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