A Delhi court on Monday allowed the plea of Chief Secretary Anshu Prakash seeking direction to conduct the prosecution through the counsels nominated by the Delhi Police and not through lawyers empanelled by the AAP government.
The court allowed the prosecution to be conducted by an officer of Delhi Police not below the rank of Additional Commissioner of Police who has not been connected with the investigation of this case in any manner.
"Further, Siddharth Aggarwal and V Madhukar Advocates are permitted to conduct the prosecution on behalf of the officer of Delhi Police so appointed in this regard," it said.
"Let the Commissioner of Police, Delhi, assign the prosecution of this case to some officer not below the rank of Additional Commissioner of Police," it added.
The court further said that the investigating agency should supply the copies of charge-sheet and documents to the officer appointed so that he can conduct the prosecution from the next date of hearing.
Additional Chief Metropolitan Magistrate Samar Vishal agreed with the submission that the accused named in the assault case include the Chief Minister and Deputy Chief Minister of the Delhi government and prosecutors may be influenced, and hence unable to conduct the prosecution of the present case in a "fair, impartial and independent manner".
It said that an independent and impartial prosecutor is a boon not only for the State but also for the accused and it his duty has to keep the interest not only of the State secured but also that of the accused.
The court said that the request of the complainant (Prakash) for permitting the prosecution to be conducted by the Police can be allowed under section 302 CrPC and a senior officer may be appointed for this purpose, who may conduct the prosecution either himself or through his pleaders.
Under section 302 CrPC, any magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, is entitled to do so without such permission.
The court said that in the present case, there is no doubt that the regular cadre prosecutor, who work under the state will have to prosecute the highest functionary of the state that is the Chief Minister of State.
"There is further no doubt that the Complainant has not been able to show any actual bias on the part of the Prosecutor of this Court. However, the genuineness of Complainant's apprehension of bias can also not be doubted for the aforesaid reasons," it said.
It added that both the sides claim the regular Cadre of Prosecutors are administratively subordinate to other and in that event, in order to dispel any apprehension from the mind of both the sides, an independent Prosecutor is all the more necessary.
Prakash had told the court that the Delhi Police had nominated three well reputed and experienced counsels for appointment as Special Public Prosecutors and their consents had also been obtained.
Despite recommendation by the officers of the Home Department, the request of the Delhi Police was rejected by the Home Minister, GNCTD on grounds that the case did not disclose any special features, he said.
The Home Minister, GNCTD also gave clear directions that the case would only be prosecuted by government prosecutors and such action, who is a Cabinet colleague of the Chief Minister and Deputy Chief Minister, gives rise to apprehensions that a deliberate attempt was being made by the accused to retain control over the prosecution of the present case, he alleged.
The plea was opposed by the Delhi police claiming that the complainant (Prakash) has not shown any "actual bias" but only an unfounded apprehension of bias and the other cases of similar accused persons have been conducted regular prosecutors and no biasness has been reported.
It was submitted that the prosecutors come under the Lieutenant Governor of Delhi and the complainant as one of the highest functionary of state is also in a position to influence the prosecution.
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