Kumar, J.

1. The petitioner has challenged in this Writ Petition the appointment of the second respondent as Special Public Prosecutor for conducting the case in the Court of the Additional Sessions Judge, Kolar, in S.C.No.239/2004 c/w SC 214/2004 in Crime No.4/2003 registered by the Gownapalli Police, Srinivasapura Taluk, Kolar District

2. The case of the petitioner is he is arrayed as the first accused and he is facing trial in S.C.No. 239/2004 for the offences punishable under Sections 120(B), 143, 144, 147, 148,320 read with Section 3(2) (V) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. He contends that earlier in the said case the State was represented by a Public Prosecutor attached to the Department of Prosecution, Government of Karnataka. When the second respondent entered his appearance in the case he made enquiry and came to know that by the impugned order he is appointed a Special Public Prosecutor. The said appointment is made on the basis of a representation given by Smt. SuryaKalavathi, the wife of deceased Shama Shankara Reddy to the Law Minister who had written a note on the very same representation calling upon the Law Secretary to appoint a Special Public Prosecutor on the condition that the applicant should bear the expenses. Smt. Surya Kalavathi in the said representation has not given any reason as to the necessity of appointment of a Public Prosecutor and why the Public Prosecutor who was already appearing in the case was required to be replaced. Along with the representation the applicant has enclosed a consent letter of the second respondent. Therefore, the Law Minister has mechanically directed the Law Secretary to appoint a Special Public Prosecutor on the mere asking of Smt. Surya Kalavathi without in the least considering whether it was justifiable, necessary or warranted in the given situation to appoint a Special Public Prosecutor. The order directing the applicant to bear the expenses is ex facie illegal and without jurisdiction. The said appointment has subjected him to manifest injustice d grave hardship in as much as the case of the State against the petitioner has now turned out to be a private litigation between SuryaKalavathi and the petitioner. The entire prosecution launched by the State is now represented by a prosecutor who is paid by a private litigant and who is not a public servant. Second respondent would not be partial or fair to both sides in the presentation of the case. The Special Public Prosecutor has to be paid from the State exchequer and not by private parties and therefore he has ought for quashing of the said appointment.

3. To the petition the petitioner did not make the said. Smt. Surya Kalavathi a party. She filed an impleading application which was allowed by this Court. She has filed a statement of objections contending that this petition is liable to be dismissed on the ground of delay and latches as the impugned order is challenged 18 months after the order was passed. Immediately after the passing of the order the second respondent appeared before the Sessions Judge, Kolar, and has filed power and thereafter he has been continuously appearing before the Court. He also appeared in Criminal Miscellaneous 214/2003 on the file of the Sessions Court, Kolar, filed by the petitioner seeking bail and opposed the bail application and the said application came to be rejected and, therefore, the petitioner has acquiesced with the appointment of the second respondent. It was also contended that accused has no locus standi to challenge the appointment of the second respondent as Special Public Prosecutor, as he has no say as to who should conduct the prosecution against him. She further contended the Government terminated the services of the second respondent by an order dated 27-8-2004 which was challenged by her before this Court in W.P.No.41301/2004. The said Writ Petition was allowed and the order of termination was set aside restoring his order of appointment. The petitioner has suppressed this material fact and as such the petitioner has not come to this Court with clean hands. It is only after the aforesaid order passed by this Court the present Writ Petition is filed and stay of the operation of the order appointing the second respondent is obtained. She contends the case in question involves serious crimes. Having regard to the complex nature of the case requiring special study and also the fact that the accused are influential persons, Government thought it fit to appoint respondent No.2 as Special Public Prosecutor. The same appears to have been done after consulting concerned authorities. Since the offences include offence under the provisions of the SC/ST (Prevention of Atrocities) Act, it is mandatory in law to appoint a Special Public Prosecutor. The Government order in question has been passed after following the procedure prescribed by law and there is no infirmity in the same.

4. The second respondent whose appointment is challenged in this proceedings has entered appearance through a counsel. He contends the petitioner and 18 others who are accused are being tried for the offences punishable under Sections 143, 144, 147, 148, 302 read with 149 IPC and Section 3(2) (v) of SC/ST (Prevention of Atrocities) Act. Petitioner/accused No.1 and others have committed brutal and heinous crime of murder of deceased Shamashankar Reddy and his friend Kadirappa on 31-3-2003 at 10am near Thummalararipally Jungle road in a broad day light with deadly weapons. The crime being very serious, sensational in the District of Kolar and State of Karnataka, in view of seriousness of the offence taking into consideration the persons involved, the background of the offences committed, the Government of Karnataka transferred the case from Gownipally Police to Deputy Superintendent of Police (H and B) COD, Bangalore. During the investigation COD police filed a charge sheet against 15 persons including petitioner who is strong follower of former Speaker of Karnataka Legislative Assembly Sri Ramesh Kumar present sitting M.L.A. of Srinivasapura. The investigation has revealed that the petitioner is the architect of the commission of the offence and he with the brain of Ramesh Kumar conspired with other co accused persons and hatched the plan to perpetrate the ghastly crime in the broad day light on the high way. The Government of Karnataka appointed him as Special Public Prosecutor after detailed inquiries made through the Deputy Director of Prosecution and also through the representation given by the deceased wife Surya Kalavathi. It is further stated that the second respondent having record service has conducted more than 100 sessions case. The special circumstances which warrant the Government to appoint him as stated earlier is the seriousness of the offence committed by the petitioner which had a very wide sensational publicity in the District of Kolar and Karnataka through press and media. Being convinced with the seriousness of the offence and antecedent of the petitioner and other accused persons the Government passed an order appointing him as Special Public Prosecutor to conduct the case. The circumstances warrants his appointment and statement of grounds in the Writ Petition is not supported by any material more so supportive prima facie material to interfere with the impugned order. It is further stated a notification was issued by the State Government on 27-8-2004 by terminating his services on the basis of the influence made on the Government by interested persons. Aggrieved by the order of the Government, the wife of the deceased preferred Writ Petition No. 41301/2004 and the same was allowed. The said fact is suppressed by the petitioner only with an intention to mislead this Court. In the said case also the Government misled the Court stating that the Special Public Prosecutor was not appearing for the trial. On being satisfied that the ground was not correct the order terminating services came to be set aside by this Court. Now, petitioner has filed this case with mala fide intention to escape from the clutches of law. If he is continued no prejudice would be caused to the petitioner and others.

5. In the application filed for vacating the interim order of stay granted by this Court the second respondent has stated from the record there is nothing to show that he is favouring the wife of the deceased. The wife of the deceased has no confidence even on the Government since sitting MLA and ex-speaker of Karnataka is also one of the accused who is competent to manage the things. The basic concept under the law is that it is the choice of the party to engage any advocate to render justice. The right to be heard includes the right to be represented by an able spokesman of ones confidence. Therefore, his appointment is justified.

6. The learned counsel appearing for the petitioner assailing the impugned order contended a reading of the impugned order shows that there is no application of mind, no reasons are given, no special circumstance exist for appointing the second respondent as a Special Public Prosecutor. He contended the said appointment has been made at the instance of the sitting MLA at that point of time one Sri. Venkatashiva Reddy who is the political opponent of the petitioner. Therefore, it is a case of mala fide exercise of power. Thirdly, it was contended the impugned order directs that Smt. Shama Shankar Reddy shall bear the expenses/remuneration payable to the Special Public Prosecutor which is wholly impermissible in law. Lastly, it was contended in view of the stand taken by the second respondent as contained in the statement of objections to the main petition as well as to the application for stay it is clear he is not acting as a public prosecutor but he is acting as a private counsel of the complainant and his conduct shows he is not fair to the accused, as such the concept of fair trial would not be there if second respondent acts as Special Public Prosecutor and, therefore, the impugned order requires to be quashed.

7. Sri. B. V. Acharya, the Learned Senior Counsel appearing for the complainant, submitted in the first place the Writ Petition is liable to be rejected on the ground of delay and latches in as much as the order appointing the second respondent was passed on 28-4-2003, the said copy was produced before the Sessions Court on 29-4-2003 when second respondent entered appearance and the Writ Petition field on 20-12-2004 one year eight months thereafter cannot be entertained. Secondly, he contended the second respondents appointment was cancelled by the Government by its order dated 27-8-2004 which was challenged by the complainant in Writ Petition No.41301/2004 and the Writ Petition was allowed on 6-12-2004. Though petitioner was not a party to the said proceedings, a copy of the said order was produced in the Sessions Court and the petitioner was made aware of the same. But, the petitioner in the Writ Petition has suppressed the said fact and has obtained an interim order of stay. Thirdly, it was contended when the impugned order of appointment was made at the request of the complainant in the present Writ Petition where the said order is challenged she is not made a party. She had to come on record by impleading herself. Fourthly he submitted in the matter of appointment of a Public Prosecutor or a Special Public Prosecutor, the accused has no say in the matter and, therefore, he cannot challenge the order of appointment. He also submitted the section by itself do not contemplate the existence of any special circumstances for appointing the Special Public Prosecutor; Merely because the complainant is directed to pay his remuneration would not invalidate the order; Fair trial includes fair opportunity to prosecute the accused by the complainant; Having regard to the fact the complainants husband was brutally murdered with another person having regard to the personalities involved, the appointment of a Special Public Prosecutor cannot be found fault with. On a mere allegation that the trial would not be fair and the second respondent would not protect the interest of the accused his appointment cannot be quashed.

8. Learned Government advocate supporting the impugned order contends firstly the accused/petitioner has no locus standi to challenge the order of appointment of a public prosecutor. Secondly, he contends order directing the complainant to bear the expenses of the public prosecutor by itself would not vitiate the order and, therefore, he submits the petition is liable to be rejected.

9. Learned Counsel for the second respondent submitted the stand of the second respondent is made clear in the statement of objections as well as in the application filed for vacating stay. But, nonetheless they have filed a memo seeking leave of the Court to withdraw the said statement of objections and, therefore, the Court may decide the case ignoring the averments made in the statement of objections and the appointment of second respondent is legal and valid and do not suffer Tom any legal infirmities calling for interference by this Court. Therefore, he prays that the Writ Petition be dismissed.

10. From the aforesaid material and the submissions made the following points arise for consideration:-

(1) What is the status, responsibilities of a public prosecutor in a criminal trial

(2) How and under what circumstances a Special Public Prosecutor could be appointed

(3) How, the remuneration is to be paid to the Special Public Prosecutor

(4) Whether the accused has a right to challenge the order of appointment of a Special Public Prosecutor

(5) Whether the impugned order appointing the second respondent as the Special Public Prosecutor is liable to be quashed

(6) Whether this Writ Petition is liable to be dismissed on the ground of delay, latches, suppression of material facts, etc.,

11. In order to answer the aforesaid points it is necessary to have a look at the law on the subject. The learned Counsel for the parties have relied on a number of judgments to support their respective contentions.

12. In the case of P. G. Narayanankutty Vs. State Of Kerala And Others 1982 Crl.L.J. 2085 a learned Judge of the Kerala High Court has held that, Special Public Prosecutor cannot be appointed with a view to secure conviction at all cost. Special Public Prosecutor could be appointed only when public interest demands it and not to vindicate the grievance of a private person, such as close relation of the deceased. In order that he discharges his duties properly, he should look to the State for remuneration for his services if he looks to a private party for his remuneration, his capacity and ability to perform his role as Public Prosecutor properly will be endangered. Government cannot appoint Special Public Prosecutor on such terms, abdicating their financial responsibility or directing him to receive his remuneration from any private individual or expecting him to work without remuneration.

13. On the role of the Prosecutor it was held that, he is an officer of the Court expected to assist the Court in arriving at the truth in a given case. The Prosecutor no doubt, has to vigorously and conscientiously prosecute the case so to serve the high public interest of finding out the truth and in ensuring adequate punishment to the offender. At the same time, it is no part of his duty to secure by fair means or foul conviction in any case. He has to safeguard public interest in prosecuting the case; public interest also demands that the trial should be conducted in a fair manner, heedful of the rights granted to the accused under the laws of the country including the Code. The Prosecutor, while being fully aware of his duty to prosecute the case vigorously and conscientiously, must also be prepared to respect and protect the rights of the accused.

14. The Delhi High Court in the case of Ajay Kumar vs. State And Another 1986 Crl. L.J. 932 dealing with the role of a Public Prosecutor held that, the public prosecutor is a functionary of the State appointed to assist the Court in the conduct of a trial, the object of which is basically to find the truth and to punish the accused if he is found guilty according to the known norms of law and procedure. It is no part of his obligation to secure conviction of an accused, if any event, or at all costs. Nor is he intended to playa partial role or become party to the persecution of the accused or lend support, directly or indirectly, to a denial of justice or of fair trial to the accused. His plain task is to represent the States point of view on the basis of the material which could be legitimately brought before the Court at the trial. If all State actions must be just, fair and reasonable, he would be under no less duty as a functionary of the State to discharge his functions as a public prosecutor in an equally just, fair and reasonable manner irrespective of the outcome of the trial. In that sense, he is part of the judicature system, and an upright public prosecutor has no mends and foes in Court. He has no prejudices, preconceived notions, bias, hostility or his own axe to grind. He represents public interest but is not a partisan in the narrow sense of the term.

15. A public prosecutor has no client or constituency apart from the State and State is not a party like any other party. He is not paid by an individual who may be aggrieved or by the accused who is on trial. He, therefore, does not have the disability of a dual personality, which is certainly true of an ordinary advocate, who is tom, in the thick of his practice in Court, between the wider loyalty to public interest, to the Court system, claim of straight and rigid adherence to truth and discipline on the one hand, and his narrow, as also monetary, association with the individual litigant or the institution, whom he represents on the other. An advocate-client relationship introduces a personal element from which the public prosecutor must be considered immune. He is above the personal loyalty. He does not have a dual capacity.

16. There is a clear distinction between a private counsel engaged to assist a Public Prosecutor and private counsel, who has been appointed as a Special Public Prosecutor by the State. In the latter case, he is a Public Prosecutor because he has been appointed as such while in the former case, he is a Public Prosecutor because he has been acting under the direction of a Public Prosecutor.

17. Public Prosecutors were expected to act in a "scrupulously fair manner" and present the case "with detachment and without anxiety to secure a conviction" and that the Courts trying the case "must not permit the Public Prosecutor to surrender his functions completely in favour of a Private Counsel." Public Prosecutor for the State was not such a mouth piece for his client the State, to say what it wants or its tool to do what the State directs. "He owes allegiance to higher cause". He must not consciously "misstate the facts", nor "knowingly conceal the truth". Despite his undoubted duty to his client, the State, "he must sometimes disregard his clients most specific instructions if they conflicted with the duty in the Court "to be fair, independent and unbiased in his views".

18. In Prabhudayal vs. State 1986 CRL.LJ. 383 a learned Judge of the Delhi High Court has observed that, the prosecutor has to be fair in the presentation of the prosecution case. He must not suppress or keep back from the Court evidence relevant to the determination of the guilt or innocence of the accused. He must present a complete picture and not one sided picture. He must not be partial to the prosecution or to the accused. He has to be fair to both sides in the presentation of the case.

19. This is because the office of the Public Prosecutor carries very great public importance in the scheme of criminal trials in Sessions Court.

20. The mere fact that the accused in a particular case are engaging a leading criminal lawyer is hardly sufficient to make it a special situation warranting appointment of a Special Public Prosecutor. If a norm is accepted by Government that a Special Public Prosecutor shall be appointed when accused engaged a competent or leading advocate, it is likely to bring about anomalous situation because in very many sessions trials accused would engage leading criminal lawyers to defend them. Then the Government would be obliged to appoint a Special Public Prosecutor in all cases in which accused engage a competent or a leading advocate.

21. The Supreme Court in the case of Shivkumar vs. Hukam Chand And Another 1999 SCC (Crl) 1277 observed as under:-

A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the Court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instruction given by the Public Prosecutor.

22. In Medichetty Ramakistiah vs. State Of Andhra Pradesh AIR 1959 AP 659 [LQ/TelHC/1959/56] , the Andhra Pradesh High Court held as under:-

The principles that the Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing any anxiety to secure a conviction, is based upon high policy and as such Courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the Court to obtain its decision thereon and not to obtain a conviction by any means fair or foul. Therefore, it is right and proper that Courts should be zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman instructed by a private party and unless, therefore, the control of the Public Prosecutor is there, the prosecution by a pleading for a private party may degenerate into a legalised means for wreaking private vengeance.

23. In the case of Abudl Khader Musliar vs. Government Of Kerala And Others 1993 CRL. L.J. 1249 reported in it is held, a Special Public Prosecutor is not to be appointed in ordinary circumstances. Where an application for appointment of Special Public Prosecutor was made on the ground that the accused in a murder case had engaged a leading lawyer as their advocate to defend them and the appointment was made by the Government without conducting enquiry or without calling for remarks of any other officer, the appointment was bad in law as the mere fact that the accused in a particular case are engaging a leading criminal lawyer is hardly sufficient to make it a special situation warranting appointment of a Special Public Prosecutor. If a norm is accepted by Government that a Special Public Prosecutor shall be appointed when accused engage a competent or leading advocate, it is likely to bring amount anomalous situation because in very many sessions trial accused would engage leading criminal lawyers to defend them. Consequently the Government would be justified in rescinding such order on calling for and then considering the reports from Superintendent of Police, District Collector and Director General of Prosecution.

24. The Supreme Court in the case of Mukul Dalal And Others vs. Union Of India And Others 1988 (3) SCC 144 [LQ/SC/1988/280] has held, the request for appointment of a Special Public Prosecutor should be properly examined by the Remembrancer of Legal Affairs on the basis of guidelines prescribed or to be prescribed and only when he is satisfied that the case deserves the support of a Public Prosecutor or a Special Public Prosecutor that such a person should be appointed to be in charge of the case. There may be instances where a case instituted on a private complaint is really a public cause. In such a case the prosecution though initiated by a private individual is really one which should be taken over by the State. There may also be cases of private complainants where for various other reasons it would be appropriate for the State to support the prosecution by appointing a Public Prosecutor or a Special Public Prosecutor to look after the case. Similarly there may be cases where a powerful complainant may have begun a proceeding to victimize his opponent. If in such a case the State concedes to the request for appointment of a Special Public Prosecutor there will be travesty of justice. Therefore, it would not be appropriate to accept the position that whenever an application is made it should be allowed and a Special Public Prosecutor should be appointed. The primary given to the Public Prosecutor under the scheme of the Code has a social purpose and the same would be lost if the procedure adopted by Rule 22 of Maharashtra Rules is accepted.

The Remembrance of Legal Affairs should also scrutinize request of private complainants for making payment to the Special Public Prosecutor by them and decide in which cases such request should be accepted, keeping in view the prescribed guidelines and the facts of such case. Ordinarily, the Special Public Prosecutor should be paid out of the State funds even when he appears in support of a private complainant but there may be some special case where the Special Public Prosecutors remuneration may be collected from the private source, such as where the prosecutor is a public sector undertaking, a bank whether nationalized or not, an educational institution and the like. The rate of fees should be prescribed and the private complainant should be called upon to deposit the fees either with the Remembrancer of Legal Affairs or a prescribed State agency from where the fees would be drawn by the Special Public Prosecutor. To leave the private complainant to pay to the Special Public Prosecutor would indeed not be appropriate.

25. Point Nos. (1), (2) and (3):

STATUS

The word "Public Prosecutor" has been defined under the Code. Section 2(u) of the Code states that "Public Prosecutor" means any person appointed under Section 24 and includes any person acting under the directions of Public Prosecutor. Therefore, the word Public Prosecutor includes Public Prosecutor, Additional Public Prosecutor, Special Public Prosecutor and a Pleader instructed by a private person under Section 301(2) of the Code. The office of the Public Prosecutor is a public one. He is a public servant. Special status and position as well as great powers have been conferred on the office of Public Prosecutor. Under the Criminal Procedure Code, the Public Prosecutor has a special status and his is a statutory appointment. Under some of the provisions made in the code, he receives special recognition. Sections 199(2), 225, 301(1), 301(2), 302, 308, 321, 377 and 386 are some of the provisions in the Code which confer a special position upon the Public Prosecutor. He is a part of the judicial system. He is an officer of the Court and must act independently and in the interests of justice. The primary given to the Public Prosecutor under the scheme of the Code has a social purpose. The office of the Public Prosecutor involves duties of public nature and of vital interest to the public. In criminal cases the State is the Prosecutor. The State by Public Prosecutor is the party and not the complainant. The Prosecutor is bound by law and professional ethics and by his role as an officer of Court to employ only fair means. Public Prosecutor must remind himself constantly of his enviable position of trust and responsibility.

RESPONSIBITIES:-

26. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused some how or the other irrespective of the true facts of the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court to the investigation agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial, the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel over looked it, the Public Prosecutor has the added responsibility to bring it to the notice of the Court, if it comes to his knowledge.

27. It is an office of responsibility more important than others because the holder is required to prosecute with detachment on the one hand and yet with vigour on the other. An upright Public Prosecutor has no friends and foes in Court. He has no prejudices, preconceived notions, bias, hostility or his own axe to grind. He represents public interest. He has no client or constituency apart from the State. He is above the personal loyalty. He does not have a dual capacity. He has to safeguard public interest in prosecuting the case. Public interest also demands that the trial should be conducted in a fair manner, heedful of the rights granted to the accused under the laws of the country including code. It is no part his obligation to secure conviction of an accused in any event or at all costs. Nor is he intended to play a partisan role or become party to the prosecution of the accused or lend support, directly or indirectly to a denial of justice or of fair trial to the accused.

Special Public Prosecutor:-

28. Section 24 of the Code confers unfettered power on the Central Government and the State Government to appoint a Special Public Prosecutor for purposes of any case, if the person so appointed satisfies the qualification laid down in Sub-Section (8). Once a person is appointed as a Special Public Prosecutor, he would be the "Public Prosecutor" within the meaning of Section 2(u). Therefore, all rules applicable to the Public Prosecutor equally applies to the Special Public Prosecutor.

29. Merely because the Central and State Government has the power to appoint for the purposes of any case or class of cases a Special Public Prosecutor that power cannot be exercised, mechanically without any reason, as a rule. There must be some justifiable reason to dislodge the Public Prosecutor and for requisitioning the assistance of an experienced Advocate for the case. The record must disclose the existence of circumstances which warrants such appointment, application of mind to such material and recording such reasons for such appointment. Reasons are the links between the material, the foundation for those erections and the actual conclusions. They would also administer how the mind of the maker was activated and actuated and these rational nexus and synthesis with the facts considered and the conclusions reached. Rest it may not be arbitrary, unfair and just, violate Article 14 or unfair procedure offending Article 21. When wide discretionary power is conferred, the Government must exercise the power in a most reasonable manner in accordance with the spirit of the statute and in public interest.

30. Special Public Prosecutor could be appointed only when public interest demands. There should be special circumstances warranting such appointment. The mere fact that the accused in a particular case are engaging a leading criminal lawyer alone cannot be a ground to appoint a Special Public Prosecutor. But that factor may be one of the factor which may be taken note of along with or other weighty reasons for such appointment. A Special Public Prosecutor cannot be appointed with a view to secure conviction at all cost. The said office should not permitted to be degenerated into a legalized means for wreaking private vengeance.

31. A Special Public Prosecutor could be appointed at the request of the complainant or the victim also. As a rule such a request cannot be accepted and appointment made. The right to be heard includes the right to be represented by an able spokesman of ones confidence. The right belongs to the complainant and to the accused, both. A fair trial does not necessarily mean that it must be fair only to the accused, it must be fair to the victims also. It must be fair to all. A fair trial is a concept which is much higher than the claims or ends of the parties to it. The accused and the victim are not at par and criminal trial is not a forum for personal vengeance. It is essentially a State action to punish crime. When a request is made for appointment of a private counsel as Special Public Prosecutor, the Government should be satisfied that the case deserves the support of a Special Public Prosecutor and that such a person should be appointed to be in charge of the case. The satisfaction of the Government should be evidenced by the material on record, the reasons for such appointment, which is reduced in writing, to have transparency in the matter, and to negate any mala fides that may be attributed to the Government. It falls within the realm of administrative law and there is a duty cast on the Government to act fairly, justly and reasonably. In these what matters is the process of decision making rather than the decision itself.

REMUNERATION:

32. In the matter of remuneration payable to the Special Public Prosecutor, ordinarily the Special Public Prosecutor should be paid out of the State funds even when he appears in support of a private complainant. But there may be some special cases where Special Public Prosecutors remuneration may be collected from private source. The rate of fees should be prescribed and the complainant should be called upon to deposit the fees in advance to the Government and the Special Public Prosecutor be paid out of the said amount by the Government. To leave the complainant to pay to the Special Public Prosecutor would indeed not be appropriate. If he looks to a private party for his remuneration, his capacity and ability to perform his role as Public Prosecutor properly will be endangered. Government cannot appoint Special Public Prosecutor on such terms, abdicating their financial responsibility or directing him to receive his remuneration from any private individual. Then it introduces an advocate-client relationship, a personal element from which the Public Prosecutor must be considered immune. He is above the personal loyalty. He does not have a dual capacity.

33. POINT NOS. (4) AND (5):- The learned Government Advocate has made available the record pertaining to the appointment of the Special Public Prosecutor. Admittedly, there is no application by the third respondent, the widow of one of the deceased victim, seeking appointment of a Special Public Prosecutor. The Government has not appointed the second respondent suo moto in public interest. On the contrary the process of appointment has emanated on the basis of a letter addressed by Sri. G.V. Venkatashiva Reddy, M.L.A. to the Honble Law Minister. The said letter is produced and it reads asunder:-

KANNADA

34. The said letter was written by him in connection with Crime 4/2003 registered in Gownipalli Police Station. It states he had made a request to the Chief Minister to appoint Sri. H.M. Thimmarayappa, the second respondent herein, as an Advocate to argue on behalf of the complainant. Further, it is stated that the advocates fee would be borne by Smt. (Late) Shiva Shankara Reddy. The Law Secretary placed the said letter before the Law Minister. The Law Minister made an order directing the Law Secretary to take steps to appoint Special Public Prosecutors. Thereafter, the record discloses the following notings:­-

"Dy. No.3268 LAW 1769 WCM 03 P.U.D. placed on the c/f is for kind perusal, wherein it is requested to appoint Sri H.M. Thimmarayappa as Special Counsel. As such draft notification is placed on the c/f for kind approval. (sd/- 28-4-2003)

HML has ordered for appointment of Sri H.M. Thimmarayappa as Special Counsel and Sri. Venkatashiva Reddy G.K., MLA, has stated to ALS-3 that the Counsel has consented for the appointment and Smt. Shamashankar Reddy has consented to bear the expenses of the S.P.P. Hence, draft is approved. Put up FC.

The copy of notification marked to H.M. Thimmarayappa was given to Junior Assistant of ALS-3, Sri. Gopala Reddy, along with the office copy, on oral directions from ALS-3, for getting it served on Sri H.M. Thimmarayappa. The P.S. to Minister for Mines and Geology (Sri Muniyappa) is stated to have taken both the copies on the ground that he will return O.C. after serving the copy marked to counsel personally along with endorsement/acknowledgment from the counsel. But so far the O.C. is not returned by Sri Reddy. Meanwhile get the notification Xeroxed and then issue the other copies. Pursue Sri Reddy to get back O.C."

35. The aforesaid note makes it very clear it is the MLA who is behind this appointment of a Special Public Prosecutor. The subsequent note shows P.A. to a Minister is interested in serving the order of appointment on the Special Public Prosecutor personally. It also shows the name of the second respondent is suggested by the said MLA and it is he who states that the complainant would bear the advocates fee. In the records I do not find any consent letter given by the second respondent for appointment On the contrary MLA informs ALS-3 that the second respondent has given his consent for appointment. It is on the basis of the said representation the order of appointment is made by the Law Minister. Therefore, it is clear from the aforesaid material there is no application of mind by anyone concerned before an order of appointment of Special Public Prosecutor is made. There is no indication in the entire record to show why a Special Public Prosecutor was appointed for the case. In the absence of a specific request from the complainant and a consent for such appointment by the second respondent how an order came to be passed appointing second respondent as the Special Public Prosecutor is not discernable from the records. Though under the provisions of the Code of Criminal Procedure, 1973 the Government has the power to appoint a Special Public Prosecutor in a case, it does not mean that such an appointment could be made by the Government as a matter of course, at the request of total strangers and in the absence of a request by the complainant and consent by the learned Advocate to be appointed as the Special Public Prosecutor and without any reasons. It is clear, appointment of Special Public Prosecutor is made in a mechanical way without there being any reason. It is not that the order, appointing a Special Public Prosecutor should disclose the reasons for such appointment and it should disclose any special circumstances for such appointment. But, once such an appointment is challenged before the Court an obligation is cast upon the State to justify the appointment by making available the records. The said records should disclose the special circumstances justifying such appointment. If the record do not disclose any such special circumstances then the order of appointment cannot be sustained and is liable to be quashed. The letter of the MLA do not disclose the reasons for appointment. The order of the Honble- Minister do not disclose the reasons. The record also do not disclose any other material justifying such appointment. The letter discloses a request is made to the Chief Minister. On the basis of the letter Honble Law Minister has directed the Law Secretary to take steps to appoint Special Public Prosecutor. Therefore, from the records no reasons for dislodging the services of the Public Prosecutor is made out. No special circumstances justifying such appointment is forth coming. The Government had no intention of appointing the Special Public Prosecutor on its own. It did not notice that no request for such appointment came from the relatives of the victims. It failed to notice the request is from an M.L.A. of Srinivasapura Taluk and Chairman of Mysore Sales International Limited, which did not disclose his relation to the victim nor any reasons and that he has nothing to do with the crime number referred to by him in his letter.

36. The impugned order is an administrative order by the Government under Section 24(8) of the Code. It is a statutory order. If all State actions must be just, fair and reasonable, the Special Public Prosecutor would be under less duty as a functionary of the State to discharge his functions as a Public Prosecutor in an equally just, fair and reasonable manner irrespective of the outcome of the trial. In that sense, he is a part of the judicature system and an upright Public Prosecutor has no friends and foes in Court. He has no prejudices, preconceived notions, bias, hostility or his own axe to grind. He represents public interest, but is not a partisan in the narrow sense of the terms.

37. The accused has no say in the matter of appointment of the Special Public Prosecutor under the scheme of the Code. But the accused has aright of fair trial, which is a part of the fundamental right guaranteed by the Constitution under Article 14 and 21 of the Constitution of India. The assurance of a fair trial is the first imperative of the dispensation of justice. It is well known position in criminal jurisprudence that the State is the prosecutor and that is why the primary position is assigned to the public prosecutor, who is a part of fair trial. If his appointment is not made in public interest, not made in accordance with law, made for extraneous considerations, made with any mala fide intentions, made with intention to persecute the accused, such appointment offends the concept of fair trial, a fundamental right guaranteed to the accused. Fairness to the accused who faces prosecution is the raison deter of the legislative insistence on that score. Therefore, the accused has aright to challenge the appointment on any such grounds, though he has no say in the appointment. The Court is concerned only with the decision making process and not the decision.

38. The second respondent is appointed at the instance of the M.L.A. who has nothing to do with the crime in question. In the statement of objections he has stated that he is appointed after detailed inquiries made through the Deputy Director of Prosecution and also through the representation given by the deceased wife SuryaKalavathi, which is not borne out from the record. He has referred to the political rivalry in the Taluk and has dragged the name of the present sitting MLA who was also the former speaker and alleges that the wife of the deceased has no confidence even on the Government since sitting M.L.A and Ex-Speaker of Karnataka is also one of the accused, who is competent to manage things. The third respondent in her objection statement has not alleged these things, as on the date of appointment of the second respondent, Sri GK. Venkatashiva Reddy was the MLA and on his request the appointment was made, and the facts pleaded for justifying the appointment are subsequent events to appointment. Therefore, the second respondent is acting as a spoken person of not even of the complainant but that of the MLA who got appointed him and is bent upon persecuting the accused and wants a conviction at any cost. The statement made by him clearly demonstrates that he is unable to prosecute the case with detachment. He has prejudices, pre-conceived notions, bias and hostility against the accused. Though he may not have his own axe to grind, he has allowed to him to be used by the MLA to fight his political battle in the Court under the garb of a Public Prosecutor. The records and the statement of objections speaks for itself. Realizing his folly in exposing himself in the aforesaid manner, a memo was filed to withdraw the statement of objections. It is relevant to notice that the second respondent has served as a Public Prosecutor earlier. He ought to know his status and role better. The allegations in the statements of objections therefore cannot be considered as unintentional or born out of inexperience. Moreover the Writ Petition do not contain any personal allegations against him. In spite of the same not only he defends his appointment, which was totally unwarranted, but makes allegations against the accused and his metros, bringing in politics and political rivalry to the fore, thus disentitling him to be appointed as a Special Public Prosecutor. Therefore, his appointment cannot be sustained.

39. POINT NO.6: The power to appoint a Special Public Prosecutor is a statutory right. Fair trial is a fundamental right of the accused. If a statutory right has been exercised offending a fundamental right, and when such action of the State is challenged before this Court by way of a Writ Petition, on the ground of latches and delay and suppression of material facts, this Court cannot decline to entertain the Writ Petition, though all of them constitute a weighty ground for declining the discretionary relief under normal circumstances under Article 226 of the Constitution. But, when a Writ Petition is filed for enforcement of a fundamental right the relief cannot be denied on the ground of the aforesaid technical objections.

40. The petitioner is under the impression that the Special Public Prosecutor is appointed at the instance of third respondent. The statement of objections filed by the third respondent also discloses that on such a request the appointment is made. But, the records disclose the real facts. The third respondent has been a silent spectator in the whole episode. This Court cannot ignore her rights and genuine apprehension in the matter of effective trial, as her husband is the victim. A fair trial does not necessarily mean that it must be fair only to the accused. It must be fair to the victim also. She has as much right as the accused to represent her case effectively before the Court. If she feels the representation for the State is comparatively less effective and may also be easily tampered with through a variety of nefarious influences, and that the accused are represented by a leading criminal lawyer and feels impelled to engage a counsel of her own choice in whose competence and probity she has full faith and approaches the State to engage a Counsel of her choice, the Government is bound to consider such request and pass appropriate orders in the light of the observations made above and in accordance with law. The quashing of the impugned order would not come in the way of the Government exercising their power under Section 24(8) of the Code afresh.

41. For the aforesaid reasons, I pass the following order:-

(a) Writ Petition is allowed

(b) The impugned order dated 28-4-2003 appointing the second respondent as Special Public Prosecutor in S.C. No.239/2004 c/w SC 214/2004 in Crime No.4/2003 registered by the Gownapalli Police, Srinivasapura Taluk, Kolar District, is hereby quashed.

c) Liberty is reserved to the third respondent to approach the Government for appointment of a Special Public Prosecutor.

d) If any such request is made by the third respondent, the Government shall consider such request in accordance with law and in the light of the observations made above.

e) In the event of the Government deciding to appoint a Special Public Prosecutor in the case and decides to direct the third respondent to pay the remuneration for such Special Public Prosecutor, the Government shall quantify the remuneration payable by the third respondent to the Special Public Prosecutor and direct her to deposit the said amount to the Government. Thereafter, Government shall pay the said amount to the Special Public Prosecutor.

f) No costs.