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WP No. 23408 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY, 2024 BEFORE THE HON'BLE MR JUSTICE N S SANJAY GOWDA WRIT PETITION NO. 24143 OF 2023 C/W WRIT PETITION NO. 22988 OF 2023, WRIT PETITION NO. 23408 OF 2023 (S-RES)
IN WRIT PETITION No.24143/2023:
BETWEEN:
1 . MR. RAGHAVEDRA YT S/O RAMACHANDRA Y T AGED ABOUT 42 YEARS SPECIAL PUBLIC PROSECUTOR COURT OF SESSIONS AND SPECIAL COURT UDUPI, NOTIFIED AS PER SECTION 28 OF THE POCSO ACT, 2012, UDUPI DISTRICT-574118.
Digitally signed by MANJANNAM EANJANNA E Date:
2024.01.12
1 +4 0: 53 39 0:41 2 . MR M MANJUNATH S/O M MRUTYUNJAYA AGED ABOUT 47 YEARS SPECIAL PUBLIC PROSECUTOR COURT OF SESSIONS AND SPECIAL COURT, UDUPI NOTIFIED AS PER SECTION 28 OF THE POCSO ACT 2012 RAICHUR DISTRICT-581401.
3 . MR AMARESH(AMARAYYA) HIREMATH S/O UMAPATHI, AGED ABOUT 53 YEARS WP No. 23408 of 2023 SPECIAL PUBLIC PROSECUTOR COURT OF SESSIONS AND SPECIAL COURT UDUPI NOTIFIED AS PER SECTION 28 OF THE POCSO ACT 2012 GADAG DISTRICT-582101.
4 . SMT GOURAMMA L DESAI W/O LOHIT DESAI AGED ABOUT 48 YEARS SPECIAL PUBLIC PROSECUTOR COURT OF SESSIONS AND SPECIAL COURT UDUPI NOTIFIED AS PER SECTION 28 OF THE POCSO ACT 2012 KOPPAL DISTRICT-583238.
5 . MR BHARAT KUMAR S/O BA BOBANNA GOWDA AGED ABOUT 58 YEARS SPECIAL PUBLIC PROSECUTOR COURT OF SESSIONS AND SPECIAL COURT UDUPI NOTIFIED AS PER SECTION 28 OF THE POCSO ACT 2012 CHIKKAMAGALURU DISTRICT-577101.
6 . MRS SHUBH RAMAKRISHNA GAONKAR W/O PRASHANTH GAONKAR AGED ABOUT 50 YEARS SPECIAL PUBLIC PROSECUTOR COURT OF SESSIONS AND SPECIAL COURT UDUPI NOTIFIED AS PER SECTION 28 OF THE POCSO ACT 2012 UTTARA KANNADA DISTRICT-581301.
7 . MRS VEENA KUMARI N AGED 41 YEARS, W/O SHANKARAPPA K N SPECIAL PUBLIC PROSECUTOR WP No. 23408 of 2023 COURT OF SESSIONS AND SPECIAL COURT UDUPI NOTIFIED AS PER SECTION 28 OF THE POCSO ACT 2012 RAMANAGARA DISTRICT-562159.
8 . MRS M PRABHAVATHI W/O RAMACHANDRAYYA BALLARI AGED ABOUT 58 YEARS SPECIAL PUBLIC PROSECUTOR COURT OF SESSIONS AND SPECIAL COURT UDUPI NOTIFIED AS PER SECTION 28 OF THE POCSO ACT 2012 BELLARY DISTRICT-583101 …PETITIONERS (BY SRI. P.P.HEGDE, SENIOR COUNSEL FOR SRI.VENKATESH SOMAREDDI, ADVOCATE)
AND:
1. STATE OF KARNATAKA, MINISTRY OF HOME AFFAIRS, REPRESENTED BY PRINCIPAL SECRETARY VIDHANA SOUDHA, BANGALORE-560 001.
2. DEPARTMENT OF PROSECUTION AND GOVERNMENT LITIGATION REPRESENTED BY ITS DIRECTOR
6TH FLOOR, KHB COMPLEX, CAUVERY BHAVAN, KEMPEGOWDA RAOD, BANGALORE-560 009.
…RESPONDENTS (BY SRI.SHASHI KIRAN SHETTY, ADVOCATE GENERAL ALONGWITH SRI.V.G. BHANU PRAKASH, ADDITIONAL ADVOCATE GENERAL AND SRI.B.RAVINDRANATH, AGA FOR RESPONDENTS)
WP No. 23408 of 2023 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECTING RESPONDENT Nos.1 AND 2 OF PAY SALARY AND OTHER SERVICE BENEFITS TO THE PETITIONERS HEREIN FROM THE DATE OF THEIR APPOINTMENT IN DEPT OF PROSECUTION / RESPONDENT No.2, ETC.
IN WRIT PETITION No.22988/2023 BETWEEN:
SRINIVASA GOWDA, S/O PUTTEGOWDA, AGED 56 YEARS, R/AT DEVAMMA BADAVANE CHANNAPATNA, HASANA-573201 PRESENTLY WORKING AS PUBLIC PROSECUTOR ADDL DISTRICT AND SESSIONS JUDGE (FTSC-1), HASSAN-573 201.
…PETITIONER (BY SRI. P.P.HEGDE, SENIOR COUNSEL FOR SRI.VENKATESH SOMAREDDI, ADVOCATE)
AND:
1. STATE OF KARNATAKA MINISTRY OF HOME AFFAIRS REPRESENTED BY PRINCIPAL SECRETARY, SHRI G SHYAM HOLLA, VIDHANA SOUDHA, BANGALORE-560 001.
2. DEPARTMENT OF PROSECUTION AND GOVERNMENT LITIGATION REPRESENTED BY ITS DIRECTOR SHRI.H.K.JAGADISH, 6TH FLOOR, KHB COMPLEX, CAUVERY BHAVAN, KEMPEGOWDA ROAD, BANGALORE-560 009.
3. MRS.PARVATHI, AGED MAJOR, FATHER/HUSBAND NAME NOT KNOWN, WP No. 23408 of 2023 LAW OFFICER (JUNIOR)
SP OFFICE, HASSAN WORKING AS PUBLIC PROSECUTOR
90TH ADDL. CITY CIVIL AND SESSIONS COURT (MLA, MP COURT)
BENGALURU-560 001.
…RESPONDENTS (BY SRI. SHASHI KIRAN SHETTY, ADVOCATE GENERAL ALONGWITH SRI.V.G. BHANU PRAKASH, ADDITIONAL ADVOCATE GENERAL AND SRI.B.RAVINDRANATH, AGA FOR R-1 AND R-2;
SRI.G.S.BALAGANGADHAR, ADVOCATE FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASHING THE IMPUGNED ORDER BEARING No OE 185 PPE (BHA-1) DATED 09/10/2023 PASSED BY THE RESPONDENT No.1 VIDE ANNEXURE-E IN SO FAR AS THE PETITIONER AND RESPONDENT No.3 IS CONCERNED.
IN WRIT PETITION No.23408/2023:
BETWEEN:
MR.HARIPRASAD, S/O U SRINIVAS BALLAL, AGED 56 YEARS, R/A SHRILAXMI, 6TH CROSS, 2ND MAIN RAJENDRA NAGARA SHIVAMOGGA PRESENTLY WORKING AS SPECIAL PUBLIC PROSECUTOR, FAST TRACK SPECIAL COURT-1 (POCSO SPECIAL COURT)
EARLIER 1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA SHIVAMOGGA-577201.
…PETITIONER (BY SRI.P.P.HEGDE, SENIOR COUNSEL FOR SRI.VENKATESH SOMAREDDY, ADVOCATE)
WP No. 23408 of 2023 AND:
1. STATE OF KARNATAKA MINISTRY OF HOME AFFAIRS REPRESENTED BY PRINCIPAL SECRETARY, SHRI G SHYAM HOLLA, VIDHANA SOUDHA, BANGALORE-560 001.
2. DEPARTMENT OF PROSECUTION AND GOVERNMENT LITIGATION REPRESENTED BY ITS DIRECTOR SHRI.H.K.JAGADISH, 6TH FLOOR, KHB COMPLEX, CAUVERY BHAVAN, KEMPEGOWDA ROAD, BANGALORE-560 009.
3. MR.K.C.DEEPAK, AGED MAJOR, FATHER NAME NOT KNOWN LAW OFFICER (JUNIOR)
SP OFFICE, SHIVAMOGGA-577 201 PUBLIC PROSECUTOR
9TH ADDL. CITY CIVIL AND SESSIONS COURT BENGALURU-560 001.
…RESPONDENTS (BY SRI. SHASHI KIRAN SHETTY, ADVOCATE GENERAL ALONGWITH SRI.V.G. BHANU PRAKASH, ADDITIONAL ADVOCATE GENERAL AND SRI.B.RAVINDRANATH, AGA FOR R-1 & R-2;
SRI.G.S.BALAGANGADHAR, ADVOCATE FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER BEARING NO.OE 185 PPE (E) DATED 9.10.2023 PASSED BY R-1 VIDE ANNEXURE-B IN SO FAR AS THE PETITIONER AND R-3 IS CONCERNED, ETC.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 20.12.2023, COMING ON FOR WP No. 23408 of 2023 PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING :
ORDER
1. The petitioners herein are advocates who were appointed as Special Public Prosecutors, on contract basis, under Section 32 of the Protection of Children from Sexual Offences Act, 2012 (in short, “the POCSO Act”). They are aggrieved by the order dated 24.11.2022, by which the State Government has issued a Notification assigning Public Prosecutors to Special Courts and thereby, nominating the Public Prosecutors as Special Public Prosecutors.
2. It is their contention that it is impermissible for the State to appoint regular Public Prosecutors as Special Public Prosecutors under Section 32 of the POCSO Act. It is also their case that the tenure of some of the petitioners is still subsisting and they could not, therefore, be displaced by posting regular Public Prosecutors in their place. They contend that by virtue of the order dated WP No. 23408 of 2023
24.11.2022, they are sought to be displaced and hence, the same was required to be quashed.
3. The petitioners also seek regularisation of their appointment as Special Public Prosecutors.
4. The State Government, on the other hand, contends that it is permissible for them to post regular Public Prosecutors as Special Public Prosecutors and assign them to work as Special Public Prosecutors in POCSO Courts. It is also the case of the State Government that it possesses the requisite powers as indicated in the POCSO Act, and therefore, there can be no challenge laid to the assigning of said Public Prosecutors as Special Public Prosecutors for the Special Courts established to try cases under the POSCO Act.
5. The State Government also contends that the petitioners, being advocates, had entered into a contract, whereby the tenure was fixed as three years and therefore, they cannot plead that they are entitled to be WP No. 23408 of 2023 regularised as Special Public Prosecutors. It is contended that the petitioners had given an undertaking that they would not seek regularisation and hence, their argument in respect of their regularisation is totally without any merit.
6. In light of the arguments advanced, the only point that would arise in these petitions is:
“Whether the State Government could have issued the order dated 24.11.2022, by which it assigned the existing Public Prosecutors as Special Public Prosecutors for functioning in the Special Courts established for conducting the cases under the POCSO Act? ”
7. The POCSO Act has been enacted to protect children from offences of sexual assault, sexual harassment and pornography, and to provide for establishment of Special Courts for trial of such offences and matters concerned therewith.
WP No. 23408 of 2023
8. Chapter VII of the POCSO Act specifically provides for Special Courts.
9. Section 281 of the POCSO Act makes it mandatory to try the offences specified under the POCSO Act and Section 312 of the POCSO Act declares that the Special Courts constituted would be deemed to be a Court of Sessions and the person conducting the prosecution before a Special Court shall be deemed to be a Public Prosecutor. 128. Designation of Special Courts.—(1) For the purposes of providing a speedy trial, the State Government shall in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, designate for each district, a Court of Session to be a Special Court to try the offences under the Act:
Provided that if a Court of Session is notified as a children’s court under the Commissions for Protection of Child Rights Act, 2005 (4 of 2006) or a Special Court designated for similar purposes under any other law for the time being in force, then, such court shall be deemed to be a Special Court under this section.
(2) While trying an offence under this Act, a Special Court shall also try an offence other than the offence referred to in sub-section (1), with which the accused may, under the Code of Criminal Procedure,1973 (2 of 1974) be charged at the same trial.
(3) The Special Court constituted under this Act, notwithstandin
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