# K. ANBAZHAGAN v. STATE OF KARNATAKA& ORS

- **Citation:** [2015] 7 S.C.R. 355
- **Court:** Supreme Court of India
- **Decided:** 2015-04-15
- **Case number:** Criminal Appeal No. 637 of 2015
- **Bench:** Madan B. Lokur, R. Banumathi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-anbazhagan-v-state-of-karnataka-ors-30930
- **Pages:** 114

## Headnote

Code of Criminal Procedure, 1973:
A
B
c
ss. 2(u), 24, 25, 25A and 301(1) - Special Public
Prosecutor-Appointed u/s. 24(8) to appear in the trial before
Special Court - Whether could continue as Special Public
Prosecutor in the appeals against the order of the Special 0
Court - Held: Per Madan B. Lokur, J.: Appointment of the
Special Public Prosecutor was limited only to the trial and
automatically terminated on conclusion of the trial - That
engagement did not automatically imply any authorization
to him to appear for the prosecution in the appeals - Since E
the State of Kamataka did not appoint Special Public
Prosecutor for the High Court, conducting of the case in
appeal before High Court by respondent No. 5 (the Special
Public Prosecutor) was without authority - Therefore the
proceedings in the appeal are vitiated - The appeals have F
to be heard afresh - Per Banumathi, J.:- Once respondent
No. 5 was appointed as a Special Public Prosecutor incharge of a case, he can appear and plead without any written
authority before any Court in which that case is under inquiry,
trial or appeal - Until the Notification by which the Special G
Public Prosecutor was appointed, is quashed by the State,
the power uls 301, will continue the authority of Special Public
Prosecutor to appear and plead even after end of the trial -
355
H
356
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A Per Court: In view of difference of opinion, matter referred to
Larger Bench - Code of Criminal Procedure, 1898- s. 493Karnataka Law Officers (Appointment and Conditions of
Service) Rules, 1977 - r.30.
B
s. 24(8) - Power to appoint Special Public ProsecutorCriminal case transferred u/s. 406 Cr.PC. to another State -
After conclusion of trial, in appeal, Special Public Prosecutor
appointed by transferor State - Propriety of- Held: After the
transfer of the case, the transferee-State steps into the shoes
C of the transferor-State- Thus transferee-State alone is entitled
to appoint the Public Prosecutor - The appointment of
Special Public Prosecutor by the transferor-State was without
authority and non-est in the eye of law.
o
s.301(2) -Application under- Seeking permission to
intervene in pending appeals and to assist Special Public
Prosecutor - Application dismissed by High Court - On
appeal, plea of the intervener for permission to file written
submission before the High Court-Held: s.301(2) does not
E postulate filing of written submission - Application rightly
rejected by the High Court.
F
G
Words and Phrases: 'Case' - Meaning of, in the context
ofss. 24(8) and 301 of Code of Criminal Procedure, 1973.
Referring the matter to Larger Bench, the Court
Held:
Per Court:
In view of difference of opinion, the Criminal Appeal
No.637 of 2015 is referred to the Larger Bench.
Per Madan B. Lokur, J.: (Allowing the Criminal Appeal
H No.637 of 2015 and dismissing Criminal Appeal No. 638
of2015)
K. ANBAZHAGAN v. STATE OF KARNATAKA
357
Criminal Appeal No. 637 of 2015:
A
1.1 The Prosecution against Ms. Jayalalitha and
others was at the instance of the State of Tamil Na du but
after the prosecution was transferred to Karnataka, and
in terms of the decision of this Court rendered in B
* Anbazhagan case, Tamil Nadu had no further say in
matters relating to the Public Prosecutor or the Special
Public Prosecutor (apart from the payment of his fees
etc.). It was for Karnataka to appoint the Public
Prosecutor. Thus, Karnataka virtually stepped into the C
shoes of the State of Tamil Nadu and thereby became
directly involved and concerned, at least in so far as the
prosecution of the accused persons is concerned. [Para.
29] [386-B-E]
Jayendra Saraswati Swamigal v. State of Tamil Nadu
2008 (11) SCR 161: 2008 (10) sec 180- relied on.
*K. Anbazhagan v. Superintendent of Police 2003 (5)
D
Suppl. SCR 610: 2004 (3) SCC 767 - referred to.
E
1.2. On the transfer of a case by this Court u/s. 406
of Cr.P.C., the transferee-State not only steps into the
shoes of the transferor-State but it effectively b

## Text

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[2015] 7 S.C.R. 355
K. ANBAZHAGAN
v.
STATE OF KARNATAKA& ORS.
(Criminal Appeal No. 637 of 2015 etc.)
April 15, 2015
[MADAN B. LOKUR AND R. BANUMATHI, JJ.)
Code of Criminal Procedure, 1973:
A
B
c
ss. 2(u), 24, 25, 25A and 301(1) - Special Public
Prosecutor-Appointed u/s. 24(8) to appear in the trial before
Special Court - Whether could continue as Special Public
Prosecutor in the appeals against the order of the Special 0
Court - Held: Per Madan B. Lokur, J.: Appointment of the
Special Public Prosecutor was limited only to the trial and
automatically terminated on conclusion of the trial - That
engagement did not automatically imply any authorization
to him to appear for the prosecution in the appeals - Since E
the State of Kamataka did not appoint Special Public
Prosecutor for the High Court, conducting of the case in
appeal before High Court by respondent No. 5 (the Special
Public Prosecutor) was without authority - Therefore the
proceedings in the appeal are vitiated - The appeals have F
to be heard afresh - Per Banumathi, J.:- Once respondent
No. 5 was appointed as a Special Public Prosecutor incharge of a case, he can appear and plead without any written
authority before any Court in which that case is under inquiry,
trial or appeal - Until the Notification by which the Special G
Public Prosecutor was appointed, is quashed by the State,
the power uls 301, will continue the authority of Special Public
Prosecutor to appear and plead even after end of the trial -
355
H
356
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A Per Court: In view of difference of opinion, matter referred to
Larger Bench - Code of Criminal Procedure, 1898- s. 493Karnataka Law Officers (Appointment and Conditions of
Service) Rules, 1977 - r.30.
B
s. 24(8) - Power to appoint Special Public ProsecutorCriminal case transferred u/s. 406 Cr.PC. to another State -
After conclusion of trial, in appeal, Special Public Prosecutor
appointed by transferor State - Propriety of- Held: After the
transfer of the case, the transferee-State steps into the shoes
C of the transferor-State- Thus transferee-State alone is entitled
to appoint the Public Prosecutor - The appointment of
Special Public Prosecutor by the transferor-State was without
authority and non-est in the eye of law.
o
s.301(2) -Application under- Seeking permission to
intervene in pending appeals and to assist Special Public
Prosecutor - Application dismissed by High Court - On
appeal, plea of the intervener for permission to file written
submission before the High Court-Held: s.301(2) does not
E postulate filing of written submission - Application rightly
rejected by the High Court.
F
G
Words and Phrases: 'Case' - Meaning of, in the context
ofss. 24(8) and 301 of Code of Criminal Procedure, 1973.
Referring the matter to Larger Bench, the Court
Held:
Per Court:
In view of difference of opinion, the Criminal Appeal
No.637 of 2015 is referred to the Larger Bench.
Per Madan B. Lokur, J.: (Allowing the Criminal Appeal
H No.637 of 2015 and dismissing Criminal Appeal No. 638
of2015)
K. ANBAZHAGAN v. STATE OF KARNATAKA
357
Criminal Appeal No. 637 of 2015:
A
1.1 The Prosecution against Ms. Jayalalitha and
others was at the instance of the State of Tamil Na du but
after the prosecution was transferred to Karnataka, and
in terms of the decision of this Court rendered in B
* Anbazhagan case, Tamil Nadu had no further say in
matters relating to the Public Prosecutor or the Special
Public Prosecutor (apart from the payment of his fees
etc.). It was for Karnataka to appoint the Public
Prosecutor. Thus, Karnataka virtually stepped into the C
shoes of the State of Tamil Nadu and thereby became
directly involved and concerned, at least in so far as the
prosecution of the accused persons is concerned. [Para.
29] [386-B-E]
Jayendra Saraswati Swamigal v. State of Tamil Nadu
2008 (11) SCR 161: 2008 (10) sec 180- relied on.
*K. Anbazhagan v. Superintendent of Police 2003 (5)
D
Suppl. SCR 610: 2004 (3) SCC 767 - referred to.
E
1.2. On the transfer of a case by this Court u/s. 406
of Cr.P.C., the transferee-State not only steps into the
shoes of the transferor-State but it effectively becomes
the prosecuting State. It can and does appoint a Public F
Prosecutor to prosecute the case. and a Public
Prosecutor who is answerable to the Government of the
transferee-State only- the Public Prosecutor appointed
by one State is certainly not answerable to the
Government of another State. [Para 55) [401-D-E]
G
1.3. In the present case, this Court by not giving any
• I•
direction with regard to the appointment of a Public
Prosecutor or a Special Public Prosecutor post the
decision by the Trial Court, did not leave any vacuum. H
State of Karnataka as the transferee State, was entitled
358
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A to file an appeal in the Karnataka High Court. Karnataka
as the transferee State continues to retain its entitlement
to appoint a Public Prosecutor or a Special Public
Prosecutor to contest the appeal, otherwise the purpose
of transferring the case out of Tamil Nadu to Karnataka
B would stand frustrated at the appellate stage. Karnataka
was remiss in fulfilling its obligation to appoint a Public
Prosecutor to contest the appeals filed in the High Court
by the accused persons. [Para 58) [402-D-G]
C
State v. Vikas Yadav MANU/DE/1673/2008 - referred
to.
2.1. The focus and concern of this Court while
transferring the trial from the State of Tamil Nadu to the
o State of Karnataka was limited only to the conduct of a
fair trial and nothing beyond it. This Court did not have,
and could not have had in mind fairness or otherwise of
the proceedings subsequent to the conclusion of the
trial. There was no basis or material to assume that after
E the conclusion of the trial, on an appeal filed by the
prosecution or the accused persons (as the case may
be), even the appellate proceedings in the High Court
would get subverted or compromised in any manner
whatsoever. Thus, the appointment of respondent No.5
F as the Special Public Prosecutor came to an end on the
conclusion of the trial before the Special Court. [Paras
62, 63) [404-D-H; 405-A]
2.2 However, this does not mean that Karnataka
G could not have appointed the same Special Public
Prosecutor to conduct the appeals that might be filed
after the conclusion of the trial. Karnataka could certainly
have done so either through a composite notification for
the trial and possible appeai(s) or by separate
H notifications. [Para 64) [405-8)
K. ANBAZHAGAN v. STATE OF KARNATAKA
359
2.3 The language employed in the notification dated A
2"d February, 2013 appointing respondent No.5 as a
Special Public Prosecutor is quite specific and is to
enable him "to conduct Special C.C. No. 208/2004. There
is no mention about anything beyond Special CC No.
208/2004 such as an appeal filed in the High Court either B
by the accused persons or by the prosecution. It is not
possible to read into the language of the notification any
authority being given to the said Special Public
Prosecutor to proceed beyond the trial in representing
the prosecution. It would do violence to the language of C
the notification if it were given an interpretation wider
than what the plain language suggests, intends and
states. [Para 68] [406-G,H;407-A-B]
2.4 Section 24(1) Cr.P.C. provides for the appointment D
of a Public Prosecutor for a High Court. The 'jurisdiction'
or 'area of operation' of a Public Prosecutor appointed·
for the High Court is limited to the High Court and it is
not possible for a Public Prosecutor appointed for the
High Court to claim that he or she is entitled to appear in E
the District Court or any other court by virtue of his or
her appointment. A similar power of appointment of a
Public Prosecutor for every district is given to the State
Government by Section 24(3) Cr.P.C. There is a similar F
limitation of 'jurisdiction' or 'area of operation' of a Public
Prosecutor appointed under Section 24(3) to the district
for which he or she is appointed. The Special Public
Prosecutor, in question was not appointed as a Special
Public Prosecutor for the High Cc;urt u/s. 24(1 ). That G
being so, he has no authority to per se conduct the
appeals in the High Court on behalf of the prosecution.
[Paras 73 and 74) [407-G; 408-B-H]
2.5 The power given to the Central Government and H
the State Government by Section 24(8) Cr.P.C.to appoint
360
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A a Special Public Prosecutor, is much wider than the
powers u/s 24(1) and 24(3). The appointment of a Special
Public Prosecutor is not with reference to the High Court
or a district, but is an appointment for a case in any court
or a class of cases in any court or courts. [Para 77) [409B B-0]
2.6 Section 301 {1) Cr.P.C. applies not only to a Public
Prosecutor as defined in Section 2(u) Cr.P.C. [which
includes a Special Public Prosecutor appointed u/s. 24(8)
C Cr.P.C.] but it also applies to an Assistant Public
Prosecutor appointed u/s. 25 Cr.P.C. Section 301 (1)
Cr.P.C. has three ingredients for its applicability: (1) The
Public Prosecutor or the Assistant Public Prosecutor
must be in charge of the case; (2) If the Public Prosecutor
D or the Assistant Public Prosecutor is in charge of a case,
he or she is entitled to appear and plead without any
written authority; (3) The Public Prosecutor or the
Assistant Public Prosecutor in charge of a case is
entitled to appear and plead without any written authority
E before any court in which that case is under enquiry, trial
or appeal. If the ingredients of s.301 (1) Cr.P.C. is to be
read as to mean that a Special Public Prosecutor is
entitled to appear and plead (without any written
F authority) in any court [the High Court] since that 'case'
is in appeal in the High Court, it could lead to an
anomalous result and an anomalous situation. [Paras
82, 83, 84 and 85) [411-C-H; 412-A]
2. 7 The only reasonable interpretation that can be
G given to the scheme laid out in Sections 24, 25, 25-A and
301 (1) Cr.P.C.is that the Public Prosecutor and Assistant
Public Prosecutor can appear and plead without written
authority only within that 'jurisdictional' or 'operational'
H limit, provided the Public Prosecutor or the Assistant
Public Prosecutor is in charge of that case and a
K.ANBAZHAGAN v.STATE OF KARNATAKA
361
Prosecutor (Public Prosecutor, Assistant Public A
Prosecutor or Special Public Prosecutor) who is put in
charge of a particular case cannot appear and plead in
that case without any written authority outside his or her
..
'jurisdiction' whether it is the High Court or the district
or the court of a Magistrate. Thus, section 301 (1) Cr.P.C.
B
maintains a case specific character, and read along with
Sections 24, 25 and 25-A Cr.P.C. maintains a court or
district specific character as well. [Paras 89 & 90) [414D-G]
State of Punjab v. Surjit Singh (1967) 2 SCR 347 -
followed.
2.8 Respondent No.5 having been appointed as a
Special Public Prosecutor for a specific case pertaining
c
to the accused persons before the Special Court was D
answerable in all respects to the Deputy Director of
Prosecution in terms of Section 25-A(6) Cr.P.C. and his
authorization was limited only-to that case before the
Special Court. Therefore, this\precluded him from E
appearing on behalf of the prosecution in the appe~ls
filed by the accused persons in the High Court. He
needed a specific authorization in that regard which
would have then made him subordinate to the Director
of Prosecution and not continued his subordination to F
the Deputy Director of Prosecution. [Para 96) [416-H; 417A-C]
2.9 The word 'case' occurring in Section 24 and
Section 301 (1) Cr.P.C.is required to be given its ordinary
and natural meaning and in the context in which it is used. G
It cannot be given an extended meaning so as to include
an appeal. [Para 106] [420-G-H]
Mansoor v. State of Madhya Pradesh 1971 (0) Suppl.
SCR 731: (1971) 2 SCC 369- distinguished.
H
2.10 It cannot be said that in terms of Rule 30 of the
362
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A Karnataka Law Officers (Appointment and Conditions of
Service) Rules, 1977 which authorizes the Government
of Karnataka to appoint an advocate as a Special
Counsel for the conduct of a criminal case or any appeal
or proceeding connected therewith pending in a court
B whether within the State or in any other State or in the
Supreme Court or in any High Court in the country,
respondent No.5 is entitled to appear in the High Court
in the appeals filed by the accused persons. It has not
been anybody's case at any stage that respondent No.5
C appeared in the High Court in the appeals in his capacity
as a Special Counsel and not in his capacity as a Special
Public Prosecutor. This plea is being made for the first
time and only in this court. That apart, the facts relating
0 to his as a Special Counsel are not available on record.
The roles of a Public Prosecutor and a Special Counsel
are distinct and separate. [Paras 107, 108 and 11 OJ [421C-F; 422-E]
2.11 No lawyer either in his capacity as a private
E lawyer or a lawyer for the State or as a Public Prosecutor
can purport to represent a litigant without any authority
for doing so. Acceptance of the de facto doctrine could
lead to chaos in the dispensation of justice. If respondent
F No.5 is not authorized to represent the prosecution in
the High Court in the appeals filed by the accused
persons, he simply cannot do so and if he does so, the
accused persons cannot put forward a fait accompli or
rely upon the de facto doctrine. [Para 112] [423-C-D]
G
Gokaraju Rangaraju v. State ofAndhra Prades 1981 (3)
SCR 474: (1981) 3 SCC 132; Pu/in Behari v. King Emperor
(1912) 15 Cal L.J 517, 574; K. Anbazhagan v. The
Superintendent of Police 2012 (4) KARLJ 635; K.
H Anbazhagan v. The Superintendent of Police MANU/KA/
2530/2011 - referred to.
K. ANBAZHAGAN v. STATE OF KARNATAKA
363
2.12 Respondent No.5 is not authorized to represent A
the prosecution in the Karnataka High Court in the
appeals filed by the accused persons against their
conviction by the Special Court. That being so, the final
hearing proceedings in this regard before the High Court
are vitiated and the appeals filed by the accused persons B
will have to be heard afresh by the High Court. [Para 119]
[427-E-F]
2.13 The State of Karnataka to ensure that the
prosecution is duly represented by an authorized Public c
Prosecutor appointed under Section 24(1) Cr.P.C. -
However, if the State of Karnataka decides to appoint a
Special Public Prosecutor under Section 24(8) Cr.P.C., it
must do so only in consultation with the Chief Justice of
the Karnataka High Court. It is directed that the State of o
Karnataka be made a party respondent in the appeals
filed by the accused persons. [Paras 120 and 121] [427G-H; 428-A-B]
Criminal Appeal No.638 of 2015:
3. There is no question of permitting the appellant
to file written submissions. Section 301 (2) of Cr.P.C does
not postulate the filing of any written submissions. That
apart, he cannot be permitted to file written submissions
E
in the High Court when no such prayer was made by F
him before the High Court. Even if such a prayer had
been made before the High Court, it was entirely for the
Single Judge to take a view in the matter. [Para 127] [429B-C]
G
on.
Haradhan Sen v. State 2004 Crl. L.J. 3881 - relied
Per Banumathi, J.: (Dismissing the appeals.)
Criminal Appeal No. 637 of 2015:
H
1.1 While directing transfer of a criminal case from
364
SUPREME COURT REPORTS
[2015) 7 S.C.R.
A outside the State, this Court can in exercise of powers
u/s. 406 Cr.P.C. issue further direction to the transferee
court to appoint Public Prosecutors/Additional Public
Prosecutors/Special Public Prosecutors. (Para 15] (437F-G]
B
c
Jayendra Saraswati Swamigal@ Subramaniam vs. State
of Tamil Nadu 2008 (11) SCR 161: (2008) 10 SCC 180 -
relied on.
1.2 When the criminal case is transferred from one
court to another court which is subordinate to another
High Court, then the transferee State acquires
jurisdiction to appoint Public Prosecutor. The transferor
court, namely, State of Tamil Nadu had no jurisdiction to
D appoint Special Public Prosecutor to represent D.V &
A.C in the criminal appeals before the High Court of
Karnataka. Order hastily passed by the State of Tamil
Nadu on 29.09.2014 authorizing D.V & A.C to engage
respondent No.5 as its Special Public Prosecutor is
E without authority and non-est in the eye of law. [Paras
16 and 17] [439-G-H; 440-G]
2.1 The appointment of respondent No.5 u/s. 24(8)
Cr.P.C. as directed by this Court was in consultation with
F the High Court and on the recommendation of the Chief
Justice of the High Court of Karnataka. (Para 27] (447-E]
2.2 As per Section 2(u) Cr.P.C., Public Prosecutor
means any person appointed u/s.24 Cr.P.C. and thus
G includes a Special Public Prosecutor appointed u/s. 24(8)
Cr.P.C. By a plain reading of Section 24 Cr.P.C., three
main categories of Public Prosecutors are discernible:-
First are those who are attached to a particular High
Court, District or Local Area; Second are those who are
H attached to a particular case or class of cases but in a
K.ANBAZHAGAN v. STATE OF KARNATAKA
365
specified jurisdiction and lastly, the one appointed to a A
particular case or class of cases. The last category
belongs to 'Special Public Prosecutor' appointed under
sub-section (8) of Section 24 Cr.P.C., in which there is
no mention about the jurisdiction/territory in which
Special Public Prosecutor has to conduct the case or
class of cases. The limitation of acting in particular court
or area is conspicuously absent in the provision of
Section 24(8) Cr.P.C, when compared with other
provisions. [Para 28) [447-H; 448-A-D]
2.3 Public Prosecutor defined under sub-section (u)
B .
c
of Section 2 Cr.P.C. is the genus and Special Public
Prosecutor is the species. Though there is common
section 2(u) Cr.P.C. defining all classes of Public
Prosecutors i.e. Public Prosecutor, Special Public D
Prosecutor, Assistant Public Prosecutor etc., all of them
stand on different footings and there cannot be a same
scale to measure their functions. In fact, this is the
intention which can be inferred from the changes
brought in the new Cr.P.C. as compared to the old Cr.P.C. E
of 1898. [Para 33) [450-B-D]
·
2.4 Section 301 Cr.P.C. deals with 'appearance of
Public Prosecutor' giving a substantive right to the Public
Prosecutor who is 'in charge of a case' to appear and F
plead in any court in which that case is under inquiry,
trial or appeal without having any written authority. The
scheme of Cr.P.C. is that when a case is at the stage of
inquiry, trial or appeal, the Public Prosecutor is in charge G
of the case and he is authorized to appear before any
court in which that case is under inquiry, trial or appeal,
without any written authority. One of the reasons for
dispensing with the requirement of written authority to
appear and plead u/s.301 Cr.P.C. is that the Special Public H
366
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A Prosecutor appears for the State to prosecute the
accused. State in turn authorize and appointthe Special
Public Prosecutor to act on its behalf by issuing a
notification and until that notification is quashed by the
State, the power under sub-section (1) of Section 301 of
B Cr.P.C., will continue the authority of Special Public
Prosecutor to appear and plead even after end of trial.
[Para 30] [449-8-E]
2.5 When sub-section (8) of Section 24 is read
C harmoniously with Section 301 Cr.P.C. on the
touchstone of the' enunciated principles, then it would
be evident that Special Public Prosecutor who is in
charge of a case can appear and plead without any
written authority in any court of criminal jurisdiction in
D which such case is under inquiry, trial or appeal and there
is no limitation either on territory or hierarchy of courts.
It cannot be said that the authority of Special Public
Prosecutor ends with the conclusion of the trial and
disposal of a case. If such a plea is to be accepted then
E the last few words of Section 301 Cr.P.C. 'in any court
where that case is under inquiry, trial or appeal' would
become redundant and ineffective. It is a cardinal rule of
interpretation that every word in a section has a meaning
F and essence .. [Para 49] [460-C-F]
2.6 In the new Cr.P.C. u/ss. 24, 25 & 26 Cr.P.C. all of
them have independent specific role to play at various
levels and it is in the light of these specific roles, Section
301 Cr.P.C. ought to be interpreted. That is the reason
G why Special Public Prosecutor can be allowed to appear
in the case, when the same went in appeal from trial and
the Public Prosecutor and the Assistant Public
Prosecutor cannot be allowed to do so because of
H element of 'Court or area' limitation imposed upon them
in which they have to work. [Para 33] [450-E-F]
K. ANBAZHAGAN v. STATE OF KARNATAKA
367
Shiv Kumar vs. Hukam Chand And Anr. 1999 (2) Suppl. A
SCR 81: (1999) 7 sec 467 - relied on.
K. Anbazhagan & Ors. vs. Supdt. of Police & Ors. 2003
(5) Suppl. SCR 610: (2004) 3 SCC 767; J. Jayala/ithaa And
Ors. VS. State of Kamataka & Ors. (2014) 2 sec 401 -
B
referred to.
2.7 The word 'case' has been given a broader
meaning in the context of Section 301 of Cr.P.C. The term
'case' has to be interpreted only contextually and no
universal rule can be laid down for its interpretation and C
therefore the Legislature in its wisdom has avoided to
define the same in the Code inspite of abundant
presence in the various provisions of the Code. The term
'case' used in old Code has been replaced with term 0
'appeal' in the new Code, due to the reason of the
mischief that had been created by the term 'case' in the
old Code. The mischief was caused due to the wider
meaning given to the term 'case' by the Courts then. It is
to rectify this mischief; the new Code has replaced the E
word 'case' with 'appeal'. When the Legislature has
remedied the mischief u/s.429 of the old Code by
replacing the term 'case' with the term 'appeal' u/s.392
of the new Code, then atthat point of time, the Legislature
could have defined the term 'case'; but the Legislature F
opted not to do so and left it to the Courts of Law to
interpret the term in the context of particular section and
facts of the cases. Therefore, the meaning that can be
assigned to the term 'case' under Section 301 Cr.P.C. is
contextually different and wider than the provisions G
referred above. [Paras 45, 47 and 48] (458-F-H; 459-F-H;
460-A-C]
Bhimappa Bassappa Bhu Sannavar vs. Laxman
Shivarayappa Samagouda & Ors. 1971 (1) SCR 1: (1970) 1 H
sec 665 - relied on.
368
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A
2.8 Under the old Cr.P.C. provisions corresponding
to Section 24 Cr.P.C. and Section 301 Cr.P.C. were under
the same Chapter. They have now been placed in
different Chapters in the 1973 Code, however, this was
done as merely a part of the scheme of the Code.
B Therefore, it would be wrong to suggest that
interpretation of Section 24(8) Cr.P.C. alongwith Section
301(1) Cr.P.C. would be in violation to the scheme of the
Code. [Para 37] [454-D, E]
C
2.9 ThO'Jgh Chapter XXIV deals with the 'General
provisions as to inquiries and trials', it also contains
various sections which if not observed mandatorily, will
have serious repercussions on the substantive rights
of the parties. Section 301(1) Cr.P.C. gives substantive
D right to the Public Prosecutor who is in charge of a case
to appear and plead without any written authority in any
Court in which that case is under trial, inquiry or appeal.
Further as per sub-section (2) of Section 301 Cr.P.C., if a
victim chooses to appoint some private pleader on his/
E her behalf, then such private pleader will act under the
direction of the Public Prosecutor. Mandatory nature of
Section 301(2) Cr.P.C. [Paras 39, 40] [455-A-B, D, E]
,.. '
State of Punjab vs. Surjit Singh And Anr. (1967) 2 SCR
F 347 - followed.
2.10 Since both Public Prosecutor and Special
Public Pros~cutor have been entrusted with certain
overlapping task, there is bound to be overlapping. To
G narrow down the overlapping, the Legislature has very
carefully placed the word 'in charge of a case' under
Section 301 (1) Cr.P.C. Being placed 'in charge of a case',
there is a specific role attributed to the Special Public
Prosecutor under sub-section (8) of Section 24 Cr.P.C.
H which distinguishes the task of Special Public
K. ANBAZHAGAN v. STATE OF KARNATAKA
369
Prosecutor from that of Public Prosecutors appointed A
under sub-sections (1), (2) and (3) of Section 24 Cr.P.C.
and hardly there is any anomaly. [Paras 41 and :43] [456F-G; 457-H; 458-A]
2.11 Such authority of the Special Public Prosecutor 8
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 not emanate from the term 'case' or for
that matter 'class of cases' as appearing under subsection (8) of Section 24 Cr.P.C., but for the reason of the c
broader context in which term 'case' has been used in
Section 301(1) Cr.P.C. to include any court in.~hich that
case is under 'inquiry, trial or appeal'. The Special Public
Prosecutor, after the trial is over, derives its authority to
continue to appear and plead before appellate forum by o
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 wide language of Section
301 Cr.P.C., until the notification appointing him has been
cancelled by the appropriate State Government. [Para E
50] [460-G-H; 461-A-B]
2.12 Thus, the authority of Special Public Prosecutor
will follow the stage of case, until his authority has been
revoked by the State in express terms. This is what can F
be understood by the deliberate positioning ofthe words
'inquiry, trial or appeal' after the word 'case'. Once
respondent No.5 was appointed as the Speci_a_I Public
Prosecutor in charge of a case, even after end of~the trial,
he has a right to appear and plead in any court where G
that case is pending trial, inquiry or appeal. [Para 51]
[461-F-G]
2.13 The matter has been pending for more than
eight years during which many orders passed by the H
Special Court came to be challenged before the High
370
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A Court, by way of revisions or other proceedings. In all
those revisions and other proceedings before the High
Court, the then Special Public Prosecutor appeared in
the High Court. Such appearance, is by virtue of the
authority derived under Section 301 (1) Cr.P.C. Thus, after
B the conclusion of the trial, by virtue of accused having
filed the appeal against the decision of Sessions Court,
the right of Special Public Prosecutor will remain
subsisting to appear and plead in the appeal also. [Para
C 51) (461-G-H; 462-A-C]
3. The appellant did not take steps immediately after
the disposal of the matter in the trial court as the appellant
was conscious of the right of respondent No.5 to
continue as the Special Public Prosecutor by virtue of
D the provision of Section 24 (8) and Section 301(1) of
Cr.P.C. unless cancelled by the State of Karnataka. The
appellant had not even chosen to challenge the
appointment of respondent No.5 as Special Public
Prosecutor by the State of Tamil Nadu (dated 29.9.2014)
E which is prima facie non-est. Only after this Court passed
the order on 18.12.2014, fixing the outer time limit for
disposal of the criminal appeals, the appellant seems to
have made representation and thereafter filed writ
F petition, which lacks bona fide. [Para 58) [467-G-H]
4. Respondent No.5 appointed as Special Public
Prosecutor (SPP) under Section 24(8) Cr.P.C., by virtue
of Section 301(1) Cr. P.C., has authority to continue to
appear as Public Prosecutor in the criminal appeals filed
G by the accused in the High Court of Karnataka. [Para 59)
(468-D-E]
Criminal Appeal No. 638 of 2015:
..
H
The order of the High Court in I.A. No.1/2015 in
K.ANBAZHAGAN v. STATE OF KARNATAKA
371
Criminal Appeal Nos.835-838/2014 is confirmed. (Para 60] A
(468-F]
Case Law Reference
In the judgment of Madan B. Lokur1 J.
B
2003 (5) Suppl. SCR 610
referred to. Para 5
2008 (11) SCR 161
relied on.
Para 30
(1967] 2 SCR 347
followed.
Para 90
c
1971 (0) Suppl. SCR 731
distinguished~Para 105
1981 (3) SCR 474
referred to. Para 111
(1912) 15 Cal L.J 517, 574
referred to. Para 111
D
2012 (4) KAR LJ 635
referred to. Para 117
MANU/KA/2530/2011
referred to. Para 118
2004 Crl. L.J. 3881
relied on.
Para 128
E
In the judgment of Banumathi, J.
2008 (11) SCR 161
relied on.
Para 15
1999 (2) Suppl. SCR 81
relied on.
Para 34
F
2003 (5) Suppl. SCR 610
referred to. Para 26
(2014) 2 sec 401
referred to. Para 27
(1967) 2 SCR 347
followed.
Para 40
G
1971 (1) SCR 1
relied on.
Para 45
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 637 of2015.
H
372
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A
From the Judgment and Order dated 11.02.2012 of the
Division Bench of the High Court of Karnataka at Bangalore
in W.A. No. 260 of 2015(GM-RES).
With
B
CriminatAppeal No. 638 of 2015
c
D
T. R.Andhyarujina, R. Shunmuga Sundaram, Vikas Singh,
V. G. Pragasam, Prabu Ramasubramanian, Soumik Ghosal,
Deepika Kalia, Kapish Seth for the Appellant.
Fali S. Nariman, K. T. S. Tulsi, 8. Kumar, M. N. Rao, C.
Manishanka'r, S. Senthil, Meha Aggarwal, Ashokan, Ashok K.
Mahajan, Anitha Shenoy, Vish ruti Vi jay for the Respondents.
The Judgments & Order of the Court were delivered by
MADAN B. LOKUR, J. 1. Leave granted.
2. The question for consideration is whether Mr. G. Bhavani
Singh appointed as a Special Public Prosecutor in the trial of
E the case against Ms. Jayalalithaa and other accused persons
in the Special Court in Bengaluru was entitled to represent the
prosecution in the appeals filed in the Karnataka High Court
by the accused persons against their conviction.
F
3. My answer to this question is in the negative on an
appreciation of earlier directions given by this court, on a
reading of the notification appointing Mr. Bhavani Singh as a
Special Public Prosecutor and on an interpretation of Sections
24, 25, 25-A and 301 (1) of the Code of Criminal Procedure,
G 1973. The result is that the hearing of the appeals in the High
Court stands vitiated, since the prosecution was not
represented by an authorized person. The appeals will have
to be heard afresh by the High Court with the prosecution
represented by a Public Prosecutor appointed under Section
H 24(1) of the Criminal Procedure Code, 1973 or a Special
K. ANBAZHAGAN v. STATE OF KARNATAKA
373
[MADAN B. LOKUR, J.]
Public Prosecutor appointed by the State of Karnataka under A
Section 24(8) of the said Code.
c·
4. Before adverting to the facts of the case, it needs
mention that this case is a classic illustration of what is wrong
with our criminal justice delivery system. If the allegations made s
by Mr. K. Anbazhagan 1 are true that the accused persons used
their power and influence to manipulate and subveh the criminal
justice system for more than 15 years thereby delaying the
conclusion of the trial against them, then it is: a-reflection on
the role that power and influence can play in criminal justice C
delivery. However, if the allegations made by ti_irri are not true,
even then it is extremely unfortunate that a crirrimal trial should
take more than 15 years to conclude. Whichever way one looks
at the unacceptable delay, it is the criminal justice delivery
system that comes out the loser. Something drastic needs to D
be done to remedy the system, if not completely overhaul it,
and as this case graphically illustrates, the time starts NOW.
Background facts
5. The background facts relating to the appeals have been
pithily stated in K. Anbazhagan v. Superintendent of Policfiland the relevant facts are paraphrased for the purposes of
this decision.
6. From 1991to1996, Ms. J. Jayalalithaa was the duly
elected Chief Minister of Tamil Nadu. A political party called
E
F
the AIADMK headed by her was defeated in -the general
elections held in 1996 and another political party, the DMK,
was voted in with a majority. On the basis of allegations of G
amassing assets disproportionate tc;> their known sources of
income, criminal proceedings were initiated against Ms.
Jayalalithaa and her associates. Special Courts were
' Mr. Anbazhagan is the General Secretary of the DMK, a pv\:~J party
2 c2004) 3 sec 767
H
374
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A constituted by the new government for the trial of the cases
filed against Ms. J. Jayalalithaa, Ms. S. Sasikala, Mr.V.N.
Sudhakaran and Ms. J. Elavarasi. The constitution of the
Special Courts was upheld by this court. 3
B
7. In 1997, CC No. 7 of 1997 was filed before the
Principal Special Judge, Chennai for the trial of Ms. J.
Jayalalithaa, Ms. S. Sasikala, Mr. V.N. Sudhakaran and Ms.
J. Elavarasi, who were charge-sheeted for offences under
Section 120-B of the Indian Penal Code, Section 13(2) read
C with Section 13( 1 )( e) of the Prevention of Corruption Act, 1988
for alleged accumulation of wealth of Rs 66.65 crores,
disproportionate to their known sources of income.
8. The trial of CC No. 7 of 1997 progressed before the
o Special Judge and by August 2000, as many as 250
prosecution witnesses were examined. In the general
elections held in May 2001, the AIADMK headed by Ms.
Jayalalithaa secured a majority of votes in the elections and
therefore a majority of seats in the Legislative Assembly. She
E was chosen as the leader of the House by the AIADMK and
appointed as the Chief Minister of Tamil Nadu. Her
appointment as Chief Minister was challenged soon thereafter
and this court declared that her appointment was not legal or
valid. 4 Consequently, on 21st September, 2001 she ceased
F to hold the office of Chief Minister of Tamil Nadu.
9. Sometime in January-February, 2002 the Election
Commission of India announced a bye-election to the
Andipatti Constituency. In the bye-election held on 21s1
G February, 2002 Ms. Jayalalithaa was declared elected and
she was sworn in as the Chief Minister of Tamil Nadu on 2nd
3 J. Jayalalitha v. Union of India, (1999) 5 SCC 138
H ' B.R. Kapur v. State of Tamil Nadu, Al R 2001 SC 3435
K.ANBAZHAGAN v. STATEOF KARNATAKA
375
[MADAN B. LOKUR, J.]
March, 2002. With the change in government, it appears that A
three Public Prosecutors connected with CC No. ·, of 1997
resigned; a Senior Advocate appearing for the State also
resigned as also the Investigating Officer. It appears that due
to these resignations, and perhaps for other reasons, the trial
did not proceed. Eventually, on 7th November, 2002 the trial
B
in CC No. 7 of 1997 resumed.
10. On the resumption of the trial, as many as 76 PWs
were recalled for cross-examination on the ground that
counsel appearing for the accused or some of them had C
earlier been busy in some other case filed against them. It
seems that the Public Prosecutor did not object to the
witnesses being recalled or gave his consent for their recall.
Out of a total 76 PWs, as many as 64 PWs resiled from their
previous -statement-in-chief. It also appears that the Public D
Prosecutor made no attempt to declare them hostile and/or
to cross-examine them by resorting to Section 154 of the
Indian Evidence Act. It also appears that no attempt was made
to see that the court takes action against the witnesses for
perjury. Furthermore, it seems that the presence of Ms.
E
Jayalalithaa was dispensed with during her examination under
Section 313 of the Code of Criminal Procedure Code, 1 ~73
(for short 'the Code') and instead a questionnaire was sent
to her and her reply to the questionnaire was sent to the court
F
in absentia. Apparently, the Public Prosecutor did not object
to Ms. Jayalalithaa's application for dispensing with her
presence at the time of examination under Section 313 of the
Code.
11. In these circumstances, the appellant, Mr. G
Anbazhagan moved transfer petitions in this court under
Section 406 of the Code seeking transfer of CC No.7of1997
and CC No. 2 of 2001 pending in the Court of the Xl1h
Additional Sessions Judge (Special Court No.1 ), Chennai to H
376
SUPREME COURT REPORTS
[2015) 7 S.C.R.
A a court of equivalent competent jurisdiction in any other State. 5
12. The transfer petitions were allowed by this court by its
judgment and order dated 18th November, 2003 and the
decision of this court is reported as K. Anbazhagan v.
B Superintendent of Police.6
13. While it is not necessary to go into great detail into the
reasons why this court transferred the cases, it is nevertheless
necessary to mention that this court observed that Mr.
c Anbazhagan had made out a case that confidence in the
fairness of the trial was being seriously undermined by the
manner in which the prosecution was being conducted. It was
observed that the Public Prosecutor was hand in glove with
the accused thereby creating a reasonable apprehension of
D
5406. Power of Supreme Court to transfer cases and appeals.- (1)
Whenever it is made to appear to the Supreme Court that an order under this
section is expedient for the ends of justice, it may direct that any particular
case or appeal be transferred from one High Court to another High Court or
E from a Criminal Court subordinate to one High Court to another Criminal
Court of equal or superior jurisdiction subordinate to another High Court.
(2) The Supreme Court may act under this section only on the application of
the Attorney-General of India or of a party interested, and every such application
F
shall be made by motion, which shall, except when the applicant is the AttorneyGeneral of India or the Advocate-General of the State, be supported by affidavit
or affirmation.
(3) Where any application for the exercise of the powers conferred by this
section is dismissed, the Supreme Court may, if it is of opinion that the
G
application was frivolous or vexatious, order the applicant to pay by way of
compensation to any person who has opposed the application such sum not
exceeding one thousand rupees as it may consider appropriate in the
circumstances of the case.
H • (2004) 3 sec 767
K. ANBAZHAGAN v. STATE OF KARNATAKA
377
[MADAN B. LOKUR, J.]
likelihood of failure of justice and there was a strong i11drcation A
that the process of justice was beil1f}subverted. Accordingly,
this court transferred the prosecution being CC No.7of1997
and CC No. 2 of 2001 pending in the court of the Xl1h Additional
Sessions Judge (Special Court No.1) Chennai from Tamil Nadu
to Karnataka with the following directions given in paragraph B
34 of the Report:
(a) The State of Karnataka in consultation with the Chief
Justice of the High Court of Karnataka shall constitute a
Special Court under the Prevention of Corruption Act, C
1988 to whom CC No. 7of1997 and CC No. 2 of 2001
pending on the file of the XlthAdditional Sessions Judge
(Special Court No.1), Chennai in the State of Tamil Nadu
shall stand transferred. The Special Court to have its
sitting in Bangalore.
D
(b) As the matter is pending ,sJnce 1997 the State of
Karnataka shall appoint a Special Judge within a month
from the date of receipt of this order and the trial befor~
the Special Judge shall commence as soon as possible E
and will then proceed from day to day till completion.
(c) The State of Karnataka in consultation with the Chief
Justice of the High Court of Karnataka shall appoint a
senior lawyer having experience in criminal trials as Public F
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 G
entitled to get the same reimbursed from the State of
Tamil Nadu.