Primacy of District Judge Opinion Mandatory in Public Prosecutor Appointments Under BNSS S.18/CrPC S.24: Kerala High Court - 2025-04-09

Kerala High Court Mandates Primacy of District Judge's Opinion in Public Prosecutor Appointments Under BNSS /CrPC

Ernakulam: The Kerala High Court, in a significant judgment delivered by Chief Justice Nitin Jamdar and Justice Ziyad Rahman A.A. , has ruled that the State Government must give primacy to the opinion of the District Judge during the consultation process for appointing Public Prosecutors under Section 18 (3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 ( BNSS ) (corresponding to Section 24 (3) of the Cr.P.C .). The decision came in a suo motu writ petition initiated by the Court itself due to concerns over the quality and timeliness of Public Prosecutor appointments affecting criminal trials in the State.

Background: Concerns Over Prosecution Quality

The High Court initiated the suo motu proceedings in 2021 after observing that criminal trials were being hampered by a lack of competent Public Prosecutors (PPs), with some failing to follow basic procedures. The petition specifically focused on improving the appointment process for PPs under Section 24 (3) of the Cr.P.C . (now Section 18 (3) BNSS ) and ensuring timely appointments.

Misapplication of 1978 Rules Clarified

The State Government had been following Rule 8 of the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 for appointing PPs. This rule involves the District Collector preparing a panel after consulting the District and Sessions Judge. However, the Court noted instances where adverse remarks by Sessions Judges were ignored.

Crucially, the High Court clarified a fundamental misconception:

> "The Rules of 1978 are framed by deriving power from Act 19 of 1968, which applies only to public posts... Once it is established that Public Prosecutors [under S.24(3) CrPC / S.18(3) BNSS ] do not hold public posts, the Rules of 1978, insofar as they relate to Public Prosecutors, would have no application to them."

The Court referenced the Supreme Court's decision in * Johri Mal *, which established that Public Prosecutors appointed under Cr.P.C . Section 24 do not hold 'civil posts' but are tenure appointments retaining the character of legal practitioners. Their appointment is governed directly by the Cr.P.C . (now BNSS ), not state service rules framed under Article 309 or the Kerala Public Services Act, 1968 .

Statutory Mandate and Primacy of Consultation

The judgment emphasized that the appointment process is governed by Section 24 of the Cr.P.C . (now Section 18 of BNSS ). Sub-sections (4) and (5) mandate the District Magistrate to prepare a panel in consultation with the Sessions Judge, and appointments must be from this panel.

The Court heavily relied on Supreme Court precedents stressing the importance of effective consultation:

• ** Johri Mal :** The SC highlighted the rationale for consultation – the District Judge knows the lawyers' competence, while the District Magistrate knows their conduct outside court. It stressed that the State should "give primacy to the opinion of the District Judge" to ensure fairness and avoid political motivation.
• ** State of Punjab v. Brijeshwar Singh Chahal :** The SC reiterated that consultation is a vital check on arbitrary power, quoting the Law Commission's 197th Report which stated that deleting the consultation requirement would violate Article 14. The SC noted, "Consultation... lends reassurance as to the professional ability and suitability of the appointee."

Court's Directions

Based on the statutory provisions and Supreme Court rulings, the High Court issued the following key directions:

Primacy Declared: The State Government must give primacy to the District Judge's opinion in the consultation process under BNSS Section 18 (3) / CrPC Section 24 (3).

Guidelines Mandated: The State must frame internal administrative guidelines conforming strictly to BNSS Section 18 and SC judgments, ensuring a methodology that guarantees primacy to the District Judge's opinion. These guidelines are to be shared with the High Court Registrar General within three months.

Timely Appointments: Accepting the State's commitment to expedite appointments, the Court directed the State to set up a protocol to fill PP vacancies promptly and consider sanctioning PP posts simultaneously with the creation of new courts.

Addressing Vacancies and Delays

The Court also addressed the alarming issue of vacancies and delays. Data presented showed 18 current PP vacancies and 14 courts lacking sanctioned PP posts, including crucial POCSO, SC/ST, and BUDS courts. Instances of posts remaining vacant for over two months (38 times in 5 years) and delays in appointing PPs to newly established courts were highlighted. While accepting the State's assurance to act expeditiously, the Court warned it might issue mandatory time-bound directions if delays persist.

Implications

This judgment reinforces the judiciary's role in ensuring the quality and independence of the prosecution by mandating a meaningful consultative process where the District Judge's assessment of merit and competence holds primary importance. It corrects a long-standing procedural error in Kerala and aligns the appointment process with the specific mandates of the BNSS / Cr.P.C . and constitutional principles established by the Supreme Court. The Court retained the option to revive the suo motu petition if the guidelines are inadequate or delays continue.