Special Public Prosecutors for POCSO Act; Saju George Vs. State [Kerala High Court, 26-09-2016]

Criminal Procedure Code, 1973 – Section 24 – Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 (Kerala) – Protection of Children from Sexual Offences Act, 2012 – Appointment of Special Public Prosecutors under the POCSO Act – In the absence of any term of appointment prescribed in the appointment orders issued to the petitioners, they must be deemed to have been appointed for a term co-terminus with the court itself or the cases entrusted to them, it is made clear that, the State Government shall terminate the services of the petitioners as Special Government Pleaders under the POCSO Act only for valid reasons that can be justified in the backdrop of the provisions of the POCSO Act and the objects behind the enactment of the said Act, and taking note of the observations of the Supreme Court in the decisions referred above. Accordingly, the writ petition is disposed by declaring that the services of the petitioners as Special Public Prosecutors under the POCSO Act cannot be terminated pursuant to Ext.P4 communication, and that the State Government will consider the aspect of necessity of termination of services of the petitioners as Special Public Prosecutors under the POCSO Act, on a case to case basis, and any decision taken by them will only be after complying with a transparent procedure after giving due notice to the petitioners. The writ petition is disposed as above.

# POCSO Act

IN THE HIGH COURT OF KERALA AT ERNAKULAM

A.K.JAYASANKARAN NAMBIAR, J.

W.P.(C).No.21469 of 2016

Dated this the 26th day of September, 2016

PETITIONER(S)

1. SAJU GEORGE SPECIAL PUBLIC PROSECUTOR, ADDITIONAL DISTRICT & SESSIONS COURT-I, (SPECIAL COURT FOR THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT), MANJERI, MALAPPURAM.

2. SHIBU GEORGE SPECIAL PUBLIC PROSECUTOR, ADDITIONAL DISTRICT & SESSIONS COURT-I, (SPECIAL COURT FOR THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT), KOZHIKODE.

3. M.J.JOHNSON SPECIAL PUBLIC PROSECUTOR, ADDITIONAL DISTRICT & SESSIONS COURT-I, (SPECIAL COURT FOR THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT), KANNUR.

4. PIOUS MATHEW SPECIAL PUBLIC PROSECUTOR, ADDITIONAL DISTRICT & SESSIONS COURT-I, (SPECIAL COURT FOR THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT), THRISSUR.

5. N.GOPALAKRISHNAN SPECIAL PUBLIC PROSECUTOR, ADDITIONAL DISTRICT & SESSIONS COURT-I, (SPECIAL COURT FOR THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT), KOTTAYAM.

6. SANTHOSH T.A. SPECIAL PUBLIC PROSECUTOR, ADDITIONAL DISTRICT & SESSIONS COURT-I, (SPECIAL COURT FOR THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT), IDUKKI.

7. LATHAJAYARAJ SPECIAL PUBLIC PROSECUTOR, ADDITIONAL DISTRICT & SESSIONS COURT-I, (SPECIAL COURT FOR THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT), PALAKKAD.

8. JOSEPH ZAKHARIAS SPECIAL PUBLIC PROSECUTOR, ADDITIONAL DISTRICT & SESSIONS COURT-I, (SPECIAL COURT FOR THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT), KALPETTA, WAYANAD DISTRICT.

9. SHAJAHAN RAWTHER SPECIAL PUBLIC PROSECUTOR, ADDITIONAL DISTRICT & SESSIONS COURT-I, (SPECIAL COURT FOR THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT), ALAPPUZHA. WP(C).No. 21469 of 2016 (G)

10. P.A.HANSALAH MOHAMMED SPECIAL PUBLIC PROSECUTOR, ADDITIONAL DISTRICT & SESSIONS COURT-I, (SPECIAL COURT FOR THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT), PATHANAMTHITTA.

BY ADVS.SRI.M.V.BOSE SRI.VINOD MADHAVAN

RESPONDENT(S)

1. STATE OF KERALA REPRESENTED BY SECRETARY, HOME (C) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

2. THE STATE OF KERALA REPRESENTED BY THE SECRETARY, LAW (INSPECTION) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

R1 & 2 BY ADV. GOVERNMENT PLEADER SRI.N.MANOJ KUMAR

J U D G M E N T

The petitioners, 10 in number, are persons who were appointed as Additional Government Pleader and Additional Public Prosecutor in various districts in accordance with the provisions of

# Section 24 of the Code of Criminal Procedure

(hereinafter referred to as ‘the Cr.P.C’) read with the

# Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978

(hereinafter referred to as ‘the 1978 Rules’). While they were initially appointed as such for a period of three years from the date of assumption of charge, their tenure of appointments as Additional Government Pleaders and Additional Public Prosecutors was further extended by another three year period from 2014 onwards. It would appear that, while they were functioning as Additional Government Pleaders and Additional Public Prosecutors, by Ext.P2 Notification dated 05.11.2015, the State Government appointed the Additional Public Prosecutors in all the Additional District and Sessions Court-I in all districts except in the Additional District and Sessions Court, Ernakulam, as Special Public Prosecutors for conducting cases under the

# Protection of Children from Sexual Offences Act, 2012

(Hereinafter referred to as ‘the POCSO Act’). By yet another Notification, Ext.P3 dated 13.01.2016, the State Government appointed the petitioners as Special Public Prosecutors in the Additional District and Sessions Court-I for conducting prosecution of cases under the POCSO Act. In Ext.P3 Notification, the appointment is purported to be made in exercise of powers conferred by Section 32 of the POCSO Act read with Rule 11 of the 1978 Rules, and in supersession of the earlier Notification issued appointing the petitioners as Special Public Prosecutors. In the writ petition, the petitioners are aggrieved by Ext.P4 communication which indicates that the Government have decided to terminate the services of District Government Pleaders and Public Prosecutors of 13 districts, except Kottayam where the post is vacant at present, and intends to make new appointments at 14 District Court centres. It was the apprehension of the petitioners that, pursuant to Ext.P4 their services would be promptly terminated, and it is for this reason that they approached this Court through the present writ petition seeking to quash Ext.P4, and declare that the services of the petitioners as Special Public Prosecutors in the Special Courts formed under the POCSO Act are not liable to be terminated until the Special Courts cease to exist or till the formulation of appropriate rules by the State in this regard.

2. A counter affidavit has been filed on behalf of the 2 nd respondent wherein the stand taken is that in Ext.P3 Notification, it is clear that the appointment of the petitioners as Special Public Prosecutors under the POCSO Act, was in their capacity as Additional District Government Pleaders and Public Prosecutors pursuant to their appointment as such in accordance with Section 24 of the Cr.P.C read with 1978 Rules. It is contended, therefore, that inasmuch as the services of the petitioners as Additional District Government Pleaders and Public Prosecutors can be terminated in accordance with the provision of Rule 11 of the 1978 Rules, the said termination of services would automatically entail a termination of their service as Special Public Prosecutors under the POCSO Act as well. It is stated that the policy of the Government is to appoint efficient and meritorious lawyers as Government Pleaders and Public Prosecutors, on whom they have trust and confidence, and hence, the Government has every right to terminate the services of Special Public Prosecutors, who were appointed as such under the previous regime. Reference is also made to the decision of the Division Bench of this Court in O.P (KAT).No.90/2016 (judgment dated 27.07.2016) to contend that the challenge against Ext.P4 notice was repelled by the Division Bench of this Court, and it was found that the State Government was justified in terminating the services of the Additional District Government Pleaders and Public Prosecutors appointed in terms of Section 24 of the Cr.P.C read with the 1978 Rules.

3. I have heard the learned counsel appearing for the petitioners as also the learned Government Pleader for the respondents.

4. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that, the case of the petitioners, to the extent it pertains to the termination of their services as Additional District Government Pleaders and Public Prosecutors in terms of Section 24 of the Cr.P.C read with the 1978 Rules, and with regard to their contention that they have a right to continue in service as such, cannot be accepted since the judgment dated 27.07.2016 of the Division Bench of this Court in O.P.(KAT).No.90/2016 finds against the petitioners on the said issue. I, therefore reject the contention of the petitioners on the said issue. 5.There is, however, another aspect of the matter in the present writ petition. It is not in dispute that, while the petitioners were continuing in service as Additional District Government Pleaders and Public Prosecutors appointed in terms of Section 24 of the Cr.P.C and the 1978 Rules, they were appointed through a separate Notification as Special Public Prosecutors under the POCSO Act. The provisions of the POCSO Act, and in particular, Section 32 thereof indicates that the State Government has the power to appoint, by Notification in the official Gazette, a Special Public Prosecutor for every Special Court for conducting cases only under the provisions of the said Act. The provision also makes it clear that any person appointed as a Special Public Prosecutor under the Section shall be deemed to be a Public Prosecutor within the meaning of Section 2 (u) of the Cr.P.C., and the provisions of that Code shall have effect accordingly. The learned counsel for the petitioner would vehemently contend that, the appointment of the petitioners as Special Public Prosecutors under Section 32 of the POCSO Act effectively put an end to their services as Additional Government Pleaders and Public Prosecutors appointed in terms of Section 24 of the Cr.P.C read with the 1978 Rules. It is contended that, inasmuch as the power of the State Government under Section 32 of the POCSO Act is to appoint a Special Public Prosecutor for conducting cases only under the provisions of the POCSO Act, and the petitioners had by Ext.P3 Notification been appointed only for the said purposes as Special Public Prosecutors in the various courts that were deemed to be Special Courts for the purposes of the POCSO Act, the mere termination of their services as Additional District Government Pleaders and Public Prosecutors would not automatically entail their termination of their services as Special Public Prosecutors under the POCSO Act, 2012. It is in particular pointed out that, there are no rules akin to the 1978 Rules, that govern the terms and conditions of appointment of Special Prosecutors under the POCSO Act, 2012. It is further pointed out that notwithstanding the directions of the Supreme Court in Re Exploitation of children in Orphanages in the

# State of Tamil Nadu v. Union of India and Others, 2013 KHC 4987

the State Government has not framed Rules that govern the manner of selection and other conditions of service of Special Public Prosecutors for the purposes of the POCSO Act. The learned counsel would also contend that, in the absence of any Rule that governs the termination of services of persons appointed in exercise of the powers under Section 32 of the POCSO Act, a reading of the Act as a whole, and in particular the preamble thereof, would indicate that a Special Public Prosecutor appointed under Section 32 of the Act is appointed for a term that is coextensive with the duration of the case which is entrusted to the Special Public Prosecutor or, in the alternative, the term of the court itself which is constituted for hearing the particular category of cases. The contention of the learned counsel in short is that, in the absence of any specific term indicated in the appointment order issued to him under the POCSO Act, the services of the petitioners cannot be terminated save without following a transparent procedure and furnishing adequate reasons as to why the services should be terminated. 6.I find force in the submission of the learned counsel for the petitioner with regard to this latter submission regarding the rights that accrued to the petitioners by virtue of their appointment under Section 32 of the POCSO Act. As already noted above, unlike in the case of appointment as a Public Prosecutor or an additional District Government Pleader, the provisions of the 1978 Rules do not apply or govern the appointment of the petitioners as Special Public Prosecutors under the POCSO Act. The question therefore is, whether the State Government, which is the appointing authority, can, without anything more, and in the absence of any Rules governing the service conditions of the petitioners, unilaterally and without assigning any reasons terminate the services of the petitioners as Special Public Prosecutors under the POCSO Act. I find, in this regard, that the observations of the Supreme Court in the recent judgment in

# State of Punjab and Another v. Brijeshwar Singh Chahal, (2016) 6 SCC 1

are relevant, paragraphs 38, 39 and 40, of which read as follows:

“38. While dealing with the nature of office the Government Counsel hold, this Court in Johri Mal case declared that the State Government Counsel holds an office of great importance. They are not only officers of the court but also the representatives of the State and that courts repose a great deal of confidence in them. They are supposed to render independent, fearless and non-partisan views before the court irrespective of the result of litigation which may ensue. So also the Public Prosecutors have great responsibility. They are required to perform statutory duties independently having regard to various provisions contained in the Code of Criminal Procedure. The State Government Counsel represents the State and thereby the interest of the general public before a court of law. This requires that Government Counsel have character, competence, sufficient experience as also standing at the Bar. The need for employing meritorious and competent persons to maintain the standard of the high office cannot be minimised, observed the Court, particularly, when the holders of the post have a public duty to perform. The Court also expressed anguish over the fact that in certain cases the recommendations are made by the District Magistrate having regard to the political affinity of the lawyers to the party in power and that State is not expected to rescind the appointments with the change in the Government because a new party has taken over charge of the Government. This Court also recognised the age-old tradition of appointing the District Government Counsel on the basis of the recommendations of the District Collector in consultation with the District Judge. The fact that the District Judge, who is consulted while making such appointment knows the merit, competence and capability of the lawyer concerned, was also recognised by the Court.

39. The development of law in this country has taken strides when it comes to interpreting Articles 14 and 16 and their sweep. Recognition of power exercisable by the functionaries of the State as a trust which will stand discharged only if the power is exercised in public interest is an important milestone just as recognition of the Court’s power of judicial review to be wide enough to strike at and annul any State action that is arbitrary, unguided, whimsical, unfair or discriminatory. Seen as important dimensions of the Rule of Law by which we swear, the law as it stands today has banished from our system unguided and uncanalised or arbitrary discretion even in matters that were till recently considered to be within the legitimate sphere of a public functionary as a repository of executive power. Those exercising power for public good are now accountable for their action, which must survive scrutiny or be annulled on the first principle that the exercise was not for public good in that the same was either mala fide, unfair, unreasonable or discriminatory. Extension of the principle even to contractual matters or matters like engagement of Law Officers is symbolic of the lowering of the threshold of tolerance for what is unfair, unreasonable or arbitrary. The expanding horizons of the jurisprudence on the subject both in terms of interpretation of Article 14 of the Constitution as also the Court’s willingness to entertain pleas for judicial review is a heartening development on the judicial landscape that will disentitle exercise of power by those vested with it as also empower those affected by such power to have it reversed if such reversal is otherwise merited.

40. The question where a fair, reasonable and non-discriminatory methods of selection should or should not be adopted can be viewed from another angle also equally if not more important that the need for preventing any infringement of Article 14. The State Counsel appears for the State Government or for public bodies who together constitute the single largest litigant in our court system. Statistics show that nearly 80% of litigation pending in the courts today has State or one of its instrumentalities as a party to it. The State Counsel/counsel appointed by public bodies thus represent the largest single litigant or group engaged in litigation. It is also undeniable that for a fair, quick and satisfactory adjudication of a cause, the assistance which the court gets from the Bar is extremely important. It is at times said that the quality of judgment or justice administered by the courts is directly proportionate to the quality of assistance that the courts get from the counsel appearing in a case. Our system of administration of justice is so modelled that the ability of the lawyers appearing in the cause to present the cases of their respective clients assumes considerable importance. Poor assistance at the Bar by counsel who are either not sufficiently equipped in scholarship, experience or commitment is bound to adversely affect the task of administration of justice by the court. Apart from adversely affecting the public interest which State Counsel are supposed to protect, poor quality of assistance rendered to the courts by State Counsel can affect the higher value of justice itself. A fair, reasonable or nondiscriminatory process of appointment of State Counsel is not thus demanded only by the rule of law and its intolerance towards arbitrariness but also by reason of the compelling need for doing complete justice which the courts are obliged to do in each and every cause. The States cannot in the discharge of their public duty and power to select and appoint State Counsel disregard either the guarantee contained in Article 14 against non-arbitrariness or the duty to protect public interest by picking up the best among those available and willing to work nor can the States by their action frustrate, delay or negate the judicial process of administration of justice which so heavily banks upon the assistance rendered by the members of the Bar.”

The Supreme Court then summed up the propositions laid down as follows:

“41. To sum up, the following propositions are legally unexceptionable:

41.1. The Government and so also all public bodies are trustees of the power vested in them.

41.2. Discharge of the trust reposed in them in the best possible manner is their primary duty.

41.3. The power to engage, employ or recruit servants, agents, advisors and representatives must like any other power be exercised in a fair, reasonable nondiscriminatory and objective manner.

41.4. The duty to act in a fair, reasonable, non-discriminatory and objective manner is a facet of the Rule of Law in a constitutional democracy like ours.

41.5. An action that is arbitrary has no place in a polity governed by Rule of Law apart from being offensive to the equality clause guaranteed by Article 14 of the Constitution of India.

41.6. Appointment of Government Counsel at the district level and equally so at the High Court level, is not just a professional engagement, but such appointments have a “public element” attached to them.

41.7. Appointment of Government Counsel must like the discharge of any other function by the Government and public bodies, be only in public interest unaffected by any political or other extraneous considerations.

41.8. The Government and public bodies are under an obligation to engage the most competent of the lawyers to represent them in the courts for it is only when those appointed are professionally competent that public interest can be protected in the courts.

41.9. The Government and public bodies are free to choose the method for selecting the best lawyers but any such selection and appointment process must demonstrate that a search for the meritorious was undertaken and that the process was unaffected by any extraneous considerations.

41.10. No lawyer has a right to be appointed as a State/Government Counsel or as Public Prosecutor at any level, nor is there any vested right to claim an extension in the term for which he/she is initially appointed. But all such candidates can offer themselves for appointment, re-appointment or extension in which event their claims can and ought to be considered on their merit, uninfluenced by any political or other extraneous considerations.

41.11. Appointments made in an arbitrary fashion, without any transparent method of selection or for political considerations will be amenable to judicial review and liable to be quashed.

41.12. Judicial review of any such appointments will, however, be limited to examining whether the process is affected by any illegality, irregularity or perversity/irrationality. The Court exercising the power of judicial review will not sit in appeal to reassess the merit of the candidates, so long as the method of appointment adopted by the competent authority does not suffer from any infirmity.”

7. Taking cue from the said judgment of the Supreme Court, I find that Ext.P4 communication, that is impugned in this writ petition, may not have any application with regard to the appointment of the petitioners as Special Public Prosecutors under the POCSO Act. I therefore hold that, while Ext.P4 may form the basis of a termination of the services of the petitioners as Public Prosecutors and Additional District Government Pleaders in terms of the 1978 Rules, the said communication shall not be the basis for any steps to terminate the services of the petitioner as Special Government Pleaders under the POCSO Act. While, I do not find merit in the submission of counsel for the petitioner that, in the absence of any term of appointment prescribed in the appointment orders issued to the petitioners, they must be deemed to have been appointed for a term co-terminus with the court itself or the cases entrusted to them, it is made clear that, the State Government shall terminate the services of the petitioners as Special Government Pleaders under the POCSO Act only for valid reasons that can be justified in the backdrop of the provisions of the POCSO Act and the objects behind the enactment of the said Act, and taking note of the observations of the Supreme Court in the decisions referred above. Accordingly, the writ petition is disposed by declaring that the services of the petitioners as Special Public Prosecutors under the POCSO Act cannot be terminated pursuant to Ext.P4 communication, and that the State Government will consider the aspect of necessity of termination of services of the petitioners as Special Public Prosecutors under the POCSO Act, on a case to case basis, and any decision taken by them will only be after complying with a transparent procedure after giving due notice to the petitioners.

The writ petition is disposed as above.

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