Bombay High Court Upholds Appointment of Special Public Prosecutor Who Represented Informant In The Same Case

The Aurangabad Division Bench of the Bombay High Court comprising Justice Vibha Kankanwaid and Justice Abhay Waghase has recently upheld the appointment of Special Public Prosecutor (SPP), Ujwala Pawar even though she had represented the complainant earlier.

The division bench observed that the appointment of the Special Public Prosecutor was made without any mala fide. The order reads,

“Taking into consideration the original file from the Law and Judiciary Department, we not find that the decision by respondent No.1 to appoint respondent No.2 as Special Public Prosecutor suffers from mala fides. The order of appointing respondent No.2 as a Special Public Prosecutor also takes note that the State Government has considered the case of massacre and the offence which raise serious questions, planned murders committed with common intention and it arrived to the conclusion that these points were involved in the facts of the case.”

The High Court was hearing a plea filed by two of the accused who had allegedly killed an advocate and his friend in 2019. The petitioner and two other accused were booked under the IPC and were arrested.

The petitioners had earlier approached the Sessions Court against the appointment of a Special Public Prosecutor. However, the same was rejected.

Advocate Pooja Langhe for the petitioner argued that the Notification is the outcome of getting the appointment of the SPP by the informant by hook or crook. She further submitted before the court that the role of the prosecutor is not the mouthpiece of the investigating agency and that it is the duty of the Public Prosecutor to ensure that the accused is tried fairly. She argued that the SPP had already represented the informant and therefore it cannot be said that she would be the instrumentality for a fair trial.

The Additional Public Prosecutor, M.M.Nerlikar argued that all the rules and regulations for the appointment of Special Public Prosecutor have been followed and that the approval of Remembrancer of Legal Affairs was also obtained.

The court in its order noted that the State government should make rules with respect to consent to be obtained for the appointment of SPP. The order reads,

“In fact the State Government should make rules to that effect also, as to whether such documents should accompany the application or that consent, affidavit and declaration would be sought by the State Government after the receipt of such application by it.”

The court however dismissed the petition while stating that the court did not find any error or illegality in the order passed by the Additional Sessions Judge.

Statues: Constitution of India 1950, Criminal Procedure Code 1973, and Indian Penal Code 1860.

Case Title: Shivaji Take vs State of Maharashtra & Anr