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Not Necessary To Appoint Prosecutor Of Victim's Choice Under SC/ST Act: Delhi HC [Read Order]

Apoorva Mandhani
26 Jan 2019 10:13 AM GMT
Not Necessary To Appoint Prosecutor Of Victims Choice Under SC/ST Act: Delhi HC [Read Order]
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The Delhi High Court, on Wednesday, held that it is not necessary for the Magistrate to appoint an advocate of the victim's choice to act as the public prosecutor under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (SC/ST Act).

Justice Vibhu Bakhru observed that if such contention is accepted, it would serve little purpose to maintain a panel of eminent Senior Advocates or a Panel of Public Prosecutors or Special Public Prosecutors under the Act.
It, however, clarified, "Undoubtedly, a victim can suggest appointment of a lawyer, however, it would be necessary for the District Magistrate or Sub- Divisional Magistrate to satisfy themselves that it is necessary or appropriate to engage an eminent senior advocate and further that it is necessary that such an advocate be appointed to prosecute the case."
The court was hearing a petition filed by one Mr. Sunil Grover, challenging the appointment of Advocate Pankaj Kumar as the Special Public Prosecutor (SPP) for SC/ST Act in a case.
The case concerned a water dispute between the victim and the petitioner, who was the victim's landlord. Mr. Kumar was appointed as the SPP in the case after the victim specifically requested for his appointment.
Mr. Grover, however, pointed out that Mr. Kumar had regularly appeared on behalf of the victim in several cases, and therefore, should not be allowed to prosecute the case against the petitioner. He further submitted that the appointment was not in accordance with the provisions of the SC/ST Act.
Defending its stand, the State had asserted that once the victim has indicated their choice of an advocate to act a special prosecutor, the concerned District Magistrate/Sub Divisional Magistrate is not required to apply his mind as to whether it is necessary to appoint a special prosecutor or whether the concerned advocate qualifies the criteria of an "eminent Senior Advocate".
The court, however, opined that while the victim can request for appointment of an eminent Senior Advocate for conducting the case, the decision in this regard would rest with the concerned District Magistrate/Sub-Divisional Magistrate. This power, it added, must be exercised in cases where it is necessary and with due application of mind.
The court observed that the relevant provision, i.e. Rule 4(5) contains a non-obstante provision, which enables the District Magistrate or the Sub-Divisional Magistrate to engage an "eminent Senior Advocate" as Public Prosecutor if either the District Magistrate or Sub-Divisional Magistrate deems it necessary or if it is so desired by the victim of atrocity under SC/ST Act.
It, however, opined that this provision does not stipulate that the victim of atrocity can insist on engagement of a lawyer of his/her choice. It further highlighted the financial implications of any such appointment on the public exchequer, observing,
"In this case, respondent no.3 has been appointed at a fee of ₹25,000/- per appearance, subject to the condition that the total fees payable for a month shall not exceed ₹1,40,000/-. It is difficult to accept that the victim can insist that an advocate of his choice be appointed at the cost of the State Exchequer, without any application of mind on the part of the concerned District / Sub Divisional Magistrate. The language of Sub-rule (5) does not provide that the eminent Senior Advocate to be one of the victim's choice."
The petition was then allowed, and Mr. Kumar's appointment was set aside.
Read the Order Here

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