'Non-Availability Of Public Prosecutors May Result In Violation Of Accused' Right To Speedy Trial': Karnataka High Court Directs State To Fill Vacancies

A division bench of Chief Justice Abhay Oka and Justice Suraj Govindaraj noted,

"Non-availability of public prosecutors has a direct nexus with the administration of the criminal justice system in the state. Apart from the fact that delay in conducting trial defeats the fundamental rights of accused, lack of availability of adequate number of public prosecutors is one of the several causes for increase in pendency of case."

The state government had filed a chart before the court showing the number of vacancies of prosecutors in the state. It was informed that out of 189 regular posts of Public Prosecutors, 168 are filled and 21 posts are vacant. Further, 28 posts of Public Prosecutors are on deputation; 25 posts are filled in. Regarding the post of Senior Assistant Public Prosecutors, of the 123 posts only 65 were filled in. Deputation posts of Senior Assistant Public Prosecutors are 28, out of which only 5 posts are filled. Regarding 401 Assistant Public Prosecutors' posts, only 151 posts regularly filled in and 242 other posts filled on contract basis. Process for direct recruitment has been initiated only in respect of 205 vacant posts.

In this backdrop, the court noted, "This suo-motu petition was initiated in September 2019, when it was found that a large number of posts of public prosecutors were vacant in the state. Notwithstanding several orders passed during the last 21 months, still a large number of posts continue to be vacant."

Further it said, "As the majority of post of Assistant Public Prosecutors are vacant and as cadre of Assistant Public Prosecutors is a feeder cadre for Senior Assistant public prosecutors, large number of post of Assistant Public Prosecutors are vacant, the post of Senior Assistant public prosecutors are vacant, the vacant post of Public Prosecutors also cannot be filled in."

It opined,

"Therefore, notwithstanding orders passed by this court from time to time from September 27, 2019, till date a large number of posts of various categories of public prosecutors remain vacant. Non-availability of sufficient public prosecutors may result in violation of the Rights of accused guaranteed under Article 21, to have a speedy trial."

The attention of the court was also drawn to an affidavit filed by the Under Secretary of the State Home Department in which it was mentioned that concurrence of the Finance Department has been sought to create additional sanctioned posts of 16 Public Prosecutors, 16 Senior Assistant Public Prosecutors and 184 Assistant Public Prosecutors. Assurance was given that these posts will be filled within 12 months.

The court said "The period of 12 months expired on Oct 29, 2020. We direct the state government to create the said additional post as mentioned in the affidavit if not created until today within a maximum of one month from today. Process of recruitment shall be immediately started."

The government also informed the court that the posts of Senior Assistant Public Prosecutors cannot be filled on contract basis, in view of an interim order passed by the Karnataka Administrative Tribunal.

The court on going through the order passed by the tribunal said "There is no restraint on appointing Senior Assistant public prosecutors on contract basis. However, the state after going through the record will ascertain whether any prohibitory order is operating. If no such prohibitory order is operating, it is obvious that subject to the outcome of pending proceedings, the state can appoint Senior Assistant Public Prosecutors on contract basis. As regards assistant public prosecutor process has to be for filling in all 254 vacancies. The process which is initiated only against 205 vacancies. We therefore, direct the state to initiate a process for remaining vacancies as well."

The state government has been directed to file a compliance report by August 24 and the matter will be next heard on August 27.