Advocate murder case: Bombay High Court upholds appointment of complainant's former lawyer as Special Public Prosecutor

The Bombay High Court recently upheld the appointment of a Special Public Prosecutor (SPP) in a murder case though the SPP had earlier served as a lawyer for the complainant/ informer [Shivaji Rajaram Take v. State of Maharashtra and Anr.]. .Justices Vibha Kankanwadi and Abhay S Waghwase opined that the SPP's earlier engagement as a lawyer for the complainant/ informer did not imply a disadvantage for the accused."No general statement can be made that merely because respondent No.2 [SPP] had represented the informant at a particular level / stage it will cause prejudice to the accused persons," the Court said. .Upholding the earlier decision of the Additional Sessions at Newasa to dismiss the plea, the High Court added,"The accused cannot decide who should conduct the prosecution case. The State has authority and power to appoint Special Public Prosecutors.".The Court was hearing a writ petition by a father-son duo (petitioners) who were among those accused of murdering an advocate, Sambhaji Rajaram and his friend Santosh Ghune. The case was registered in 2019 against four persons who were charged with various offences, including murder and attempt to murder..The petitioners had challenged a notification dated September 30, 2021 issued by the State, appointing advocate Ujwala Pawar as the Special Public Prosecutor in the trial. Before the High Court, the petitioners also contested the trial court's dismissal of their challenge to her appointment..The High Court was informed that Pawar had earlier represented an informant in the case, Ravindra Gosavi. Applications moved by Gosavi, through advocate Pawar, to assist the Public Prosecutor in the trial and bail proceedings before the Sessions Judge had been allowed earlier, on July 26, 2021..The petitioners told the High Court that the subsequent notification of Pawar as SPP was obtained by hook or crook. Contesting this appointment, the petitioners argued that a prosecutor in a criminal case should not be the mouthpiece of the investigating agency and that the prosecutor has a duty to ensure that the accused are treated fairly. .Appearing for the petitioners, advocate Pooja V Langhe further submitted that the facts of the case did not warrant Pawar's appointment and that the Public Prosecutor at the Sessions Court in Newasa was qualified to handle the case. .Therefore, it was contended that the petitioners' apprehension of an unfair trial was reasonable and that Pawar's appointment of SPP ought to be quashed. .On the other hand, Assistant Public Prosecutor MM Nerlikar, for the State, told the High Court that the SPP's appointment was made after following all relevant regulations and that it was approved by the Remembrancer of Legal Affairs (RLA)..The Court, in turn, noted that there were several precedents holding that the appointment of a Special Public Prosecutor cannot be quashed on the ground that he/ she had appeared for the complainant at an earlier stage of the case. Hence, the bench shifted its focus to whether proper procedure was followed in the SPP's appointment. .On this front, the Court noted that Pawar's consent to be appointed as Special Public Prosecutor was signed almost a month before the application to appoint her as SPP was moved by the informant and the son of the deceased advocate. In view of this, the Court urged that the State government to make rules regarding whether consent to be appointed as SPP should be submitted along with such an application, or whether the State should obtain such consent after the application is moved. .All the same, it found that Pawar's appointment as SPP did not suffer from mala fides and, therefore, ruled that the notification and the order of the trial court were not illegal. Hence, the writ petition was dismissed. .[Read Judgment]