2016 (2) TMI 1313 - HC - Indian Laws

Jurisdiction to pass an order in respect of appointing a Special Public Prosecutor to conduct the petitioner s son s death case - Rule 4(5) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - HELD THAT - It is seen that the matter is pending before the Sessions Court for trial. The power to appoint a Special Public Prosecutor under the Criminal procedure Code is entirely different from the one laid down under the SC/ST (PoA) Act, 1989. It is no doubt true that under the Code of Criminal Procedure, the Government is the ultimate authority to appoint a person in terms of Section 301 Cr.P.C. The contention of the respondents that in the event of the aggrieved party choosing a lawyer of his choice from other States, it will have a bearing on the Government financially, cannot be accepted, as Rule 4(6) clearly stipulates that payment of fee vests only with the Government and selection of the lawyer is with the victim. The fee fixed other than the one fixed by the Government cannot be sought to be increased either by the victim or by the relative of the victim or the lawyer, who is appearing for the victim/relative of the victim. It is to be noted that SC/ST (PoA) Act, 1989 is a Special Act enacted to view seriously the atrocities committed on the members of the downtrodden communities, the objective of which is enumerated by including Sections 20 and 21 in the Act. Firstly, the entire Rule 4(1) of the SC/ST (PoA) Act, 1989 has got to be read as a whole and not in isolation. Even assuming for the sake of argument that Rule 4(1) has got to be read alone, it deals with the preparation of panels and it is not mandatory on the part of the victim/relative of the victim to choose a lawyer only from the panel. In the impugned order, it has been merely stated that the 1 st respondent has no jurisdiction to appoint a Special Public Prosecutor, but while arguing the case, the respondents are trying to improve their case by relying on various Rules and Acts irrespective of what is stated in the impugned order, which cannot be permissible, as the Hon'ble Supreme Court in the case of MOHINDER SINGH GILL ANR. VERSUS THE CHIIEF ELECTION COMMISSIONER, NEW DELHI ORS. 1977 (12) TMI 138 - SUPREME COURT , has clearly held that by way of a counter, the reasons not stated in the impugned order cannot be improved by the respondent concerned. Therefore, what is not stated in the impugned order cannot be allowed to be canvassed before this Court. Petition allowed.

Summary

Issues Involved:
1. Jurisdiction of the 1st respondent to appoint a Special Public Prosecutor.
2. Compliance with Rule 4(5) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.
3. Interpretation of Section 15 of the SC/ST (PoA) Act, 1989.
4. Financial implications for the government in appointing a Special Public Prosecutor.
5. Victim's right to choose an advocate of their choice.
6. Validity of the impugned order.

Issue-wise Detailed Analysis:

1. Jurisdiction of the 1st respondent to appoint a Special Public Prosecutor:
The petitioner challenged the 1st respondent's order, which stated that he had no jurisdiction to appoint a Special Public Prosecutor. The court found that the 1st respondent's decision lacked application of mind and did not refer to the relevant SC/ST (PoA) Rules, 1995. The court emphasized that the SC/ST (PoA) Act, 1989, being a special statute, overrides other laws and empowers the victim to have their case conducted by an eminent lawyer of their choice to ensure a fair trial.

2. Compliance with Rule 4(5) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Rules, 1995:
The petitioner argued that under Rule 4(5), the District Magistrate must adhere to the victim's request to engage an eminent Senior Advocate for conducting the prosecution case. The respondents contended that appointments must be made from a panel of advocates as per Rule 4(1). The court held that Rule 4(5) contains a non-obstante clause overriding Rule 4(1), allowing the engagement of an advocate not in the panel if deemed necessary or desired by the victim.

3. Interpretation of Section 15 of the SC/ST (PoA) Act, 1989:
Section 15 allows the State Government to specify a Public Prosecutor or appoint an advocate with at least seven years of practice as a Special Public Prosecutor. The court clarified that this section does not restrict the victim's right to choose an advocate of their choice, as provided under Rule 4(5).

4. Financial implications for the government in appointing a Special Public Prosecutor:
The respondents argued that allowing victims to choose advocates from other states would financially burden the government. The court rejected this argument, stating that Rule 4(6) clearly stipulates that the payment of fees is the government's responsibility, and the selection of the lawyer rests with the victim. The fee fixed by the government cannot be increased by the victim or the lawyer.

5. Victim's right to choose an advocate of their choice:
The court upheld the victim's right to choose an advocate of their choice, emphasizing that the SC/ST (PoA) Act, 1989, aims to ensure fair trials and inspire confidence in the administration of justice for victims of atrocities. The court cited previous judgments supporting the victim's right to engage an advocate of their choice under Rule 4(5).

6. Validity of the impugned order:
The court found that the impugned order was passed without proper consideration of the relevant rules and provisions. The court set aside the impugned order and directed the 1st respondent to appoint Mr. B. Mohan as the Special Public Prosecutor within 15 days. The District Principal Sessions Judge, Dindigul, was instructed to conduct the trial on a day-to-day basis without unnecessary adjournments.

Conclusion:
The writ petition was allowed, the impugned order was set aside, and the 1st respondent was directed to appoint the advocate chosen by the petitioner as the Special Public Prosecutor. The trial court was instructed to expedite the trial proceedings. No costs were imposed, and connected miscellaneous petitions were closed.