Public Prosecutor-an in-Depth Analysis

We deem it our utmost privilege to present this research paper on the topic of Public Prosecutors: An in-depth analysis. At the outset, we would like to express our deepest gratitude to the respected Director, Mr. Bimal Patel, Gujarat National Law University, for granting this wonderful opportunity to research for which we shall remain indebted forever. At this juncture, we would like to express our deepest gratitude to Ms.

Soma Battacharjya, Assistant Professor of Law at the Gujarat National Law University, for her immense resourcefulness and precious guidance in the course of preparing this research paper. It is indeed impossible to forget to mention the names of everyone- friends, fellow students, resourceful bloggers and legal experts who have helped us formulate our ideas through stimulating discussions. Therefore, all in all, we take this opportunity to express our heartfelt gratitude to one and all under whose valuable support our crude brainwave has finally materialized into this cogent and coherent document. Introduction.

In organized societies, there is a public prosecution system to prosecute offenders who violate societal norms. The system in common law countries differs from that in the continental countries, but in both, this office is a centre of attraction, a power centre. It wields a lot of authority. It is the repository of the public power to initiate and withdraw prosecution. These powers are untrammeled in continental counties, where this office is called procurator. The word ‘procurator’ is derived from the Latin word procuro, which means ‘care, secure, protect’.

Though the prosecutors in the common law countries do not carry these adulations, it appears the powers exercised by procurators are similarly understood to be available to the prosecutors in common law countries. However, many of the main powers are not available. In continental countries the procurator is looked upon as the strict eye of the state. He prohibits, punishes and prevents. The defence lawyer is viewed as defender. One of the procurator’s chief functions must be to protect citizens’ legitimate rights and interests with actions, not words, as prescribed by the law.

The impression that the procurator is independent and impartial is accepted in the common law countries though in fact in these countries they may not be impartial. Even in the face of statutory provisions to the contrary, their traditional rights like nulle prosequi are accepted. Therefore, generally speaking, it could be said that the prosecution system in common law countries works within the statutory provisions in the context of traditional powers and duties attached to this office in continental countries.

In India, the criminal justice system has four important components namely, the Investigating Agency (Police), the Judiciary, the Prosecution Wing and the Prison and Correctional Services. The police forces are raised by the state under the Indian Police Act, 1861. Their basic duty is to register cases, investigate them as per the procedure laid down in the Code of Criminal Procedure (to be referred to as the Code hereinafter) and to send them up for trial.

It is the duty of the state to prosecute cases in the courts of law. The state governments have constituted cadres of public prosecutors to prosecute cases at various levels in the subordinate courts and the High Court. Decisions of the courts depend on the skills of the public prosecutors. Prosecutors institutes and carries proceedings in a court of law, especially in criminal court. Research oriented and sincere prosecutors definitely contribute in the well organized criminal justice system in India.

One of the aims of Criminal Justice Reform 2003 was to face the challenge before existing criminal Justice System in India as to improve the level of professional competence of the prosecutors and to insure they function in coordination with the investigation agency. The prosecutors are one of the major components in the criminal justice system “The prosecutors have more control over life, liberty and reputation than any other person in America. ” Therefore, in most of the countries prosecutors are indispensible authority.

Prior to the enactment of the Code of Criminal Procedure, 1973, public prosecutors were attached to the police department and they were responsible to the District Superintendent of Police. However, after the new Code came into force in 1973, the prosecution wing has been totally detached from the police department. The prosecution wing in a state is now headed by an officer designated as the Director of Prosecutions. In some states, he is a senior police officer and in others, he is a judicial officer of the rank of District and Sessions Judge.

He is assisted by a number of Additional Directors, Deputy Directors and Assistant Directors, etc. This project aims at doing an in-depth analysis of public prosecutors, their evolution, and developments in the criminal justice system along with their duties. It further attempts to enlist certain suggestions which can be incorporated in our criminal justice system for better administration of justice to one and all. Appointment of Public Prosecutors and other provisions.

Section 24 provides for the appointment public prosecutors in the High Courts and the district by the central government or state government. According to sub-section 3, the state government shall appoint a public prosecutor for every district and may also appoint one or public prosecutors for the district. Sub-section 4 lays down the requirement that for such appointment the district magistrate is to prepare a panel of names of persons considered fit for such appointment, in consultation with the Sessions Judge.

Sub-section 5 contains an embargo against appointment of any person as the public prosecutor or additional public prosecutor in the district by the state government unless his name appears in the panel prepared under sub-section 4. Sub-section 6 prescribes for such appointment wherein a state has a local regular cadre of Prosecuting officers, but if no suitable person is available in this cadre, then the appointment has to be made from the panel prepared under sub-section 4.

According to sub-section 7, person shall be eligible for such appointment only after he has been practised as an advocate for not less than seven years. Under sub-section (u) of Section 2, Public Prosecutor includes “any person acting under the directions of a Public Prosecutor. ” The Central Government or the State Government may appoint for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.

According to sub-section (9), for the purposes of sub-section (7) and sub-section (10), the period during which a person has been in practice as a pleader, or has rendered (Whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.

Classes of Public Prosecutors- There are under Section 24, read with S. 2(u), the following classes of Public Prosecutors: 1) Public Prosecutors appointed by the Central Government, and 2) Public Prosecutors appointed by the State Government , under sub-section (1) Public Prosecutors, and Additional Public Prosecutors, appointed by the State Government under sub-section (2). 3) Special Public Prosecutors appointed by the Central Government, and 4) Special Public Prosecutors appointed by the State Government under sub-section (6).

Since, there is no mention of extension or renewal of the term of the person appointed as Public Prosecutor in Section 24, so the same procedure, as provided under sub-section (4) of Section 24 has to be followed. Thus, when sub-section (4) and sub-section (5) of this section of the Code speak about preparation of a panel, out of which appointments against the posts of Prosecutor or Additional Public Prosecutor have to be made, then the Sessions Judge and the District Magistrate are required to consult and discuss the names in the panel.

The expression “panel of names of persons” do not mean that some comments are to be made in respect of these names by the District Magistrate, without proper consultation over such names. The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the courts of magistrates. The Central Government may appoint one or more Assistant Public Prosecutors for the purpose of conducting of any case or class of cases in the courts of magistrates.

Save as otherwise provided in sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor. Where no Assistant Public Prosecutor is available for the purposes of any particular case the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case, provided that a police officer shall not be so appointed- (a) if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted, or (b) if he is below the rank of Inspector.

Section 25 deals with the appointment of an assistant public prosecutor in the district for conducting prosecution in the courts of magistrate. In the case of a public prosecutor also known as district government counsel (criminal) there can be no doubt about the statutory element attached to such appointment by virtue of this provision in the CrPC 1973. In this context, Section 321 of the CrPC is also relevant. It permits withdrawal from prosecution by the public prosecutor or assistant public prosecutor in charge of a case with the consent of the court at any time before the judgment is pronounced.

This power of the public prosecutor in charge of case is derived from the statute and must be exercised in the interest of the administration of justice. There can be no doubt that this function of the public prosecutor relates to a public purpose entrusting the officer with the responsibility of so acting only in the interest of administration of justice. This section would not be applicable to security proceedings. It applies only where the proceedings would end in an acquittal or discharge of the accused.

A proceeding under section 107 does not terminate in either if these ways. * State Amendments and Law Commission reports * * Section 24: 1. Bihar act no. 16 amendment was made in the year 1984, in this amendment it was said that sub section 6 of section 24 was to be substituted containing that notwithstanding anything in sub section 5 of section 24, the state government can appoint public prosecutor even if there exists a regular cadre, from the list of public prosecutor or additional public prosecutor which already constitutes such cadre.

* If, we compare to this section with the state amended section then it is clearly stated that government can only appoint a public prosecutor from the regular cadre that is available and in case where there is no such capable person who can be appointed as a public prosecutor, only then provided the government can appoint such a person from the list made by district magistrate of such public prosecutors and additional public prosecutors. 2. Haryana act no.

14 of 1985, mentions that in relation to the persons to be added in the regular cadre of such public prosecutors, all those who are a part of Haryana state Prosecution Legal Service also known as (Group A) or Haryana State Prosecution Legal Service (Group B), shall be allowed to be a part of regular cadre for appointing such public prosecutors for the state. * In comparison to the original legislature, it is only adding the two groups that have to be added for the appointment of such public prosecutors. 3. Madhya Pradesh act no.

21 of 1995, the first amendment is regarding the punctuation marks and the second is stating regarding the appointment that even an advocate who has practiced for seven years or more can be selected by the state government for the post of pp and the process of selection should be followed as stated in sub section 4 and 5 of the original act. Whereas in Madhya Pradesh amendment third and fourth is related to the punctuation marks changed and substituted in sub section 7 and 9 of the original legislature. 4.

In Maharashtra amendment, the words in consultation with the High Court is deleted from sub section 1 and in Ss 4 the words with the approval of the state government has been substituted in place of with the consultation of sessions judge. 5. Rajasthan amendment was made in section 24 (6) stating that state government may appoint person as public prosecutor from such prosecutors who are a part of such cadre and after interpreting this amendment it can to concluded that here the state legislature has given more importance (priority) to the appointment of the public prosecutor from such regular cadre then from any other list, specified.

6. In the state amendment of Tamil Nadu, the first amendment is for inserting, but the subject to the provisions of sub-section (6-A), substituting sub-section 5 and the later amendment talks about the appointment of the public prosecutor by selecting a person who is a practicing advocate for not less than seven years following the procedure as per sub-section 4 and 5. A minor amendment was made in an expression under sub-section 7 of section 24. 7. In Uttar-Pradesh amendment act no.

33 of 1978 the first change made was and one or more additional public prosecutors shall be inserted instead of the words public prosecutor and also an addition was done of sub-section 7 stating that for appointing a public prosecutor or an additional public prosecutor or an assistant public prosecutor, the time period for which he has practiced as an advocate shall be taken into consideration. * Later on, in the year 1991 after an act passed of no. 18 it was amended that in consultation with the high court shall be omitted and Ss.

4, 5, 6, shall be omitted and also in Ss. 7 the words or sub section 6 has to be omitted. 8. In West-Bengal, it act no. 26 of 1990, the word “may also appoint a public prosecutor or an additional public prosecutor” needs to be substituted by with “Shall also … ” * Later, act no. 25 of 1992, omitted the proviso in Ss. 6 of the original legislature. * * As, there was ambiguity regarding the term “regular cadre of prosecuting officers”, and there was confusion as to who can be included in this particular term, this Ss.

6 of the section 24 shall be amended. * * Section 25: 1. In Orissa’s act 6 of 1995, stated that Ss. 2 of section 25 as amended says that there should be prohibition of police officer’s control totally from the matter. 2. In Uttar-Pradesh act no. , 16 of 1976, regarding the same sub-section which was totally opposite which was amended in Orissa’s amendment, stating that nothing (no provision) should prohibit state government to exercise control over Assistant Public Prosecutors through police officers. 3.

In West-Bengal act 17 of 1985, states that whenever there is a Judicial Magistrate, District Magistrate, Sub-Divisional Magistrate appointed and is situated apart from the jurisdiction where the matter has to be carried on then such authority can appoint an advocate specially authorised on behalf of an assistant public prosecutor or also appoint a local officer apart from police officer for such matters.

* There was an amendment made under section 25 and 25A was inserted stating that there shall be a directorate of prosecution consisting of a director and a deputy director, both of thm should be qualified for not less than 10 years of practice as an advocate. Also, it has to perform under the administrative control of the Home Department and the sole purpose behind constituting such directorate of prosecution was to make all, Public prosecutor, additional PP, special PP, work under the director and the director will be the head of such department.

Similarly, PP, Additional PP of district court and assistant PP, shall work under the deputy director for such matters. Work allocation to the director and the deputy director will be done by the state government. * Also, section 321 of CrPC has been violated to a great extent by the state government for fulfilling their political purpose, which deals with the application to withdraw the pleadings anytime before the judgement is delivered.

So, there was uproar regarding this arbitrary and vague power of the prosecution as well as there were many conflicts related to the appointment of the PP and states were amending its legislation as required which created an atmosphere of irregularity. Because of which the Prime Minister’s office raised three serious matters, the law commission was called upon to discuss the matter: * Questions raised: 1. “Regular Cadre of Prosecuting Officer”, * Please specify this term, as there are many states having completely scrapped this regular cadre appointment provision.

* Can we restrict this term the appointment of additional PP and PP only to regular cadre and also not to the list that has been given by the district magistrate? * Can all the states restore this provision of regular cadre within a specified time limit and maintain the same. * This has to be done so that all the PP and additional PP are recruited only from this regular cadre. 2. Many states have also removed the provision of consulting the sessions judge and some states have substituted it with Chief District Magistrate rather than sessions judge. All the states shall be ordered to restore this provision mandatorily.

3. Institutional mechanism and safeguard * There has to be standards which can be maintained while appointing PP, and such standards shall be compared with the experience gained, integrity of a person (can conduct a test), past records should be checked. * Law Commission replied to the questions stating that: 1. Answer to regular cadre term: * We don’t favour the appointment of PP and additional PP completely from regular cadre because the regular cadre mostly contains assistant PP and their promotion cannot be discussed upon as it will be detrimental to the entire criminal justice system.

Reason being that they function in the court of magistrate and if they are appointed at sessions court they will have to again gain experience of working in a sessions court which will slow down the procedures as well as will increase the backlog of cases on judiciary and if they are given the work of assistant PP in the court of magistrate then it will be quicker and will be done effectively as such assistant PP has been practicing in this courts since long period of time and they have experience regarding the same.

Also, the nature of offences to be dealt, are much more serious in nature then the matters coming to the magistrate court, which is also out of their practice and the procedure of sessions court is completely different from that of the magistrate court. * Also, if we do not undermine the experience of the assistant PP, then too, sole appointment from the regular cadre will not be beneficial at large. * If, experienced lawyers at the bar of sessions court are not appointed as PP and additional PP, it will be detrimental to criminal justice system.

* The law commission came to conclusion that PP will solely be appointed from the bar of sessions court and for additional PP, 50% will be appointed from the bar of sessions court and the rest 50% from the regular cadre. * Entry 2 of the concurrent list – CrPC states that we cannot stop the state from exercising its power under A. 254(2) and there is a scheme in A 14 regarding the selection procedure which has to be incorporated for the selection procedure. 2. Consultation should be restored:

* The appointment has to be done from the bar of sessions court and for that sessions judge is the best person to be consulted with before appointing a person as PP and such consultation is mandatory. * If state wants to remove this procedure then it will be in violation with A 14 of the constitution. * Sessions Judge when consulted for this post has to take into consideration the past history, experience, truthfulness and integrity before suggesting the name of such person.

* Also for the matter of appointing 50% of person from the regular cadre a committee has to be constituted which may consist of a law secretary, secretary of governmental department, retired or sitting judge of H. C. , director of prosecutor. This will help in the proper screening of assistant PP and they will also suggest a name for the post of additional PP. 3. Selection procedure: * Incorporation of A. 14 in the consultation and committee procedure (selection procedure).

* Also, truthfulness, integrity, past record etc., will be taken into consideration in the screening procedure. * Duties of public prosecutor Despite the fact that the Public Prosecutor is appointed by the State, her/his sole aim is not to seek a conviction. The Indian judiciary has interpreted role, responsibilities and duties of prosecution as follows: The ideal Public Prosecutor is not concerned with securing convictions, or with satisfying departments of the State Governments with which she/he has been in contact but is the one who considers himself/herself as an agent of justice.

The duty of a Public Prosecutor is not to represent any particular party, but the State. The prosecution of the accused persons has to be conducted with the utmost fairness. The only aim of a Public Prosecutor should be to aid the court in discovering truth. A Public Prosecutor should avoid any proceedings likely to intimidate or unduly influence witnesses on either side.

The duty of a public Prosecutor is not merely to secure the conviction of the accused at all costs but to place before the court whatever evidence is in the possession of the prosecution, whether it be in favour of or against the accused and to leave the court to decide upon all such evidence, whether the accused had or had not committed the offence with which he stood charged. It is as much the duty of the Prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. The duty of the Public Prosecutor is to represent the State and not the police.

A Public Prosecutor should discharge her/his duties fairly and fearlessly and with full sense of responsibility that attaches to his/her position. A Public Prosecutor cannot appear on behalf of the accused. It is inconsistent with the ethics of legal profession and fair play in the administration of justice for the Public Prosecutor to appear on behalf of the accused. It is the duty of the Public Prosecutor that he does not act in a manner as if he was defending the accused. This does not amount to fair trial.

The Criminal Procedure Code is the only master of the Public Prosecutor and he has to guide herself/himself with reference to Criminal Procedure Code only. The sole consideration for the Public Prosecutor when she/he decides a withdrawal from a prosecution is the larger factor of administration of justice, not political favours nor party pressures nor like concerns. It is the duty of the public prosecutor to bring the issue to the notice of the court if the defence could have raised that issue but has failed to do so.

Cases reflecting duties of prosecutor towards accused during trial Examination of witnesses: In Darya Singh v. State of Punjab, it is held that the prosecutor must act fairly and honestly and must never allowed the devise of keeping back from the court eye witnesses only because their evidence is likely to go against the prosecution case. The duty of the prosecutor is to assist the court in reaching a proper conclusion in regard to the case, which is brought before the trial. Giving copies to the accused: In State of Kerala v.

Raghavan, it is held that ‘Moreover, if the argument that the accused is not entitled to get copies of statements on which the prosecution does not seek to rely is accepted it would imply that the prosecution can, at its sweet will and pleasure pick and choose the statements of witnesses in respect of which the copies are to be, or are not to be, furnished to the accused to suit its convenience, thus eliminating all chances of the witnesses being confronted with their previous statements inconsistent with or contradictory to the case which the prosecution seeks to establish which could never be the intention of the legislature. Not to suppress material facts:

As per the provisions of CrPC and Indian Evidence Act there is a total prohibition in using a statement recorded under Section 161 of Cr. PC except for contradicting a witness. When a material fact which is capable of proving the defence case or capable of creating reasonable doubt in the prosecution case is stated by witnesses in a statement recorded by the police, the accused or his agents cannot use it if the Public Prosecutor decided not to examine those witnesses.

Though the accused can examine those witnesses as defence witnesses, if those witnesses omitted to state that material fact the accused could not contradict with that previous statement as held in Tahsildar Singh v. State of Punjab. Avoid leading Questions: In Varkey Joseph v. State of Kerala (1993),it is held that ‘it is generally the duty of the prosecutor to ask the witnesses to state the facts or to give his own account of the matter making him to speak as to what he has been.

The prosecutor will not be allowed to frame his question in such a manner that the witnesses answering merely yes or no will give the evidence which the prosecutor wishes to elicit’. Avoid putting forth a new case different from the charge in surprise of the accused: It is the duty of the prosecution to prove the prosecution story as alleged. It is not fair on the part of the prosecutor to create a prosecutor’s story. It must stand on its own legs as held in Bhageerath v. State of MP.

It cannot take advantage of the weakness of the defence or make out a new case for the prosecution and convict the accused on that basis. Section 308 of Cr. PC and the duty of the prosecutor: As per sections 306 and 307 a magistrate or a trial judge, as the case may be have the power to grant pardon to an accused with a view to obtaining evidence in cases where the conviction of any accused is otherwise not possible. It is the duty of prosecutor to observe carefully the conduct of the approver and his statements with a view to make it sure that the accused persons also get fair trial.

Role of prosecutor in withdrawal from prosecution: The full bench of the Kerala High Court in Deputy Accountant General v. State of Kerala, held that by incorporating the section in the statute book the legislature gave a wide power to the public prosecutor to withdraw an accused from the prosecution.

When the parliament conferred the wide discretion envisaged under section 321 of Code on a public prosecutor a special confidence has been reposed in his high office that the discretion would not be exercised unfairly or defeating the administration of the criminal justice. Hence the prosecutor should apply his mind independently and must be fair to the accused also. Public Prosecution: In need of reforms A deadly mix of lack of investment in human resources and infrastructure and an archaic structure of police that breeds incompetence, an abysmally low judge strength and not the least, rampant political interference in the process of law, have contributed to the disease that has behest our criminal justice system.

The criminal justice system- comprising investigation of crime and expeditious trial, while at the same time affording them all the protection for the safety of the innocent built into the system- evolved over years of experience of abuses and excesses. Each segment is in need of urgent and drastic form. Although the Law Commission in 1958 had recommended the setting up of a directorate of prosecution (DOP) with its own cadre such a recommendation was not adopted in the Criminal Procedure Code of 1973.

Therefore while some States have created the Directorate of prosecution, others have not (Arunachal Pradesh, Mizoram and Gujarat). Furthermore, in States which have DOPs too, there are differences. In Goa, the DOP covers the High Court, Sessions Courts and the Magistrate’s Courts. In Delhi, Karnataka, Himachal Pradesh and Orissa, the DOP excludes the High Courts. In a number of other States including Andhra Pradesh, Tamil Nadu, Uttar Pradesh and Uttaranchal, the DOP extends only to Magistrate’s Courts and Session and High Courts are excluded and prosecutors are appointed on tenure.

It was held by the Patna High Court in Kunja Subidhi and Anr. vs. Emperor that “the purpose of a criminal trial is not to support at all costs a theory but to investigate the offence and to determine the fault or innocence of the accused and the duty of the Public Prosecutor is to represent not the police but the Crown and his duty should be discharged by him fairly and fearlessly and with full sense of responsibility that attaches to his position. ” The Supreme court in Hitendra Vishnu Thakur v.

State of Maharashtra held that “A public prosecutor is an important officer of the state government and is appointed by the state under the Code of Criminal Procedure. He is not part of the investigating agency. He is an independent statutory authority. ” Prior to independence there was no requirement for the Public Prosecutor to be a lawyer, and the posts were generally held by police officers. This system worked in a colonial state where the prosecutors were crucial in suppressing and criminalising the struggle for independence.

Various reports of the Law Commission in 1958 and 1969 recommended the setting up of an independent prosecution agency. While this was not completely heeded by the Government, in the new Code of Criminal Procedure, the Public Prosecutors were required to be an advocate with a minimum of seven years practice. We need more judges but mere numbers would not help—quality is vital. The jobs have to be made financially attractive to get talent. In its report given in 1987, the Law Commission lamented that India has only 10.

5 judges per million population as against Australia at 41. 6, Canada at 75. 2, the UK at 50. 9 and the US at 107 per million. It suggested that India shou