District Public Prosecutor And The Verdict Of The Kerala High Court In Omanakuttan Nair’s Case

A.         I N T R O D U C T I O N

This article is confined to the “Public Prosecutor for the district” (“the District Public Prosecutor” for convenience) appointed directly by the State Government under Section 24 (3) to (5) of the Code of Criminal Procedure, 1973 (“Cr.P.C.” for short). The different types of “Public Prosecutors” (when used in a wider sense) as envisaged by the Cr.P.C. are –

1. “Public Prosecutor” for the High Court appointed directly by the Central or State Governments in consultation with the High Court under Section 24 (1) Cr.P.C. (loosely called the “State Public Prosecutor”). The Advocate to be appointed as the State Public Prosecutor should have a practice of not less than 7 years as stipulated by Section 24 (7) Cr.P.C.

2. “Public Prosecutor” for the district or local area appointed directly by the Central Government under Section 24 (2) Cr.P.C.

The Advocate to be appointed as the Public Prosecutor should have a practice of not less than 7 years as stipulated by Section 24 (7) Cr.P.C.

The Advocate to be appointed as the Public Prosecutor should have a practice of not less than 7 years as stipulated by Section 24 (7) Cr.P.C.

The District Public Prosecutors are appointed by the State Government after consultation between the District Magistrate (District Collector) with the Sessions Judge concerned under Section 24 (4) Cr.P.C. The appointment of these Public Prosecutors is a tenure appointment. They are not employees of the State and they do not hold any “civil post” under the State. They are not governed by the Service Rules framed by the State Government. But, they are officers of the Court. (Vide Samarendra Das v. State of W. B. AIR 2004 SC 2924 = (2004) 2 SCC 274 – V. N. Khare – CJI, S. H. Kapadia - J; Para 39 of State of U. P. v. Johri Mal (2004) 4 SCC 714 = AIR 2004 SC 3800 – 3 Judges – V. N. Khare – CJI, Brijesh Kumar, S. B. Sinha – JJ.)

4. “Public Prosecutor” for the district appointed by the State Government by promotion under Section 24 (6) Cr.P.C. from among the regular Cadre of prosecuting officers (as defined in the Explanation to Section 24 (6) Cr.P.C.), if any, in a State.

The Advocate to be appointed as the Public Prosecutor should have a practice of not less than 7 years as stipulated by Section 24 (7) Cr.P.C.

5. “Special Public Prosecutor” for any case or class of cases to be appointed directly by the Central or State Governments under Section 24 (8) Cr.P.C.

The Advocate to be appointed as the Special Public Prosecutor should have a practice of not less than 10 years.

6. “Assistant Public Prosecutors” for every district appointed directly by the State Government under Section 25 (1) for conducting prosecutions in the Courts of Magistrates.

Assistant Public Prosecutors (APPs) appointed under Section 25 (1) Cr.P.C. strictly do not come under the definition of Public Prosecutor in Section 2 (u) Cr.P.C. but they are also shown here since they are doing in Magistrates Courts the same work as that of the Public Prosecutors.

Section 25 Cr.P.C. does not prescribe the eligibility criteria for a person to be appointed as an Assistant Public Prosecutor. In the State of Kerala, there were initially executive orders prescribing the qualifications and eligibility criteria for appointment as Assistant Public Prosecutor. Formerly, there was a written test conducted by Lal Bahadur Shastri Institute, Trivandrum followed by an interview at the Secretaries Level. Subsequently, their recruitment has been entrusted with the Public Service Commission.  

They are regular employees of the State and hold a civil post under the State. They are governed by the Service Rules framed by the State Government. They are also officers of the Court. (Vide Samarendra Das v. State of W. B. AIR 2004 SC 2924 = (2004) 2 SCC 274 – V. N. Khare – CJI, S. H. Kapadia - J; Para 86 of Deepak Aggarwal v. Keshav Kaushik (2013) 5 SCC 277 – R. M. Lodha, Anil R. Dave, Ranjan Gogoi – JJ.)

7. “Assistant Public Prosecutors” appointed directly by the Central Government under Section 25 (1-A) Cr.P.C. for conducting any case or class of cases in the Courts of Magistrates.

Their position is also similar to the Assistant Public Prosecutors appointed under Section 25 (1) Cr.P.C.

B.     The metamorphosis of the “Police Prosecutor” to the “Public Prosecutor”.

2. In the 154^th Report (1995—1997) of the Fourteenth Law Commission of which Mr. Justice K. Jeevan Reddy was the Chairman, it was observed that the “Police Prosecutors” who were conducting prosecutions in the Magistrates Courts in the country under the Code of Criminal Procedure, 1898, for all intents and purposes, were members of the Police Force and that having regard to the nature of the duties they had to discharge, it was not possible for them to exhibit the requisite degree of detachment that was necessary for a Public Prosecutor. The Law Commission further stated that a belief prevails among the Police Officers that their promotion in the Department depended upon the number of convictions they were able to obtain as prosecuting officers. The Law Commission strongly felt the need to conform to the salutary rule that the prosecution of criminal cases should be entrusted with Public Prosecutors who should act fairly and impartially. Accordingly, the Law Commission suggested certain remedial measures for the improvement of the system. It was inter alia recommended as follows:-

1. The Departments of the machinery of Criminal Justice, namely the Investigation Department and the Prosecution Department should be completely separated from each other.
2. The prosecuting agency should be completely detached from the Police Department.
3. In every District a separate Prosecution Department may be constituted and placed in charge of an official called the “Director of Public Prosecutions”. The entire prosecution machinery in the District was to be under his control.
4. In order to ensure that the Director of Public Prosecutions is not regarded as part of the Police Department, he should be given the status of an independent official who is directly responsible to the State Government.

The Parliament effectuated the above remedial measures relating to the separation of the Prosecuting Agency from the Investigating Agency while enacting the present Code of Criminal Procedure, 1973. (Vide paras 6 to 9 of S. B. Shahane v. State of Maharashtra 1995 Supp. (3) SCC 37 = AIR 1995 SC 1628 - Kuldip Singh, N. Venkatachala - JJ.) Consistent with the recommendations of the Law Commission the Parliament made provisions in the present Cr.P.C. for the separation of the Judiciary from the Executive with regard to other areas as well.

C.     The statutory framework

      4. The relevant statutory provisions governing the “Public Prosecutor” for the district, are contained in sub-sections (3) to (7) of Section 24 Cr.P.C. The said Section is extracted hereinbelow:-

“24: Public Prosecutors

(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.

(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) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:

Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.

(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutor or Additional Public Prosecutors for the district.

(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4).

(6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre:

Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4).

Explanation.-- For the purposes of this sub-section,--

(a) "Regular Cadre of Prosecuting Officers" means a Cadre of Prosecuting Officers which includes therein the post of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post;

(b) "Prosecuting Officer" means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.

(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years.

(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor:

Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.

(9) For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.”

5. As already mentioned, we are, in this article, concerned only with the “Public Prosecutors”/“Additional Public Prosecutors” for the district appointed directly by the State Government and covered by category 3  above.

D.     WHO IS A PUBLIC PROSECUTOR ?

    6. Section 2 (u) Cr.P.C. defines a “Public Prosecutor” as follows:-

“(u) “Public Prosecutor” means any person appointed under Section 24, and includes any person acting under the directions of a “Public Prosecutor”.

An Assistant Public Prosecutor (APP) appointed under Section 25 Cr.P.C. is thus not taken in by the definition of “Public Prosecutor” in Section 2 (u) Cr.P.C.

E.   The multi-faceted role of the Public Prosecutor

      7. A perusal of the provisions of the Cr.P.C. and the judicial verdicts will show that the Public Prosecutor has a very important role to play in the Criminal Justice System.

a)  In a trial before a Court of Session Section 225 Cr.P.C. mandates that the prosecution of the case shall be conducted by the Public Prosecutor. (See also paras 10 and 11 of Shiv Kumar v. Hukam Chand (1999) 7 SCC 467 – S. P. Kurdukar, K. T. Thomas – JJ.)

b) Sections 301 and 302 Cr.P.C. recognize the fact that the Public Prosecutor has the exclusive and unquestionable right to conduct the prosecution before the criminal court concerned. (Vide Babu v. State of Kerala 1984 Cri.L.J. 499 = 1984 KLT 164 – K. K. Narendran, Fathima Beevi - JJ; Shiv Kumar v. Hukam Chand (1999) 7 SCC 467 – S. P. Kurdukar, K. T. Thomas – JJ; Achuthan P. v. Sayishkumar N. 2017 KHC 2717 = ILR 2017 (1) Ker. 751 – K. T. Sankararn, Anil K. Narendran.

Even when a private person instructs an Advocate to prosecute a person in any Court, the Public Prosecutor or the Assistant Public Prosecutor has to conduct the prosecution and not the Advocate instructed by the private person. (Vide Section 301 (2) Cr.P.C.) (Vide M. K. Balan v. State 1990 (2) KLJ 453 = 1990 KHC 314 (Kerala) – M. M. Pareed Pillai – J.)

c) There is a duty cast upon the Public Prosecutor to ensure that the rights of an accused person are not infringed and that he gets a fair chance to put forward his defence so as to ensure that a guilty person does not go scot free while an innocent is not punished. (Vide para 82 of Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (Jassica Lal Murder Case) AIR 2010 SC 2352 = (2010) 6 SCC 1 –                     P. Sathasivam, Swatanter Kumar – JJ.)

d) Public Prosecutor is a “minister of justice" who is bound to assist the Judge in the administration of justice. (Vide para 4 of Babu’s case (Supra - 1984 Cri.L.J. 499); noted with approval in paragraph 27 of Centre for Public Interest Litigation v. Union of India (2012) 3 SCC 117 = 2012 Cri.L.J. 1153 – G. S. Singhvi,   A. K. Ganguly - JJ.)

e) He is not a mouthpiece of the investigating agency. (Vide Deepak Aggarwal v. Keshav Kaushik (2013) 5 SCC 277 – 3 Judges - R. M. Lodha, Anil R. Dave, Ranjan Gogoi – JJ.)

f) He is an officer of the Court Deepak Aggarwal. (Supra – (2013) 5 SCC 277).

g) He should scrupulously avoid suppression of material capable of establishing the innocence of the accused. Deepak Aggarwal (Supra – (2013) 5 SCC 277).

h) He has to discharge his functions to serve and protect public interest. Deepak Aggarwal (Supra – (2013) 5 SCC 277).

i) He has a pivotal role under Section 321 Cr.P.C. in the withdrawal from prosecution of an accused person in respect of one or more offences. (Vide Paras 6 and 7 of P. Seethi Haji v. State of Kerala 1986 KLT 1274 – K. T. Thomas – J; Paras 20 to 23 of Sheonandan Paswan v. State of Bihar AIR 1987 SC 877 – 5 Judges – P. N. Bhagwati – CJI, E. S. Venkataramiah, V. Khalid, G. L. Oza, S. Natarajan - JJ; Kumari Shrilekha Vidyarthi v. State of U. P. AIR 1991 SC 537 = 1991 (1) SCC 212 – J. S. Verma,         R. M. Sahai – JJ; Para 9 of Jayendra Saraswati Swamigal @ Subramaniam v. State of Tamil Nadu AIR 2008 SC 2997 = (2008) 10 SCC 180 – 3 Judges - K. G. Balakrishnan – CJI, R. V. Raveendran, Dr. Mukundakam Sharma - JJ.)

j) He is not a representative of any of the parties to the controversy but is only of the Sovereign whose obligation is to govern impartially. (Vide paras 21 and 24 to 27 Centre for Public Interest Litigation (Supra - (2012) 3 SCC 117); Per Justice Venkataramiah in Sheonandan Paswan v. State of Bihar AIR 1987 SC 877 – 5 Judges – P. N. Bhagwati – CJI, E. S. Venkataramiah, V. Khalid, G. L. Oza, S. Natarajan - JJ.)

k) It is the Public Prosecutor who has to present an appeal under Section 378 Cr.P.C. against acquittal. (Vide Para 9 of Jayendra Saraswati Swamigal @ Subramaniam v. State of Tamil Nadu AIR 2008 SC 2997 = (2008) 10 SCC 180 – 3 Judges - K. G. Balakrishnan – CJI, R. V. Raveendran, Dr. Mukundakam Sharma – JJ; Lalu Prasad Yadav v. State of Bihar (2010) 5 SCC 1 – 3 Judges – K. G. Balakrishnan – CJI,   R. M. Lodha, Dr. B. S. Chauhan – JJ.)

l) The Public Prosecutor who does not act fairly but acts more like a defence counsel, is a liability to the fair judicial system. (Vide paras 71, 56 and 43 of Zahira Habibulla H. Sheikh v. State of Gujarat (Best bakery case) AIR 2004 (4) SCC 158 = 2004 Cri.L.J. 2050 – Doraiswami Raju, Arijit Pasayat – JJ.)

m) When the offence of “defamation” as defined under Section 499 IPC and punishable under Section 500 IPC is committed against a “public servant” or any of the dignitaries referred to in Section 199 (2) Cr.P.C., the Public Prosecutor is given the authority to file a “complaint” before the Court of Session concerned and that Court can take cognizance of the offence even without a committal of the case under Section 193 Cr.P.C. in view of Section 199 (2) Cr.P.C.

n) At no stage of the investigation of a case should the investigating officer take the opinion of the Public Prosecutor whose role is inside the Court and not outside. (Vide R. Sarala v. Velu AIR 2000 SC 1731 = (2000) 4 SCC 459 – K. T. Thomas,         D. P. Mohapatra – JJ.) (This author has some reservation about the above view if taken as a general proposition of law instead of being confined to the facts of that particular case.)

NOTE: In State of Gujarat v. Kishanbhai (2014) 5 SCC 108 = 2014 KHC 4014, the Apex Court has issued directions for locating lapses on the part of Public Prosecutors resulting in unmerited acquittals and has also stressed the need for training to PPs.

F.   THE RELEVANCE OF “MERIT” AND “COMPETENCE” OF THE ADVOCATE CHOSEN FOR SELECTION AS THE “PUBLIC PROSECUTOR”

8. The Apex Court does not mince words while insisting on selecting advocates for eventual appointment as Public Prosecutors. The views of the Supreme Court in this regard are the following:-

1. State is the single largest litigant in our country. (vide para 37 of State of Punjab v. Brijeshwar Singh Chahal AIR 2016 SC 1629 = (2016) 6 SCC 1 (T. S. Thakur CJI, Kurian Joseph -JJ).
2. Government is a “trustee” of the power vested in them and it is their primary duty to discharge the trust reposed in them in the best possible manner. (Vide para 38 of Brijeshwar Singh (Supra - AIR 2016 SC 1629).
3. Appointment of Government counsel at the District level and at the High Court level is not just a professional engagement since such appointment has a “public element" attached to it. (Vide para 38 of Brijeshwar Singh (Supra - AIR 2016 SC 1629).
4. State cannot, while discharging their public duty of selecting the State counsel, disregard the guarantee under Article 14 of the Constitution of India against non-arbitrariness or cannot ignore their duty of protecting “public interest” by picking up the best among them available. (vide para 37 of Brijeshwar Singh (Supra - AIR 2016 SC 1629).
5. Appointment of Government counsel must only be in “public interest”, unaffected by any political or other extraneous considerations. (Vide para 38 of Brijeshwar Singh (Supra - AIR 2016 SC 1629).
6. Government are under an obligation to engage the most competent lawyers to represent them in the Courts and it is only when professionally competent lawyers are appointed that “public interest” can be protected in Courts. (vide para 38 of Brijeshwar Singh (Supra - AIR 2016 SC 1629).
7. No lawyer has a right to be appointed as a Public Prosecutor at any level nor is there any vested right in him to claim any extension in the term for which he was initially appointed. (vide para 38 of Brijeshwar Singh (Supra - AIR 2016 SC 1629).

Thus, the State has an obligation to select “meritorious” and “professionally competent” lawyers as Public Prosecutors and this obligation can be discharged by the State by the District Collector making an “effective consultation” with the Sessions Judge concerned and extracting from the Sessions Judge a list of Advocates having merit and professional acumen to be included in the panel which will eventually be forwarded to the State Government for the appointment of the Public Prosecutor.

G. THE PROCESS OF APPOINTMENT OF THE “DISTRICT PUBLIC PROSECUTOR”, AS JUDICIALLY SETTLED.

        9. Even at the risk of repetition, it would be necessary to advert to Section 24 (4) Cr.P.C. which contains the procedural pre-condition for appointing a P.P. or Addl. PP. Section 24 (4) Cr.P.C. reads as follows:-

G.1   Names of the “meritorious” and “professionally competent” lawyers to be suggested by the Sessions Judge and not by the District Magistrate (District Collector)

      10. The preponderance of judicial opinion is to the effect that the process of “consultation” in Section 24 (4) Cr.P.C. is not the furnishing of a “list” of Advocates by the District Magistrate (District Collector) for the concurrence of the Sessions Judge concerned. It is for the Sessions Judge to recommend competent lawyers for inclusion in the panel to be eventually prepared by the District Magistrate for onward transmission to the Government for appointment of the Public Prosecutor or Additional Public Prosecutor, as the case may be.

In paragraph 8 of Abdul Khader v. Government of Kerala 1992 (2) KLT 948 = 1993 Cri.L.J. 1249 – K. T. Thomas – J, it was observed as follows:-

“A District Magistrate is obliged to consult the Sessions Judge because it is the Sessions Judge who has better opportunities to assess the merits and capabilities of an advocate. His views on the person, therefore, acquires considerable weight to help the District Magistrate in preparing the panel. A District Magistrate is not supposed to delete a person recommended by the Sessions Judge from the panel, nor could the District Magistrate include a name which has not been recommended by the Sessions Judge.” (Emphasis supplied by me)

In paragraph 13 of Harpal Singh Chauhan v. State of U. P. (1993) 3 SCC 552 = AIR 1993 SC 2436 – Kuldip Singh, N. P. Singh – JJ, it was observed as follows:-

“The quality of the counsel’s work has to be judged and assessed by the District and Sessions Judge.”

Again in para 14 of Harpal Singh Chauhan it was observed as follows:-

“When sub-section (4) and sub-section (5) of S.24 of the Code, speak about preparation of a panel, out of which appointments against the posts of Prosecutor or Additional Public Prosecutor have to be made, then the Sessions Judge and the District Magistrate are required to consult and discuss the names of the persons fit to be included in the panel and to include such names in the panel. The expressions "panel of names of persons", do not mean that some names are to be suggested by the Sessions Judge and some comments are to be made, in respect of those names by the District Magistrate, without proper consultation and discussion over such names. The statutory mandate ought to have been complied with by the District Magistrate and the Sessions Judge in its true spirit. In the facts of the present case, no such panel appears to have been prepared by the District Magistrate in terms of sub-section (4) of S.24.”

H.   The proper “PROCEDURE” for implementing Section 24 (4) Cr.P.C., and its misuse.

      11. The mechanics of Section 24 (4) Cr.P.C. when put into practice, shall be as follows:-

(There is no need for the district level officers to be egocentric)

I have had occasion to come across letters addressed to the District and Sessions Judge not by the District Collector personally but by somebody on behalf of the District Collector. I have also come across replies to such letters sent by the Sheristadar of the District and Sessions Court informing the sender of the letter that if the District Collector is desirous of addressing the District and Sessions Judge, he should personally do so and not through any subordinate staff. This is nothing but an ego clash between two District functionaries and should be avoided I had come to know that there were confrontations between the District Collectors and Session Judges in certain Districts. The District Collectors are actually performing a statutory duty which has an element of confidentiality. Hence, they should directly address the District and Sessions Judge by means of D.O. Letters. The District and Sessions Judge also should directly address the District Collector personally instead of doing so through his or her Sheristadar. Every endeavour should be made to ensure that the names of Advocates to be furnished by the Sessions Judge, do not leak out.

(My Kattappana experience)

Sessions Judge not to call for applications from Advocates

“In our view, the provisions of Section 24 do not prescribe that the District & Sessions Judge should notify to the Bar Association and receive bio-data or applications from Advocates who are desirous of being included in the panel for the appointment of Public Prosecutor. No doubt, in practice it appears to us that several District & Sessions Judges are issuing notifications calling upon advocates with particular standing to submit their bio-data for being considered for inclusion in the panel of names for appointment as Public Prosecutors. In our view, such practice has to be deprecated not only because it is not sanctioned by Section 24 but also because for appointment of a professional person for rendering service to the State, no advocate can, under the rules made under Section 49 (1) (c) of the Advocates Act, 1961 by the Bar Council of India, apply for appointment on solicit work. Rule 36 of the Rules framed by the Bar Council clearly states that an advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications etc.”………………………………… “In that context, it would not be proper for the District & Sessions Judges to issue notification inviting bio-data from the Advocates for consideration of being included in the panel for the apointment of Public Prosecutor. That would indirectly amount to asking the Advocates to solicit work from the Suite. The proper procedure in our opinion, would be for the District & Sessions Judges to obtain bio-data from such of the advocates whom they consider to be fit for appointment as public prosecutor and send a panel of eligible candidates on that basis rather than call for bio-datas from all advocates having a particular standing.” (Vide V. Kishore Kumar v. The State of A. P. 1991 (2) KLT 589 = 1992 (2) SCT 139 (A.P.) = 1992 (1) SLR 338 = MANU/ AP/ 0323/ 1991 – M. Jagannadha Rao, M. Ranga Reddy – JJ.)

What happens at the Government level in Kerala

“Proposals for the appointment of Law Officers not below the rank of Public Prosecutors.”

I.   The system of the Party in power selecting its own favorites as the “Law Officers”, should stop.

J.   “Conditions of Service” of the Public Prosecutor.

• Shrilekha Vidyarthi v. State of U. P. AIR 1991 SC 537 = (1991) 1 SCC 212 – J. S. Verma, R. M. Sahai – JJ.
• Harpal Singh Chauhan v. State of U. P. AIR 1993 SC 2436 = (1993) 3 SCC 552 - Kuldip Singh, N. P. Singh - JJ.
• Hitendra Vishnu Thakur v. State of Maharashtra AIR 1994 SC 2623 = (1994) 4 SCC 602 – Dr. A. S. Anand, Faizan Uddin – JJ.
• State of U. P. v. Ramesh Chandra Sharma AIR 1996 SC 864 = (1995) 6 SCC 527 - J. S. Verma, K. Venkataswami - JJ.
• State of U. P. v. Netra Pal Singh AIR 2004 SC 3513 = (2004) 4 SCC 748 – 3 Judes – V. N. Khare – CJI, S. B. Sinha, S. H. Kapadia – JJ.
• State of U. P. v. Johri Mal AIR 2004 SC 3800 = (2004) 4 SCC 714 – 3 Judges – V. N. Khare – CJI, Brijesh Kumar, S. B. Sinha – JJ.
• Rajiv Ranjan Singh “Lalan” (VIII) v. Union of India (2006) 6 SCC 613 – 3 Judges – K. G. Balakrishnan, Dr. Ar. Lakshmanan, S. H. Kapadia – JJ.
• M. C. Mehta (Taj Corridor Scam) v. Union of India AIR 2007 SC 1087 = (2007) 1 SCC 110 – 3 Judges – S. B. Sinha, S. H. Kapadia, D. K. Jain – JJ.
• Amarinder Singh v. Parkash Singh Badal (2009) 6 SCC 260 – 3 Judges – K. G. Balakrishnan – CJI, P. Sathasivam, J. M. Panchal – JJ.
• State of U. P. v. Rajesh Kumar Keshari AIR 2011 SC 1705 = (2011) 5 SCC 341 – J. M. Panchal, H. L. Gokhale – JJ.
• Deepak Aggarwal v. Keshav Kaushik (2013) 5 SCC 277 - 3 Judges – R. M. Lodha, Anil R. Dave, Renjan Gogoi – JJ.
• State of U. P. v. Ajay Kumar Sharma (2014) 3 SCC 568 – G. S. Singhvi, C. Nagappan – JJ
• R. K. Anand v. Delhi High Court (2009) 8 SCC 106 – 3 Judges – B. N. Agrawal, G. S. Singhvi, Aftab Alam – JJ.)

In the State of Kerala the Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 (“the KGLO Rules” for short), were framed as per G.O.(P) No: 11/78/Law dated 25-01-1978 and published as S.R.O. No: 568/78 in the Kerala Gazette No: 25 dated 20-06-1978, fixing, inter alia, the “conditions of service” and the manner of conducting State cases. The expression “Government Law Officers” under Rule 2 (b) is an expansive one to mean a person appointed by the Government to conduct Government cases in any Court or tribunal in the State or in the Supreme Court and includes –

(i) Laison Officer in the High Court.

(ii) Pleader, appointed to do Government work in a Munsiff’s Court.

(iii) Special Government Pleader.

(iv) Special Public Prosecutor.

(v) Government Pleader for arbitration proceedings.

(vi) Standing Counsel for the State in the Supreme Court.

(vii) Government Pleader appointed under Rule II (A) (i.e. Government Law Officers in the High Court.)

K.   The legal status of the “KGLO Rules” and the role assigned to the “Law Officers of the State” under the said Rules

      14. The “KGLO Rules” have been framed in purported exercise of the powers conferred by sub-section (1) of Section 2 of the Kerala Public Services Act, 1968, forgetting the fact that “Public Prosecutors” are not employed in any “public service” or “civil post” under the State and consequently Article 311 of the Constitution of India would not apply to their service. While Assistant Public Prosecutors appointed by the State Government under Section 25 Cr.P.C. are employees of the State and holding “civil posts” under the State and are governed by the service rules framed by the State Government, the District Public Prosecutors retain the character of “legal practitioners” for all intents and purposes and are not governed by the proviso to Article 309 of the Constitution of India. (Vide para 39 of State of U. P. v. Johri Mal (2004) 4 SCC 714 = AIR 2004 SC 3800 – 3 Judges – V. N. Khare – CJI, Brijesh Kumar, S. B. Sinha – JJ.)

  In para 11 of Aboobacker v. M. Ratna Singh 1992 (1) KLT 41 – Sankaran Nair – J, observed as follows:-

“Appointment of Public Prosecutor under the Criminal Procedure Code is not an appointment to a "post" in a "service". Therefore, the Kerala Public Services Act or the Rules framed thereunder can regulate, if at all, only "conditions of service".”

15. With this background, let us examine the KGLO Rules, so far as they are applicable to Public Prosecutors. Rules 7, 8, 9 and 14 to 17 of the “KGLO Rules” are relevant in the context of appointment of District Public Prosecutors. The said Rules, as were in force as on 30-09-2002, i.e, the date of the verdict in Omanakuttan Nair’s case (Infra 2003 (1) KLT 226) are extracted hereinbelow:-

“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;

(ii) 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; (Emphasis supplied by the author)

(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.

9. Term of appointment of Government Law Officers in District Court, Additional District Court and Sub-Court Centers – The term of appointment of a person appointed as District Government Pleader and Public Prosecutor or Additional Government Pleader and Additional Public Prosecutor, where the two posts are combined, or of a person appointed as District Government Pleader and Public Prosecutor or Additional Government Pleader and Additional Public Prosecutor, where the two posts are separate, shall be for a period of three years, The Government may re-appoint any such person for further periods not exceeding three years at a time.

Provided that the services of any such person shall automatically terminate on his attaining the age of sixty years.

14. Common qualifications regarding age – No person, who has completed the age of sixty years shall be appointed as a Government Law Officer other than Public Prosecutor of the High Court, a Special Government Pleader, Special Public Prosecutor or a Pleader to do Government work.

15. Common disqualifications – (1) A person who is a Member of the Parliament or the Legislature of a State, a Municipal Corporation, a Municipal Council, a Panchayat or any other local authority shall not, as long as he holds that office, be eligible for appointment as a Government Law Officer.

(2) A Government Law Officer, whose term of appointment as such was terminated on the ground that during his term of appointment he was careless or irresponsible in handling any Government case or that he did not conduct any Government case properly and efficiently, shall not be eligible for future appointment as a Government Law Officer.

(3) An Ex-Government Law Officer, who is found careless or irresponsible, in handling any Government case after the expiry of his term of appointment as such, in any previous occasion, shall not be eligible for future appointment as Government Law Officer.

16. Number of persons to be included in panels – A panel for appointing Government Law Officer in the High Court or the Supreme Court shall consist of names of at least thrice the number of such Government Law Officers to be appointed. A panel for appointing Government Law Officers in any District Court, Additional District Court or Sub-Court Centre shall consist of names of at least three times the number of such Government Law Officers to be appointed. The Government may, if considered necessary, in any case, require additional names of qualified persons, if any, in accordance with the principles mentioned in sub-rule (2) of Rule 5 or sub-rule (2) of Rule 8 or sub-rule (1) of Rule 12 or sub-rule (1) Rule 13 as the case may be, to be furnished.

17. Termination of appointment – Notwithstanding anything contained in this rules, the Government may terminate the appointment of any Government Law Officer other than a Special Government Pleader or Special Public Prosecutor at any time before the expiry of the term office appointment without assigning any reasons therefor.

Provided that before such termination he shall be given one month’s notice or be paid, as the case may be, one month’s salary in lieu of such notice. ”

(Rule 8 (2) of the “KGLO Rules” was subsequently amended with effect from 15-03-2002 and I will have occasion to refer to the said amendment in due course.

L.   The amendment of the year 2002 to the “KGLO Rules”, 1978

“(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, 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:

Provided that in preparing the list it shall not be necessary to advertise the vacancies or invite applications for the appointment.

(b) After the expiry of the time limit mentioned in Cl. (a) for 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.

(c) In preparing the panel, the District Collector shall not include the name of any advocate whose name was not included in the list prepared by him under Cl. (a) or whose name was specifically disapproved by the District and Sessions Judge on specific grounds.

(d) The character and antecedents of all persons included in the panel shall be got verified through the concerned Superintendent of Police.

Provided that if the members of the Scheduled Caste or Scheduled Tribe Communities are qualified to be appointed as Law Officer, the panel shall contain the name of one member from such community.”

      18. Left to himself, no District Collector is aware of, or interested in the capabilities of any lawyer practicing in the various Courts in his district. If he were to prepare a list of Advocates, the names for inclusion in the list will naturally be furnished by his political masters, instead of from sources like the judicial officers there. The purpose of introducing the amendment to Rule 8 of the “KGLO Rules” was to enable the District Collector to prepare a list of Advocates without reference to the Sessions Judge. Based on the above amendment, District Collectors started giving list of Advocates to the Sessions Judges concerned for being treated as the panel to be forwarded to the Government for appointment.

M. Rule 8 (2) and its Amendment Successfully Challenged

19. Rule 8 (2) (ii) as originally framed and the 2002 amendment to the same, were challenged before the High Court of Kerala. A Division Bench of the High Court as per judgment dated 30-09-2002 in Omanakuttan Nair v. State of Kerala 2003 (1) KLT 226 = 2003 KHC 29 – B. N. Srikrishna – CJ, C. N. Ramachandran Nair – J, inter alia, held as follows:-

a) Rule 8 (2) (ii) of the “KGLO Rules” is in direct conflict with the scheme under Section 24 Cr.P.C. (Vide para 12)

b) Rule 8(2)(ii) (i.e. the amended provision) is an objectionable provision directly contrary to the mandate of S.24(4) of the Code as interpreted by the Supreme Court in Chauhan’s case (Supra – AIR 1993 SC 2436). As the Supreme Court pointed out, the effective consultation contemplated under sub-s. (4) of S.24 of the Code of Criminal Procedure requires the meeting of minds of both the functionaries at the time of preparation of panel. This meeting of mind is not achieved if the District Collector forwards a list which is closed and gives the option to the District Judge only of adversely commenting upon the list without the option of adding to the names in the list. Hence to that extent, the 2002 Rules are also contrary to the provisions of S.24 of the Code of Criminal Procedure as interpreted by the Supreme Court in Chauhans case (supra) and must be held to be bad. (Vide para 13) (Emphasis made by the author)

c) “The 1978 Rules and 2002 Rules, in so far as they deviate from the procedure prescribed for appointment of Public Prosecutors under S.24 of the Code of Criminal Procedure as interpreted by the Supreme Court in Chauhan’s case (supra) are bad. To that extent, therefore, they are declared to be invalid and unenforceable. The procedure prescribed under S.24(4) for appointment of Public Prosecutors is required to be followed in the manner as interpreted and envisaged by the Supreme Court in Chauhan’s case (supra)” (Vide para 18)

N.   Fraud on the Judiciary and the Legislature by the Executive

O. After 30-09-2002, no District Collector can send any list of Advocates to the Sessions Judge.

21. It can be seen that the vested interests behind the above “executive hush up” have succeeded in keeping the Judges of the High Court of Kerala also blissfully ignorant of the fate of Omanakuttan Nair’s verdict, as is evident in some of the judicial verdicts rendered after 30-09-2002. There are a few verdicts of the High Court of Kerala overlooking the binding verdict of the Division Bench in Omanakuttan Nair.

The learned Judges were either kept in the dark or were misinformed about the fate of Omanakuttan Nair in the Supreme Court of India.

P.     C O N C L U S I O N

      22. There cannot, therefore, be any compromise on the “merit”, “integrity” and “professional competence” of the lawyers selected for appointment as Public Prosecutors as emphasized in State of Punjab v. Brijeshwar Singh Chahal AIR 2016 SC 1629 = (2016) 6 SCC 1 - T. S. Thakur CJI, Kurian Joseph – JJ. Consequently, the grossly illegal process now in vogue in the State of Kerala pursuant to the amended Rule 8 (2) of the KGLO Rules, cannot be allowed to be followed by the State Government and their servants including the District Collectors. The old system of the Sessions Judges finding out meritorious and competent Lawyers and preparing a list to be supplied to the District Magistrates (District Collectors) for inclusion in the panel to be eventually forwarded to the Government for appointment, should be restored at the earliest and the illegal appointments already made should be reviewed by an august body and the persons responsible for the lapses should be taken to task appropriately.

Author Is Former Judge Of Kerala High Court

Views Are Personal