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IN THE HIGH COURT OF KERALA AT ERNAKULAM
NITIN JAMDAR, C.J., ZIYAD RAHMAN A.A., J.
Suo Motu Writ Petition Initiated by the High Court - Petitioner
Versus
State of Kerala, Represented by the Chief Secretary, Government Secretariat & Ors. - Respondents
WP(C) No. 23838 of 2021
Decided On : 09-04-2025
(A) Code of Criminal Procedure, 1973 - Section 24(3) - Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 18 - Appointment of Public Prosecutors - The court emphasized the need for a competent selection process for Public Prosecutors, highlighting the importance of consultation with the District Judge to ensure quality prosecution. The existing Rules of 1978 were found inapplicable to the appointment of Public Prosecutors under the Cr.P.C. and BNSS. (Paras 3 , 7 , 19 )
(B) Consultation Process - The court reiterated that the appointment of Public Prosecutors must prioritize the opinion of the District Judge, ensuring that the process is not arbitrary and adheres to the principles of fairness and reasonableness. (Paras 19 , 24 .1)
Facts of the case:
The suo motu petition was initiated due to concerns regarding the quality and timely appointment of Public Prosecutors in Kerala, revealing significant vacancies and procedural lapses in the appointment process.
Findings of Court:
The court directed the State Government to frame internal guidelines ensuring the primacy of the District Judge's opinion in the appointment process and to fill vacancies expeditiously.
Issues: The main issues included the applicability of the Rules of 1978 to Public Prosecutors and the necessity of effective consultation with the District Judge.
Ratio Decidendi: The court ruled that the appointment of Public Prosecutors is governed by Section 24 of the Cr.P.C. and Section 18 of the BNSS, emphasizing the need for a consultative process that respects the District Judge's opinion.
Result: Directions issued to the State Government to ensure compliance with the court's findings.
Certainly. Based on the provided legal document, here are the key points:
The appointment of Public Prosecutors must prioritize the opinion of the District Judge, in accordance with Section 24 of the Cr.P.C. and Section 18 of the BNSS, to ensure a fair, transparent, and competent selection process (!) (!) .
The Rules of 1978, which govern the appointment and conditions of service of Government Law Officers, are not applicable to Public Prosecutors, as they do not hold public posts but are appointed as legal practitioners with a tenure appointment (!) (!) .
The appointment process must involve effective consultation with the District Judge, and the State Government is required to issue internal guidelines that give primacy to the District Judge’s opinion, ensuring compliance with the law and judicial directives (!) (!) (!) .
The law emphasizes that the appointment of Public Prosecutors should be based on merit, integrity, and experience, with the process being free from political or arbitrary influences. The opinion of the District Judge is fundamental in assessing these qualities (!) (!) (!) .
The procedure for appointment under Section 24 of the Cr.P.C. (and Section 18 of BNSS) includes the preparation of a panel of qualified advocates by the District Magistrate or District Judge, followed by appointment by the State Government, with the consultation process being a vital safeguard against arbitrariness (!) (!) (!) .
The appointment of Public Prosecutors must be made in a timely manner to prevent delays in justice delivery. The State has a duty to fill vacancies promptly and establish posts of Prosecutors concurrently with the creation of new courts (!) (!) (!) .
The Court mandates that internal guidelines issued by the State should conform strictly to the legal requirements, particularly emphasizing the importance of consultation with the District Judge and the need for objective assessment based on merit and integrity (!) (!) .
If the guidelines or practices contravene the principles laid down by law or if delays persist in filling vacancies, the Court may revive the suo motu petition for further directions or corrective measures (!) (!) .
These points collectively highlight the legal and procedural standards for the appointment of Public Prosecutors, underscoring the importance of fairness, merit, and adherence to judicial and constitutional principles.
JUDGMENT :
Nitin Jamdar, C.J.
Public Prosecutors play an important role in the administration of justice. The importance of careful selection of Public Prosecutors is emphasised by the Hon’ble Supreme Court. The Public Prosecutors are required to perform statutory duties independently, having regard to various provisions contained in the Code of Criminal Procedure, 1973. The need to improve the quality of prosecution, in order to increase the certainty of conviction and punishment for most serious offenders and repeaters, cannot be stressed enough. The Hon’ble Supreme Court has underscored that the maintenance of law and order in the society and, to some extent, the maintenance of the Rule of law, which is the basic fibre for upholding the Rule of democracy, lies in the hands of the Public Prosecutors.
2. Despite the emphasis laid by the Hon'ble Supreme Court on the importance of Public Prosecutors as above and the need to improve their quality almost two decades ago, the Division Bench of this Court found that criminal trials in the State were being seriously affected by the lack of competent Prosecutors, who at times failed to follow even the basic procedure. Having noticed several such lapses, the Division Bench, by an order dated 23 September 2021, directed that a suo motu Writ Petition be registered to initiate measures for improving the quality of prosecution in the State.
3. This suo motu Petition concerns improving the procedure for appointing Public Prosecutors under Section 24 (3) of the Code of Criminal Procedure, 1973 ( Cr.P.C.) in the State and ensuring their timely appointment. There are several types of Government advocates and in this Petition reference to the 'Public Prosecutors' is to those mentioned in Section 24 (3) of the Cr.P.C., now Section 18 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ( BNSS ).
4. We have heard Mr. Grashious Kuriakose, the learned Additional Director General of Prosecution, and Mr. B.G. Harindranath, the learned Senior Advocate representing the High Court Administration. We requested the learned Senior Advocate, Mr. P. Deepak, to assist the Court as the learned Amicus Curiae.
5. The learned counsel informed that the current practice being followed in the State of Kerala before making every appointment of Public Prosecutors in the districts is as per Rule 8 of the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 (Rules of 1978). Rule 8 contemplates that the 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. Sub-rule (2) of Rule 8 states that for preparing the panel, the District Collector shall follow the procedure that 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, reliability, reputation and character and antecedents, are, in the opinion of the District Collector, fit to be appointed as a Government Law Officer shall be prepared and sent to the concerned District and Sessions Judge for consultation. The District and Sessions Judge shall return the list with his remarks within ten clear days from the date of receipt of the same by him. In preparing the list, it shall not be necessary to advertise the vacancies or invite applications for the appointment. It is also stated in clause (b) of sub-rule (2) that after the expiry of the time limit prescribed in clause (a) for the return of the list from the District and Sessions Judge, the District Collector shall prepare the panel of advocates based on the list forwarded by him to the District and Sessions Judge under the said clause. It is also stated that there is no direct interaction between the Sessions Judge and the District Magistrate concerned in the consultation proc
The appointment of Public Prosecutors must prioritize the District Judge's opinion, governed by Section 24 of the Cr.P.C. and Section 18 of the BNSS, ensuring a fair and competent selection process.
The court emphasized the need for clear recruitment notifications and adherence to consultative processes in appointing public prosecutors to ensure eligible candidates are not excluded.
: action of the State, thus, must be judged with extreme care and circumspection. It must be borne in mind that the right of the public prosecutor or the district counsel do not flow under a statute.....
Compliance with the Code of Criminal Procedure is essential in the appointment of Public Prosecutors and Panel Lawyers, and filling up the vacant posts in the cadre of Public Prosecutors.
Point of law: irrespective of the executive or judicial nature of the office of the public prosecutor, it is certain that one expects impartiality and fairness from it in criminal prosecution
The State Government must conform to statutory procedures when making appointments to public offices to ensure the rule of law is upheld.
The court ruled that the appointment of the Director of Prosecution is not limited to the prosecution cadre, and the amendments to the rules do not violate the provisions of the Cr.P.C.
The government holds discretion to terminate appointments of Public Prosecutors without inquiry or specific reasons, provided procedural mandates of applicable instructions are adhered to, maintainin....
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