Bombay High Court Dismisses Petition Challenging Appointment of Complainant's Erstwhile Lawyer As Special Public Prosecutor In Murder Case

A division bench of Justices Vibha Kankanwadi and Abhay Waghwase observed that just like the accused who has a constitutional right to be represented by an Advocate of his choice, even the informant has some right, may be in a restricted way, to seek the State’s permission for an Advocate of his choice.

“Under such circumstance, taking into consideration the original file from the Law and Judiciary Department, we [do] not find that the decision by respondent No.1(State) to appoint respondent No.2 (Pawar) as Special Public Prosecutor suffers from mala fides,” the bench observed.

The bench passed the order on a petition by one Shivaji Take (68) and his son Sharad Take (35) against the Notification dated 30th September 2021 issued by the State appointing Pawar as the Special Public Prosecutor. The accused also challenged the trial court’s order dismissing their objections over her appointment.

In 2019, the Newasa Police Station registered an offence against four people for the murder of Advocate Sambhaji Rajaram Take and one Santosh Sundar Ghune with an axe and various other weapons in broad daylight. The informant and one more person suffered grievous injuries in the attack. The accused were booked under Sections 302, 307, 341, 201, 324, 323, 504, 506 read with Section 34 of the Indian Penal Code.

The informant Ravindra Gosavi had filed two applications before the court for Pawar to assist the prosecution, which were allowed.

During the course of arguments, the appellants submitted that since Pawar had represented the informant therefore her conduct would be prejudiced towards the accused. She was appointed because the informant wanted her by hook or by crook, their lawyer submitted. It was argued that the lawyer’s role isn't merely to be the police’s mouthpiece but also to ensure a fair trial for the accused which wouldn’t be possible in the present case.

The APP informed the court that all the rules and regulations while appointing Pawar as Special Public Prosecutor have been followed. The Remembrancer of Legal Affairs (RLA)'s approval was also taken. Facts would show how the advocate was hacked to death making it a heinous crime, he said.

At the outset, the bench relied on the judgement of the Rajasthan High Court in Nemi Chand vs. State of Rajasthan and others wherein the court observed that an Advocate on behalf of the complainant, can address the Court along with the Public Prosecutor, he can also be appointed as Special Public Prosecutor.

“No general statement can be made that merely because respondent No.2 (Pawar) had represented the informant at a particular level / stage it will cause prejudice to the accused persons," the bench observed.

However, the court said it can examine if proper procedure was followed in the appointment. It had called for the records from the Law and Judiciary department.

The court noticed that Pawar’s consent to be SPP was dated prior to the application to appoint her as SPP, which it found odd. It said the State should frame rules on whether such documents should accompany the application, or that the consent affidavit and declaration would be sought by the State Government after receiving the application.

Nonetheless, the court observed that all conditions were complied with and dismissed the petition.

Shivaji & Other Vs State of Maharashtra & Others [CRIMINAL WRIT PETITION NO.379 OF 2022]

Citation: 2023 LiveLaw (Bom) 52

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