Abject Incompetence Of Prosecution: Kerala High Court Initiates Suo Motu Case To Probe Appointment Of Prosecutors

The Kerala High Court in its judgment delivered on Thursday in a criminal appeal case observed that it has raised a suo motu case regarding the ineptitude of the Prosecutors in several cases, resulting in the offenders walking away scot-free. 

A Division Bench comprising Justice K.Vinod Chandran and Justice Ziyad Rahman was dealing with an appeal filed by a priest challenging the sentence awarded by a special court for raping a schoolgirl.

The Court upon being appalled by the abject incompetence displayed by the prosecution issued an order in the suo motu matter to address the issue of appointment of public prosecutors.  

The Court noted that while the appointment of public prosecutors is the prerogative of the government, the same is subject to consultation with the concerned Sessions Judge and should be confined to a panel prepared by the District Magistrate.

"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."

However, the Bench noted that the District Magistrates often don't have much information regarding the competence of the advocates who apply for the post.

"In practice, we are informed that, when applications are called and the Sessions Judge prunes 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 the panel. We perfectly understand that the preparation of the panel is the duty enjoined upon the District Magistrate, who often does not have any clue as to the competence of a particular advocate." 

On several occasions, the Court had made its apprehensions regarding the same known to the Director General of Prosecution (DGP).

While the DGP informed the Bench that the issue is being addressed at the highest levels of the government, the Court deemed it fit that any measures taken in this regard must be informed to the Court and therefore, proceeded to register a case suo motu.

"The DGP informed us that the same is engaging the attention of the prosecution wing of the State and concerns have been addressed to the highest echelons of the Government. We take note of the above submission but are of the opinion that the measures taken should be informed to this Court and for that purpose we initiate a suo motu Writ Petition." 

Background:

In the appeal stated before, the first question considered by the Court in the matter was whether the age of the victim had been proved. 

Public Prosecutor Sheeba Thomas argued as per the Juvenile Justice (Care and Protection) Act, a Birth Certificate issued from the school was sufficient to prove the age of a juvenile in conflict with law which can be adopted for the victim in a rape case. 

The Supreme Court's decision in Jarnail Singh v. State of Haryana [ 2013) 7 SCC 263] was referred to in an attempt to support this argument.

However, the bench noted that the offence herein was committed long before the JJ Act, 2015 came into force.

Similarly, it recalled the decision rendered in the case of Rajan v. State of Kerala [2021 (4) KLT 274] where it was held that a certified copy of the extract of the Admission Register of a school cannot be valid proof of the date of birth.

What bothered the Court the most was the increasingly lethargic attitude of the Prosecution to determine the age of the victim in most Juvenile cases.

This observation came after 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 having not been 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.

However, since the offence of rape was proved, the accused was convicted under Section 376(1).

Considering the special relationship the accused had with the victim and the status of a guardian, the Court imposed on the appellant the maximum sentence of life imprisonment.

Click Here To Read The Order