MUKUL DALAL ETC. ETC. versus UNION OF INDIA & ORS. ETC. ETC.

Citation: [1988] 3 S.C.R. 868 · Decided: 04-05-1988 · Supreme Court of India · Bench: R.S. PATHAK · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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A 
MUKUL DALAL ETC. ETC. 
v. 
UNION OF INDIA & ORS. ETC; ETC. 
MAY 4, 1988 
B 
[R.S. PATHAK, C.J., RANGANATH MISRA AND 
-C 
, 
B.C. RAY, JJ.] 
-Code of Criminal Procedure, 1973--Section 24(8)-Appointment 
of Special Public Prosecutors and Section 25(1)-:-Appointment of 
Assistant Public Prosecutors-By State Government to support private 
transaction and provision of remuneratioH from private source--
Whether valid and justified, Held-Duty cast on Remembrancer of 
Legal Affairs of State Governm_ent to decide whether services of Special 
Public_ Prosecutor or Assistant _Public Prosecutor be' provided in a 
p'ar~icular case and who should bedr their expenses.' _ 
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--i'_.Rules for the C~nd~ct oi the-Legal Affairs '/Jfthe Government, 
J9S.4-Rule 22::.__Validlty of .• Held-Bad-Require proper, m_odifica-
tion by State Government. 
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The app~llantS were facing pr~secuti~n for ~e~eral charges nnder 
· the Indian Penal Code in differenttrlals. By ·different notifications: the 
E State of Maharashtra appointed some advocates 'as Assistant Public 
Prosecutor and Special Public Prosecutors' in exercise of powers under 
-section 25(1) and 24(8)- respecti_vely_'or the Code of Crlniinal Procedure, 
1973 for conducting the prosecutioii. The notifications were -challenged 
in a group of wrl(petitions before the High Court. A Division Bench of 
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the High Court by a romrnonjudgment negatived'_the plea advaiJced by./ 
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the appellants, rejected the writ petitiom and upheld the appointments. 
- Hence these appeals by special leave. The appellants contended that the 
- Code confers a special status on the public prosecutor whenever it has 
- been considered necessary, law has prescribed. the: interest to be re. 
presented by' the public prosecutor and it would not be in proper exer-
cise of power by the State Government to make appointment of a Special 
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Public Prosecutor_ to support a private transaction and provide for 1-j~ 
remuneration from Private source. . ~- r 
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_Allowing the appeals this Court, 
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HELD: Jn most of the States, the ii~i:e;,.br~n'ce~ or Legal 1lrrairs 
'H looks after the State litigations. He is a responsible-officer a~d nofmally 
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MUKUL DALAL v. U.0.1. 
869 
with judicial experience. When an application for the services of a 
Special Public Prosecutor or an Assistant Public Prosecutor is made in a 
given case the power would be vested in him to examine the facts and 
take decision as to whether the case merits the appointment of a Special 
Public Prosecutor or an Assistant Public Prosecutor. It would not be 
appropriate to accept the position that whenever an application is made 8 
it should be allowed and a Special Public Prosecutor should be appoin· 
ted would be contrary to the spirit of the scheme of the Code. There 
may be cases where a powerful complainant may have begun a proceed· 
ing to victimize his opponent. If in such a case the State concedes to the 
request for appointment of a Special Public Prosecutor there will be 
traversity of justice. Without screening on the basis of guidelines pres· 
cribed or to be prescribed, the services of a Special Public Prosecutor C 
should not be made available to a private complainant; The primacy 
given to the Public Prosecutor under the scheme of the Code has a social 
purpose and the same would be lost if the procedure adopted by Rule 22 
of Maharashtra Rules is accepted or what the High Court has indicated 
is adopted. [876F·ll; 877A·BI 
Rule 22 of the . Maharashtra Rules is bad and the State 
Government should properly modify the same keeping our conclu· 
sions in view. [87711; 878AI 
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D 
The next question would be whether the Special Public Prosecutor 
should be permitted to be· paid by the private complainant. The 
Remembrancer of Legal Affairs should scrutinise every request, 
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keeping a prescribed guideline in view and decide in which cases such 
request should be accepted, keeplng the facts of such case in view. 
Ordinarily the Special Public Prosecutor should be paid out of the State . 
funds even when he appears in support of a private complainant but· 
there may be some special case where the Special Public Prosecutor's 
remuneration may be collected from the private source. In such cases F· 
the fees should either be deposited in advance or paid to a prescribed . 
State agency from where the Special Public Prosecutor c

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