WA/644/2012 of Gorrepati Prasada Reddy, S/o Lakshma Reddy, Vs The State of Andhra Pradesh on 28 December 2012

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

FRIDAY, THE TWENTY EIGHTHDAY OF DECEMBERTWO THOUSAND AND TWELVEPRESENTTHE HON'BLE MR JUSTICE V.ESWARAIAHAND

THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR

WRIT APPEAL Nos.644 and 653 of 2012

WA.No.644 of 2012:

BETWEEN

Gorrepati Prasada Reddy and others.

AND

…APPELLANTS

The State of Andhra Pradesh, Rep. by its Secretary, Legislative Affairs andJustice, Secretariat Buildings, Hyderabad and four others.

…RESPONDENTS

Counsel for the Appellants: MR. T. BALI REDDY For MR. K. SURESH REDDY

Counsel for the Respondents: ADVOCATE GENERAL

GP FOR LAW & LEGISLATIVE AFFAIRSMR. S. BHARAT KUMAR MR. B. NALIN KUMAR

WA.No.653 of 2012:

BETWEEN

G. Siva Nageswara Rao.

AND

…APPELLANT

Gorrepati Prasada Reddy and others.

Counsel for the Appellant: MR. B. NALIN KUMAR

…RESPONDENTS

Counsel for the Respondents: ADVOCATE GENERALGP FOR LAW & LEGISLATIVE AFFAIRSMR. K. SURESH REDDY

The Court made the following:COMMON JUDGMENT:(per Hon’ble Sri Justice Vilas V. Afzulpurkar)

The writ petitioners in WP.No.21728 of 2011 preferred WA.No.644 of2012 whereas WA.No.653 of 2012 is preferred by the fourth respondent inthe aforesaid writ petition against the order passed by the learned singleJudge in WP.No.21728 of 2011 dated 16.03.2012.

2. For the sake of convenience the parties are referred to as they arearrayed in the writ petition. Background facts are as follows:

(a) Petitioners along with 218 others were accused in a sessions case,being S.C.No.39 of 1993, on the file of the Special Sessions Judge cum IVAdditional Sessions Judge, Guntur and were tried for offences punishableunder Sections 120B, 147, 302, 307 and 201 read with Section 149 of theIndian Penal Code, 1860 and Section 3(2)(v) of the Scheduled Castes andScheduled Tribes (Prevention of Attrocities) Act, 1989. The said case ispopularly known as Tsundur Carnage Case. The Sessions Court, after trial,under its judgment dated 31.07.2007, convicted some of the accused andacquitted the rest of the accused. The convicted accused filed criminalappeals, being Crl.A.No.1021 of 2011 and batch. The State also filedCrl.A.Nos.398 and 998 of 2008 appeal against the acquittal.

The victims/complainants filed Crl.RC.No.829 of 2008 questioning theacquittal recorded against some of the accused.

(b) While the criminal appeals and criminal revision case are pendingbefore this Court, the Tsundur Dalit Victims Struggle Committee filed arepresentation before the Government requesting the Government to appointone Mr. B. Chandrasekar and

Mr. G. Sivanageswara Rao, Advocates, Guntur, as Special PublicProsecutor and Assistant Special Public Prosecutor respectively forconducting prosecution in the said Tsundur Carnage Case before this Court.The said representation of the struggle committee was also forwarded to theGovernment by a Minister for Rural Development and MGNREGS and afterexamining the same, the Government issued G.O.Rt.No.980 Law (LA&J–Home–Courts.A1) Department dated 06.06.2011, exercising power underSection 24(8) of the Criminal Procedure Code, 1973, appointing the saidadvocates as Special Public Prosecutor and Assistant Special PublicProsecutor respectively to conduct prosecution in the Tsundur CarnageCase before this Court in all appeals and revision case and all relatedmatters. The aforesaid order was amended by issuing G.O.Rt.No.990 Law(LA&J–Home–Courts.A1) Department dated 08.06.2011 substituting para 3of the GO whereby the Public Prosecutor of High Court of Andhra Pradeshwas requested to hand over the records relating to Tsundur Carnage Case tothe said Special Public Prosecutor and Assistant Special Public Prosecutor.The order appointing the said advocates, vide G.O.Rt.No.980 dated06.06.2011, is questioned in WP.No.21728 of 2011 and the said twoappointees were also impleaded as respondents 3 and 4 respectively.

3. Before the learned single Judge, various contentions were advancedon behalf of the petitioners, details whereof are appropriately mentioned inthe succeeding paragraphs. To continue with the narration above, thelearned single Judge upheld the appointment of respondent No.3 as SpecialPublic Prosecutor under Section 24(8) Cr.P.C but, however, set aside theappointment of respondent No.4 as Assistant Special Public Prosecutor onthe ground that ‘appointing any person as Assistant Special PublicProsecutor’ is not contemplated under the Cr.P.C. To the extent ofdismissing the writ petition, so far as upholding appointment of respondentNo.3 is concerned, petitioners filed WA.No.644 of 2012 and to the extent ofallowing the writ petition with regard to appointment of fourth respondent, the

4. These two appeals, being interconnected, were ably argued by Mr. T.Bali Reddy, learned senior counsel for the petitioners and Mr. B. Nalin Kumar, learned counsel for the fourth respondent.

We have also heard the learned Special Government Pleader representingthe learned Advocate General. We had also called for and perused therecords leading to the issuance of the impugned notification.

5. The main contentions raised by the learned counsel for the petitionersare that the appointment of Special Public Prosecutor at the instance of thecomplainants is wholly impermissible and it was not open for theGovernment to exercise power under Section 24(8) Cr.P.C. by appointingSpecial Public Prosecutor as named by the complainants. According to thelearned senior counsel, such act would amount to allowing the prosecution tobe handed over to a private counsel, named by the complainants, which isde hors the scheme under Cr.P.C. It was also contended that no reasonsare mentioned in the impugned notification, as to why the services of theappointed Public Prosecutor and Additional Prosecutors in the High Court ofAndhra Pradesh are not utilized for these cases and as to why appointmentof a Special Public Prosecutor is resorted to by the State. An objection isalso raised that the said impugned notification has been issued at theinstance of a Minister, which also shows total non-application of mind andappointing Special Public Prosecutor for the mere asking. Learned seniorcounsel also submitted that the counter affidavit filed on behalf of the Statetried to explain various reasons as to why the said notification was issued.He also submits that in the absence of reasons in the notification, the counteraffidavit cannot supplement the reasons, as per the ratio of the decision ofthe Supreme Court in MOHINDER SINGH GILL v. CHIEF ELECTION

[1]COMMISIOSNER OF INDIA. Learned senior counsel also placedreliance upon certain decisions, reference to which will be made appropriately hereunder. Learned senior counsel also contended thatrespondents 3 and 4 are biased as they have conducted the sessions caseand after their impugned appointment, they have filed the appeals against theacquittals.

6. Mr. B. Nalin Kumar, learned counsel for the fourth respondent,submitted that there is no basis for alleged bias against respondents 3 and 4 inasmuch as they are only being appointed as Special PublicProsecutor and Assistant Special Public Prosecutor to conduct theprosecution on behalf of the State and they were also appointed in the samecapacity for conducting the sessions case under G.O.Rt.No.1212 Law (LA &J-Courts-A2) Department dated 23.08.2000 appointing the third respondentherein as Special Public Prosecutor and respondent No.4 as AssistantSpecial Public Prosecutor in SC.No.39 of 1993.

He submits that the said appointment of respondents 3 and 4 to conductprosecution in the sessions case was questioned by some of the accused inWP.No.9723 of 2004 on similar grounds and the said writ petition wasdismissed by judgment of learned single Judge dated 01.09.2004 reported inMODUGULA MALLIKARJUNA REDDY v. GOVERNMENT OF AP (2004

(6) ALT 229). He, therefore, submits that the appointment of the sameadvocates for the purpose of appeals and revision before this Court arisingout of the same sessions case, cannot be faulted by the petitioners. He alsocontended that there is no foundation in the pleadings to support theallegation of bias raised against them. Learned counsel also distinguishedthe decisions cited on behalf of the petitioners and has placed reliance uponvarious decisions to which reference will be made appropriately hereunder.

7. Thus, in these appeals, the appointment of respondents 3 and 4 isquestioned on common grounds and in addition, the appointment of thefourth respondent is questioned on an additional ground that the saidappointment as Assistant Special Public Prosecutor is not envisaged underany of the provisions of the Cr.P.C and as such, is not sustainable.

8. For the sake of convenience, G.O.Rt.No.980 dated 06.06.2011 is extracted hereunder:

“GOVERNMENT OF ANDHRA PRADESHABSTRACT

PROSECUTORS – Appointment of Sri B.Chandrasekhar, Advocate,Guntur as Special Public Prosecutor and Sri G.Sivanageswara Rao,Advocate as Assistant Special Public Prosecutor to conduct theprosecution in TTsundur Carnage Case before the Hon’ble High Courtof Andhra Pradesh - Orders -Issued.

__________________________________________________

LAW (LA&J-HOME- COURTS.A1) DEPARTMENT

G.O.Rt.No.980Dated:06-06-2011.

-Read the following:

1. G.O.Ms.No.1520, Law (L1) Department, dated: 24.10.2006

2. From Sri D.M.Vara Prasada Rao, Minister for Rural Development & MGNREGS, representation, dated:20-01-11.

****

ORDER:-

In the reference 1s t read above, TTsundur Dalit VictimsStruggle Committee had requested the Government to appoint SriB.Chandrasekhar, Advocate, Guntur as Special PP and SriG.Sivanageswara Rao, Advocate as Asst. Spl.PP to conductprosecution in the TTsundur Carnage case before the Hon’ble A.P.High Court in all the appeals and revision petitions and all relatedmatters.

2. After careful examination, Government hereby appoint SriB.Chandrasekhar, Advocate, Guntur as Special PP and SriG.Sivanageswara Rao, Advocate as Asst. Spl.PP to conductprosecution in the TTsundur Carnagecase before the Hon’ble A.P.High Court in all the appeals and revision petitions and all relatedmatters. The conditions of service of the said Prosecutor shall begoverned in accordance with the executive instructionsissued in G.O. first read above.

3. The date of joining should be intimated to Government.

4. The Director of Prosecutions, A.P., Hyderabad is requested totake necessary follow up action in the matter.

5. The following Notification shall be published in the A.P. Gazette;NOTIFICATION

Under sub section (8) of section 24 of the Code of CriminalProcedure 1973 (Central Act No.2 of 1974) read with G.O.Ms.No.187,Law (L) Department, dated: 6-12-2000 the Government of AndhraPradesh, hereby appointed Sri B.Chandrasekhar, Advocate, Guntur as Special Public Prosecutor and Sri G.Sivanageswara Rao,Advocate as Assistant Special Public Prosecutor to conductprosecution in the TTsundur Carnage case before the Hon’ble A.P.High Court in all the appeals and revision petitions and all relatedmatters.

The conditions of service of the said Prosecutor shall be governed inaccordance with the executive instructions issued in G.O. first readabove.

(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRAPRADESH)

A.SHANKAR NARAYANA

SECRETARY TO GOVERNMENT

LEGISLATIVE AFFAIRS & JUSTICE”

9. The aforesaid GO would show that the Tsundur Dalit Victims StruggleCommittee made a representation before the Government, giving variousreasons, in support of their request for appointment of Special PublicProsecutor and Assistant Special Public Prosecutor for conducting theprosecution of the appeals and revision pending before this Court, inter alia,stating that the prosecution was against 179 accused and involvesvoluminous records apart from oral evidence of 70 witnesses anddocumentary evidence comprising of 750 exhibits and overall recordexceeding 10,000 pages. It was also stated that respondents 3 and 4, whoconducted the sessions case, as prosecutors, are well acquainted with the case and are equipped tohandle the appeals and revision before this Court and their appointment forconducting prosecution of the appeals and revision would be in continuationof their acting as prosecutors in the sessions case.

10. We have seen the original file produced on behalf of the learnedAdvocate General containing the aforesaid representation, which wasforwarded to the Government under a forwarding letter of the Minister, whichis referred to as reference No.2 in the said GO. The counter affidavit statesthat after obtaining the opinion of the District Collector, Guntur, about theperformance of respondents 3 and 4 in the trial and after perusal of the CD

file and the judgment of the sessions case, the Government was satisfied and appointed respondents 3 and 4accordingly. The GO specifically states that after careful examination of therepresentation, the said order of appointment was issued.

We are, therefore, unable to accept the first contention of the learned seniorcounsel for the petitioners that the impugned notification is unreasonedinasmuch as it refers to the representation received by the Government andon examination thereof, the Government exercised its power under Section24(8) Cr.P.C. As stated above, the representation itself mentions various reasons why the appointment ofthe said advocates as Special Public Prosecutor and Assistant SpecialPublic Prosecutor was sought for and the reasons, as briefly noted above, undoubtedly, support the necessity of appointmentrespondents 3 and 4.

11. Learned single Judge has also considered and rejected the saidcontention by specifically noting that the appointment of respondents 3 and 4is not a reflection on the capability of the Public Prosecutor and AdditionalPublic Prosecutors in the High Court, but, on the contrary, taking note of thevolume of the work involved, the Public Prosecutor and Additional PublicProsecutors in the High Court having been already burdened with the regularwork in the High Court, the appointment of Special Public Prosecutor and Assistant Special PublicProsecutor for this case was found justified and within the competence andpowers of the Government.

12. Learned senior counsel for the petitioners placed reliance upon a judgment of the Supreme Court in MUKUL DALAL v. UNION OF INDIA[[2]]for the proposition that the appointment of an advocate as Special PublicProsecutor on mere asking by a private complainant was not sustainable, asthe Cr.P.C confers special status on Public Prosecutors. In the aforesaid decision, the Maharashtra Law Officers (Appointment, Conditions of Serviceand Remuneration) Rules, 1984 fell for consideration wherein under the saidrules, it was incumbent that every such request for appointment of SpecialPublic Prosecutor or Assistant Public Prosecutor was required to bescrutinized and examined by the Remembrancer of Legal Affairs, keeping inview the prescribed guidelines and he should decide whether theappointment is warranted on the facts. Since Rule 22 of the MaharashtraLaw Officers Rules was not followed, the appointment in that case was setaside and the Remembrancer of the Legal Affairs was required to decideafresh on the said appointment.

Conclusion

13. Subsequently, said Rule 22 of Maharashtra Law Officers Rulesrelating to engagement of Special Public Prosecutor was amended in theyear 2004 by inserting a proviso to sub-rule (1). The said proviso requiredthat no order under the sub-rule regarding the appointment of Special PublicProsecutor shall be made unless for the reasons recorded in writing, theRemembrancer of Legal Affairs is satisfied, having regard to the nature ofcase, gravity of the matter and pubic interest involved and such appointmentis necessary. The said amended rule also fell for consideration before theBombay High Court in SUSHIL HIRALAL CHOKHANI v. STATE OF[3]MAHARASHTRALearned senior counsel placed strong reliance uponparas 25 and 26 of the said judgment wherein the Division Bench held thatrequirement of reasons for appointment is mandatory by the rules.

14. In our view, reliance on the ratio of the said decision is based uponRule 22 of the Maharashtra Law Officers Rules, both prior and afteramendment, but, in our State, the said legislative environment does not exist.Even then the notification impugned refers to the representation, which doescontain number of reasons as to why the appointment of the said advocatesas Special Public Prosecutor and his Assistant is warranted. As held by thelearned single Judge, the said appointment is merely in continuation to the appointment of respondents 3 and 4 before the Sessions Court. We are,therefore, unable to accept the contention of the learned senior counsel thatthe notification is bereft of reasons.

15. Learned senior counsel also placed reliance upon a decision of this[4]Court in DODDA BRAHMANANDAM v. STATE OF APwherein theappointment of an advocate as Special Public Prosecutor was questioned onthe ground of bias and in that decision, it was found that the said advocatehad appeared on behalf of the de-facto complainant and on that ground, theappointment was held to suffer from bias apparent. We do not think that thesaid decision has any relevance to the facts of the present case. Evenotherwise, the contention of the learned senior counsel, on the ground of bias, is not sustainable, as is discussed, at the appropriate place, in theparagraphs below.

16. Learned senior counsel also placed reliance upon a decision of this Court in DEVINENI SESHAGIRI RAO v. THE GOVERNMENT OF AP[[5]]

wherein also the appointment of an advocate as Special Public Prosecutorwas questioned on the ground of bias, as the said advocate has appeared inseveral cases, as an advocate, for the deceased and was closely connectedwith the family of the deceased and merely on the complainants’ request thesaid advocate was appointed as Special Public Prosecutor. Though the factsof that case and the facts on hand are different, it is significant to notice the observation of this Court in para 14 as under:

“…The State Government is required to apply its mind and arrive at aconclusion that the concerned case has special significance and thatthe regular Public Prosecutor and Additional Public Prosecutorattached to the Court cannot effectively prosecute the matter. Thissatisfaction is purely subjective in nature. The Government does notowe an obligation to record reasons in support of this conclusion.However, satisfaction, as such, has to exist. It cannot be inferredonly from an order appointing Special Public Prosecutor. It is toprecede that.”

17. Applying the aforesaid test to the facts of the present case, it is evidentthat preceding the appointment and keeping in view, the significance of the case, the prosecutors, who conducted the sessionscase, were appointed by the Government to conduct the appeals andrevision before the High Court.

18. We are also not satisfied that the appointment is at the instance ofcomplainants, as, on the contrary, the Tsundur Dalit Victims StruggleCommittee had made a request before the Government and the saidrepresentation contains various reasons why the said appointment wassought. More importantly, as noticed above, the appointment of the very same respondents 3 and 4 was challengedbefore this Court when they were appointed as Special Public Prosecutorand Assistant Special Public Prosecutor respectively to conduct thesessions case but the said challenge was negatived.

When the very same respondents 3 and 4 are appointed to conduct theappeals and revision arising out of the same sessions case, it is merely continuation of their appointment and it cannot be said that thesaid respondents 3 and 4 are either biased or otherwise disqualified on anyground.

19. While dealing with the specific contention of the learned senior counselfor the petitioners with regard to the challenge to the appointment ofrespondents 3 and 4, it is significant to notice that the only allegations foundfrom the pleadings of the petitioners are in paras 7 and 8, which are as follows:

“7. I submit that the action of the first respondent in issuing theimpugned G.O. is highly arbitrary, illegal and unconstitutional. Isubmit that prosecution party cannot name a particular person andrequest the Government to appoint that person as Special PublicProsecutor. This indirectly encouraging the private persons to stepinto the shoes of the state which is the ultimate custodian of theCriminal Justice System. I submit that the first respondent has notat all exercised its jurisdiction and it had not at all applied its mind. The first respondent merely obliged the request of the prosecution party and issued the impugned G.O. This is nothing but an abuse ofprocess of law.

8. I submit that we have not found any reason as to why the third andfourth respondents have been appointed as Special PublicProsecutor and Assistant Special Public Prosecutor on therepresentation of the prosecution party. I submit that the secondrespondent who is the Public Prosecutor of the State is competentand there is nothing against him stating that he cannot represent thecase effectively. If this kind of appointment is allowed it will lead to avery bad precedent.

I submit that the Public prosecutor is termed as a Minister of justice. He has to conduct the case in the interest of Public without anypersonal interest and bias. I submit that the third and fourthrespondents are biased as they are participating personally with theprosecution party. If this is permitted it may amount to handing overof Criminal Case to a private prosecutor.

20. It would be noticed that the contention in para 7 is that the State hadobliged the request of the prosecution party. The said paragraph does noteven indicate the allegation that the appointment of respondents 3 and 4 issought for by the complainants. There is, therefore, no factual foundation inthe pleadings to support the contention that on the request of thecomplainants, respondents 3 and 4 are appointed. Wirth regard to thecontention in para 8, as already discussed above, the necessity of appointingSpecial Public Prosecutor and Assistant Special Public Prosecutor, keepingin view the volume of the case and the acquaintance of respondents 3 and 4with the same case as prosecutors before the sessions case, is fullyexplained.

The letter of the Minister is merely a forwarding letter, forwarding therepresentation of the Tsundur Dalit Victims Struggle Committee.

21. The last sentence in para 8 is as follows:

“I submit that the third and the fourth respondents are biased as theyare participating personally with the prosecution party. If this ispermitted it may amount to handing over Criminal Case to privateprosecutor.”are participating personally with the prosecution party. If this ispermitted it may amount to handing over Criminal Case to privateprosecutor.”

We are unable to see any foundation for the allegation of bias on thebasis of averments, as above. Respondents 3 and 4 are advocates and it is ununderstandable, what is meant by the petitioners when they aver that theyare allegedly participating with prosecution party. Though respondents 3 and4 have prosecuted the sessions case, not a single instance of bias is allegedagainst them. We are, therefore, unable to uphold the said contention of thelearned senior counsel. The instances, which are relied upon and urged bythe learned senior counsel, are subsequent to the appointment ofrespondents 3 and 4 under the impugned notification and as such,subsequent action cannot be used to contend that there was any bias prior totheir appointment. Even otherwise, such actions of respondents 3 and 4 arepart of their official duties, as prosecutors and no bias can be attributedbased on that.

22. The appointment of respondent No.3 as Special Public Prosecutor isaccordingly upheld.

23. So far as appointment of fourth respondent as Assistant Special PublicProsecutor is concerned, Mr. B. Nalin Kumar, learned counsel, fairlysubmitted that the said appointment cannot be traced to power of the Stateunder Section 24(8) Cr.P.C. He, however, submits that notwithstanding thenon-applicability of Section 24(8) Cr.P.C, the appointment is traceable and valid under Article 162 of the Constitution ofIndia, under Executive Power of the State. He also placed strong relianceupon the judgment of a learned single Judge of this Court in MODUGULA

MALLIKARJUNA REDDY v. GOVERNMENT OF AP[[6]], referred to above,where the appointment of respondents 3 and 4 to conduct prosecution beforethe Sessions Court was upheld by this Court. Learned counsel, therefore,contends that the similar ground, having been already rejected in the samematter, cannot invalidate the appointment, particularly, that of respondentNo.4. He has also placed reliance upon a judgment of the Supreme Court inNATIONAL INSTITUTE OF MENTAL HEALTH AND NEURO SCIENCES

v. K. KALYAN RAMAN[[7]]to contend that the appointment of the fourth respondent by the Government is a pure administrative action and there isno necessity to record any reasons in support of the same. He placesreliance upon para 7 of the said decision.

The relevant portion of para 7 is extracted hereunder:

“7. We will first consider the second point. In the first place, it mustbe noted that the function of the Selection Committee is neitherjudicial nor adjudicatory. It is purely administrative. The High Courtseems to be in error in stating that the Selection Committee ought tohave given some reasons for preferring Dr Gauri Devi as against theother candidate.

The selection has been made by the assessment of relative merits ofrival candidates determined in the course of the interview ofcandidates possessing the required eligibility. There is no rule orregulation brought to our notice requiring the Selection Committee torecord reasons.In the absence of any such legal requirement theselection made without recording reasons cannot be found fault”with…

24. Learned counsel also placed reliance upon a decision of the Supreme Court in M.T. KHAN v. GOVERNMENT OF AP[[8]]to substantiate hiscontention that under Article 162 of the Constitution of India, the State haspower to appoint the fourth respondent.

25. In the aforesaid decision, the appellants’ challenge to the appointmentof two Advocates General by the Government of Andhra Pradesh wasquestioned on the ground that Article 165 of the Constitution of India does notcontemplate more than one advocate as Advocate General. While rejecting the said challenge, the Supreme Court held in paras 11, 16 and 17 as under:

“11. The Government of a Sate as a litigant can appoint as manylawyers as it likes to defend it. For the said purpose, the State is not prohibited from conferring such designation on suchlegal practitioners as it may deem fit and proper. But, the State, inour considered view, cannot appoint more than one AdvocateGeneral.

16. We are, however, unable to agree with the submission of MrHardey Singh to the effect that the appointments of AdditionalAdvocate Generals cannot be traced to the source of the State’spower under Article 162 of the Constitution of India. It is now well-settled principle of law that non-mentioning or wrong mentioning of aprovision of law does not invalidate an order in the event it is found that a power therefor exists.

17. In Union of India V. Khazan singh [1993 Supp (1) SCC 583] thisCourt held:

“The Appellate Authority did not mention in its order asto under which sub-rule of Rule 25(1) the appeal was beingdispose of. The Tribunal while noticing Rule 25(1)(e) of theRules and conceding that the Appellate Authority could remandthe case to the disciplinary authority for further inquiry underthe said sub-rule, grossly erred in setting aside the order onthe concession of the learned counsel to the effect that theAppellate Authority had passed the order under Rule 25(1)(d) ofthe Rules.”

26. It is evident from the above that the power of the State to appoint asmany lawyers as it likes, to defend it, is well recognized and though thefourth respondent’s appointment is not traceable to Section 24(8) Cr.P.C, it isclearly traceable to the executive power of the State under Article 162 of theConstitution of India, as in the aforesaid decision. It was also held in theabove decision that quoting of wrong provision does not take away thejurisdiction of the authorities and as such, notwithstanding that source ofpower of the State is referred to as Section 24(8) Cr.P.C., the saidappointment, in reality, is one under the executive power of the State underArticle 162 of the Constitution of India. Secondly, as held by the learnedsingle Judge, there is no provision under which the Assistant Special PublicProsecutor can be appointed and as such, the designation of the fourthrespondent as Assistant Special Public Prosecutor under the impugned GOis clearly not sustainable. However, mere designation would not invalidatethe appointment. The same advocate was appointed to assist the sameSpecial Public Prosecutor (respondent No.3 herein) before the SessionsCourt under G.O.Rt.No.1212 dated 23.08.2000, referred to above. Whileissuing the aforesaid GO, respondent No.4 was appointed as Assistant toSpecial Public Prosecutor. However, in the present impugned GO, the word‘to’ is missing in between ‘Assistant and Special Public Prosecutor’. It is notin controversy that respondent No.4 was to assist the Special PublicProsecutor, as he did before the Sessions Court and since that being not in controversy, on the principle of casus omissus if we read the appointment ofrespondent No.4 as Assistant to Special Public Prosecutor, no invalidity inhis appointment is discernible. In order to satisfy on the intent and purpose ofappointment of respondent No.4 we had requested the learned AdvocateGeneral to place the proceedings under which the Special Assistants toPublic Prosecutor and Additional Public Prosecutors are appointed in thisCourt, so far as regular work is concerned. Learned Advocate General hasplaced before the Court G.O.Rt.No.2055 Law (N) Department dated03.11.2012 wherein six Special Assistants to assist the Public Prosecutorand Additional Public Prosecutors are appointed in view of the heavy workload of the said Public Prosecutor and Additional Public Prosecutors of theHigh Court of Andhra Pradesh. The said appointment is also traceable toArticle 162 of the Constitution of India.

27. In that view of the matter, therefore, we are of the view that theappointment of respondent No.4 as Assistant to Special Public Prosecutor isalso valid and the impugned order of the learned single Judge to that extentis required to be reversed.

28. We have noticed quite a number of other cases decided by learnedJudges of this Court (both singly and in Division Bench) with regard to thequestion similar to the one raised herein and a brief reference to the saidunreported decisions may be necessary.

(a) WP.No.8004 of 2002 dated 23.09.2002 was concerning challengeto the appointment of Special Public Prosecutor to conduct prosecution inCC.No.208 of 2001 on the file of the III Metropolitan Magistrate,Visakhapatnam. The said case was entrusted to Assistant Public Prosecutorattached to the said Court but the case related to large embezzlement ofmoney requiring additional knowledge of the Companies Acct and the Rulesand as such, the complainant requested a senior member of the bar to beappointed as Special Public Prosecutor. Accordingly, in view of the complexity of issues involved, the Special Public Prosecutor was appointed.This Court, on examination of the matters, upheld the decision of the StateGovernment to appoint Special Public Prosecutor in view of the complexityof the case and the appointment was not interfered with.

(b) WP.No.13637 of 2001 dated 29.07.2003 also questioned theappointment of the Special Public Prosecutor on the ground that the saidappointee was a choice of the de-facto complainant and it was found thatafter examining the representation of the de-facto complainant, in view of theimportance of the case and its early disposal, it was held that interference bythis court is warranted only where the facts and circumstances give rise toreasonable apprehension that the Special Public Prosecutor would not actimpartially and dispassionately. In that case also, except a vague statementin the affidavit, there was no material against the said appointee and as such,the appointment was upheld.

(c) WA.No.1341 of 2003 was filed challenging the correctness of thedecision of the learned single Judge in WP.No.13637 of 2003 dated29.07.2003 above. The said appeal was dismissed by a Division Bench on10.09.2003.

29. Applying the tests in all the decisions, referred to above, to the facts ofthe present case, we are unable to find any infirmity with the impugnednotification except to the extent of treating and reading the said notification,so far as appointment of the fourth respondent is concerned, as ‘Assistant toSpecial Public Prosecutor’.

In the result, therefore, WA.No.644 of 2012 filed by the writ petitionersis dismissed and WA.No.653 of 2012 filed by the fourth respondent isallowed. As a sequel, the miscellaneous applications, if any, shall stand closed. In the circumstances, there shall be no order as tocosts.

December 28, 2012Note: LR Copy to be marked (B/o) DSK

[1]AIR 1978 SC 851

[2](1988) 3 SCC 144

[3](2006) CCR 1 (DB)

[4]1986 (1) ALT 141

[5]2004 CRI.LJ 52

[6]2006 (6) ALT 229

[7]1992 Supp (2) SCC 481

[8](2004) 2 SCC 267

______________

V. ESWARAIAH, J

_____________________

VILAS V. AFZULPURKAR, J