Saturday 11 July 2015

Let Justice Prevail!


Arignar Anna said, “Law is a dark room and the argument of a lawyer is a light”.
But Jayalalitha engaged leading lawyers of the county and attempted to put out even the dim light and turn into total darkness in law. Now slowly light seems to be dawning.
The daily ‘The Hindu’, considered being moderate and not hawkish, in an editorial on April 29 under the heading ‘Lessons from a verdict’ stated:
“Three conclusions may be drawn from the Supreme Court ruling that the Tamil Nadu government did not have the jurisdiction to appoint a Special Public Prosecutor to handle the appeals filed by former Chief Minister Jayalalitha.
First, it reflects poorly on the State government, which displayed what the court called “anxiety” to ensure representation for the prosecution when her bail application came up for hearing immediately after her conviction in a Bengaluru Special Court in September last year.
Secondly, the Tamil Nadu and Karnataka governments demonstrated inexcusable ignorance of the legal position that once a case was transferred from one State to another, the transferring State loses jurisdiction to pursue it further. This position had been underscored by the Supreme Court only a few years ago.
Thirdly, the Supreme Court continues to lay emphasis on the purity of the criminal process in corruption cases and will not countenance attempts to derail the process.
Fears that the disposal of the appeals made in the Karnataka High Court by Jayalalitha and her three associates against their four-year jail term would be delayed have been allayed, as the three-judge Bench headed by Justice Dipak Misra has ruled out a de novo hearing. It has also clarified that Section 301 of the CrPC (which says a Special Prosecutor appointed for a ‘case’ may appear without written authority in any court) does not mean that a person appointed as prosecutor in a district court could also appear before a High Court in the same case.
The Karnataka government has now brought back B.V. Acharya, who had earlier vigorously prosecuted the case but was forced to resign, to represent it while filing its submissions before the High Court. It will be seen as a legal setback to Jayalalitha mainly because she and her lawyers gave the impression that they wanted Bhavani Singh to be the prosecutor in the appellate stage too. They ought to have known that no court would allow the accused to choose the counsel for the prosecution. As a result, the court has asked the High Court to disregard Singh’s written submissions, if any.
The Supreme Court’s reminder to the High Court that corruption has a “corroding effect”, that it is the duty of an appellate judge to scrutinise objectively the evidence on record in its entirety and that his reasoning ought to be “resolutely expressed”, may cause some anxiety to the defence as to whether there is any implicit direction to the High Court to decide the matter in a particular manner. However, a look at the context would show that the Supreme Court is doing no such thing. Rather, it is only reinforcing its view that want of proper assistance from one side need not affect the outcome if the appellate judge is sufficiently objective and avoids weakness and vacillation.
It is now pertinent to go through the landmark verdict of the Supreme Court on April 27 in detail:
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  4th  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 SCC 767, only  the  State  of  Karnataka  can  appoint  a Special Public Prosecutor. Order hastily passed by the State of  Tamil  Nadu on 29.09.2014 authorizing D.V. & A.C to engage    Bhavani  Singh  as  its Special Public Prosecutor is 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  old  sagacious  saying that “anxiety is the poison of human life”.
The difference of opinion between  the  learned  Judges  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  Acharya  resigned,  his  appointment  would 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 hold thus:-
“89. The only reasonable interpretation that can  be  given  to  the  scheme laid out in Sections 24, 25, 25-A and 301(1) of the Code is  that  a  Public Prosecutor appointed for the High Court and  who  is  put  in  charge  of  a particular case in the High Court, can appear and plead in  that  case  only in the High Court without any written authority whether that case is at  the stage of  inquiry  or  trial  or  appeal.  Similarly,  a  Public  Prosecutor appointed for a district and who is put in charge of a  particular  case  in that district, can appear and plead  in  that  case  only  in  the  district without any written authority whether that case is at the stage  of  inquiry or trial or appeal. So also, an Assistant Public Prosecutor who  is  put  in charge of a particular case in the court of a  Magistrate,  can  appear  and plead in that case only in the court of a  Magistrate  without  any  written authority whether that case is at the stage of inquiry or trial  or  appeal.
Equally, a Special Public Prosecutor who is put in charge  of  a  particular case can appear and plead in that case only in the  court  in  which  it  is pending without any written authority whether that case is at the  stage  of inquiry or trial or appeal.  In  other  words,  Section 301(1) of  the  Code enforces the ‘jurisdictional’ or ‘operational’ limit and enables the  Public Prosecutor and Assistant Public  Prosecutor  to  appear  and  plead  without written authority only within that ‘jurisdictional’ or ‘operational’  limit, provided the Public Prosecutor or the  Assistant  Public  Prosecutor  is  in charge of that case. 90.  The  converse  is  not  true,  and  a  Prosecutor  (Public  Prosecutor,
Assistant Public Prosecutor or Special Public  Prosecutor)  who  is  put  in charge of a particular case cannot appear and plead  in  that  case  without any written authority outside his or her ‘jurisdiction’ whether  it  is  the High Court or the district or the court of a  Magistrate.  In  other  words, Section 301(1) of the Code maintains a  case  specific  character  and  read along  with  Sections 24, 25 and 25-A of  the  Code  maintains  a  court  or district specific character as well.”
After so stating,  Lokur,  J.  referred  to  the  Constitution  Bench judgment in State of Punjab v. Surjit Singh[8] and held:-
“93. The Constitution Bench referred to what would be  an  anomalous  result if a Public Prosecutor who had nothing to do with  the  particular  case  is entitled to file an application for withdrawal Under Section 494 of the  old Code. By way of illustration, the Constitution Bench  noted  that  if  there are two Public Prosecutors appointed for a particular court and one of  them is conducting the prosecution in a particular case  and  desires  to  go  on with the proceedings, it will be open to the other Public Prosecutor to  ask for withdrawal  from  the  prosecution.  Similarly,  it  was  illustratively observed that a Public Prosecutor appointed for case A before  a  particular court, can, by virtue of his being a Public Prosecutor file  an  application in case B, with which he has nothing to do, and ask for  permission  of  the court to withdraw from the prosecution. Extrapolating this  illustration  to the facts of the present case, the result would certainly be anomalous if  a Public Prosecutor appointed for case A before a particular Court  (read  Mr. Bhavani Singh appointed for the case against the accused persons before  the Special Court) can by virtue of being a Public Prosecutor appear in  case  B with which he has nothing to do (read the  criminal  appeals  filed  in  the Karnataka High Court).
It  is  in  this  context  that  the  Constitution  Bench   held   that Section 494 of the old Code refers only to a Public Prosecutor in charge  of a particular case and is actually conducting the prosecution  who  can  take steps in the matter. Under the circumstances, though Mr. Bhavani  Singh  was entitled to conduct the trial before the Special  Court  in  an  appropriate manner, merely because he was  in  charge  of  the  prosecution  before  the Special Court did not entitle  him  to  continue  with  the  ‘case’  in  the criminal appeals filed in the High Court.
Consequently,  Bhavani Singh  having  been  appointed  as  a  Special Public Prosecutor for a specific case  pertaining  to  the  accused  persons before the Special Court was  answerable  in  all  respects  to  the  Deputy Director of Prosecution in terms of  Section 25-A(6) of  the  Code  and  his authorization was limited only  to  that  case  before  the  Special  Court.
Therefore, this precluded him from appearing on behalf of  the  prosecution in the appeals filed by the accused persons in the High Court. He  needed  a specific authorization in  that  regard  which  would  have  then  made  him subordinate  to  the  Director  of  Prosecution  and   not   continued   his subordination to the Deputy Director of Prosecution.”
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 of a case in the court of a Magistrate can claim,  on  the  basis  of Section 301(1) of  the  Code,  to  appear  and  plead  without  any  written authority before any court in which that case  is  under  appeal,  including the High Court of the State. Since a police officer can  also  be  appointed as an Assistant Public Prosecutor, acceptance of  the  argument  would  mean that a police officer (appointed as  an  Assistant  Public  Prosecutor)  can appear and plead without any written authority in  the  High  Court  of  the State in  which  that  case  is  under  appeal,  which,  by  no  stretch  of imagination, can be the intent of Section 301(1) 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 charge of that case in  the  district  or  an  Assistant  Public  Prosecutor (including a police officer) in charge of  that  case  in  the  court  of  a Magistrate appears in the  High  Court  in  the  appeal  relying,  for  this purpose, upon Section 301(1) of the Code. Then,  in  the  appeal,  the  said Public Prosecutor or the said  Assistant  Public  Prosecutor  could  take  a stand that is diametrically opposed to or in conflict with the stand of  the Public  Prosecutor  before  the  High  Court   and,   therefore,   such   an interpretation cannot be placed on Section 301(1) of CrPC.
First, we shall advert to this difference of opinion and  thereafter proceed to dwell upon the pertinent consequent impact……..
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 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 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  that  the  4th 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 refer with profit to Section 493 of the old Code.  It reads as follows:-
“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  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 directions.”
The reasonable  interpretation  to  be  placed  upon  Section  494,  in  our opinion, is that it is only the Public Prosecutor, who is  in  charge  of  a particular case and is actually conducting the prosecution,  that  can  file an application under that section, seeking permission to withdraw  from  the prosecution. If a Public Prosecutor is not in charge of a  particular  case and is not conducting the prosecution, he will not be entitled  to  ask  for withdrawal from prosecution, under Section 494 of the Code.”
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 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 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 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 number of persons  arising  out  of different FIRs but involving similar transactions.  To have a  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 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 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  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 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  therefrom  solely  because  of  the  language employed in Section 301(1) of CrPC.
In  view  of  our  preceding  analysis  Bhavani Singh 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 in the appeals has opined thus:-
“That being so, the final hearing proceedings  in  this  regard  before  the High Court are vitiated and the appeals filed by the accused  persons  being Criminal Appeals Nos. 835-838 of 2014 will have to be heard  afresh  by  the High Court.”
Banumathi, J. as has been discussed has upheld the appointment of  Bhavani Singh and, therefore, she has dismissed the appeal.
As we have already  held  that  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 Bhavani Singh  as  Public  Prosecutor would entail de novo 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 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.
Be it noted, the appeal has been heard by the 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 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.
The case under the 1988 Act has its own significance.   In  Niranjan Hemchandra Sashittal v. State of Maharashtra[11], it has been held thus:-
“It can be stated without any fear of contradiction that corruption  is  not to  be  judged  by  degree,  for  corruption  mothers   disorder,   destroys [pic]societal will to progress, accelerates undeserved ambitions, kills  the conscience, jettisons the glory of the institutions, paralyses the  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 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.”
In  Subramanian  Swamy  v.  CBI[12],  the  Constitution  Bench  while declaring Section 6-A of the Delhi Special Police  Establishment  Act,  1946 unconstitutional, observed that:-
“Corruption is an enemy of the  nation  and  tracking  down  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 public servants are  warned through such a legislative measure that  corrupt  public  servants  have  to face very serious consequences.”
And again,
“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 or position of public servant  does  not qualify such public servant from exemption from  [pic]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.”
We have referred to the aforesaid two authorities only to  highlight the gravity of the offence.  We are absolutely sure that the Single Judge, as the appellate Judge, shall 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 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 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 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 be resolutely expressed.  An objective judgment of the evidence 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  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 and reserved for verdict.  The appellant has  submitted  his  written note of submissions before the trial 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 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   Single  Judge  and   the consideration  should  be  manifest  in  the  judgment.    Written note  of submissions, if any, by Bhavani Singh hall 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 the Single  Judge for perusal and guidance.
In  view  of  our  preceding  analysis,  we  proceed  to  record  our conclusions in seriatim:-
(a)   The  State  of  Tamil  Nadu  had  no  authority  to  appoint   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 appoint the Public Prosecutor.
(c)   The appointment  of   Bhavani  Singh  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.
(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 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 Bhavani Singh is bad 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;
(f)   The appellant as well as the State of Karnataka are entitled  to  file their written note submissions within the framework, as has  been  indicated in para 36.
(g)   The Appellate  Judge,  after  receipt  of  our  judgment  sent today, shall peruse the same and be guided by the observations made  therein while deciding the appeal.
Consequently, the appeal stands disposed of in above terms.
The law abiding citizens of this nation will only wish and hope that Justice will prevail, at last!

(03-05-15)

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