TMI Blog2016 (2) TMI 1313X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to be increased either by the victim or by the relative of the victim or the lawyer, who is appearing for the victim/relative of the victim. It is to be noted that SC/ST (PoA) Act, 1989 is a Special Act enacted to view seriously the atrocities committed on the members of the downtrodden communities, the objective of which is enumerated by including Sections 20 and 21 in the Act. Firstly, the entire Rule 4(1) of the SC/ST (PoA) Act, 1989 has got to be read as a whole and not in isolation. Even assuming for the sake of argument that Rule 4(1) has got to be read alone, it deals with the preparation of panels and it is not mandatory on the part of the victim/relative of the victim to choose a lawyer only from the panel. In the impugned order, it has been merely stated that the 1 st respondent has no jurisdiction to appoint a Special Public Prosecutor, but while arguing the case, the respondents are trying to improve their case by relying on various Rules and Acts irrespective of what is stated in the impugned order, which cannot be permissible, as the Hon'ble Supreme Court in the case of MOHINDER SINGH GILL ANR. VERSUS THE CHIIEF ELECTION COMMISSIONER, NEW DELHI ORS. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or withdrawal of the case, otherwise, a false case would be foisted against him. (ii) Though the petitioner sent a representation dated 09.05.2012 to various higher officials with regard to the atrocities committed against him, no action was initiated against the accused persons. On account of continuous threat, the son of the petitioner once again represented to higher authorities for suitable action. Thereafter, the deceased also filed a petition in Crl.O.P.No.11618 of 2012 for registration of a case and it was on 02.09.2012, the 4th respondent registered a case in Crime No.420 of 2012 under Sections 294(b), 323, 506(i) IPC and Section 3(1)(x) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [hereinafter referred to as SC/ST (PoA) Act, 1989 ] against one Palanichamy and Venkatasamy. (iii) To the shock and surprise of the petitioner, the said case was hurriedly closed as Mistake of Fact without following the mandatory provisions of the SC/ST (PoA) Act, 1989 and referred notice was also served to his son through the Judicial Magistrate, Periyakulam in D.No.2522 dated 11.10.2012 in respect of the case in Crime No.420 of 2012. On 07.12.2012, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that even though Rule 4(5) stipulates a condition that a Senior Advocate can be appointed for the said purpose, it cannot be read in isolation without reference to Rule 4(1). Therefore, a joint reading of Rule 4(1) and Rule 4(5) would make it clear that Advocates in the panel alone can be appointed as a Special Public Prosecutor and not otherwise. It was also emphasized that if the defector complainant or the aggrieved party chooses a lawyer of his choice for appointment as a Special Public Prosecutor from other States, then it would be very difficult for the Government to pay fees to them. 4. Learned Additional Government Pleader, referring to Section 21 of the Act, would contend that it is the duty of Government to ensure effective implementation of the Act. However, it is open to the petitioner to select an Advocate of his choice from the existing panel or seek the assistance of the legal aid in this regard. By referring to Section 23 of the Act, he would contend that the rules framed thereunder cannot override the provisions of the Act. Further referring to Section 225 Cr.P.C., he would emphasize that in every trial before a Court of Sessions, the prosecution shall be condu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (vii) the identification of the areas where the members of the Scheduled Castes and the Scheduled Tribes are likely to be subjected to atrocities and adoption of such measures so as to ensure safety for such members. (3) The Central Government shall take such steps as may be necessary to co-ordinate the measures taken by the State Governments under sub-section (1) (4) The Central Government shall, every year, place on the table of each House of Parliament a report on the measures taken by itself and by the State Governments in pursuance of the provisions of this section. Rule 4(1) - The State Government on the recommendation of the District Magistrate shall prepare for each District a panel of such number of eminent senior advocates who has been in practice for not less than seven years, as it may deem necessary for conducting cases in the Special Courts. Similarly, in consultation with the Director Prosecution/incharge of the prosecution, a panel of such number of Public Prosecutors as it may deem necessary for conducting cases in the Special Courts, shall also be specified. Both these panels shall be notified in the Official Gazette of the State and shall remain i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, 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 have his case conducted by an eminent lawyer of his choice so as to ensure fair trial of his case. Even going by Section 302 Cr.P.C., it stipulates that 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: 9. The contention of the respondents that in the event of the aggrieved party choosing a lawyer of his choice from other States, it will have a bearing on the Government financially, cannot be accepted, as Rule 4(6) clearly stipulates that payment of fee vests only with the Government and selection of the lawyer is with the victim. The fee fixed other than the one fixed by the Government cannot be sought to be increased either by the victim or by the relative of the victim or the lawyer, who is appearing for the victim/relative of the victim. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 confidence of the victim of atrocity in the administration of justice that a special provision has been made for engagement of an eminent senior advocate to conduct the case. That is why a different term 'engaged' has been used in Rule 4(5) in contradistinction to 'appoint' or 'specify' in Section 15. 'Engaged' means that he has been engaged for a particular case, unlike appointment/specifying of an advocate/ prosecutor from the panel. It is to be kept in mind that sub rule (5) contains a non-obstante clause overriding the provisions of rube rule(1) which means that the appointment under Rule 4(5) can be made of a person who is not in the panel. The panels, as seen above, comprise of advocates/Public Prosecutors of the choice of the Government. It is also to be kept in mind that the Act is a special statute enacted to provide relief to the victims of atrocity in the matter of trial of offences covered by the Act and Rule 4(5) confers a right upon victim of atrocity to have his case cond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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