Victim under the SC/ST Act not entitled to seek appointment of prosecutor of choice, Delhi HC

The Delhi High Court has held that a victim under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (SC/ST Act) is not entitled to seek the appointment of an advocate of his/her choice as the Public Prosecutor/Special Prosecutor for prosecution under the Act..If a contrary view is accepted, the Court observed, it would only serve little purpose to maintain a panel of eminent Senior Advocates or a Panel of Public Prosecutors or Special Public Prosecutors under the Act. It would also militate against the scheme of Rule 4 of the Scheduled Caste and the Scheduled Tribe (Prevention of Atrocities) Rules, 1995 (SC/ST Rules)..The victim can only request for the appointment of an eminent Senior Advocate for the post. The decision in this regard would rest with the concerned Magistrate, the Court ruled..The order was pronounced by a Single Judge Bench of Justice Vibhu Bakhru in a writ petition challenging the appointment of the victim/complainant’s choice of advocate as the special prosecutor in a case against the Petitioner under the SC/ST Act..The victim who was the Petitioner’s tenant, had filed a case against the Petitioner and his family over a water dispute..Respondent No.3 was appointed Special Prosecutor by the concerned Magistrate in the case, in view of an opinion received from the Department of Law, Delhi Government. This was after the victim specifically requested for his appointment..Defending the appointment of an advocate of victim’s choice, the Delhi Govt argued that since SC/ST Act is a special act, an advocate could be appointed at the choice of the victim as the prosecutor. It also relied upon Rule 4(5) of the SC/ST Rules to substantiate the contention..It further argued that the expression “eminent Senior Advocate” as used in Sub-rule (5) of Rule 4 of the SC/ST Rules, should not be construed as a designated Senior Advocate. Instead, it should be read to mean lawyers who have an experience exceeding seven years at the Bar, it was urged..After perusing the relevant provisions of the Act on the appointment of public prosecutors, the Court recorded that the State Government is required to appoint public prosecutors and advocates who have been in practice for not less than seven years as special public prosecutors for the purpose of conducting cases under the Act. The appointment, the Court stated, has to be notified in the Official Gazette..A plain reading of Rule 4(1) clarifies that State Governments are required to prepare a panel of “eminent senior advocates” for the said purpose, it further noted. Nonetheless, Sub-Rule (5) of Rule 4 contains a non-obstante provision, which enables the District Magistrate or the Sub-Divisional Magistrate to engage an “eminent Senior Advocate” as Public Prosecutor if either the District Magistrate or Sub-Divisional Magistrate deems it necessary or if it is so desired by the victim of atrocity under SC/ST Act..Rejecting the contention of the Delhi Government, the Court observed that the Sub-Rule (5) the Rule 4 does not stipulate that the victim of atrocity can insist on engagement of a lawyer of his/her choice..It acknowledged that the victim can request that an eminent Senior Advocate be appointed for conducting the case, however, the decision in this regard would rest with the concerned District Magistrate/Sub-Divisional Magistrate..Stating that appointment of Special Counsel to conduct cases on behalf of the State has monetary implication, the Court observed,.“In this case, respondent no.3 has been appointed at a fee of ₹25,000/- per appearance, subject to the condition that the total fees payable for a month shall not exceed ₹1,40,000/-. It is difficult to accept that the victim can insist that an advocate of his choice be appointed at the cost of the State Exchequer, without any application of mind on the part of the concerned District / Sub Divisional Magistrate. The language of Sub-rule (5) does not provide that the eminent Senior Advocate to be one of the victim’s choice.”.It further held that the Rule provides for engagement of a designated Senior Advocate, and not any advocate..“It is also relevant to note that Sub-rule (5) of Rule 4 of the said Rules contemplates engagement of an “eminent Senior Advocate”. In terms of Section 16 of the Advocates Act, 1961, there are only two classes of advocates, namely, Senior Advocates and Other Advocates. Thus, in terms of Sub-rule (5) of Rule 4 of the SC/ST Rules, only a Senior Advocate can be appointed for conducting a case.“.It thus decreed,.“In view of the above, the present petition is allowed and the appointment of respondent no.3 as a Special Prosecutor in terms of Subrule (5) of Rule 4 of the SC/ST Rules is set aside. It is further clarified that this would not preclude the District Magistrate or the concerned Sub Divisional Magistrate to apply his mind to the criteria as specified in Sub-rule(5) of Rule 4 of the SC/CT Rules and appoint an eminent Senior Advocate, if he considers it necessary to do so. The petition is accordingly disposed of.”.The Petitioner was represented by Advocates Asheesh Lal and Rachna Lal..Delhi Govt. was represented by Additional Standing Counsel Anupam Srivastava..Read the order below.