Judges : B.N.SRIKRISHNA,C.N.RAMACHANDRAN NAIR
Omanakuttan Nair - Appellant
Versus
State of Kerala - Respondent
Case No : O.P. No. 10186, 12451, connected cases
Decided On : 09/30/2002
Advocates Appeared :
Thottathil Radhakrishnan; E. Subramani; Gracious Kuriakose; G. Prabhakaran; For Petitioner Rajan Joseph; K. Ramakumar; For Respondents.
Criminal Procedure Code 1973 - Appointment of Public Prosecutors - Creating an offence - Panel shall be prepared in consultation with District and Sessions Judge and only those persons who having regard to their qualifications experience integrity reliability reputation and character and antecedents are in opinion of District Collector fit to be appointed shall be included therein – Held, Court are of view that Rules in so far as they deviate from procedure prescribed for appoint of Public Prosecutors under S. 24 of Code of Criminal Procedure as interpreted by Supreme Court in Chatham’s case are bad - To that extent therefore they are declared to be invalid and unenforceable – Procedure prescribed S. 24(4) for appointment of Public Prosecutors is required to be followed in manner as interpreted and envisaged by Supreme Court in Chatham’s case – Petition allowed
1. These five writ petitions, though from different districts, raise same issues of facts and law, and hence, they can be conveniently disposed of by a common judgment.
2. These petitions are filed in public interest by the petitioners who are practising advocates in different districts of Thiruvananthapuram, Ernakulam, Wayanad and Trissur. The petitions impugn R.7 and 8 of the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 as also the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases (Amendment) Rules, 2002.
3. The Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 (hereinafter called the '1978 Rules') were prescribed by the Government of Kerala purportedly in exercise of its powers under S.2(1) of the Kerala Public Services Act, 1968. These rules prescribe the manner of appointment, duties and responsibilities of Government Law Officers appointed by the Government to conduct Government cases in any court or tribunal in the State and include District Government Pleaders and Public Prosecutors. We are not concerned with the other categories of Government Law Officers. R.7 and 8, which are material for the present purpose, read as under:
"7. Set up in District Court Centres, Additional District Court Centres and Sub Court Centres.- (1) There shall be one District Government Pleader and Public Prosecutor at each District Court Centre. There may also be such number of Additional Government Pleaders and Additional Public Prosecutors as may be considered necessary by the Government at each District Court Centre, Additional District Court Centre and Sub Court Centre.
(2) Notwithstanding anything contained in sub-r. (1), the Government may, if deemed necessary at any time, separate the offices of Government Pleaders and Public Prosecutors at any Court Centre and make separate appointments accordingly.
"8. Method of appointment of Government Law Officers at District Court, Additional District Court and Sub Court Centres.- (1) A Government Law Officer at a District Court Centre, Additional District Court Centre or Sub Court Centre shall be appointed by the Government from a panel of names of Advocates furnished by the District Collector concerned:
Provided that the Government shall try to give adequate representation to members of Scheduled
Caste/Scheduled Tribe Communities in the matter of appointment of Government Law Officers.
(2) The District Collector shall, while preparing the panel bear in mind the following:?
(i) a person included in the panel shall have at least seven years practice as an advocate;
(i) the panel shall be prepared in consultation with the District and Sessions Judge and only those persons who, having regard to their qualifications, experience, integrity, reliability, reputation and character and antecedents, are in the opinion of the District Collector, fit to be appointed, shall be included therein;
(iii) the character and antecedents in all persons included in the panel shall be got verified through the concerned Superintendent of Police.
Provided that if members from the Scheduled Caste, Scheduled Tribe Community are qualified to be appointed as Government Law Officer the panel shall contain at least the name of one member from such community."
Note.- It shall not be necessary to advertise the vacancies or invite applications for appointment.
4. The 1978 Rules were amended with effect from 15th March, 2002 by the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases (Amendment) Rules, 2002 (hereinafter referred to as'2002 Rules'). R.8(2) of the 1978 Rules was amended by the 2002 Rules and substituted by the following:?
"(a) A list of advocates from the roll of advocates of the Bar Council of Kerala having at least seven years of practice in the Bar and who having regard to their qualification, experience, integrity, reliabil
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