15-6-2024
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.
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