Karnataka HC Quashes Re-appointment of Special Public Prosecutor in Seminary Rector Murder Case
The Karnataka High Court set aside a 2023 government notification re-appointing Sri Sadashiva Murthy as Special Public Prosecutor in the Fr Thomas K.J. murder case, citing non-application of mind and an impermissible direct-payment arrangement with the complainant Seminary.
The High Court of Karnataka at Bengaluru has quashed a State Government notification dated 15 September 2023 that re-appointed Sri Sadashiva Murthy as Special Public Prosecutor in Sessions Case No. 1439 of 2014, arising from the murder of Fr Thomas K.J., former Rector of St Peter's Pontifical Seminary, Bengaluru. Justice Suraj Govindaraj, sitting singly, allowed the writ petition filed by three accused persons — Fr Elias Daniel, Fr William Patrick and Carmel Peter — in part, holding that the re-appointment was made without any recorded special circumstances, that the records showed nothing beyond the Seminary's request and its acceptance, and that a direction permitting the complainant institution to pay the prosecutor directly created an advocate-client relationship that compromised the appearance of a fair trial. The court refused, however, to direct that accused persons be notified or heard before any future appointment of a Special Public Prosecutor.
The Dispute Before the High Court
On 1 April 2013, a written complaint was lodged at Yeshwanthpur Police Station alleging the murder of Fr Thomas K.J. at the Seminary's premises the previous evening. Crime No. 157 of 2013 was registered under Sections 302 and 201 of the Indian Penal Code against unknown persons. Investigation led to the petitioners and two others being arrayed as accused. Accused Nos. 1 and 2 were arrested on 21 March 2014; Accused No. 3 on 20 March 2014. A charge sheet naming 96 witnesses was filed on 17 June 2014, and the Sessions Court took cognisance, registering the matter as S.C. No. 1439 of 2014.
Following the charge sheet, the Secretary of the Seminary requested that Sri Sadashiva Murthy, a former Director of Prosecution who had retired in 2007, be appointed as Special Public Prosecutor. The State accepted that request and appointed him by notification dated 7 May 2014. The petitioners allege he acted in a partisan manner, sought implication of additional accused through a supplementary charge sheet filed on 26 October 2015, and delayed the trial. This Court quashed proceedings against certain additional accused in a batch of criminal petitions; the State's Special Leave Petition against that quashing was dismissed by the Supreme Court on 16 November 2022, with liberty reserved to the Trial Court to summon those persons under Section 319 of the Code if trial evidence so warranted.
Sri Sadashiva Murthy was removed as Special Public Prosecutor and replaced by Sri Chinnappa Harsoor by notification dated 8 September 2020. Sri Chinnappa Harsoor was in turn removed by notification dated 19 July 2022 and the matter was entrusted to the regular Public Prosecutor. The Seminary then made fresh representations dated 16 December 2022 and 5 January 2023 seeking re-appointment of Sri Sadashiva Murthy. The Government rejected that request by order dated 17 March 2023. Despite this, Notification No. OE 126 PPE 2020 dated 15 September 2023 was issued, re-appointing Sri Sadashiva Murthy. He filed his memo of appearance before the Trial Court on 2 November 2023. It is this notification that the petitioners challenged before the High Court.
The Legal Questions Framed
Justice Govindaraj identified five questions for determination: whether the petitioners had made out a case for interference with the notification; whether the re-appointment was vitiated by non-application of mind, absence of special circumstances, or arbitrariness; whether the Seminary's agreement to bear the prosecutor's remuneration rendered the appointment illegal or gave rise to a reasonable apprehension of bias; whether the petitioners had established a reasonable apprehension of denial of a fair trial; and whether accused persons are entitled to be notified or heard before any such appointment is made under Section 24(8) of the Code of Criminal Procedure.
Senior Counsel Sri M.S. Shyam Sundar appeared for the petitioners. Sri C.S. Pradeep appeared for Respondent No. 6, the Seminary. Sri Shamanth Naik, High Court Government Pleader, appeared for Respondents 1 to 4. Sri Melanic Sabastian appeared for Respondent No. 5.
How the Court Reasoned
On the scope of judicial review, the court accepted the limit set out in State of Maharashtra v. Prakash Prahlad Patil [(2009) 12 SCC 159] that courts are more concerned with the decision-making process than with the merits of the decision. It held, however, that this restraint does not protect an appointment made without application of mind. The court observed that the competence of Sri Sadashiva Murthy was not in question; what was under scrutiny was the manner and basis of the re-appointment.
Applying the test from Sri K.V. Shiva Reddy v. State of Karnataka [ILR 2005 Kar 4780], the court found that once an appointment under Section 24(8) is challenged, the State must produce records showing the special circumstances that justified it. The records placed before the court showed only three things: the Seminary made a request, the request was accepted, and the notification was issued. Neither the note-sheet nor the order disclosed any reason why a Special Public Prosecutor was needed in place of the regular Public Prosecutor. The duty to justify the appointment from the records was not met.
The court rejected the State's attempt to supply reasons through its statement of objections and oral arguments — pointing to the gravity of the offence, the prosecutor's credentials, workload of the regular Public Prosecutor, and his later availability after completing Lokayukta assignments. Relying on Commissioner of Police, Bombay v. Gordhandas Bhanji [AIR 1952 SC 16], the court held that public orders made under statutory authority must be read on the face of the order itself and cannot be saved by subsequent explanations. On the face of the notification, no reason existed.
The court also drew a clear distinction: the State, acting on its own assessment, may appoint a Special Public Prosecutor where special knowledge is required. But appointing a named individual at the specific request of the complainant is a different matter. “It is one thing for the State, on its own, to appoint a Special Public Prosecutor where the case needs special knowledge that the regular Public Prosecutor may not have.” The sequence here — removal, then the Seminary's request, then rejection of that request on 17 March 2023, and then the impugned re-appointment of the very same person without any fresh circumstances — pointed to the absence of independent application of mind. The court held that a re-appointment coming after removal and after express rejection called for reasons of a higher order. None were available.
On the remuneration question, the court applied Mukul Dalal v. Union of India [AIR Online 1988 SC 19] and K.V. Shiva Reddy, both of which require that even where a private complainant bears the cost, fees must be deposited in advance with a prescribed State authority and the prosecutor paid from there. Direct payment by the complainant to the prosecutor was disapproved. The impugned arrangement directed the Seminary to pay Sri Sadashiva Murthy directly. The court distinguished Sri Pampavathy v. State of Karnataka [WP No. 104234-104235 of 2018], on which the Seminary relied: that case had approved payment only because the complainant was directed to deposit fees in advance with the Government, in line with K.V. Shiva Reddy. The arrangement in the present case — direct payment — fell outside Pampavathy. The court held that this direct-payment arrangement created an advocate-client relationship and gave rise to a reasonable apprehension of bias affecting the fairness of the trial.
On the question of reasonable apprehension, the court applied the narrow test: not whether the prosecutor would in fact be unfair, but whether a reasonable apprehension of unfairness existed. It identified two independent circumstances: the direct-payment arrangement already found to create an advocate-client relationship, and the fact that Sri Sadashiva Murthy had earlier appeared for the Archbishop of Bengaluru in Crl. Misc. No. 7830 of 2019, the Archbishop being connected with the complainant Seminary. The court relied on Rajendra Nigam v. State of M.P. & Ors. [1998 CrLJ 998] for the proposition that where a proposed Special Public Prosecutor had earlier appeared for the complainant in connected proceedings, the appointment would create an apprehension in the minds of the accused that a persecutor, not a prosecutor, had been appointed. The court added that it was easily avoidable to make this appointment and expose the prosecutor to allegations that would continue through trial and any appeal.
The court refused the petitioners' prayer for a general direction that accused persons be notified or heard before any Special Public Prosecutor appointment. It held that such a right does not exist: an accused has no right to choose who is to prosecute him, and granting a hearing to the accused before such an appointment would in effect give the accused a veto over the choice of prosecutor. That prayer was rejected.
Order
The writ petition was allowed in part. A writ of certiorari was issued quashing Government Notification No. OE 126 PPE 2020 dated 15 September 2023 appointing Sri Sadashiva Murthy as Special Public Prosecutor in S.C. No. 1439 of 2014. The prayer for a general direction requiring notification or hearing of accused persons before any Special Public Prosecutor appointment under Section 24(8) of the Code of Criminal Procedure was rejected.
The court left it to the State's discretion whether prosecution in S.C. No. 1439 of 2014 should be continued by the regular Public Prosecutor or whether a fresh Special Public Prosecutor should be appointed. Any fresh appointment must be supported by recorded reasons. If the complainant is to bear the remuneration, the fees must be deposited in advance with the prescribed State authority, from which the Special Public Prosecutor is to be paid. Direct payment by the complainant to the prosecutor was not permitted.