Karnataka High Court quashes appointment of Public Prosecutors as Special Public Prosecutors to POCSO Courts

The Karnataka High Court recently quashed the State government’s decision to nominate its regular Public Prosecutors (PPs) as Special Public Prosecutors (SPPs) for courts under Protection of Children from Sexual Offences Act (POCSO Act) [Raghavendra YT & Others v. State of Karnataka]..Justice N Sanjay Gowda ordered the State government to appoint Special Public Prosecutors under the POCSO Act instead of having regular prosecutors fill the role. The same has to be done within a period of three months. In the meantime, the Court said the lawyers appointed earlier as SPPs on a contract basis will resume their duties.“The exercise of appointing such Special Public Prosecutors shall be undertaken and completed within a period of three months from the date of receipt of a copy of this order,” ordered the Court..The Court passed the directions while hearing a batch of petitions by advocates who had been appointed as SPPs on a contract basis to conduct cases in POCSO courts. The lawyers challenged a November 2022 notification assigning regular Public Prosecutors to the Special Courts.It was contended the State cannot do so under the law and that the tenure of some of the petitioners as SPPs was still subsisting.Defending its decision, the State government contended that it has the requisite powers to do so under the POCSO Act. It also submitted that the lawyers who were on contract, cannot seek regularisation as they had given an undertaking that they will not do so. .After considering the arguments, the Court noted that Section 32 of the POCSO Act clearly states that the State government is required to appoint an SPP for every special court. “One significant factor to be noticed in Section 32 of the POCSO Act is that the State Government should appoint a Special Public Prosecutor for every Special Court and the person so appointed shall conduct cases only under the provisions of the POCSO Act."In this context, the Court also noted that an SPP cannot conduct any cases other than the cases that are to be tried in the special courts..It also recorded a submission by Advocate General Shashi Kiran Shetty that the procedure prescribed in the Supreme Court judgment, In Re: Alarming Rise in the Number of Reported Child Rape Incidents would have to be followed in the matter of appointment of SPPs.Looking into the top court’s decision, the High Court noted that it has been clearly laid down that SPPs under the POCSO Act cannot take up any work other than the cases entrusted to them in the special courts. “In light of this decision, the State Government would not be justified in issuing a Notification assigning the existing Public Prosecutors as Special Public Prosecutors,” the Court opined..The Court also found a vast difference between the mode of appointing an SPP under the POCSO Act and a Public Prosecutor under the Code of Criminal Procedure.In view of the above, it held that employees who are in the regular cadre of prosecuting officers cannot be appointed as SPPs under POCSO Act.Thus, it quashed the government decision. However, the Court also found that the State government was not right in appointing the petitioners as SPPs since the due procedure was not followed for them either.“The Notification under which the present petitioners were appointed does not create a bar as envisaged by the decision of the Hon’ble Supreme Court, inasmuch as there is no restriction for the Special Public Prosecutors to be appointed under the POCSO Act to deal with other cases,” it explained..Thus, the Court said the petitioners also cannot be permitted to continue as SPPs as that would be against the law declared by the Supreme Court.However, to avoid the absence of SPPs in the POCSO Courts due to its decision to quash the government decision appointing regular PPs as SPPs, the Court passed the following direction, “Having regard to the vacuum that would be created as a result of this order, until such appointments are made, the persons who were working as Special Public Prosecutors in Special Courts on Contract basis shall continue to function as Special Public Prosecutors as an interim measure, till Special Public Prosecutors are appointed as ordered above.".Senior Counsel PP Hegde with advocate Venkatesh Somareddi represented the petitioners.Advocate General Shashi Kiran Shetty, Additional Advocate General VG Bhanu Prakash and Additional Government Advocate B Ravindranath represented the State..[Read Judgment]