Holding that it was a mala fide exercise of power, the Supreme Court on Monday quashed the Karnataka government order removing G. Bhavani Singh as Special Public Prosecutor (SPP) for conducting trial in disproportionate assets cases against Tamil Nadu Chief Minister Jayalalithaa and three other accused.
A Bench of Justices B.S. Chauhan and S.A. Bobde, while disposing of petitions filed by Ms. Jayalalithaa and three others, asked the Karnataka High Court to consider extending the services of the present special judge (who was to retire on Monday) for continuing the trial.
(Ms. Jayalalithaa, Sasikala, Ilavarasi and V.N. Sudhakaran had challenged the removal of the SPP and sought a direction to extend the services of the present judge.)
Writing the judgment, Justice Chauhan said: “In the instant case, there has been a change of political party in power in May 2013 and thus, the order of the State government is alleged to be politically motivated. 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 mala fides in law inasmuch as it is apparent on record that the switchover of the 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 in good faith. Fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner.”
The Bench said the reason put forth by the Government of Karnataka for removing Mr. Singh as SPP appeared to be rather unusual. It might be true that his name was not in the list of four names submitted by the government to the then Acting Chief Justice of the High Court and the name originated from the Acting Chief Justice, prior to making of appointment of SPP by the Government of Karnataka; But it was equally true that the appointment was made by the government without questioning the ability or suitability of the incumbent, nor the government raised any issue in respect of the manner/issue of consultation. Apart from this, the appointment continued un-objected for almost seven months.
The Bench said, “The grievance [of the Karnataka government] 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. This is exactly what has happened in the present case. If the government found the name of Mr. 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 their its views and suggestions, which was not done by them. There is nothing on record to indicate that 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.”
