SC sets aside Karnataka`s decision of removing SPP in Jayalalithaa`s DA case

In a relief to Tamil Nadu CM J Jayalalithaa, Supreme Court quashed decision of Congress-led Karnataka government to remove special public prosecutor G Bhawani Singh from disproportionate assets case.

Last Updated: Sep 30, 2013, 20:30 PM IST

New Delhi: In a big relief to Tamil Nadu Chief Minister J Jayalalithaa, the Supreme Court ton Monday quashed the decision of Congress-led Karnataka government to remove special public prosecutor G Bhawani Singh from the disproportionate assets case against her, saying it was a "malafide" decision triggered due to "switch over" of government in the state.
"We are of the considered opinion that the order of removal of G Bhavani Singh is a product of malafides and the impugned order is not sustainable in the eyes of law as such the same is hereby quashed," a bench of justices B S Chauhan and S A Bobde said.

The bench, which acknowledged that the state has the power to revoke the appointment of SPP, however, said the "unusual" decision taken after the "switch over" of the government was legally unsustainable..

"In the instant case, as disclosed during the course of arguments, there has been a change of the political party in power in May 2013 and thus, the order of the State Government is alleged to be politically motivated," alluding to Congress replacing the BJP-led government after elections.

"In our opinion, though there is an undoubted power with the Government to withdraw or revoke the appointment within Section 21 of the General Clauses Act, but that exercise of power appears to be vitiated in the present case by malafides in law inasmuch as it is apparent on record that the switch-over of government in between has resulted in a sudden change of opinion that is abrupt for no discernible legally sustainable reason.

"The sharp transitional decision was an act of clear unwarranted indiscretion actuated by an intention that does not appear to be founded on good faith," it said.

Bhawani Singh was appointed during the tenure of BJP-led government in the state.

Referring to statutory provisions, governing the service of the trial judges, the bench, in its 24-page verdict, said, "We refer the matter to the High Court of Karnataka to decide on the administrative side as to whether, in order to conclude the trial expeditiously as guaranteed under Article 21 of the Constitution requires the extension of the services of the learned Special Judge.

"Considering the urgency of the matter, we request the High Court of Karnataka to take a decision in this regard as early as possible."

The bench also said the right to get a fair trial is not
only a basic fundamental right but a human right also of an accused and therefore, any hindrance in it could be violative of Article 14 (right to equality) of the Constitution.

It also said the trial judge, who is retiring today, can be granted extension as per the rules.
"We have examined the scheme of the statutory provisions in this regard. The Karnataka Civil Services (General Recruitment) Rules, 1977 authorise the State Government to appoint a retired government servant on contractual basis after meeting certain formalities, for a specific period as may be necessary....

"Thus, it is evident that the State Government is competent to appoint the learned Special Judge on contractual basis after his retirement for the period required to conclude the present trial, though with the consultation of the High Court as required under Article 235 of the Constitution," the apex court said.

The matter requires to be considered by the State Government with the consultation of the High Court, it said.

Dealing with the factual matrix of the case, the court said that the trial judge recorded the statements of the accused and examined 99 defence witnesses and "was interrupted abruptly on August 26, 2013 as the SPP was asked not to continue with the work."

"The evidence led in the case is very bulky as it runs into 34000 pages. In case a new Judge starts hearing the matter, he is bound to take a long time to understand the factual and legal niceties involved in the case.

"Accordingly, we have no hesitation in holding that the Notification purporting to revoke the appointment of G Bhavani Singh as SPP is liable to be struck down," the bench said.

Referring to an earlier order, by which the trial was transferred from Chennai to Bengaluru, the court said the plea of non-consultation in appointment of the SPP can be taken by the person (the Chief Justice of the High Court) who was to be consulted and not by the authority (state government) which needed to consult the later.

"Whenever consultation is mandated by law, it necessarily involves two authorities; one, on whom a duty is cast to consult and the other who has the corresponding right(s) to be consulted.

"The grievance that there has been no consultation or insufficient consultation is normally raised by the authority who has a right to be consulted, in this case the Chief Justice. It is not legitimate for the party who has a duty to consult and who has failed in that duty, to make a grievance that there has been no consultation," it said.

It said the state government (then led by BJP) appointed Bhavani Singh "without any demur" on receiving recommendation from the Chief Justice and moreover, the appointment remained "un-objected for almost seven months".

"There is nothing on record to indicate the Government of Karnataka had been forced by anyone to make the said appointment. The Government thus voluntarily acquiesced in the process and is now not entitled to raise this grievance. The grievance is thus baseless and does not carry any conviction," it said.

It also said that no issue was ever raised by the state government in respect of the "eligibility, suitability or credibility" of the SPP.

"If the Government found the name of Bhavani Singh, which was sent by the Acting Chief Justice, not acceptable on any ground, it was duty bound to refer the name back to the Acting Chief Justice along with their views and suggestions, which was not done by them. On the contrary, they proceeded to appoint Shri G. Bhavani Singh as SPP without demur, who had already been a Public Prosecutor for several years," it said.

The court said the decision to remove the SPP may "look
legitimate" but if the reasons are not "based on values" then it cannot be allowed to operate.
Referring from a judgement, it said, "Political agenda of an individual or a political party should not be subversive of rule of law."

It said the right to fair trial is the main object of criminal procedure and such airness should not be hampered or threatened in any manner.

The apex court, on September 25, had reserved its verdict on the issue of appointment and sacking of SPP Singh in the case and also on the AIADMK Chief`s plea for extension of the tenure of the trial judge who is scheduled to retire today.

The All India Anna Dravida Munnetra Kazhagam (AIADMK) Chief is accused of amassing Rs 66.65 crore between 1991 and 1996 when she was the Chief Minister of Tamil Nadu.

The case was transferred by the apex court from Chennai to Bangalore in 2003 during her earlier tenure as the Chief Minister for a free and fair trial.

Jayalalithaa and three other accused Sasikala, Ilavarasi and V N Sudhakaran have also sought a direction to restrain Karnataka government from appointing a new judge for conducting the trial against them in a Bangalore court.