Walayar rape: Kerala High Court says request by victims' mother must be factored in appointing prosecutor

In a recent development to the Walayar rape and death case, the Kerala High Court has asked the Central government to consider a request by the mother of the minor victims to appoint advocate Rajesh M Menon as the Special Public Prosecutor in the case..The Court explained that though the decision to appoint a Public Prosecutor or Special Public Prosecutor in a criminal case lies solely with the government, the victim or their representative also has a say in the matter.Justice A Badharudeen said that a victim or somebody on their behalf can request for the appointment of a lawyer of his or her choice as the prosecutor, where such a lawyer is competent to be appointed in such a capacity.However, the Court clarified that the final decision would rest with the concerned government (Central government, in this case). "Thus, while holding that, appointment of Public Prosecutor or Special Public Prosecutor is the absolute power of the appropriate Government, it is ordered that the respondents concerned may consider prayers in ... representations, in consideration of the plight of the petitioner in the facts of the given case, so as to appoint Adv. Rajesh M. Menon as the Special Public Prosecutor in the present case," it ordered in the June 12 judgment.An appropriate decision in this matter shall be taken within three months, the Court added..The Walayar rape case involved the sexual assault and suicide of two minor girls. The two sisters, aged 9 and 13 years at the time, were found hanging on separate dates at their home in 2017. It was alleged that the victims had been sexually assaulted and had taken the extreme step due to trauma.The accused in the case were initially acquitted by a trial court in 2019. The family then approached the Kerala High Court, which set aside the order of the trial court acquitting the accused and ordered a re-trial in 2021. The Court also allowed a further investigation of the case, and the probe was eventually entrusted to the Central Bureau of Investigation (CBI) on a request by the victims' parents. .The victims' mother later prayed for the appointment of a Public Prosecutor of her choice to argue the case during the re-trial.Her counsel submitted that representations were made to the government to appoint advocate Rajesh M Menon as the Special Public Prosecutor. However, this request was opposed by the CBI since Menon had earlier represented the victims' kin before the trial court..The High Court, however, disagreed with the CBI's stance that neither the victim nor the accused have a say in the matter of appointing a prosecutor."A victim or somebody on behalf of victim can request for appointment of a lawyer of his/her choice for appointment of Public Prosecutor or Special Public Prosecutor, though, indubitably, appointment of Public Prosecutor or Special Public Prosecutor in the absolute power of the appropriate Government. But that does not mean that while exercising the power to appoint Public Prosecutor or Special Public Prosecutor the appropriate Government should negate the request of the victim or somebody on behalf of the victim," the Court said..Looking into the history of the case, the Court also observed that the accused had been acquitted earlier due to a defective investigation. "This is the context in which the petitioner, who is the mother of the victims, insists a lawyer of her choice to be appointed as the Special Public Prosecutor in the instant case to ensure effective prosecution without malafides. Therefore, the bonafide intention of the mother of the victims, who suffered negative verdict during the earlier stage, to have effective further investigation and eventful prosecution by appointing a Special Public Prosecutor to whom she had belief and confidence could not be faulted at all," the Court explained. .The Court opined that the apprehensions of the victims' mother were worth noting, particularly since her attempt to get justice for her children had earlier failed in the first round of litigation. "Therefore, the request made by the learned counsel for the petitioner/mother of the victims to appoint Adv.Rajesh M.Menon, who, in fact, is competent to deal with complex cases of this nature, should have predominance and the same need not be brushed aside," the Court said. .Accordingly, the Court directed the Central government to consider the petitioner's (victims' mother) request to appoint advocate Menon as the prosecutor in the Walayar rape case..Advocate PV Jeevesh represented the petitioner (victims' mother). Additional Director General of Prosecution Grashious Kuriakose appeared for the State of Kerala.Advocate Sreelal N Warrier represented the CBI. Senior Public Prosecutor Renjit George also appeared in the matter..[Read Judgment]