Hari.V.R vs The District Collector And ...
2021 Latest Caselaw 4802 Ker

WA.No.295 OF 2021               -1-

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                  &

               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

   WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

                          WA.No.295 OF 2021

  AGAINST THE JUDGMENT IN WP(C) 14771/2020(V) OF HIGH COURT OF
                             KERALA


APPELLANT/S:

                HARI.V.R
                AGED 42 YEARS
                S/O.LATE RAJAN, SOUMYA, MAKKAMKUNNU P.O.,
                PATHANAMTHITTA, PIN-689 645.

                BY ADVS.
                SRI.M.T.SURESHKUMAR
                SRI.R.RENJITH

RESPONDENT/S:

      1         THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE
                COLLECTORATE, PATHANAMTHITTA P.O., PATHANAMTHITTA
                DISTRICT, PIN-689 645.

      2         STATE OF KERALA,
                REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT
                SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.

      3         ANIL P.NAIR,
                AGED 50 YEARS
                ADVOCATE, S/O.T.K.REGHUVARAN NAIR, RESIDING AT
                SREEPADAM, PANNIVIZHA, ADOOR P.O., PATHANAMTHITTA
                DISTRICT-691 523.

      4         KIRAN RAJ.R.,
                EETIVILAYIL, KOODAL, PATHANAMTHITTA DISTRICT, PIN-
                689 693.
 WA.No.295 OF 2021            -2-


             SRI. N.MANOJ KUMAR SPL GP FOR R1 AND R2,
             SRI.KRISHNADAS P NAIR, FOR R3

     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA.No.295 OF 2021                 -3-




                            JUDGMENT

Dated this the 10th day of February, 2021

S. Manikumar, C. J.

Before the writ court, petitioner has sought for a mandamus,

directing the respondents therein, to appoint Special Public

Prosecutors in the Special Fast Track Court (SFTC), Pathanamthitta,

for POCSO cases, from the list of 17 Advocates, prepared initially.

2. Petitioner has also sought for a direction, to the respondents

therein, to appoint more experienced lawyers, as Special Public

Prosecutors, for POCSO cases, in compliance with Section 24 (8) of

the Code of Criminal Procedure, 1973.

3. Though several grounds have been made in support of the

prayers sought for, after considering the rival submissions and

statutory provisions under Section 24 (4) of the Criminal Procedure

Code and Section 32 of the Protection of Children from Sexual

Offences Act, 2012, writ court by judgment dated 19.08.2020 in

W. P. (C) No. 14771 of 2020, declined to grant the reliefs sought for

by the petitioner, as hereunder:-

"It is not in dispute that the process of consultation between the District Collector and the District Judge is liable to be carried out even in the matter of appointment of Special Public Prosecutors under the POCSO Act. The contentions of the learned counsel for the petitioners with regard to the qualification and length of practice, therefore, cannot be sustained in view of the fact that a due consultative process had been carried out and the qualifications under Section 32 had also been taken note of while conducting the selections as per the procedure provided under Sections 24(4) and 24(5) of the Cr.P.C. The contention of the petitioners that there were two lists forwarded by the District Collector also therefore is not sustainable in view of the explanation provided in the statement filed by the Special Government Pleader. It appears that a due consultative process between the District Collector and the District Judge had occurred on 17.6.2020 and 18.6.2020 and that a list of selected candidates had been forwarded to the Government by the District Collector after such consultation. If that be so, I am of the opinion that the procedure as provided under Section 32 of the POCSO Act read with Section 24(4) of the Criminal Procedure Code has been duly complied with in the matter of conduct of selection. Ext.P10 would also show that the applicant who had been selected and appointed was a person who was included in the list of applicants initially forwarded by the District Judge pursuant to Ext.P1 itself and therefore the further contentions

raised as against inclusion of persons who submitted their applications later would not be relevant any more. Further, I am of the opinion that the details of the consultation between the District Judge and the District Collector and the rationale behind their excluding or including any person in the select list are not matters which are justiciable before this Court under Article 226 of the Constitution of India.

In the above view of the matter and in view of the finding that consultation had been carried out between the District Collector and the District Judge as provided in the Cr.P.C., I am of the opinion that the prayers sought for cannot be granted. Writ petitions fail and the same are accordingly dismissed."

4. Being aggrieved, instant writ appeal is filed.

5. Material on record discloses that, writ petition has been filed

on 21.07.2020. However, subsequently, Government of Kerala, Home

(C) Department, have issued a notification, G. O. (Rt) No.

1728/2020/Home dated 05.08.2020, appointing 9 Special Public

Prosecutors, in the Fast Track Special Courts, constituted, exclusively

for the conduct of rape cases, and cases under the Protection of

Children from Sexual Offences Act, 2012 (Central Act 32 of 2012).

6. Earlier, when a Public Interest Litigation W. P. (C) No. 16773

of 2020 was filed, seeking for a mandamus, to appoint Special Public

Prosecutors in the Fast Track Special Courts, set up exclusively for the

speedy disposal of rape cases, and cases registered under the

Protection of Children from Sexual Offences Act, 2012, after hearing

Mr. N. Manoj Kumar, learned Special Public Prosecutor, we have

recorded the appointments of 27 Special Public Prosecutors, to 28 Fast

Track Special Courts, constituted for the abovesaid purpose, except

for Palakkad District, which appointment is stated to be still pending.

7. Notification has been issued on 05.08.2020, appointing Sri.

Kiran Raj R. Eettivilayil, Koodal, Pathanamthitta, as a Special Public

Prosecutor, for the Fast Track Special Court, Pathanamthitta. The said

appointment is subsequent to the filing of the writ petition. If for any

reasons, the appellant is aggrieved by the appointment of the said

Kiran Raj R., as a Special Public Prosecutor, for the Fast Track

Special Court, Pathanamthitta, the remedy open to him, is only to

challenge the said notification dated 05.08.2020, which apparently,

has not been done, even after the issuance of the notification.

8. The relief sought for in the writ petition, is for a direction to

the respondents, to appoint Special Public Prosecutors in Special Fast

Track Court (SFTC), Pathanamthitta, for POCSO cases, from the list

of 17 Advocates, prepared initially, no longer survives, when the

notification is issued. Appellant cannot insist for a mandamus, even

after the notification is issued.

Second prayer, to appoint more experienced lawyers, as Special

Public Prosecutors, in compliance with Section 24 (8) of the Criminal

Procedure Code, 1973, would be a matter for consideration on merits,

if the appellant had challenged the notification.

In the light of the discussion, this writ appeal is dismissed.

Sd/-

S.MANIKUMAR CHIEF JUSTICE

Sd/-

SHAJI P.CHALY JUDGE

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