High Level Competency Expected From Public Prosecutors, 3 Yrs Practice Experience For Assistant Prosecutor Appointment Not Arbitrary: Kerala HC

The Kerala High Court has held that government's decision to stipulate three years practice in criminal courts as an essential condition for appointment as Assistant Public Prosecutors cannot be said to be arbitrary.

Justice N. Nagaresh dismissed a plea challenging a notification issued by the Kerala Public Service Commission ('Kerala PSC') in this regard. The bench observed that Assistant Public Prosecutors are expected to prosecute criminal cases and aid the delivery of criminal justice in the State, and that in any case, it is for the appointing authority to decide and fix qualifications of candidates for appointment. 

"Public Prosecutors and Assistant Public Prosecutors serve as State’s representatives tasked with upholding the interest of the State and of the general public. They have to carry out prosecutions on behalf of the State effectively. They have a duty to ensure that false accusations against any accused do not result in unfair punishment. It is their prime duty to ensure that justice is served. They have to help the Court to identify relevant facts. They are Officers of the Court who assist in the administration of justice. They must be unbiased, just and truthful. A high level of competency is expected from Public Prosecutors and Assistant Public Prosecutors. The Government therefore will be justified in insisting that they should have a minimum Court experience in conducting cases," the Court observed. 

The petitioners herein, who are practicing lawyers enrolled in the Bar Council of Kerala, challenged the notice issued by the Kerala PSC for recruitment to the post of Assistant Public Prosecutor Grade-II, stipulating not less than three years practice in Criminal Courts as on January 01, 2022, apart from holding degree in law conferred or recognized by Universities in Kerala, for the said post. 

As per the notification and the Special Rules for the post of Director of Prosecution (Administration), Deputy Director of Prosecution and Senior Assistant Public Prosecutor, Assistant Public Prosecutor (Senior Grade), Assistant Public Prosecutor Grade-I, and Assistant Pubic Prosecutor Grade-II, 2018, issued by the State Government, three years Bar practice in Criminal Courts is an essential condition for appointment as Assistant Public Prosecutors.

The petitioners who had an active practice of two years and seven months in criminal courts, averred that the requirement of three years' experience was discriminatory and violative of Articles 14 and 16 of the Constitution, particularly since no Bar experience was required for appointment as Presiding Officers of the Courts where Assistant Public Prosecutor prosecute cases.

It was added that the Union Public Service Commission, for recruitment to the post of Assistant Public Prosecutor, Central Bureau of Investigation (CBI), also does not prescribe any Bar practice as eligibility condition, and a different yardstick could not thus be adopted in the case at hand. 

Additionally, Advocates B. Renjithkumar and Clara Sherin Francis submitted that while the Cr.P.C. mandates 7 years Bar practice for appointment as Public Prosecutors, no such minimum qualification has been prescribed for the post of Assistant Public Prosecutors, and hence, the State was not justified in stipulating the minimum period of practice for the post. 

Government Pleader Premchand R. Nair argued that the State has a right to prescribe qualifications for appointment to the post of Assistant Public Prosecutor. It was submitted that Assistant Public Prosecutors are expected to prosecute criminal cases in the Magistrate Courts, and the stipulation of minimum of three years' practice at the Bar could not be said to be arbitrary. 

The Court observed that while it was true that Section 24 of Cr.P.C., which deals with the appointment of Public Prosecutors, prescribe a 7 years minimum practice for appointment as Public Prosecutors, that by itself would not indicate that the Assistant Public Prosecutors to be appointed as per Section 25 need not have any Bar practice at all.

The Court was of the considered opinion that it was for the appointing authority to decide and fix qualifications of candidates for appointment, and that in this case, it was the State Government that was the appointing authority. 

The Court observed that since Assistant Public Prosecutors are expected to prosecute criminal cases and aid the delivery of criminal justice in the State, prescription of three years active practice in Criminal Courts could not be said to be arbitrary. 

The Court also went on to add that Magistrates are deputed to discharge their duties after rigorous and intensive training, and consequently, the argument raised by the petitioners on the ground of qualification of Presiding Officers of the Magistrate Courts could not stand. The Court stated that there was no such training being given to Assistant Public Prosecutors before their appointment.

It thus dismissed the plea on these grounds. 

Standing Counsel for Kerala PSC P.C. Sasidharan also appeared in the case. 

Case Title: Rahib K.Y. & Anr. v. State of Kerala & Anr. 

Citation: 2023 LiveLaw (Ker) 385

Case Number: WP(C) NO. 3572 OF 2023

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