Paragraph numbers below are the court’s original numbering, recovered from the source text.
18. 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 B 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 C 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, 0 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 E 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 F 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.
19. Banumathi, J. referred to the language employed in Sections 24 and 301 (1) of CrPC, relied upon the authority in Shiv Kumar v. Hukam Chand and Anr. 9, and came to hold that:- H • (1999) 1 sec 467 K.ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 497 [DIPAK MISRA, J.] "Being placed 'in charge of a case', there is a specific A role attributed to the Special Public Prosecutor under Sub-section (8) of Section 24 Code of Criminal Procedure which distinguishes the task of Special Public Prosecutor from that of Public Prosecutors appointed under Sub-sections (1 ), (2) and (3) of Section 24 Code B of Criminal Procedure and hardly there is any anomaly." After so stating, the learned Judge has referred to the meaning of the term 'case' and the context in which it is used, and expressed the opinion in following terms:- " .. I am of the view that such authority of the Special Public Prosecutor to appear and plead a case in respect of which he is in charge in any court or at any stage of proceedings in such court may notemanate from the term o 'case' or for that matter 'class of cases' as appearing Under Sub-section (8) of Section 24 Cr.P.C.,"butforthe reason of the broader context in which term 'case' has been used in Section 301(1) Cr.P.C. to include any court in which that case is under 'inquiry, trial or appeal'. The E Special Public Prosecutor, after the trial is o\ler, derives its authority to continue to appear and plead before appellate forum by virtue of language used in sub-section (1) of Section 301 Cr.P.C. and the Special Public Prosecutor will continue to have such authority due to F wide language of Section 301 Cr.P.C., until the notification appointing him has been cancelled by the appropriate State Government."
20. First, we shall advert to this difference of opinion and G thereafter proceed to dwell upon the pertinent consequent impact.
21. Section 2(u) of CrPC defines "Public Prosecutor''. It reads as follows:- "(u) "Public Prosecutor" means any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor."
22. Section 24 CrPC deals with Public Prosecutors. For B our purpose, Section 24(1), 24(3) and 24(8) being relevant are reproduced below:- "24. Public Prosecutors.-(1) For every High Court, the Central Government or the State Government shall, after c consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case maybe. xxxxx xxxxx xxxxx (3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district: Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district. )()()()()( )()()()()( xxxxx (8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor. Provided that the Court may permit the victim to engage an advocate of this choice to assist the prosecution under this Sub-section." K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 499 [DIPAK MISRA, J.]
23. Sub-section (1) of Section 24 CrPC has been A amended in the State of Karnataka (vide Karnataka Act 20 of 1982 w.e.f. 3.9.1981). It provides thus: "In Section 24, in sub-section (1), – (i) Omit the words "or the State Government shall"; (ii) for the words "appoint a Public Prosecutor", substitute the words "or the State Government shall appoint a Public Prosecutor''."
24. Section 25A deals with the Directorate of Prosecution. It reads as follows:- c "25A. Directorate of Prosecution. – (1) The State Government may establish a Directorate of Prosecution D consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit. …… (2)A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution~ only E if he has been in practice as an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court. (3) The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the F administrative control of the Head of the Home Department in the State. (4) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution. (5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (1), or as the case may be, sub-section (8), of section 24 to conduct cases in H the High Court shall be subordinate to the Deputy Director of Prosecution. (6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (3), or as the case may be, sub-section (8), of section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of section 24 shall be c subordinate to the Deputy Director of Prosecution. (7) The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify. (8) The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor."
25. Section 301 (1) CrPC that deals with the appearance by Public Prosecutors reads thus:- "301. Appearance by Public Prosecutors.-(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal."
26. The aforesard provisions have to be appreciated in a G schematic context. All the provisions reproduced herein above are to be read and understood as one singular scheme. They cannot be read bereft of their text and context. If they are read as parts of different schemes, there is bound to be anomaly. Such an interpretation is to be avoided, and the careful reading H of the CrPC, in reality, avoids the same. The dictionary clause K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 501 [DIPAK MISRA, J.] in 2 (u) only refers to a person appointed under Section 24 A CrPC and includes any person acting under the directions of a Public Prosecutor. The class or status of the Public Prosecutor is controlled by Section 24 and 25A of the CrPC. On a careful x-ray of the provisions of Section 24 it is clearly demonstrable that Section 24(1) has restricted ·the B appointment of Public Prosecutor for the High Court, for the provision commences with words "for every High Court." Sub- section (3) deals with the appointment of Public Prosecutor or Additional Public Prosecutor for the districts.
There is a · procedure for appointment with which we are 11ot concerned. C Sub-section (8) of section 24 deals with appointment of Special Public Prosecutor for any case or class of cases. A Public Prosecutor who is appointed in connection with a district his working sphere has to be restricted to the district unless he is D specially engaged to appear before the higher court. A Special Public Prosecutor when he is appointed for any specific case and that too for any specific court, it is a restricted:appointment. In this context Section 25A of the Code renders immense assistance. The State Government is under obligation to E establish directorate of prosecution. Section 25A clearly stipulates that Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor are appointed by the State Government under sub-Section ( 1) or under sub-Section (8) of Section 24 to conduct cases in the High Court, shall be F subordinate to the Director of Prosecution.
Sub-section (6) postulates that the three categories named herein appointed by the State Government to conduct cases in the district courts shall be subordinate to Deputy Director of Prosecution. Thus, the scheme makes a perceptible demarcation and G compartmentalization for the Public Prosecutor in the High 1 Court and the district courts. In this context we may refer with profit to Rule 30 of Karnataka Law Officers (Appointments and Conditions of Service) Rules 1977 (for short 'the Rules"). The said rules read as follows:- c "30. Special Counsels – Subject to these rules the Government may appoint any advocate as a Special Counsel either for the conduct of a civil or criminal case or any appeal or proceeding connected therewith, pending in a court either within the State or in any other State or in the Supreme Court or in any High Court in the country. (2) Before making such 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. (3) Remuneration payable to a special counsel shall be such as may be decided by Government in each case having regard to the nature of the case."
27. 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 E 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 F 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 G that the 4t11 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 H refer with profit to Section 493 of the old Code. It reads as K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 503 [DIPAK MISRA, J.] 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 B 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 C directions."
28. In the aforesaid provision the legislature had employed the words "before any Court in which any case of which he has charge". In Bhimpappa Basappa Bhu Sannavarv. Laxman o Shivarayappa Samagouda and others10 explaining the word "case" the court held:- "The word "case" is not defined by the Code but its meaning is well-understood in legal circles. In criminal E jurisdiction means ordinarily a proceeding for the prosecution of a person alleged to have committed an offence. In other contexts the word may represent other kinds of proceedings but in the context of the sub-section it must mean a proceeding which at the end results either F in discharge, conviction, or acquittal of an accused person." .
29. In Surjit Singh (supra) while dealing with an application for withdrawal from prosecution under Section 494 of the Code G by the Public Prosecutor, though in a different fact situation, observed that:- "Section 492 only deals with the appointment of Public 10 (1970) 1 sec 665 c [2015) 7 S.C.R. Prosecutors by the Government or by the District Magistrate, in circumstances mentioned therein and Section 493 specifically refers to the Public Prosecutor who is in charge of the case which is under enquiry, trial or appeal, when appearing and pleading before such Court. Section 493 only dispenses with the Public Prosecutor having to file any written authority. That section also makes it clear that if any private person is instructing a pleader to prosecute any person "in any such case" – which must have reference to the case of which the Public Prosecutor is in charge – nevertheless, the Public Prosecutor shall conduct thei prosecution and the pleader is to act under his directions. Section 494 also, in our opinion, must refer only to the Public Prosecutor who is in charge of the particular case in which he makes a requestto withdraw from the prosecution. Some of these aspects have been already advertad to by us earlier. If any Public Prosecutor, who had nothing to do with a particular case, is held entitled to file an application under Section 494, in our opinion, the result will be very anomalous. For instance, if there are two Public Prosecutors appointed for a particular court, and one of the Public Prosecutors 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, 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. The r-:;a: ~nable 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 K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 505 [DIPAK MISRA, J.] conducting the prosecution, that can file an application A 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."
30. 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 C 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 D 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 E 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 numb~r of persons arising out of different Fl Rs but involving similar transactions. To have a F 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 . G 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 H SUPREMECOURTREPORTS A 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 B 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 C 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 0 deemed to be appointed for the purpose of appeal arising therefrom solely because of the language employed in Section 301{1)ofCrPC.
31. In view of our preceding analysis the 4th respondent was not appointed by the State of Karnataka to argue the E 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 h.ave to be heard afresh by the High Court." Banumathi, J. as has been discussed has upheld the appointment of 4th respondent and, therefore, she has dismissed the appeal.
32. As we have already held that the 4lh respondent could H not have appeared in the appeal, the issue that has become germane at this juncture is whether annulment of appointment K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 507 [DIPAK MISRA, J.] of Bhavani Singh as Public Prosecutor would entail de nova A 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 B 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. c 33. Be it noted, the appeal has been heard by the learned 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 D 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.
34. The case under the 1988Act has its own significance. In Niranjan Hemchandra Sashittal v. State of Maharashtra11, it has been held thus:- "lt can be stated without any fear of contradiction that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the G 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 11 (2013) 4 sec 642 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."
35. In Subramanian Swamy v. CB/12, the Constitution Bench while declaring Section 6-A of the Delhi Special Police EstablishmentAct, 1946 unconstitutional, observed that:- "Corruption is an enemy of the nation and tracking down c 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 qr position of public servant does not qualify such public servant from exemption from 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."
36. We have referred to the aforesaid two authorities only to highlight the gravity of the offence. We are absolutely sure that the learned Single Judge, as the appellate Judge, shall keep in mind the real functioning of an appellate court. The 12 (2014) a sec aa2 K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 509 [DIPAK MISRA, 1J.] appellate court has a duty to make a complete and A comprehe11sive 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 B aodicated 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 C 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 D be resolutely expressed. An objective judgment of the ~vidence 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 arid reserved for verdic' •1,.,_, t=.1ppellant has submitted his written note of submissions before the triai 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 G 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 learned Single Judge and the consideration should be H A manifest in the judgment. Written note of submissions, if any, by the 4th respondent shall 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 B the learned Single Judge for perusal and guidance. c 37. 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 the 4th respondent, 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 4th respondent, 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 the 4th respondent 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; K. ANBAZHAGAN v. STATE OF KARNATAKA AND ORS. 511 [DIPAK MISRA, J.] (f) The appellant as well as the State of Karnataka are A entitled to file their written note submissions within the framework, as has been indicated in para 36. (g) The learned Appellate Judge, after receipt of our judgment sent today, shall peruse the same and be B guided by the observations made therein while deciding the appeal.
38. Consequently, the appeal stands disposed of in above terms. c NidhiJain Appeal disposed of.