“ In the high court of DELHI, exercising extra ordinary criminal

jurisdiction , by filing a writ petition, criminal no _ of 2018 ”

ARAVIND KEJRWAL VS STATE
The above petition has been filed for setting aside the impugned order
dated – 22/10/2018 passed by the Shri Samar Vishal , ld ACMM-2.
Gist of the Case :
The facts of the case clearly denote a conspiracy from the side of
Kejriwal and his associates of the Delhi government. The real
apprehension is whether the public prosecutor would degenerate into
playing foul play thereby causing miscarriage of justice by releasing the
accused on fair grounds, the public prosecutor should not function in a
manner , bound or controlled by the government. They should be very
well chosen by the Delhi Police, such public prosecutor appointed by the
investigation authorities can function in a manner , where the private
personnel shall also have a supervisory role. Since the bias charged has
been imputed on false charges , our target of filing this petition is to
dispel all allegation , even with regard to the fairness of the prosecution,
shall not be done so to oust the criminal completely from any suspicion.
The investigation personnel can appoint a personnel to carry out the
prosecution in fair and unbiased basis, such public prosecutor
appointed by the investigating authorities shall not be done in a manner ,
where the public prosecutor so appointed is merely a mouth piece of the
investigation authorities , which would create doubt in the fairness of the
procedure and would not provide any chances or opportunities to the
accused to open up and to solve the case in an amicable , free and fair
manner .
(Convicted of offences of 186/353/332/342/504/506/120-
B/109/114/34/36/149)
Complainant – Shri Anshu Prakash preferred an application under
section 302 CRPC
list of dates events

12/02/2018 The meeting for the TV adv

convened in the drawing
room at the CMR at around
9.30 am , waited for arvind
kejriwal to enter the room ,
arvind kejriwal was adamant

13/02/2018 Final orders were not issued in

relation to the TV
advertisement , to be released

14/02/2018 The DTTDC instead execute a

media campaign under the
planned scheme “ Branding
delhi “ after the approval of the
tourism department –
highlighting the achievements
over the past years

15/02/2018 Draft minutes of DTTDC

meeting , to be put on a file
which reflected the discussion
/proposals

19/02/2018 Was informed to reach theCM

‘s residence at 12.00 midnight
to discuss with chief minister
and deputy chief minister with
regard the issue of difficulty in
releasing of certain
advertisements

19/02/2018-20/02/2018 They orchestrated the meeting

at around 12 am . On arrival at
chief minister s residence – he
met S h Vk jair , advisor to the
chief minister and thereafter
 both of them were taken to the
front room where 11 MLA
were present . The victim was
made to sit between MLAs
Sh amantullah khan and
Prakash Jarwal on a 3 seater
sofa. The cm directed him to
release the ad and to explain
the reasons for the delay . The
MLAs started shouting at him
and started blaming him.They
became more aggressive and
, he was threatened to be
confined in the wall for the
entire night and that he will be
implicated in false cases . He
was hit at with several blows
with the fist on his side .

-“ trying to dispute stating the

meeting was , called on the
intervening night – issues of
the ration shop ”

20/02/2018 “Amanatullah khan filed an

application invoking section
302, stating the investigation
shall be conducted by the
investigation authorities
through counsels nominated
by the police and not through
govt pros under GNCTD.The
allegation were filed against
13 persons .

23/02/2018 An inspection was made or a

visit was made to the chief
ministers residence at 06,Flag
Staff road ,Delhi. 20 CC tv
footages were inspected, it
 was found that the video
footage captured on the
recording devices was
authentic and had not been
tampered, lagged behind the
real time by about 40 minutes

09-12/03/2018 Sh Prakash Jarwal and Sh.

Amanatullah Khan was
released on bail .

20/08/2018 A letter was filed by the

deputy commissioner of police
to the deputy secretary home,
with a request to appoint
three named advocates as
prosecutors

13/09/2018 Investigation commenced

under the 13 accused
including the petitioners, the
copy of the report of 173 of
crpc charge sheet is annexed
as P3. The said application
moved on the said date was
not supported by any affidavit
of the complainant / applicant.

The request was turned down

by a communication
15/09/2018 Three well reputed and
experienced counsels had
been nominated by them ie,
the Delhi police for
appointment as special pubic
prosecutors and the consent
of these counsel to act in such
capacity had also been
obtained . The case did not in
fact disclose any special
features. The apprehension
shows that the previous
prosecutor did not even attend
the prosecution.

22/10/2018 The trial court allowed an

application moved by the
complainant under section 302
of the crpc and allowed the
prosecution shall be
conducted by not less the rank
of the additional commissioner
of the police.
Synopsis :
The office of the chief secretary , Delhi , on 19 /2/2018 I was informed
on telephone around at 8.4 pm by advisor to chief minister V.K Jain , I
have to reach CM s residence at 12 midnight to discuss with chief
minister and deputy chief minister the issue of difficulty in release of
certain TV advertisement relating to completion of 3 years of current in
GOVT in Delhi. I suggested that meeting held on 20/2 /18 in the
morning. It was reiterated by advisor to CM at 9 pm and again at around
10 PM that the meeting has been scheduled by CM at 12 midnight , prior
to this message ,from advisor to CM , the deputy CM had also called me
at around 6 .55 pm and had informed that if the matter of the release of
TV if not resolved by the evening , I should reach CM’s residence at 12
Midnight to discuss further. I explained to deputy CM, none should in
contravention of the guidelines. Later called me at around 11.20 pm to
confirm whether I had left. On arrival at CMs residence, I met V.K Jain ,
advisor to the CM and thereafter both of us were taken to the from the
room where chief minister and the deputy chief minister and around 11
MLA were present ,CM told me they had come to ask him about the govt
publicity of the completion of three years . One of the MLA firmly shut
the door and I was made to sit in between Shri Amanatullah Khan and
another person on a 3 seated sofa and made to explain for the delay
in release of the TV campaign. I explained it had to be in consonance to
the guidelines. The MLA s started abusing me while blaming me and
the bureaucracy for not doing enough for the publicity of the
government . One threatened I will be confined in the room for the entire
night unless the I agree it to be released . A threat was made I will be
implicated in the SC/ST cases. Then one person from the left started
hitting and assaulting me and hit several blows with fists on my head
and temple. I was in a state of shock. I somehow got back into my
official car and left the CM s residence. I did none to provoke anyone.
Criminal intimidation. Premeditated assault and cause hurt with motive,
to compel to follow unlawful directions. According a case to be
registered 186/332/353/120 B/504/506/342 IPC

Case laws referred:

1 .K ANBAZHAN VS SUPD OF POLICE :
The honourable supreme court of India directed the appointment of
special public prosecutor to prosecute the then serving chief minister of
the state of Tamil nadu , it was justice should not only to have been
done, it should seen to be done. Criminal trial is not free from bias,
judicial fairness and the criminal justice system would be at stake
shaking the confidence of the public in the system, in such cases the
circumstances are such that there is a reasonable apprehension in the
mind of the petitioner. Also there is an apprehension in the mind of the
public there will be a failure of justice .
2.Govt of NCT of Delhi vs Nitin manavat and ors
, “ in accordance to section 302 of the CRPC , it Is not open to the lt
governor to appoint a special public prosecutor on his own without
seeking aid and advice of the counsel of minister , under section 24( 8 )
the power exercised cautiously on the aid and advice of the council of
ministers.”
3. Shiv Kumar vs Hukum Chand
 13. A public prosecutor is not expected to show a thirst to reach the
case in the conviction of the accused somehow or the other
irrespective of the true facts involved in the case. The expected attitude
of the public prosecutor while conducting must be couched in fairness
not only to the court and to the investigation authorities .The public
prosecutor should not scuttle it. On the contrary, it I the duty of the , the
public prosecutor has the responsibility has the added responsibility to
bring to the fore of the court . The private party may act subject to the
instructions- Public prosecutor, enshrining the legislative mandate of
section 225 of the code.
4. High court of Andhra Pradesh in medichetty ramakistiah and ors vs
state of Andhra Pradesh- the Public prosecutor should be scrupulously
fair to the accused and present his case with detachment and without
evincing to secure conviction , is based on a high policy and as such
courts should astute to suffer no inroad upon its integrity , the
prosecution of the case shall not be handed over to professional
gentleman instructed by a private party
5.Bhuppali Malliah and ors – deprecated the practise of the public
prosecutors sitting back and permitting private counsel to conduct
prosecution in the following terms :,improper over the conduct of the
case to counsel, however eminent as he may be .
5.Bhimsakaram Justice - The prosecution for the pleader shall not be
used to wreck private vengeance . The prosecution instead of being a
fair and dispassionate presentation of the facts of the case for the
determination of the court , would be transformed into a battle between
two parties in which one was trying to get the better of the other by
whatever means available.
6.Manu sharma vs NCT delhi :
A public prosecutor appointed under section 24 of the code of criminal
procedure code. Thus, public prosecutor is a statutory office of high
regard , the role of the prosecutor should not be towards arriving at the
truth of the matter to enable just adjudication of the case , here there is
a complete go bye to the principle of impartiality and prosecutorial
independence.
7. Vishnu Thakur vs state of Maharashtra
A public prosecutor s an important officer of the state government and
is appointed by the state under the CRPC . He is a part of the
investigation authorities , is expected to act independently apply his
mind to the request of the investigating agency before submitting a
report to the court for the extension of time with a view to enable the
investigation authorities to complete the investigation
8. Thakur ram Vs state of Bihar –
“ Under section 435 old it be read , the criminal law is not to be used as
an instrument of wrecking private vengeance by an aggrieved part
against the part who according to that party has caused injury to it.
Barring few exceptions, in criminal matters the part who is treated as
aggrieved party is the state which is the custodian of social interest of
the community, so the duty is upon the state, to take all the necessary
for bringing that person forefront .”
9. In KeIKer Karal’s case, the hon’ble Andhra Pradesh high court
allowed the application under section 302 (2 ) Crpc when the accused
the application under section 302 crpc when the accused in that case
was done by highly placed police officials and the prosecution is being
done by assistant police prosecuting officer who was an Administrative
police prosecuting officer who was an administrative subordinate to the
director general of the police.
10. Shiv kumar Vs Hukum Chand, the private personnel appointed can
only assist the Public prosecutor with the permission of the court .

Grounds :
All the prosecutors shall fall under the district of delhi , under the
domain of GNCT delhi and the complainant happens to be the disclinary
authority thereof and as such the cadre of prosecutors fall under that
domain as the complainant happens to be the chief secretary there of
coupled with the fact that he can have any one of the prosecutors so
appointed across delhi, he cannot have a grouse in rem against all the
prosecutors across Delhi, anyone of them without there being any
material to the effect .
The aforesaid posts fall under the domain of article 320 (3 ) of the
constitution , where the hon governor or the president may make the
appointment
Sub rule 2 of 46 states the ltd. governor shall make orders with the
advice of UPSC
Rule 3 of 46 provides that all the correspondences with the UPSC
regarding appointment and conditions of service of persons serving in
the national capital shall be done or conducted by the chief secretary or
the secretary of the home department concerned under the direction s of
the lieutenant governor
The prosecutor was not in a position to conduct the case in a free and
fair basis, the applicant availed of two general causes, there were 2
remedies available with the petitioner.
1. To file an application with GNCT of Delhi , the special public
prosecutor in accordance to section 24 of CRPC was not
complied with fully .
2. The other one by filing the application under section 302 of CRPC
with the ld trial court .

Arguments From the side of the petitioner :

The complainant is not sure about the efficiency of the prosecutor , he
should filed an affidavit with the present application about the efficiency
of the learned AAP, atleast attached it in the court of law , if he was not
sure about the competency , honest and efficiency of the learned AAP.
The chief secretary of Delhi is the disciplinary authority of the
prosecutor, it is a fallacy to say that chief minister or the home minister is
the administrative head of the prosecutor. He is not the mouth piece of
the investigation authorities or the agency , while conducting
prosecution on behalf of the state, in a free and fair manner. Such
permission to appoint a lawyer suggested by the investigation authorities
cannot be done or permitted.
Any person appointed under section 301 or any pleader shall prosecute
only under the directions of the AAP . The provisions of the section
301 and section 302 shall be read conjointly, not selectively
Cannnot assume these prosecutors are under the administrative control
of the home department.
Misinterpreted the provision of section 302, the investigation agency is
an interested party in the matter cannot suggest the appointment of
special public prosecutor in this case which is the prerogative of the
state. Should be free to all stakeholders .
 The Request of the Delhi police was denied by home minister ,as the
investigation authorities was not supposed to recommend any lawyer
for the appointment as special public prosecutor in the present case ,
under what circumstances, can their integrity be questioned . The
complainant shall always exercise the plenary powers under section 482
of CRPC .
An entire insult to public cadre of Delhi , thereby blocking free and fair
trial , in the absence of fair and cogent material to support the
arguments.
Annexure P8
The notification No F 27/59, the lt governor of Delhi under the home
police 2 dept notification, power granted to the home department for the
appointment and cancelling of the prosecutors.
,19 jan 2004
-After prior consultation with the public service commission,, is pleased
to make the rules in the schedule annexed regarding the method of
recruitment and qualification necessary to various group A and B post in
the directorate of prosecution .
- also the home dept has the power to cancel the notification , containing
the recruitment rules ,No.F2(26)/84-S.ii, and the power to rescind the
notification rules , for the appointment to the post of Assistant Public
prosecutor of NCT delhi
 The defence as a vehement Opposition to this request of the
complainant for the reason that the complainant has shown any
actual bias but only an unfounded apprehension of bias. The
other cases of similar accused person have been conducted
regular prosecutors and no biasness reported. The complainant is
one of the highest functionary of the state and the Prosecutor so
appointed can be influenced by him , thus if this application is
allowed it would be a bad precedent .

Question of law to be addressed

The provisions of the section 301 and section 302 shall be read
conjointly, not selectively
Section 301 - The public prosecutor or assistant public prosecutor
in charge of a case may appear and plead without any written
authority before any court in which that case is under enquiry,trial
or appeal.
(2) If in any case, any private person instructs a pleader to
prosecute any person in any court , the public prosecutor or the
assistant public prosecutor in charge of that case shall conduct the
prosecution , and the pleader so instructed shall act therein under
the direction of assistant public prosecutor and public prosecutor
and may with the permission of the court ,submit written
arguments after the evidence is closed in the case .

Section 302- Permission to conduct prosecution – (1) any

magistrate enquiring into or trying a case may permit the
prosecution to be conducted by an person other than the police
officer below the rank of inspector ; but no reason, other than the
advocate general or government Advocate or a Public Prosecutor
or Assistant public prosecutor without permission.
Provided that no police officer shall be permitted to conduct the
prosecution if he has taken part in the investigation into the offence
with respect to which the accused is being prosecuted
(2) Any person conducting the prosecution may do so personal or
by a pleader

Section 24 states Public prosecutor

(1) For every high court , the central government or he State
government shall after consultation with the high court , appoint
a public prosecutor and may also appoint one or more
additional prosecutors for conducting the prosecution – behalf
of the state government
(2) The central government may appoint one or more Public
prosecutors for the purpose of conducting any case or class of
cases in any district or local area
(3) The state government shall appoint a public prosecutor and
may also appoint one or more additional public prosecutors for
that district
(4) The District magistrate shall in consultation with the Sessions
Judge prepare a Panel of names who are in the opinion fit to
 be appointed as Public Prosecutors or additional Public
prosecutors for the district. The state may appoint only those
who are those panel of names or regular cadre of Prosecuting
Officers , which are prepared by the district magistrate.

Section 25 states the Assistant Public prosecutor ,

(1 ) The state government shall appoint in every district one or
more Assistant Public Prosecutors for conducting prosecution in the
courts of Magistrate.
(1A) The central government may appoint one or more Assistant
Public Prosecutors for the purpose of conducting any case or class of
cases in the Courts of Magistrate
(2) no police officer shall be appointed – if he has taken part in the
investigation into the offence with respect to which the accused is being
prosecuted
- If he below the rank of the inspector

A conjoint reading of section 24 ,25 and section 302 shows that ,

1. The assistant or the public prosecutor shall conduct prosecution
even without the permission of the magistrate .
2. Section 24 (8 ) , the state govt can appoint a public prosecutor
who has an experience of not less than 10 years .
3. A victim of the offence , can conduct the prosecution either
through himself or by his pleader under section 302 Crpc.
4. Any police officer who has not taken part in the investigation
process and who is not below the rank of the inspector can
conduct the inspection , would be eligible to be an assistant public
prosector

After the question s of law has been addressed we can come to

conclusion the Investigating authorities can appoint private
personnel, upon whom a supervisory role shall be exercised by the
Public prosecutor who are duly appointed by the court. The police
officials have suggested names which has been turned down by
the home department. Complete handing over the responsibility
can also be a means to wreck vengeance.Since the role of police
personnel in the investigation process cannot be ruled out. The
investigation authorities can appoint private personnel who shall
have no nexus with the government but shall be instructed by the
Public prosecutor or the assistant public prosecutor appointed by
the state . One another possibility is to appoint a special public
prosecutor under section 24(8) , while the supreme court is
exercising its ample plenary powers under the guise of section 484,
invoking the inherent powers of the court.

PRAYER ALONG WITH THE ACCOMPANYING PETITION , AN

APPLICATION UNDER THE 482 CRPC
 Petitioners have filed the accompanying petition under article 482,
facts are not reiterated . The trial is pending before Ld, Samar
Vishal ACMM, Patiala house court , new delhi and same is fixed
for further proceeding , the proceeding is seek to be stayed by the
above said petition , in the interest of the petitioner, this would
constitute the prayer to stay the trial /proceedings in FIR 54/2018
during the pendency of the petition .
THE EXTRA ORDINARY JURISDICTION HAS BEEN INVOKED,
THE ABOVE WRIT PETITION HAS BEEN DRAFTED UNDER
SECTION 226 AND SECTION 227 OF THE CONSTITUTION OF
INDIA, THE PETITIONERS ARE SEEKING EXEMPTION FOR
FILING THE CERTIFIED COPIES AND TRUE CERTIFIED
COPIES OF THE ANNEXURE OF DOCUMENTS FOR
FACILIATING THE ABOVE PETITION .

PRAYER
To issue a writ or to set aside the order in the nature of certiorari
or any other writ against the respondent No1 and direct that the
prosecution in the case be allowed to be conducted by the public
prosecutor before the ld trial court/Designated Court of Ld ACMM-
2 , Patiala house .
CONCLUSION
The public prosecutor is the sole master of the prosecution
and the conduct of the prosecution is solely governed by his
decision as to the policy to be adopted during the course of
the trial and another pleader instructing him has to act under
the directions of the Public prosecutor. The words in section
301 are ‘ public prosecutor or Assistant public prosecutor ,
these terms are defined under section 2 of the Code’. Public
prosecutor means any person acting the directions of the
Public prosecutor ,according to section 24 and Assistant
public prosecutor means any person appointed section 25 of
the code. Section 24(3) states for every district the state
government shall appoint a public prosecutor and may also
appoint one or more additional public prosecutor for the
district .I have referred to show the intention of the legislature
show that the intention of the legislature seems to be hat the
Public prosecutor and assistant public prosecutor as the case
may be will remain in charge of the conduct of the
prosecution, he does not represent any particular client but
the state. He is responsible for the conduct of the case and
acts as a machinery to assist the court , it will be incongruous
to suggest that any other person should be allowed to
interfere .
Section 301 or 302 do not provide for any contingency where
a private party is appointed .section 301(2) as I have shown
above contemplates grant of permission only after certain
grants of stages.The permission mentioned in sub section 2
of section 301 relates to specific act of submission for written
arguments and this stage of submitting written arguments is
also indicated by using the words after the evidence is
closed in the case. I do not think The complainant has any
right except of bare acting . The words used section 301 (2)
are ‘ pleaders so instructed shall act therein under the
direction of the Public Prosecutor.’The magistrate should
have considered the provisions of section 301 and 302
together together. The Punjab high court judgement , while
dealing with section 493 interpreted the word ‘act’ to mean
power to examine, which is now redrafted in the form of 301
.The public prosecutor solely is to decide the general policy
of the trial.
 The section 302 (1) corresponds to old section 494(1) and (4)
and section (2 ) of 302 corresponds to old section 495 (3).

In Aswin vs Maharashtra , it is stated the courts are

empowered to authorise the conduct the prosecution by any
person. According to a joint select committee report , the
section 201 was specifically drafted so to secure that the
private complainants do not interfere with the course of
justice. The liberty shall be exercised by the complainant in
accordance to the solitary principle of fairness.

Denial of fair trial is as much injustice to the accused as is the

victim and society. Since the object is to mete out justice and
to convict the guilty and protect the innocent , the trial should
be a search for the truth and not a bout for technicalities and
must be conducted under such rules as will protect the
innocent and punish the guilty .

Article 226,227 and certiorari , are used a cloak or under the

guise of appeal since there is apparent error , or patent error
on the face of the record. The right of appeal has been
provided, under article 226 on a statutory basis, while the
power of superintendence under article 227 is on a
constitutional basis.
The public prosecutor is not a protagonist of any party
though in theory he stands for the state. If a private person
instructs counsel or pleader ,he can only appear subject to
the specific provisions which reserve to the Public
prosecutor or assistant public prosecutor in the management
of the case .The public prosecutor or the assistant public
prosecutor may avail of the counsel’s services , the public
prosecutor or the assistant public prosecutor by no means
deprives himself of the management of the case . section 301
states that , if in any trial any private person instructs a
pleader to prosecute any person in any court , the public
prosecutor or assistant public prosecutor in charge of the
case shall conduct the prosecution and the pleader so
instructed shall act therein under the directions of the Public
prosecutor or assistant public prosecutor and may with the
permission of the court ,submit the written arguments after
the evidence is closed in the case .
“The committee considers that where a private person
instructs a pleader as provided in sub- rule , such pleader
should have the facility of submitting the written arguments
at the close of the evidence with the permission of the court .
This is considered necessary because in some cases the
complainant may have the feelings that the argument of the
public or the assistant may have to be supplemented. The two
may work in harmony , if they do not , the counsel may retire
or the public or the assistant public prosecutor may claim to
keep the further conduct of the case solely to himself.
Section 301(2), authorises a privately engaged pleader to act
in the case under the direction of the public prosecutor , he
may do everything in the case provided that it is done under
the direction and control of the public prosecutor .A lawyer
instructed by a private person to assist the public prosecutor
has no right of audience in respect of audience except to the
extent permitted by this section . section 302 (1)- 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 a advocate general or government advocate or a
public prosecutor , shall be entitled to do so, and shall not
have taken part in the investigation.
The prosecution of case of murder an advocate privately
engaged is not a proper person to conduct the prosecution
for the government stands not necessarily for a conviction
but for justice . It is only when a private counsel is entrusted
with an independent charge of the case that permission is
necessary under this section 302, the magistrate may permit
the prosecution itself to be conducted by any person or
pleader to be instructed by him.For examples, in dire
necessity, the court can grant permission to the
complainant’s husband power of attorney holder to conduct
the prosecution on behalf of the complainant in the latter’s
absence from the country . Under section 302, the court has
the power to substitute the prosecution agency , by
substituting another person or prosecution agency of the
conduct of the case, on the death of the complainant, his
heirs can file application under section 302 Crpc to continue
the prosecution .
Also section 303 , Any person accused of an offence before a
Criminal court or against who proceedings are instituted
under this code , may of right be defended by a pleader of his
choice. If the court thinks the cause of justice would be
served by granting such permission , the court would
generally grant such permission, subjectively.

----------------------------------------------------------------------------------------