Kerala High Court Issues Guidelines for Appointment of Public Prosecutors : “Primacy to the Opinion of the District Judge Is Mandatory”
Isabella Mariam
The High Court of Kerala Division Bench of Chief Justice Nitin Jamdar and Justice Ziyad Rahman A.A. declared that the State Government must give primacy to the opinion of the District Judge while making appointments to the post of Public Prosecutor under Section 18(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023. The Court held that the appointment process cannot be governed by the Kerala Government Law Officers Rules, 1978, and instead must strictly comply with statutory provisions under the BNSS and binding precedent laid down by the Supreme Court. The Court further directed the State to frame internal administrative guidelines reflecting this mandate and to take prompt steps to address existing vacancies and the timely creation of posts for Public Prosecutors in newly established courts.
The present matter arose from a suo motu writ petition initiated by the High Court of Kerala to address serious concerns regarding the appointment and functioning of Public Prosecutors in the State. The proceedings were prompted by the Division Bench's observation on 23 September 2021 that criminal trials in Kerala were being negatively affected by a lack of competent prosecutors, resulting in procedural lapses.
The core issue examined was the prevailing method of appointment of Public Prosecutors under Rule 8 of the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978. Under this rule, appointments were made by the Government from a panel of names furnished by the District Collector, who, in turn, prepared the list in consultation with the District and Sessions Judge.
The State of Kerala, represented by the Additional Director General of Prosecution, submitted that appointments were being made in accordance with these 1978 Rules. However, during the course of proceedings, it became evident that the Government was proceeding under a misconception—that these rules applied to appointments under Section 24(3) of the Code of Criminal Procedure (Cr.P.C.), now Section 18(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
A joint meeting of stakeholders, held on 1 March 2025, included the Registrar General of the High Court, Additional Chief Secretary (Home), Director General of Prosecution, Additional Law Secretary, Public Prosecutor, and the Amicus Curiae. The Registrar General submitted a report from this meeting, noting a consensus on the need for a more effective consultation process and amending the existing rules accordingly.
The petition focused specifically on the legal validity and applicability of the 1978 Rules, the consultation process with the District and Sessions Judge, and the procedural obligations outlined in Section 18 of the BNSS (corresponding to Section 24 of Cr.P.C.). The Court noted that the Kerala Public Services Act, 1968 (Act 19 of 1968), under which the 1978 Rules were framed, applied only to "public posts" in State service. Relying on the Supreme Court’s ruling in State of U.P. v. Johri Mal, the Bench underscored that Public Prosecutors appointed under Section 24(3) Cr.P.C. do not hold civil posts and retain their status as legal practitioners.
The Court further examined the amended Section 24 of the Cr.P.C., brought into effect on 18 December 1978, and now re-enacted as Section 18 of the BNSS. These provisions mandate that the District Magistrate, in consultation with the Sessions Judge, must prepare a panel of candidates, and the State Government can only appoint a candidate from this panel, unless a regular cadre of Prosecuting Officers exists.
The Court found that Kerala has not introduced any State amendment to Section 24 Cr.P.C. or Section 18 BNSS and thus is bound by the unamended central law.
In addition to the legal framework, the Court addressed the administrative issue of vacancies. A report prepared by the State Court Management Systems Committee, submitted before the Bench, revealed that 18 Public Prosecutor positions were vacant across the State, and that in 14 courts, such posts had not yet been created. It was also noted that on 38 occasions over the last five years, vacancies remained unfilled for over two months, including in PoCSO Courts, SC/ST Special Courts, and BUDS Special Courts.
In multiple instances, Prosecutors were given charge of additional courts rather than appointing dedicated personnel. For example, the Fast Track Special Court at Muvattupuzha functioned for over a year without an appointed Prosecutor.
The State Government, through the Additional Director General of Prosecution, submitted that it intended to issue internal guidelines to ensure appointments conform to the mandate under Section 18 BNSS, and would address the problem of prolonged vacancies.
The Division Bench recorded that:
“Public Prosecutors play an important role in the administration of justice… the maintenance of law and order in the society and, to some extent, the maintenance of the Rule of law… lies in the hands of the Public Prosecutors.”
The Court held that reliance on the 1978 Rules was legally flawed:
“The 'Public Prosecutors' under sub-sections (1) and (3) of Section 24 of the Cr.P.C (Sec.18 of BNSS) are not covered under Rule 8 of the Rules of 1978, and Rules of 1978 cannot be made applicable to the appointment of these Public Prosecutors.”
The Court examined the legal status of Public Prosecutors and quoted from Johri Mal:
“It is beyond any cavil… that the holder of an office of the Public Prosecutor does not hold a civil post… Public Prosecutors retain the character of legal practitioners for all intent and purport.”
It recorded that: “Once it is established that Public Prosecutors do not hold public posts, the Rules of 1978… would have no application to them.”
Referring to the Supreme Court’s guidance in Mundrika Prasad Singh and Johri Mal, the Court observed: “The State should give primacy to the opinion of the District Judge. Such a course of action would demonstrate fairness and reasonableness of action…”
On the necessity of consultation, the Court cited:
“The Sessions Judge… is well suited to suggest the best names… any amendment by the States deleting the check on arbitrary appointments… will be violative of Article 14 of the Constitution.”
Quoting from State of Punjab v. Brijeshwar Singh Chahal, the Court recorded:
“Consultation, in that sense, lends reassurance as to the professional ability and suitability of the appointee… the Law Commission rightly held the consultative process to be a check on the power of appointment.”
The Court referred to Mahabir and Others v. State of Haryana and Others, stating:
“Appointments… should only take into consideration the merit of the candidate and no other consideration should weigh in such appointments.”
The Court found the delay in appointment and the non-creation of posts to be serious:
“The delay in filling up the vacancies of Public Prosecutors… and the failure to create the posts… directly affect the justice delivery system in the State.”
The Court issued the following directives:
It is declared that the State Government is under mandate to give primacy to the opinion of the District Judge in the consultative process contemplated under Section 18 of the Bharatiya Nagarik Suraksha Sanhita (Section 24 of the Code of Criminal Procedure) while making appointments to the post of Public Prosecutor under Section 18(3) of the Bharatiya Nagarik Suraksha Sanhita (Section 24(3) of the Code of Criminal Procedure).
The State Government will 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 enumerated above. 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 aforesaid decisions.
The commitment made on behalf of the State by the learned Additional Director General of Prosecution, that the vacancies of Public Prosecutors will be filled expeditiously, is accepted. 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 Prosecutors simultaneously with the establishment of new Courts, so as to avoid delays.
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.
The proceedings stand closed in the above terms.
Advocates Representing the Parties
For the Respondents: Sri. Grashious Kuriakose, Director General of Prosecution, Sri. P. Narayanan, Additional Public Prosecutor, Senior Advocate Sri. B.G. Harindranath, Advocate Sri. Amith Krishnan H.
Amicus Curiae: Senior Advocate Sri. P. Deepak,
Case Title: Suo Motu Writ Petition v. State of Kerala and Others
Neutral Citation: 2025:KER:30823
Case Number: WP(C) No. 23838 of 2021
Bench: Chief Justice Nitin Jamdar, Justice Ziyad Rahman A.A.
[Read/Download order]
