Supreme Court of India
K. ANBAZHAGANversusSTATE OF KARNATAKAAND OTHERS
- Citation
- 2015 INSC 323
- Decided
- 27 April 2015
- Disposal
- Disposed off
- Bench
- DIPAK MISRA
Holding
Only the State of Karnataka could appoint a public prosecutor for the appeal; the Tamil Nadu appointment was invalid, but the appeal need not be reheard de novo.
Summary
The case arose from the transfer of a corruption trial involving J. Jayalalithaa from Tamil Nadu to Karnataka. Karnataka appointed Bhavani Singh as Special Public Prosecutor for the trial, but Tamil Nadu later attempted to authorize him to appear before the Karnataka High Court for the appeal. The Supreme Court held that only Karnataka, as the prosecuting agency after transfer, could appoint a prosecutor for the appeal; Tamil Nadu's appointment was void. The Court further ruled that a prosecutor appointed for trial does not automatically have authority to prosecute the appeal under Section 301(1) CrPC. However, the Court found no reason to order a fresh trial of the appeal despite the defective appointment, directing the appellate judge to consider the written submissions already filed. The appeal was therefore dismissed.
Issues considered
- The State of Tamil Nadu's authority to appoint a Special Public Prosecutor for the appeal in Karnataka.
- Whether a Special Public Prosecutor appointed for trial can automatically appear in the appellate court under Section 301(1) CrPC.
- The effect of an invalid appointment on the validity of the appeal proceedings and whether a de novo hearing is required.
- The interpretation of Sections 24(1), 24(8) and 301(1) of the Code of Criminal Procedure regarding jurisdiction of public prosecutors.
- The identity of the sole prosecuting agency after a case is transferred under Section 406 CrPC.
Legislation cited
- Code of Criminal Procedure, 1973s. 24, s. 24(8), s. 301(1)
- Indian Penal Code, 1860s. 1208
- Prevention of Corruption Act, 1988
Subjects
CrPCSection 24Section 301Public ProsecutorSpecial Public ProsecutorTransfer of criminal casePrevention of Corruption ActAppeal jurisdictionDe novo hearingState prosecution authority
Judgment
[2015) 7 S.C.R. 469
K. ANBAZHAGAN A
v.
STATE OF KARNATAKAAND OTHERS
(Criminal Appeal No.637 of 2015)
APRIL27, 2015 B
[DIPAK MISRA, R.K. AGRAWAL AND
PRAFULLA C. PANT, JJ.] . -'
Code of Criminal Procedure, 1973- ss.·24 and 301 -
Power of a State to appoint public prosecutor when case C
transfe"ed - Transfer of criminal case from State of Tamil
Nadu to State of Kamataka -Appointment of 4'.h respondent
as Special Public Prosecutor by State of Kamataka to
conduct the trial before Special Court in a specific case
0
pertaining to accused persons - Conviction of accused
persons - Appeal by accused persons before High Court of
Kamataka against their conviction - State of Tamil Nadu
appointing 4th respondent as Special Public Prosecutor to
appear before the Kam.ataka High Court to defend the cause E
of the State - Authority of 4th respondent to represent the
case of the prosecution in the High Court of Kamataka - Held:
State of Tamil Nadu had no authority to appoint the 4th
respondent, as the Public Prosecutor to argue the appeal -
State of Kamataka is the sole prosecuting agency and it was F
alone authorized to appoint the Public Prosecutor -
Appointment of 4th respondent as the Public Prosecutor for
the trial did not make him eligible to prosecute the appeal
on behalf of prosecuting agency before the High Court -
Though the appointment of 4th respondent is bad in law, yet G
no justification to direct for de novo hearing of the appeal, in
view of the duties of the appeflate Judge, in a case pertaining
to Prevention of Corruption Act, 1988. - Kamataka Law
469 H
470 SUPREME COURT REPORTS [2015] 7 S.C.R.
A Officers (Appointments and Conditions of Service) Rules
1977-r. 30.
Disposing of the appeal, the Court
HELD: 1.1 The State of Tamil Nadu had no authority
8
to appoint the 4th respondent, as the Public Prosecutor
to argue the appeal. It is the State of Karnataka which is
the sole prosecuting agency and it was alone authorized
to appoint the Public Prosecutor. The appointment of 4th
c respondent as the Public Prosecutor for the trial did not
make him eligible to prosecute the appeal on behalf of
prosecuting agency before the High Court. The
appointment of a Public Prosecutor, as envisaged under
Section 24(1) CrPC in the High Court is different than
o the appointment of a Public Prosecutor for the District
Courts; and that the Notification appointing the 4th
respondent did not enable him to represent the State of
Karnataka in appeal. Though the appointment of 4th
respondent is bad in law, yet there is no justification to
E direct for de novo hearing of the appeal, regard being
had to the duties of the appellate Judge, especially in a
case pertaining to the Prevention of Corruption Act, 1988.
The appellant as well as the State of Karnataka are
entitled to file their written note submissions within the
F framework; and the Appellate Judge, after receipt of the
judgment would peruse the same and be guided by the
observations made therein while deciding the appeal.
[Para 37] [510-C-H; 511-A-B]
G 1.2 Rule 30 of Karnataka Law Officers (Appointments
and Conditions of Service) Rules 1977 clarifies that if any
counsel is to be appointed for the purpose of an appeal,
the State Government may do so after consulting the
authorities mentioned therein. There is nothing on
H record that the 4th respondent was appointed to defend
K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 471
the prosecution in appeal in the High Court. The authority A
to appear before the High Court is fundamentally
founded on the interpretation of Section 301 CrPC.
[Paras 27, 28) [502-F-H]
1.3 Sections 24 (8) and 301 (1) CrPC when read B
together, needless to say, confers a right on the Public
Prosecutor who is in charge of a case to appear and
plead without having any written authority. He remains
and functions as the sole authority in charge of the case.
There can be no cavil over the same. The core question C
is, whether "in charge of the case" would inc!ude an
appeal arising out of the said case in the hierarchical
system. Section 24 (1) deals with the specific power of
the Government to appoint Public Prosecutor. Section
24(8) confers the power on the State Government to D
appoint a Special Public Prosecutor for any case or class
of cases. There can be a batch of cases under the
Prevention of Corruption Act against number of persons
arising out of different FIRs but involving similar
transactions, To have a proper trial the Government is E
entitled to appoint a Special Public Prosecutor. If the word
"case" is given a meaning to include the appeal, it'will
be denuding the power of appointing authority. The law
does not so countenance. If the Government by a F
notification appoints an eligible person clearly stating
that he shall conduct the trial as well as pursue the appeal
arising out of it, there will be no difficulty. Therefore, much
stress cannot be given on the words "without any written
authority" as used in Section 301. It can only mean that G
the Public Prosecutor once engaged/appointed by the
State, he can prosecute the appeal without filing any
formal authority for the said purpose. It cannot be
construed to the extent that solely because he has been
appointed in conn.ection with the trial case, he can H
472 SUPREME COURT REPORTS [2015] 7 S.C.R.
A appear before the High Court for which he has not been
appointed in pursuance of Section 24 (1) CrPC. Section
301(1) CrPC cannot be stretched to that extent. In that
event, it would really lead to an anomalous situation. A
Public Prosecutor has to be specifically appointed for
B the appeals or revisions or other proceedings in the High
Court. The anomalous situations, highlighted by Lokur,
· J. is concurred with. In fact, the Code does not remotely
so envisage and the contextual reading of all the
provisions do not so convey. Therefore, it is ingeminated
C that a Public Prosecutor who is appointed to conduct a
case before the trial court cannot be deemed to be
appointed for the purpose of appeal arising therefrom
solely because of the language employed in Section
D 301(1) CrPC. [Para 30] [505-C-H; 506-A-D]
1.4 The 4th respondent was not appointed by the
State of Karnataka to argue the appeals before the High
Court. Lokur, J. after holding that he was not authorised
to represent the prosecution in the Karnataka High Court
E in the appeals opined that the final hearing proceedings
before the High Court are vitiated and the appeals filed
by the accused persons will have to be heard afresh by
the High Court. Whereas Banumathi, J upheld the
F appointment of 41h respondent and therefore, dismissed
the appeal. [Para 31] [506-E-G]
1.5 The 4th respondent could not have appeared in
the appeal. The issue that has become germane at this
juncture is whether annulment of appointment of 4th
G respondent as Public Prosecutor would entail de novo
hearing of the appeal. The appeal has been heard on
day to day basis. The Judge has already heard the
appeal and is in the process of preparation of the
judgment. The appellant had submitted written note of
H submissions before the trial court which is more than
K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 473
400 pages. The allegations against 4th respondent had A
been dropped by the appellant in course of hearing of
the writ petition and hence, such allegations are delved
into. [Paras 32) [506-H; 507 -A-CJ
1.6 The appeal was heard by the Single Judge of the B
High Court and the appeal assails the judgment of
conviction and order of sentence passed under the
various provisions of the 1988 Act. The appellate court
has the sacrosanct duty to evaluate, appreciate and
consider each material aspect brought on record before C
rendering the judgment. That is sacred duty of a Judge;
and the same gets more accentuated when the matter is
in appeal assailing the defensibility of the conviction in
a corruption case. [Para 33) [507 -C-E]
D
1.7 The Single Judge, as the appellate Judge, would
keep in mind the real functioning of an appellate court.
The appellate court has a duty to make a complete and
comprehensive appreciation of all vital features of the
case. The evidence brought on record in entirety has to E
be scrutinized with care and caution. It is the duty of the
Judge to see that justice is appropriately administered,
for that is the paramount consideration of a Judge., The
said responsibility cannot be abdicated or abandoned
or ostracized, even remotely, solely because there might F
not have been proper assistance by the counsel
appearing for the parties. The appellate court is required
to weigh the materials, ascribe concrete reasons and the
filament of reasoning must logically flow from the
requisit~ analysis of the material on record. The G
approach cannot be cryptic. It cannot be perverse. The
duty of the Judge is to consider the evidence objectively
and dispassionately. The reasonings in appeal are to be
well deliberated. They are to be resolutely expressed. H
An objective judgment of the evidence reflects the
474 SUPREME COURT REPORTS [2015] 7 S.C.R.
A greatness of mind-sans passion and sans prejudice. The
reflective attitude of the Judge must be demonstrable
from the judgment itself. A judge must avoid all kind of
weakness and vacillation. That is the sole test. That is
the litmus test. This being the position of a Judge, which
B is more elevated as the appellate Judge, there is no
justification for rehearing of the appeal as the matter has
been heard at length and reserved for verdict. [Para 36]
[508-H; 509-A-F]
C J. Jayalalitha v. Union of India 1999 (3) SCR 653: (1999)
5 SCC 138; B.R. Kapur v. State of Tamil Nadu and Another
2001 (3) Suppl. SCR 191: (2001) 7 sec 231; K.
Anbazhagan v. Supdt. of Police 2003 (5) Suppl. SCR 610:
(2004) 3 SCC 767; J. Jayalalithaa and Others v. State of
D Kamataka and Others (2014) 2 SCC 401; Jayendra Saraswati
Swamigal@ Subramaniam v. State of Tamil Nadu 2008 (11)
SCR 161: (2008) 10 SCC 180; Jayendra Saraswathy
Swamigal (II) v. State of T.N. 2005 (4) Suppl. SCR 556: (2005)
8 SCC 771; State of Punjab v. Surjit Singh [1967] 2 SCR
E 347; Shiv Kumar v. Hukam Chand and Anr. 1999 (2) Suppl.
SCR 81 : (1999) 7 SCC 467; Bhimpappa Basappa Bhu
Sannavar v. Laxman Shivarayappa Samagouda and others
1971 (1) SCR 1 : (1970) 1 SCC 665; Niranjan Hemchandra
F Sashittal v. State of Maharashtra 2013 (4) SCR 767 : (2013)
4 SCC 642; Subramanian Swamy v. CBI (2014) 8 SCC 682
- referred to.
CASE LAW REFERENCE
G 1999 (3) SCR 653 Referred to. Para 2
2001 (3) Suppl. SCR 191Referred to. Para 3
2003 (5) Suppl. SCR 610Referred to. Para 4
H
K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 475
(2014) 2 sec 401 Referred to. Para 8 A
2008 (11) SCR 161 Referred to. Para 14
2005 (4) Suppl. SCR 556Referred to. Para 14
[1967] 2 SCR 347 Referred to. Para 17 B
1999 (2) Suppl. SCR 81 Referred to... Para 19
1971 (1) SCR 1 Referred to. Para 28
2013 (4) SCR 767 Referred to. Para 34 c
(2014) 8 sec 682 Referred to. Para 35
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 637 of 2015. D
From the Judgment and Order dated 11.02.2015 of the
Division Bench of the High Court of Karnataka at Bangalore
in W.A. No. 260 of 201 S(GM-RES}.
T. R. Andhyarujina, R. Shunmuga Sundaram, V. G. E
Pragasam, Prabu Ramasubramaian, Soumik Ghosal for the
Appellant.
Fali S. Nariman, L. Nageshwar Rao, B. Kumar, M. N. Rao,
C. Manishankar, S. Senthil, Meha Aggarwal, A. Ashokan, F
Ashok Mahajan, Anitha Shenoy, Vishruti Vijay for the
Respondents.
The Judgment of the Court was delivered by
G
DIPAK MISRA, J. 1. In view of the difference of opinion
by two learned Judges and regard being had to the referral
order dated 15.4.20151 , this appeal has been placed before
1 (2015) 5 SCALE 183
H
476 SUPREME COURT REPORTS [2015] 7 S.C.R.
A us for consideration and decision. We are called upon in this
appeal to decide whether the 4th respondent was authorised
to represent the case of the prosecution in the High Court of
Karnataka in the appeals filed by the accused persons against
their conviction by the Special Court, and if he was not so
B authorised, whether there is necessitous warrant of criminal
appeals to be heard afresh by the High Court.
2. The factual score exposited in this appeal has a history.
The 5th respondent, Ms. J. Jayalalithaa, was the elected Chief
C Minister of Tamil Nadu from 1991 to 1996 and she was
heading the political party called AIADMK. In 1996, she faced
a political defeat at the hands of another political party, namely,
DMK. Keeping in view the allegations pertaining to amassing
assets disproportionate to the known sources of income,
D criminal proceedings were initiated against her and her
associates, respondent nos. 6 to 8. The State of Tamil Nadu
had constituted Special Courts for their prosecution. In
pursuance of the constitution of Special Courts, C.C. No. 7 of
1997 was filed before the learned Special Judge, Chennai
E against the accused persons and they were chargesheeted
for the offences punishable under Section 1208 of the Indian
Penal Code, 1860 {IPC) read with Section 13(1) and 13(2) of
the Prevention of Corruption Act (for brevity, "the 1988 Act").
F The constitution of the Special Courts was challenged before
this Court in J. Jayalalitha v. Union oflndia2 , which upheld
the constitution of the Special Court. In the said case, the two-
Judge Bench observed thus:-
"Something more. The legislature has enacted the
G Prevention of Corruption Act and provided for a speedy
trial of offences punishable under the Act in public interest
as it had become aware of rampant corruption amongst
H 2
(1999) 5 sec 13a
K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 477
[DIPAK MISRA, J.)
the public servants. While replacing the 1947 Act by the A
present Act the legislature wanted to make the provisions
of the Act more effective and also to widen the scope of
the Act by giving a wider definition to the term "public
servant''. The reason is obvious. Corruption corrodes the
moral fabric of the society and corruption· by public B
servants not only leads to corrosion of the moral fabric of
the society but is also harmful to the national economy
and national interest, as the persons occupying high
posts in the Government by misusing their power due to
corruption can cause considerable damage to the C
national economy, national interest and image of the
country. It is in the context of public interest that we have
to construe the meaning of the word "necessary"
appearing in Section 3. Considering the object and
0
scheme of the Act and the context in which it is used it
would mean requirement in public interest and cannot
be said to be so vague as not to provide a good
guideline. Thus the exercise of discretion by the
Government under Section 3 has to be guided by the E
element of requirement in public interest."
(emphasis supplied)
We have reproduced the said passage, as we would be
saying something in this regard at a later stage. F
3. As the expose of facts would further reveal, the trial
continued before the Special Court but with the time rolling by,
in 2001 elections, the AIADMK headed by the 5th respondent
got elected and she was appointed as the Chief Minister of G
Tamil Nadu. Her appointment was called in question before
this Court in B.R. Kapurv. State of Tamil Nadu and Another,
wherein the majority speaking through Bharucha, J. (as his
'c2001) 1 sec 231 H
478 SUPREME COURT REPORTS [2015] 7 S.C.R.
A Lordship then was) held thus:-
"54. We are satisfied that in the appointment of the
second respondent as the Chief Minister there has been
a clear infringement of a constitutional provision and that
B a writ of quo warranto must issue.
)()()()( xxxxx xxxxx
58. We are of the view that a person who is convicted for
a criminal offence and sentenced to imprisonment for a
c period of not less than two years cannot be appointed
tMe Chief Minister of a State under Article 164(1) read
with (4) and cannot continue to function as such.
59. We, accordingly, order and declare that the
D appointment of the second respondent as the Chief
Minister 1f the State of Tamil Nadu on 14-5-2001 was
not legal and valid and that she cannot continue to function
as such. The appointment of the second respondent as
the Chief Minister of the State of Tamil Nadu is quashed
E and set aside."
In pursuance of the aforesaid judgment, the 5th respondent,
ceased to hold the office of the Chief Minister of Tamil Nadu
w.e.f. 21.9.2001.
F
4. In the first part of 2002, the Election Commission of
India announced a bye-election of Andipatti constituency and
Ms. J. Jayalalithaa contested the said election and was
declared elected and eventually, she was sworn in as the Chief
G Minister of Tamil Nadu on 2.3.2002. The trial in C.C. No. 7 of
1997 went through some kind of a legal tumult narration of
which is not necessary. Suffice it to say, the present appellant
preferred two petitions under Section 406 of the Criminal
Procedure Code (CrPC), 1973 seeking transfer of CC No. 7
H of 1997 and CC No. 2 of 2001 on the file of 11th Additional
K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 479
[DIPAK MISRA, J.]
Sessions Judge (Special Court I), Chennai in the State of Tamil A
Nadu to a court of equal and competent jurisdiction in any other
State. The locus standi of the appellant was raised before this
Court in K. Anbazhagan v. Supdt. of Police4 and the Court
upheld the locus standi of the appellant in an application under
Section 406 CrPC. It gave immense emphasis on the concept B
offree and fair trial. To quote:-
"Free and fair trial is sine qua non of Article 21 of the
Constitution. It is trite law that justice should not only be
done but it should be seen to have been done. If the C
criminal trial is not free and fair and not free from bias,
judicial fairness and the criminal justice system would
be at stake shaking the confidence of the public in the
system and woe would be the rule of law. It is important
to note that in such a case the question is not whether D
the petitioner is actually biased but the question is
whether the circumstances are such that there is a
reasonable apprehension in the mind ofthe petitioner. In
the present case, the circumstances as recited above
are such as to create reasonable apprehension in the E
minds of the public at large in general and the petitioner
in particular that there is every likelihood of failure of
justice."
5. Thereafter, the Court deliberated on all the issues and F
transferred the case to the State of Karnataka. The directions
that were issued by the Court being apposite are reproduced
below:-
"In the result, we deem it expedient for the ends of justice G
to allow these petitions. The only point that remains to
be considered now is to which State the cases should
be transferred. We are of the view that for the
• (2004) 3 sec 1s1 H
480 SUPREME COURT REPORTS [2015] 7 S.C.R.
A convenience of the parties the State of Karnataka would
be most convenient due to its nearness to Tamil Nadu.
Accordingly, the petitions are allowed. CC No. 7 of 1997
and CC No. 2 of 2001 pending on the file of the Xlth
Additional Sessions Judge (Special Court No. 1),
B Chennai in the State of Tamil Nadu shall stand transferred
with the following directions:
(a) The State of Karnataka in consultation with the Chief
Justice of the High Court of Karnataka shall constitute a
c Special Court under the Prevention of Corruption Act,
1988towhom CC No. 7of1997 and CC No. 2 of2001
pending on the file of the Xlth Additional Sessions Judge
(Special Court No. 1), Chennai in the State of Tamil Nadu
shall stand transferred. The Special Court to have its
D sitting in Bangalore.
(b) As the matter is pending since 1997 the State of
Karnataka shall appoint a Special Judge within a month
from the date of receipt of this order and the trial before
E the Special Judge shall commence as soon as possible
and will then proceed from day to day till completion.
(c) The State of Karnataka in consultation with the Chief
Justice of the High Court of Karnataka shall appoint a
F senior lawyer having experience in criminal trials as Public
Prosecutor to conduct these cases. The Public
Prosecutor so appointed shall be entitled to assistance
of another lawyer of his choice. The fees and all other
expenses of the Public Prosecutor and the Assistant shall
G be paid by the State of Karnataka who will thereafter be
entitled to get the same reimbursed from the State of
Tamil Nadu. The Public Prosecutor to be appointed within
six weeks from today.
H (cf) The investigating agency is directed to render all
K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 481
[DIPAK MISRA, J.]
assistance to the Public Prosecutor and his Assistant. A
(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
Prosecutor would be at liberty to apply to the court to c
have these witnesses declared hostile and to seek
permission to cross-examine them. Any such application
if made to the Special Court shall be allowed. The Public
Prosecutor will also be at liberty to apply that action in
perjury to be taken against some or all such witnesses. D
Any such application(s) will be undoubtedly considered
on its merit(s).
(g) The State of Tamil Nadu shall ensure that all
documents and records are forthwith transferred to the E
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 accused all relevant evidence and documents
appearing against them whilst recording their statement G
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
482 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 6. After the case stood transferred, the State of Karnataka
in consultation with the Chief Justice of the High Court of
Karnataka, appointed Mr. B.V. Acharya as the Public
Prosecutor to conduct the case against the accused persons.
For certain reasons, before completion of the trial, Mr. Acharya
B resigned and thereafter Bhavani Singh, the 41t1 respondent, was
appointed as the Special Public Prosecutor vide notification
dated 2.2.2013. The said order of appointment was issued in
exercise of powers conferred by Section 24(8) of CrPC and
Rule 30 of the Karnataka Law Officers (Appointment and
C Conditions of Service) Rules, 1977. The notification appointing
Bhavani Singh reads as follows:-
"NOTIFICATION
D In obedience to the judgment dated 18-11-2003 passed
by the Hon'ble Supreme Court of India in Transfer Petition
No. 77-78/2003 (Criminal) in the matter of K. Anbazhagan
v. The Superintendent of Police and others and in
exercise of the powers conferred by Sub-section (8) of
E Section 24 of the Code of Criminal Procedure, 1973
(Central Act No. 2of1974) 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,
F Senior Advocate, House No. 746, Srinidhi, Kadugodi,
White Field Railway Station, Bangalore-560067, is
appoint~.d as Special Public Prosecutor in place of Sh.
8.V. Acharya on same terms to conduct Special C.C.
No. 208/2004 (in the case of Kum. Jayalalithaa and
G others) pending on the file of XXXVlth Additional City
Civil & Sessions Court (Special Court), Bangalore in
pursuance.
Further, Sri Sandesh J. Chouta, Advocate, is continued
H to assist Sh. G. Bhavani Singh, Special Public Prosecutor,
K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 483
[DIPAK MISRA, J.]
in this case. A
By order and in the name of the Governor of Karnataka.
(K. Narayana)
Deputy Secretary to Government (Admn-1) Law, Justice B
and Human Rights Department."
7. After the appointment of Bhavani Singh, the trial
continued and at that stage, the appellant filed an application
to assist the Public Prosecutor by making oral submissions C
and the written arguments. The learned Spec!?J.Judge, vide
order dated 21.8.2013 permitted the appellant to render such
assistance to the Special Public Prosecutor as he may require.
The appellant objected to the appointment of Bhavani Singh
as Special Public Prosecutor by making representations to D
the Government of Karnataka as well as to the " Chief Justice
of the High Court of Karnataka. As there was no. response, he
preferred W. P. No. 38075/2013 before the High Court of
Karnataka assailing the appointment of Bhavani Singh as a
Special Public Prosecutor and making further prayer for E
appointment of an eminent lawyer in his place. During the
pendency of the writ petition, the appointment of the 4th
respondent was withdrawn on 26.8.2013 by the Government
of Karnataka. The reason ascribed was that tt1~re had been F
no proper consultation with the Chief Justice of Karnataka High
Court. The order of withdrawal of the Special P'!~lic Prosecutor
was called in question in W.P.(Crl) No. 145/2013 and in
pursuance of notice from this Court, a statement was made
that the impugned Notification would be withdrawn with a view G
to consult the Chief Justice of the High Court of Karnataka
and accordingly the writ petition was dismissed having been
rendered infructuous.
8. As the factual matrix would unfurl, certain developments H
occurred and on 10.9.2013, the Government of Karnataka
484 SUPREME COURT REPORTS [2015] 7 S.C.R.
A withdrew the Notification dated 26.8.2013 and asked the 4t11
respondent not to appear before the Special Court. This
compelled the accused persons to file W.P.(Crl) No. 154/2013
before this Court. There was stay of the operation of the
Notification dated 10.9.2013 and on 14.9.2013, the Chief
B Justice of the Karnataka High Court concurred with the view
of the Government of Karnataka that the 4th respondent should
no longer continue as the Public Prosecutor before the Special
Court. Pursuant to the said order on 16.9.2013, a
consequential order was passed withdrawing the appointment
C of the 41h respondent. This led the accused persons to file
W.P.(Crl.) No. 166/2013. Both the writ petitions were heard
together and decided by the decision in J. Jaya/alithaa and
Others v. State of Karnataka and Others5, wherein this Court
annulled the impugned order removing the 4t11 respondent, the
0
same being unsustainable in law. The 4t11 respondent continued
during the trial and eventually the Special Court delivered the
judgment on 27.9.2014 convicting all the accused persons.
The elaborate submissions of the appellant were taken into
E consideration by the learned Special Judge.
9. Being aggrieved by the judgment of conviction and
order of sentence, the accused persons preferred Criminal
Appeal No. 835-838 of 2014. As the State of Karnataka was
F not arrayed as a party in criminal appeal, it did not appoint any
Public Prosecutor. It is interesting to note that the State of Tam if
Nadu exhibited enormous anxiety and on 29.9.2014, the
Principal Secretary to the Government of Tamil Nadu passed
an order being requested by the Directorate of Vigilance and
G Anti Corruption, Chennai to engage the services of 4th
respondent as the Special Public Prosecutor to appear before
the High Court of Karnataka for and on behalf of the said
Directorate in appeal/bail application and other petition that
H s (2014) 2 sec 401
K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 485
[DIPAK MISRA, J.]
might arise out of the conviction of the accused persons. The A
order passed by the Principal Secretary reads as follows:-
·"ORDER
The Director, Vigilance and Anti-Corruption, Chennai, in
8
the letter read above, has requested the Government that
Thiru G. Bhavani Singh, Special Public Prosecutor, who
has conducted the trial in Special C.C. No. 208/2004
before the Special Judge, 36th Additional City Civil &
Sessions Court, Bengaluru, may be authorized to appear c
_ 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.
• D
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 E
behalf of the Directorate of Vigilance and Anti-Corruption,
Chennai in any Appeal/Bail Petition/any other petition that
may arise out the order dated 27-09-2014 on the above
Trial Court in all hearings.
(By order of the Governor) F
Jatindra Nath Swain
Principal Secretary to Government"
10. Being empowered by the aforesaid order, the 4th
respondent appeared in the criminal appeals. The learned G
Single Judge declined to suspend the sentence awarded to
the accused persons and grant them bail. The said order came
to be assailed in SLP (Crl.) No. 7900 of 2014 wherein this
Court granted bail to the accused persons on 17.10.2014 and H
confirmed the same on 18.12.2014. The order passed on
486 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 18.12.2014 reads as follows:-
"ORDER
Pursuant to the directions issued by this Court dated
17.10.2014, the Petitioners have been released on bail.
B
Petitioners have filed an affidavit dated 10.12.2014 to
the effect that the entire records of the trial court has been
filed before the High Court. From the affidavit, it is clear
that necessary records have been filed and the appeals
c are ripe for hearing.
Keeping in view the peculiar facts of the case, we request
the learned Chief Justice of High Court of Karnataka to
constitute a Special Bench on the date of reopening of
D the High Court for hearing of the appeals exclusively on
day-to-day basis and dispose of the same as early as
possible at any rate within three months.
Bail granted by us earlier is extended by another four
E months from today.
Call these special leave petitions on 17.04.2015."
11. In the meantime, hearing of criminal appeals
proceeded in the High Court of Karnataka before the learned
F Single Judge. As the appellant was of the view that Bhavani
Singh could not have represented the prosecuting agency in
appeals, he submitted a representation on 24.12.2014 to the
Chief Secretary, Government of Karnataka to appoint a senior
G lawyer but there was no response. The said situation
constrained him to file W.P. No. 742 of 2015 seeking
appropriate direction from the High Court of Karnataka. The
learned Single Judge disposed of the writ petition by observing
that when there is a direction by this Court to hear the appeal
H on day to day basis before a Special Bench, it would be
K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 487
[DIPAK MISRA, J.]
appropriate to allow the proceedings in appeal to continue A
notwithstanding the challenge as to the validity or otherwise of
the appointment of the 4th respondent. The learned Single
Judge further proceeded to hold that it is open either to the
State Government or the writ petitioner to seek for clarification,
if any, from this Court as to the procedure that would be followed B
in making appointment of a Special Public Prosecutor and
assistant, if any, to represent the State of Karnataka. Be it
noticed, on behalf of the State of Karnataka, which is reflectible
from the order of the learned Single Judge, the following
submission was put forth:- C
"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 D
the pending appeals. However, if the objective of the
Supreme Court is to be understood in its broadest sense,
it would have to be taken that the State Government of
Karnataka, is entrusted with the task of conducting the
case at all stages, till it attains finality. E
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 F
High Court of Karnataka, as directed by the Supreme
Court in making any appointment of a Special Public
Prosecutor and there is no appointment order issued in
favour of Respondent No. 5, afresh; he would further
submit that if it is a formality to be complied with, the G
State Government, in consultation with the Chief Justice,
shall take further steps. Since the State Government is
not formally authorized to take any steps in so far as the
appointment of the prosecutor or counsel to conduct the H
appeals, no steps have been taken." (emphasis
488 SUPREME COURT REPORTS [2015] 7 S.C.R.
A supplied)
12. Being dissatisfied with the judgment and order passed
by the learned Single Judge, the appellant preferred writ
appeal no. 260/2015 and the Division Bench recorded the
B statement of the learned Advocate General, which is to the
following effect:-
"Sri Prof. Ravi Verma Kumar, learned Advocate General,
appearing for the State of Karnataka submitted that in
c pursuance of the directions issued by the Hon'ble
Supreme Court in consultation with the Hon'ble Chief
Justice, the State of Karnataka appointed a Senior
Counsel as the Public Prosecutor, who conducted the
trial. When the said Senior Counsel pleaded his inability
D to continue to appear, they appointed the 5th
Respondent [Mr. Bhavani Singh] as the Public
Prosecutor, who conducted the proceedings. Now the
trial has ended in an order of conviction. Accused have
preferred the appeals before this Court. As earlier. the
E appointment was made in pursuance of the direction
issued by the Hon'ble Supreme Court, their
understanding is that the obligation to appoint was only
during trial. With the trial coming to an end with the order
of conviction. that obligation ceases. As there is no fresh
F direction issued by the Hon'ble Supreme Court to appoint
a Special Public Prosecutor, they have not made any such
appointment. Though the State has appointed a Public
Prosecutor under Section 24(1) of the Code, in the
absence of any direction from the Apex Court, the said
G Public Prosecutor is not appearing in the pending
appeals before the High Court. As the matter is sub-
judice, they have not taken any further action in this
matter."
H (emphasis supplied)
K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 489
[DIPAK MISRA, J.]
13. The DiviSTon Bench, after hearing the counsel for the A
parties and discussing the law in the filed, came to hold that
the order passed on 29.9.2014 by the Principal Secretary to
the Government of Tamil Nadu was non est inasmuch as the
transferor court had no power to appoint Public Prosecutor
under Section 24 of the CrPC in respect of the case pending B
in the transferee Court. Interpreting Section 301 (1) CrPC, the
Division Bench opined that the language employed in the said
provision would include an appeal. The Division Bench laid
emphasis on the words "case" and "any court" and also referred
to the language used in Section 24(1) and Section 24(8) CrPC C
and opined thus:-
"By practice, by virtue of the appointment made in Section
24(1) of the Code, the Public Prosecutor attached to that
Court would prosecute the case. But, a Special Public D
Prosecutor appointed under Section 24(8) of the Code
to a case and not to a Court where experience of not
less than 10 years of practice as an Advocate is insisted
upon, such Public Prosecutor not only is capable of.
conducting trial at the lowest level he is equally competent E
...
to prosecute the case in appeal or revision. During trial,
if on an interlocutory order, a revision is filed either by
the accused or to be filed by the State, if the interpretation
canvassed by the appellant is to be accepted, the F
Special Public Prose.cuter appointed under Section
24(8) of the Code cannot without a fresh appointment
under Section 24(8) of the Code appear in that revisional
Court. To appear in the revisional Court, one more order
under Section 24(8) of the Code has to be made. That is G
not the intention of the legislature."
Thereafter, the Division Bench referred to the notification
appointing the Public Prosecutor and ruled that:-
"..... The language employed in the notification is H
490 SUPREME COURT REPORTS [2015) 7 S.C.R.
A unambiguous. The Public Prosecutor is appointed to
conduct CC No. 7/1997 and CC No. 2/2001.As the name
of the parties were not mentioned, in the brackets it is
mentioned as regarding trial of Ms. Jayalalitha and others
in the State of Karnataka. Not that the Public Prosecutor
B is appointed only for the purpose of the trial of the said
case. However, in the subsequent notification appointing
5th respondent in the brackets it is mentioned, in the case
of Kum. Jayalalitha and others. Therefore, 5th respondent
is appointed as Special Public Prosecutor in the case of
c Kum. Jayalalitha and others. Accordingly, the 5th
respondent by virtue of Section 301 (1) of the Code is
entitled to appear and plead in the appeals pending in
the High Court in the case of Kum. Jayalalitha and others,
without any written authority.
D
In the light of the aforesaid discussions, as the State
Government has already appointed a Public Prosecutor
under Section 24(1) of the Code to the High Court of
Karnataka, the question of this Court issuing any direction
E to the State of Karnataka to appoint a Public Prosecutor
under Section 24(1) of the Code would not arise."
14. The first issue that arose before the two-Judge Bench
was whether the State of Tamil Nadu could have appointed
F Bhavani Singh as the Special Public Prosecutor for the
Karnataka High Court to defend the cause of the State. Lokur,
J. referred to the pronouncement by a three-Judge Bench in
Jayendra Saraswati Swamigal@ Subramaniam v. State
of Tamil Nadtf wherein at the instance of the appellant therein,
G the matter had already been transferred from the State of Tamil
Nadu [See Jayendra Saraswathy Swamigal (II) v. State of
T.N. 7). After transfer, the case was pending before the District
• (2008) 10 sec 180
H 1 (2005) a sec 771
K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 491
[DIPAK MISRA, J.]
and Sessions Judge, Pondicherry. The Home Department of A
State of Tamil NaJu had appoi:ited one Special Public
Prosecutor and four Additional $pecial Public Prosecutors for
conducting the trial before the learned Sessions. Judge at
Pondicherry. The High Court of Madras being moved had ruled
,., that offence having been committed in the State of Tamil Nadu B
and the investigation having been done by the Tamil Nadu
police, the transferee court cannot normally venture to appoint
any Special Public Prosecutor to handle the case. Setting aside
the order of the High Court, this Court held:-
c
"12. As per the procedure prescribed under Section 24,
the State of Tamil Nadu can appoint a Public Prosecutor
to conduct criminal cases in any of the court in that State.
Such powers cannot be exercised by the State
Government to conduct cases in any other State. Once D
the case is transferred as per Section 406 CrPC to
another State, the transferor State no longer has control
over the prosecution to be conducted in a court situated
in a different State to which the case has been transferred.
It is the prerogative of the State Government to appoint a E
Public Prosecutor to conduct the case which is pending
in the sessions division of that State.
xxxxx xxxxx xxxxx
F
14. Sub-section (8) of Section 24 CrPC is a special
provision regarding the appointment of a Special
Prosecutor. This power can be exercised by the Central/
Government and the State Government for the purpose
of any case or class of cases, and a person who has G
been in practice as an advocate for not less than ten
years may be appointed as a Special Public Prosecutor.
· These powers are also to be exercised by the State
Government of the transferee court where the sessions
case is pending. Of course, the transferee State can H
492 SUPREME COURT REPORTS [2015) 7 S.C.R.
A appoint any person having qualification prescribed under
sub-section (8) of Section 24 CrPC.
)()()()()( xxxxx xxxx
17. As is evident from various provisions of CrPC, the
8
State Government of Tamil Nadu can only appoint a '"
Public Prosecutor or an Additional Public Prosecutor or
a Special Public Prosecutor under Section 24 CrPC to
conduct the prosecution and appeal, or other proceeding
c in any criminal courts in respect of any case pending
before the courts of Tamil Nadu and in respect of any
case pending before the courts at Pondicherry, the State
Government of Pondicherry is the appropriate
Government to appoint Public Prosecutor, Additional
D Public Prosecutor or Special Public Prosecutor."
15. Relying on the said decision and the directions given
by this Court while transferring the case, Lokur, J. opined that
the State of Tamil Nadu had no authority to appoint the 41h
E respondent as Public Prosecutor to contest the appeals in the
High Court. Banumathi, J. concurred with the view expressed
by Lokur, J. by holding thus:-
"As per the decision in Jayendra Saraswati Swamigal's
case (supra), and the decision in 2004 3 sec 767, only
F
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. &AC to engage
Mr. Bhavani Singh as its Special Public Prosecutor is
G without authority and non-est in the eye of law."
We have referred to this facet only to highlight the anxiety
expressed by the State of Tamil Nadu possibly being worried
about the "borrowed troubles of future" and forgetting the age
H old sagacious saying that "anxiety is the poison of human life".
K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 493
[DIPAK MISRA, J.]
16. The difference of opinion between the learned Judges A
starts from here. The submission that was canvassed before
the Division Bench was to the effect that once the State of
Karnataka had appointed Bhavani Singh as the Special Public
Prosecutor under Section 24(8) and 301 (1) CrPC to conduct
the trial after Mr. Acharya resigned, his appointment would B
continue for the purpose of appeal. Lokur, J. referring to the
language of the Notification, which we have already reproduced
hereinbefore, and thereafter analysed the various provisions
i.e. Sections 24, 25, 25-A, 301 (1) of the CrPC and came to
~fu~:- c
"89. The only reasonable interpretation that can be given
to the scheme laid out in Sections 24, 25, 25-A and
301(1) of the Code is that a Public Prosecutor appointed
for the High Court and who is put in charge of a particular D
case in the High Court, can appear and plead in that
case only in the High Court without any written authority
whether that case is at the stage of inquiry or trial or
appeal. Similarly, a Public Prosecutor appointed for a
district and who is put in charge of a particular case in E
that district, can appear and plead in that case only in
the district without any written authority whether that case
is at the stage of inquiry or trial or appeal. So also, an
Assistant Public Prosecutor who is put in charge of a F
particular case in the court of a Magistrate, can appear
and plead in that case only in the court of a Magistrate
without any written authority whether that case is at the
stage of inquiry or trial or appeal. Equally, a Special Public
Prosecutor who is put in charge of a particular case can G
appear and plead in that case only in the court in which it
is pending without any written authority whether that case
is at the stage of inquiry or trial or appeal. In other words,
Section 301(1) of the Code enforces the 'jurisdictional'
or 'operational' limit and enables the Public Prosecutor H
494 SUPREME COURT REPORTS [2015] 7 S.C.R.
A and Assistant Public Prosecutor to appear and plead
without written authority only within that 'jurisdictional' or
'operational' limit, provided the Public Prosecutor or the
Assistant Public Prosecutor is in charge of that case.
B 90. The converse is not true, and a Prosecutor (Public
Prosecutor, Assistant Public Prosecutor or Special
Public Prosecutor) who is put in charge of a particular
case cannot appear and plead in that case without any
written authority outside his or her 'jurisdiction' whether
C it is the High Court or the district or the court of a
Magistrate. In other words, Section 301(1) of the Code
maintains a case specific character and read along
with Sections 24, 25 and 25-A of the Code maintains a
court or district specific character as well."
D
17. After so stating, Lokur, J. referred to the Constitution
Bench judgment in State ofPunjab v. Surjit Singh8 and held:-
"93. The Constitution Bench referred to what would be
E an anomalous result if a Public Prosecutor who had
nothing to do with the particular case is entitled to file an
application for withdrawal Under Section 494 of the old
Code. By way of illustration, the Constitution Bench noted
that if there are two Public Prosecutors appo.inted for a
F particular court and one of them is conducting the
prosecution in a particular case and desires to go on
with the proceedings, it will be open to the other Public
Prosecutor to ask for withdrawal from the prosecution.
Similarly, it was illustratively observed that a Public
G Prosecutor appointed for case A before a particular court,
can, by virtue of his being a Public Prosecutor file an
application in case B, with which he has nothing to do,
and ask for permission of the court to withdraw from the
H 8
(1967) 2 SCR 347
K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 495
[DIPAK MISRA, J.]
prosecution. Extrapolating this illustration to the facts of A
the present case, the result would certainly be anomalous
if a Public Prosecutor appointed for case A before a
particular Court (read Mr. Bhavani Singh appointed for
the case against the accused persons before the Special
Court) can by virtue of being a Public Prosecutor appear B
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
th~t Section 494 of the old Code refers only to a Public C
Prosecutor in charge of a particular case and is actually
conducting the prosecution who can take steps in the
matter. Under the circumstances, though Mr. Bhavani
Singh was entitled to conduct the trial before the Special
Court in an appropriate manner, merely because he was D
in charge of the prosecution before the Special Court
did not entitle him to continue with the 'case' in the
criminal appeals filed in the High Court.
)()()()()( )()()()()( )()()()()( E
96. Consequently, Mr. Bhavani Singh having been
appointed as a Special Public Prosecutor for a specific
case pertaining to the accused persons before the
'Special Court was answerable in all respects to the F
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 G
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."
H
496 SUPREME COURT REPORTS [2015] 7 S.C.R.
A 18. Lokur, J. in his Judgment has pointed out two
anomalous situations that are likely to arise if such an
interpretation is accepted. The first anomalous situation which
is pointed out by him is that a Public Prosecutor in charge of a
case in a district or an Assistant Public Prosecutor in charge
B of a case in the court of a Magistrate can claim, on the basis
of Section 301 (1) of the Code, to appear and plead without
any written authority before any court in which that case is under
appeal, including the High Court of the State. Since a police
officer can also be appointed as an Assistant Public
C Prosecutor, acceptance of the argument would mean that a
police officer (appointed as an Assistant Public Prosecutor)
can appear and plead without any written authority in the High
Court of the State in which that case is under appeal, which,
by no stretch of imagination, can be the intent of Section 301 (1)
0
of the Code. The other anomalous situation which the learned
Judge has taken note of is that an appeal in the High Court
arising out of a case in a district, the Public Prosecutor for the
High Court is engaged. However, the Public Prosecutor in
E charge of that case in the district or an Assistant Public
Prosecutor (including a police officer) in charge of that case in
the court of a Magistrate appears in the High Court in the appeal
relying, for this purpose, upon Section 301(1) of the Code.
Then, in the appeal, the said Public Prosecutor or the said
F Assistant Public ·Prosecutor could take a stand that is
diametrically opposed to or in conflict with the stand of the
Public Prosecutor before the High Court and, therefore, such
an interpretation cannot be placed on Section 301(1) of CrPC.
G 19. Banumathi, J. referred to the language employed in
Sections 24 and 301 (1) of CrPC, relied upon the authority in
Shiv Kumar v. Hukam Chand and Anr. 9 , and came to hold
that:-
H • (1999) 1 sec 467
K.ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 497
[DIPAK MISRA, J.]
"Being placed 'in charge of a case', there is a specific A
role attributed to the Special Public Prosecutor under
Sub-section (8) of Section 24 Code of Criminal
Procedure which distinguishes the task of Special Public
Prosecutor from that of Public Prosecutors appointed
under Sub-sections (1 ), (2) and (3) of Section 24 Code B
of Criminal Procedure and hardly there is any anomaly."
After so stating, the learned Judge has referred to the
meaning of the term 'case' and the context in which it is used,
and expressed the opinion in following terms:- C
".. I am of the view that such authority of the Special Public
Prosecutor to appear and plead a case in respect of
which he is in charge in any court or at any stage of
proceedings in such court may notemanate from the term o
'case' or for that matter 'class of cases' as appearing
Under Sub-section (8) of Section 24 Cr.P.C.,"butforthe
reason of the broader context in which term 'case' has
been used in Section 301(1) Cr.P.C. to include any court
in which that case is under 'inquiry, trial or appeal'. The E
Special Public Prosecutor, after the trial is o\ler, derives
its authority to continue to appear and plead before
appellate forum by virtue of language used in sub-section
(1) of Section 301 Cr.P.C. and the Special Public
Prosecutor will continue to have such authority due to F
wide language of Section 301 Cr.P.C., until the notification
appointing him has been cancelled by the appropriate
State Government."
20. First, we shall advert to this difference of opinion and G
thereafter proceed to dwell upon the pertinent consequent
impact.
21. Section 2(u) of CrPC defines "Public Prosecutor''. It
reads as follows:- H
498 SUPREME COURT REPORTS [2015] 7 S.C.R.
A "(u) "Public Prosecutor" means any person appointed
under Section 24, and includes any person acting under
the directions of a Public Prosecutor."
22. Section 24 CrPC deals with Public Prosecutors. For
B our purpose, Section 24(1), 24(3) and 24(8) being relevant
are reproduced below:-
"24. Public Prosecutors.-(1) For every High Court, the
Central Government or the State Government shall, after
c consultation with the High Court, appoint a Public
Prosecutor and may also appoint one or more Additional
Public Prosecutors, for conducting in such Court, any
prosecution, appeal or other proceeding on behalf of the
Central Government or State Government, as the case
D maybe.
xxxxx xxxxx xxxxx
(3) For every district, the State Government shall appoint
a Public Prosecutor and may also appoint one or more
E Additional Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional Public
Prosecutor appointed for one district may be appointed
also to be a Public Prosecutor or an Additional Public
F Prosecutor, as the case may be, for another district.
)()()()()( )()()()()( xxxxx
(8) The Central Government or the State Government may
G appoint, for the purposes of any case or class of cases,
a person who has been in practice as an advocate for
not less than ten years as a Special Public Prosecutor.
Provided that the Court may permit the victim to engage
an advocate of this choice to assist the prosecution under
H
this Sub-section."
K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 499
[DIPAK MISRA, J.]
23. Sub-section (1) of Section 24 CrPC has been A
amended in the State of Karnataka (vide Karnataka Act 20 of
1982 w.e.f. 3.9.1981). It provides thus:
"In Section 24, in sub-section (1), -
B
(i) Omit the words "or the State Government shall";
(ii) for the words "appoint a Public Prosecutor", substitute
the words "or the State Government shall appoint a Public
Prosecutor''."
c
24. Section 25A deals with the Directorate of Prosecution.
It reads as follows:-
"25A. Directorate of Prosecution. - (1) The State
Government may establish a Directorate of Prosecution D
consisting of a Director of Prosecution and as many
Deputy Directors of Prosecution as it thinks fit.
......
(2)A person shall be eligible to be appointed as a Director
of Prosecution or a Deputy Director of Prosecution~ only E
if he has been in practice as an advocate for not less
than ten years and such appointment shall be made with
the concurrence of the Chief Justice of the High Court.
(3) The Head of the Directorate of Prosecution shall be
the Director of Prosecution, who shall function under the F
administrative control of the Head of the Home
Department in the State.
(4) Every Deputy Director of Prosecution shall be
subordinate to the Director of Prosecution. G
(5) Every Public Prosecutor, Additional Public Prosecutor
and Special Public Prosecutor appointed by the State
Government under sub-section (1), or as the case may
be, sub-section (8), of section 24 to conduct cases in H
500 SUPREME COURT REPORTS [2015] 7 S.C.R.
A the High Court shall be subordinate to the Deputy Director
of Prosecution.
(6) Every Public Prosecutor, Additional Public Prosecutor
and Special Public Prosecutor appointed by the State
B Government under sub-section (3), or as the case may
be, sub-section (8), of section 24 to conduct cases in
District Courts and every Assistant Public Prosecutor
appointed under sub-section (1) of section 24 shall be
subordinate to the Deputy Director of Prosecution.
c
(7) The powers and functions of the Director of
Prosecution and the Deputy Directors of Prosecution and
the areas for which each of the Deputy Directors of
Prosecution have been appointed shall be such as the
D State Government may, by notification, specify.
(8) The provisions of this section shall not apply to the
Advocate General for the State while performing the
functions of a Public Prosecutor."
E 25. Section 301 (1) CrPC that deals with the appearance
by Public Prosecutors reads thus:-
"301. Appearance by Public Prosecutors.-(1) The Public
Prosecutor or Assistant Public Prosecutor in charge of
F a case may appear and plead without any written
authority before any Court in which that case is under
inquiry, trial or appeal."
26. The aforesard provisions have to be appreciated in a
G schematic context. All the provisions reproduced herein above
are to be read and understood as one singular scheme. They
cannot be read bereft of their text and context. If they are read
as parts of different schemes, there is bound to be anomaly.
Such an interpretation is to be avoided, and the careful reading
H of the CrPC, in reality, avoids the same. The dictionary clause
K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 501
[DIPAK MISRA, J.]
in 2 (u) only refers to a person appointed under Section 24 A
CrPC and includes any person acting under the directions of
a Public Prosecutor. The class or status of the Public
Prosecutor is controlled by Section 24 and 25A of the CrPC.
On a careful x-ray of the provisions of Section 24 it is clearly
demonstrable that Section 24(1) has restricted ·the B
appointment of Public Prosecutor for the High Court, for the
provision commences with words "for every High Court." Sub-
section (3) deals with the appointment of Public Prosecutor or
Additional Public Prosecutor for the districts. There is a
· procedure for appointment with which we are 11ot concerned. C
Sub-section (8) of section 24 deals with appointment of Special
Public Prosecutor for any case or class of cases. A Public
Prosecutor who is appointed in connection with a district his
working sphere has to be restricted to the district unless he is D
specially engaged to appear before the higher court. A Special
Public Prosecutor when he is appointed for any specific case
and that too for any specific court, it is a restricted:appointment.
In this context Section 25A of the Code renders immense
assistance. The State Government is under obligation to E
establish directorate of prosecution. Section 25A clearly
stipulates that Public Prosecutor, Additional Public Prosecutor
and Special Public Prosecutor are appointed by the State
Government under sub-Section ( 1) or under sub-Section (8)
of Section 24 to conduct cases in the High Court, shall be F
subordinate to the Director of Prosecution. Sub-section (6)
postulates that the three categories named herein appointed
by the State Government to conduct cases in the district courts
shall be subordinate to Deputy Director of Prosecution. Thus,
the scheme makes a perceptible demarcation and G
compartmentalization for the Public Prosecutor in the High
1
Court and the district courts. In this context we may refer with
profit to Rule 30 of Karnataka Law Officers (Appointments and
Conditions of Service) Rules 1977 (for short 'the Rules"). The
said rules read as follows:- H
502 SUPREME COURT REPORTS [2015] 7 S.C.R.
A "30. Special Counsels - Subject to these rules the
Government may appoint any advocate as a Special
Counsel either for the conduct of a civil or criminal case
or any appeal or proceeding connected therewith,
pending in a court either within the State or in any other
B State or in the Supreme Court or in any High Court in the
country.
(2) Before making such appointment the Government
may consult the Advocate General if the appointment is
c to conduct a civil case or appeal and the Director of.
Prosecution if it is to conduct a criminal case or appeal.
(3) Remuneration payable to a special counsel shall be
such as may be decided by Government in each case
D having regard to the nature of the case."
27. The said rule as far as the State of Karnataka is
concerned has its own significance. It clearly lays down that
before making an appointment the Government may consult
E the Advocate General if the appointment is to conduct a civil
case or appeal, and the Director of Prosecution if it is to
conduct a criminal case or appeal. Sub-rule (1) of Rule 30
makes a distinction between a case and an appeal and same
is the language used in sub-rule (2). We are only referring to
F this Rule to highlight that this Rule has been framed by the
State of Karnataka by way of abundant caution. This Rule
clarifies that if any counsel is to be appointed for the purpose
of an appeal, the State Government may do so after consulting
the authorities mentioned therein. There is nothing on record
G that the 4t11 respondent was appointed to defend the prosecution
in appeal in the High Court. The authority to appear before the
High Court as the analysis would show, is fundamentally
founded on the interpretation of Section 301 of CrPC. We have
already reproduced Section 301 (1). In this context we may
H refer with profit to Section 493 of the old Code. It reads as
K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 503
[DIPAK MISRA, J.]
follows:- A
"493 - Public Prosecutor may plead in all Courts in
cases, under his charge, Pleaders privately
instructed o be under his direction.- The Public
Prosecutor may appear and plead without any written B
authority before any Court in which any case of which he
has charge is under inquiry, trial or appeal, an if any private
person instructs a pleader to prosecute in any Court any
person in any such case, the Public Prosecution, and
the pleader so instructed shall act therein, under his C
directions."
28. In the aforesaid provision the legislature had employed
the words "before any Court in which any case of which he has
charge". In Bhimpappa Basappa Bhu Sannavarv. Laxman o
Shivarayappa Samagouda and others 10 explaining the word
"case" the court held:-
"The word "case" is not defined by the Code but its
meaning is well-understood in legal circles. In criminal E
jurisdiction means ordinarily a proceeding for the
prosecution of a person alleged to have committed an
offence. In other contexts the word may represent other
kinds of proceedings but in the context of the sub-section
it must mean a proceeding which at the end results either F
in discharge, conviction, or acquittal of an accused
person."
. 29. In Surjit Singh (supra) while dealing with an application
for withdrawal from prosecution under Section 494 of the Code G
by the Public Prosecutor, though in a different fact situation,
observed that:-
"Section 492 only deals with the appointment of Public
10 (1970) 1 sec 665 H
504 SUPREME COURT REPORTS [2015) 7 S.C.R.
A Prosecutors by the Government or by the District
Magistrate, in circumstances mentioned therein and
Section 493 specifically refers to the Public Prosecutor
who is in charge of the case which is under enquiry, trial
or appeal, when appearing and pleading before such
B Court. Section 493 only dispenses with the Public
Prosecutor having to file any written authority. That section
also makes it clear that if any private person is instructing
a pleader to prosecute any person "in any such case" -
which must have reference to the case of which the Public
c Prosecutor is in charge - nevertheless, the Public
Prosecutor shall conduct thei prosecution and the pleader
· " is to act under his directions. Section 494 also, in our
opinion, must refer only to the Public Prosecutor who is
in charge of the particular case in which he makes a
D
requestto withdraw from the prosecution. Some of these
aspects have been already advertad to by us earlier. If
any Public Prosecutor, who had nothing to do with a
particular case, is held entitled to file an application under
E Section 494, in our opinion, the result will be very
anomalous. For instance, if there are two Public
Prosecutors appointed for a particular court, and one of
the Public Prosecutors is conducting the prosecution in
a particular case, and desires to go on with the
F proceedings, it will be open to the other Public Prosecutor
to ask for withdrawal from the prosecution. Similarly, a
Public Prosecutor appointed for case A, before a
particular court, can, by virtue of his being a Public
Prosecutor, file an application in case B, with which he
G has nothing to do, and ask for permission of the court to
withdraw from the prosecution.
The r-:;a: ~nable interpretation to be placed upon Section
494, in our opinion, is that it is only the Public Prosecutor,
H who is in charge of a particular case and is actually
K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 505
[DIPAK MISRA, J.]
conducting the prosecution, that can file an application A
under that section, seeking permission to withdraw from
the prosecution. If a Public Prosecutor is not in charge of
a particular case and is not conducting the prosecution,
he will not be entitled to ask for withdrawal from
prosecution, under Section 494 of the Code." B
30. We have referred to this judgment in extenso only to
show the responsibility of a Public Prosecutor in charge of a
case. Section 301 occurs in Chapter XXIV CrPC that deals
with the "General provisions as to Inquiries and Trials''. Sections C
24 (8) and 301 (1) when read together, needless to say, confers
a right on the Public Prosecutor who is in charge of a case to
appear and plead without having any written authority. He
remains and functions as the sole authority in charge of the
case. There can be no cavil over the same. The core question D
is, whether "in charge of the case" would include an appeal
arising out of the said case in the hierarchical system. Section
24 (1) deals with the specific power of the Government to
appoint Public Prosecutor. Section 24(8) confers the power
on the State Government to appoint a Special Public E
Prosecutor for any case or class of cases. To give an example,
there can be a batch of cases under the Prevention of
Corruption Act against numb~r of persons arising out of
different Fl Rs but involving similar transactions. To have a F
proper trial the Government is entitled to appoint a Special
Public Prosecutor. If the word "case" is given a meaning to
include the appeal, it will be denuding the power of appointing
authority. The law does not so countenance. If the Government
by a notification appoints an eligible person clearly stating that . G
he shall conduct the trial as well as pursue the appeal arising
out of it, there will be no difficulty. Therefore, much stress cannot
be given on the words "without any written authority" as used
in Section 301. It can only mean that the Public Prosecutor
once engaged/appointed by the State, he can prosecute the H
506 SUPREMECOURTREPORTS [2015] 7 S.C.R.
A appeal without filing any formal authority for the said purpose.
It cannot be construed to the extent that solely because he has
been appointed in connection with the trial case, he can appear
before the High Court for which he has not been appointed in
pursuance of Section 24 (1) CrPC. Section 301(1) CrPC
B cannot be stretched to that extent. In that event, it would really
lead to an anomalous situation. A Public Prosecutor has to be
specifically appointed for the appeals or revisions or other
proceedings in the High Court. The anomalous situations, which
have been highlighted by Lokur, J. have our respectful
C concurrence. In fact, the Code does not remotely so envisage
and the contextual reading of all the provisions do not so convey.
Therefore, we ingeminate that a Public Prosecutor who is
appointed to conduct a case before the trial court cannot be
deemed to be appointed for the purpose of appeal arising
0
therefrom solely because of the language employed in Section
301{1)ofCrPC.
31. In view of our preceding analysis the 4th respondent
was not appointed by the State of Karnataka to argue the
E appeals before the High Court. Lokur, J. after holding that he
was not authorised to represent the prosecution in the
Karnataka High in the appeals has opined thus:-
"That being so, the final hearing proceedings in this
F regard before the High Court are vitiated and the appeals
filed by the accused persons being Criminal Appeals
Nos. 835-838 of 2014 will h.ave to be heard afresh by
the High Court."
G Banumathi, J. as has been discussed has upheld the
appointment of 4th respondent and, therefore, she has
dismissed the appeal.
32. As we have already held that the 4lh respondent could
H not have appeared in the appeal, the issue that has become
germane at this juncture is whether annulment of appointment
K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 507
[DIPAK MISRA, J.]
of Bhavani Singh as Public Prosecutor would entail de nova A
hearing of the appeal. We have been apprised that in
pursuance of the order passed by this Court the appeal has
been heard on day to day basis. The learned Judge has already
heard the appeal and is in the process of preparation of the
judgment. The appellant had submitted written note of B
submissions before the trial court which is more than 400
pages. The allegations against Bhavani Singh had been
dropped by the appellant in course of hearing of the writ
petition and hence, we refrain from delving into such allegations.
c
33. Be it noted, the appeal has been heard by the learned
Single Judge of the High Court and the appeal assails the
judgment of conviction and order of sentence passed under
the various provisions of the 1988 Act. It needs no special
emphasis that the appellate court has the sacrosanct duty to D
evaluate, appreciate and consider each material aspect
brought on record before rendering the judgment. That is
sacred duty of a Judge; and the same gets more accentuated
when the matter is in appeal assailing the defensibility of the
conviction in a corruption case. E
34. The case under the 1988Act has its own significance.
In Niranjan Hemchandra Sashittal v. State of
Maharashtra 11 , it has been held thus:-
F
"lt can be stated without any fear of contradiction that
corruption is not to be judged by degree, for corruption
mothers disorder, destroys societal will to progress,
accelerates undeserved ambitions, kills the conscience,
jettisons the glory of the institutions, paralyses the G
economic health of a country, corrodes the sense of civility
and mars the marrows of governance. It is worth noting
that immoral acquisition of wealth destroys the energy of
11 (2013) 4 sec 642 H
508 SUPREME COURT REPORTS [2015] 7 S.C.R.
A the people believing in honesty, and history records with
agony how they have suffered. The only redeeming fact
is that collective sensibility respects such suffering as it
is in consonance with the constitutional morality."
B 35. In Subramanian Swamy v. CB/12 , the Constitution
Bench while declaring Section 6-A of the Delhi Special Police
EstablishmentAct, 1946 unconstitutional, observed that:-
"Corruption is an enemy of the nation and tracking down
c corrupt public servants and punishing such persons is a
necessary mandate of the PC Act, 1988. It is difficult to
justify the classification which has been made in Section
6-A because the goal of law in the PC Act, 1988 is to
meet corruption cases with a very strong hand and all
D public servants are warned through such a legislative
measure that corrupt public servants have to face very
serious consequences."
And again,
E "Corruption is an enemy of nation and tracking down
corrupt public servant, howsoever high he may be, and
punishing such person is a necessary mandate under
the PC Act, 1988. The status qr position of public servant
does not qualify such public servant from exemption from
F
equal treatment. The decision-making power does not
segregate corrupt officers into two classes as they are
common crimedoers and have to be tracked down by
the same process of inquiry and investigation."
G 36. We have referred to the aforesaid two authorities only
to highlight the gravity of the offence. We are absolutely sure
that the learned Single Judge, as the appellate Judge, shall
keep in mind the real functioning of an appellate court. The
H 12
(2014) a sec aa2
,
K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 509
1
[DIPAK MISRA, J.]
appellate court has a duty to make a complete and A
comprehe11sive appreciation of all vital features of the case.
The evidence brought on record in entirety has to be scrutinized
with care and caution. It is the duty of the Judge to see that
justice is appropriately administered, for that is the paramount
consideration of a Judge. The said responsibility cannot be B
aodicated or abandoned or ostracized, even remotely, solely
because there might not have been proper assistance by the
counsel appearing for the parties. The appellate court is
required to weigh the materials, ascribe concrete reasons and
the filament of reasoning must logically flow from the requisite C
analysis of the material on record. The approach cannot be
cryptic. It cannot be perverse. The duty of the Judge is to
consider the evidence objectively and dispassionately. The
reasonings in appeal are to be well deliberated. They are to D
be resolutely expressed. An objective judgment of the ~vidence
reflects the greatness of mind - sans passion and sans
prejudice. The reflective attitude of the Judge must be
demonstrable from the judgment itself. A judge must avoid all
kind of weakness and vacillation. That is the sole test. That is E
the litmus test. This being the position of a Judge, which is
more elevated as the appellate Judge, we are of the
considered opinion that there is no justification for rehearing
of the appeal as the matter has been heard at length arid
reserved for verdic' •1,.,_, t=.1ppellant has submitted his written F
note of submissions before the triai court and, therefore, we
are inclined to permit him to file a written note of submissions
within 90 pages before the learned Single Judge/Appellate
Judge. The State of Karnataka, which is the prosecuting
agency, is granted permission to file written note of G
submissions within 50 pages. The written submissions be filed
latest by 28.4.2015.. The written note of submissions filed
before the trial court and the High Court along with written note
of submissions of State of Karnataka shall be considered by
the learned Single Judge and the consideration should be H
510 SUPREME COURT REPORTS [2015] 7 S.C.R.
A manifest in the judgment. Written note of submissions, if any,
by the 4th respondent shall not be considered by the learned
Judge. A copy of our judgment be sent by the Registry of this
Court in course of the day to the Registrar General of the High
Court of Karnataka so that he can place the judgment before
B the learned Single Judge for perusal and guidance.
37. In view of our preceding analysis, we proceed to record
our conclusions in seriatim:-
c (a) The State of Tamil Nadu had no authority to appoint
the 4th respondent, Bhavani Singh as the Public
Prosecutor to argue the appeal.
(b) It is the State of Karnataka which is the sole
prosecuting agency and it was alone authorized to
D
appoint the Public Prosecutor.
(c) The appointment of 4th respondent, Bhavani Singh
as the Public Prosecutor for the trial did not make him
eligible to prosecute the appeal on behalf of prosecuting
E agency before the High Court.
(d) The appointment of a Public Prosecutor, as envisaged
under Section 24(1) CrPC in the High Court is different
than the appointment of a Public Prosecutor for the
F District Courts; and that the Notification appointing the
4th respondent did not enable him to represent the State
of Karnataka in appeal.
(e) Though the appointment of the 4th respondent is bad
G in law, yet there is no justification to direct for de novo
hearing of the appeal, regard being had to the duties of
the appellate Judge, which we have enumerated
hereinbefore, especially in a case pertaining to the
Prevention of Corruption Act, 1988;
H
K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 511
[DIPAK MISRA, J.]
(f) The appellant as well as the State of Karnataka are A
entitled to file their written note submissions within the
framework, as has been indicated in para 36.
(g) The learned Appellate Judge, after receipt of our
judgment sent today, shall peruse the same and be B
guided by the observations made therein while deciding
the appeal.
38. Consequently, the appeal stands disposed of in above
terms. c
NidhiJain Appeal disposed of.
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