SELVI J. JAYALALITHAA & Ors. v. STATE OF KARNATAKA & Ors.

Judgment

17 S.C.R. 759 SELVI J. JAYALALITHAA & ORS. v. STATE OF KARNATAKA & ORS. (Writ Petitiori_ (Crl.) No.154 of 2013) SEPTEMBER 30, 2013 A B [DR. B.S. CHAUHAN AND S.A. BOBDE, JJ.] Advocates ..'.. Appointment of Special Public Prosecutor (SPP) - Withdrawal/revocation of the appointment - Validity - Proceedings against the petitioners for allegedly having C assets disproportionate to their known income - Warrant case under the Prevention of Corruption Act - Respondent no.4 appointed as SPP - Seven months thereafter, when the trial was nearing completion, appointment of respondent no.4 withdrawn by the State Government - No_tificatidn purporting D to revoke the appointment of respondent no.4.·C3s SPP - Validity - Held: On facts, it is liable to be struck down - Appointment of respondent no.4 was made' by the Government without questioning the ability or suitability of the incumbent nor the government raised any issue in respect of E the manner/issue of consultation - If the Government found the name of respondent no.4, which was sent by the Acting Chief Justice of the High Court, not acceptable on any ground, it was duty bound to refer the name back to the Acting Chief Justice along with views and suggestions, which was not done - On the contrary, they proceeded to appoint respondent no.4 as SPP without demur, who had already been a Public Prosecutor for several years - Nothing on record to indicate that the State Government had been forced by anyone to appoint respondent no. 4 - The Government voluntarily G acquiesced in the process and is now not entitled to raise · grievance - Further, the appointment continued un-objected for almost seven months - Though there is undoubted power with the Government to withdraw or revoke appointment within F 759 H 760 SUPREME COURT REPORTS [2013) 17 S.C.R. A s,21 of the General Clauses Act, but that exercise of power appears to be vitiated in the present case by malafides in law inasmuch as it is apparent on record that the switch-over of .government in between resulted in a sudden change of opinion for no discernable Je.gally sustainable reason ~ The" s sharp transitional decision was an act of clear unwarranted ind1seretion actuated by intention that does not appear to be founded on good faith - Order of removal of respondent no. 4 was a product of malafides - ~eneral Clauses Act, 1897 - Prevention of Corruption Act, 1988. c Criminal Trial - Fair trial - Held: Is th1;3 .rnain object of criminal procedure and such fairness shotl1d not be hampered or threatened in any manner - Fair tri; Jl,entails the interests of the accused, the victim and of the sociefi -Free and fair trial is a sine qua non of Art. 21 of the Constitution - D Any hindrance in fair trial could be violative of Art. 14 of the Constitution - Fair trial is the heart of criminal jurisprudence and, in a way, an important facet of a demo(J(atic polity and is governed by rule of law - Denial of fair trial .is crucifixion of human rights - Constitution of India, 1950 - Arts. 12 and 14 E -Universal Declaration of Human Rights - Art. 12. Criminal Trial - Proceedings against thflpetitioners for allegedly having ·assets -disproportionate to their known income - Warrant case under the Prevention of Corruption F Act - Trial nearing completion - Impending retirement of the · Special Judge concerned - Prayer made before Supreme Court for direction to extend the tenure of the Special Judge till the conclusion of the trial - Held: It is a matter within the jurisdiction of the State in accordance with the relevant law - G SeNices of judicial officers in the State governed by the 2004 Rules - State Government competent to appoint Special Judge on contractual basis after his retirement for the period required to conclude the present trial, though with the consultation of the High Court as required u/Art.235 of the Constitution - Further, such a course must be adopted in the H SELVI J. JAYALALITHAA v. STATE OF KARNATAKA 761 . manner prescribed under the 2004 Rules - Matter referred A to the High Court to decide· on the administrative side as to whether, in order to conclude the trial expeditiously as gµa~anteed unper Arf.21 of the Constitution requires the extension of the· services of the Special Judge - Karnataka Judicial Service (Recruitment) Ru/es, 2004 - r.11(2) - Maxim B "Expressio unius est exclusio alterius"..:. Constitution of India, 1~90,. Arts. ·?1,af)d 235--:. Prevention of Corruption Act, 1988 . . ' . . . · t • .._ . ,, • • . , •. - . ' ' I ..! : r ;; ' ... • . . . . , ... Prosecution was launctied against the petitione~ for all~gedly hl!vipg assets disproportionate to their known C income in': the State of tam ii Nadu. The petitioners • app:roached. the Supreme Court for transferring their trial to the neighb.ouring State of Karriataka 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, the Supreme Court issued D directions for appointment of a Special Public Prosecutor (SPP). The Government of Karnataka appointed 'B', a former Advocate General, as SPP to conduct the E . prosecution. 'B', however, expressed his inability to continue as SPP. The Government of Karnataka then issued a Notification appoiriting respondent no.4 as SPP. Subsequently, after about seven months, the State Government issued letter dated 10-09-2013, asking respondent no.4 not to appear in the pending matter before the Special Judge. The petitioners then filed a Writ Petition challenging the said letter written to the respondent no.4 and to direct the Special Judge to conclude the trial. F G While the said 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, H 762 SUPREME COURT REPORTS [2013] 17 S.C.R. A vide communication dated 14.9.2013 and thus, the appointment of respondent no.4 stood withdrawn by the Government of Karnataka vide Notification dated 16.9.2013. Aggrieved, the petitioners filed another Writ Petition, challenging the said orders dated 14.9.2013 and B 16.9.2013. C Tt:ie petitioners submitted before this Court that the order. withdrawing the appointment of respondent no.4 as SPP was a calculated step to protract the trial in view of the impending retirement of the Special Judge; that the trial had .almost been completed and circumstances, the withdrawal of appointment of SPP after seven months of his functioning was motivated by malaf.ides with a view to protract the trial as there had b.een. a change -of the government in the State. Prayer was D accordingly made before this Court to quash the order of: withdrawal/revocation of the appointment of respondent no.4 as SPP and to also further extend the duration of tenure of the Special Judge till the conclusion of the trial. E Disposing of the writ petitions, the Court HELD:1. The order of removal of respondent no.4 is. a product of malafides and the impugned order is not sustainable in the eyes of law as such the same is hereby F quashed. [Para 32J [785-C-D]

#2. The reason put forth by the Government of Karnataka for removing respondent no.4 as SPP appears to be rather unusual. It may be true that the name of G respondent no.4 was not in the list of four names submitted by the Government .of Karnataka to the then _ .Acti!!g ChiElf Justi.ce of t.he High Court and the name ·originated from the Acting Chief Justice, prior to making of appointment of SPP by the Government of Karnataka; H but it is equally true that the. appointll).ent was made by SELVI J. JAYALALITHAA v. STATE OF KARNATAKA 763 the Government without" questioning the ability or ·A suitability of the incumbent nor the government raised any issue in respect of the manner/issue of consultation. On the contrary, upon receiving the recommendation, the Government proceeded to appoint respondent no.4 by issuing a Notification without any demur. Apart from this B the appointment continued un-objected for almost seven months. [Para 15) [775-C-E]

#3. Whenever consu.ltation is mandated .by law, it necessarily involves two authorities; one, on whom a duty is cast to consult and the other who has the C 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, iA this case the Chief Justice. It is not legitimate for the party who has a duty to consult D 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 respondent no.4, which was sent by the Acting Chief Justice, notacceptable on any ground, it E 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 respondent no.4 as SPP without demur, who had already been a. Public Prosecutor for F several years. There is nothing on record to indicate that the Government of Karnataka had been forced by ~yone to make the said appointment. .Ttie Government thus voluntarily acquiesc.ed in the process and is now not entitled to raise this' grievance. The grievance is thus G .. baseless and does not carry any conviction. [Para 17) [7n~~ .