Bhaskar Bhattacharya, J.@mdashThis mandamus-appeal is at the instance of a writ-petitioner and is directed against two orders, one dated 16th May, 2006 passed by the learned Single Judge by which the writ-application was disposed of by directing the Legal Remembrancer, West Bengal, to replace the existing Special Public Prosecutor engaged in the pending criminal case which was initiated on the basis of complaint lodged by the writ-petitioner and the other one, dated 19th June, 2006, by which His Lordship refused to modify the earlier order dated 16th May, 2006 on an application filed by the appellant. On the basis of an F.I.R. lodged by the appellant, a criminal case was started under Sections 498A/325/506/120B of the Indian Penaj Code which was registered as North Bidhannagar Police Station Case No. 1 12/ 94 dated 25th April, 1994 corresponding to G. R. Case No. 1661/94.
2. The said case is pending for the last 12 years. It appears from the record that in course of the proceedings, the State Government changed several Special Public Prosecutors and lastly, the Legal Remembrancer, the State of West Bengal, appointed one Mr. Subhasis Roy as Special Public Prosecutor vide order dated 10th May, 2005; but subsequently, the said order of appointment of Mr. Subhasis Roy was revoked by an order dated 22nd June, 2005.
3. The aforesaid order, recalling the appointment of Mr. Subhasis Roy as Special Public Prosecutor, gave rise to the cause of action of filing of the writ-application out of which the present mandamus-appeal arises.
4. According to the writ-petitioner, Mr. Subhasis Roy is a very competent lawyer and prior to him, the persons who were acting as the Special Public Prosecutors, were either not competent according to the estimation of the writ-petitioner or were won over by the accused persons
5. According to the writ-petitioner, there was no valid reason for recalling the appointment of Mr. Subhasis Roy and appointing another learned advocate in his place within a period of less than two months. Over and above, according to the appellant the newly-appointed Special Public Prosecutor was not taking an adequate amount of interest in the matter.
6. As indicated earlier, the learned Single Judge by the order dated 16th May, 2006 disposed of the writ-application filed by the appellant by directing the Legal Remembrancer, West Bengal, to replace the newly-appointed Special Public Prosecutor by another one from the panel of the State-lawyers. His Lordship, however, made it clear that it would be open to the writ-petitioner to engage her counsel who might be there during the trial to assist the Special Public Prosecutor to be appointed by the Legal Remembrancer. In other words, His Lordship made it clear that the writ-petitioner should be free to engage Mr. Subhasis Roy, learned advocate or any other learned counsel of her choice to assist the Special Public Prosecutor to be appointed by the Legal Remembrancer, West Bengal.
7. Being dissatisfied, the writ-petitioner preferred an application for modification of the said order and by the latter order dated 19th June, 2006, His Lordship refused to modify the earlier order.
8. Being dissatisfied, the writ-petitioner has come up with the present mandamus-appeal
9. The writ-petitioner appeared before us in person and strenuously contended before us that there was no justification of recalling the appointment of Mr. Subhasis Roy as a Special Public Prosecutor who was appointed few days'' earlier to the passing of the order of the cancellation of his appointment. According to the writ-petitioner, the accused persons, i.e. her "in-laws" are very influential and they had practically won over the previous Public Prosecutors appointed in the matter, as a result, the said case is not properly conducted at the instance of the State.
10. Before this Court, we wanted to know the reason for recalling the appointment of Mr. Subhasis Roy as the Special Public Prosecutor from the learned advocate appearing on behalf of the State. The State Government has affirmed an affidavit stating that Mr. Subhasis Roy was a lawyer in the State-panel but subsequently, his name was deleted from such panel and the Legal Remembrancer, in ignorance of such fact appointed Mr. Subhasis Roy as Special Public Prosecutor and subsequently, when such mistake was brought to the notice of the Legal Remembrancer, another learned advocate has been appointed from the State-panel after recalling the appointment of Mr. Ray.
11. In reply thereto, the writ-petitioner contended before us that for being appointed as Special Public Prosecutor, it is not necessary that the learned advocate should be an empanelled one in the State-panel and she relied upon the provision of Section 25 of the Code of Criminal Procedure. She further contended that even Mr. Subhasis Roy is still appearing as Special Public Prosecutor in other cases.
12. The State Government by filing supplementary-affidavit stated that in only one matter he is still acting as Special Public Prosecutor and such fact was not within the knowledge of the State Government and the State Government directed him to return all the pending briefs after he was removed from the panel.
13. The State Government, however, denied that the other Public Prosecutors engaged in the trial Court were influenced in any way by the accused persons. It is further sated that the newly-appointed Special Public Prosecutor chosen pursuant to the order impugned is a very competent advocate and as such, this Court should not interfere with the order passed by the learned Single Judge.
14. After hearing the writ-petitioner and the learned advocate for the State Government we find that there is no dispute that the name of Mr. Subhasis Roy has been deleted from the State-panel but in spite of such fact, in at least two matters he is still appearing on behalf of the State Government. We, however, find substance in the contention of the writ-petitioner/appellant that for the purpose of appointing a Special Public Prosecutor it is not necessary that such person must be in the State-panel.
15. However, the question before us is whether in a criminal proceeding a de facto complainant can dictate the State Government to engage counsel according to his choice. It is for the State Government to decide who will represent the State Government in the criminal proceedings or in other words, who will act as a Public Prosecutor and in such a matter, the de facto complainant cannot have any say.
16. In order to maintain a writ-application under Article 226 of the Constitution of India, the writ-petitioner must show the existence of his legal or fundamental right in the matter and further, that by the action or inaction of the State, such legal or fundamental right has been infringed.
In the case before us, we do not find any legal right, not to speak of fundamental right, of the appellant to have any voice in the matter of appointment of Special Public Prosecutor according to her choice. Therefore, the writ-application, in that sense, was not at all maintainable.
17. We are also quite conscious of the position of law that a "State" within the meaning of Article 12 of the Constitution of India should act fairly and not arbitrarily or with any mala fide intention. In this case, it appears from the affidavit-in-reply to the supplementary-affidavit-in-opposition, the writ-petitioner herself has stated that she suggested the name of Mr. Subhasis Roy to the Legal Remembrancer and accordingly, he was appointed. If her version is correct, it was improper on the part of the Legal Remembrancer to appoint Special Public Prosecutor according to the choice of the de facto complainant. We are, however, not going into such question, but the fact remains that the State Government has decided to appoint Special Public Prosecutor only from the empanelled-lawyers of the State Government and this Court sitting in a jurisdiction under Article 226 of the Constitution of India cannot interfere with such decision unless such decision is shown to be tainted with any mala fide intention in the facts of any particular case.
18. No material has been placed before us justifying inference of any such malice on the part of the respondent.
19. We further find that pursuant to the direction given by the learned Single Judge, the learned advocate who was appointed in place of Mr. Subhasis Roy has already been changed by the State Government as the writ-petitioner had grievance against the said learned advocate.
20. Since the said learned advocate has also been changed and another learned advocate has been appointed as Special Public Prosecutor, we do not find any reason to interfere with such decision taken by the State Government.
21. We, thus, find no merit in this mandamus-appeal and the same is, accordingly, dismissed. Since the criminal proceedings are pending for the last 12 years, the concerned Magistrate is directed to dispose of the proceedings positively within three months from the date of communication of this order without granting any unnecessary adjournment to either of the parties. In the facts and circumstances, there will be, however, no order as to costs.
Prabuddha Sankar Banerjee, J.
I agree.
