Kerala High Court Directs Principal District Magistrates To File Report On Manner Of Appointment Of Public Prosecutors

In a suo motu writ petition initiated to investigate the matter of appointment of Public Prosecutors in the State, the Kerala High Court has directed all Principal District Judges to file a report regarding the same.

This comes after a Division Bench comprising Justice K. Vinod Chandran and Justice C. Jayachandran noted the abject incompetence displayed by the prosecution while dealing with appeals from orders of conviction under Section 302 of IPC and the POCSO Act. 

The Bench had accordingly directed the Registry to initiate suo motu writ petition in the matter. As such, the Deputy Registrar has released an official memorandum to this effect. 

The Court observed that the appointment of Public Prosecutors is the prerogative of the Government and that there is no absolute freedom in so far as the same should be in consultation with the Sessions Judge as required under the CrPC.

"The nature of the consultation is explicit from the decisions of the Supreme Court and this Court (Kerala High Court). The District Magistrate cannot himself cherry-pick the advocates to be appointed as Prosecutors at the instance of and based on political affiliations," the order reads.

In practice, when applications are called, the Sessions Judges prune it on the basis of the competency as displayed in the courts, invariably the District Magistrates seek the entire applications to be sent to them for preparation of panel who often does not have a clue as to the competence of a particular Advocate.

They cannot cherry-pick the advocates to be appointed as Prosecutors based on political affiliations as the Code requires a consultation with the Sessions Judge. 

As per the order passed in November, all Principal District Judges have been directed to send a report forthwith regarding the consultation made with them in the selection of Public Prosecutors and also the practices followed in the appointment of Public Prosecutors and Special Prosecutors for the conduct of Criminal and POCSO cases in various courts in the District.

The report has been directed to be mailed to the High Court by 6th December. 

This observation came in an appeal decided earlier this year, where the Court noted that although the father of the victim was examined by the prosecution, it did not make any attempt to establish the victim's age through him.

"Strangely enough, the prosecution did not elicit the date of birth from the father. This lapse is one we encounter daily and we have today raised a suo moto case on this aspect of the indifference and incompetence displayed by the Prosecutors resulting in the offenders going scot-free."

The Court was forced to hold that the certified copy of the extract of the admission register falls short of proving the date of birth of the victim since it is not one issued by the school first attended.

Since under the POCSO Act, the age of the victim was not proved, the accused was acquitted of the charges under the POCSO Act. For the same reason, conviction under Section 376(2) IPC was also set aside by the Division Bench.