Walayar Case: Kerala High Court Says Victim's Request for Special Public Prosecutor Should Be Considered
The Kerala High Court held that appointment of a Public Prosecutor or Special Public Prosecutor is ultimately a power of the appropriate Government, but a genuine request made by a victim or the victim's representative for a competent advocate should not be mechanically ignored. In the Walayar matter, the Court directed the authorities to consider the mother's request for appointment of Advocate Rajesh M. Menon within three months.
What the petition sought
The petition arose from the proceedings concerning the deaths of two minor sisters at Walayar in 2017. After an earlier trial ended in acquittals, the Kerala High Court set aside the acquittal judgments in 2021 and ordered a retrial. Further investigation was later entrusted to the Central Bureau of Investigation.
The mother of the children requested that Advocate Rajesh M. Menon be appointed as Special Public Prosecutor. She approached the High Court after representations seeking his appointment had not resulted in the relief sought.
Who has the power to appoint a Special Public Prosecutor?
The High Court made clear that the final statutory power of appointment lies with the appropriate Government. In a CBI prosecution, the Central Government may exercise the relevant appointment power in accordance with the applicable criminal procedure law.
At the same time, the Court rejected the proposition that a victim or the victim's representative has no meaningful voice at all in the appointment process.
Section 24(8) CrPC and the victim's advocate
The 2024 judgment was delivered under the Code of Criminal Procedure, 1973. Section 24(8) authorised the Central Government or State Government to appoint, for any case or class of cases, an advocate having the prescribed minimum standing as a Special Public Prosecutor.
The proviso to Section 24(8) also recognised that a court may permit the victim to engage an advocate of the victim's choice to assist the prosecution. The High Court treated this statutory recognition of the victim's role as relevant while considering the mother's representation.
The judgment therefore drew a distinction between the Government's exclusive appointment power and the victim's legitimate right to have a bona fide request considered rather than summarily disregarded.
Why the High Court gave weight to the mother's request
Justice A. Badharudeen considered the history of the case, including the earlier acquittals and the subsequent order for retrial and further investigation. The Court found that the mother's desire for effective prosecution through an advocate in whom she had confidence could not be faulted merely because the prosecution agency preferred another lawyer.
The CBI opposed the requested appointment, including on the ground that Advocate Rajesh M. Menon had earlier represented the family. The High Court nevertheless held that the representation deserved genuine consideration by the competent authority.
Direction issued by the Kerala High Court
| Appointment power | The appropriate Government retains the statutory power to appoint a Public Prosecutor or Special Public Prosecutor. |
|---|---|
| Victim's request | The request made by the victim or the victim's representative should be meaningfully considered and need not be brushed aside merely because the prosecution agency proposes another advocate. |
| Advocate requested | Advocate Rajesh M. Menon. |
| Time granted | The competent authorities were directed to take an appropriate decision on the representations within three months. |
Current criminal procedure law: BNSS and the saving for older cases
The Bharatiya Nagarik Suraksha Sanhita, 2023 came into force on 1 July 2024 and replaced the Code of Criminal Procedure, 1973 for new criminal proceedings. Section 18 of the BNSS now deals with Public Prosecutors and Special Public Prosecutors and substantially carries forward the relevant framework.
- BNSS Section 18(8): permits the Central Government or State Government to appoint a qualified advocate as Special Public Prosecutor for a case or class of cases.
- Victim's advocate: the proviso recognises that the court may permit the victim to engage an advocate of the victim's choice to assist the prosecution.
- BNSS Section 531: preserves the CrPC, 1973 for appeals, applications, trials, inquiries or investigations that were already pending immediately before the BNSS came into force.
Because the Walayar criminal proceedings and investigation pre-date 1 July 2024, the saving clause in Section 531 is important. Pending proceedings of that character continue under the Code of Criminal Procedure, 1973 as if the BNSS had not come into force.
Later procedural developments in the Walayar cases
The procedural position changed materially after the 2024 judgment. In 2025, the CBI filed fresh or additional charge sheets in the Walayar matters and named the parents as accused in connection with alleged acts and omissions concerning the children's deaths. Those allegations have been disputed by the parents and are not findings of guilt.
The parents approached the Kerala High Court seeking to quash the CBI charge sheets. During those proceedings, the High Court granted interim protection against coercive steps for periods while the challenge was being considered.
Continuing judicial monitoring in 2026
Separate proceedings before the Kerala High Court in 2026 have continued to seek status information from the CBI concerning investigations connected with the Walayar cases. This indicates that judicial scrutiny of the broader investigation remained active after the original 2024 prosecutor-appointment ruling.
Present legal takeaway
The judgment establishes a balanced rule. Prosecutorial appointments remain an executive statutory function, but victims are not legally irrelevant to the process. A competent authority should consider a genuine request from the victim or representative on its merits, particularly where confidence in the prosecution has become an issue because of the history of the case.
This article summarises the Kerala High Court judgment dated 12 June 2024 and adds the current CrPC/BNSS position and later procedural developments verified through 2026. Allegations contained in later charge sheets are described only as allegations pending judicial determination.