Supreme Court of India
K. ANBAZHAGANversusSTATE OF KARNATAKA& ORS.
- Citation
- 2015 INSC 323
- Decided
- 15 April 2015
- Disposal
- Directions issued
- Bench
- MADAN B LOKUR
Holding
A Special Public Prosecutor appointed under s.24(8) CrPC for the trial does not automatically have authority to appear in appellate courts without a fresh appointment, and such unauthorized appearance vitiates the appeal proceedings.
Summary
The Supreme Court examined whether a Special Public Prosecutor (SPP) appointed under s.24(8) CrPC to conduct the trial of a corruption case transferred from Tamil Nadu to Karnataka could continue to represent the prosecution in the appeals before the Karnataka High Court. The Court considered the scope of s.301(1) CrPC, the jurisdiction of the transferee State to appoint prosecutors after a transfer under s.406 CrPC, and the validity of an appointment made by Tamil Nadu after the trial concluded. Justice Lokur held that the SPP's appointment was limited to the trial and that his appearance in the appeals was unauthorized, rendering the appellate proceedings vitiated and requiring a fresh hearing. Justice Banumathi took the opposite view, holding that the SPP could appear in any court where the case was under appeal without fresh authority. The Court allowed Criminal Appeal No. 637 (reversing the High Court’s order) and dismissed Criminal Appeal No. 638, and referred the matter to a larger bench for resolution of the conflicting opinions.
Issues considered
- Whether a Special Public Prosecutor appointed for the trial under s.24(8) CrPC can continue to appear for the prosecution in appellate proceedings without a fresh appointment.
- Whether s.301(1) CrPC confers a right to appear in any court where the case is under inquiry, trial or appeal, irrespective of the SPP's original jurisdiction.
- Whether the appointment made by the transferor State (Tamil Nadu) after the trial is valid and can be relied upon.
- Whether the appellant is entitled to file written submissions under s.301(2) CrPC in the High Court.
- Whether the appellate proceedings are vitiated due to the unauthorized appearance of the SPP.
Legislation cited
- Code of Criminal Procedure, 1973s. 24, s. 24(8), s. 25, s. 25-A, s. 2(u), s. 301(1), s. 301(2), s. 406
- Karnataka Law Officers (Appointment and Conditions of Service) Rules, 1977s. 30
Subjects
Special Public ProsecutorSection 301 CrPCCriminal appealTransfer of caseJurisdiction of StateAppointment of prosecutorDe facto doctrineAppeal vitiated
Judgment
[2015] 7 S.C.R. 355
K. ANBAZHAGAN A
v.
STATE OF KARNATAKA& ORS.
(Criminal Appeal No. 637 of 2015 etc.)
B
April 15, 2015
[MADAN B. LOKUR AND R. BANUMATHI, JJ.)
Code of Criminal Procedure, 1973: c
ss. 2(u), 24, 25, 25A and 301(1) - Special Public
Prosecutor-Appointed u/s. 24(8) to appear in the trial before
Special Court - Whether could continue as Special Public
Prosecutor in the appeals against the order of the Special
0
Court - Held: Per Madan B. Lokur, J.: Appointment of the
Special Public Prosecutor was limited only to the trial and
automatically terminated on conclusion of the trial - That
engagement did not automatically imply any authorization
to him to appear for the prosecution in the appeals - Since E
the State of Kamataka did not appoint Special Public
Prosecutor for the High Court, conducting of the case in
appeal before High Court by respondent No. 5 (the Special
Public Prosecutor) was without authority - Therefore the
proceedings in the appeal are vitiated - The appeals have F
to be heard afresh - Per Banumathi, J.:- Once respondent
No. 5 was appointed as a Special 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 - Until the Notification by which the Special G
Public Prosecutor was appointed, is quashed by the State,
the power uls 301, will continue the authority of Special Public
Prosecutor to appear and plead even after end of the trial -
355 H
356 SUPREME COURT REPORTS [2015] 7 S.C.R.
A Per Court: In view of difference of opinion, matter referred to
Larger Bench - Code of Criminal Procedure, 1898- s. 493-
Karnataka Law Officers (Appointment and Conditions of
Service) Rules, 1977 - r.30.
B s. 24(8) - Power to appoint Special Public Prosecutor-
Criminal case transferred u/s. 406 Cr.PC. to another State -
After conclusion of trial, in appeal, Special Public Prosecutor
appointed by transferor State - Propriety of- Held: After the
transfer of the case, the transferee-State steps into the shoes
C of the transferor-State- Thus transferee-State alone is entitled
to appoint the Public Prosecutor - The appointment of
Special Public Prosecutor by the transferor-State was without
authority and non-est in the eye of law.
o s.301(2) -Application under- Seeking permission to
intervene in pending appeals and to assist Special Public
Prosecutor - Application dismissed by High Court - On
appeal, plea of the intervener for permission to file written
submission before the High Court-Held: s.301(2) does not
E postulate filing of written submission - Application rightly
rejected by the High Court.
Words and Phrases: 'Case' - Meaning of, in the context
ofss. 24(8) and 301 of Code of Criminal Procedure, 1973.
F
Referring the matter to Larger Bench, the Court
Held:
Per Court:
G
In view of difference of opinion, the Criminal Appeal
No.637 of 2015 is referred to the Larger Bench.
Per Madan B. Lokur, J.: (Allowing the Criminal Appeal
H No.637 of 2015 and dismissing Criminal Appeal No. 638
of2015)
K. ANBAZHAGAN v. STATE OF KARNATAKA 357
Criminal Appeal No. 637 of 2015: A
1.1 The Prosecution against Ms. Jayalalitha and
others was at the instance of the State of Tamil Na du but
after the prosecution was transferred to Karnataka, and
in terms of the decision of this Court rendered in B
*Anbazhagan case, 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. Thus, Karnataka virtually stepped into the C
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. [Para.
29] [386-B-E]
D
Jayendra Saraswati Swamigal v. State of Tamil Nadu
2008 (11) SCR 161: 2008 (10) sec 180- relied on.
*K. Anbazhagan v. Superintendent of Police 2003 (5)
Suppl. SCR 610: 2004 (3) SCC 767 - referred to. E
1.2. On the transfer of a case by this Court u/s. 406
of Cr.P.C., 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 F
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. [Para 55) [401-D-E] G
1.3. In the present case, this Court by not
• I•
giving any
direction with regard to the appointment of a Public
Prosecutor or a Special Public Prosecutor post the
decision by the Trial Court, did not leave any vacuum. H
State of Karnataka as the transferee State, was entitled
358 SUPREME COURT REPORTS [2015] 7 S.C.R.
A to file an appeal in the Karnataka High Court. 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
B would stand frustrated at the appellate stage. 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. [Para 58) [402-D-G]
C State v. Vikas Yadav MANU/DE/1673/2008 - referred
to.
2.1. The focus and concern of this Court while
transferring the trial from the State of Tamil Nadu to the
o State of Karnataka was limited only to the conduct of a
fair trial and nothing beyond it. This Court did not have,
and could not have had in mind fairness or otherwise of
the proceedings subsequent to the conclusion of the
trial. There was no basis or material to assume that after
E 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. Thus, the appointment of respondent No.5
F as the Special Public Prosecutor came to an end on the
conclusion of the trial before the Special Court. [Paras
62, 63) [404-D-H; 405-A]
2.2 However, this does not mean that Karnataka
G could not have appointed the same 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 appeai(s) or by separate
H notifications. [Para 64) [405-8)
K. ANBAZHAGAN v. STATE OF KARNATAKA 359
2.3 The language employed in the notification dated A
2"d February, 2013 appointing respondent No.5 as a
Special Public Prosecutor is quite specific and is to
enable him "to conduct Special C.C. No. 208/2004. There
is no mention about anything beyond Special CC No.
208/2004 such as an appeal filed in the High Court either B
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 the said Special Public
Prosecutor to proceed beyond the trial in representing
the prosecution. It would do violence to the language of C
the notification if it were given an interpretation wider
than what the plain language suggests, intends and
states. [Para 68] [406-G,H;407-A-B]
2.4 Section 24(1) Cr.P.C. provides for the appointment D
of a Public Prosecutor for a High Court. 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 E
the District Court or any other court by virtue of his or
her appointment. A similar power of appointment of a
Public Prosecutor for every district is given to the State
Government by Section 24(3) Cr.P.C. There is a similar F
limitation of 'jurisdiction' or 'area of operation' of a Public
Prosecutor appointed under Section 24(3) to the district
for which he or she is appointed. The Special Public
Prosecutor, in question was not appointed as a Special
Public Prosecutor for the High Cc;urt u/s. 24(1 ). That G
being so, he has no authority to per se conduct the
appeals in the High Court on behalf of the prosecution.
[Paras 73 and 74) [407-G; 408-B-H]
2.5 The power given to the Central Government and H
the State Government by Section 24(8) Cr.P.C.to appoint
360 SUPREME COURT REPORTS [2015] 7 S.C.R.
A a Special Public Prosecutor, is much wider than the
powers u/s 24(1) and 24(3). 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. [Para 77) [409-
B B-0]
2.6 Section 301 {1) Cr.P.C. applies not only to a Public
Prosecutor as defined in Section 2(u) Cr.P.C. [which
includes a Special Public Prosecutor appointed u/s. 24(8)
C Cr.P.C.] but it also applies to an Assistant Public
Prosecutor appointed u/s. 25 Cr.P.C. Section 301 (1)
Cr.P.C. 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
D 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
E before any court in which that case is under enquiry, trial
or appeal. If the ingredients of s.301 (1) Cr.P.C. is to be
read as to mean that a Special Public Prosecutor is
entitled to appear and plead (without any written
F authority) in any court [the High Court] since that 'case'
is in appeal in the High Court, it could lead to an
anomalous result and an anomalous situation. [Paras
82, 83, 84 and 85) [411-C-H; 412-A]
2. 7 The only reasonable interpretation that can be
G given to the scheme laid out in Sections 24, 25, 25-A and
301 (1) Cr.P.C.is that the Public Prosecutor and Assistant
Public Prosecutor can appear and plead without written
authority only within that 'jurisdictional' or 'operational'
H limit, provided the Public Prosecutor or the Assistant
Public Prosecutor is in charge of that case and a
K.ANBAZHAGAN v.STATE OF KARNATAKA 361
Prosecutor (Public Prosecutor, Assistant Public A
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. Thus, section 301 (1) Cr.P.C. B
maintains a case specific character, and read along with
Sections 24, 25 and 25-A Cr.P.C. maintains a court or
district specific character as well. [Paras 89 & 90) [414-
D-G]
State of Punjab v. Surjit Singh (1967) 2 SCR 347 - c
followed.
2.8 Respondent No.5 having been appointed as a
Special Public Prosecutor for a specific case pertaining
to the accused persons before the Special Court was D
answerable in all respects to the Deputy Director of
Prosecution in terms of Section 25-A(6) Cr.P.C. and his
authorization was limited only-to that case before the
Special Court. Therefore, this\precluded him from E
appearing on behalf of the prosecution in the appe~ls
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 F
the Deputy Director of Prosecution. [Para 96) [416-H; 417-
A-C]
2.9 The word 'case' occurring in Section 24 and
Section 301 (1) Cr.P.C.is required to be given its ordinary
and natural meaning and in the context in which it is used. G
It cannot be given an extended meaning so as to include
an appeal. [Para 106] [420-G-H]
Mansoor v. State of Madhya Pradesh 1971 (0) Suppl.
SCR 731: (1971) 2 SCC 369- distinguished.
H
2.10 It cannot be said that in terms of Rule 30 of the
362 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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
B whether within the State or in any other State or in the
Supreme Court or in any High Court in the country,
respondent No.5 is entitled to appear in the High Court
in the appeals filed by the accused persons. It has not
been anybody's case at any stage that respondent No.5
C appeared in the High Court in the appeals in his capacity
as a Special Counsel and not in his capacity as a Special
Public Prosecutor. This plea is being made for the first
time and only in this court. That apart, the facts relating
to his as a Special Counsel are not available on record.
0
The roles of a Public Prosecutor and a Special Counsel
are distinct and separate. [Paras 107, 108 and 11 OJ [421-
C-F; 422-E]
2.11 No lawyer either in his capacity as a private
E 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 the de facto doctrine could
lead to chaos in the dispensation of justice. If respondent
F No.5 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. [Para 112] [423-C-D]
G Gokaraju Rangaraju v. State ofAndhra Prades 1981 (3)
SCR 474: (1981) 3 SCC 132; Pu/in Behari v. King Emperor
(1912) 15 Cal L.J 517, 574; K. Anbazhagan v. The
Superintendent of Police 2012 (4) KARLJ 635; K.
H Anbazhagan v. The Superintendent of Police MANU/KA/
2530/2011 - referred to.
K. ANBAZHAGAN v. STATE OF KARNATAKA 363
2.12 Respondent No.5 is not authorized to represent A
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 B
will have to be heard afresh by the High Court. [Para 119]
[427-E-F]
2.13 The State of Karnataka to ensure that the
prosecution is duly represented by an authorized Public c
Prosecutor appointed under Section 24(1) Cr.P.C. -
However, if the State of Karnataka decides to appoint a
Special Public Prosecutor under Section 24(8) Cr.P.C., it
must do so only in consultation with the Chief Justice of
the Karnataka High Court. It is directed that the State of o
Karnataka be made a party respondent in the appeals
filed by the accused persons. [Paras 120 and 121] [427-
G-H; 428-A-B]
Criminal Appeal No.638 of 2015:
E
3. There is no question of permitting the appellant
to file written submissions. Section 301 (2) of Cr.P.C does
not postulate the filing of any written submissions. That
apart, he cannot be permitted to file written submissions
in the High Court when no such prayer was made by F
him before the High Court. Even if such a prayer had
been made before the High Court, it was entirely for the
Single Judge to take a view in the matter. [Para 127] [429-
B-C]
G
Haradhan Sen v. State 2004 Crl. L.J. 3881 - relied
on.
Per Banumathi, J.: (Dismissing the appeals.)
Criminal Appeal No. 637 of 2015:
H
1.1 While directing transfer of a criminal case from
364 SUPREME COURT REPORTS [2015) 7S.C.R.
A outside the State, this Court can in exercise of powers
u/s. 406 Cr.P.C. issue further direction to the transferee
court to appoint Public Prosecutors/Additional Public
Prosecutors/Special Public Prosecutors. (Para 15] (437-
F-G]
B
Jayendra Saraswati Swamigal@ Subramaniam vs. State
of Tamil Nadu 2008 (11) SCR 161: (2008) 10 SCC 180 -
relied on.
c 1.2 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
D appoint Special Public Prosecutor to represent D.V &
A.C in the criminal appeals before the High Court of
Karnataka. Order hastily passed by the State of Tamil
Nadu on 29.09.2014 authorizing D.V & A.C to engage
respondent No.5 as its Special Public Prosecutor is
E without authority and non-est in the eye of law. [Paras
16 and 17] [439-G-H; 440-G]
2.1 The appointment of respondent No.5 u/s. 24(8)
Cr.P.C. as directed by this Court was in consultation with
F the High Court and on the recommendation of the Chief
Justice of the High Court of Karnataka. (Para 27] (447-E]
2.2 As per Section 2(u) Cr.P.C., Public Prosecutor
means any person appointed u/s.24 Cr.P.C. and thus
G includes a Special Public Prosecutor appointed u/s. 24(8)
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
H attached to a particular case or class of cases but in a
K.ANBAZHAGAN v. STATE OF KARNATAKA 365
specified jurisdiction and lastly, the one appointed to a 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 B .
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. [Para 28) [447-H; 448-A-D]
c
2.3 Public Prosecutor defined under sub-section (u)
of Section 2 Cr.P.C. 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 D
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 Cr.P.C. as compared to the old Cr.P.C. E
of 1898. [Para 33) [450-B-D] ·
2.4 Section 301 Cr.P.C. deals with 'appearance of
Public Prosecutor' giving a substantive right to the Public
Prosecutor who is 'in charge of a case' to appear and F
plead in any court in which that case is under inquiry,
trial or appeal without having any written authority. The
scheme of Cr.P.C. is that when a case is at the stage of
inquiry, trial or appeal, the Public Prosecutor is in charge G
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 u/s.301 Cr.P.C. is that the Special Public H
366 SUPREME COURT REPORTS [2015] 7 S.C.R.
A Prosecutor appears for the State to prosecute the
accused. State in turn authorize and appointthe 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
B Cr.P.C., will continue the authority of Special Public
Prosecutor to appear and plead even after end of trial.
[Para 30] [449-8-E]
2.5 When sub-section (8) of Section 24 is read
C harmoniously with Section 301 Cr.P.C. 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
D which such case is under inquiry, trial or appeal and there
is no limitation either on territory or hierarchy of courts.
It cannot be said that the authority of Special Public
Prosecutor ends with the conclusion of the trial and
disposal of a case. If such a plea is to be accepted then
E 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
F and essence .. [Para 49] [460-C-F]
2.6 In the new Cr.P.C. u/ss. 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
G 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
H element of 'Court or area' limitation imposed upon them
in which they have to work. [Para 33] [450-E-F]
K. ANBAZHAGAN v. STATE OF KARNATAKA 367
Shiv Kumar vs. Hukam Chand And Anr. 1999 (2) Suppl. A
SCR 81: (1999) 7 sec 467 - relied on.
K. Anbazhagan & Ors. vs. Supdt. of Police & Ors. 2003
(5) Suppl. SCR 610: (2004) 3 SCC 767; J. Jayala/ithaa And
Ors. VS. State of Kamataka & Ors. (2014) 2 sec 401 - B
referred to.
2.7 The word 'case' has been given a broader
meaning in the context of Section 301 of Cr.P.C. The term
'case' has to be interpreted only contextually and no
universal rule can be laid down for its interpretation and C
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. The term
'case' used in old Code has been replaced with term
0
'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 E
word 'case' with 'appeal'. When the Legislature has
remedied the mischief u/s.429 of the old Code by
replacing the term 'case' with the term 'appeal' u/s.392
of the new Code, then atthat point of time, the Legislature
could have defined the term 'case'; but the Legislature F
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. Therefore, the meaning that can be
assigned to the term 'case' under Section 301 Cr.P.C. is
contextually different and wider than the provisions G
referred above. [Paras 45, 47 and 48] (458-F-H; 459-F-H;
460-A-C]
Bhimappa Bassappa Bhu Sannavar vs. Laxman
Shivarayappa Samagouda & Ors. 1971 (1) SCR 1: (1970) 1 H
sec 665 - relied on.
368 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 2.8 Under the old Cr.P.C. 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.
B 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. [Para 37] [454-D, E]
C 2.9 ThO'Jgh 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. Section 301(1) Cr.P.C. gives substantive
D 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.
Further as per sub-section (2) of Section 301 Cr.P.C., if a
victim chooses to appoint some private pleader on his/
E her behalf, then such private pleader will act under the
direction of the Public Prosecutor. Mandatory nature of
Section 301(2) Cr.P.C. [Paras 39, 40] [455-A-B, D, E]
,..
'
State of Punjab vs. Surjit Singh And Anr. (1967) 2 SCR
F 347 - followed.
2.10 Since both Public Prosecutor and Special
Public Pros~cutor have been entrusted with certain
overlapping task, there is bound to be overlapping. To
G narrow down the overlapping, the Legislature has very
carefully placed the word 'in charge of a case' under
Section 301 (1) Cr.P.C. 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.
H which distinguishes the task of Special Public
K. ANBAZHAGAN v. STATE OF KARNATAKA 369
Prosecutor from that of Public Prosecutors appointed A
under sub-sections (1), (2) and (3) of Section 24 Cr.P.C.
and hardly there is any anomaly. [Paras 41 and :43] [456-
F-G; 457-H; 458-A]
2.11 Such authority of the Special Public Prosecutor
8
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 c
broader context in which term 'case' has been used in
Section 301(1) Cr.P.C. to include any court in.~hich 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 o
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. [Para E
50] [460-G-H; 461-A-B]
2.12 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 F
be understood by the deliberate positioning ofthe words
'inquiry, trial or appeal' after the word 'case'. Once
respondent No.5 was appointed as the Speci_a_I 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 G
that case is pending trial, inquiry or appeal. [Para 51]
[461-F-G]
2.13 The matter has been pending for more than
eight years during which many orders passed by the H
Special Court came to be challenged before the High
370 SUPREME COURT REPORTS [2015] 7 S.C.R.
A Court, by way of revisions or other proceedings. In all
those revisions and other proceedings before the High
Court, the then Special Public Prosecutor appeared in
the High Court. Such appearance, is by virtue of the
authority derived under Section 301 (1) Cr.P.C. Thus, after
B 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. [Para
C 51) (461-G-H; 462-A-C]
3. 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 respondent No.5 to
continue as the Special Public Prosecutor by virtue of
D the provision of Section 24 (8) and Section 301(1) of
Cr.P.C. unless cancelled by the State of Karnataka. The
appellant had not even chosen to challenge the
appointment of respondent No.5 as Special Public
Prosecutor by the State of Tamil Nadu (dated 29.9.2014)
E 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
F petition, which lacks bona fide. [Para 58) [467-G-H]
4. Respondent No.5 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
G by the accused in the High Court of Karnataka. [Para 59)
(468-D-E]
Criminal Appeal No. 638 of 2015:
..
H The order of the High Court in I.A. No.1/2015 in
K.ANBAZHAGAN v. STATE OF KARNATAKA 371
Criminal Appeal Nos.835-838/2014 is confirmed. (Para 60] A
(468-F]
Case Law Reference
In the judgment of Madan B. Lokur1 J.
B
2003 (5) Suppl. SCR 610 referred to. Para 5
2008 (11) SCR 161 relied on. Para 30
(1967] 2 SCR 347 followed. Para 90
c
1971 (0) Suppl. SCR 731 distinguished~Para 105
1981 (3) SCR 474 referred to. Para 111
(1912) 15 Cal L.J 517, 574 referred to. Para 111
D
2012 (4) KAR LJ 635 referred to. Para 117
MANU/KA/2530/2011 referred to. Para 118
2004 Crl. L.J. 3881 relied on. Para 128
E
In the judgment of Banumathi, J.
2008 (11) SCR 161 relied on. Para 15
1999 (2) Suppl. SCR 81 relied on. Para 34 F
2003 (5) Suppl. SCR 610 referred to. Para 26
(2014) 2 sec 401 referred to. Para 27
(1967) 2 SCR 347 followed. Para 40 G
1971 (1) SCR 1 relied on. Para 45
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 637 of2015.
H
372 SUPREME COURT REPORTS [2015] 7 S.C.R.
A From the Judgment and Order dated 11.02.2012 of the
Division Bench of the High Court of Karnataka at Bangalore
in W.A. No. 260 of 2015(GM-RES).
With
B CriminatAppeal No. 638 of 2015
T. R.Andhyarujina, R. Shunmuga Sundaram, Vikas Singh,
V. G. Pragasam, Prabu Ramasubramanian, Soumik Ghosal,
Deepika Kalia, Kapish Seth for the Appellant.
c Fali S. Nariman, K. T. S. Tulsi, 8. Kumar, M. N. Rao, C.
Manishanka'r, S. Senthil, Meha Aggarwal, Ashokan, Ashok K.
Mahajan, Anitha Shenoy, Vish ruti Vijay for the Respondents.
The Judgments & Order of the Court were delivered by
D
MADAN B. LOKUR, J. 1. Leave granted.
2. The question for consideration is whether Mr. G. Bhavani
Singh appointed as a Special Public Prosecutor in the trial of
E 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.
F 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,
G 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
H 24(1) of the Criminal Procedure Code, 1973 or a Special
K. ANBAZHAGAN v. STATE OF KARNATAKA 373
[MADAN B. LOKUR, J.]
Public Prosecutor appointed by the State of Karnataka under A
Section 24(8) of the said Code. c·
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 s
by Mr. K. Anbazhagan 1 are true that the accused persons used
their power and influence to manipulate and subveh 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 C
delivery. However, if the allegations made by ti_irri are not true,
even then it is extremely unfortunate that a crirrimal 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 D
be done to remedy the system, if not completely overhaul it,
and as this case graphically illustrates, the time starts NOW.
Background facts
E
5. The background facts relating to the appeals have been
pithily stated in K. Anbazhagan v. Superintendent of Policfil-
and the relevant facts are paraphrased for the purposes of
this decision.
F
6. From 1991to1996, 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 G
amassing assets disproportionate tc;> their known sources of
income, criminal proceedings were initiated against Ms.
Jayalalithaa and her associates. Special Courts were
' Mr. Anbazhagan is the General Secretary of the DMK, a pv\:~J party
2
c2004) 3 sec 767 H
374 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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
B 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
C 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
o 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
E 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
F 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 21s1
G February, 2002 Ms. Jayalalithaa was declared elected and
she was sworn in as the Chief Minister of Tamil Nadu on 2nd
3 J. Jayalalitha v. Union of India, (1999) 5 SCC 138
H ' B.R. Kapur v. State of Tamil Nadu, Al R 2001 SC 3435
K.ANBAZHAGAN v. STATEOF KARNATAKA 375
[MADAN B. LOKUR, J.]
March, 2002. With the change in government, it appears that A
three Public Prosecutors connected with CC No. ·, 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 B
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 C
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 D
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. E
Jayalalithaa was dispensed with during her examination under
Section 313 of the Code of Criminal Procedure Code, 1~73
(for short 'the Code') and instead a questionnaire was sent
to her and her reply to the questionnaire was sent to the court F
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. G
Anbazhagan moved transfer petitions in this court under
Section 406 of the Code seeking transfer of CC No.7of1997
and CC No. 2 of 2001 pending in the Court of the Xl 1h
Additional Sessions Judge (Special Court No.1 ), Chennai to H
376 SUPREME COURT REPORTS [2015) 7 S.C.R.
A 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.
B 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.
c 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
D
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
E 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
F 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
G 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.
H • (2004) 3 sec 767
K. ANBAZHAGAN v. STATE OF KARNATAKA 377
[MADAN B. LOKUR, J.]
likelihood of failure of justice and there was a strong i11drcation A
that the process of justice was beil1f}subverted. Accordingly,
this court transferred the prosecution being CC No.7of1997
and CC No. 2 of 2001 pending in the court of the Xl1h Additional
Sessions Judge (Special Court No.1) Chennai from Tamil Nadu
to Karnataka with the following directions given in paragraph B
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, C
1988 to whom CC No. 7of1997 and CC No. 2 of 2001
pending on the file of the XlthAdditional 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. D
(b) As the matter is pending ,sJnce 1997 the State of
Karnataka shall appoint a Special Judge within a month
from the date of receipt of this order and the trial befor~
the Special Judge shall commence as soon as possible E
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 F
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 G
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 H
378 SUPREME COURT REPORTS [2015] 7 S.C.R.
·A 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.
B
(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
c 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
D perjury to be taken against some or all such witnesses.
Any such application(~) will be undoubtedly considered
on its merit(s). ·•
(g) The State of Tamil Nadu shall ensure that all
E 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.
F
(h) In case any witness asks for protection, the State of
Karnataka shall provide protection to that witness.
. ·'
(1) The Special Judge shall after completion of evidence
put to all the accus89 all relevant evidence and documents
G 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.
H
K. ANBAZHAGAN v. STATE OF KARNATAKA 379
[MADAN B. LOKUR, J.]
14. The directions that are of primary concern are A
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, B
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.
c
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 D
Mr. B.V. Acharya as a Public Prosecutor reads as follows:
NOTIFICATION
In obedience of the judgment dated 18.11.2003 passed E
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, F
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 1,977 Sri B.V. Acharya,
Senior Advocate and former Advocate General of G
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 Xlth Additional Sessions Judge, (Special
Court No.1 ), Chennai, regarding trial of Ms. Jayalalitha H
380 SUPREME COURT REPORTS [2015) 7 S.C.R.
A 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.
8 Sd/-
(Chikkahanumanthaiah)
Under Secretary to Government,
(Administration-1) Law Department
c 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 2"d February,
0 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
7 The relevant portions of Section 24 of the Code read as follows:
E 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
F 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.
G (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
H Public Prosecutor, as the case may be, for another district.
K. ANBAZHAGAN v. STATE OF KARNATAKA 381
[MADAN B. LOKUR, J.]
Law Officers (Appointment and Conditions of Service) Rules, A
1977. 8 The notification appointing Mr. Bhavani Singh reads
as follows:-
NOTIFICATION
8
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 C
conferred by Sub-section (8) of Section 24 of the Code
(4) to (7) xxx xxx xxx
(8) The Central Government or the State Government may appoint, for the D
purposes of any case or class of cases, a person who has been in practice
as an advocate for not less than ten year; 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. E
(9) )()()( )()()( )()()(
• 30. Special Counsels:-
Subject to these rules the Government may appoint any advocate as a Special F
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 Slate 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 G
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 pe such as may be
decided by Government in each case having regard to the nature of the case. H
382 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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,
B House No.746, Srinidhi, Kadugodi, White Field Railway
Station, Bangalore-560067, is appointed as Special
Pu°blic 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
c file of XXXVl 1h 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
D this case.
By order and in the name of the Governor of
Karnataka.
E (K. Narayana)
Deputy Secretary to Government (Admn-1)
Law, Justice and Human Rights Department.
F 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 131h August, 2013 under
Section 301 (2) of the Code requesting for permission to
G assist the Special Public Prosecutor by making oral
On transfer of the case from Tamil Nadu to Karnataka, it was renumbered
from CC No.7 of 19~7 to Special CC No.208 of 2004. We are not concerned
H with CC No.2 of 2001.
K. ANBAZHAGAN v. STATE OF KARNATAKA 383
[MADAN B. LOKUR, J.]
submissions on the merits of the case. 10 The application A
was partly allowed by the Special Court by an order dated
21•1 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 191h May, 2014 Mr. Anbazhagan filed elaborate B
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 C
Karnataka and to the Chief Jt.Jstice 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. D
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 23'd August, 2013 challenging the
appointment of Mr. Bhavani Singh as the Special Public E
Prosecutor and also praying that some other eminent
0
' 301. Appearance by Public Prosecutors.-(1) The Public
Prosecutor or Assistant Public Prosecutor in charge of a case may appear
F
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 G
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 :ifter the evidence is closed in the case.
H
384 SUPREME COURT REPORTS (2015] 7 S.C.R.
A 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
B 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.
C 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
D informed this court on 6th September, 2013 thatthe impugned
notification dated 26th August, 2013 would be withdrawn with
a view to consultthe Chief Justice of the Kamataka High Court.
Consequently, the writ petition was dismissed as having
become infructuous.
E
22. Soon thereafter, several developments occurred in
quick succession. On 1Oth 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
F 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 1Oth
September, 2013. This court issued notice in the writ petition,
returnable in ten days and also passed an interim order staying
G the operation of the letter dated 10th September, 2013.
23. The State of Kamataka then consulted the Chief Justice
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
H subsequent events.
K. ANBAZHAGAN v. STATE OF KARNATAKA 385
[MADAN 8. LOKUR, J.]
of the Karnataka High Court regarding the appointment of Mr. A
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 B
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 C
W.P. (Crl.) No.166 of2013 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 o
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 ma/a fide and not sustainable in the eyes of the law and
was accordingly quashed. The decision of this court is reported E
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. F
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 G
given by Mr. Anbazhagan to the Special Courton 19th May,
2014. . II
28. At this stage, it is necessary to make ~digression for
12 (2014) 2 sec 401 H
~
386 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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 transferreq to Karnataka, and in terms of the
B decision of this Court rendered in Anbazhagan 13 particularly
paragraph 34(c) thereof, Tamil Nadu had no further say in
matters relatiflg 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
C 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
D 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
E 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 2004. of
F 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:
G "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
,, (2004) 3 sec 767
H 1
• (2008)10 sec 180
K. ANBAZHAGAN v. STATE OF KARNATAKA 387
[MADAN B. LOKUR, J.]
in a different State to which the case has been transferred.
. A
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: B
"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 c
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 o
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." 16 E
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. F
I I ~"
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
G
33. I dare say that the facts of these appeals clearly suggest
..........
15
Paragraph 12 of the judgment
1
• Paragraph 13 of the judgment
17
Paragraph 15 of the judgment H
388 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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
B
[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
c 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 291h September, 2014. Since
0
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,
E as it were.
36. On the other hand, Tamil Nadu acted with remarkable
alacrity and on 29 1h September, 2014 the Principal Secretary
to the Government of Tamil Nadu passed an order authorizing
F 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
G accused persons. The order passed by the Principal Secretary
reads as follows:-
ORDER
H 18
Paragraph 18 of the judgment
K. ANBAZHAGAN v. STATE OF KARNATAKA 389
[MADAN B. LOKUR, J.)
The Director, Vigilance and Anti-Corruption, Chennai, in A
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, 361h Additional City Civil &
Sessions Court, Bengaluru, may be authorized to appear B
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.
c
2. The Government after careful examination, have
decided to authorize the Director, Vigilance and Anti-
Corruption, Chennai to engage the services ofThiru G.
Bhavani Singh, Special Public Prosecutor to appear
before the Hon'ble Court of Karnataka, Bengaluru on D
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.
E
(By order of the Governor)
Jatindra Nath Swain
Principal Secretary to Government" F
~
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 301h September, 2014 Mr. Bhavani
Singh informed the court that he was appointed by the State G
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 1•1 October, 2014 for the purposes ofgrantorrefusal H
390 SUPREME COURT REPORTS [2015) 7 S.C.R
A 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,
B 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
C 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 181h December, 2014 and it was
directed that the criminal appeals pending in the Karnataka
D 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
E
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
F
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 ir. view the peculiar facts of the case, we request
G the learned Chief Justice of High Court of Karnataka to
constitute a Special Bench on the date of reopening of
19 Selvi J. Jayalalithaa v. State, MANU/KA/2704/2014, ILR 2014 Karnataka
H 5696
K. ANBAZHAGAN v. STATE OF KARNATAKA 391
[MADAN B. LOKUR, J.]
the High Court for hearing of the appeals exclusively on A
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. B
Call these special leave petitions on 17.04.2015."
40. Thereafter, the criminal appeals came up for hearing
o*n 2"d/51h January, 2015 in the Karnataka High Court before a
learned Single Judge. C
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 D
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 · E
representation dated 24 1h December, 2014 to the Chief
Secretary to the Government of Karnataka to immeqiately
appoint a senior lawyer practicing in the Karnataka High Court
as the Special Public Prosecutor to contest the appeals filed F
by the accused persons. However, since he received no
response to his representi;ition, 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 G
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
H
392 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 42. After hearing learned counsels for the parties, the
learned Single Judge, by his judgment and order dated 191h
January, 2015 disposed ofW.P. No. 742 of2015. 20 It was held
that the directions issued by this court in Anbazhagan21 were
confined to the procedure to be followed in the trial. It was noted
B 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
C 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
0
observations:
"To hazard a guess, the indication is thatthe proceedings
in entirety, till the same attains finality, shall be taken to
its logical conclusion by the State of Karnataka. In any
E 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,
F
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],
G 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
2o MANU/KN0125/2015
H 21
c2004) 3 sec 767
K.ANBAZHAGAN v. STATE OF KARNATAKA 393
[MADAN B. LOKUR, J.]
directed by the Honourable Supreme Court to be A
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 eitherforthe State Government of B
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 ~fa Special
Public Prosecutor and an assistant or assistants, if any,
to represent the State of Karnataka." C
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:
D
"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 E
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.
F
. 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 G
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, H
394 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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)
8
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
C 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 Feb'ruary,
2015. 22 This decision is under challenge in this court.
o 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.
E 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
F 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
G 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
H 22
MANU/KA/0386/2015
K.ANBAZHAGAN v. STATE OF KARNATAKA 395
[MADAN B. LOKUR, J.]
Mr. Bhavani Sinqh's appeara:ice in the High Court in the A
pending appeals filed by the accused persons was
unauthorized.
46. Karnataka appeared through itsAdvocate General and
the submissions made are best expressed in the words of ~he B
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 c
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 D
[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 E
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 F
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 G
appeals before the High Court. As the matter is sub-
judice, they have not taken any further action in this
matter. "23 (emphasis supplied)
23 Paragraph 17 H
396 SUPREME COURT REPORTS [2015) 7 S.C.R.
A 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
B
submitted that if Mr. Anbazhagan had any grievance with the
order passed on 29 1h September, 2014 by the Principal
Secretary to the Government of Tamil Nadu authorizing the
Directorate of Vigilance and Anti-Corruption, Chennai to
c 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
D 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
E 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
F 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
G transfer passed by the Apex Court does not specify
who should appoint the Public Prosecutor to conduct a
particular cas~~.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
H
K. ANBAZHAGAN v. STATE OF KARNATAKA 397
[MADAN B. LOKUR, J.]
appoint the Public Prosecutor, then appointment should A
be made in accordance with such direction."24
49. The High Court then concluded thatthe order passed
on 29th September, 2014 by the Principal Secretary to the
Government of Tamil Nadu was non est and was not required B
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 c
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 D
order passed by the State of Tamil Nadu authorizing the
deleted third respondent herein to engage the services
of the fifth respondent is w~houtauthority 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 E
•
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 tne
Code in respect of a case pending in the transferee Court, F
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 G
Special Public Prosecutor in Special CC No. 208 of 2004 Mr.
Bhavani Singh could appear on behalf of the prosecution in
2• Paragraph 27
25
Paragraph 31 H
398 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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 :ook at the Act as a whole
B 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
c 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
D 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
E 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)
F 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
G 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
H
K. ANBAZHAGAN v. STATE OF KARNATAKA 399
[MADAN B. LOKUR, J.]
harmonious reading of these provisions makes it clear A
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 B
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 C
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 D
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 E
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.l.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 F
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 G
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
26 Paragraphs 4 7 and 48 ·
H
400 SUPREME COURT REPORTS [2015J 7 S.C.R.
A 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
B 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 iri which that case is under inquiry, trial or appeal.
Therefore, the words "any Court" used in this Section enables
C 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,
0
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
E 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 CourttotheextentthatTamil Nadu had no
F 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
G 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
H 27
Paragraph 55
K.ANBAZHAGAN v. STATE OF KARNATAKA 401
[MADAN B. LOKUR, J.]
conviction of the accused persons. A
53. It is under these circumstances that this appeal is
before this court.
Discussion
B
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 C
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 D
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 E
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 F
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 G
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. 536812008 (Vikas Yadav v. State of U.P.) decided
on 22"' October, 2008. H
402 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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
B 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
C 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
D decision in CC No.7of1997. 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
E 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
F 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
G 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
H 29 State v. Vikas Yadav, MANU/DE/1673/2008
"K. ANBAZHAGAN v. STATE OF KARNATAKA 403
[MADAN B. LOKUR, J.]
and no one has disagreed with the view that Tamil Nadu could A
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 s
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 C
to cqnduct 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 o
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 E
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 F
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. G
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 H
404 SUPREME COURT REPORTS [2015] 7 S.C.R.
A earlier occasion makes it quite clear that this court was
concerned only with the trial of CC No. 7of1997 (and CC No.2
of 2001 with which this court is not concernec:t). 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
B 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
C 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.
0
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.
E
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
F 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.
G 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
H as the Special Public Prosecutor came to an end on the
K.ANBAZHAGAN v. STATE OF KARNATAKA 405
[MADAN B. LOKUR, J.]
conclusion of the trial before the Special Court. A
· 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. B
Karnataka could certainly have done so either through a
composite notification for the trial and possible §!ppeal(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 C
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 D
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 E
as a Special Public Prosecutor reflect the views o..f:this court?
The contents of the notification dated 2"d 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 F
the notification may be ignored in view of the provisions of
Section 301(1) of the Code. I do not think thatthe contents of
the appointment notification can be simply ignored. or
overlooked, as suggested by learned counsel for the accused
persons. G
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 up6\, transfer H
406 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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,
B 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
C 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,
D 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
E 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
F 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.
G 68. The language employed in the notification dated 2"d
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.
H Jayalalitha and others) pending on the file of XXXVllh Additional
K. ANBAZHAGAN v. STATE OF KARNATAKA 407
[MADAN B. LOKUR, J.]
City Civil & Sessions Court (Special Court), Bangalore". There A
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 B
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.
c
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, D
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 E
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.
F
71. Section 24 of the Code is a part of Chapter 11 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.
G
72. Section 24(1) of the Code provides for the appointment
of a Public Prosecutor for a High Court. The authority to appoint
30 "Public Prosecutor" means any person appointed under section 24, and
includes any person acting under the directions of a public prosecutor. H
408 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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
G 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.
H Really speaking, that should conclude the debate.
K. ANBAZHAGAN v. STATE OF KARNATAKA 409
[MADAN B. LOKUR, J.]
76. The next question is whether Mr. Bhavani Singh can A
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 B
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 C
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 D
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
31
25. Assistant Public Prosecutors - (1) The State Government shall appoint · E
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 F
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 G
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 H
(b) if he is below the rank of Inspector.
410 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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
B 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
C 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
D Section does not concern itself with Assistant Public
Prosecutors.
32
25-A. Directorate of Prosecution.-(1) The State Government may establish
E a Directorate of Prosecution consisting of a Director of Prosecution and as
many Deputy Directors of Prosecution as ii thinks fit.
(2), (3) and (4) xxx xxx xxx
(5) Every Public Prosecutor, Additional Public Prosecutor and Special Public
F 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
G 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.
H (7) and (8) xxx xxx xxx
K.ANBAZHAGAN v. STATE OF KARNATAKA 411
[MADAN B. LOKUR, J.]
80. Section 25-A(5) of the Code provides that a Public A
Prosecutor and a Specia! 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. ....,
B
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. C
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] D
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 E
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 entit.led to F
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 G
charge of a case in the District Courts [the case of the accus.~d
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.
H
85. If the argument of learned counsel for the accused
412 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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
B 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
C 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.
D 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,
E 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
F 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
G 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
H persons applied for suspension of their sentence. Written
K. ANBAZHAGAN v. STATE OF KARNATAKA 413
[MADAN B. LOKUR, J.]
objections were filed opposing the suspension of the sentence. A
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: ~ B
"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 C
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
..,..., D
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 E
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 F
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-Aand 301(1) of G
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
33
Selvi J. Jayalalithaa v. State, MANU/KA/2704/2014, ILR 2014 Karnataka H
5696
414 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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
B 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.
C 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'
0
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
E 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
F 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
G maintains a court or district specific character as well.
91. The decision rendered by the Constitution Bench in
State of Punjab v. Sufjit Singh 34 is not quite apposite.
[Though that decision was rendered under the Code of
H ,.. [1967] 2 SCR 347
K.ANBAZHAGAN v. STATE OF KARNATAKA 415
[MADAN B. LOKUR, J.]
Criminal Procedure, 1898 the relevant sections under A
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 s
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". C
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 D
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 E
its conclusion that such a Public Prosecutor is not entitled to
file an application for withdrawal. It will be seen thatthis 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. F
93. The Constitution Bench referred to what would be an
anom~lous 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 G
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 H
416 SUPREME COURT REPORTS [2015] 7S.C.R.
A 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 P\,lblic 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
B 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
C 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
D in charge of a particular case and is actually conducti'ng 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
E 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
F Sectior:i 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
G 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
H appointed as a Special Public Prosecutor for a specific case
K. ANBAZHAGAN v. STATE OF KARNATAKA 417
[MADAN B. LOKUR, J.]
pertaining to the accused persons before the Special Court A
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 B
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.
c
97. This interpretation of Sections24, 25, 25-Aand 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 D
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 E
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 F
conviction of the accused persons, there had been no further
consultations between the State Government of Kamataka and
the Chief Justice of the Karnataka High Court in makirJg any
appointment of a Special Public Prosecutor.
G
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 tha\ the obligation to appoint was only during H
418 SUPREME COURT REPORTS [2015) 7 S.C.R.
A 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
B 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
C 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.
o 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
E 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
F 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".
.
G 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
H inaction - if action had been taken, it could be misconstrued
K.ANBAZHAGAN v. STATE OF KARNATAKA 419
[MADAN B. LOKUR, J.]
as interfering in a case in which it had no concern. That this A
'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 B
the criminal appeals rather than rushing in with the ill-advised
order dated 29th September, 2014. That Tamil Nadu soughtto
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 C
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 D
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 E
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 F
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 G
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 H
that a Special Public Prosecutor can be appointed in a case
420 SUPREME COURT REPORTS [2015) 7 S.C.R.
A 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 Pradesh35 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
B which Mansoorwas 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
C 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
0
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
E 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
F 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.
G 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.
H •• (1971) 2 sec 369
K. ANBAZHAGAN v. STATE OF KARNATAKA 421
[MADAN 8. LOKUR, J.]
Otherwise, as pointed out above, in a given situation, an A
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. B
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 C
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 D
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 E
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 F
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 G
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 H
422 SUPREME COURT REPORTS· [2015] 7 S.C.R.
A 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
B 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
C 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
D 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
E · 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
F 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,
G 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.
H Reference was made to Gokaraju Rangaraju v. State of
K. ANBAZHAGAN v. STATE OF KARNATAKA 423
[MADAN B. LOKUR, J.]
Andhra Prades 36 wherein Pu/in Behari v. King Emperof37 A
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." B
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 C
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 D
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, as.suming Gokaraju Rangaraju is also E
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 Gok,araju F
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 G
and may later be found to be defective. Whatever be the
defect of his title to the office, judgments pronounced by
3• (1981) 3 sec 132
37
(1912) 15 Cal L.J 517, 574 H
424 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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
B 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
c 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
D
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
E 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
F 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
G raised by Mr. Anbazhagan only on 241h 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.
H
115. The submission that Mr. Bhavar' Singh has
K.ANBAZHAGAN v. STATE OF KARNATAKA 425
[MADAN B. LOKUR, J.]
impeccable credentials and the attempt of Mr. Anbazhagan is A
to somehow or the other get rid of him as the Special Public
Prosecutor is not relevant since his competence is not in
question. lt is true that this court in Jayala/ithaa38 had observed
that "no issue has been raised by the respondents [including
Mr. Anbazhagan] in respect of the eligibility, suitability or B
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, C
as the appellant submitted that, he would not go into the
allegations made against the 51h respondent [Mr. Bhavani
Singh], but confine his submissions to the legal issues."
Learned counsel for the accused persons submits that in the
0
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 E
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 F
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 G
said can be or should be construed as doubting the credentials
of Mr. Bhavani Singh. 116. Learned counsel submits that Mr.
38 (2014) 2 sec 401 paragraph 14
39 Paragraph 38 of the judgment
H
426 SUPREME COURT REPORTS [2015) 7 S.C.R.
A 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
B 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.
C 117. In K. Anbazhagan v. The Superintendent of
Police40 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
D to have another Publi~ 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
E 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
F 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
G 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
H •0 MANU/KA/2530/2011 = 2012 (4) KAR LJ 635
K.Af\1BAZHAGAN v. STATE OF KARNATAKA 427
[MADAN B. LOKUR, J.]
cannot, for more than one reason, as indicated above. A
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 ca~e. B
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 C
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 Police41 but in that
case, the Special Public Prosecutor was shown as the second
respondent and therefore Mr. Acharya was entitled to appear D
in that case being a respondent therein.
Conclusion
119. For the reasons given, I hold that Mr. Bhavani Singh E
is not authorized to represent the prosecution in the Kamataka
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 F
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 G
Prosecutor appointed under Section 24(1) of the Code.
However, if the State of Kamataka decides to appoint a Special
Public Prosecutor under Section 24(8) of the Code, it must do
41
MANU/KA/2530/2011 H
428 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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
B 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
c 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.
0
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
5t11 February, 2015 whereby I.A. No.1 filed under Section 301 (2)
E of the Code in Criminal Appeal Nos. 835-838 of 2014 was
dismissed by the Hign 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
F 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.
G
126. In the order under appeal, the learned Single Judge
framed the issues arising out of the application as follows:-
1. Whether the applicant/intervener can be permitted to
H intervene as a party/respondent in the above appeals?
K. ANBAZHAGAN v. STATE OF KARNATAKA 429
2. Whether the intervener can be permitted to assist the A
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. s
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. C
128. In Haradhan Sen v. State42 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 D
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 E
appeal and it is dismissed.
R. BANUMATHI, J. 1 Leave granted.
2. I have had the benefit of going through the draft
judgment proposed by His Lordship Justice Madan B. Lokur. F
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 G
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 H
42 2004 Crl. L. J. 3881
430 SUPREME COURT REPORTS [2015) 7S.C.R.
A 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 offifth respondent
B 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.
c
4. The following questions arise for consideration in this
appeal:
(i) Whether the fifth respondent-Mr. Bhavani Singh
D 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
E 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
F prosecution in the appeal stage by filing the written
submission?
5. Shorn of details of chequered history of the case,
brieffacts giving rise to these appeals are as follows:-A
G 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
H Secretary of Dravida Munnetra Kazhagam(DMK) and a
K.ANBAZHAGAN v. STATE OF KARNATAKA 431
[R. BANUMATHI, J]
political opponent of accused No.1. The appellant approached A
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 B
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 C
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, ttie petitions
are allowed. CC No. 7 of 1997 and CC No. 2 of 2001 D
pending on the file of the Xlth Additional Sessions
Judge (Special Court No. 1), Chennai in the State
of Tamil Nadu shall stand transferred with the
following directions:
E
(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 F
Xlth 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.
G
(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 H
432 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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 crimi-
B nal 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 Pub-
lie Prosecutor and the Assistant shall be paid by
c the State of Karnataka who will thereafter be en-
titled to get the same reimbursed from the State of
Tamil Na du. The Public Prosecutor to be appointed
within six weeks from today.
D (d) The investigating agency is directed to render all
assistance to the Public Prosecutor and his As-
sistant.
(e) The Special Judge so appointed to proceed with
E 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
F
resiled from their previous statement, may be
again recalled. The Public Prosecutor would be at
liberty to apply to the court to have these wit-
nesses declared hostile and to seek permission
G 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
H undoubtedly considered on its merit(s).
K. ANBAZHAGAN v. STATE OF KARNATAKA 433
[R. BANUMATHI, J]
(g) The State of Tamil Nadu shall ensure that all docu- A
ments and records are forthwith transferred to the
Special Court on its constitution. The State of Tamil
Nadu shall also ensure that the witnesses are pro-
duced before the Special Court whenever they are
required to attend that court. B
(h) In case any witness asks for protection, the State
of Karnataka shall provide protection to that wit-
ness.
c
(1) 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 D
court, on the day they are called upon to do so, for
answering questions under Section 313 of the
Criminal Procedure Code."
6. Pursuantto the above direction as in Para 34(c), after E
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 F
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 G
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 conside~ation
by the Chief Justice. The then Acting Chief Justice of the
Karnataka High Court on 29.01.2013 recommended the name H
434 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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
B 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
C 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,
D 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
KarnatakaHigh Court for withdrawing the appointment of Mr.
E 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
F 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
G taking note of the facts of the case, in J. Jayalalithaa And Ors.
vs. State of Kamataka & 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
H
K. ANBAZHAGAN v. STATE OF KARNATAKA 435
[R. BANUMATHI, J]
convicted the accused No.1 under Section 13(1)(e) read with A
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 B
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 C
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 D
an order on 18.12.2014 requesting the Chief Justice of
Karnataka High Cpurt 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 E
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 F
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 G
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 &AC'), 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 H
436 SUPREME COURT REPORTS [2015] 7 S.C.R.
A in Criminal Appeal Nos.835-838/2014 contending thatthefifth
respondent is not a Special Public Prosecutor appointed by
the Kamataka 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
B 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
C 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
D 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
E 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.
F 12. Being aggrieved, the appellant has preferred appeal
before the Division Bench of High Court of Karnataka being
WritAppeal 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
G 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
H observing that the appellant has no statutory right to intervene
in the criminal appeal proceedings to assist the prosecution
K. ANBAZHAGAN v. STATE OF KARNATAKA 437
[R. BANUMATHI, J]
in the appeals. In these appeals, appellant has challenged the A
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 B
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 C
Tamil Nadu passed the order authorizing D.V &AC 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. D
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 E
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.
F
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 G
@ 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 H
438 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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
B 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
c 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
D 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.
E 15. The purpose of transfer of the criminal case from
one State to another is to ensure fair trial tc 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
F 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
G 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
H Prosecutor or a Special Public Prosecutor under
K.ANBAZHAGAN v. STATE OF KARNATAKA 439
[R. BANUMATHI, J]
Section 24 CrPC to conduct the prosecution and A
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 B
Government to appoint Public Prosecutor,
Additional Public Prosecutor or Special Publk
Prosecutor.
18. However, we make it clear that the State of C
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 D
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 E
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 F
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 G
had no jurisdiction to appoint Special Public Prosecutor to
represent D.V &AC 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 H
notification appointing Mr. B.V. Acharya and the subsequent
440 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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
B eye of law and held as under:-
" ..... Therefore, the State of Tamil Na du has no
jurisdiction to appoint a Public Prosecutor in the
Special Court nor in the appeals which are pending
c 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
D 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
E 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."
F 17. As per the decision in Jayendra Saraswati Swamigal's
case( supra), and the decision in (2004) 3 sec 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
G Special Public Prosecutor 1s 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.
H 18. Whether, fifth respondent can continue as the
K. ANBAZHAGAN v. STATE OF KARNATAKA 441
[R. BANUMATHI, J]
Special Public Prosecutor in the criminal appeals b~fore A
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 B
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, C
Special Court, Bangalore. It was submitted that in the appellate
court, the appointment of prosecu~or 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.
0
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 Spe(fial CC E
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.PC. has no application in the present case and it does
not give a right to any Public Prosecutor or Assistant Public F
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 G
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. H
442 SUPREME COURT REPORTS [2015) 7 S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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
G 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
H 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
K.ANBAZHAGAN v. STATE OF KARNATAKA 443
[R. BANUMATHI, J]
authority to continue to appear in the criminal appeals. A
22. We have heard Mr. K.T.S. Tulsi, learned Senior Counsel
appearing for otr.er accused who reiterated the submissions
of Mr. Nariman and also placed reliance on catena of
judgments. B
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 C
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
0
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 E
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 F
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 G
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 H
district, or local area.
444 SUPREME COURT REPORTS [2015] 7 S.C.R.
A (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:
B 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.
c
(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 Pub1ic
o Prosecutors for the district.
(5) No person shall be appointed by the State
Government as the Public Prosecutor or Additional
Public Prot~cutor for the district unless his name
E 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
F 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.
G
(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
H as a Special Public Prosecutor:
K. ANBAZHAGAN v. STATE OF KARNATAKA 445
[R. BANUMATHI, J]
Provided that the Court may permit the victim to A
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 B
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 C
whatever name called, shall be deemed to be the
period during which such person has been in
practice as an advocate."
'r;
25. Analysis of Section 24 Cr.P.C. would show that for D
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 1-jigh 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 E
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 F
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 ~o 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 G
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 H
of a Public Prosecutor 'to a Co.urt' or a 'District or local area'
446 SUPREME COURT REPORTS (2015] 7 S.C.R.
A 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
B Karnataka was to appoint a Senior Lawyer having experience
in criminal trials as a Public Prose~utor 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
C 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
D and issued a notification appointing Mr. Bhavani Singh as a
Special Public Prosecutor which reads as under:-
"GOVERNMENTOF KARNATAKA
E 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
F
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
G Section 24 of the Code of Criminal Procedure, 1973
(Central Act No.2of1974) as amended by the Code of
Criminal Procedure (AmendmentAct 1978) and Rule 30
of the Karnataka Law Officers (Appointment and
Conditions of service) Rules, 1977 Sri G Bhavani Singh,
H Senior Advocate, House No. 746, Srinidhi, Kadugodi,
K.ANBAZHAGAN v. STATE OF KARNATAKA 447
[R. BANUMATHI, J]
White Field Railway Station, Bangalore-560067, is A
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 XXXVllh Additional City Civil
& Sessions Court, (Special Court), Bangalore in B
pursuance.
Further, Sri Sandesh J. Chouta, Advocate, is continued
to assist Sri G. Bhavani Singh, Special Public Prosecutor,
in this case. C
By Order and in the name of the Governor of Karnataka.
(K. Narayana)
Deputy Secretary to Government (Admn-1) D
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 E
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 F
Ors. vs. State of Kamataka And Ors., (2014) 2 SCC 401.
Withdrawal of appointment of Mr. Bhavani Singh by the
Government of Kamataka 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 G
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 H
448 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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.,
B 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
C 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
D 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
E 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:-
F "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.
G
(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
H prosecution, and the pleader so instructed shall act
K.ANBAZHAGAN v. STATE OF KARNATAKA 449
[R. BANUMATHI, J]
therein under the directions of the Public A
Prosecutor or Assistant Public Prosecutor, and
may, with the permission of the Court, submit
written argument after the evidence is closed in the
case".
B
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. C
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 D
requirement of written authority to abpear 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 E
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 F
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 rol~ of Public G
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 H
'conduct a case' or 'class of cases'. If the construction of the
450 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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.
B 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
C 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
D 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
E and it is in the light of these specific roles, Section 301 Cr.P.C.
oughtto 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
F
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 ChandAndAnr., (1999) 7 SCC 467, this
G 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
H Code, the application of which is confined to
K.ANBAZHAGAN v. STATE OF KARNATAKA 451
[R. BANUMATHI, J]
Magistrate Courts, this particular section is A
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 B
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 C
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 D
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." E
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:-
F
"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 G
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 H
the case is under inquiry, trial or appeal, it only
452 SUPREME COURT REPORTS [2015) 7 S.C.R.
A means once he is entrusted with a case, he is put
in charge of the case till that said case ultimately
reaches a ~inality either by way of discharge,
conviction or by· way of acquittal, he is entitled to
appear and plead without any written authority. A
B 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
c 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
D
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
E 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."
F 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
G 301 Cr.P.C.:
For proper appreciation of this aspect, let us compare
Section 301 of the New Code vis-a-vis Section 493 of the old
Code.
H
K.ANBAZHAGAN v. STATE OF KARNATAKA 453
[R. BANUMATHI, J)
Section 301 Section493 A
Appearance IJ'f Public Public Prosecutor may plead in all
Prosecutors.- Courts in cases under his charge,
1. The Plblic Prooecutor or Pleaders privately instructed to be
Ag;;istant Pul:.lic Proserucr in under his direction.-
charge ci a case rray appear and The Pul:.lic Pro~cutor rray appear
pleoo witrout any written authority and plead wthout any witten B
before any Cant in which that case authcrity before any Court in which
is under incpJiry, trial er appeal. any case of Wiich he has charge is
2. If any such case any privcte under irquiry, trial or appeal, and if
person instnds a pleader to any privcte pers0n instructs a
prooecute any person in any Court, pleader to prosecute in any Court
the Pul:.lic Prooecutor or Assisant any person in any such case, the c
Pul:.lic Prosocutor in charge of the Pubfic Prosecutcr shall cmduct the
case shall caiduct the prosecution, prosecution, and the pleader so
ard the pleader so instnda:I shall instructed shall act therein, under tis
act therein under the diroctions ci di roctions.
the Pul:.lic Prooecutor or Assisant
Pul:.lic Prosecutor, ard rray, with the D
perrrission ci the Court, submit
witten arguments after the elidence
is closed in the case.
A close look at both sections would show that Section 301
(1) of the new Code and Section 493 ofthe old Code are similar E
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 F
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', G
'Withdrawal from Prosecution and 'Permission to
Conduct Prosecution' were put consecutively under
Sections 492, 493, 494 & 495 respectively, in Chapter
XXXVlll -'OfThe Public Prosecutor' contained in the Part
IX of the Code titled as Supplementary Provisions;(b) H
454 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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 11-
B '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-
c 'General Provisions as to inquirier. 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
D 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.
E
38. Whether Section 301 Cr.P.C. is only procedural in
nature: Section 301 has been placed underChapterXXIVof
the Code which is titled as 'General provisions as to inquiries
and trials'. Contention of learned Senior Counsel for the
F 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
G 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
H Cr.P.C. for continuance of his authority to appear in the appeal.
K. ANBAZHAGAN v. STATE OF KARNATAKA 455
[R. BANUMATHI, J]
39. In my considered view, the said argument is m1sf!1aced. A
Though Chapter XXIV deals with the 'General prov,1~,ons 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 B
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 C
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 D
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 ~ature
of Section 301 (2) Cr.P.C. has been considered and upheld by E
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 347while dealing with Section 493 of the
old Code which is in pari materia 'Jl!ith Section 301 of the new F
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 G
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 H
456 SUPREME COURT REPORTS [2015] 7 S.C.R.
A prosecution and the pleader appearing in that case
for the private person is only to act under his
instructions ... ". -
Though Chapter XX.IV deals with 'General provisions as
B 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 coutenwm is not in consonance with the scheme of the
Code. In my view, Section 301(1) Cr.P.C. gives substantive
C ·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
D 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
E 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
F 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.
G
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
H Public Prosecutor or a Special Public Prosecutor will be
K.ANBAZHAGAN v. STATE OF KARNATAKA 457
[R. BANUMATHI, J]
entitled to file an application for withdrawing from prosecution A
and observing that only the Public Prosecutor who is in charge
of a particular case will be entitle'd to file an application to
withdraw from the prosecution, this Court held as under:-
" ...... If any Public Prosecutor, who had nothing to B
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 C
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 D
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.
E
The reasonable interpretation to be placed u!fon 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 F
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 asl<' for withdrawal from
prosecution, under s. 494 of the Code." G
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 H
458 SUPREME COURT REPORTS [2015] 7 S.C.R.
A appointed under sub-sections (1), (2) and (3) of Section 24
Cr.PC. 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
B been contended by the learned Senior Counsel for the
appellant that the term 'case' is resticted 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
C 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
D 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
E 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.
F 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.
G The term 'case' has to be interpreted only contextually and no
universal rule can bt: 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
H various provisions of the Code. (vide Bhimappa Bassappa
Bhu Sannavarvs. Laxman Shivarayappa Samagouda & Ors.,
K. ANBAZHAGAN v. STATE OF KARNATAKA 459
[R. BANUMATHI, J]
(1970) 1 sec 665). A
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 B
'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' C
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 showthattheword 'case'has been distinctly
used by the Legislature in respect of trial. Similar distinction
between term 'case' and 'appeal' has been maintained under D
Section 406 and Section 409 Cr.P.C. Section 209 ofthe 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 if'. If we insert the word
'appeal' in place of word 'case', then such interpretation may E
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 F
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 G
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'.
H
460 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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
B 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.
c
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
D 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
E 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
F 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
G 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
H 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
K.ANBAZHAGAN v. STATE OF KARNATAKA 461
[R. BANUMATHI, J]
301(1) Cr.P.C. to include any court in which that case is under A
'inquiry, trial or appeal'. The Special Public Prosecutor, after
the trial is over, derives its authority~. 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 B
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 C
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.PC., D
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 E
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 F
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 conside.red
view, once Mr. Bhavani Singh was appointed as the Special
Public Prosecutor in charge of a case, even after end of the G
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 H
462 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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/
B 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
C 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
D 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
E Proceedings:
27.09.2014 - Case in Special Court in Special CC No. 208
2004 ended in conviction against the accused.
F 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.
G
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
H Special Public Prosecutor (SPP) was only till
K.ANBAZHAGAN v. STATE OF KARNATAKA 463
[R. BANUMATHI, J]
conclusion of trial. A
01.10.2014-Mr. Bhavani Singh (respondent No.5)filed Memo
of Appearance in Criminal Appeal Nos. 835- 38/
2014 and submitted statement of objections that
the accused should not be granted bail. ·B
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. c
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 D
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. E
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 F
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 G
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 H
464 SUPREME COURT REPORTS [2015] 7 S.C.R.
A was taken by the appellant or State of Kamataka 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
B is seen that the State of Karnataka had not chosen to intervene
raising objections for the authority of rvir. 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
C 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.
0
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
E on day-to-day basis and also fixed the period of three months
for disposal of the appeals. Mis::1 C:Jbly, 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
F 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
G 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
H recourse to the jurisdiction of this Court. On 7.01.2015,
appellant filed memo in the Criminal Appeal Nos. 835-838/
K. ANBAZHAGAN v. STATE OF KARNATAKA 465
[R. BANUMATHI, J]
2014 stating that respondent No.5- Mr. Bhavani Singh is not A
authorized to appear in Criminal Appeal Nos. 835-838/2014,
as the respondent No.5 has not been appointed by the State
Goverr.ment 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. B
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 C
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:
D
"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 E
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 F
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 G
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. H
466 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 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.
B 57. On 28.01.2015, appellant filed the WritAppeal 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
c 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
D 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
E
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
F 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 a~peals before the High Court. As
G 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
H continue in Criminal Appeals. The Division Bench observed
asunder:
K. ANBAZHAGAN v. STATE OF KARNATAKA 467
[R. BANUMATHI, J]
"In fact, what weighed with the learned Single A
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 B
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 C
Appeal, the State did not pursue the matter to this Court. What
the State did is that they took the shelter uf 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 D
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 E
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 F
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 G
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 H
Public Prosecutor by virtue of the provision of Section 24 (8)
468 SUPREME COURT REPORTS [2015) 7 S.C.R.
A 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
B 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
C and the Division Bench rightly dismissed tpe Writ Petition
No.742/2015 and WritAppeal No.260/2015 (GM-RES) and
the impugned judgment warrants no interference.
59. Criminal Appeal No. 637 arising out of S.L.P. (Crl.)
1632/2015: I hold that Mr. Bhavani Singh appointed as Special
D Public Prosecutor (SPP) under Section 24(8) Cr.PC., 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
E confirmed and the appeal is dismissed.
60. Criminal Appeal No ... 63812015 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
F appeal is dismissed.
ORDER
In view of difference of opinion, the matter is referred to
G a larger Bench.
The Registry is directed to place the matter before the
Hon'ble the Chief Justice of India for appropriate orders.
Kalpana K Tripathy Matter referred to
H Larger Bench.
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