TaxTMI 
TaxTMI 
2013 (9) TMI 1182
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....an (respondent no. 5) is a political rival of the petitioner no.1, who is and has been the Chief Minister of Tamil Nadu on a number of occasions. The petitioners approached this Court on 18.11.2003 for transferring the petitioners' trial to the neighbouring State of Karnataka in the interest of justice, on the ground that a fair trial was not possible in the State of Tamil Nadu. While transferring the matters to the State of Karnataka, this Court for appointment of SPP issued the following directions: "The State of Karnataka in consultation with the Chief Justice of High Court of Karnataka shall appoint a senior lawyer having experience in criminal trials as public prosecutor to conduct these cases. The public prosecutor so appointed shall be entitled to assistance of another lawyer of his choice. The fees and all other expenses of the Public Prosecutor and the Assistant shall be paid by the State of Karnataka who will thereafter be entitled to get the same reimbursed from the State of Tamil Nadu." (Emphasis added) 3. On 19.2.2005, the Government of Karnataka, after consultation with the Chief Justice of the High Court of Karnataka, appointed Shri B.V. Acharya, a former Advocate....
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....rt. In view thereof, the aforestated writ petition was dismissed as having become infructuous. 8. The State Government withdrew the Notification dated 26.8.2013 vide Notification dated 10.9.2013 and simultaneously, vide letter of the same date, asked Shri G. Bhavani Singh, respondent no.4 not to appear in the matter before the Special Judge. The petitioners then filed the present Writ Petition (Criminal) No. 154 of 2013 challenging the said letter written to the respondent no.4 and to direct the learned Special Judge to conclude the trial. On 13.9.2013, this Court issued notice returnable in ten days and stayed the operation of the letter being No. LAW 149 LCE 2012 dated 10.9.2013 passed by respondent Nos.1- 2. 9. While the afore-stated writ petition was pending in this Court, the Government of Karnataka consulted the Chief Justice of the Karnataka High Court for withdrawing the appointment of respondent no.4 as SPP. The Chief Justice concurred with the view of the State Government, vide communication dated 14.9.2013 and thus, the appointment of Shri G. Bhavani Singh stood withdrawn by the Government of Karnataka vide Notification No.LAW 149 LCE 2012 dated 16.9.2013. 10. Aggriev....
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....ment itself was not made after due consultation since the name of Shri G. Bhavani Singh did not find place in any of the four names submitted by the Government of Karnataka to the then learned Acting Chief Justice of Karnataka High Court for appointment as SPP. In an action contrary to the true purpose of consultation, the Acting Chief Justice recommended the name of Shri G. Bhavani Singh on his own, thus preventing any consultation on the name. Further, in exercise of its extraordinary power under Article 142 of the Constitution, this court cannot force the Government of Karnataka to allow the Special Judge to continue in service after reaching the age of superannuation on 30.9.2013. Therefore, the petitions lack merit and are liable to be dismissed. 13. Shri Vikas Singh, learned senior counsel appearing for the respondent no.5 has submitted that the petitioners themselves have been adopting dilatory tactics in the trial and it is only in the recent past that they have become very punctual and had been forcing the learned Special Judge to proceed with the matter in haste. The trial has been conducted in an unwarranted manner and an example of the same is that the arguments of the....
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....is cast to consult and the other who has the corresponding right(s) to be consulted. The grievance that there has been no consultation or insufficient consultation is normally raised by the authority who has a right to be consulted, in this case the Chief Justice. It is not legitimate for the party who has a duty to consult and who has failed in that duty, to make a grievance that there has been no consultation. This is exactly what has happened in the present case. If the Government found the name of Shri G. Bhavani Singh, which was sent by the Acting Chief Justice, not acceptable on any ground, it was duty bound to refer the name back to the Acting Chief Justice along with their views and suggestions, which was not done by them. On the contrary, they proceeded to appoint Shri G. Bhavani Singh as SPP without demur, who had already been a Public Prosecutor for several years. There is nothing on record to indicate that the Government of Karnataka had been forced by anyone to make the said appointment. The Government thus voluntarily acquiesced in the process and is now not entitled to raise this grievance. The grievance is thus baseless and does not carry any conviction. In the fac....
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....by Mr. Vikas Singh that the Special Judge has wrongly permitted the defence to commence their arguments before the arguments of the prosecution. On the other hand, according to the petitioners, this is entirely permissible in view of the fact that this is a prosecution under Section 13 of the Act 1988 and being so, any party including the defence is entitled to begin its submissions on the close of its evidence by virtue of Section 314 Cr.P.C., which applies to warrant cases. Further, by virtue of Section 5 of the Act 1988, cases under this Act are liable to be tried as warrant cases and there is therefore, no illegality in this regard. The respondents' contention that the prosecution alone must begin their arguments is based on Section 234 Cr.P.C., which is not applicable to the present trial at all. Having regard to the scope of the present dispute, we do not consider it necessary or appropriate to decide this question either. 20. In the instant case, as disclosed during the course of arguments, there has been a change of the political party in power in May 2013 and thus, the order of the State Government is alleged to be politically motivated. In our opinion, though there is a....
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....rs., AIR 1999 SC 2468; Onkar Lal Bajaj etc. etc. v. Union of India & Anr. etc.etc., AIR 2003 SC 2562; State of Karnataka & Anr. v. All India Manufacturers Organization & Ors., AIR 2006 SC 1846; and A.P. Dairy Development Corporation Federation v. B. Narasimha Reddy & Ors., AIR 2011 SC 3298). 23. In Smt. S.R. Venkataraman v. Union of India & Anr., AIR 1979 SC 49, this Court explained the concept of legal malice observing that malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause. 24. In Ravi Yashwant Bhoir v. District Collector, Raigad & Ors., AIR 2012 SC 1339, while dealing with the issue, this Court held: "37..... Legal malice" or "malice in law" means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill-feeling and spite. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory pow....
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....lowed to prolong indefinitely due to the lethargy of the prosecuting agency or the State machinery and that is the raison d'etre in prescribing the time frame" for conclusion of the trial. Article 12 of the Universal Declaration of Human Rights provides for the right to a fair trial what is enshrined in Article 21 of our Constitution. Therefore, fair trial is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity and is governed by rule of law. Denial of fair trial is crucifixion of human rights. (Vide: Smt. Triveniben v. State of Gujarat, AIR 1989 SC 1335; A.R. Antulay & Ors, v. R.S. Nayak, AIR 1992 SC 1701; Raj Deo Sharma (II) v. State of Bihar, (1999) 7 SCC 604; Dwarka Prasad Agarwal (D) by L.Rs. & Anr. v. B.D. Agarwal & Ors., AIR 2003 SC 2686; K. Anbazhagan v. Supdt. of Police, AIR 2004 SC 524; Zahira Habibullah Sheikh (5) v. State of Gujarat, AIR 2006 SC 1367; Noor Aga v. State of Punjab & Anr., (2008) 16 SCC 417; Capt. Amarinder Singh v. Parkash Singh Badal & Ors., (2009) 6 SCC 260; Mohd. Hussain @ Julfikar Ali v. State (Govt. of NCT of Delhi), AIR 2012 SC 750; Sudevanand v. State through CBI, (2012) 3 SCC 387; Rattiram & Ors. v. State o....
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....rity has to follow the same and cannot be permitted to act in contravention of the same. In other words, where a statute requires to do a certain thing in a certain way, the thing must be done in that way and not contrary to it at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim "Expressio unius est exclusio alterius", meaning thereby that if a statute provides for a thing to be done in a particular way, then it has to be done in that manner and in no other manner and following any other course is not permissible. In State of Uttar Pradesh v. Singhara Singh & Ors., AIR 1964 SC 358, this court held as under: "8. The rule adopted in Taylor v. Taylor (1876) 1 Ch D 426 is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted." (See al....