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TMI Blog2016 (2) TMI 1313X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner in a nutshell is as follows: (i) It is submitted that the petitioner belongs to Hindu Scheduled Caste Community and that his elder son, namely, Nagamuthu committed suicide on 07.12.2012 at the instigation of one O.Raja, Chairman of Periyakulam Municipality, Theni District, who is the younger brother of former Chief Minister and the present Finance Minister of Tamil Nadu Mr.O.Paneerselvam. It was also submitted that the deceased son of the petitioner had been performing pooja for several years, which was impeded by the accused persons on the ground that he belongs to Scheduled Caste Community. Therefore, the petitioner's son preferred a complaint before the 4th respondent on 05.05.2012 and he was given a receipt in proof of the said complaint. Infuriated by the same, on the next day, the accused persons threatened the petitioner and his deceased son in dire consequences, which forced them to lodge another complaint for the threat meted out by them. At that time, the 3rd respondent, instead of ordering registration of a case, threatened the son of the petitioner for withdrawal of the case, otherwise, a false case would be foisted against him. (ii) Though the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a representation to the 1st respondent along with the consent letter of the said Advocate for appointing him as a Special Public Prosecutor in S.C.No.21 of 2015. But, the 1st respondent, vide impugned order dated 19.12.2015 (signed on 22.12.2015) declined the request of the petitioner stating that he has no jurisdiction to pass such an order. The petitioner assailed the impugned order on the ground that the order has been passed without application of mind and without referring to the SC/ST (PoA) Rules, 1995. The said order is under challenge in this writ petition. 3. According to the respondents, in terms of Section 15 of the SC/ST (PoA) Act, 1989, an existing Public Prosecutor can be appointed as a Special Public Prosecutor. However, an Advocate with seven years Bar experience can be appointed as a Special Public Prosecutor from a panel of Advocates drawn as per Rule 4(1) and these appointments have to be made by the State Government by a notification in the Official Gazette. The petitioner has no legal rights to choose an Advocate of his choice. It was further contended that even though Rule 4(5) stipulates a condition that a Senior Advocate can be appointed for the said purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. (2) In particular, and without prejudice to the generality of the foregoing provisions, such measures may include,- (i) the provision for adequate facilities, including legal aid to the persons subjected to atrocities to enable them to avail themselves of justice: (ii) the provision for travelling and maintenance expenses to witnesses, including the victims of atrocities, during investigation and trial of offences under this Act; (iii) the provision for the economic and social rehabilitation of the victims of the atrocities; (iv) the appointment of officers for initiating or exercising supervision over prosecutions for the contravention of the provisions of this Act; (v) the setting up of committees at such appropriate levels as the State Government may think fit to assist that Government in formulation or implementation of such measures; (vi) provision for a periodic survey of the working of the provisions of this Act with a view to suggesting measures for the better implementation of the provision of this Act; (vii) the identification of the areas where the members of the Scheduled Castes and the Scheduled Tribes are likely to be subjected to atrocities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case." 302. Permission to conduct prosecution - (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person, other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission: Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted. (2) Any person conducting the prosecution may do so personally or by a pleader. However, the SC/ST (PoA) Act, 1989 is a special statute, which overrides any other law for the time being in force and it empowers the victim of atrocity in the matter of trial of offences covered by the Act to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not think, the phraseology has any bearing on the extent of one's brief. Whether he is appointed, specified or engaged he would nonetheless be conducting the case in special Court. We are conscious of the fact that in the scheme of things provided in the Code, the trial in the Court of Session is conducted only by a Public Prosecutor or Special Public Prosecutor Section 15 of the Act also provides for conducting cases in Special Court by a Special Public Prosecutor. No mention, on the other hand is made of Special Public Prosecutor in sub rule(5). The reason however, is not far to seek. Section 15 contemplates 'specifying' a Public Prosecutor whether appointed under Section 24 of the Code or empanelled under sub-rule (1) of Rule 4 or appointing an advocate as Special Public Prosecutor for the purpose of conducting cases in the Special Court. These appointments apparently are made from panels of prosecutors and Advocates. It may so happen that the victim of atrocity in a particular case may not have faith in the prosecutors/advocate specified or appointed under Section 15. He may like to have the case conducted by an Advocate of his choice. It is in order to inspire con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.C.No.1 of 2013 on the file of the Special Judge under Scheduled Castes and Scheduled Tribes (PoA) Act (Principal Sessions Judge), Tiruppur. 13. In fine, this Court is of the view that this Writ Petition will have to be allowed on the strength of what is discussed above. Accordingly, this Writ Petition is allowed and the impugned order in O.Mu. 36690/2015/C2 dated 19.12.2015 (signed on 22.12.2015) passed by the 1st respondent is set aside. The 1st respondent is directed to appoint Mr.B.Mohan, Advocate, Bhavani, Erode District as Special Public Prosecutor in S.C.No.112 of 2015 on the file of the District Principal Sessions Judge, Dindigul in Crime No.571 of 2012, dated 08.12.2012, registered under the Special Enactment. The order to that effect shall be passed within a period of 15 days from the date of receipt of a copy of this order. 14. This Court directs the District Principal Sessions Judge, Dindigul to take up the matter in S.C.No.112 of 2015 pending before it and conduct the case on a day-to-day basis and shall not adjourn the matter beyond two working days at any point of time. The accused shall appear before the Trial Court on all hearings to enable the Trial Court to br ..... X X X X Extracts X X X X X X X X Extracts X X X X
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