[Walayar Rape-Death Case] Govt Should Consider Request Of Victim Or Victim's Representatives While Appointing Public Prosecutor: Kerala High Court

Justice A. Badharudeen observed that the absolute power to appoint a Public Prosecutor or Special Public Prosecutor is with the Government but that do not mean that it should completely negate the request of the victim or representatives of the victim while making such appointments.

“Therefore, a victim or somebody on behalf of victim can request for appointment of a lawyer of his/her choice for appointment of Public Prosecutor or Special Public Prosecutor, though, indubitably, appointment of Public Prosecutor or Special Public Prosecutor in the absolute power of the appropriate Government. But that does not mean that while exercising the power to appoint Public Prosecutor or Special Public Prosecutor the appropriate Government should negate the request of the victim or somebody on behalf of the victim. To put it otherwise, appropriate Government has the power to consider the representation and appoint Public Prosecutor or Special Public Prosecutor, as requested by the victim or somebody on behalf of the victim in an appropriate case, taking note of the grievance of the party, who makes the request.”

In 2019, the Special POCSO Court at Palakkad acquitted four persons (V Madhu, M Madhu, Shibu and Pradeep Kumar) who were accused of rape and murder of two minor sisters, aged 13 and 9 of Dalit Community in Walayar, Palakkad. Both the victims belonged to the Scheduled Caste Community. The acquittal verdict had caused much outrage in Kerala, with serious criticism of miscarriage of justice during the trial. (Detailed reports about the trial court judgment may be read here, here and here).

In 2021, the Kerala High Court had set aside the order of the Trial Court acquitting the accused and ordered for re-trial. The High Court also gave liberty to the prosecution to seek further investigation in the case.

The CBI was entrusted with the investigation and filed a final report arraying four persons as accused. The CBI is continuing its investigation to find out whether more persons were involved in the crime.

The criminal writ petition was filed by the mother of the victims seeking for an appointment of a Public Prosecutor of their choice. The Counsel for the victim's mother submitted representations before the Government seeking to appoint Advocate Rajesh M Menon as the Special Public Prosecutor. The petitioner also seeks to set aside the order of the Central Government appointing Advocate Arun Antony and Advocate Sunil Varma as Public Prosecutor.

The Counsel for CBI, Special Prosecutor Dr K P Satheesan submitted that the victim or the representatives of the victim have no right to seek appointment of a Special Public Prosecutor since such powers were vested with the Government.

It was argued that as per Section 24 (8) of CrPC, the Central Government or State Government may appoint an advocate with no less than 10 years of experience as a Special Public Prosecutor. It was further submitted that the victim could engage a choice of their advocate to assist the Public Prosecutor.

In the facts of the case, the State Government and CBI has recommended Advocate Pius Mathew to be appointed as Special Public Prosecutor. It was submitted that the appointment of Advocate Pius Mathew as Special Public Prosecutor is pending before the Central Government.

The Court observed that all accused persons were acquitted in the first round of litigation due to defective investigation. The Court thus stated that the insistence of the mother in appointing a Special Public Prosecutor of their choice is with bonafide intentions to ensure an effective investigation.

The Court stated that it cannot be said that the victim or representatives of the victim cannot make a request to the Government for appointing a Public Prosecutor or Special Public Prosecutor of their choice. The Court added, “Further the Government can consider the genesis of the prosecution case and its aftermath to ensure fair investigation as well as meaningful prosecution. The ordeals of the victim or somebody on behalf of the victim may also to be considered.”

As such the Court stated that the request of the mother should be given predominance by the Government since she failed to get justice for her children in the first round of litigations.

Accordingly, the Court disposed of the writ petition and ordered thus:

“Thus, while holding that, appointment of Public Prosecutor or Special Public Prosecutor is the absolute power of the appropriate Government, it is ordered that the respondents concerned may consider prayers in Exts.P2, P3, P4 and P6 representations, in consideration of the plight of the petitioner in the facts of the given case, so as to appoint Adv.Rajesh M.Menon as the Special Public Prosecutor in the present case.”

Counsel for Petitioner: Advocate P V Jeevesh

Counsel for Respondents: Standing Counsel for CBI Sreelal N Warriar, ADGP Grashious Kuriakose, Senior Public Prosecutor Renjith George

Citation: 2024 LiveLaw (Ker) 357

Case Title: XXX v Union Of India

Case Number: WP CRL 203/2023

Click here to read/download Judgment