The Division Bench of the Kerala High Court ruled in Suo Motu vs State Of Kerala [2025: KER:30823] that the State Government must give primacy to the opinion of the concerned District Judge during the consultative process for the appointment of Public Prosecutors, and mandated that the State frame internal guidelines ensuring strict conformity with the Bharatiya Nagarik Suraksha Sanhita, 2023. The judgment underscored the Supreme Corut direction that such appointments should be made only taking into consideration the merit of the candidate and no other consideration.
High Court’s Key Directives
No absolute freedom for Government: The Court declared that the State Government is under mandate to give primacy to the opinion of the District Judge in the consultative process while making appointments to the post of Public Prosecutor under Section 18(3) of the Bharatiya Nagarik Suraksha Sanhita.
Standardized Protocol: The Court directed the State Government to frame internal administrative guidelines in strict conformity with Sections 18 (3) of the Bharatiya Nagarik Suraksha Sanhita and the law laid down by the Hon’ble Supreme Court in Mahabir v. The State Of Haryana [2025 INSC 120].
Such guidelines will contain the stipulations and methodology to ensure that the opinion of the District Judge is given primacy. Any guideline issued by the State Government that contravenes this requirement or dilutes the primacy of the District Judge’s opinion will be contrary to the law laid down by the Hon’ble Supreme Court in the above-mentioned decisions.
Monitoring of the State Guidelines: If the internal guidelines issued by the State as above are found to be contrary to the above-mentioned mandate or the delay in appointing the Public Prosecutor persists, the Court will consider reviving this suo motu Writ Petition.
Delay In Appointing Public Prosecutors
The Court pointed out 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.
Public Prosecutor Must be Fair to the Accused
The Supreme Court in Mahabir v. The State Of Haryana 2025 INSC 120] observed that Prosecutors should ensure that prosecutions are conducted in a diligent, competent and fair manner. The importance of the office of the Public Prosecutor cannot be overemphasized. The Public Prosecutor must be a person of high merit, fair and objective, because upon him depends to a large extent the administration of criminal justice. The office of the Public Prosecutor is a public office and the incumbent has to discharge statutory duties. The person appointed as Public Prosecutor must, therefore, be one who is not only able and efficient, but also enjoys a reputation and prestige which satisfy his appointment as a Public Prosecutor. The duty of the prosecutor is to assist the Court in reaching a proper conclusion in regard to the case which is brought before it for trial. The prosecutor has to be fair in the presentation of the prosecution case. He must not suppress or keep back from the court evidence relevant to the determination of the guilt or innocence of the accused. He must present the complete picture, and not a one sided picture. He must not be partial to the prosecution or to the accused. He has to be fair to both sides in the presentation of the case.
A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts of the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court or to the investigation agencies but to the accused as well.
If an accused is entitled to any legitimate benefit during trial, the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the court or defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the Court, if it comes to his knowledge.
