Aju Mathew v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 3RD DAY OF NOVEMBER 2017/12TH KARTHIKA, 1939** **WP(C).No. 22255 of 2017 (F)** **----------------------------** ## **PETITIONER(S):** **-------------** **AJU MATHEW** **S/O.ISSAC MATHEW, AGED 40, THOMMIKKUDIYIL HOUSE, PAINGOTTOOR P.O., KOTHAMANGALAM, PIN-686671.** **BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA** **RESPONDENT(S):** **--------------** **1. THE STATE OF KERALA** - **REPRESENTED BY ITS SECRETARY, HOME (C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE SECRETARY** **LAW (INSPECTION DEPARTMENT), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **3. THE DIRECTOR GENERAL OF PROSECUTION DIRECTORATE OF PROSECUTION, KOMBARA, KOCHI-18.** **4. THE DISTRICT COLLECTOR, IDUKKI** **CIVIL STATION, PAINAVU, IDUKKI DISTRICT, PIN-685603.** **5. THE STATE COMMISSION FOR THE PROTECTION OF CHILD RIGHTS SREE GANESH, VANROSS JUNCTION, NEAR BAKERY JUNCTION, THIRUVANANTHAPURAM-695034.** **6. THE UNION OF INDIA** - **REPRESENTED BY ITS SECRETARY, WOMEN & CHILD WELFARE, GOVERNMENT SECRETARIAT, NEW DELHI-110001.** **R6 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R1 BY GOVERNMENT PLEADER:SRI SUMAN CHAKRAVARTHY SRI SUVIN R. MENON - C.G.C** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.10.2017, THE COURT ON 03.11.2017 DELIVERED THE FOLLOWING:** ## **WP(C).No. 22255 of 2017 (F)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF NOTICE DATED 06-06-2017 OF THE 3RD RESPONDENT.** **EXHIBIT P2 TRUE COPY OF COVERING LETTER DATED 21-06-2017 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P3 TRUE COPY OF NOTICE FOR PUBLICATION ACCOMPANYING EXHIBIT P2 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE BIO DATA OF THE PETITIONER.** **EXHIBIT P4(A) TRUE COPY OF CERTIFICATE OF PRACTICE ISSUED BY BAR ASSOCIATION TO THE PETITIONER.** **EXHIBIT P4(B) TRUE COPY OF CERTIFICATE OF ENROLLMENT OF THE PETITIONER.** **EXHIBIT P5 TRUE COPY OF NOTICE DATED 14-06-2017 ISSUED BY THE PETITIONER TO THE ASSISTANT GOVERNMENT PLEADER AND PUBLIC PROSECUTOR, THRISSUR.** ## **RESPONDENT(S)' EXHIBITS:NIL** **True Copy / P A to Judge** ## **SUNIL THOMAS, J.** ## ================= **W.P(C).No.22255 of 2017** ================= Dated this the 3[rd] day of November, 2017 ## **JUDGMENT** Petitioner is an applicant to the post of Special Public Prosecutor under the Protection of Children from Sexual Offences Act, in short “POCSO Act”. 2. Petitioner claims to be an advocate practicing in Idukki District Centre, mainly in the criminal courts and also the Courts established under the POCSO Act. Ext.P1 notification was issued by the third respondent dated 06.06.2017 regarding the preparation of a list of persons qualified to be appointed as Special Public Prosecutor under section 32(2) of POCSO Act in the Special Court at Idukki. Ext.P2 is the gist of Ext.P1 issued to the District Court and the notice was published as Ext.P3. Pursuant to Ext.P2, petitioner submitted his bio-data enclosing the certificates evidencing his duration of practice. Subsequently, he came across Ext.P5 dated 14.06.2017 addressed to the District Government Pleader and Public Prosecutor ,Thrissur requesting him to submit a panel of advocates for considering them for appointment as Special Public Prosecutor under section 32(2) of the POCSO Act. Petitioner contends that section 45 of the POCSO Act enables the Central Government to make Rules for carrying out the purposes of the Act. W.P(C).22255/17 2 No Rule has been framed by the Central Government for appointment of Special Public Prosecutor under section 32(2) of the POCSO Act. It was contended that, in the absence of any procedure for selection contemplated under the POCSO Act and its Rules, 6[th] respondent, Union of India, may be directed to frame Rules under section 45(1) of the Act, prescribing the procedure for appointment to the post of Special Public Prosecutor under section 32(2) of the Act. It was further contended that the present procedure adopted for preparing the list of advocates for appointment to the post of Special Public Prosecutor under section 32(2) of the POCSO Act evidenced by Exts.P1, P2 and P5 are arbitrary and illegal, being in violation of Articles 14 and 19(1)(f) of the Constitution of India. It was contended that the Commissioner under the Protection of Child Rights Act 2005 was not consulted. He sought a writ of mandamus or other writ order or direction compelling respondents 1 to 4 to make appointment to the post of Special Public Prosecutor under section 32(2) of the Protection of Children from Sexual Offences Act. 3. The first respondent has filed a detailed counter affidavit traversing the various allegations in the petition. It was contended that no writ or other direction can be issued commanding the W.P(C).22255/17 3 authorities vested with the power of legislation to frame Rules. It was also contended that the contention set up by the petitioner, that the State Government is not competent to appoint the Special Public Prosecutors under section 32(2) in the absence of Rules framed by the Central Government in that regard is also not sustainable. It was further contended that the petitioner, being an applicant to the selection process, cannot challenge the selection process as such, during the pendency of its processing. According to the first respondent, POCSO Act does not contemplate framing of any Rules for the purpose of appointment of Special Public Prosecutor. Like in many statutes, appointment of Public Prosecutor and Special Public Prosecutor, as the case may be, is vested under the State government, being an item included in the concurrent list of the Constitution of India r/w section 32(2) of the POCSO Act, empowering the State Government to appoint Special Public Prosecutor. It was stated that the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978, is in force regarding the appointment and other factors relating to the appointment of Government Law Officers other than the Advocate General and Additional Advocate General. According to the first respondent, Rules provided for the W.P(C).22255/17 4 appointment of Government Pleader, Public Prosecutor, and Special Public Prosecutor to defend the State and to conduct criminal prosecution. 4. It was clarified by the first respondent that the present Special Public Prosecutors, who are now officiating under the POCSO Act, were originally appointed as the Additional government Pleader and Public Prosecutor. While so, by notification dated 05.11.2015, they were also appointed as Special Additional Public Prosecutor in the Additional District and Sessions Court for conducting cases under the POCSO Act. They were holding additional work and carrying on additional designation in relation to their dual function. Thereafter, the Government issued a communication to the District Collector, disclosing the intention of the Government to terminate the service of Additional government Pleader and Public Prosecutor to make new appointments. It was challenged before the Kerala Administration Tribunal, which was dismissed. The dismissal was confirmed by the High Court in the decision reported in **Vinod v. State of Kerala (2016(3) KLT 920).** Thereafter, the persons who were appointed as Special Public Prosecutor for cases under the POCSO Act, approached the Honourable High Court apprehending that they may be terminated. W.P(C).22255/17 5 The writ petition was dismissed, which was carried in appeal in W.A.No.2264 of 2016. The Division Bench of this Court dismissed it. It was stated that the authority of the State Government to appoint duly qualified advocates as Special Public Prosecutor under the POCSO Act was confirmed. It was also stated that, even though Rule 6 of the POCSO Rules confers certain functions on the commission constituted under the Commissions of Protection of Child Rights Act, 2005, enabling to monitor the appointment of Public Prosecutors in POCSO Courts, that does not mean that the commission has any say in the matter of appointment or removal of Public Prosecutors. It was further stated that in the light of the judgment in W.P(C).No.2264 of 2016 of the Division Bench, the present grievance of the petitioner is not sustainable and is liable to be dismissed. Steps for preparing the panel of advocates in accordance with the provisions under the Kerala Government Law Officers Rules, till POCSO Rules are framed, is in progress. The intention of the State Government to comply with Section 24(4) of Cr.P.C and Kerala Government Law Officers Rules, till POCSO Rules are framed in relation to the appointment of Special Public Prosecutor in special courts under the POCSO Act was clarified by the Government. The clarificatory letter is produced as Annexure- W.P(C).22255/17 6 R1(b) and the Government order as Annexure-R1(c). 5. Heard the learned senior counsel for the petitioner and the learned senior Government Pleader attached to the Director General of Prosecution. 6. The process of appointment is assailed on three specific grounds. Firstly, the contention was that section 42 of POCSO Act empowered the Central government to frame Rules. It includes the procedure for appointment of Special Public Prosecutors also. It was contended that, in the light of it, till Special Rules are framed, the process of appointment of Special Public Prosecutors in the Special courts under the POCSO Act cannot be undertaken by the State Government. It was also contended that the present procedure is not evidenced by any transparent process of selection, in so far as arbitrary powers are conferred for selection of Special Public Prosecutor. Secondly, it was contended that the task of preparing the panel was entrusted with the District Government Pleader of each district and the District Judge of the concerned district was not expected to be consulted in that process. Thirdly, it was contended that the Commission for Protection of Child Rights, which was conferred with the jurisdiction of appointment of Government Prosecutor was not taken into confidence in the W.P(C).22255/17 7 process of appointment of Special Public Prosecutor. 7. It is an admitted fact that the petitioner herein had applied for the post of Special Public Prosecutor. The legality of the government order terminating service of Public Prosecutor and Government Prosecutor, who were acting as the Special Public Prosecutors in the special Courts constituted under the POCSO Act was the subject matter of writ proceeding, which ultimately ended in the judgment of the High Court in **Vinod v. State of Kerala (supra)** . In that, Ext.P4 communication was confirmed by the Division Bench. Thereafter, the Public Prosecutors, who were functioning in the various courts, apprehending their termination, challenged the move to terminate their appointments as Special Public Prosecutor under the POCSO Act, by filing W.P(C).No.21469 of 2016 and inter alia, requested to declare that the service of petitioners as Special Public Prosecutor in special courts constituted under the POCSO Act were not liable to be terminated, until the special courts cease to exist or till the formulation of appropriate Rules in that regard. It was disposed of with certain directions. The Government challenged it in Writ Appeal No.2264 of 2016, which was allowed, modifying the judgment of the learned Single Judge. A copy of the judgment is produced as Ext.R1(a). The W.P(C).22255/17 8 Division Bench had confirmed the authority of the State Government to appoint Special Public Prosecutors. It was held by the Division Bench that in all fairness, the State Government, rather than entrusting additional duties of the Special Public Prosecutor under the POCSO Act to the existing Government advocates and additional Public Prosecutors which run contrary to the spirit of the Section 32(1) of the Act, ought to have made separate appointments for the persons to work as Special Public Prosecutor under the POCSO Act, as mandated under section 32(1) of the POCSO Act. The Division Bench concluded by holding that it was open for the State Government to appoint duly qualified advocates as Special Public Prosecutors under the POCSO Act exclusively. It was however, clarified that they should not be assigned any duties of the Government advocates and additional Public Prosecutors. In light of the above, the contention of the learned senior counsel for the petitioner, that the State Government has no authority to appoint Special Public Prosecutors cannot survive. 8. Another limb of the contention of the learned senior counsel for the petitioner was that Section 45 of the POCSO Act empowers the Central Government to make Rules for carrying out the purposes of the Act. It was contended that, it includes the W.P(C).22255/17 9 appointment and terms and conditions of Special Public Prosecutor under section 32 of the POCSO Act. However, the apprehension of the petitioner herein is that at present, there is no Rule governing the appointment of Special Public Prosecutor in the Special Court and consequently, first respondent is proposing to fill up vacancy by an arbitrary, non transparent procedure. Section 32(1) of the Act empowers the State Government to appoint special Public Prosecutor for every special court for conducting cases under the Act by a notification in the official gazette. The qualification of persons eligible to be appointed as Special Public Prosecutor is provided under sub section 2 of section 32. Evidently, it is for the State Government to appoint Public Prosecutor. 9. It seems that the confusion regarding the procedure to be adopted in appointing special Public Prosecutor in the special courts was set at rest by Exts-R1(b) and R1(c). Ext.R1(c) is the communication of the Director General of Prosecution dated 13.07.2017 and addressed to the District Collector clarifying that since the POCSO Act and Rules are silent regarding the procedure or method for appointment of Special Public Prosecutor in POCSO cases, the procedure contemplated under section 24(4) Cr.P.C was to be complied with while preparing a panel of Special Public W.P(C).22255/17 10 Prosecutor under the POCSO Act. The District Collector was permitted/authorized to prepare a panel in consultation with the District and Sessions Judge and to comply with section 24(4) of Cr.P.C. It was further contended that if the panel is prepared without complying with the procedure, the District Collector was directed to comply with the above direction and to forward the panel. Ext.R1(c) is the Government order No.G.O.2117/2017/HOME dated 08.08.2017 stating that since the State Government has not framed any Rules for the appointment of Special Public Prosecutor in special court under the POCSO Act and framing of Rules was a time consuming procedure and further that, appointment of special Public Prosecutor cannot be delayed, the Government was pleased to order that appointment of Special Public Prosecutor in the special court under the POCSO Act was to be done by complying with and adopting section 24(4) of Cr.P.C and the Kerala Government Law Officers Rules, till POCSO Rules were framed. Evidently, the procedure contemplated under section 24(4) Cr.P.C r/w Rule 8 of the Kerala Government Law Officers (Appointment and conditions of Service) and Conduct of cases Rules, 1978 becomes applicable. It contemplates the process of consultation with the District and Sessions Judge. In the light of the above clarificatory W.P(C).22255/17 11 order, the contention of the learned counsel for the petitioner that the procedure adopted at present is not subject to any guidelines or Rules is not sustainable. 10. This is also for the further reason that criminal law falls under the concurrent list of the Constitution of India and in the absence of any Rule in derogation of the present procedure adopted by the State Government under the relevant Rules, the procedure followed by the State Government will prevail. 11. The last limb of the contention set up by the learned senior counsel that the commission constituted under the Protection of Child Rights Act, 2005 was competent to monitor the appointment of Special Public Prosecutor and consequently, the present procedure for appointment was invalid, cannot survive in the light of the findings of Ext.R1(a). The Division Bench at paragraph 10 had dealt with this issue. It was held that Rule 6 of POCSO Rules confer certain functions on the Commission for Protection of Child Rights. One such function is to monitor the appointment of public prosecutor by the State Government. It was held that, it does not mean that the Commissions have any say in the matter of appointment or removal. However, they will have to monitor the appointment of Special Public Prosecutor under the Act. W.P(C).22255/17 12 In other words, it is the duty of the Commission to see that duly qualified Public Prosecutors are appointed without any break, in order to handle the matters in the special Courts under the POCSO Act. This observation of the Division Bench answers the contention of the learned senior counsel for the petitioner. In the light of the above discussion, I am convinced that the contentions set up by the petitioner cannot survive. Accordingly, writ petition is dismissed. Sd/- **SUNIL THOMAS Judge** Sbna/ True Copy / P A to Judge