The Hindu : National : Settle issue by July 5: Judge

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Tuesday, Jun 22, 2004

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National

Settle issue by July 5: Judge

By Our Special Correspondent

MUMBAI, JUNE 21. The Additional Sessions Judge, Abhay Thipsay, today held that since Gujarat was the prosecuting agency in the Best Bakery case, it alone had the responsibility to appoint a public prosecutor.

The Best Bakery re-trial, which was transferred to Mumbai by the Supreme Court in its landmark order on April 12, has been stalemated over who should appoint the public prosecutor, with first Gujarat, and then Maharashtra, appointing a team of public prosecutors. Mr. Thipsay directed both States to settle the matter by July 5, failing which a clarification would have to be sought from the Supreme Court.

Atul Mehta told the Court he had been appointed by the Gujarat Government as special public prosecutor, and that T. S. Nanavati would assist him. Manjula Rao, lawyer, said last week that Maharashtra had appointed Senior Counsel, P. R. Vakil, to lead a team consisting of herself and two other lawyers, S. M. Vora and Zahiruddin Sheikh from Gujarat, to handle the case. Mr. Thipsay, after hearing both sides, reiterated that there could be only one prosecutor.

These names were submitted to the Gujarat Government but it did not appoint any of them. However, Ms. Rao said the Gujarat Law Secretary had asked her if she would represent Gujarat but in the meantime, she was appointed the public prosecutor by Maharashtra.

Ms. Rao submitted that since the trial had been transferred to Mumbai and the whole purpose of the transfer was to secure a fair trial, Maharashtra should appoint the public prosecutor. However, Mr. Mehta said that even if the venue had changed, Gujarat continued to be the prosecuting agency and that it would conduct the trial. Mihir Desai, the advocate for the petitioners, Citizens for Justice and Peace, which filed a special leave petition in the Supreme Court, said "we can seek a clarification from the Supreme court." Mr. Thipsay said the argument that since the trial was shifted to Maharashtra, that State was entitled to appoint a prosecutor was prima facie not correct and not sound. Gujarat was a party to the case and the prosecuting agency had to appoint the public prosecutor. In various States, Central agencies which conduct trials have prosecutors appointed by the Central Government— the territory where the trial is held does not give the jurisdiction to appoint a public prosecutor. The public prosecutor is an agent of the prosecuting state, according to the law.

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