Casewise fee payable to the State Public Prosecutor and the Additional Public Prosecutor in AP – 18/11/2019

Amaravati AP

GOVERNMENT OF ANDHRA PRADESH

LAW OFFICERS – Public Prosecutor’s Office, High Court of Andhra Pradesh, Amaravati – Case wise fee payable to the State Public Prosecutor and the Additional Public Prosecutor – Fees for the cases disposed of during for the month of September, 2019 – Orders – Issued.


LAW (G) DEPARTMENT

G.O.Rt.No. 387

Dated: 18-11-2019

Read the following:-

1. G.O.Rt.No.2424, Law (L.2) Department, dated: 29.12.2012.
2. G.O.Rt.No.899, Law (G) Department, dated: 09.12.2014.

3. G.O.Rt.No.191, Law (G) Department, dated: 19.07.2019.

4. G.O.Rt.No.265, Law (G) Department, dated: 27.09.2019.
6. From the State Public Prosecutor, High Court of Andhra Pradesh, Letter.No.49/2019, Dated: 14.10.2019.

7. From the State Public Prosecutor, High Court of Andhra Pradesh, Letter No.50/2019, Dated: 14.10.2019.


ORDER:-

In the letter 6th & 7th read above, the State Public Prosecutor, High Court of Andhra Pradesh, has requested the Government to issue sanction orders for payment of an amount of Rs.3,64,500/-(Rupees Three Lakh sixty Four Thousand and Five Hundred only) out of which sanction may be accorded for payment of an amount of Rs.3,60,500/- (Rupees Three Lakh Sixty Thousand and Five Hundred Only) to Sri K. Srinivasa Reddy, State Public Prosecutor for the month of September, 2019 (i.e., from 01.09.2019 to 29.09.2019 and for one day i.e., on 30.09.2019) and an amount of Rs.4,000/-(Rupees Four Thousand only) to Sri S. Dushyanth Reddy, Additional Public Prosecutor towards the fee for one day i.e., on 30.09.2019.

2. Government, after careful examination of the proposal of the State Public Prosecutor, High Court of Andhra Pradesh, hereby accord sanction for payment of an amount of Rs.3,64,500/- (Rupees Three Lakh sixty Four Thousand and Five Hundred only) out of which sanction may be accorded for payment of an amount of Rs.3,60,500/- (Rupees Three Lakh Sixty Thousand and Five Hundred Only) to Sri K. Srinivasa Reddy, State Public Prosecutor for the month of September, 2019 (i.e., from

1. 09.2019 to 29.09.2019 and for one day i.e., on 30.09.2019) and an amount of Rs.4,000/- (Rupees Four Thousand only) to Sri S. Dushyanth Reddy, Additional Public Prosecutor towards the fee for one day i.e., on 30.09.2019.

3. The expenditure sanctioned at para (2) above shall be debited to

“2014- Administration of Justice, 114 – Legal Advisors & Counsels, 04 – Legal Advisors and Counsels, 280 – Professional Services, 281 – Pleaders Fees (Non-plan)”.

4. The State Public Prosecutor, High Court of Andhra Pradesh is authorized to draw and disburse the amount as sanctioned in para (2) above to the concerned.

(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH)

G.MANOHARA REDDY
SECRETARY TO GOVERNMENT

LEGAL AND LEGISLATIVE AFFAIRS & JUSTICE


 To

The State Public Prosecutor, High Court of Andhra Pradesh, High Court Premises, Nelapadu, Amaravati, Guntur District.

The Accountant General, Andhra Pradesh, Hyderabad.

The Pay and Accounts Officer, Anjaneya Towers, Ibrahimpatnam, Krishna District, Andhra Pradesh.
The Finance (TFR) Department.

Copy to: The Prl. Advisor to the Hon’ble Chief Minister of Andhra Pradesh.

 The P.S to Secretary, Law Department.
S/f and S/c.

FORWARDED: BY ORDER

SECTION OFFICER


Dated: 18-11-2019

Center for PIL and Others Versus Union of India and Others-11/04/2011

SUPREME COURT OF INDIA JUDGMENTS

From a perusal of the Section 46(1) of the said Act, it appears that every person conducting prosecution is deemed to be a public prosecutor. At the same time, Section 2(u) of the Code of Criminal Procedure. makes it clear that any person who is appointed under Section 24 of Code of Criminal Procedure is a public prosecutor. Therefore, on a conjoint and harmonious reading of Section 46 along with Section 24 of the Code of Criminal Procedure it appears that the expression “’person conducting the prosecution before the Special Court” in Sub-section (1) of Section 46 of the said Act, would mean that such a person must either be appointed by the Central or the State Government after following the procedure” prescribed in Sub-section (4), (5) along with Sub-section (7) of Section 24 of Code of Criminal Procedure or in the alternative after following the procedure in Sub-section (6) read with Sub-section (7) of Section 24 of Code of Criminal Procedure We are of the view that both the provisions, namely, the provisions of Section 46 of the said Act and Section 24 of Code of Criminal Procedure must be read together, since Section 46 of the said Act, being a later Act, makes an express reference to the provision of the pre-existing Central law. namely the provisions of Section 24 of Code of Criminal Procedure

(SUPREME COURT OF INDIA)

Center for PIL and Others Versus Union of India and Others

(Before : G. S. Singhvi and Asok Kumar Ganguly, JJ.)

C.A. No. 10660 of 2010 :

Decided On: 11-04-2011

Delhi Special Police Establishment Act, 1946—Section 5(1)—Constitution of India, 1950—Article 136—Prevention of Money Laundering Act. 2002—Section 46(2).

JUDGMENT

1. Heard Ms. Indira Jaising, Additional Solicitor General, Mr. K.K. Venugopal, learned senior counsel for the Central Bureau of Investigation (CBI), Mr. Harin Raval, Additional Solicitor General appearing for the Enforcement Directorate (ED) and also Mr. Pranav Sachdeva, the learned Counsel assisting Mr. Prashant Bhushan.

2. The question which this Court is now considering is the appointment of a Special Public Prosecutor, to conduct the prosecution on behalf of the CBI and the ED in the 2G Spectrum case, in which charge-sheet has been filed on April 2, 2011 and this Court has been told that a further charge-sheet is likely to be filed very soon.

3. From the various orders passed in this case on different dates, it is clear that this Court has not only directed CBI investigation in the matter, this Court has been monitoring the said investigation at various stages. This monitoring has been undertaken by this Court in view of the prayers made by the Appellant and also in view of the very fair stand taken by the prosecuting agency, as also the Government of India, virtually inviting this Court’s intervention in the matter of monitoring of the investigation. Having regard to the larger issues of public interest involved in proper investigation of the case and the ultimate unearthing of the crime, this Court has accepted such prayers of the parties.

4. Acting on such basis, this Court has given direction for establishing a separate Special Court to try this case and pursuant to such direction, a Special Court has been constituted after following the due procedure. All this will appear from various orders passed by this Court from time to time.

5. It may be noted that while monitoring this investigation, this Court, on the prayer made by the counsel for the parties, has also directed the CBI to take over the investigation in respect of the alleged suicide of one Mr. Sadik Batcha and pursuant to that direction, the CBI has expressed its willingness to take over the said investigation and in fact such investigation has been taken over by the CBI, as would appear from the communication dated April 7, 2011 issued by the Government of India, Ministry of Personnel, PG and Pension, Department of Personnel and Training to Ms. Indira Jaising, ASG. The requisite notification under Section 5(1) of DSPE Act, 1946 has been issued.

6. From the aforesaid trend of events, it is clear that in larger public interest, this Court, in exercise of its power under Article 136 of the Constitution has been monitoring the investigation in a most comprehensive manner.

7. In view of those peculiar facts of this case, and various orders passed by it from time to time, this Court is of the opinion that in the matter of appointment of the Special Public Prosecutor, utmost fairness and objectivity should be observed. It is beyond dispute that for a successful prosecution, the appointment of a very competent Special Public Prosecutor is of the essence. This Court is aware of the fact that normally, in matter of appointment of a Special Public Prosecutor, the Central Government or State Government, as the case may be, make such appointments. Since the Court is monitoring the case and it is of the view that a competent prosecution is of utmost importance, having regard to the demands of public interest, this Court requested Mr. K.K. Venugopal, learned senior counsel for CBI and ED, to suggest certain names of learned advocates who can undertake the responsibility of conducting the prosecution as a Special Public Prosecutor in the case.

8. On such request being made, Mr. K.K. Venugopal took some time and after considering several names suggested the name of Mr. U.U. Lalit, a senior advocate of this Court for being considered for appointment as Special Public Prosecutor.

9. There is unanimity among the learned Counsel appearing for the parties, that Mr. Lalit is a lawyer of unimpeachable integrity, possessing unquestionable competence and independence to conduct the prosecution in this case. This Court has also been informed by Mr. K.K. Venugopal, that Mr. Lalit has agreed to accept this responsibility if it is conferred on him. This Court has been informed that Mr. Lalit was on the panel of State of Maharashtra for more than 10 years and also conducted prosecution in some important cases involving public interest. About Mr. Lalit’s ability, acumen and independence, nobody has expressed any doubt.

10. But, learned Attorney-General, on 5.4.2011. by referring to provision of Section 46(2) of the Prevention of Money Laundering Act. 2002 (hereinafter the said Act) urged that the said provision may be considered by this Court before passing any order suggesting the appointment of Mr. Lalit as Special Public Prosecutor.

11. The matter was thereafter taken up on April 8, 2011. On that date, the learned Additional Solicitor General Ms. Indira Jaising, representing Union of India, on instruction, made the following written submissions:

1. The Union of India, after an in depth consideration of the entire matter, and in discharge of its obligations under the statutory provisions will make the necessary appointment of a SPP in respect of both the CBI matter as well as the Money Laundering matter within one week from today.

2. In view of this statement, it is not appropriate or necessary to make any submissions with regard to the scope of Section 46(2) of the Money Laundering Act at this stage.

3. It is therefore requested that the matter may be suitably adjourned to enable the Union of India to report the progress made in this matter to this Hon’ble Court.

12. Mr. Harin Raval, ASG appearing for ED, who is normally led by Mr. K.K. Venugopal, learned senior counsel argued by placing reliance on a decision of this Court in the case of Rajiv Ranjan Singh ‘Lalan’ (VIII) and Anr. v. Union of India and Ors. reported in, (2006) 6 SCC 613, especially paragraphs 50 and 51 of the said decision, those paragraphs are set out below:

50. The appointment of lawyers is the prerogative of the Government and the prosecuting agency. The Petitioners are trying to find fault with every attempt with every step taken. In cases like this the delay is inevitable.

51. It is also settled law that appointment of advocates, Public Prosecutors, etc. is the prerogative of the Government in power and the court has no role to play.

13. Relying on the aforesaid paragraphs, Mr. Raval submitted that the appointment of lawyers in connection with the present case is the prerogative of the government.

14. In so far as the ratio in the case of Rajiv Ranjan Singh (supra) is concerned, it was rendered in a totally different fact situation. In the said case, a PIL was filed under Article 32 of the Constitution at a time when the prosecution evidence was almost over and the trial had reached its final stage. At that stage, a prayer was made for change of public prosecutor at the instance of the Petitioners who were total strangers to the case. On these grounds, the petition was dismissed. In this connection, in the concurring judgment of Justice A.R. Lakshmanan the aforesaid observation about government’s prerogative to appoint lawyers for the prosecuting agency was recorded.

15. We are of the view that the expression “prerogative” cannot be used in the context of a statutory provision. Under our Constitutional and statutory framework, there is nothing known as prerogative. In this connection, we may usefully recall what was said by the eminent jurist N.A. Palkhivala in his treatise “Our Constitution: Defaced and Defiled” (Macmillan: December 1974). The relevant portion reads as follows:

Our Constitution recognizes no prerogative whatsoever; it recognizes merely rights, duties and discretions. The difference between “prerogative” and “discretion” is clear. A person who has a prerogative can act arbitrarily or irrationally and yet his decision must be treated as legal and valid. On the other hand, if a person has the discretion, and not the prerogative, to make a decision, the discretion can only be exercised fairly and reasonably; otherwise his act is void on the ground that there was no valid exercise of discretion in the eyes of law. (page 103)

16. We are in respectful agreement with this view. In this case, the Court is not changing any public prosecutor who has already been appointed. The question in the present case was never in issue in Rajiv Ranjan Singh (supra).

17. Therefore, the decision in Rajiv Ranjan Singh (supra) is not of much relevance here.

18. We have taken note of the submission by Ms. Indira Jaising and Mr. Raval. But in the peculiar facts of the case and having regard to the larger issues of public interest of transparent governance, this Court has been passing various orders for monitoring of the investigation and also by giving direction for setting up separate Special Courts. These steps are taken by this Court in exercise of its jurisdiction under Article 136 read with Article 142. Consistent with those orders and since this Court is of the opinion that for conducting a proper prosecution, an appointment of a competent Special Public Prosecutor is of the essence, the court requested Mr. K.K. Venugopal to suggest a name of a very able and competent lawyer so that such name can be suggested for appointment as Special Public Prosecutor. The court has already noted about the undoubted ability and acumen of Mr. Lalit to become a Special Public Prosecutor to conduct the prosecution in this case.

19. In the background of these facts, the court now proposes to examine the aforesaid contentions of the learned Attourney-General and also by Ms. Indira Jaising and Mr. Harin Raval, both Additional Solicitor Generals.

20. In this connection, Section 46 of the said Act is set out below:

46. Application of the Code of Criminal Procedure, 1973 to proceedings before Special Court.-(1) Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bails or bonds), shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the persons conducting the prosecution before the Special Court, shall be deemed to be a Public Prosecutor:

Provided that the Central Government may also appoint for any case or class or group of cases a Special Public Prosecutor.

(2) A person shall not be qualified to be appointed as a Public Prosecutor or a Special Public Prosecutor under this section unless he has been in practice as an Advocate for not less than seven years, under the Union or a State, requiring special knowledge of law.

(3) Every person appointed as a Public Prosecutor or a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of Clause (u) of Section 2 of the Code of Criminal Procedure, 1973 (2 of 1974) and the provisions of that Code shall have effect accordingly.

21. The provision of Section 2(u) of the ode of Criminal Procedure is also set out:

2(u) “Public Prosecutor” means any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor;

22. Section 24 of the Code of Criminal Procedure is also set out:

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) Notwithstanding anything contained in Sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre:

Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under Sub-section (4).

(Explanation.-For the purpose of this Sub-section,-(a) regular Cadre of Prosecuting Officers” means a Cadre of Prosecuting Officers which includes therein the post, of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post; (b) “Prosecuting Officer” means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.) (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 p(sic) who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.

(Provide (sic) 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.

23. From a perusal of the Section 46(1) of the said Act, it appears that every person conducting prosecution is deemed to be a public prosecutor. At the same time, Section 2(u) of the Code of Criminal Procedure. makes it clear that any person who is appointed under Section 24 of Code of Criminal Procedure is a public prosecutor. Therefore, on a conjoint and harmonious reading of Section 46 along with Section 24 of the Code of Criminal Procedure it appears that the expression “’person conducting the prosecution before the Special Court” in Sub-section (1) of Section 46 of the said Act, would mean that such a person must either be appointed by the Central or the State Government after following the procedure” prescribed in Sub-section (4), (5) along with Sub-section (7) of Section 24 of Code of Criminal Procedure or in the alternative after following the procedure in Sub-section (6) read with Sub-section (7) of Section 24 of Code of Criminal Procedure We are of the view that both the provisions, namely, the provisions of Section 46 of the said Act and Section 24 of Code of Criminal Procedure must be read together, since Section 46 of the said Act, being a later Act, makes an express reference to the provision of the pre-existing Central law. namely the provisions of Section 24 of Code of Criminal Procedure

24. The expression “under” occurring in Section 46(2) must be reasonably construed in a manner which is consistent with the dignity of the office of Public Prosecutor. A Public Prosecutor cannot be equated with a person who is holding an office under the State. He cannot be treated as a government employee. It may be that he should be a lawyer on the government panel. However, the independence of the Public Prosecutor from any governmental control is the hall mark of this high office.

25. Reference in this connection may be made to the decision of this Court in the case of Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. and Ors. reported in, AIR 1991 SC 537 at 547, wherein the following observations have been made:

The function of the Public Prosecutor relates to a public purpose entrusting him with the responsibility of acting only in the interest of administration of justice. In the case of public prosecutors, this additional public element flowing from statutory provisions in Code of Criminal Procedure undoubtedly, invest the public prosecutors with the attribute of holder of a public office which cannot be whittled down by the assertion that their engagement is purely professional between a client and his lawyer with no public element attaching to it.

26. The role of a public prosecutor in a criminal justice system has been very aptly put in the following words:

The Prosecutor has a duty to the State, to the accused and to the court. Te Prosecutor is at all times a minister of justice, though seldom so described. It is not the duty of the prosecuting counsel to secure a conviction, nor should any prosecutor even feel pride or satisfaction in the mere fact of success. (Christmas Humphreys: 1955 CLR 739

27. A public prosecutor is really a minister of justice and his job is none other than assisting the State in the administration of justice and in fact he is not a representative of any party. (See Babu v. State of Kerala 1984 Cri.L.J. 499)

28. The same has also been expressed in R. v. Banks reported in (1916) 2 KB 621, wherein it has been said that the Public Prosecutor:

throughout a case ought not to struggle for the verdict against the prisoner but… ought to bear themselves rather in the character of minister of justice assisting the administration of justice.

29. This Court has also expressed the same opinion in Sidhartha Vashisht alias Manu Sharma v. State (NCT Of Delhi) reported in, (2010) 6 SCC 1, where this Court held that public prosecutor must observe a wider set of duties than to merely ensure that the accused is punished. His job is to ensure fair play in all proceedings. (Para 185-188).

30. In the Constitution Bench decision of this Court in Sheonandan Paswan v. State of Bihar and Ors. reported in, (1987) 1 SCC 288, this Court held that a public prosecutor is not a representative of any ordinary party to a controversy but of the sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.

31. Therefore, there is a public element in such an appointment.

32. In the appointment of Public Prosecutor, the principle of master-servant does not apply. Such an appointment is not an appointment to a civil post. (See State of U.P. and Anr. v. Johri Mal,, (2004) 4 SCC 714

33. In view of the aforesaid well-settled principles, we cannot hold that the expression ‘under’ in Section 46(2) of the said Act can be construed to mean that the Public Prosecutor will be holding an employment under the State. All that it would mean is that the Special Public Prosecutor should be a lawyer on the panel of either the State or Central government. Mr. U.U. Lalit satisfies the said requirement quite adequately.

34. Therefore, we are unable to accept the contention of the Union of India and we hold that in the interest of a fair prosecution of the case, appointment of Mr. U.U. Lalit is eminently suitable.

35. We, therefore, order that Mr. U.U. Lalit shall be appointed Special Public Prosecutor by the government to conduct the prosecution in this case, on behalf of CBI and ED. On such appointment, Mr. U.U. Lalit may choose the other advocates who are already on the panel of CBI to assist him. Considering the magnitude of the case, we are of the view that Mr. Lalit may choose two persons from the said panel.

36. We also make it clear that any objection about appointment of Special Public Prosecutor or his assistant advocates or any prayer for staying or impeding the progress of the Trial can be made only before this Court and no other court shall entertain the same. The trial must proceed on a day-to-day basis.

37. All these directions are given by this Court in exercise of its power under Article 136 read with Article 142 of the Constitution and in the interest of holding a fair prosecution of the case.


(2011) 4 SCALE 583

SAHIB SINGH MEHRA Vs. STATE OF UTTAR PRADESH

SUPREME COURT OF INDIA JUDGMENTS

A Public Prosecutor can file a complaint in writing in the Court of Session directly with respect to an offence u/s 500 I.P.C. committed against a public servant in respect of his conduct in the discharge of his public functions. Sub-section (3) of section 198B provides that no complaint under sub-section (1) shall be made by the Public Prosecutor except with the previous sanction of the Government concerned for the filing of complaint u/s 500 I.P.C.

(1965) AIR(SC) 1451 : (1966) MLJ(Criminal) 222 : (1965) SCD 600 : (1966) 1 SCJ 294 : (1965) 2 SCR 823 : (1965) 1 SCWR 571

SUPREME COURT OF INDIA

DIVISION BENCH

( Before : Raghubar Dayal, J; J. R. Madholkar, J )

SAHIB SINGH MEHRA — Appellant

Vs.

STATE OF UTTAR PRADESH — Respondent

Decided on : 22-01-1965

Criminal Procedure Code, 1898 (CrPC) – Section 198, Section 198B, Section 198B(1), Section 198B(3)
Penal Code, 1860 (IPC) – Section 499, Section 500

JUDGMENT

Raghubar Dayal, J.—Sahib Singh Mehra, appellant in this appeal by special leave, published an article in his paper ‘Kaliyug’ of Aligarh, dated September 12, 1960, under the heading “Ulta Chor Kotwal Ko Dante” which means that a thief reprimanded the Kotwal, a police officer, though the right thing would be the other way. The article contained the following expressions, as translated :

“How the justice stands at a distance as a helpless spectator of the show as to the manner in which the illicit bribe money from plaintiffs and defendants enters into the pockets of public prosecutors and assistant public prosecutors and the extent to which it reaches and to which use it is put.”

2. The Public Prosecutor and the eleven Assistant Public Prosecutors at Aligarh requested the Superintendent of Police for obtaining the sanction of the Government for filing a complaint by the District Government Counsel in the Court of the Sessions Judge u/s 500 I.P.C. The Government was duly approached through proper channel and, ultimately, the Home Secretary, U.P. Government, wrote to the Inspector General, U.P. on March 1, 1961 :

“I am directed to convey the sanction of the State Government u/s 198B(c) of the Code of Criminal Procedure to the filing of a complaint u/s 500 Indian Penal Code in a Court of Sessions, against the Editor and Publisher of the Newspaper ‘Kaliyug’ of District Aligarh which published a news item under the caption ‘Ulta Chor Kotwal Ko Dante’ in its issue, dated September 12, 1960 containing defamatory remarks against the Assistant Public Prosecutor Sri R. K. Sharma of District Aligarh and other police prosecuting staff of the Government in respect of their conduct in the discharge of public functions.”

3. Thereafter, the Public Prosecutor of Aligarh filed the complaint in the Court of Session, Aligarh, praying for the summoning of the accused and for his trial according to law for the offence u/s 500 I.P.C.

4. The appellant admitted before the Sessions Judge the publication of the impugned article and stated that he never had any evil intention. He further stated that he had published the news items for the good of the public and that he had published it in most general terms to bring bad things to the notice of the Government and the authorities for the public good.

5. The Sessions Judge convicted him of the offence u/s 500 I.P.C. holding that the aforesaid statements in the article were defamatory and that the appellant was not protected by exceptions 3 and 9 to section 499 I.P.C. He sentenced the appellant to simple imprisonment for six months and a fine of Rs. 200. His appeal against the conviction was dismissed by the High Court.

6. Of the points sought to be urged for the appellant, we did not allow one to be urged. It was that there was no proof that the Government had sanctioned the lodging of the complaint. This point had not been taken in the Courts below and was not even taken in the petition for special leave. What was urged in the petition for special leave was that one of the questions of law which arose in the case for consideration was whether the charge framed was the one for which sanction was granted or the requisite complaint was filed. This question is very much different from the question whether the Government did grant the sanction or whether the granting of the sanction by the Government had been duly proved in the case.

7. The other points urged are : (1) that the sanction granted was a general sanction and not with respect to the defamation of any particular Public Prosecutor or Assistant Public Prosecutor and that such sanction was not contemplated by law; (2) that it is not proved that the appellant had any intention to harm the reputation of any particular Public Prosecutor or Assistant Public Prosecutor; (3) that there was no evidence that the remarks were defamatory of any particular group; (4) that the prosecution did not lead any evidence to establish that the defamed group had any reputation which could be harmed and (5) that the remarks for public good.

8. Before dealing with the contentions raised for the appellant, we may refer to the provisions of law which enable a Public Prosecutor to file a complaint for an offence u/s 500 I.P.C. committed against a public servant. Section 198 Cr. P.C. provides inter alia that no Court shall take cognizance of an offence falling under Chapter XXI (which contains sections 499 and 500 I.P.C.) except upon complaint made by some person aggrieved by such offence. Section 198B, however, is an exception to the provisions of section 198 and provides that notwithstanding anything contained in the Code, when any offence falling under Chapter XXI of the Indian Penal Code other than the offence of defamation by spoken words is alleged to have been committed against any public servant, employed in connection with the affairs of a State, in respect of his conduct in the discharge of his public functions, a Court of Session may take cognizance of such offence without the accused being committed to if for trial, upon a complaint in writing made by the Public Prosecutor. It is thus that a Public Prosecutor can file a complaint in writing in the Court of Session directly with respect to an offence u/s 500 I.P.C. committed against a public servant in respect of his conduct in the discharge of his public functions. Sub-section (3) of section 198B provides that no complaint under sub-section (1) shall be made by the Public Prosecutor except with the previous sanction of the Government concerned for the filing of complaint u/s 500 I.P.C. The sanction referred to above, in this case, and conveyed by the Home Secretary to the Inspector-General of Police, was a sanction for making a complaint u/s 500 I.P.C. against the appellant with respect to the article under the heading ‘Ulta Chor Kotwal Ko Dante’, in the issue of ‘Kaliyug’, dated September 12, 1960, containing defamatory remarks against the Assistant Public Prosecutor, R. K. Sharma, of Aligarh, and other prosecuting staff of the Government in respect of their conduct in the discharge of public functions. The sanction was therefore with respect to defamation of two persons (i) R. K. Sharma, Assistant Public Prosecutor, Aligarh; and (ii) the other police prosecuting staff of Government of Uttar Pradesh, which would be the entire prosecuting staff in the State. There was thus nothing wrong in the form of the sanction.

9. The case did not proceed with respect to the defamation of R. K. Sharma, Assistant Public Prosecutor, as such. We may, however, here indicate in brief this reference to the defamation of R. K. Sharma. The appellant published sometime in May 1960 something which was defamatory of R. K. Sharma. R. K. Sharma filed a complaint about it in September 1960. The impugned article had stated, prior to the remarks to which objection has been taken, the publication of the earlier article and the news reaching the Editor that R. K. Sharma was contemplating taking action in a Court of law and then expressed that the Editor welcomed the news and would show how the bribe money reaches the Public Prosecutors, how it is utilised and how justice sees all this show from a distance. The Public Prosecutor, however, in his complaint, restricted it to be defamation of R. K. Sharma and other police prosecuting staff of the U.P. Government at Aligarh. It is not possible to say that he was not competent to do so, when the sanction by the Government could be taken to be sanction for the defamation of the entire prosecuting staff in the State of Uttar Pradesh, there being no such express statement in the article as to restrict the imputation to the staff at Aligarh alone and when the remarks could be properly taken to be with reference to the prosecuting staff at Aligarh in the context of ‘Kaliyug’ being a local weekly and the desire of the Editor to make public all these matters in a Court in proceedings to be started by R. K. Sharma in view of certain matter published about him in an earlier issue of the paper. We therefore do not consider that the sanction suffered from any defect.

10. The next question to determine is whether it is essential for the purpose of an offence u/s 500 I.P.C. that the person defamed must be an individual and that the prosecuting staff at Aligarh or of the State of Uttar Pradesh could not be said to be a ‘person’ which could be defamed. Section 499 I.P.C. defines ‘defamation’ and provides inter alia that whoever makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputations will harm, them reputation of such person, is said, except in cases covered by the exceptions to the Section, to defame that person. Explanation 2 provides that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. It is clear therefore that there could be defamation of an individual person and also of a collection of persons as such. The contention for the appellant then reduces itself to the question whether the prosecuting staff at Aligarh can be considered to be such a collection of persons as is contemplated by Explanation 2. The language of Explanation 2 is general and any collection of persons would be covered by it. Of course, that collection of persons must be identifiable in the sense that one could, with certainty, say that this group of particular people has been defamed, as distinguished from the rest of the community. The prosecuting staff of Aligarh or, as a matter of fact, the prosecuting staff in the State of Uttar Pradesh, is certainly such an identifiable group or collection of persons. There is nothing indefinite about it. This group consists of all members of the prosecuting staff in the service of the Government of Uttar Pradesh. Within this general group of Public Prosecutors of U.P. there is again an identifiable group of prosecuting staff, consisting of Public Prosecutors and Assistant Public Prosecutors, at Aligarh. This group of persons would be covered by Explanation 2 and could therefore be the subject of defamation.

11. We have not been referred to any case relating to section 499 I.P.C. is support of the contention for the appellant that the Public Prosecutor and Assistant Public Prosecutors at Aligarh could not from such a body of persons as would be covered by Explanation 2 to section 499 I.P.C.

12. The impugned remarks are per se defamatory of the group of persons referred to. It is no defence – and it had not been urged as defence – that the remarks were true. The defence in the Courts below was that they were for public good and the appellant was protected under Exceptions 3 and 9, of section 499 I.P.C. The tenor of the article does not indicate that the purpose of the appellant in publishing these remarks was ‘public good’. According to the article, the appellant would have welcomed the opportunity that would be offered by the case contemplated against him by R. K. Sharma, to make public the impugned matters. His remarks therefore could have the tendency to dissuade R. K. Sharma from instituting the proceedings for fear of giving greater currency to untrue allegations which be not favorable to him or to the prosecuting staff at Aligarh or in the State, and by themselves could not render any public good. No enquiry could have been started by the Government on such a publication implying the passing of money from the pockets of certain set of people to the pockets of the prosecuting staff. The impugned remarks could certainly lead the renders of the article to believe or suspect that the prosecuting staff is corrupt in the discharge of its duties as public prosecutors, and are thus bound to affect the reputation of the prosecuting staff adversely. Unless proved otherwise, the presumption is that every person has a good reputation. In this case, the Public Prosecutor and Assistant Public Prosecutor had deposed that they are corrupt, and according to their knowledge, none at Aligarh, is corrupt in the discharge of his duty. There is no evidence to the contrary.

13. Exception 3 to section 499 I.P.C. comes into play when some defamatory remark is made in good faith. Nothing has been brought on the record to establish that those defamatory remarks were made by the appellant after due care and attention and so, in good faith.

14. Exception 9 gives protection to imputations made in good faith for the protection of the interest of the person making it or of any other person or for the public good. The appellant has not established his good faith and, as we have said above, the imputations could not have been said to have been made for the public good.

15. We are therefore of opinion that the appellant has been rightly held to have committed the offence u/s 500 I.P.C. by defaming the Public Prosecutor and Assistant Public Prosecutors at Aligarh.

16. It is urged for the appellant that the sentence is severe and be reduced to the period of imprisonment already undergone. We do not see any justification for reducing the sentence. The Press has great power in impressing the minds of the people and it is essential that persons responsible for publishing anything in newspapers should take good care before publishing anything which tends to harm the reputation of a person. Reckless comments are to be avoided. When one is proved to have made defamatory comments with an ulterior notice and without the least justification motivated by self-interest, he deserves a deterrent sentence.

17. We dismiss the appeal. The appellant will surrender to his bail.

18. Appeal dismissed.

The role of a public prosecutor and his duties of disclosure

In a recent pronouncement in Siddharth Vashisht @ Manu Sharma V. State (NCT of Delhi) (supra) to which one of us (Sathasivam, J) was a party, the role of a public prosecutor and his duties of disclosure have received a wide and in-depth consideration of this Court. This Court has held that though the primary duty of a Public Prosecutor is to ensure that an accused is punished, his duties extend to ensuring fairness in the proceedings and also to ensure that all relevant facts and circumstances are brought to the notice of the Court for a just determination of the truth so that due justice prevails. The fairness of the investigative process so as to maintain the citizens’ rights under Articles 19 and 21 and also the active role of the court in a criminal trial have been exhaustively dealt with by this Court. Finally, it was held that it is the responsibility of the investigating agency as well as that of the courts to ensure that every investigation is fair and does not erode the freedom of an individual except in accordance with law. It was also held that one of the established facets of a just, fair and transparent investigation is the right of an accused to ask for all such documents that he may be entitled to under the scheme contemplated by the Code of Criminal Procedure. The said scheme was duly considered by this Court in different paragraphs of the report. The views expressed would certainly be useful for reiteration in the context of the facts of the present case:Continue Reading

Special Court and Procedure under POCSO Act 2012

The Protection of Children from Sexual Offences Act, 2012 [POCSO]

CHAPTER VII

 SPECIAL COURTS

28. Designation of Special Courts :

(1) For the purposes of providing a speedy trial, the State Government shall in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, designate for each district, a Court of Session to be a Special Court to try the offences under the Act:

Provided that if a Court of Session is notified as a children’s court under the Commissions for Protection of Child Rights Act, 2005 or a Special Court designated for similar purposes under any other law for the time being in force, then, such court shall be deemed to be a Special Court under this section.

(2) While trying an offence under this Act, a Special Court shall also try an offence other than the offence referred to in subsection (1), with which the accused may, under the Code of Criminal Procedure,1973 be charged at the same trial.

(3) The Special Court constituted under this Act, notwithstanding anything in the Information Technology Act, 2000, shall have jurisdiction to try offences under section 67B of that Act in so far as it relates to publication or transmission of sexually explicit material depicting children in any act, or conduct or manner or facilitates abuse of children online.

29. Presumption as to certain offence : Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.

30. Presumption of culpable mental state : (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.

Explanation.—In this section, “culpable mental state” includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.

31. Application of Code of Criminal Procedure, 1973 to proceedings before a Special Court:

Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 including the provisions as to bail and bonds shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a court of Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.

32. Special Public Prosecutors :

(1) The State Government shall, by notification in the Official Gazette, appoint a Special Public Prosecutor for every Special Court for conducting cases only under the provisions of this Act.

(2) A person shall be eligible to be appointed as a Special Public Prosecutor under sub-section (1) only if he had been in practice for not less than seven years as an advocate.

(3) Every person appointed as a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code of Criminal Procedure, 1973 and provision of that Code shall have effect accordingly.


COMMENT: The office of the Special Public Prosecutor is a full-time job and the Ld SPP shall dedicate him/herself the whole day in the Court. Public Prosecutor appointed for the Session Judge [Remain busy with bail and other trial matter) should not be appointed for SPP.


CHAPTER VIII 

PROCEDURE AND POWERS OF SPECIAL COURTS AND RECORDING OF EVIDENCE

33. Procedure and powers of Special Court :

(1) A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts.

(2) The Special Public Prosecutor, or as the case may be, the counsel appearing for the accused shall, while recording the examination-in-chief, cross-examination or re-examination of the child, communicate the questions to be put to the child to the Special Court which shall in turn put those questions to the child.

(3) The Special Court may, if it considers necessary, permit frequent breaks for the child during the trial.

(4) The Special Court shall create a child-friendly atmosphere by allowing a family member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present in the court.

(5) The Special Court shall ensure that the child is not called repeatedly to testify in the court.

(6) The Special Court shall not permit aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times during the trial.

(7) The Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial:

Provided that for reasons to be recorded in writing, the Special Court may permit such disclosure, if in its opinion such disclosure is in the interest of the child.

Explanation.—For the purposes of this sub-section, the identity of the child shall include the identity of the child’s family, school, relatives, neighborhood or any other information by which the identity of the child may be revealed.

(8) In appropriate cases, the Special Court may, in addition to the punishment, direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child.

(9) Subject to the provisions of this Act, a Special Court shall, for the purpose of the trial of any offence under this Act, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session, and as far as may be, in accordance with the procedure specified in the Code of Criminal Procedure, 1973 for trial before a Court of Session.


COMMENT: Section 33(2), POCSO Act prohibits the Special Public Prosecutor (SPP) and
the defence lawyer from putting questions to the child directly. All questions
during the examination-in-chief and cross-examination must be routed through
the Special Court.


34. Procedure in case of commission of offence by child and determination of age by Special Court :

(1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 [56 of 2000]

(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for
such determination.

(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person
as determined by it under sub-section (2) was not the correct age of that person.

35. Period for recording of evidence of child and disposal of case : (1) The evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay, if any, shall be recorded by the Special Court.

(2) The Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence.

36. Child not to see accused at the time of testifying : (1) The Special Court shall ensure that the child is not exposed in any way to the accused at the time of recording of the evidence, while at the same time ensuring that the accused is in a position to hear the statement of the child and communicate with his advocate.

(2) For the purposes of sub-section (1), the Special Court may record the statement of a child through video conferencing or by utilising single visibility mirrors or curtains or any other device.

37. Trials to be conducted in camera: The Special Court shall try cases in camera and in the presence of the parents of the child or any other person in whom the child has trust or confidence:

Provided that where the Special Court is of the opinion that the child needs to be examined at a place other than the court, it shall proceed to issue a commission in accordance with the provisions of section 284 of the Code of Criminal Procedure, 1973.[ 2 of 1974]

38. Assistance of an interpreter or expert while recording evidence of child :

(1) wherever necessary, the Court may take the assistance of a translator or interpreter having such qualifications, experience and on payment of such fees as may be prescribed, while recording the evidence of the child.

 (2) If a child has a mental or physical disability, the Special Court may take the assistance of a special educator or any person familiar with the manner of communication of the child or an expert in that field, having such qualifications, experience and on payment of such fees as may be prescribed to record the evidence of the child.

Huma Arham

Photo courtesy by Huma Arham [Age 5 Yrs]