R.Kalpana v. The Additional Chief Secretary, The Office of Home Department (Court-6

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 02.02.2024CORAM :THE HONOURABLE MR. JUSTICE N. ANAND VENKATESHW.P.No.2329 of 2024R.Kalpana... PetitionerVs.

The Additional Chief Secretary, The Office of Home Department (Court-6A) The Secretariat, Fort St. George, Chennai – 600 009.

The District Collector, Tiruppur District.

The Deputy Superintendent of Police, Udumalpet Taluk, Tiruppur District.

The Inspector of Police Dhali Police Station, Tiruppur District. Cime No.107 of 2022 ... RespondentsPrayer : Writ Petition is filed under Article 226 of the Constitution of India, pleased to issue a Writ of Mandamus, directing the 2nd respondent to appoint Mr.A.Pandian, Advocate (Ms.1585/2008) for conducting prosecution in Spl.SC.No. 28 of 2022 before the Learned Principal District Judge, Tiruppur in lieu of the Rule 4(5) of Schedule Castes and Schedule Tribes (POA) Rules 1995 as per the order of the 2nd respondent vide Na.Ka.No.16715/2023/E1 dated 11.08.2023.For Petitioner: Mr.M.GuruprasadPage 1 of 6 https://www.mhc.tn.gov.in/judis For Respondents: Mr.A.Damodaran Additional Public Prosecutor for R1 to R4

O R D E RThis writ petition has been filed for a direction to the 2nd respondent to appoint Mr.A.Pandian, Advocate (Ms.1585/2008) for conducting the prosecution in Spl.SC.No.28 of 2022 pending before the learned Principal District Judge, Tiruppur. 2. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing on behalf of the respondents. 3. The petitioner is the defacto complainant based on whose complaint, an FIR came to be registered in Crime No.107 of 2022 for various offences under IPC and also under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. The investigation was conducted by the 4th respondent and a final report came to be filed and the same was taken on file by the Court below in Spl.S.C.No.28 of 2022.4.The petitioner made a representation before the 2nd respondent requesting for appointment of Mr.A.Pandian, Advocate as the Special Public Prosecutor to conduct the case. As per Rule 4(5) of the Scheduled Castes and the Scheduled Tribes ( Prevention of Atrocities) Rules, 1995. On receipt of the representation, the 2nd Page 2 of 6 https://www.mhc.tn.gov.in/judis respondent through communication dated 11.08.2023 made to the 1st respondent recommended for the appointment of Mr.A.Pandian, Advocate as Special Public Prosecutor. Since there was absolutely no progress, the present writ petition has been filed before this Court seeking for appropriate directions.

The learned counsel for the petitioner submitted that the 2nd respondent has already expressed his mind and was satisfied that Mr.A.Pandian, Advocate can be appointed as the Special Public Prosecutor to conduct the case in Spl.S.C.No.28 of 2022. While coming to such a decision under Rule 4(5) of the Scheduled Castes and the Scheduled Tribes ( Prevention of Atrocities), 1995, the 2nd respondent himself could have directed for the appointment and there was no requirement to send a communication to the Government and in turn request the Government to appoint the Special Public Prosecutor. The learned counsel for the petitioner to substantiate his submissions, relied upon the earlier order passed by this Court in Crl.O.P.No.22043 of 2013, dated 25.09.2013.

The relevant portions in the order are extracted hereunder:25. The language employed in Rule 4(5) is plain, simple and admit of any difficulty or ambiguity in understanding it. Unlike the General Penal Law of India or any other enactment providing prosecution, the SC/ST (PA) Act is a special Act intended to put an end to untouchability, degradation of human being merely on account Page 3 of 6 https://www.mhc.tn.gov.in/judis of their birth. That is how, as per Section 18 of the Act, even grant of pre-arrest bail has been ruled out for those who commits the offences prescribed under the Act. Added to that Section 20 introduced a non-obstante clause and Section 21 imposed a duty on the Central Government to frame rules for effective implementation of the Act.26. In such circumstances, the golden rule of literal interpretation has to be adopted. There shall not be any addition or substraction to the language of the law employed in such plain rule.27. In view of the foregoings, whether the prosecution is being conducted by a Senior Public Prosecutor or whether there was any allegation as against the Prosecutor, when the victim of the atrocity wishes that an eminent Senior Advocate shall be engaged to conduct the prosecution case then the District Magistrate has to engage such an Advocate to conduct the prosecution in the Special Court. The District Collector cannot avoid such a request of the victim of the atrocity.

The learned counsel also relied upon the judgment of this Court in K.Muruganandam Versus The District Magistrate and District Collector, Namakkal Dist & Another reported in 2011 (3) MWN (Crl) 146 in this regard.