to  a  court  of
equivalent competent jurisdiction in any other State.[5]
12. The transfer petitions were allowed by this court by  its  judgment  and
order dated 18th November, 2003 and the decision of this court  is  reported
as K. Anbazhagan v. Superintendent of Police.[6]
13. While it is not necessary to go into great detail into the  reasons  why
this court transferred the cases, it is nevertheless  necessary  to  mention
that this court observed that Mr.  Anbazhagan  had  made  out  a  case  that
confidence in the fairness of the trial was being  seriously  undermined  by
the manner in which the prosecution was being conducted.   It  was  observed
that the Public Prosecutor was  hand  in  glove  with  the  accused  thereby
creating a reasonable apprehension of likelihood of failure of  justice  and
there was a  strong  indication  that  the  process  of  justice  was  being
subverted.  Accordingly, this court transferred  the  prosecution  being  CC
No.7 of 1997 and CC No.  2  of  2001  pending  in  the  court  of  the  XIth
Additional Sessions Judge (Special Court No.1) Chennai from  Tamil  Nadu  to
Karnataka with the  following  directions  given  in  paragraph  34  of  the
Report:

(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.

14. The directions that are of primary concern are directions (a),  (b)  and
(c). They are to the effect that the State of Karnataka should constitute  a
Special Court to try the transferred cases  in  Bangalore  (now  Bengaluru);
that a  Special  Judge  be  appointed  to  the  Special  Court  to  try  the
transferred cases on a day  to  day  basis;  that  the  State  of  Karnataka
should, in consultation with the Chief Justice of the Karnataka High  Court,
appoint a senior lawyer having experience in criminal  trials  as  a  Public
Prosecutor to conduct the transferred cases against the accused persons.
15. Pursuant to the directions given by this court, the State of  Karnataka,
in consultation with the Chief  Justice  of  the  High  Court  of  Karnataka
appointed Mr. B.V. Acharya as  a  Public  Prosecutor  to  conduct  the  case
against the accused persons. The order dated 19th February,  2005  assigning
the case to Mr. B.V. Acharya as a Public Prosecutor reads as follows:
                                NOTIFICATION

In obedience of the judgment dated 18.11.2003 passed by  the  Supreme  Court
of India in Transfer Petition (Criminal) Nos.77-78/2003 in the matter of  K.
Anbazhagan vs. 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  B.V.
Acharya, Senior Advocate and former Advocate General  of  Karnataka,  No.42,
5th Main, Jayamahal Extension, Bangalore - 560041, is  appointed  as  Public
Prosecutor to conduct C.C. No.7/1997 and C.C. No.2/2001 pending on the  file
of the XIth  Additional  Sessions  Judge,  (Special  Court  No.1),  Chennai,
regarding trial of Ms. Jayalalitha and others in the State of Karnataka  and
now transferred to the XXXVI Additional City Civil  and  Sessions  Judge  in
pursuance.

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

                                                                        Sd/-
                                                       (Chikkahanumanthaiah)
                                              Under Secretary to Government,
                                           (Administration-1) Law Department

16. For reasons that are not necessary to detail, Mr.  Acharya  resigned  as
the Public Prosecutor and in his place the State of Karnataka appointed  Mr.
G. Bhavani Singh as a Special Public Prosecutor by a notification dated  2nd
February, 2013.  The order appointing Mr. Bhavani Singh as a Special  Public
Prosecutor was issued in exercise of powers conferred by  Section  24(8)  of
the Code[7] and Rule 30 of  the  Karnataka  Law  Officers  (Appointment  and
Conditions of Service) Rules,  1977.[8]   The  notification  appointing  Mr.
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. Jayalalitha  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.
17. During the trial of Special CC No. 208 of  2004[9]  before  the  Special
Court, Bangalore, an  application  was  moved  by  Mr.  Anbazhagan  on  13th
August, 2013 under Section 301(2) of the Code requesting for  permission  to
assist the Special Public Prosecutor  by  making  oral  submissions  on  the
merits of the case.[10] The application was partly allowed  by  the  Special
Court by an order dated 21st August, 2013 and Mr. Anbazhagan  was  permitted
to file a Memo of Arguments and to render such  assistance  to  the  Special
Public Prosecutor as he may require. At a later date on 19th May,  2014  Mr.
Anbazhagan filed  elaborate  written  submissions  running  into  about  430
pages.
18. Mr. Anbazhagan  had  separately  objected  to  the  appointment  of  Mr.
Bhavani Singh as the Special Public Prosecutor  in  representations  to  the
Government of Karnataka and to the  Chief  Justice  of  the  High  Court  of
Karnataka, along with a request to remove him (Mr.  Bhavani  Singh)  as  the
Special Public Prosecutor in the trial against the accused persons  in  view
of some allegations against him.
19. Since Mr. Anbazhagan did not receive any  positive  response,  he  filed
W.P. No. 38075 of 2013 in the High Court of Karnataka on 23rd  August,  2013
challenging the appointment of Mr.  Bhavani  Singh  as  the  Special  Public
Prosecutor and also praying that some other eminent lawyer may be  appointed
in his place.[11]
20. During the pendency of W.P. No. 38075 of 2013, by a notification  issued
on 26th August, 2013 the appointment of Mr. Bhavani  Singh  as  the  Special
Public Prosecutor was withdrawn by  Karnataka.  The  ostensible  reason  was
that there was  no  proper  consultation  with  the  Chief  Justice  of  the
Karnataka High Court when Mr. Bhavani Singh was  appointed  as  the  Special
Public Prosecutor.
21. Aggrieved by the withdrawal of Mr. Bhavani Singh's  appointment  as  the
Special Public Prosecutor, the accused persons  filed  a  writ  petition  in
this court being W.P. (Crl.) No.145 of 2013.  Upon notice  being  issued  to
the State of Karnataka, the learned Attorney General appeared for  Karnataka
and  informed  this  court  on  6th  September,  2013  that   the   impugned
notification dated 26th August, 2013 would  be  withdrawn  with  a  view  to
consult the Chief Justice of the Karnataka  High  Court.  Consequently,  the
writ petition was dismissed as having become infructuous.
22. Soon thereafter, several developments occurred in quick  succession.  On
10th September, 2013 the State of Karnataka withdrew the notification  dated
26th August, 2013 and by a letter of the same  date  requested  Mr.  Bhavani
Singh not to appear before the Special Court. This led the  accused  persons
to file  W.P.  (Crl.)  No.  154  of  2013  in  this  court  challenging  the
notification and the letter, both dated 10th  September,  2013.  This  court
issued notice in the writ petition, returnable in ten days and  also  passed
an interim order staying the operation of the letter dated  10th  September,
2013.
23. The  State  of  Karnataka  then  consulted  the  Chief  Justice  of  the
Karnataka High Court regarding the appointment of Mr. Bhavani Singh  as  the
Special Public Prosecutor. On 14th September, 2013 the Chief Justice of  the
Karnataka High Court concurred with the view of the State of Karnataka  that
Mr.  Bhavani  Singh  should  no  longer  continue  as  the  Special   Public
Prosecutor  before  the  Special  Court.   On   16th   September,   2013   a
consequential order was passed by Karnataka withdrawing the  appointment  of
Mr. Bhavani Singh as the Special Public Prosecutor.
24. These developments led the accused persons to file  W.P.  (Crl.)  No.166
of 2013 in this court challenging the orders dated 14th and 16th  September,
2013.
25. Both the writ petitions, that is, W.P. (Crl.) Nos.154 and  166  of  2013
were heard together by this court and by a judgment  and  order  dated  30th
September, 2013 both the writ petitions were disposed of  and  it  was  held
that the order removing Mr. Bhavani Singh as the Special  Public  Prosecutor
is mala fide and not sustainable in the eyes of the law and was  accordingly
quashed. The decision of this court is reported as J. Jayalalithaa v.  State
of Karnataka.[12]
26. The trial thereafter continued before the  Special  Court,  though  with
some hiccups (major and minor), with which we are not directly concerned.
27. In any event, on  27th  September,  2014  the  Special  Court  delivered
judgment convicting all the  accused  persons  including  Ms.  Jayalalithaa.
Among the materials considered by  the  Special  Court  were  the  elaborate
written submissions given by Mr. Anbazhagan to the  Special  Court  on  19th
May, 2014.
28. At this stage, it is necessary to make a  digression  for  understanding
the issues raised in these appeals.
29. The prosecution against Ms. Jayalalithaa and others was at the  instance
of the State of Tamil Nadu but after  the  prosecution  was  transferred  to
Karnataka,  and  in  terms  of  the  decision  of  this  Court  rendered  in
Anbazhagan[13] particularly paragraph  34(c)  thereof,  Tamil  Nadu  had  no
further say in matters relating to the  Public  Prosecutor  or  the  Special
Public Prosecutor (apart from the payment of his  fees  etc.).  It  was  for
Karnataka to appoint the Public Prosecutor, who was to be  a  senior  lawyer
having experience in criminal trials; the appointment  was  to  be  made  in
consultation with the Chief Justice of the  High  Court  of  Karnataka;  the
Public Prosecutor could be an appointee from  within  Karnataka  or  outside
the State; the Public Prosecutor was entitled to the assistance  of  another
lawyer of his choice who could also be from Karnataka or outside the  State;
all expenses and fees payable to the Public  Prosecutor  and  his  assisting
lawyer were to be paid by Karnataka and that was to be reimbursed  by  Tamil
Nadu. It is under these circumstances that Karnataka virtually stepped  into
the shoes of the State of Tamil Nadu and thereby  became  directly  involved
and concerned, at least in so far as the prosecution of the accused  persons
is concerned in Special CC No. 208 of 2004.
30. It is not that by issuing the directions contained  in  paragraph  34(c)
above, this court  adopted  a  procedure  that  was  without  precedent.  In
Jayendra Saraswati Swamigal v. State of Tamil Nadu[14] it was held:

"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."[15]

It was further held:

"Of course, this  Court  while  passing  order  of  transfer,  can  give  an
appropriate  direction  as  to  which  State  should  appoint   the   Public
Prosecutor to conduct that particular case. Such orders  are  passed  having
regard to the circumstances of  the  case  and  the  grounds  on  which  the
transfer has  been  effected.  This  Court  can  certainly  give  directions
irrespective of the provisions contained in Section 24 CrPC. But so  far  as
this case is concerned,  nothing  had  been  stated  in  the  order  of  the
transfer. The provisions contained [pic]in Section  24  CrPC  shall  prevail
and it is for the appropriate State Government within whose area  the  trial
is conducted to appoint Public Prosecutor under sub-sections (3) to  (7)  of
Section 24 CrPC."[16]

31. It is in these circumstances that Karnataka  first  appointed  Mr.  B.V.
Acharya as the Public Prosecutor and then Mr. Bhavani Singh as  the  Special
Public Prosecutor to conduct the trial against the accused persons.
32. Finally, this court also held:

"The purpose of transfer of the criminal case from one State to  another  is
to ensure fair trial to the accused."[17]

33. I dare say that the facts of these  appeals  clearly  suggest  that  not
only should the trial be fair to the  accused  persons  but  also  that  the
trial should be fair to the prosecution also.
34. It was then clarified by this court:

"However, we make it clear that the State  of  Pondicherry  [the  transferee
State in this case] can appoint any  counsel  as  Public  Prosecutor  having
requisite qualifications as prescribed under sub-section (8) of  Section  24
CrPC whether he is a lawyer  in  the  State  of  Pondicherry  or  any  other
State."[18]

35. Feeling aggrieved by the conviction handed down by  the  Special  Court,
Ms. Jayalalithaa and the other accused persons filed  Criminal  Appeal  Nos.
835-838 of 2014 before the Karnataka High Court  on  29th  September,  2014.
Since Karnataka was not made a party in the  criminal  appeals,  that  State
did not appoint any Public Prosecutor or any Special  Public  Prosecutor  to
contest the appeals, even though, as mentioned above, it  had  stepped  into
the shoes of Tamil Nadu, as it were.
36. On the other hand, Tamil Nadu acted  with  remarkable  alacrity  and  on
29th September, 2014 the Principal Secretary  to  the  Government  of  Tamil
Nadu passed an order authorizing the  Directorate  of  Vigilance  and  Anti-
Corruption, Chennai to engage the services of  Mr.  Bhavani  Singh,  Special
Public Prosecutor to appear before the High Court of Karnataka  for  and  on
behalf of the said  Directorate  in  any  appeal/bail  petition,  any  other
petition that may arise out of the conviction of the accused  persons.   The
order passed by the Principal Secretary reads as follows:-
                                  O R D E R

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"

37. When the criminal appeals and the petitions for suspending the  sentence
filed by the accused persons came up  for  consideration  before  a  learned
Single Judge of the  Karnataka  High  Court  on  30th  September,  2014  Mr.
Bhavani Singh informed  the  court  that  he  was  appointed  by  the  State
Government (Tamil Nadu) to represent the prosecution but  that  he  had  not
received any official communication in this regard.
38. The appeals again came up before a learned Single Judge on 1st  October,
2014 for the purposes of grant or refusal of suspension of sentence  of  all
the accused persons. On that date, Mr.  Bhavani  Singh  filed  his  Memo  of
Appearance and a  statement  of  objections  opposing  the  release  of  the
accused persons on bail.  Thereafter,  on  7th  October,  2014  the  learned
Single Judge, after hearing submissions of the parties, declined to  suspend
the sentence awarded to the accused persons or to grant them bail.[19]
39. Feeling aggrieved, the accused persons filed a petition  in  this  court
challenging the refusal of  bail  by  the  learned  Single  Judge.  In  that
petition  being  SLP  (Crl.)  No.7900  of  2014  bail  was  granted  to  Ms.
Jayalalithaa and other accused persons by this court on 17th October,  2014.
The grant of bail was confirmed by this court on 18th December, 2014 and  it
was directed that the criminal appeals pending in the Karnataka  High  Court
be heard on a day to day basis so that they  could  be  disposed  of  within
three months.  The order passed by this court 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."

40. Thereafter, the  criminal  appeals  came  up  for  hearing  o*n  2nd/5th
January, 2015 in the Karnataka High Court before a learned Single Judge.
41. Earlier, Mr. Anbazhagan was of the view that Mr. Bhavani Singh  was  not
entitled to represent the prosecution in the Karnataka High Court since  his
appointment as  a  Special  Public  Prosecutor  stood  terminated  with  the
conclusion of the trial and the delivery of judgment by the  Special  Court.
Moreover, he had not been appointed by Karnataka in  consultation  with  the
Chief Justice of the High Court to represent the prosecution in the  appeals
pending in the High Court. Under these circumstances, Mr. Anbazhagan made  a
representation dated 24th December, 2014  to  the  Chief  Secretary  to  the
Government of Karnataka to immediately appoint a  senior  lawyer  practicing
in the Karnataka High Court as the Special Public Prosecutor to contest  the
appeals filed  by  the  accused  persons.  However,  since  he  received  no
response to his representation, he filed a writ petition  in  the  Karnataka
High Court being Writ Petition No. 742 of 2015 seeking a  direction  to  the
State of Karnataka to appoint any other senior lawyer as the Special  Public
Prosecutor in the pending criminal appeals being Criminal Appeal  Nos.  835-
838 of 2014. The present appeals  arise  out  of  the  proceedings  in  Writ
Petition No. 745 of 2015.
Decision in the writ petition
42. After hearing learned counsels  for  the  parties,  the  learned  Single
Judge, by his judgment and order dated 19th January, 2015 disposed  of  W.P.
No. 742 of 2015.[20] It was held that the directions issued  by  this  court
in Anbazhagan[21] were confined to the  procedure  to  be  followed  in  the
trial. It was noted that "the very object of transferring  the  case  to  be
prosecuted in the State of Karnataka by the State Government  of  Karnataka,
by adopting the special procedure  prescribed,  was  on  the  Supreme  Court
having lost confidence of a fair trial being conducted within the  State  of
Tamil Nadu  and  in  any  organ  of  the  Government  of  Tamil  Nadu  being
involved." It was also noted that "It is therefore  a  matter  of  formality
for the Supreme Court to  clarify  as  to  the  procedure  in  appointing  a
counsel  and  his  assistant,  if  any,  and  in  the  conduct  of   further
proceedings." The writ petition was then  disposed  of  with  the  following
observations:

"To hazard a guess, the indication is  that  the  proceedings  in  entirety,
till the same attains finality, shall be taken to its logical conclusion  by
the State of Karnataka.  In  any  event,  since  this  court  would  not  be
competent to  interpret  or  expound  on  what  is  not  spelt  out  in  the
directions issued by the Supreme Court, in so far as  the  procedure  to  be
followed in the manner or terms of appointment of Prosecution Counsel,  post
the judgment of the trial court, in the appeals now  pending,  it  would  be
appropriate if the proceedings are allowed to continue  notwithstanding  the
challenge as to the validity or otherwise of the appointment  of  respondent
No. 5 [Mr. Bhavani Singh], as there is no discernible  prejudice  caused  by
his continuance as the Special Public Prosecutor for the  time  being.  This
is especially so, when  the  proceedings  are  directed  by  the  Honourable
Supreme Court to be conducted on a day to day basis, before a Special  Bench
and with expedition. Hence, to pronounce on the  validity  of  the  disputed
appointment and to hamper the proceedings would be  counter  productive  and
undesirable. It is open either for the State Government of Karnataka or  the
petitioner himself, to seek further clarifications from  the  Supreme  Court
as to the procedure that is to  be  followed  in  making  appointment  of  a
Special Public Prosecutor  and  an  assistant  or  assistants,  if  any,  to
represent the State of Karnataka."

43. In this context, it is important to notice the stand taken by  Karnataka
before the learned Single Judge. It was submitted by  the  learned  Advocate
General for Karnataka that:
"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)

44. Feeling aggrieved by the judgment and order dated 19th January,  2015  a
writ appeal was filed by Mr. Anbazhagan in the High Court being Writ  Appeal
No.260 of 2015. The State of Karnataka did not file any appeal  against  the
judgment and order of the learned Single Judge but  accepted  it.  The  writ
appeal filed by Mr. Anbazhagan was partly allowed by the Division  Bench  by
its judgment and order dated 11th   February,  2015.[22]  This  decision  is
under challenge in this court.
Decision in the writ appeal
45. In the writ appeal, it was contended by Mr. Anbazhagan that  it  is  for
the transferee State (Karnataka) alone to prosecute the case in the  Special
Court and the appeals in the High Court. The transferor State  (Tamil  Nadu)
has no effective role to play in the prosecution of the appeals.  Since  Mr.
Bhavani Singh was not appointed by Karnataka to contest the appeals  in  the
High Court, he was not entitled to appear on behalf of the  prosecution  and
since Tamil Nadu had no role to play in the prosecution of the appeals,  his
appointment by Tamil Nadu was bad in law. It was further submitted that  the
appointment of  Mr.  Bhavani  Singh  as  a  Special  Public  Prosecutor  was
confined only to the trial before the Special  Court  and  that  appointment
came to an end  on  the  conviction  of  the  accused  persons.  Unless  his
appointment as a Special Public Prosecutor was  notified  by  Karnataka  for
contesting the appeals in the High Court, Mr. Bhavani Singh could not  enter
appearance for the prosecution. For this additional reason also Mr.  Bhavani
Singh's appearance in the High Court in the pending  appeals  filed  by  the
accused persons was unauthorized.
46. Karnataka appeared through its  Advocate  General  and  the  submissions
made are best expressed in the words of the  Karnataka  High  Court  in  the
judgment under appeal:

"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."[23] (emphasis supplied)

47. Learned counsel appearing on behalf of Mr.  Bhavani  Singh  relied  upon
Section 301(1) of the Code which he interpreted to mean that no fresh  order
or authorization was necessary to enable or entitle  Mr.  Bhavani  Singh  to
appear in the criminal appeals pending  in  the  High  Court.  It  was  also
submitted that if Mr. Anbazhagan had any grievance with the order passed  on
29th September, 2014 by the Principal Secretary to the Government  of  Tamil
Nadu authorizing the Directorate of Vigilance and  Anti-Corruption,  Chennai
to engage the services of Mr.  Bhavani  Singh,  Special  Public  Prosecutor,
then he should have challenged it. Since he has not challenged  that  order,
it continues to remain operative.
48. The High Court discussed the case law on the subject of the role of  the
transferee State in a case such as the present and concluded:

"From the aforesaid judgments, the law is fairly clear. In pursuance of  the
power conferred under Section 406 of the Code, if the Supreme Court were  to
transfer any particular case from one High Court to another  High  Court  or
from a Criminal Court subordinate to one  High  Court  to  another  Criminal
Court of equal or superior jurisdiction subordinate to another  High  Court,
then the State from which the case is transferred  loses  control  over  the
prosecution to be conducted in the transferee Court. It  is  the  transferee
State which acquires jurisdiction to prosecute the said case. If  the  order
of transfer passed by the Apex Court does not  specify  who  should  appoint
the Public  Prosecutor  to  conduct  a  particular  case,  then  it  is  the
transferee State which has to appoint  a  Public  Prosecutor  under  Section
24 of the Code. If the order of transfer specifies who  should  appoint  the
Public Prosecutor, then appointment should be made in accordance  with  such
direction."[24]

49. The High Court then concluded that the order passed on  29th  September,
2014 by the Principal Secretary to the Government of Tamil Nadu was non  est
and was not required to be challenged. It was held:

"Therefore, when a specific direction is issued by the  Apex  Court  at  the
time  of  transferring  the  case,  it  is  the  transferee  Court-State  of
Karnataka which shall appoint the Public  Prosecutor.  The  State  of  Tamil
Nadu lost control over the case  transferred  to  the  State  of  Karnataka.
Therefore, the State of Tamil Nadu has no jurisdiction to appoint  a  Public
Prosecutor in the Special Court nor in the  appeals  which  are  pending  in
this Court. Hence, the order passed by the State of Tamil  Nadu  authorizing
the deleted third respondent herein to engage  the  services  of  the  fifth
respondent is without authority and non est in the eye of  law.  That  order
does not confer any right on the fifth respondent to  represent  either  the
State of Karnataka or the State of Tamil Nadu in the pending appeals  before
this Court. In view of our  findings  recorded  above  that  the  transferor
Court has no power to appoint a Public Prosecutor under  Section  24 of  the
Code in respect of a case pending in  the  transferee  Court,  the  argument
that the appellant has not challenged the said order of appointment  has  no
merit."[25]

50. With regard to the interpretation of Section  301(1)  of  the  Code  and
whether, by virtue of his appointment as the Special  Public  Prosecutor  in
Special CC No. 208 of 2004 Mr. Bhavani Singh could appear on behalf  of  the
prosecution in the pending appeals in the High Court, emphasis was  laid  on
the words "any court" appearing in Section 301(1) of the  Code  and  it  was
held:

"It is well settled that we must look at the Act as  a  whole  and  discover
what each Section, each clause, each phrase  and  each  word  is  meant  and
designed to say as to fit into the scheme of the entire Act. No  part  of  a
statute and no word of a statute can be  construed  in  isolation.  Statutes
have to be construed so that every word has a place  and  everything  is  in
its place. The language employed is that Public Prosecutor in  charge  of  a
case may appear and plead before "any Court", in which that  case  is  under
enquiry, trial or appeal.  If  the  intention  of  the  legislature  was  to
confine his appearance only  to  the  Court  in  which  the  case  is  under
enquiry, trial or appeal, they would have  used  the  word  "the  Court"  in
place of "any Court". Therefore, the intention  is  clear  and  unambiguous.
Once the Special Public Prosecutor is appointed to a case,  and  is  put  in
charge of a  case,  then  he  may  appear  and  plead  without  any  written
authority before "any Court" in which that case, which is entrusted to  him,
is under enquiry, trial or appeal.

If a Public Prosecutor is appointed under Section 24(1) or (3)  and  Section
25 of the Code and placed in charge of  a  case,  then  by  virtue  of  such
appointment and entrustment as a Public Prosecutor, he may appear  in  Court
in which that case is under inquiry, trial or appeal. However,  when  he  is
appointed under Section 24(8) of the Code as Special  Public  Prosecutor  he
is appointed for the purposes of any case or class of cases. Section  301 of
the Code makes it clear that, when he is in charge of a case, he may  appear
in "any Court" in which  that  case  is  under  inquiry,  trial  or  appeal.
Therefore, a harmonious reading of these provisions makes it  clear  that  a
Public Prosecutor appointed under Section 24  or  under  Section 25  of  the
Code, though his appearance is normally confined to the Court  to  which  he
is appointed, Section 301 of the Code  authorizes  him  to  appear  in  "any
Court" in which that case is under inquiry, trial or appeal."[26]

51. Thereafter, on a discussion of the case law on the subject, it was  held
that the word 'case' in the context in which it is  used  would  include  an
appeal. Thereby, Mr. Bhavani Singh had the authority to not only  appear  in
the case before the Special Court but also in the appeal arising out of  it.
It was held:

"The word 'case' is not defined in the Code.  It  is  a  word  of  wide  and
comprehensive import. The  word  'case'  cannot  be  equated  to  the  words
'trial', 'appeal' or 'revision'. It clearly  covers  for  larger  area  than
would be covered  by-such  words  as  'appeal',  'revision'  or  'trial'  or
'offences'. When the word 'case' is used with reference to a criminal  case,
it   encompasses   the   various   stages   of   a   criminal   case   i.e.,
Investigation/inquiry, trial and appeal. A criminal case commences with  the
filing of an F.I.R. and registration of the case and comes to  an  end  when
the judgment is  delivered  discharging  or  acquitting  or  convicting  the
accused, when that judgment attains finality. In other  words,  after  trial
the accused is acquitted or convicted, the trial comes to  an  end  and  not
the criminal case. Trial of a case is  only  one  step  in  the  life  of  a
criminal case. Criminal case encompasses  investigation/inquiry,  trial  and
appeal. They are all different stages in a criminal case.  The  word  'case'
has no fixed or universal meaning. It must be construed with regard  to  the
particular context in which it is used and with regard  to  the  scheme  and
purpose of the measure concerned. This word is quite often used in the  Code
with an intention to give a  wider  meaning.  That  is  the  reason  why  in
Section 301 the legislature has consciously used the word, that  the  Public
Prosecutor "in charge of a case" may appear and plead before  any  Court  in
which "that case is under inquiry, trial or appeal". In other  words,  if  a
Public Prosecutor is appointed to conduct a case, he is entitled  to  appear
and plead without any written authority before any Court in which that  case
is under inquiry, trial or appeal. Therefore, the words "any Court" used  in
this Section enables the Public  Prosecutor  to  appear  in  all  Courts  of
Criminal Jurisdiction and it is not confined to the Court  to  which  he  is
appointed. The only condition to be satisfied is that he should  be  put  in
charge of the case after his appointment  as  a  Public  Prosecutor.  It  is
altogether different, if by a rule, regulation, practice, when  once  he  is
appointed as a Public Prosecutor to a Court, he may not  appear  in  another
Court. Therefore, the  Legislature  has  consciously  used  the  words  "may
appear and plead". It is left to his discretion."[27]

52. At this stage, it is important to note  that  neither  Ms.  Jayalalithaa
nor any of the other accused persons nor any of  the  other  parties  before
the High Court have challenged the decision of the High Court to the  extent
that Tamil Nadu had no  authority  to  appoint  Mr.  Bhavani  Singh  as  the
Special Public Prosecutor in  the  criminal  appeals  pending  in  the  High
Court. The only challenge is the one made by Mr. Anbazhagan  to  the  effect
that Section 301(1) of the Code does not authorize or enable or entitle  Mr.
Bhavani Singh to continue as a Special Public  Prosecutor  in  the  criminal
appeals pending in the High Court and that the appointment  of  Mr.  Bhavani
Singh as a Special Public Prosecutor was limited only to  the  trial  before
the Special Court and it automatically terminated on the conviction  of  the
accused persons.
53. It is under these circumstances that this appeal is before this court.
Discussion
54. There is no dispute that when  this  court  transfers  a  criminal  case
under Section 406 of the Code, from one State  to  another,  the  transferee
State has full control in  the  matter  of  prosecuting  the  case  and  the
transferor State has no say  in   that  regard.  Indeed,  there  can  be  no
dispute about this in view  of  the  decision  of  this  court  in  Jayendra
Saraswati Swamigal. But, what does this imply?
55. In my opinion, on the transfer of a case by  this  court  under  Section
406 of the Code, the transferee State not only steps into the shoes  of  the
transferor State but it effectively becomes the prosecuting  State.  It  can
and does appoint a Public Prosecutor to prosecute  the  case  and  a  Public
Prosecutor who is answerable to the government of the transferee State  only
- the Public Prosecutor appointed by one State is certainly  not  answerable
to the government of another State.
56. On an earlier occasion in another transferred case, the  Allahabad  High
Court held that an appeal against a conviction would not be maintainable  in
the High Court in the transferor State but would  be  maintainable  only  in
the High Court of the transferee State.[28]
57. The Delhi High Court has gone a  step  further  and  has  held  that  an
appeal for the enhancement of sentence of a convicted person could be  filed
by the government  of  the  transferee  State  in  the  High  Court  of  the
transferee State and there is nothing to  preclude  the  government  of  the
transferee State from doing so.[29] In other  words,  the  transferee  State
does not merely step into the  shoes  of  the  transferor  State  but  takes
control of the prosecution. I need not say anything  more  on  this  subject
since there is no dispute that the transferee State takes control  over  the
prosecution from the transferor State. All that  I  have  explained  is  the
breadth of the take-over - the take-over being complete.
58. So far as the present case is concerned, this court  did  not  give  any
direction with regard to  the  appointment  of  a  Public  Prosecutor  or  a
Special Public Prosecutor post the decision in CC  No.7  of  1997.  In  that
sense, it could possibly be argued that there was  a  vacuum.  However,  the
law is quite clear, namely, that  Karnataka  as  the  transferee  State  was
entitled to file an appeal in the Karnataka  High  Court,  should  the  need
have arisen, including an appeal for enhancement of sentence and that on  an
appeal being filed in the High Court by the accused  persons,  Karnataka  as
the transferee State continues  to  retain  its  entitlement  to  appoint  a
Public Prosecutor or a Special Public  Prosecutor  to  contest  the  appeal,
otherwise the purpose  of  transferring  the  case  out  of  Tamil  Nadu  to
Karnataka would stand frustrated at the appellate  stage.  Really  speaking,
this court did not leave behind any vacuum. That  Karnataka  was  remiss  in
fulfilling its obligation to appoint a  Public  Prosecutor  to  contest  the
appeals filed in the High Court by the  accused  persons  or  chose  not  to
fulfill it for whatever reason, is no ground for Tamil  Nadu  to  appoint  a
Special Public Prosecutor to appear in the  appeals.   This  conclusion  was
arrived at by the High Court in the judgment under challenge and no one  has
disagreed with the view that Tamil Nadu could not appoint Mr. Bhavani  Singh
as a Special Public Prosecutor to contest the appeals  in  the  High  Court.
There the matter rests.
59. What is the effect of Mr. Bhavani Singh's  appointment  as  the  Special
Public Prosecutor  to  conduct  Special  CC  No.208/2004  and  what  is  the
interplay of this appointment with Section 301(1) of the  Code?  The  answer
to this lies in (a) The directions given by this  court  while  transferring
the case from Tamil Nadu to Karnataka; (b) The contents of the  notification
appointing Mr. Bhavani Singh as the Special  Public  Prosecutor  to  conduct
Special CC No.208/2004 in the case of the  accused  persons  pending  before
the Special Court; and (c) The scheme of Section 24 and  Section  301(1)  of
the Code.
60. What is the scope and intent of  the  directions  given  by  this  court
while  transferring  the  prosecution  from  Tamil  Nadu  to  Karnataka?  As
mentioned earlier, while it is not necessary to advert, in great detail,  to
the reasons  for  the  transfer  of  the  prosecution  from  Tamil  Nadu  to
Karnataka, the fact of the matter is that this court noted and  cited  "only
a few instances to show how the prosecution appears to have  acted  hand  in
glove with the accused"; that Mr. Anbazhagan had made out a case  "that  the
public confidence in the fairness of trial is being  seriously  undermined";
and that "great prejudice appears to have been  caused  to  the  prosecution
which could culminate in grave miscarriage of justice." It  is  under  these
circumstances that this court transferred the prosecution  from  Tamil  Nadu
to Karnataka and the directions given by this court have, therefore,  to  be
understood in that light, namely, to prevent the prosecution of the  accused
persons getting derailed for collateral reasons.  While  deciding  the  writ
petition,  the  learned  Single  Judge  held  that  this  court  had   "lost
confidence of a fair trial being conducted within the State of Tamil  Nadu".

61. A plain reading of  the  directions  given  by  this  court  on  earlier
occasion makes it quite clear that this court was concerned  only  with  the
trial of CC No.7 of 1997 (and CC No.2 of 2001 with which this court  is  not
concerned). To ensure that the trial is fair and is conducted in  accordance
with law, this court directed the State of Karnataka to  appoint  a  Special
Judge to try the case and also that "the  trial  before  the  Special  Judge
shall commence as soon as possible and will then proceed  from  day  to  day
till completion".  To ensure that the  Public  Prosecutor  does  not  become
hand in glove with the accused persons,  this  court  further  directed  the
appointment of a Public Prosecutor in consultation with  the  Chief  Justice
of the High  Court  of  Karnataka.   It  was  made  clear  that  the  Public
Prosecutor shall be a senior lawyer having experience in criminal trials  so
that he could conduct the trial in the Special Court.
62. The first three directions given by this court in  paragraph  34  on  an
earlier occasion make it quite clear that the  focus  and  concern  of  this
court was limited only to the conduct of a fair  trial  and  nothing  beyond
it.
63. This court did not have, and could not have had in mind the fairness  or
otherwise of the proceedings subsequent to  the  conclusion  of  the  trial.
There was no basis or material to assume that after the  conclusion  of  the
trial, on an appeal filed by the prosecution or the accused persons (as  the
case may be), even the appellate proceedings in the  High  Court  would  get
subverted or compromised in any manner whatsoever. It would be sacrilege  if
this court were to assume without any basis that the  Karnataka  High  Court
could get compromised. Consequently, the  directions  given  by  this  court
must be  understood  as  limited  to  the  conduct  of  the  trial  and  the
appointment of the Special Public Prosecutor was also limited  thereby.   In
other words, the appointment of Mr. Bhavani  Singh  as  the  Special  Public
Prosecutor came to an end on the conclusion of the trial before the  Special
Court.
64. This is not to say that Karnataka could  not  have  appointed  the  same
Special Public Prosecutor (Mr. Bhavani Singh in this case)  as  the  Special
Public Prosecutor to conduct the appeals  that  might  be  filed  after  the
conclusion of the trial. Karnataka  could  certainly  have  done  so  either
through a composite notification for the trial and possible appeal(s) or  by
separate notifications. That Karnataka chose to appoint  Mr.  Bhavani  Singh
as the Special Pubic Prosecutor for the trial only is  understandable.  That
Karnataka chose to sit by and not  take  any  steps  to  appoint  anyone  to
contest the appeals filed by the accused persons is nothing but  a  shirking
of its duty and responsibility - but that is  not  the  issue.  All  that  I
intend to hold and do hold is that the directions given by this  court  were
limited only to the trial of the case before the Special Court in  Bengaluru
and even Karnataka understood the directions to be limited to the trial  and
acted only to that limited extent.
65. Does the notification appointing Mr. Bhavani Singh as a  Special  Public
Prosecutor  reflect  the  views  of  this  court?  The   contents   of   the
notification dated 2nd February, 2013 appointing  Mr.  Bhavani  Singh  as  a
Special Public Prosecutor are also of considerable importance,  although  it
has been submitted by learned counsel  for  the  accused  persons  that  the
notification may be ignored in view of the provisions of Section  301(1)  of
the Code. I do not think that the contents of the  appointment  notification
can be simply ignored or overlooked, as suggested  by  learned  counsel  for
the accused persons.
66. The notification was issued pursuant to the  directions  given  by  this
court transferring the prosecution from Tamil Nadu to  Karnataka  under  the
circumstances already mentioned.  The intention of this  court  was  clearly
to ensure  that  upon  transfer  of  the  prosecution  from  Tamil  Nadu  to
Karnataka, the prosecution does not, inter alia, become hand in  glove  with
the accused, that public confidence in the fairness  of  the  trial  is  not
seriously undermined and that the prosecution does not culminate in a  grave
miscarriage of justice.  This court was, therefore, concerned only with  the
proceedings before the Special Court and not subsequent proceedings  in  the
High Court.
67. This court was certainly conscious  of  the  procedure  required  to  be
followed in the event of an appeal being filed in  the  High  Court  by  the
accused persons or by  the  prosecution  and  obviously  did  not  think  it
necessary to advert to the procedure required to be followed.  The  Code  of
Criminal Procedure adequately provides for it. It would not,  therefore,  be
correct to say that the directions given by this court created a  vacuum  in
the event of an appeal to the High Court by the accused persons  or  by  the
prosecution. This is more particularly so since there was nothing on  record
to even remotely suggest that the proceedings in the High Court were  likely
to get undermined in any manner. It is in this light that  the  notification
appointing Mr. Bhavani Singh as a Special Public Prosecutor has to  be  read
and understood and if the notification is so  read  and  understood,  it  is
quite clear that Mr. Bhavani Singh was  given  authority  to  represent  the
prosecution only before the Special Court and not in  the  High  Court.  The
notification appointing Mr. Bhavani Singh as  a  Special  Public  Prosecutor
only for the trial (and not for subsequent proceedings) correctly  reflected
the intent of this court.
68. The language employed in  the  notification  dated  2nd  February,  2013
appointing Mr. Bhavani  Singh  as  a  Special  Public  Prosecutor  is  quite
specific and is to enable him "to conduct Special C.C. No.208/2004  (in  the
case of Kum.  Jayalalitha  and  others)  pending  on  the  file  of  XXXVIth
Additional City Civil & Sessions Court (Special Court),  Bangalore".   There
is no mention about anything beyond Special  CC  No.  208/2004  such  as  an
appeal filed in the High Court either by  the  accused  persons  or  by  the
prosecution.   It  is  not  possible  to  read  into  the  language  of  the
notification any authority being given  to  Mr.  Bhavani  Singh  to  proceed
beyond the trial in representing the prosecution.  It would be  violence  to
the language of the notification if it were given  an  interpretation  wider
than what the plain language suggests, intends and states.
69. Can it  be  said,  under  these  circumstances,  that  the  notification
appointing Mr. Bhavani Singh as a Special Public Prosecutor  could  be  read
in conjunction with Section 301(1) of the Code as authorizing him to  appear
in the High  Court  in  the  appeals  filed  by  the  accused  persons?  For
answering this, it is necessary to appreciate the scheme of Section  24  and
Section 301(1) of the Code. It is necessary to  look  at  a  few  provisions
first.
70. Section 2(u) of the Code defines "Public Prosecutor".[30]  In  terms  of
the definition any person appointed under  Section  24  of  the  Code  is  a
Public Prosecutor. A  Special  Public  Prosecutor  appointed  under  Section
24(8) of the Code is naturally also a Public Prosecutor.
71. Section 24 of the Code is a part of Chapter II  thereof  which  concerns
the constitution of criminal courts and offices.   Three  Sections  in  this
chapter relate to Public Prosecutors, namely, Section  24,  Section  25  and
Section 25-A.
72. Section 24(1) of the Code provides  for  the  appointment  of  a  Public
Prosecutor for a High Court. The authority to appoint  a  Public  Prosecutor
for a High Court is vested both  in  the  Central  Government  and  a  State
Government. The two requirements for the appointment of a Public  Prosecutor
for the High Court are that it shall be made  after  consultation  with  the
High Court and the person so appointed shall, in terms of Section  24(7)  of
the Code, have been in practice as an  advocate  for  not  less  than  seven
years. The 'jurisdiction' or 'area of  operation'  of  a  Public  Prosecutor
appointed for the High Court is limited to the High  Court  and  it  is  not
possible for a Public Prosecutor appointed for the High Court to claim  that
he or she is entitled to appear in the District Court or any other court  by
virtue of his or her appointment.
73. A similar  power  of  appointment  of  a  Public  Prosecutor  for  every
district is given to the State Government by  Section  24(3)  of  the  Code.
There is a similar limitation of 'jurisdiction' or 'area of operation' of  a
Public Prosecutor appointed under Section 24(3) of the Code to the  district
for which he or she is appointed.   A  Public  Prosecutor  appointed  for  a
particular district cannot claim any authorization to  appear  as  a  Public
Prosecutor in any other district or in the High Court of the State in  which
that district is located.
74. In other words, Section 24(1) and Section 24(3) of the  Code  limit  the
'jurisdiction' or the 'area of operation' or the authority or the  orbit  of
the Public Prosecutor to the High Court [Section 24(1) of the Code]  or  the
district [Section 24(3) of the Code].
75. The first question that requires to be  asked  is  whether  Mr.  Bhavani
Singh was appointed as a Public Prosecutor or a  Special  Public  Prosecutor
for the High Court under Section 24(1) of the Code.  The answer to  this  is
in the negative. That being so, Mr. Bhavani Singh has no  authority  to  per
se conduct the appeals in the High  Court  on  behalf  of  the  prosecution.
Really speaking, that should conclude the debate.
76. The next question is whether Mr. Bhavani Singh can claim that  authority
for by relying on Section 301(1) read with Section 24(8) of the  Code.   The
answer to this is also in the negative.
77. In addition to the general power  or  authority  given  to  the  Central
Government and the State Government to appoint a Public Prosecutor  for  the
High Court [Section 24(1) of the  Code]  and  to  the  State  Government  to
appoint a Public Prosecutor for a district [Section 24(3)  of  the  Code]  a
much  wider  power  is  given  to  the  Central  Government  and  the  State
Government by Section  24(8)  of  the  Code  to  appoint  a  Special  Public
Prosecutor, being a person who has been a practicing advocate for  not  less
than ten years. The appointment of a Special Public Prosecutor is  not  with
reference to the High Court or a district, but is an appointment for a  case
in any court or a class of cases in any court or courts.
78. Section 25 of the Code provides for the appointment of Assistant  Public
Prosecutors.[31] Section 25(1) of the Code enables the State  Government  to
appoint one or more Assistant Public Prosecutors in every  district  of  the
State to conduct prosecutions in the  courts  of  the  Magistrates.  Section
25(1A) of the Code enables the Central Government to  appoint  one  or  more
Assistant Public Prosecutors to conduct any case or class of  cases  in  the
courts of the Magistrates. For the present purposes, Section  25(3)  of  the
Code is also of importance. This provides that a police officer can also  be
appointed as an Assistant Public Prosecutor as long as he  or  she  has  not
taken part in the investigations or is below the rank of an Inspector.
79. Section 25-A of the Code is also of  importance  for  understanding  the
'jurisdictional' limitations placed on a  Public  Prosecutor  or  a  Special
Public Prosecutor.[32] However, this Section does not  concern  itself  with
Assistant Public Prosecutors.
80. Section 25-A(5) of the Code provides that  a  Public  Prosecutor  and  a
Special Public Prosecutor appointed by the State  Government  under  Section
24(8) of the Code to conduct cases in the High Court  shall  be  subordinate
to the Director of Prosecution.
81. Section 25-A(6) of the Code provides that  a  Public  Prosecutor  and  a
Special Public Prosecutor appointed by the State  Government  under  Section
24(8) of the Code to conduct cases in District Courts (as  in  the  case  of
Mr.  Bhavani  Singh)  shall  be  subordinate  to  the  Deputy  Director   of
Prosecution.
82. In this background, Section  301(1)  of  the  Code  is  required  to  be
considered and appreciated. This provision applies  not  only  to  a  Public
Prosecutor as defined in Section 2(u) of the Code [which includes a  Special
Public Prosecutor] but it also applies to an  Assistant  Public  Prosecutor.
This is of some importance.
83. Section 301(1) of the Code has three ingredients for its  applicability:
(1) The Public Prosecutor or the Assistant  Public  Prosecutor  must  be  in
charge of the case; (2) If the Public Prosecutor  or  the  Assistant  Public
Prosecutor is in charge of a case, he or  she  is  entitled  to  appear  and
plead without any written  authority;  (3)  The  Public  Prosecutor  or  the
Assistant Public Prosecutor in charge of a case is entitled  to  appear  and
plead without any written authority before any court in which that  case  is
under enquiry, trial or appeal.
84. Learned counsel for the  accused  persons  read  this  to  mean  that  a
Special Public Prosecutor [Mr. Bhavani Singh] in charge of  a  case  in  the
District Courts [the case of the accused persons in the  Special  Court]  is
entitled to appear and plead (without any written authority)  in  any  court
[the High Court] since that 'case' is in appeal in the High Court.
85. If the argument of learned counsel for the accused persons is  accepted,
it could lead to  an  anomalous  result  and  an  anomalous  situation.  One
anomalous result 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! By no stretch of imagination can  this  be  the  intent  of  Section
301(1) of the Code.
86. An anomalous situation  can  also  arise  if  the  argument  of  learned
counsel for the accused persons is accepted. One such situation could  arise
in the following circumstances: In 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.  Is
Section 301(1) of the  Code  liable  or  susceptible  to  such  an  unlikely
interpretation as is canvassed by learned counsel for the  accused  persons?
I do not think so.
87. That such an eventuality is not theoretical is clear from the  facts  of
this case itself. As  mentioned  above,  the  accused  persons  applied  for
suspension of their sentence. Written objections  were  filed  opposing  the
suspension of the sentence. However, when the  application  was  heard,  the
Special Public Prosecutor (Mr. Bhavani Singh) did not oppose the  suspension
of the sentence. The learned Single Judge hearing the  application  recorded
in his order rejecting the application as follows:

"When the Special Public Prosecutor was asked  as  to  whether  he  has  any
submission in this regard to make, he has openly submitted that  he  has  no
arguments to make and that the sentence may be  suspended  and  the  accused
may be released on imposing conditions deemed fit  under  the  circumstances
of the case. But he did not make any submission as to whether  he  does  not
press the written objections already filed."[33]

88. Had the State of Karnataka appointed a Public Prosecutor  for  the  High
Court to contest the appeals filed by  the  accused  persons,  it  is  quite
possible that the said Public Prosecutor would have  supported  the  written
objections and opposed the suspension of sentence.   In  that  event,  there
would have been a rather piquant  situation  (if  not  a  spectacle)  -  the
Special Public Prosecutor (Mr. Bhavani Singh) supporting suspension  of  the
sentence of the accused persons and  the  Public  Prosecutor  for  the  High
Court opposing suspension of the sentence of  the  accused  persons  on  the
basis of the written objections.  Surely, Section 301(1) of the Code is  not
required to be interpreted in a manner so as to cause confusion.
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.
91. The decision rendered by the Constitution Bench in State  of  Punjab  v.
Surjit Singh[34] is not quite apposite.  [Though that decision was  rendered
under the Code of Criminal  Procedure,  1898  the  relevant  sections  under
Constitution are more or less similar to those sections  of  the  Code  that
this court is concerned with].  In Surjit Singh the  issue  that  arose  was
noted in the following words:-

"The question that arises for consideration  in  this  criminal  appeal,  by
special leave, is regarding the right of a  Public  Prosecutor  to  file  an
application,  under  Section  494  of  the  Code   of   Criminal   Procedure
(hereinafter called the Code),  in  respect  of  a  complaint,  filed  by  a
private party, and which was being prosecuted by him as such".

92. In the context of the question that  arose  for  consideration,  it  was
held that a Public Prosecutor not in charge of a  particular  case  and  not
conducting the prosecution will not be entitled to  ask  for  withdrawal  of
the prosecution under Section 494 of the old Code.  On facts,  it  was  held
that the prosecuting Deputy Superintendent of  Police  was  nowhere  in  the
picture in the private complaint  when  he  filed  an  application  for  its
withdrawal under Section 494 of the old Code. In that view  of  the  matter,
it was held that the High Court was right in  its  conclusion  that  such  a
Public Prosecutor is not entitled to file  an  application  for  withdrawal.
It will be seen  that  this  decision  has  nothing  to  do  with  a  Public
Prosecutor in charge of the case at the stage of  trial  being  entitled  to
appear in an appeal filed against an order of conviction in the trial.
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.
95. The High Court has,  in  the  judgment  and  order  under  appeal,  laid
emphasis on the words 'any Court' appearing in Section 301(1)  of  the  Code
and understood them to mean that a Special Public Prosecutor in charge of  a
case at the stage of enquiry or trial, can appear and plead that  case  when
an appeal  is  filed  in  respect  of  that  case.  In  view  of  the  above
discussion, I am unable to agree with the  overbroad  opinion  expressed  by
the High Court. The words 'any Court' have no reference to the hierarchy  of
courts.  The crucial word in Section 301(1) of the Code is  'case'  and  not
'any Court'.
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.
97. This interpretation of Sections 24, 25, 25-A  and  301(1)  of  the  Code
also appears to have been the  view  of  Karnataka,  appearing  through  its
Advocate General, that Mr. Bhavani Singh was engaged  only  to  conduct  the
trial before the Special Court and that  engagement  did  not  automatically
imply any authorization to him to appear for the prosecution in the  appeals
pending in the High Court.
98. The Advocate General of  Karnataka  had  submitted  before  the  learned
Single Judge of the Karnataka High Court that  no  fresh  appointment  order
was issued in favour of  Mr.  Bhavani  Singh  in  respect  of  the  criminal
appeals filed by the accused persons, meaning thereby that for enabling  Mr.
Bhavani Singh to appear in those appeals,  a  fresh  appointment  order  was
necessary. This was in the context that after the conviction of the  accused
persons,  there  had  been  no  further  consultations  between  the   State
Government of Karnataka and the Chief Justice of the  Karnataka  High  Court
in making any appointment of a Special Public Prosecutor.
99. Before the Division Bench, the submission of the  Advocate  General  was
more explicit. It was submitted that the appointment of the  Special  Public
Prosecutor was made pursuant to  the  directions  of  this  court  and  that
"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".
100.   Right or wrong,  the  view  expressed  by  the  Advocate  General  of
Karnataka could not have been ignored by the High Court.  It  is  altogether
another matter that the proper course of action  for  Karnataka  would  have
been to either make a  specific  appointment  of  Mr.  Bhavani  Singh  as  a
Special Public Prosecutor to conduct the appeals pending in the  High  Court
or to appoint the Public Prosecutor or another Special Public Prosecutor  or
to obtain a clarification from this court, if necessary with regard  to  the
appeals in the High Court. That Karnataka did  neither  and  entertained  an
unnecessary doubt is unfortunate.
101.   It may be recorded here that in this court, learned counsel  for  the
State of Karnataka specifically stated the appointment of Mr. Bhavani  Singh
as a Special Public Prosecutor came  to  an  end  with  the  conviction  and
sentence of the accused persons.  In the written submissions  filed  by  the
State of Karnataka, it is categorically stated as follows:

"It is submitted that order dated 02.02.2013  appointing  Bhavani  Singh  is
confined to the Special CC No.208/2004.  It is submitted that Bhavani  Singh
is relying on the G.O. dated 29.09.2014 issued by State  of  Tamil  Nadu  to
conduct the case as SPP  before  the  Hon'ble  High  Court  in  Crl.  Appeal
No.835/2014 and the  Division  Bench  quashed  this  order  as  one  without
jurisdiction".

102.   This written submission is a clincher and the debate should end  with
this categorical assertion by the State of Karnataka.
103.   But, to be fair to Karnataka, it is  not  a  party  to  the  criminal
appeals and that may perhaps be the reason for its inaction - if action  had
been taken, it could be misconstrued as interfering in a case  in  which  it
had no concern. That this 'reason' is unjustified has already been  adverted
to. But then, it was equally the duty and responsibility of  Tamil  Nadu  to
either take the opinion of Karnataka on the future  course  of  action  with
regard to representation in the criminal appeals  or  to  have  brought  the
'vacuum' to the notice of the learned Judge  hearing  the  criminal  appeals
rather than rushing in with the  ill-advised  order  dated  29th  September,
2014. That Tamil Nadu sought to take advantage of  a  situation  that  ought
not to have even existed is  also  unfortunate.  However,  to  give  it  the
benefit of doubt, it is possible that Tamil Nadu was  also  in  a  state  of
confusion.
104.   It seems that Tamil Nadu may also have been of the view  (though  not
so expressed) that the appointment of Mr. Bhavani Singh as a Special  Public
Prosecutor had come to an end and that  is  the  reason  why  the  Principal
Secretary to the Government of Tamil  Nadu  authorized  the  Directorate  of
Vigilance and Anti Corruption,  Chennai  to  engage  Mr.  Bhavani  Singh  to
appear in the High Court by issuing the order dated  29th  September,  2014.
If at law Mr. Bhavani Singh was automatically authorized to  appear  in  the
appeals pending in the High Court by virtue of Section 301(1) of  the  Code,
there was no  occasion  for  Tamil  Nadu  to  issue  the  order  dated  29th
September, 2014 and Mr. Bhavani Singh  could  have,  on  the  basis  of  the
earlier authorization given to  him  on  2nd  February,  2013  by  Karnataka
entered appearance in the High Court on behalf of the prosecution. That  the
High  Court  held  the  order  dated  29th  September,  2014   was   without
jurisdiction is of no consequence - what is important is  the  understanding
of Tamil Nadu of the position at law namely, that  the  appointment  of  Mr.
Bhavani Singh as a Special  Public  Prosecutor  came  to  an  end  with  the
conviction and sentence of the accused persons.
105.   Learned counsel for  the  accused  persons  submits  that  a  Special
Public Prosecutor can be appointed in a case or for a  class  of  cases  and
the word 'case' includes an appeal. In this context reliance was  placed  on
Mansoor v. State of Madhya Pradesh[35] wherein it was held that 'case'  must
mean a proceeding which  at  the  end  results  whether  in  the  discharge,
conviction or acquittal of an accused person. The context in  which  Mansoor
was decided was completely different. In that case  a  gazette  notification
was issued  appointing  the  Additional  Government  Advocate  as  a  Public
Prosecutor for the High Court in respect of cases arising in  the  State  of
Madhya Pradesh. The Additional Government  Advocate  cum  Public  Prosecutor
filed an appeal in the High Court against  an  order  of  acquittal  by  the
trial  court.  The  argument  raised  was  that  the  Additional  Government
Advocate cum Public Prosecutor could not be considered a  Public  Prosecutor
for presenting an appeal against an acquittal in the High Court  because  an
appeal against an acquittal could not be described as a  case  which  arises
in the High Court. This court observed that "The argument has merely  to  be
stated to be rejected." Nevertheless, this court went on to hold  that  "The
case resulting in the acquittal of the accused persons would  clearly  be  a
case arising in the State and within the contemplation of  the  notification
and the Additional Government Advocate who is a Public  Prosecutor  for  the
High Court would be entitled to present the appeal in such a  case".  It  is
in this context that it was held that an appeal is a case. I am afraid  this
has no relevance, one way or another, to  the  controversy  in  this  court,
namely, the authority of Mr. Bhavani Singh to appear in  the  appeals  filed
in the High Court by the accused persons.
106.   The word 'case' occurring in Section 24 and  Section  301(1)  of  the
Code is required to be given its ordinary and natural  meaning  and  in  the
context in which it is used. It cannot be given an extended  meaning  so  as
to  include  an  appeal.  Otherwise,  as  pointed  out  above,  in  a  given
situation, an Assistant Public Prosecutor in  charge  of  a  case  before  a
Magistrate can argue for the displacement of a Public  Prosecutor  appointed
for the High Court by the State Government after consultation with the  High
Court. How strange is that.
107.   Learned counsel also sought to rely on Rule 30 of the  Karnataka  Law
Officers  (Appointment  and  Conditions  of  Service)  Rules,   1977   which
authorizes the Government of Karnataka to appoint an advocate as  a  Special
Counsel for the conduct of a criminal  case  or  any  appeal  or  proceeding
connected therewith pending in a court whether within the State  or  in  any
other State or in the Supreme Court or in any High  Court  in  the  country.
Learned counsels submits that since the appointment of Mr. Bhavani Singh  is
also in terms of Rule 30 of the aforesaid Rules, he is  entitled  to  appear
in the High Court in the appeals filed by the accused persons.
108.   I am unable to accept this submission for the simple reason  that  it
has not been anybody's case at any stage that Mr. Bhavani Singh appeared  in
the High Court in the appeals filed by the accused persons in  his  capacity
as  a  Special  Counsel  and  not  in  his  capacity  as  a  Special  Public
Prosecutor. This submission is being made for the first  time  and  only  in
this court. That apart,  the  facts  relating  to  the  appointment  of  Mr.
Bhavani Singh as a Special Counsel  are  not  available  on  record.  It  is
unclear whether the Chief Justice of the Karnataka High Court was  consulted
only about the  appointment  of  Mr.  Bhavani  Singh  as  a  Special  Public
Prosecutor or whether he was consulted about the appointment of Mr.  Bhavani
Singh as a Special Counsel as well. Unless  the  facts  are  clear  in  this
regard it is difficult to come to any  conclusion  on  this  submission.  If
reliance by learned counsel for the accused persons is  now  solely  on  the
appointment of Mr. Bhavani Singh as a Special  Counsel,  then  relying  upon
his appointment as such would fly in the face of  the  directions  given  by
this court for the appointment of a Public Prosecutor.
109.   In any event, Rule 30  of  the  aforesaid  Rules  enables  the  State
Government to appoint an advocate  as  a  Special  Counsel  either  for  the
conduct of a civil case or a criminal case  or  any  appeal  or  proceedings
connected therewith. The provision enabling the  appointment  of  a  Special
Counsel is obviously disjunctive. Rule 30 of the said Rules must be read  as
it is and the appointment of  a  Special  Counsel  would  have  to  be  made
separately for a civil case or for a criminal case or for any appeal or  for
any proceedings connected with a civil  case  or  a  criminal  case  or  any
appeal. There is nothing to show that Mr. Bhavani Singh was appointed  as  a
Special Counsel by the State of Karnataka  for  the  appeals  filed  by  the
accused persons in the High Court.
110.   I am  not  discussing  the  differences  in  the  role  of  a  Public
Prosecutor and the role of a Special Counsel since it is  not  necessary  to
do so. All that need be said is that their  respective  roles  are  distinct
and separate as indeed  their  responsibilities  with  a  Public  Prosecutor
having great responsibilities (as  submitted  by  learned  counsel  for  the
accused persons), much more than a Special Counsel.
111.   Learned counsel for the accused persons submit that  due  to  certain
developments having taken place, namely, that the  hearing  in  the  appeals
has been concluded and judgment reserved, the de facto doctrine would  apply
to the facts of the present case since Mr. Bhavani Singh had  in  fact  been
appointed as the Special Public Prosecutor to contest the appeals  filed  by
the accused persons in the  High  Court.  Reference  was  made  to  Gokaraju
Rangaraju v. State  of  Andhra  Prades[36]  wherein  Pulin  Behari  v.  King
Emperor[37] was referred which held that "acts  of  the  officers  de  facto
performed by them within the scope of their assumed or  official  authority,
in the interest of the public  or  third  persons  and  not  for  their  own
benefit, are generally as valid and binding, as if they  were  the  acts  of
officers de jure."
112.   I have serious reservations on this submission in the  context  of  a
lawyer representing a litigant. No  lawyer  either  in  his  capacity  as  a
private lawyer or a lawyer for the State  or  as  a  Public  Prosecutor  can
purport to  represent  a  litigant  without  any  authority  for  doing  so.
Acceptance of such a proposition and then relying on the de  facto  doctrine
could lead to chaos in the dispensation of justice. If Mr. Bhavani Singh  is
not authorized to represent  the  prosecution  in  the  High  Court  in  the
appeals filed by the accused persons, he simply cannot do so and if he  does
so, the accused persons cannot put forward a fait accompli or rely upon  the
de facto doctrine and say: So be it.
113.   That apart, assuming Gokaraju Rangaraju is  also  applicable  to  the
engagement or appointment of a lawyer by his or her client, this  court  has
noted another rule, in the nature of an exception to the de facto  doctrine,
which is that while a collateral  attack  to  the  appointment  of  a  judge
cannot be made, a direct attack can  certainly  be  made.  It  was  held  in
Gokaraju Rangaraju:
"A judge, de facto, therefore, is one who is not a mere intruder or  usurper
but one who holds office, under  colour  of  lawful  authority,  though  his
appointment is defective and may later be found to  be  defective.  Whatever
be the defect of his title to the office, judgments pronounced  by  him  and
acts done by him when he was clothed with the powers and  functions  of  the
office, albeit unlawfully, have the same efficacy  as  judgments  pronounced
and acts done by a judge de jure. Such is the de  facto  doctrine,  born  of
necessity and public  policy  to  prevent  needless  confusion  and  endless
mischief. There is yet  another  rule  also  based  on  public  policy.  The
defective appointment of a de facto judge may be questioned  directly  in  a
proceeding to which he  be  a  party  but  it  cannot  be  permitted  to  be
questioned in a litigation  between  two  private  litigants,  a  litigation
which is of no concern or consequence to the judge except as  a  judge.  Two
litigants litigating their private titles cannot be permitted  to  bring  in
issue and litigate upon the title of a judge to  his  office.  Otherwise  so
soon as a judge pronounces a judgment a litigation may be  commenced  for  a
declaration that the judgment is void because  the  judge  is  no  judge.  A
judged title to his office cannot be brought into jeopardy in that  fashion.
Hence  the  Rule  against  collateral  attack  on   validity   of   judicial
appointments. To question a judges appointment  in  an  appeal  against  his
judgment is, of course, such a collateral attack."

114.   In so far as the present case is concerned, a direct attack has  been
made to the claimed validity of the continuation of Mr. Bhavani Singh  as  a
Special Public Prosecutor in the High Court.  This  case,  therefore,  comes
within the 'another rule' or the exception to the de  facto  doctrine.  That
the objection to Mr. Bhavani  Singh's  appearance  in  the  High  Court  was
raised by Mr. Anbazhagan only on 24th December,  2014  and  not  earlier  is
neither here nor there. It is not as if the objection was raised  belatedly.
In any event, the objection was raised before the  hearing  of  the  appeals
commenced and that is good enough.
115.   The submission that Mr. Bhavani Singh has impeccable credentials  and
the attempt of Mr. Anbazhagan is to somehow or the other get rid of  him  as
the Special Public Prosecutor is not relevant since his  competence  is  not
in question. It is true that this court  in  Jayalalithaa[38]  had  observed
that  "no  issue  has  been  raised  by  the  respondents   [including   Mr.
Anbazhagan] in respect of the eligibility,  suitability  or  credibility  of
Respondent 4 [Mr. Bhavani Singh] as an SPP." This court  had  also  observed
that the  attempt  to  remove  Mr.  Bhavani  Singh  as  the  Special  Public
Prosecutor "is a product  of  mala  fides".[39]  Furthermore,  even  in  the
judgment under appeal it has been noted  that  "Before  the  learned  Single
Judge,  as  the  appellant  submitted  that,  he  would  not  go  into   the
allegations made  against  the  5th  respondent  [Mr.  Bhavani  Singh],  but
confine his submissions to  the  legal  issues."  Learned  counsel  for  the
accused persons submits that in the light of this, the desire of Tamil  Nadu
to have the prosecuting agency effectively represented  in  the  appeals  in
the High Court through an eligible, suitable  and  credible  Special  Public
Prosecutor,  in  the   face   of   Karnataka   abdicating   its   duty   and
responsibility, cannot be faulted or misconstrued as is sought  to  be  done
by Mr. Anbazhagan. He further submits that the appointment  of  Mr.  Bhavani
Singh as the Special Public Prosecutor to contest the appeals  in  the  High
Court was really an act of necessity due to the  default  of  the  State  of
Karnataka. All this may be so, but  as  mentioned  above,  this  is  not  in
controversy in this court and I make no comment  on  it.  However,  I  would
like to make it explicit that I have referred  to  the  credentials  of  Mr.
Bhavani Singh only because  a  submission  was  made  in  that  regard.  Mr.
Bhavani Singh has not been issued notice  in  these  appeals  and  therefore
nothing that I have said can be or  should  be  construed  as  doubting  the
credentials of Mr. Bhavani Singh.
116.   Learned counsel submits that Mr. Anbazhagan has been shifting  stands
from time to time as per his convenience. At the present  moment,  his  view
is that Mr. Bhavani Singh was  not  authorized  to  appear  as  the  Special
Public Prosecutor in the appeals filed by the accused persons  in  the  High
Court.  On an earlier occasion (and this fact has not been disclosed by  Mr.
Anbazhagan in the list of dates supplied by him) his contention was that  it
is only the Special Public Prosecutor who can appear in the  High  Court  in
proceedings arising out of CC No.7 of 1997.
117.   In K. Anbazhagan v. The  Superintendent  of  Police[40]  one  of  the
points  for  consideration  was  whether  the  Special   Public   Prosecutor
appointed pursuant to the directions of this court  could  be  by-passed  by
the Directorate of Vigilance and Anti-Corruption,  Chennai  and  whether  it
was permissible to have  another  Public  Prosecutor  appear  for  the  said
Directorate  in  the  Karnataka  High  Court  ignoring  the  Special  Public
Prosecutor. It was held by the High Court that the Directorate of  Vigilance
and Anti-Corruption, Chennai could not be permitted  representation  in  the
High Court by a counsel of its own and that it would have to be  represented
by the Special Public Prosecutor. Notwithstanding this decision  (which  has
not been disclosed by Mr. Anbazhagan to this  court)  an  objection  is  now
being raised in the present case to the Special Public Prosecutor  appearing
for the Directorate of Vigilance and Anti-Corruption,  Chennai.  This  flip-
flop by Mr. Anbazhagan reveals that he is not serious in his submissions.  I
am mentioning this submission only to reject it. The issue  is  not  whether
Mr. Bhavani Singh can or cannot appear for the Directorate of Vigilance  and
Anti-Corruption, Chennai - the issue is whether he can at all appear in  the
High Court as a Special Public Prosecutor without being authorized to do  so
in the appeals filed by the accused persons. In my opinion, he  cannot,  for
more than one reason, as indicated above.
118.   Finally, learned counsel submits that Mr. B.V. Acharya  had  appeared
on several occasions in the High Court in matters arising out  of  the  case
pending before the Special Judge when he was the Special  Public  Prosecutor
to conduct that case. Therefore, there  is  nothing  wrong  in  Mr.  Bhavani
Singh appearing in the High Court in the same manner as Mr. Acharya  did.  I
do not know the circumstances in which  Mr.  Acharya  appeared  and  in  any
event his appearance in the High Court is not in issue. It is not  necessary
to comment on this at all. For the record, it  may  be  mentioned  that  the
only example cited by learned counsel for the accused persons relates to  K.
Anbazhagan v. The  Superintendent  of  Police[41]  but  in  that  case,  the
Special Public Prosecutor was shown as the second respondent  and  therefore
Mr. Acharya was entitled to appear in that case being a respondent therein.
Conclusion
119.   For the  reasons  given,  I  hold  that  Mr.  Bhavani  Singh  is  not
authorized to represent the prosecution in the Karnataka High Court  in  the
appeals filed by  the  accused  persons  against  their  conviction  by  the
Special Court. 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.
120.   The State of Karnataka should now  ensure  that  the  prosecution  is
duly represented by an authorized Public Prosecutor appointed under  Section
24(1) of the Code.  However, if the State of Karnataka decides to appoint  a
Special Public Prosecutor under Section 24(8) of the Code,  it  must  do  so
only in consultation with the Chief Justice of the Karnataka High Court.
121.   In line with the view expressed by the  Delhi  High  Court,  which  I
endorse, it is further directed that the State of Karnataka be made a  party
respondent in the appeals filed by the accused persons.
122.   The earlier directions given by this court regarding payment of  fees
and assistance of another lawyer etc. will be incorporated in the  terms  of
appointment of the Public Prosecutor or the  Special  Public  Prosecutor  as
the case may be.
123.   Criminal Appeal arising out of  S.L.P.  (Crl.)  No.1632  of  2015  is
allowed.
124.   Criminal Appeal No.638 of 2015 arises out of SLP  (Crl.)  No.2013  of
2015. The challenge is to the decision of a  learned  Single  Judge  of  the
Karnataka High Court dated 5th February, 2015 whereby I.A. No.1 filed  under
Section 301(2) of the Code in Criminal  Appeal  Nos.  835-838  of  2014  was
dismissed by the High Court.   In  that  I.A.,  Mr.  Anbazhagan  had  sought
permission of the learned Single Judge to intervene in the  pending  appeals
filed by the accused persons and assist the Special Public Prosecutor.
125.    The  prayer  in  this  court  is  for  permission  to  file  written
submissions in the pending appeals filed by the  accused  persons.  However,
there is no such prayer in the application for permission  to  file  written
submissions.
126.   In the order under  appeal,  the  learned  Single  Judge  framed  the
issues arising out of the application as follows:-
Whether  the  applicant/intervener  can  be  permitted  to  intervene  as  a
party/respondent in the above appeals?

Whether the intervener  can  be  permitted  to  assist  the  Special  Public
Prosecutor before this Court?

127.    In  my  opinion,  there  is  no  question  of  permitting        Mr.
Anbazhagan to file written submissions. Section 301(2) of the Code does  not
postulate the filing of any  written  submissions.   That  apart,  I  cannot
permit Mr. Anbazhagan to file written submissions in the High Court when  no
such prayer was made by him before the High Court. Even  if  such  a  prayer
had been made by Mr. Anbazhagan before the High Court, it was  entirely  for
the learned Single Judge to take a view in the matter.
128.   In Haradhan Sen v.  State[42]  it  was  observed  that  there  is  no
provision  in  the  Code  for  permission  to   file   written   submissions
particularly at the appellate stage and there is no  scope  for  filing  any
written arguments by a private counsel  except  when  the  court  thinks  it
necessary for the purposes of  a  fair  trial  and  only  on  the  basis  of
permission granted by the court.







129.   Under the circumstances, there is no merit in this appeal and  it  is
dismissed.



                                              ............................J.
                                                           (Madan B. Lokur)
New Delhi;
April 15, 2015
                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.637 OF 2015
                 (Arising out of S.L.P. (Crl.) No.1632/2015)

K. ANBAZHAGAN                        ..Appellant
                                   Versus
STATE OF KARNATAKA & ORS.        ..Respondents
                                    WITH
                       CRIMINAL APPEAL NO.638 OF 2015
                (Arising out of S.L.P. (Crl.) No. 2013/2015)

K. ANBAZHAGAN                        ..Appellant
                                   Versus
SELVI J.  JAYALALITHA & ANR.         ..Respondents

                               J U D G M E N T

R. BANUMATHI, J.

       Leave granted.
2.     I have had the benefit of going through the draft  judgment  proposed
by His Lordship Justice Madan B.  Lokur.   For  the  reasons  which  I  have
indicated below, I am unable to agree with the proposed  final  decision  in
criminal  appeal  arising  out  of  S.L.P.  (Crl)  No.1632/2015  and  in  my
considered view, the criminal appeal arising out of said  S.L.P.  is  liable
to be dismissed.  However, I agree with the  final  decision  taken  by  His
Lordship in the criminal appeal arising out of SLP (Crl.) No.2013/2015.

3.     Before the learned Single Judge  of  the  Karnataka  High  Court,  on
behalf of the appellant, it was submitted that the appellant  would  not  go
into the allegations made against Mr. Bhavani Singh, but would  confine  his
submissions only to the legal issues and the said submission is referred  to
in paragraph (13) of the impugned judgment.  Before  us,  even  though  much
arguments were advanced on the credibility of fifth respondent as a  Special
Public Prosecutor (SPP), in the High Court, since the matter was  restricted
only on the legal issues, I consciously refrain from  making  any  reference
to the submissions touching upon the credibility of Mr.  Bhavani  Singh  and
would therefore confine my discussion only on the legal issues.
4.     The following questions arise for consideration in this appeal:

(i)    Whether the fifth respondent-Mr. Bhavani Singh appointed  as  Special
Public  Prosecutor  for  conducting  the  disproportionate  assets  case  in
Special C.C.No. 208/2004  (in the case of Kumari J. Jayalalitha and  others)
can continue to  appear in the criminal  appeals   filed   by   the  accused
against  the   verdict  of  conviction  and  whether  appearance  of   fifth
respondent in the appeals is without  authority  and illegal ?

(ii)      Whether the appellant is entitled to  assist  the  prosecution  in
the appeal stage by filing the written submission?

5.     Shorn of details of  chequered  history  of  the  case,  brief  facts
giving rise to these appeals are as follows:-  A  prosecution  was  launched
against the  respondents under Section 13(1)(e)  read  with   Section  13(2)
of the Prevention of Corruption Act for possessing  assets  disproportionate
to their known sources of income in the  year  1996-1997  in  the  State  of
Tamil Nadu.  Appellant in both the  appeals  is  the  General  Secretary  of
Dravida Munnetra Kazhagam(DMK) and a political  opponent  of  accused  No.1.
The appellant approached this  Court  on  18.11.2003  for  transferring  the
trial of the case to the neighbouring State,  on  the  ground  that  a  fair
trial was not possible in the State of Tamil Nadu.  While  transferring  the
matters to the State of Karnataka, in K. Anbazhagan & Ors.   vs.  Supdt.  of
Police  & Ors., reported in (2004) 3 SCC  767,   in  paragraph  (34),   this
Court  issued the following directions:

"34.  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 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.     Pursuant to the above direction as in Para 34(c), after  consultation
with the Chief Justice of the High Court of Karnataka,  on  19.02.2005,  the
Government of Karnataka, appointed  Mr.  B.V.  Acharya,  a  former  Advocate
General, as  Special  Public  Prosecutor  to  conduct  the  prosecution.  On
12.08.2012, Mr. Acharya expressed  his  inability  to  continue  as  Special
Public Prosecutor. The Government of Karnataka accepted his resignation  and
discharged him from the case in January 2013.
7.      The  Government  of  Karnataka  then  initiated  the   process   for
appointment of a new Special Public Prosecutor and  in  pursuance  with  the
directions of this Court submitted names  of  four  advocates  to  the  High
Court for consideration by the Chief Justice. The then Acting Chief  Justice
of the Karnataka High Court on  29.01.2013  recommended  the   name  of  Mr.
Bhavani Singh-respondent No.5 for appointment as Special Public  Prosecutor,
though his name was not  submitted  by  the  Government  of  Karnataka.  The
Government of Karnataka accepted the same and issued  a  notification  dated
2.02.2013 appointing Mr. Bhavani Singh as Special Public Prosecutor.
8.     Fifth respondent started working as  Special  Public  Prosecutor  and
number of defence  witnesses  were  examined  and  the  trial  of  the  case
proceeded. Defence commenced arguments on 2.08.2013 and later concluded  the
same.  On  26.08.2013,  Government  of  Karnataka  issued   a   notification
withdrawing  the  appointment  of  fifth  respondent   as   Special   Public
Prosecutor without consulting the Chief Justice  of  Karnataka  High  Court.
Aggrieved by the said notification, removing  fifth  respondent  as  Special
Public  Prosecutor,  the  accused  preferred  the   Writ   Petition   (Crl.)
No.154/2013. When the aforesaid writ petition was  pending  in  this  Court,
the Government of Karnataka consulted the  Chief Justice  of  the  Karnataka
High Court  for withdrawing the appointment  of   Mr.  Bhavani  Singh  as  a
Special Public Prosecutor and the Chief Justice concurred with the  view  of
the State Government vide communication dated  14.09.2013.  The  appointment
of Mr. Bhavani Singh stood withdrawn by the Government  of  Karnataka  by  a
fresh notification No. LAW 149 LCE 2012 dated 16.9.2013.   Being  aggrieved,
the accused have filed another  writ  petition  being  Criminal  No.166/2013
before  this  Court  challenging  the  communication  dated  14.09.2013  and
notification 16.09.2013.  After hearing the parties and  after  taking  note
of the facts of  the  case,  in  J.  Jayalalithaa  And  Ors.  vs.  State  of
Karnataka & Ors., (2014) 2 SCC 401, this Court quashed the order of  removal
of fifth respondent as Special Public Prosecutor .
9.     By the judgment dated 27.09.2014, the  Special  Judge  convicted  the
accused  No.1  under  Section  13(1)(e)  read  with  Section  13(2)  of  the
Prevention of Corruption Act read with Section 120B IPC  and  other  accused
for the offences punishable under Section 109 IPC read  with  Section  13(2)
of Prevention of Corruption Act. Challenging the verdict of  conviction  and
sentence of imprisonment  imposed,  accused  preferred  appeals  before  the
Karnataka High Court in Criminal Appeal Nos. 835-838 of  2014.   During  the
pendency  of  the  appeals  in  the  High  Court,   the  accused  filed   an
application for enlarging them on bail and the learned Single  Judge  by  an
order  dated  7.10.2014  dismissed  the  application  for  grant  of   bail.
Aggrieved by the said order, accused preferred appeal before this  Court  by
filing Special  Leave  Petition  (Crl.)  No.7900/2014.  By  an  order  dated
17.10.2014, this Court enlarged all the accused on bail.   Thereafter,  this
Court passed  an  order  on  18.12.2014  requesting  the  Chief  Justice  of
Karnataka High Court to constitute  a  Special  Bench  for  hearing  of  the
appeals and further directed that the criminal appeals be heard  on  day-to-
day basis and dispose of the same as early as  possible,  at  any  rate  not
later than three months.  After Christmas vacation, High Court of  Karnataka
reopened on 2.01.2015 and hearing of the arguments in the  criminal  appeals
started on 6.01.2015  and  hearing  was  concluded  on  11.03.2015.   It  is
submitted at the Bar that the learned Single Judge reserved the judgment  in
the criminal appeals on 11.03.2015.
10.    After the Supreme Court has passed the Order  dated  18.12.2014,  the
appellant who is the General Secretary of DMK Party  made  a  representation
on 24.12.2014 to the Government of Karnataka  requesting  it  to  appoint  a
suitable senior lawyer to appear for the Director  of  Vigilance  and  Anti-
Corruption (for short 'D.V & A.C'), Tamil Nadu  before  the  High  Court  of
Karnataka at Bangalore in the Criminal Appeal      Nos.  835-838/2014.   The
appellant also filed  a  memo  on  7.01.2015  in  Criminal  Appeal  Nos.835-
838/2014 contending that the  fifth  respondent  is  not  a  Special  Public
Prosecutor appointed by the Karnataka Government in  consultation  with  the
Chief Justice of High Court of Karnataka to  appear  in  the  appeals    and
therefore fifth respondent cannot appear in the appeals pending on the  file
of the High Court.
11.    When the matters stood thus, on  6.01.2015,  the  appellant  filed  a
Writ Petition being No.742/2015 seeking a direction  to  appoint  any  other
Senior Lawyer as Special  Public  Prosecutor  in  criminal  appeal  Nos.835-
838/2014. After hearing both the parties and after taking note of the  order
passed by the Apex  Court  granting  bail  on  17.10.2014  and  order  dated
18.12.2014, in which this Court has directed the appeals to be heard on day-
to-day basis and the  appeals  be  disposed  of  within  three  months,  the
learned Single Judge dismissed the writ petition holding  that  Mr.  Bhavani
Singh's continuance as Special Public Prosecutor may not cause prejudice  in
the proceedings.   Learned  Single  Judge  further  held  that  since  fifth
respondent was appointed  pursuant to the direction of  the  Supreme  Court,
it is  therefore a matter of  formality for the Supreme Court to clarify  as
to the procedure in  appointing  a counsel and his assistant,  if  any,  and
in the conduct of further  proceedings.
12.    Being aggrieved,  the  appellant  has  preferred  appeal  before  the
Division Bench of High Court of Karnataka being  Writ  Appeal  No.  260/2015
(GM-RES).  On 11.02.2015, the High Court of Karnataka  passed  the  impugned
order rejecting the appellant's challenge  against  the  fifth  respondent's
authority as Special Public Prosecutor to appear  in  the  appeals.   By  an
order dated 5.02.2015 passed in I.A. No.1/2015 in Criminal  Appeals  No.835-
838/2014, the High Court  dismissed  the  appellant's  plea  to  assist  the
prosecution  in the above  appeals  observing  that  the  appellant  has  no
statutory right to intervene in the criminal appeal  proceedings  to  assist
the prosecution in the appeals.  In these appeals, appellant has  challenged
the correctness of the impugned judgment/order.
13.    Appointment of respondent No5-Mr. Bhavani  Singh  as  Special  Public
Prosecutor by the Government of  Tamil  Nadu  to  represent  Directorate  of
Vigilance  and  Anti-Corruption  in  the  appeals  in  the  High  Court   of
Karnataka:  The judgment in the criminal case was rendered  by  the  Special
Judge on 27.09.2014. Within two days thereafter i.e. on 29.09.2014,  on  the
request  made  by  Director,  Vigilance   and   Anti-Corruption,   Principal
Secretary to the Government of Tamil Nadu passed the order  authorizing  D.V
& A.C to engage Mr.  Bhavani Singh  as  the  Special  Public  Prosecutor  to
appear before the High Court of Karnataka  in  the  criminal  appeals.   The
order is extracted in paragraph (36) of  the  judgment  of  Hon'ble  Justice
Lokur.
14.    As per the direction of this Court in K.  Anbazhagan  vs.  Supdt.  of
Police, (2004) 3 SCC 767, the Special Public Prosecutor was appointed.   The
Appointment of the Special Public Prosecutor in  the  transferee  court  was
thus as per the direction of this Court. As extracted  earlier,  this  Court
specifically directed the State of Karnataka to appoint a senior counsel  as
Special  Public  Prosecutor  in  consultation  with  the  Chief  Justice  of
Karnataka High Court.
15.    While directing transfer of a criminal case from outside  the  State,
this Court can in  exercise  of  powers  under  Section  406  Cr.P.C.  issue
further   direction   to   the   transferee   court   to   appoint    Public
Prosecutors/Additional Public  Prosecutors/Special  Public  Prosecutors.  In
Jayendra Saraswati Swamigal @ Subramaniam  vs. State of  Tamil Nadu,  (2008)
10 SCC 180,  when the criminal case  was  ordered  to  be  transferred  from
State of Tamil Nadu to Union Territory of Pondicherry, this Court held  that
the  Union  Territory  of  the  transferee  court,  namely,  Government   of
Pondicherry is the appropriate  government  to  appoint  Public  Prosecutor/
Additional Public Prosecutor or Special Public  Prosecutor,   in  paragraphs
(13), (15), (17) & (18)  held thus:-


"13. Of course, this Court while passing order  of  transfer,  can  give  an
appropriate  direction  as  to  which  State  should  appoint   the   Public
Prosecutor to conduct that particular case. Such orders  are  passed  having
regard to the circumstances of  the  case  and  the  grounds  on  which  the
transfer has  been  effected.  This  Court  can  certainly  give  directions
irrespective of the provisions contained in Section 24 CrPC. But so  far  as
this case is concerned,  nothing  had  been  stated  in  the  order  of  the
transfer. The provisions contained in Section 24 CrPC shall prevail  and  it
is for the appropriate State Government  within  whose  area  the  trial  is
conducted to appoint Public Prosecutor under  sub-sections  (3)  to  (7)  of
Section 24 CrPC.

15. The purpose of transfer of the criminal case from one State  to  another
is to ensure fair trial to the accused. In this case,  the  main  ground  on
which the transfer of the sessions case was ordered from the Sessions  Court
of Chinglepet in Tamil Nadu to the Principal District  and  Sessions  Judge,
Pondicherry, was that the action of the prosecution  agency  had  created  a
reasonable apprehension in the mind of the appellant-accused that  he  would
not get justice if the trial was held in the State of Tamil Nadu.

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.

18. However, we make it clear that the State of Pondicherry can appoint  any
counsel as Public Prosecutor having requisite qualifications  as  prescribed
under sub-section (8) of Section 24 CrPC whether  he  is  a  lawyer  in  the
State of  Pondicherry  or  any  other  State.  As  it  is  a  criminal  case
registered by the State of Tamil Nadu the expenses for conducting the  trial
are to be borne by the State of Tamil Nadu. The advocate's fees  payable  to
the Public  Prosecutor,  Additional  Public  Prosecutor  or  Special  Public
Prosecutor by the State of Pondicherry shall be borne by the State of  Tamil
Nadu and the Home Departments of the two States may undertake  consultations
with each other and an appropriate decision may be taken by the  authorities
concerned in this regard".

16.    When the criminal case is  transferred  from  one  court  to  another
court which is subordinate to another High Court, then the transferee  State
acquires jurisdiction to appoint Public Prosecutor.  The  transferor  court,
namely, State of Tamil Nadu had no jurisdiction to appoint   Special  Public
Prosecutor  to represent D.V & A.C in the criminal appeals before  the  High
Court  of  Karnataka.   After  extracting      Section  406    Cr.P.C.   and
paragraph (34)  of   the  judgment  in         (2004)  3  SCC  767  and  the
notification appointing Mr. B.V. Acharya  and  the  subsequent  notification
dated 2.02.2013 appointing  fifth  respondent,  in  the  impugned  judgment,
Division Bench of the Karnataka High Court observed that the State of  Tamil
Nadu has no jurisdiction to appoint a  Public  Prosecutor   in  the  appeals
pending before the High Court of Karnataka and the order is non-est  in  the
eye of law and held as under:-

".....Therefore, the State of Tamil Nadu has no jurisdiction  to  appoint  a
Public Prosecutor in the Special Court nor in the appeals which are  pending
in this Court.   Hence,  the  order  passed  by  the  State  of  Tamil  Nadu
authorizing the deleted third respondent herein to engage  the  services  of
the fifth respondent is without authority and non est in  the  eye  of  law.
That order does not confer any right on the fifth  respondent  to  represent
either the State of Karnataka or the State of  Tamil  Nadu  in  the  pending
appeals before this Court.  In view of our findings recorded above that  the
transferor court   has no  power  to  appoint  a  Public  Prosecutor   under
Section 24 of the Code in respect  of  a  case  pending  in  the  transferee
Court, the argument that the appellant has not challenged   the  said  order
of appointment has no merit."

17.    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.  I fully agree  with  the  view  taken  by  the  High  Court  of
Karnataka.  To this extent, I also agree with  the  view  taken  by  Hon'ble
Justice Lokur.
18.     Whether,  fifth  respondent  can  continue  as  the  Special  Public
Prosecutor in the criminal appeals before the High Court of Karnataka.:  Mr.
T.R. Andhyarujina,  learned Senior  Counsel   appearing  for  the  appellant
contended that in pursuance of the direction of this Court in (2004)  3  SCC
767,  after the disposal  of  the  case,  in  consultation  with  the  Chief
Justice of  High Court of Karnataka, a Special Public Prosecutor has  to  be
appointed afresh for the purpose of conducting criminal appeals in the  High
Court and Mr. Bhavani Singh had no authority to appear  in  the  appeals  as
his appointment was limited to conduct only Special   CC  No.  208/2004   in
the Court of  Additional City  Civil  and  Sessions  Judge,  Special  Court,
Bangalore.  It was submitted that in the appellate  court,  the  appointment
of prosecutor could only be done in terms of the Supreme Court order by  the
State of Karnataka in consultation with the Chief Justice of High  Court  of
Karnataka. It was contended that Section 24(8) Cr.P.C. does not authorize  a
Special Public Prosecutor appointed by the government to continue to  appear
in appeal and all the proceedings after the case is over and in the  present
case, Mr. Bhavani Singh has been appointed only for  the    limited  purpose
of  Special CC No.208/2004 and Section 24(8)  Cr.P.C.  cannot  overrule  the
express  limitation  in  the  notification  appointing  Mr.  Bhavani  Singh.
Learned Senior Counsel further contended that Section  301  Cr.P.C.  has  no
application in the present case and it does not give a right to  any  Public
Prosecutor or Assistant Public Prosecutor to have  a  blanket  authority  to
appear in any court originating from that case in which  he is in charge.
19.    Reiterating the above submissions, Mr. Vikas  Singh,  learned  Senior
Counsel appearing for the appellant in the criminal appeal  arising  out  of
S.L.P.(Crl.) No.2013/2015 submitted  that Section  301  Cr.P.C.  is  only  a
general provision in Chapter XXIV of the Code which is only  a  facilitating
provision for a Public Prosecutor to appear without  any  written  authority
if he is  in charge of a case  and  Section  301  Cr.P.C.  does  not  confer
unlimited authority to a Public Prosecutor to appear  in  the  hierarchy  of
courts. In so far as SLP (Crl.) No.2013/2015 is concerned, it was  submitted
that the  appellant  has  consistently  intervened  before  the  appropriate
courts  and  learned  Special  Judge  also  permitted  him  to  assist   the
prosecution and the appellant having filed written submissions in the  trial
court, the High Court ought to have permitted the appellant to intervene  in
the criminal appeals also.
20.    We have heard Mr. M.N. Rao, learned Senior Counsel appearing for  the
State of Karnataka who submitted that in the case of Mr. Bhavani Singh,  his
appointment was limited to the conduct of trial and it came to an end  after
the trial was over.  It was submitted that Rule 30  of  the  Karnataka   Law
Officers (Appointment and Conditions of Service) Rules 1977, the words  'any
appeal or  proceedings  connected  therewith'   read  with  preceding  words
'civil  or  criminal  case'  negate  the  presumption  that  the  order   of
appointment  for trial  will continue till the matter  attains  finality  in
the  High Court or  in  the  Supreme  Court.   The  learned  Senior  Counsel
further submitted that after the judgment in the  criminal  case  the  State
Government  could  not  take  any  initiative,  since   it   could   neither
approach the Supreme Court nor the Chief Justice of the High  Court  on  its
own accord as there was no  authority  for  the  State  Government  to  take
action suo moto .
21.    Mr. Fali S. Nariman, learned Senior Counsel appearing for  the  first
accused submitted that by virtue of Section  24  (8)  Cr.P.C.,  Mr.  Bhavani
Singh's appointment as a Special Public Prosecutor  continues  even  in  the
appeal.  It was argued that sub-section (1) of Section  301  Cr.P.C.   gives
right  to any Public Prosecutor or Assistant Public  Prosecutor  'in  charge
of a case to appear and plead in any court in which   that  case  is   under
inquiry, trial or appeal' without any written authority and the  High  Court
rightly held that by virtue of  sub-section (1) of Section 301 Cr.P.C.,  Mr.
 Bhavani Singh has the authority to  continue  to  appear  in  the  criminal
appeals.
22.    We have heard Mr. K.T.S. Tulsi, learned Senior Counsel appearing  for
other accused who reiterated the submissions of Mr. Nariman and also  placed
reliance on catena of judgments.
23.    I have carefully considered the rival  contentions  and  perused  the
impugned judgment and  chronology  of  dates  and  events  and  material  on
record.
24.    It will be  convenient  at  this  stage  to  refer  to  some  of  the
provisions which have a bearing in the  matter  and  are  relevant  for  the
purpose of these appeals.   Section 2(u) of the Code of Criminal  Procedure,
1973 (for short 'Cr.P.C.') defines "Public Prosecutor" to  mean  any  person
appointed under  Section  24  and  includes  any  person  acting  under  the
directions of a Public Prosecutor.  Section 24 provides for  appointment  of
Public Prosecutors, Additional Public Prosecutors in  High  Courts  and  the
Districts by the  Central  Government  or  the  State  Government  and  also
provides for appointment of the Special Public Prosecutors for  purposes  of
any case or class of cases.  Section 24 Cr.P.C. reads as under:-

"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.

(2) The Central Government may appoint one or more  Public  Prosecutors  for
the purpose of conducting any case or class of cases  in  any  district,  or
local area.

(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.

(4) The District Magistrate shall, in consultation with the Sessions  Judge,
prepare a panel of names of persons, who are,  in  his  opinion  fit  to  be
appointed as Public Prosecutors or Additional  Public  Prosecutors  for  the
district.

(5) No person shall be appointed by  the  State  Government  as  the  Public
Prosecutor or Additional Public Prosecutor for the district unless his  name
appears in the panel of names prepared by the District Magistrate under sub-
section (4).

(6) ...............................

(7) A person shall be eligible to be appointed as a Public Prosecutor or  an
Additional Public Prosecutor under sub-section (1)  or  sub-section  (2)  or
sub-section (3) or sub-section (6), only if he has been in  practice  as  an
advocate for not less than seven years.

(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  his
choice to assist the prosecution under this sub-section.

(9) For the purposes of sub-section (7)  and  sub-section  (8),  the  period
during which a person has been in practice as a  pleader,  or  has  rendered
(whether before or after the commencement of this Code) service as a  Public
Prosecutor or  as  an  Additional  Public  Prosecutor  or  Assistant  Public
Prosecutor or other Prosecuting Officer, by whatever name called,  shall  be
deemed to be the period during which such person has been in practice as  an
advocate."

25.    Analysis of Section 24 Cr.P.C. would show that for appointment  of  a
Public Prosecutor in the High Court  in  terms  of  Section  24(1)  Cr.P.C.,
there has to be a consultation with the High  Court.  In  terms  of  Section
24(3), 24(4) and           24(5) Cr.P.C., the  Public  Prosecutor/Additional
Public Prosecutor for the District or local area, shall  be  appointed  from
out of the panel prepared by the District Magistrate  in  consultation  with
the  Sessions  Judge.  Qualification  prescribed  for  being  eligible   for
appointment  as  Public  Prosecutor,  Additional  Public  Prosecutor   under
Section 24 (1) or Section 24(2) or Section 24(3) Cr.P.C., a  person  who  is
in practice as an advocate for not less  than  seven  years.   In  terms  of
Section  24(8) Cr.P.C. for appointment   of  Special  Public  Prosecutor  to
conduct the case under Section 24(8) Cr.P.C., there is no such  consultation
with the High Court or the Sessions Judge. Section 24(8)  Cr.P.C.  says  the
Central Government or the State Government  may  appoint  a  Special  Public
Prosecutor 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.   The
scheme of the Code thus makes a clear distinction  between  the  appointment
of a Public Prosecutor 'to a Court' or a 'District or local area'  and  with
limited territory and appointment of Special Public Prosecutor  'to  a  case
or class of cases.
26.    As per the decision in K. Anbazhagan vs. Supdt. of Police,  (2004)  3
SCC 767 in paragraph 34(c), the State of Karnataka was to appoint  a  Senior
Lawyer having experience in criminal trials  as   a  Public  Prosecutor   in
consultation with the Chief Justice of the High Court  of  Karnataka.  After
the resignation of Mr. B.V. Acharya, the Government of Karnataka   initiated
the process of appointment of new Special Public  Prosecutor  and  submitted
names of four advocates to the High Court.  The Acting Chief Justice of  the
Karnataka High Court on 29.01.2013  recommended  the  name  of  Mr.  Bhavani
Singh, though his name was not submitted by  the  Government  of  Karnataka.
The Government of Karnataka accepted the  same  and  issued  a  notification
appointing Mr. Bhavani Singh as a Special Public Prosecutor which  reads  as
under:-


                          "GOVERNMENT OF KARNATAKA

No.  LAW   149   LCE   2012                                        Karnataka
Government Secretariat
                                                       Vidhana Soudha
                                                         Bangalore,    dated
02.02.2013

                                     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 Vs. 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 Sri B.V. Acharya on  same  terms   to  conduct
Special C.C.No.208/2004  (in  the  case  of  Kum.  Jayalalitha  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 Sri  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"
27.    The appointment of Mr. Bhavani Singh, under Section 24(8) Cr.P.C.  as
directed by this Court was in consultation with the High Court  and  on  the
recommendation of the Chief Justice of the High Court  of  Karnataka.   That
is why when Mr. Bhavani Singh's appointment was cancelled by the  Government
of Karnataka by its notification dated 26.8.2013, the same was  held  to  be
vitiated as there was no consultation with the Chief Justice of  High  Court
of Karnataka vide J. Jayalalithaa And  Ors.  vs.   State  of  Karnataka  And
Ors., (2014) 2 SCC 401.  Withdrawal of appointment of  Mr. Bhavani Singh  by
the Government of Karnataka even after consultation with the  Chief  Justice
of High Court of Karnataka by the subsequent  notification  dated  16.9.2013
did not find favour with  this  Court  and  was  held  to  be  malafide  and
vitiated.
28.    As per Section 2(u) Cr.P.C.,  Public  Prosecutor   means  any  person
appointed under Section 24  Cr.P.C.  and  thus  includes  a  Special  Public
Prosecutor appointed under Section 24(8) Cr.P.C.    In  this  case,  we  are
only concerned with the appointment of Special Public Prosecutor who can  be
appointed by the Central Government or the State Government   to  deal  with
'case or class of cases' under sub-section (8) of Section 24 Cr.P.C.   By  a
plain reading of  Section  24  Cr.P.C.,  three  main  categories  of  Public
Prosecutors are  discernible:-  First  are  those  who  are  attached  to  a
particular High Court, District or Local Area;  Second  are  those  who  are
attached to a  particular  case  or  class  of  cases  but  in  a  specified
jurisdiction and lastly, the one appointed to a  particular  case  or  class
of cases.    The  last  category  belongs  to  'Special  Public  Prosecutor'
appointed under sub-section (8) of Section 24 Cr.P.C., in which there is  no
mention about the jurisdiction/territory in which Special Public  Prosecutor
has to conduct the case or class of cases.   The  limitation  of  acting  in
particular court or  area  is  conspicuously  absent  in  the  provision  of
     Section 24(8) Cr.P.C, when compared with other provisions.
29.    Thus, once Mr. Bhavani  Singh  was  appointed  as  a  Special  Public
Prosecutor to conduct the criminal case, in terms of Section 301 Cr.P.C.  as
a Public Prosecutor in charge of a case, he can  appear  and  plead  without
any written authority before any court in which that case is under  inquiry,
trial or appeal.  Section 301 Cr.P.C. reads as under:-

"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.
    (2) If in any such case  any  private  person  instructs  a  pleader  to
prosecute any person in  any  Court,  the  Public  Prosecutor  or  Assistant
Public Prosecutor in charge of the case shall conduct the  prosecution,  and
the pleader so instructed shall act therein  under  the  directions  of  the
Public  Prosecutor  or  Assistant  Public  Prosecutor,  and  may,  with  the
permission of the Court, submit  written  argument  after  the  evidence  is
closed in the case".

30.    Section 301 of the Code is  a  pivotal  provision  which  deals  with
'appearance of Public Prosecutor' giving a substantive right to  the  Public
Prosecutor who is 'in charge of a case'  to appear and plead  in  any  court
in which that case is under inquiry, trial  or  appeal  without  having  any
written authority.  The scheme of the Code is that when a  case  is  at  the
stage of inquiry, trial or appeal, the Public Prosecutor  is  in  charge  of
the case and he is authorized to appear before any court in which that  case
is under inquiry, trial or appeal, without any  written  authority.  One  of
the reasons for dispensing with the  requirement  of  written  authority  to
appear and plead under Section 301 of the Code  is that the  Special  Public
Prosecutor appears for the State to prosecute the  accused.  State  in  turn
authorize and appoint the Special Public Prosecutor  to act  on  its  behalf
by issuing a notification and until that  notification  is  quashed  by  the
State, the power under sub-section (1) of Section 301  of  the  Code,   will
continue  the authority of Special Public Prosecutor  to  appear  and  plead
even after end of trial.
31.    Mr. Bhavani Singh appointed as  a  Special  Public  Prosecutor  under
Section 24(8) Cr.P.C. and in charge of the case, in  terms  of  Section  301
Cr.P.C., may appear and plead  without  any  written  authority  before  any
court which that case is in inquiry  or  trial  or  appeal.  The  word  'any
Court' occurring in Section 301 Cr.P.C. is significant.  While the  role  of
Public Prosecutors under sub-sections (1) to (3) of Section  24  Cr.P.C.  is
confined to the   'Courts'  or  'Area'  or  'District'  to  which  they  are
attached, the role allotted to Special Public Prosecutor  under  sub-section
(8)  of Section 24  Cr.P.C.  is specific to 'conduct a case' or   'class  of
cases'.  If the construction of the phrase 'conduct of the case'  or  'class
of cases' is restricted only to  the  trial  court   as  is  argued  by  the
appellant in  the  instant  case,  then  the  words  'any  Court',  'trial',
'inquiry', 'appeal' occurring   in  Section  301(1)  Cr.P.C.  would   become
redundant.
33.    Public Prosecutor defined under sub-section (u) of Section 2  is  the
genus and Special Public Prosecutor is the species.  Though there is  common
section 2(u) Cr.P.C. defining all classes of Public Prosecutors i.e.  Public
Prosecutor, Special Public Prosecutor, Assistant Public   Prosecutor   etc.,
all of them stand on different footings and there cannot be a same scale  to
measure their functions.   In fact, this  is  the  intention  which  can  be
inferred from the changes brought in the new Code as  compared  to  the  old
Code of 1898.  In the old Code, there were only two classes (i.e. those  who
have been empowered to prosecute generally and other who  are  empowered  to
deal with specific cases) that too  in  a  single  provision,  which  talked
about Public Prosecutors under Section 492 of the  old  Code.   In  the  new
Code, under Sections  24, 25 & 26  Cr.P.C.  all  of  them  have  independent
specific role to play at various levels and it is in   the  light  of  these
specific roles, Section 301 Cr.P.C. ought to be interpreted.   That  is  the
reason why Special Public Prosecutor can be allowed to appear in  the  case,
when the same went in  appeal from trial and the Public Prosecutor  and  the
Assistant Public Prosecutor cannot be allowed to do so  because  of  element
of 'Court or area' limitation imposed upon   them  in  which  they  have  to
work.
34.    Considering the scope of Section  301  Cr.P.C.,  in  Shiv  Kumar  vs.
Hukam Chand And Anr.,  (1999) 7 SCC 467, this Court has held as under:-

"12. In the backdrop of the above  provisions  we  have  to  understand  the
purport of Section 301 of the Code. Unlike its succeeding provision  in  the
Code, the application of  which  is  confined  to  Magistrate  Courts,  this
particular  section  is  applicable  to   all   the   courts   of   criminal
jurisdiction. This distinction can  be  discerned  from  employment  of  the
words "any court" in Section 301. In view  of  the  provision  made  in  the
succeeding section as for Magistrate  Courts  the  insistence  contained  in
Section 301(2) must be understood as applicable to all other courts  without
any exception. The first  sub-section  empowers  the  Public  Prosecutor  to
plead in the court without any written authority, provided he is  in  charge
of the case. The second sub-section, which is sought to be  invoked  by  the
appellant, imposes the curb on a counsel engaged by any  private  party.  It
limits his role to act in the  court  during  such  prosecution  "under  the
directions of the Public Prosecutor". The only other liberty  which  he  can
possibly exercise is to  submit  written  arguments  after  the  closure  of
evidence in the trial, but that too can be done only if  the  court  permits
him to do so."

35.    Referring to Shiv  Kumar's  case(supra)  and  elaborating  upon  sub-
section (1) of Section 301 Cr.P.C. and interpreting the  word  'a  case'  in
paragraph (49) of the impugned judgment, the High Court held as under:-

"49.   Therefore, as held by the Apex  Court  in  the  aforesaid  judgments,
when the Code meticulously provides for appointment  of  Public  Prosecutors
to the High Court, District  Court,  Magistrate  Court  and  Special  Public
Prosecutor for a case, and under Section 301 of the Code  it  declares  that
Special Public  Prosecutor or Assistant Public  Prosecutor in  charge  of  a
case may appear and plead without any written authority  before "any  Court"
in which the case is under inquiry, trial or appeal, it only means  once  he
is  entrusted with a case, he is put in charge of the case  till  that  said
case  ultimately reaches a finality either by way of  discharge,  conviction
or by way of  acquittal, he is entitled to appear  and  plead   without  any
written authority.  A conviction or acquittal by a trial  court  is  only  a
step amongst the several steps  in  which  a   criminal  case  has  to  pass
through.  These statutory provisions have to be read as  a   whole  and  one
provision should be construed with reference  to  the  other  provision   to
make the provision  consistent with  the  object   sought  to  be  achieved.
Otherwise, the word 'any Court' used in Section 301 would become  redundant.
 When a Special Public Prosecutor  is appointed to a case, he  has  a  right
to appear during inquiry, during trial and also during appeal.   He  is  not
appointed to any Court   but appointed to a case.  When  criminal  case  has
to  pass through the stages of inquiry, trial or appeal, by  virtue  of  his
appointment, when he is  in charge of  a case he has a right to  appear  and
plead without any written  authority before any Court in which that case  in
whatever stage is pending."

I fully agree with the view taken by  the  High  Court  for  the  reasonings
which I have elaborated supra and hereunder.
36.    Role Assigned to Special Public Prosecutor  appointed  under  Section
24(8) Cr.P.C. to conduct case or class of cases  to  be  interpreted   along
with  Section  301 Cr.P.C.:
For proper appreciation of this aspect, let us compare Section  301  of  the
New Code vis--vis Section 493 of the old Code.

|Section 301                    |Section 493                     |
|Appearance by Public           |Public Prosecutor may plead in  |
|Prosecutors.-                  |all Courts in cases under his   |
|                               |charge, Pleaders privately      |
|                               |instructed to be under his      |
|1.   The Public Prosecutor or  |direction.-                     |
|Assistant Public Prosecutor in |The Public Prosecutor may appear|
|charge of a case may appear and|and plead without any written   |
|plead without any written      |authority before any Court in   |
|authority  before any Court in |which  any case of which he has |
|which that case is under       |charge  is under inquiry, trial |
|inquiry, trial or appeal.      |or appeal, and if any private   |
|2.   If any such case  any     |person instructs  a pleader to  |
|private person instructs a     |prosecute  in any  Court any    |
|pleader to prosecute any person|person in  any such case, the   |
|in any Court, the Public       |Public Prosecutor  shall conduct|
|Prosecutor or Assistant Public |the prosecution, and the pleader|
|Prosecutor in charge of the    |so instructed shall act therein,|
|case shall conduct the         |under his  directions.          |
|prosecution, and the pleader so|                                |
|instructed shall act therein   |                                |
|under the directions of the    |                                |
|Public Prosecutor or Assistant |                                |
|Public Prosecutor, and may,    |                                |
|with the permission of the     |                                |
|Court, submit written arguments|                                |
|after the evidence is closed in|                                |
|the case.                      |                                |

A close look at both sections would show that Section 301  (1)  of  the  new
Code and Section 493 of the old Code are similar in language, except of  one
slight change i.e. in the new Code under Section 301(1)  Cr.P.C.,  the  word
"Assistant Public  Prosecutor" has been added.
37.    Further the comparison of the provisions as to Public Prosecutors  in
the old Code and the new Code the following emerge:-
(a) In the old Code, provisions as to 'Appointments of  Public  Prosecutor',
'Appearance  of  Public  Prosecutor',  'Withdrawal  from   Prosecution   and
'Permission  to  Conduct  Prosecution'   were   put   consecutively    under
Sections 492, 493, 494 & 495  respectively,  in  Chapter  XXXVIII  -'Of  The
Public Prosecutor'  contained  in  the  Part  IX  of  the  Code   titled  as
Supplementary Provisions;
(b) However,  in  the  new  Code  all  the  provisions  relating  to  Public
Prosecutors are scattered in different chapters of  the  Code.   Section  24
and Section  25  which  deal  with  appointment  of  Public  Prosecutor  and
Assistant  Public  Prosecutor  respectively,  finds  place  in  Chapter  II-
'Constitution of Criminal Courts and Offices' of the Code. Provisions as  to
Appearance  of  Public  Prosecutor,  Permission  to   Conduct   Prosecution,
Withdrawal from  Prosecution have been enumerated under Sections  301,  302,
321 of the Code respectively under Chapter XXIV-'General  Provisions  as  to
inquiries and Trials'.

Thus, under the old Code, provisions corresponding  to  Section  24  Cr.P.C.
and Section 301 Cr.P.C. were under the same Chapter.   They  have  now  been
placed in different Chapters in the 1973 Code, however,  this  was  done  as
merely a part of the scheme of the Code. Therefore, it  would  be  wrong  to
suggest that interpretation  of  Section  24(8)  Cr.P.C.  alongwith  Section
301(1) Cr.P.C. would be in violation to the scheme of the Code.
38.    Whether Section 301 Cr.P.C. is only procedural  in  nature:   Section
301 has been placed under Chapter XXIV  of  the  Code  which  is  titled  as
'General provisions as to  inquiries  and  trials'.  Contention  of  learned
Senior Counsel for the appellant is that since  Section  301  Cr.P.C.  finds
mention in the Chapter containing 'General provisions as  to  inquiries  and
trials', Section 301 Cr.P.C. is only procedural in nature and thus does  not
confer any substantive right to the Public Prosecutor who is in charge of  a
case, to appear and plead and it is only a facilitating provision to  appear
without any written authority.   It was  further  submitted  that  when  the
notification appointing Mr. Bhavani Singh was confined only  to  Special  CC
No.208/2004,  support  cannot  be  drawn  from  Section  301   Cr.P.C.   for
continuance of his authority to appear in the appeal.
39.    In my  considered  view,  the  said  argument  is  misplaced.  Though
Chapter XXIV  deals  with  the  'General  provisions  as  to  inquiries  and
trials',  it  also  contains  various  sections  which   if   not   observed
mandatorily, will have serious repercussions on the  substantive  rights  of
the parties.  For  example,  Section  327  provides  that  trial  should  be
conducted in open Court. If a by-pass  is  allowed  through  this  provision
which confers substantive rights in favour of party,then it may vitiate  the
entire trial. Moreover, Section 327 not  only  vests  substantive  right  in
favour of parties to have open trial  and  to  have  'in  camera'  trial  in
certain matters, but also embodies  the  principle  of  natural  justice  of
'fairness in conduct of trial'.
40.    Coming to the relevant Section,  i.e.  Section  301(1)  Cr.P.C.  also
gives substantive right to the Public Prosecutor who  is  'in  charge  of  a
case' to appear and plead without having   any  written  authority.  Further
as per sub-section (2) of Section  301  Cr.P.C.,  if  a  victim  chooses  to
appoint some private pleader on his/her behalf, then  such  private  pleader
will act  under the direction of the Public Prosecutor. Mandatory nature  of
Section 301(2) Cr.P.C. has been considered and upheld by  this  Court  in  a
catena of decisions.  A Constitution Bench of this Court   in  the  case  of
State of Punjab vs. Surjit Singh  And Anr., (1967) 2 SCR 347  while  dealing
with Section 493 of the old Code which is in pari materia with  Section  301
of the new Code and held as under:-
"...That s.493 deals with a single specified case that it  applies  only  to
the Public Prosecutor, who is actually in charge of that case is  also  made
clear  by the later part of s.493.  That  is  to  the  effect  that  if  the
Public  Prosecutor  is  in  charge  of  a  particular  case  and,   in  that
particular case, a private person  instructs  a  pleader  to  prosecute  any
person, the Public Prosecutor alone is entitled to conduct  the  prosecution
and the pleader appearing in that case for the private  person  is  only  to
act under his instructions...".

Though Chapter XXIV deals with  'General  provisions  as  in  inquiries  and
trials', it also contains various sections dealing with  substantive  rights
of the parties. The appellant is not   right in contending that Section  301
Cr.P.C. is only procedural and such contention is  not  in  consonance  with
the  scheme  of  the  Code.   In  my  view,  Section  301(1)  Cr.P.C.  gives
substantive right to the Public Prosecutor who is in charge  of  a  case  to
appear and plead without any written authority in any Court  in  which  that
case is under trial, inquiry or appeal.
41.       Re. Contention: Special Public Prosecutor appointed under  Section
24(8) Cr.P.C. appearing in the appeal might lead to an anomalous  situation:
  On behalf of  the appellant it was submitted that since there is a  Public
 Prosecutor in the High Court appointed  under                Section  24(1)
Cr.P.C. and there is a Special Public Prosecutor in charge of  a case,  then
in the appeal before the High Court there might  arise  anomalous  situation
as to who could appear for the State as both Public Prosecutor  and  Special
Public Prosecutor are 'Public Prosecutors' within  the  meaning  of  Section
2(u) of the Code and the Legislature would not have intended to create  such
an anomaly.  Since both Public  Prosecutor  and  Special  Public  Prosecutor
have been entrusted with certain overlapping task,  there  is  bound  to  be
overlapping. To narrow  down  the  overlapping,  the  Legislature  has  very
carefully placed the word  'in  charge  of  a  case'  under  Section  301(1)
Cr.P.C.
42.    This issue has been addressed and answered by  a  Constitution  Bench
in  the  case  of  Surjit  Singh's  case  (supra).  In  that   case,   while
interpreting  in  pari  materia  i.e.  Section  493  of  the  old  Code  and
considering the question as to whether a  Public  Prosecutor  or  a  Special
Public Prosecutor will be entitled to file an  application  for  withdrawing
from prosecution and observing that only the Public  Prosecutor  who  is  in
charge of a particular case will be  entitled  to  file  an  application  to
withdraw from the prosecution, this Court held as under:-

"......If any Public Prosecutor, who had nothing to  do  with  a  particular
case is held entitled to file  an application under s. 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 s. 494, in our opinion   is
that  it is only  the Public Prosecutor, who is  incharge  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 s. 494 of the Code."

43.    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  Cr.P.C.  which  distinguishes  the  task  of   Special   Public
Prosecutor  from that of  Public Prosecutors  appointed  under  sub-sections
(1), (2) and (3) of  Section 24 Cr.P.C. and hardly there is any anomaly.
44.    Re. Contention: the term "case"  is  restricted  only  to  trial  and
does  not  ipso  facto  extend  to  appeal:   It has been contended  by  the
learned Senior Counsel for the appellant that the term 'case' is  restricted
to only trial of the accused and  with the disposal of the  matter   in  the
trial court, the authority of Special Public  Prosecutor  comes  to  an  end
and does not extend ipso facto  to plead and  appear  before  the  appellate
forum also.  Thus, the learned Senior Counsel for the appellant argues  that
the term 'case' under Section 24(8) Cr.P.C.  and  Section  301  Cr.P.C.  has
been used in the restrictive sense by the Legislature to  include  only  the
trial and not the appeal. According to the appellant this is  reinforced  by
the appointment of Mr. Bhavani Singh by the Government of Tamil  Nadu  as  a
Special Public Prosecutor to  represent  the  D.V  &  A.C  in  the  criminal
appeals before the High Court  of  Karnataka.   It  was  submitted  that  by
appointing Mr. Bhavani Singh as the Special Public Prosecutor to appear  and
plead  before  the  appellate  court,  the  Government  of  Tamil  Nadu  was
conscious that the authority of Mr. Bhavani Singh has come to  an  end  with
the conclusion of the trial.
45.    The above contention does not  merit  acceptance.   Hasty  action  of
Government of Tamil Nadu in appointing     Mr. Bhavani Singh is  ill-advised
and such non-est action of the Government of Tamil  Nadu  does  not  whittle
down the provisions of law.  In my considered  view,  the  word  'case'  has
been given a broader meaning in the context of  Section  301  of  the  Code.
The term 'case' has to be interpreted only  contextually  and  no  universal
rule can be laid down for its interpretation and therefore  the  Legislature
in its wisdom has avoided  to  define  the  same  in  the  Code  inspite  of
abundant presence in the various provisions  of  the  Code.  (vide  Bhimappa
Bassappa Bhu Sannavar vs. Laxman Shivarayappa Samagouda  &  Ors.,  (1970)  1
SCC 665).
46.    I am conscious that the term 'case' in the Code at certain  instances
has been  used  to  link  only  with  'trial'  and  has  been  categorically
distinguished with the term 'appeal'.  Cursory perusal  of  Section  407  of
the Code  which deals with 'Power  of  High  Court  to  transfer  cases  and
appeals',  would   show  that  the  word  'case'  and  'appeal'   has   been
distinguished  by the Legislature in the context of the  section.   Further,
sub-section (1) (ii) and (iv) of Section 407 Cr.P.C.  would  show  that  the
terms 'case or class of cases' and 'appeal or appeals'  have  been  used  to
mean different things.  Moreover,  the  word  'case'  as  evident  from  Sub
Clause (1) (ii) and (iv) of Section 407 Cr.P.C. would  show  that  the  word
'case' has been distinctly used by the Legislature  in  respect  of   trial.
Similar distinction between term 'case' and  'appeal'  has  been  maintained
under Section 406 and Section 409 Cr.P.C.    Section 209 of  the  Code  also
links the term 'case' with the 'trial' only. For example Section  209  deals
"Commitment of Case to Court of Session when offence is triable  exclusively
by it".  If we insert the word 'appeal' in place of word 'case',  then  such
interpretation may lead to an absurdity.
47.    The term 'case' had also become the subject matter of  interpretation
 in relation to Section 429  of  Code  of  Criminal  Procedure,  1898  ('Old
Code') which deals with "Procedure  where Judges  of  Court  of  appeal  are
equally divided".  Section 429 of the Old  Code  is  in  pari  materia  with
Section 392 of the New Code    with a slight but significant change  in  the
language.  The term 'case' used in old Code has  been   replaced  with  term
'appeal' in the new Code, due to the reason  of the mischief that  had  been
created by the term 'case'  in the old Code. The mischief was caused due  to
the wider meaning given to the term 'case' by the  Courts  then.  It  is  to
rectify this mischief; the new  Code  has  replaced  the  word  'case'  with
'appeal'.
48.    When the Legislature has remedied the mischief under Section  429  of
the old Code by replacing the term 'case' with term 'appeal'  under  Section
392 of the new Code, then at that point of time, the Legislature could  have
defined the term 'case'; but the Legislature opted not to do so and left  it
to the Courts of Law to interpret the term  in  the  context  of  particular
section and facts of the cases. In the light of the above discussion, in  my
view, the meaning that can be assigned to the term 'case' under Section  301
Cr.P.C. is contextually different and wider  than  the  provisions  referred
above.
49.    As  noted  earlier,  the  definition  of  'Public  Prosecutor'  under
Section 2 (u) Cr.P.C. also includes a Special Public Prosecutor.  When  sub-
section (8) of Section 24 is read harmoniously with Section 301 of the  Code
on the touchstone of the enunciated principles, then  it  would  be  evident
that Special Public Prosecutor who is in charge of a  case  can  appear  and
plead without any written authority in any court  of  criminal  jurisdiction
in which such case is under inquiry, trial or appeal and in  my  view  there
is no limitation either on territory or hierarchy of  courts.  There  is  no
merit in the contention of the learned  Senior  Counsel  for  the  appellant
that the authority of Special Public Prosecutor ends with the conclusion  of
the trial and disposal of a case. If such a contention  is  to  be  accepted
then the last few words of Section 301 Cr.P.C.  'in any  court  where   that
case is  under inquiry,  trial   or  appeal'  would  become  redundant   and
ineffective.  It is a cardinal rule of interpretation that every word  in  a
section has a meaning and essence.
50.    However, 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.
51.    To summarize the conclusion:   When  the  accused  has  filed  appeal
against conviction in the High Court, then who can appear  before  the  High
Court on behalf of State-whether the  Public  Prosecutor  appointed  to  the
High Court under sub-section (1) of  Section  24  Cr.P.C.,  or  the  Special
Public Prosecutor already appointed, under Section  24(8)  Cr.P.C.,  to  the
case under appeal.  In my considered opinion, the Special Public  Prosecutor
appointed for the case would continue to be in charge  of  the  case  before
the High Court also.  The reason being, Special  Public  Prosecutor  is  not
attached to a particular Court or Local area, but he  is   attached  to  the
'case' or 'class of cases'  and  therefore  Special  Public  Prosecutor  can
appear without any written authority before any Court  where  that  case  is
under inquiry, trial or appeal.   Thus,  the  authority  of  Special  Public
Prosecutor  will follow the stage of case,  until  his  authority  has  been
revoked by the State in express terms. This is what  can  be  understood  by
the deliberate positioning of the words 'inquiry,  trial  or  appeal'  after
the word 'case'. In my considered  view,  once      Mr.  Bhavani  Singh  was
appointed as the Special Public Prosecutor in charge of a case,  even  after
end of the trial, he has a right to appear and  plead  in  any  court  where
that case is pending trial, inquiry or appeal.  The matter has been  pending
 for  more than eight years during which many orders passed by  the  Special
Court came to be challenged before the High Court, by way  of  revisions  or
other proceedings. It was submitted by the Senior Counsel, Mr. Nariman  that
in all those revisions and other proceedings  before  the  High  Court,  Mr.
Acharya, the then Special Public Prosecutor appeared in the High  Court  and
to substantiate the said submission, the order passed by the High  Court  in
Criminal Petition No. 3683/2011 dated 19.08.2011 was produced before  us  in
which Mr. B.V. Acharya Special Public  Prosecutor  himself  appeared  before
the High Court of Karnataka. Such appearance, in my view, is  by  virtue  of
the  authority  derived  under  Section  301(1)  Cr.P.C.   Thus,  after  the
conclusion of the trial, by  virtue  of  accused  having  filed  the  appeal
against the  decision  of  Sessions  Court,  the  right  of  Special  Public
Prosecutor will remain subsisting to appear and plead in the appeal also.
52.    Sequence of events happened after the  conviction:    In  the  entire
matter, the conduct of the appellant and the  State  of  Karnataka  is  very
much relevant for which this Court  is  required  to  have  a  look  on  the
sequence of events happened after the conviction. It is apposite to  briefly
refer to chronology sequence of events happened after Criminal Proceedings:

27.09.2014 -  Case in Special Court in Special  CC  No.  208/2004  ended  in
conviction against the accused.
29.09.2014 -  All the Accused filed  the  Criminal  Appeal  Nos.835-838/2014
before the High Court of Karnataka against the  order  of  conviction  dated
27.09.2014. State of Karnataka  was  not  made  a  party-respondent  in  the
Criminal Appeal.
30.09.2014 -  Mr. Bhavani Singh (respondent No.5) appeared for the State  in
the Criminal  Appeal.   Notably,  no  objection  was  taken  either  by  the
appellant or the State, that Bhavani Singh's  authority  as  Special  Public
Prosecutor (SPP) was only till conclusion of trial.
01.10.2014 - Mr. Bhavani Singh (respondent No.5) filed  Memo  of  Appearance
in Criminal Appeal Nos. 835-838/2014 and submitted statement  of  objections
that the accused should not be granted bail.
7.10.2014 -   Learned Single Judge of the High Court  of  Karnataka  refused
to suspend the sentence awarded to  the  accused  persons  and  declined  to
grant them bail.
17.10.2014 -  Supreme Court enlarged all the accused on bail.
18.12.2014 -  This Court confirmed the order dated 17.10.2014  and  extended
the bail of accused by another four months.  This  Court  further  requested
the Chief Justice of High Court of Karnataka to constitute a  Special  Bench
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.
24.12.2014 -  Appellant, for the first  time  filed  representation  to  the
Chief Secretary, Government of Karnataka objecting to  the  continuation  of
Mr. Bhavani  Singh  as  SPP  in  the  Criminal  Appeals  and  requested  for
appointment of some other Senior Counsels to contest the  appeals  filed  by
the accused persons.
06.01.2015 -  Appellant filed  writ  petition  praying  to  appoint  another
Senior Lawyer as Special Public Prosecutor to represent  the  State  in  the
criminal proceedings.

53.    Notably, from 30.09.2014 till 24.12.2014, no objection was  taken  by
the appellant or State of Karnataka  on  Mr.  Bhavani  Singh  continuing  to
appear and plead in the Criminal Appeal for  the  State.   In  the  Criminal
Appeals before the High Court of Karnataka,  though  the  bail  applications
were taken up on various  hearing  dates  from  the  available  material  on
record, it is seen that the State of Karnataka had not chosen  to  intervene
raising objections for the authority of  Mr.  Bhavani  Singh  continuing  to
appear in the Criminal Appeals.  There was no  whisper  of  protest  by  any
party even when the matter came to this Court in  the  bail  proceedings  on
17.10.2014 and 18.12.2014.  When, this Court  ordered  the  constitution  of
Special Bench in Criminal Appeals vide order dated 18.12.2014, none  of  the
parties took pain to seek clarification from this Court,  on  the  authority
of Special Public Prosecutor to continue in proceedings of Criminal  Appeal.

54.    The timing of representation dated 24.12.2014 filed by the  appellant
to  the  State  of  Karnataka  is  also  interesting  to  note.   The   said
representation was made after this Court by its order dated  18.12.2014  had
directed hearing of the appeals on  day-to-day  basis  and  also  fixed  the
period of three months for disposal of  the  appeals.  Miserably,  even  the
State of Karnataka did not attempt to react on  the  representation  of  the
appellant.  The issue could have been well resolved at that stage, if  State
would have consulted the Chief Justice of the High  Court  of  Karnataka  or
would have asked the clarification from this Court.
55.    On 6.01.2015, appellant filed a  W.P.  No.742/2015  before  the  High
Court of Karnataka, seeking replacement  of  respondent  No.5-  Mr.  Bhavani
Singh, who was continuing to appear for the State  in  the  Criminal  Appeal
             Nos.835-838/2014.   Interestingly,  here  again  the  appellant
chose to file the Writ Petition before the  High  Court  instead  of  taking
directly  recourse  to  the  jurisdiction  of  this  Court.   On  7.01.2015,
appellant filed memo in the Criminal Appeal      Nos.  835-838/2014  stating
that respondent No.5- Mr. Bhavani Singh  is  not  authorized  to  appear  in
Criminal Appeal         Nos. 835-838/2014, as the respondent  No.5  has  not
been appointed by the State Government of  Karnataka  in  consultation  with
the Chief Justice  of  Karnataka  High  Court  to  appear  in  the  Criminal
Appeals.  On  19.01.2015,  learned  Single  Judge  disposed  of   the   W.P.
No.742/2015 with an observation that "...it is open  either  for  the  State
Government  of  Karnataka  or  the  petitioner  himself,  to  seek   further
clarifications from the Supreme Court as to the  procedure  that  is  to  be
followed in making  appointment  of  a  Special  Public  Prosecutor  and  an
assistant or assistants, if any, to represent the  State  of  Karnataka...".
Noteworthy, in  the  proceedings  before  the  Single  Judge,  the  Advocate
General for the State  of  Karnataka  Mr.  Ravi  Kumar  made  the  following
submissions:

"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 appointments of the prosecutor or counsel to  conduct  the  appeals,  no
steps have been taken."

56.    Notably, State of  Karnataka,  even  after  the  decision  of  Single
Judge, did not take any action. The State of  Karnataka  did  not  file  any
appeal against the order of the Single  Judge.   They  neither  pursued  the
matter with the Chief Justice of High Court of Karnataka nor did  they  take
the pain to approach the Supreme Court  to  seek  clarification  as  to  the
appointment of Prosecutor/Counsel in Criminal Appeal.
57.    On 28.01.2015, appellant filed the  Writ  Appeal    No.260/2015  (GM-
RES) before the Division Bench against the order dated 19.01.2015 of  Single
Judge instead of directly coming to  this  Court  to  seek  the  appropriate
clarification as to the continuation of the  Special  Public  Prosecutor  in
the Criminal Appeal or to pursue the matter with  the  State  of  Karnataka.
The learned Advocate General again made his submissions that in  absence  of
clarification from Supreme Court, the State is unable to take  the  decision
on the appointment of Prosecutor/Counsel for Criminal Appeal.  The  relevant
submissions may be noted as below:
"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."

On  11.02.2015,  Division  Bench  disposed  of  the  Writ  Appeal  with   an
observation that  respondent  No.5  is  entitled  to  continue  in  Criminal
Appeals. The Division Bench observed as under:

"In fact, what weighed with the learned Single Judge in rejecting  the  Writ
Petition is the direction issued by the Apex Court that  the  Appeal  should
be heard on day to day basis and it  should  be  disposed  of  within  three
months, any order to be passed by this Court which would come in the way  of
the disposal of the said appeal in terms of the  direction  of  the  Supreme
Court should be avoided...."

58.    Even after the decision of Division Bench in  the  Writ  Appeal,  the
State did not pursue the matter to this Court.  What the State did  is  that
they took the shelter of the appeals filed by  the  appellant  and  kept  on
rhyming about  their  inability  to  appoint  a  new  Prosecutor/Counsel  to
conduct the appeal proceedings.  If the State of Karnataka was of  the  view
that Mr. Bhavani Singh  cannot  continue  to  appear  for  the  appeals,  in
consultation with the Chief Justice of Karnataka High Court, it  could  have
issued the notification appointing another Special Public Prosecutor  or  it
could have sought direction from this Court.  But that was  not  to  be  so.
State of Karnataka did not take  any  initiative  to  actively  resolve  the
dispute so that the appeal could have been  disposed  of  within  the  outer
limits of three months from the order dated 18.12.2014.  Once the  case  was
transferred under Section 406 Cr.P.C. to the State of Karnataka, it  stepped
into the shoes of State of Tamil Nadu and has the  obligation  to  prosecute
all the accused diligently by ensuring the fair and  smooth  proceedings  of
the case and as the transferee State, the State of Karnataka  was  conscious
about its obligations. However, the State with  its  inactive  attitude  did
not take any step to terminate Bhavani Singh's service and  thereby  appoint
a new incumbent to conduct the case in appeal. The appellant  did  not  take
steps immediately after the disposal of the matter in  the  trial  court  as
the appellant was conscious of the right  of  Mr.  Bhavani  Singh-respondent
No.5 to  continue  as  the  Special  Public  Prosecutor  by  virtue  of  the
provision of Section 24 (8) and Section 301(1) of Cr.P.C.  unless  cancelled
by the State of Karnataka.  It is pertinent to note that the  appellant  had
not even chosen to  challenge  the  appointment  of  Mr.  Bhavani  Singh  as
Special Public Prosecutor by the  State  of  Tamil  Nadu  (dated  29.9.2014)
which is prima facie non-est.  Only after this Court  passed  the  order  on
18.12.2014, fixing the  outer  time  limit  for  disposal  of  the  criminal
appeals, the appellant seems to  have  made  representation  and  thereafter
filed writ petition, which in my  considered  view,  lacks  bona  fide.  The
learned Single Judge and the  Division  Bench  rightly  dismissed  the  Writ
Petition No.742/2015 and Writ Appeal No.260/2015 (GM-RES) and  the  impugned
judgment warrants no interference.
59.    Criminal Appeal No.637/2015 arising out of S.L.P.  (Crl.)  1632/2015:
I hold that Mr. Bhavani Singh appointed as Special Public  Prosecutor  (SPP)
under Section 24(8) Cr.P.C., by virtue  of  Section  301(1)  Cr.  P.C.,  has
authority to continue  to  appear  as  Public  Prosecutor  in  the  criminal
appeals filed by the accused in the High Court of Karnataka  and  the  order
of the High Court in Writ Appeal No. 260/2015 (GM-RES) is confirmed and  the
appeal is dismissed.
60.    Criminal Appeal No.638/2015 arising out of SLP  (Crl.)  No.2013/2015:
Confirming the order of the High Court in I.A. No.1/2015 in Criminal  Appeal
Nos.835-838/2014, this appeal is dismissed.


                                                  ........................J.
                                                              (R. Banumathi)
New Delhi;
April 15, 2015.
                        IN THE SUPREME COURT OF INDIA
                    CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL APPEAL NO.637OF 2015
              (Arising out of SLP(Crl.)No.1632 of 2015)


       K. ANBAZHAGAN                    ...   APPELLANT(S)

                          VS.

       STATE OF KARNATAKA & ORS.    ...   RESPONDENT(S)



                  O R D E R



In view of difference of opinion, the matter is referred to a larger Bench.
The Registry is directed to place the matter before the  Hon'ble  the  Chief
Justice of India for appropriate orders.



                                                            ..............J.
                                                            [MADAN B. LOKUR]



                                                            ..............J.
                                                              [R. BANUMATHI]
New Delhi;
15th April, 2015.
-----------------------
[1]
     Mr. Anbazhagan is the General Secretary of the DMK, a political party
[2]  (2004) 3 SCC 767
[3]  J. Jayalalitha v. Union of India, (1999) 5 SCC 138
[4]  B.R. Kapur v. State of Tamil Nadu, AIR 2001 SC 3435
[5] 406. Power  of  Supreme  Court  to  transfer  cases  and  appeals.-  (1)
Whenever it is made to appear to the Supreme Court that an order under  this
section is expedient for the  ends  of  justice,  it  may  direct  that  any
particular case or appeal be transferred from  one  High  Court  to  another
High Court or from a  Criminal  Court  subordinate  to  one  High  Court  to
another Criminal Court of equal  or  superior  jurisdiction  subordinate  to
another High Court.
     (2)  The  Supreme  Court  may  act  under  this  section  only  on  the
application of the Attorney-General of India or of a party  interested,  and
every such application shall be made by motion,  which  shall,  except  when
the applicant is the Attorney-General of India or  the  Advocate-General  of
the State, be supported by affidavit or affirmation.
    (3) Where any application for the exercise of the  powers  conferred  by
this section is dismissed, the Supreme Court may, if it is of  opinion  that
the application was frivolous or vexatious, order the applicant  to  pay  by
way of compensation to any person who has opposed the application  such  sum
not exceeding one thousand rupees as it  may  consider  appropriate  in  the
circumstances of the case.

[6]  (2004) 3 SCC 767
[7]  The relevant portions of Section 24 of the Code read as follows:
     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.
    (2) The Central Government may appoint one or more  Public  Prosecutors,
for the purpose of conducting any case or class of cases  in  any  district,
or local area.
    (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.
    (4) to (7) xxx xxx xxx
    (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.
    (9) xxx xxx xxx

[8]  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 proceedings 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.

[9]  On  transfer  of  the  case  from  Tamil  Nadu  to  Karnataka,  it  was
renumbered from CC No.7 of 1997 to Special CC No.208 of  2004.  We  are  not
concerned with CC No.2 of 2001.
[10]    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.
    (2) If in any such case  any  private  person  instructs  a  pleader  to
prosecute any person in  any  Court,  the  Public  Prosecutor  or  Assistant
Public Prosecutor in charge of the case shall conduct the  prosecution,  and
the pleader so instructed shall act therein  under  the  directions  of  the
Public  Prosecutor  or  Assistant  Public  Prosecutor,  and  may,  with  the
permission of the Court, submit written  arguments  after  the  evidence  is
closed in the case.
[11]    The website of the Karnataka High  Court  indicates  that  the  writ
petition is still pending. However, it seems to have become infructuous  due
to subsequent events.
[12]    (2014) 2 SCC 401
[13]    (2004) 3 SCC 767
[14]    (2008)10 SCC 180
[15]    Paragraph 12 of the judgment
[16]    Paragraph 13 of the judgment
[17]    Paragraph 15 of the judgment
[18]    Paragraph 18 of the judgment
[19]     Selvi  J.  Jayalalithaa  v.  State,  MANU/KA/2704/2014,  ILR   2014
Karnataka 5696
[20]    MANU/KA/0125/2015
[21]    (2004) 3 SCC 767
[22]    MANU/KA/0386/2015
[23]    Paragraph 17
[24]    Paragraph 27
[25]    Paragraph 31
[26]    Paragraphs 47 and 48
[27]    Paragraph 55
[28]     Vikas  Yadav  v.  State  of  Uttar  Pradesh,  MANU/UP/0621/2008.  A
petition for special leave to appeal  directed  against  this  decision  was
dismissed by this court being SLP (Criminal) No. 5368/2008 (Vikas  Yadav  v.
State of U.P.) decided on 22nd October , 2008.
[29]    State v. Vikas Yadav, MANU/DE/1673/2008
[30]    "Public Prosecutor" means any person  appointed  under  section  24,
and includes any person acting under the directions of a public  prosecutor.

[31]    25. Assistant Public Prosecutors - (1) The  State  Government  shall
appoint in every district one  or  more  Assistant  Public  Prosecutors  for
conducting prosecutions in the Courts of Magistrates.
    (1-A) The Central Government may appoint one or  more  Assistant  Public
Prosecutors for the purpose of conducting any case or class of cases in  the
Courts of Magistrates.
    (2) Save as otherwise provided in sub-section  (3),  no  police  officer
shall be eligible to be appointed as an Assistant Public Prosecutor.
    (3) Where no Assistant Public Prosecutor is available for  the  purposes
of any particular case,  the  District  Magistrate  may  appoint  any  other
person to be the Assistant Public Prosecutor in charge of that case:
    Provided that a police officer shall not be so appointed-
    (a) if he has taken any part in the investigation into the offence  with
respect to which the accused is being prosecuted; or
    (b) if he is below the rank of Inspector.
[32]    25-A. 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), (3) and (4) xxx xxx xxx
    (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 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 25 shall be subordinate to  the  Deputy  Director  of
Prosecution.
    (7) and  (8) xxx xxx xxx
[33]     Selvi  J.  Jayalalithaa  v.  State,  MANU/KA/2704/2014,  ILR   2014
Karnataka 5696
[34]    [1967] 2 SCR 347
[35]    (1971) 2 SCC 369
[36]     (1981) 3 SCC 132
[37]    (1912) 15 Cal L.J 517, 574
[38]    (2014) 2 SCC 401 paragraph 14
[39]    Paragraph 38 of the judgment
[40]    MANU/KA/2530/2011 = 2012 (4) KAR LJ 635
[41]    MANU/KA/2530/2011
[42]    2004 Crl. L.J. 3881

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