Kerala HC Directs Re-Assessment Of Merits Of 3 Special Prosecutors Appointed In POCSO Courts [Read Judgment]

The High Court of Kerala has directed the re-assessment of merits of three Special Public Prosecutors(SPP) appointed in the Special Courts under the Protection of Children from Sexual Offences Act(POCSO Act) 2012 in the Districts of Kollam, Wayanad and Malappuram.

The Court found that all vital information regarding those Prosecutors were not furnished by the District Collectors to the District Judges, before obtaining the latter's approval. The Court rejected the contention of the State Government that the District Judge is not required to check character and antecedents of the persons in the panel as such verification is carried out by the Superintendent of Police after the panel is approved by the District Judge. The further argument by State was that unless a name was specifically disapproved by the District Judge, there was no bar in appointing that person. The Court said that accepting the contentions would render the consultation process with District Judge for appointment of Prosecutors "otiose".

"...we have no doubt in our mind that the consultation with the District Judge, as required under the provisions of the Code of Criminal Procedure as well as the KGLO Rules, can be effective only if the said Judge is given all the relevant inputs, including that of character and antecedents by the concerned District Collector. This is because, when the District Judge arrives at a conclusion regarding the eligibility of a candidate, the factum of negative inputs, if any, regarding character and antecedents would certainly be one of the factors that would influence his objective assessment", wrote Justice Devan Ramachandran in the judgment of the Division Bench, which was presided by Justice P R Ramachandra Menon.

The reassessment is ordered with regard to appointments of G Subothran, Sindhu M G and Aisha Jamal who were appointed in the districts of Kollam, Wayanad and Malappuram respectively.

In case of Subothran the District Judge had recorded that he did not have opportunity to assess his merit and had recorded two others to be 'good'. Sindhu MG was found to have a criminal case  registered in relation to participation in a protest march, which information was not supplied to the District Judge while finalising the panel. Aisha Jamal, who possessed experience slightly above the minimum requirement of seven years practise, was selected overlooking candidates who were far more experienced.

The Court directed the the concerned District Judges to make a re-assessment of their merits on the basis of all relevant inputs,including the report of character and antecedents and then to decide whether they would be entitled to continue any further.

The bench was considering appeals filed by aspirants to the post of SPP, who challenged the appointments made by the State Government in June 2017 in thirteen districts in Kerala. Their contention was that appointment of SPP under POCSO Act cannot be done by the State Government unless rules prescribing mode of appointment were laid down by Central Government under Section 45 of the Act. This contention did not impress the Court. The Court also rejected the argument that SPP in Special Courts under POCSO Act was a 'specialised' prosecutor, requiring different abilities from a Prosecutor appointed in ordinary criminal courts.

"...we are of the view that it becomes safe for this Court to conclude that the duties and responsibilities assigned to a Special Public Prosecutor would be essentially and fundamentally analogous to those which are vested and entrusted to a Pubic Prosecutor appointed under the provisions of Section 24 of the Cr.P.C", the Court held.

Therefore, the Court held nothing wrong in the Government following the procedure under Section 24 of the CrPC and Kerala Government Law Officers(Appointment and Conditions of Services) Rules for appointing SPPs in POCSO Special Courts.

During the course of proceedings, the Court had called for files relating to appointments of SPPs in thirteen districts. It was during such enquiry that the Court expressed prima facie doubts regarding appointments of the above said persons. Though the appointment of Pushkaran M N in Kottayam also came under scanner initially, the Court expressed satisfaction of his claims of merits expressed in his affidavit.

But for the order directing re-assessment of three SPPs, all other prayers sought in the appeals were rejected.

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