The Kerala High Court has recently issued crucial guidelines regarding the appointment of Public Prosecutors, emphasizing the importance of prioritizing the District Judge's opinion. The Court's directive comes in light of the delays observed in filling prosecutor vacancies and the need for a more structured, efficient appointment process.
In its judgment, the Division Bench of Chief Justice Nitin Jamdar and Justice Ziyad Rahman A.A. referenced the Supreme Court’s decision in State of U.P. and Another v. Johri Mal (2023) to reinforce the idea that the District Judge’s opinion should take precedence during the consultative process for the selection of Public Prosecutors.
According to the Court, the State must ensure that the District Judge’s opinion is given utmost importance when appointing Public Prosecutors under Section 18 of the BNSS (formerly Section 24 of the Cr.P.C.). The Court further directed the State Government to establish internal guidelines that align with these provisions to streamline the process.
"The government has to give primacy to the opinion of the District Judge in the consultative process contemplated under Section 18 of the BNSS," the Court stated.
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Another significant issue addressed was the delay in filling prosecutor vacancies. The Court pointed out that several Public Prosecutor positions had remained unfilled, some for over two months, particularly in newly established courts. The Court observed that the failure to create these posts alongside the establishment of new courts negated the purpose of setting up those courts in the first place.
The Court expressed concern over the administrative delays, noting that these vacancies hindered regular functioning. "If the post of Public Prosecutor is not created along with establishing new courts, the purpose of establishing new courts is defeated," the Court observed.
In response to these challenges, the Court called for the State to fast-track the filling of vacancies. It also recommended that the State Government issue necessary directions and set up protocols to ensure that Public Prosecutor vacancies are filled promptly. Additionally, the Court suggested that the posts be sanctioned as new courts are established to avoid any further delays in the judicial process.
Addressing the legal standing of Public Prosecutors, the Court acknowledged the State's position that the appointment of Public Prosecutors was governed by the Kerala Government Law Officers (Appointment and Conditions of Service and Conduct of Cases Rules, 1978). However, the Court clarified that the Public Prosecutor is not a "civil post," citing the Johri Mal case, and thus the 1978 Rules did not apply. It reaffirmed that appointments should be made under the guidelines set forth in Section 24 of the Cr.P.C. (or Section 18 of the BNSS).
With these directions, the Kerala High Court has sought to ensure more transparency, efficiency, and timeliness in the appointment of Public Prosecutors, addressing both administrative delays and the legal framework for such appointments.
Case No: WP(C) 23838 of 2021
Case Title: Suo Motu v State of Kerala and Others
