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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