TaxTMI 
TaxTMI 
2011 (4) TMI 1443
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....This monitoring has been undertaken by this Court in view of the prayers made by the appellant and also in view of the very fair stand taken by the prosecuting agency, as also the Government of India, virtually inviting this Court's intervention in the matter of monitoring of the investigation. Having regard to the larger issues of public interest involved in proper investigation of the case and the ultimate unearthing of the crime, this Court has accepted such prayers of the parties. Acting on such basis, this Court has given direction for establishing a separate Special Court to try this case and pursuant to such direction, a Special Court has been constituted after following the due procedure. All this will appear from various orders passed by this Court from time to time. It may be noted that while monitoring this investigation, this Court, on the prayer made by the counsel for the parties, has also directed the CBI to take over the investigation in respect of the alleged suicide of one Mr. Sadik Batcha and pursuant to that direction, the CBI has expressed its willingness to take over the said investigation and in fact such investigation has been taken over by the CBI....
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....eral, on 5.4.2011, by referring to provision of Section 46(2) of the Prevention of Money Laundering Act, 2002 (hereinafter the said Act) urged that the said provision may be considered by this Court before passing any order suggesting the appointment of Mr. Lalit as Special Public Prosecutor. The matter was thereafter taken up on April 8, 2011. On that date, the learned Additional Solicitor General Ms. Indira Jaising, representing Union of India, on instruction, made the following written submissions: "1. The Union of India, after an in depth consideration of the entire matter, and in discharge of its obligations under the statutory provisions will make the necessary appointment of a SPP in respect of both the CBI matter as well as the money laundering matter within one week from today. 2. In view of this statement, it is not appropriate or necessary to make any submissions with regard to the scope of section 46(2) of the Money Laundering Act at this stage. 3.It is therefore requested that the matter may be suitably adjourned to enable the Union of India to report the progress made in this matter to this Hon'ble Court." Mr. Harin Raval, ASG appe....
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....ogative, to make a decision, the discretion can only be exercised fairly and reasonably; otherwise his act is void on the ground that there was no valid exercise of discretion in the eyes of law." (page 103) We are in respectful agreement with this view. In this case, the Court is not changing any public prosecutor who has already been appointed. The question in the present case was never in issue in Rajiv Ranjan Singh (supra). Therefore, the decision in Rajiv Ranjan Singh (supra) is not of much relevance here. We have taken note of the submission by Ms. Indira Jaising and Mr. Raval. But in the peculiar facts of the case and having regard to the larger issues of public interest of transparent governance, this Court has been passing various orders for monitoring of the investigation and also by giving direction for setting up separate Special Courts. These steps are taken by this Court in exercise of its jurisdiction under Article 136 read with Article 142. Consistent with those orders and since this Court is of the opinion that for conducting a proper prosecution, an appointment of a competent Special Public Prosecutor is of the essence, the court requested Mr. K.K. Venugopal....
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...., for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. (2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district or local area. (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. (4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district. (5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4....
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.... be a public prosecutor. At the same time, Section 2(u) of the Cr.P.C. makes it clear that any person who is appointed under section 24 of Cr.P.C. is a public prosecutor. Therefore, on a conjoint and harmonious reading of Section 46 along with Section 24 of the Cr.P.C. it appears that the expression "person conducting the prosecution before the Special Court" in sub-section (1) of section 46 of the said Act, would mean that such a person must either be appointed by the Central or the State Government after following the procedure prescribed in sub-section (4), (5) along with sub-section (7) of section 24 of Cr.P.C., or in the alternative after following the procedure in sub-section (6) read with sub- section (7) of section 24 of Cr.P.C. We are of the view that both the provisions, namely, the provisions of section 46 of the said Act and section 24 of Cr.P.C must be read together, since section 46 of the said Act, being a later Act, makes an express reference to the provision of the pre-existing Central law, namely the provisions of section 24 of Cr.P.C. The expression "under" occurring in section 46(2) must be reasonably construed in a manner which is consistent with the dignity....
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....prosecutor must observe a wider set of duties than to merely ensure that the accused is punished. His job is to ensure fair play in all proceedings. (Para 185- 188) In the Constitution Bench decision of this Court in Sheonandan Paswan v. State of Bihar and Others, reported in (1987) 1 SCC 288, this Court held that a public prosecutor is not a representative of any ordinary party to a controversy but of the sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all. Therefore, there is a public element in such an appointment. In the appointment of Public Prosecutor, the principle of master-servant does not apply. Such an appointment is not an appointment to a civil post. (See State of U.P. and Another v. Johri Mal, (2004) 4 SCC 714) In view of the aforesaid well-settled principles, we cannot hold that the expression 'under' in section 46(2) of the said Act can be construed to mean that the Public Prosecutor will be holding an employment under the State. All that it would mean is that the Special Public Prosecutor should be a lawyer on the panel of either the State or Central government. Mr. U.U. Lalit satisfies the said ....