Kerala High Court Issues Guidelines For Appointment Of Public Prosecutors, Calls For Primacy To Be Given To District Judge's Opinion

Section 24 of Cr.P.C and now corresponding Section 18 of BNSS contemplates that the District Collector shall prepare a panel of names of persons fit to be appointed as Public Prosecutor or Additional Prosecutor in consultation with the Sessions Judge.

The Division Bench of Chief Justice Nitin Jamdar and Justice Ziyad Rahman A. A., relying on the judgments of the Supreme Court in State of U. P. and Another v Johri Mal (2023) held that primacy has to be given to the opinion of the District Judge while appointment. Further, taking into account the delay caused in filling up some vacancies of Public Prosecutor in certain courts, the Court issued the following guidelines:

1. The government has to give primacy to the opinion of the District Judge in the consultative process contemplated under Section 18 of the BNSS (Section 24 of the Cr.P.C) while making appointments to the post of Public Prosecutor
2. The State Government will frame internal administrative guidelines in strict conformity with Sections 18(3) of the BNSS. The guidelines will contain the stipulations and methodology to ensure that the opinion of the District Judge is given primacy.
3. The State Government will issue necessary directions in this regard and set up a protocol to ensure that the vacancies of Public Prosecutors are filled without delay. The State will also consider sanctioning posts of Public Prosecutor simultaneously with the establishment of new Courts, so as to avoid delays.

Delay In Appointing Public Prosecutors

The Court was informed that there were certain posts of Public Prosecutors which were not filled up and, in some courts, the post of Public Prosecutors was not even created. The Court observed that if the post of Public Prosecutor is not created along with establishing new courts, the purpose of establishing new courts is defeated. In such cases, the charge is given to some other Prosecutor and therefore, he would not be able to attend the court regularly. The Court also noted that in the past 5 years, there were 38 instances where the post of Public Prosecutor remained vacant for more than 2 months.

The Court accepted the Additional Director General of Prosecution's submission that the State is committed to filling up the vacancies expeditiously.

Public Prosecutor Does Not Hold A Public Post

The State had informed the Court that the Public Prosecutors were appointed in the State as per Rule 8 of the Kerala Government Law Officers (Appointment and Conditions of Service and Conduct of Cases Rules, 1978). These rules are made under Kerala Public Services Act, 1968 – an Act to regulate the recruitments and conditions of service of persons appointed to public services and posts in connection with the affairs of the State of Kerala. The Court relied on Johri Mal judgment, which held that the Public Prosecutor and the Additional Public Prosecutor are not 'civil posts'. Therefore, the Court concluded that the 1978 Rules are not applicable for the appointment to the post of Public Prosecutors. The High Court held that the procedure to be followed is the one laid down under Section 24 of the Cr.P.C (18 of the BNSS) and the law laid down by the Supreme Court emphasising the importance ofthe  consultative process.

Case No: WP(C) 23838 of 2021

Case Title: Suo Motu v State of Kerala and Others

Citation: 2025 LiveLaw (Ker) 247