This article is written by Richa Goel of Banasthali Vidyapith. In this article, she has discussed the concept of Public Prosecutor along with its provision and its important case laws.
A Public Prosecutor is considered as the agent of the state to represent the interest of common people in the criminal justice system. The prosecution of the accused is the duty of the state but not individually the duty of the aggrieved party. They are appointed in almost all countries. The Public Prosecutor is defined in Section 24 of Cr.P.C. They serve as the basic principle of Rule of Law i.e. auld alteram partem (no person shall be condemned unheard).
Section 2(u) of the Code of Criminal Procedure defines Public Prosecutor.
“A person who is appointed under Section 24 of CrPC and it also includes any person who is acting under the directions of Public Prosecutor.”
In the case of Babu vs State of Kerala,
The Court observed that Public Prosecutors are ministers of justice who is duty bound to assist the judge in the administration of justice.
The functions of the Public Prosecutor differ according to their designation.
- Public Prosecutor- supervise the function exercised by the Additional Public Prosecutor in Session Court and High Court.
- Chief Prosecutor- supervise the functions exercised by Assistant Public Prosecutor in Metropolitan Magistrate Court.
- Additional Prosecutor- conduct criminal proceedings in the Session Court.
- Assistant Public Prosecutor- they examine the charge sheet prepared by agencies and submit the acquittal or discharge. They also are responsible for the evaluation of evidence and filing revisions petitions. They also conduct the criminal proceedings in the Court of Metropolitan Magistrate.
- Director of Prosecution- it is the head office. They exercise the overall control and supervision of officers of Directorate. They also look after the Account Branches.
The objective of establishing a Directorate of Public Prosecutors is to supervise and scrutinise the functions relating to various prosecution agencies at Assistant Session level and Session level except at High Court.
Reasons for the Appointment of Public Prosecutor
Whenever any crime is committed against a group or individual, it is assumed that it has been committed against society. It is the duty of the state to provide justice to any group of society or person who is affected by the crime. In India, it is necessary that the criminal justice system should function within the limits of the Indian Constitution, which means that it is necessary for the Public Prosecutor to act in accordance with the principles of:
- Equality before law
- Protection against double jeopardy
- Protection against self-incrimination
- Protection against ex-post law
- Right to life and personal liberty except procedure established by law
- Presumption of innocence until proven guilty
- Arrest and detention must be in accordance with the provisions of Cr.P.C.
- Equal protection of laws
- Speedy trial
- Prohibition of discrimination
- Right of accused to remain silent
Role of Public Prosecutors
It is divided into two parts:
- In investigating process
- During the trial
Role of the Public Prosecutor in the investigating process
- To make an appearance in the Court and obtain an arrest warrant
- To obtain search warrants for conducting a search in specified premises
- To obtain police custody remand for interrogation (including custodial interrogation) of the accused
- To initiate a proceeding for the declaration of the non-traceable offender as the proclaimed offender
- To record the evidence of accused in the police report regarding the advisability of the prosecutions
Role of Public Prosecutors at the time of trial
- Sentencing- when the accused is proven guilty, then the defence counsel and the Public Prosecutor further argue to decide the quantum of punishment. At this stage, the Public Prosecutor may argue for the adequate punishment keeping in mind the facts, circumstances of case and gravity of the offence. It helps the judge to arrive at a judicious decision.
- To conduct a speedy trial- Right to a speedy trial is a fundamental right and it is impliedly given in Article 21 of Constitution of India which states “Right to life and Personal Liberty”. The prosecutors have a responsibility to call all the witnesses whose evidence is essential to decide the case. To cross-examine the witness and to see that no witness if left unexamined. To produce all the necessary documents.
Other Important Roles
- The Public Prosecutor cannot aggravate the facts of the case or deny to examine the witness whose evidence may weaken the case. The main aim must be to discover the truth.
- He should not defend the accused. It is against the fair play of administration of justice or against the legal profession.
- He represents the State, not police. He is an Officer of State and is appointed by State Government. He is not a part of any investigating agencies but an independent authority. He is charged with statutory duties.
- Superintendent of; police or District Magistrate cannot compel to the Public Prosecutor to withdraw the case.
- If there is an issue which is raised by defence counsel and failed, it should be brought out in the notice of the court by Public Prosecutor.
- To ensure that justice is done.
Provision Under Cr.P.C
Hierarchy of Public Prosecutor according to Section 24:
- The Public Prosecutor appointed by Central Government
- The Public Prosecutor appointed by State Government
- Additional Public Prosecutor appointed by State Government.
- Special Public Prosecutor appointed by Central Government
- Special Public Prosecutor appointed by State Government.
Section 24 of Cr.P.C talks about the appointment of Public Prosecutors in the District Court and High Court by the state government and central government respectively.
Sub-section 3 states that the Public Prosecutor needs to be appointed for each district and may also appoint Additional Public Prosecutor.
Subsection 4 states that the District Magistrate in consultation with Session judge needs to prepare a panel of names which is considered as fit for such an appointment.
Subsection 5 states that the person can’t be appointed as a Public Prosecutor or Additional Public Prosecutor by the State Government in a district unless his names are on the panel prepared under subsection 4.
Subsection 6 explains that in a case where a state has a local cadre of prosecuting officers, but there is no suitable person in such cadre for an appointment the appointment must be made from the panel prepared under subsection 4.
Subsection 7 states that person can be appointed as Public Prosecutor only after he has been practised as an advocate for the minimum period of 7 years.
Section 25 of Cr.P.C states that the Assistant Public Prosecutors is appointed in the district for the purpose of conducting prosecution in Magistrate Court. The court may appoint one or more Assistant Public Prosecutors for the purpose of conducting a case.
If there are no Assistant Public Prosecutors then District Magistrate may appoint any other person to act as the Assistant Public Prosecutors.
Section 321 permits the Public Prosecutor or Assistant Public Prosecutor to withdraw from the case or prosecution with the permission of the court at any time before the judgement is pronounced. The power of the prosecutor is derived from the statute itself and they must act in the interest of the administration of justice.
In the case of Vineet Narain vs Union of India,
Facts– the offence involves high political dignitaries. CBI failed to investigate properly.
The court stated that there are no limitations or restrictions as to launching of prosecutor or initiation of investigations.
In the case of Jitendra Kumar @Ajju vs State (NCT OF Delhi)
The High Court of Delhi stated that “the Public Prosecutor acts on the behalf of the state. They are the ministers of justice who play a pivot role in the administration of criminal justice”.
In the case of Zahira Habibullah vs State of Gujarat,
This case is known as “Best Bakery Case”.
Facts– burning down of construction in the city of Vadodara results in the death of 14 persons This matter came up before the Supreme Court for consideration.
The Supreme Court stated the “Public Prosecutors acted more as the defence rather than focusing on presenting the truth before Court”.
In the case of Thakur Ram vs State of Bihar,
The reason behind the establishment of the office of Public Prosecutor is that no private person can use the legal apparatus to wreak private vengeance anyone.
In the case of Tikam Singh vs State & Ors,
There is no dispute related to the office of the Public Prosecutor but there is a public element attached to it. He acts as the representative of the state but not a complainant. The role of the Public Prosecutor is distinguished from the role of private counsel.
In the case of Sandeep Kumar Bafna vs State of Maharashtra & Anr,
The court stated that “a Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or other irrespective of the facts of the case. The attitude of the Public Prosecutor must be fair towards the investigating agencies and as well as towards the accused.”
In the case of Radheyshyam vs State of M.P & Ors,
The court stated that a special Public Prosecutor can be appointed when the administration of justice is required. They cannot appoint only on the request of the complainant. His remuneration is paid by the state because if it will be paid by the private party, then his ability or capacity to perform his role as a Public Prosecutor will be endangered. The government cannot appoint Special Public Prosecutor on such terms, directing him to receive his remuneration from any private individual.
In the case of Kunja Subidhi and Anr vs Emperor,
The duty of the Public Prosecutor is to place before the court all the relevant evidence whether it is in favour or against the accused and to leave upon the court to decide the matter.
In the year 2018, The Government of Delhi appointed senior lawyers, Rebecca Mammen John and Vishal Goshen as special Public Prosecutors in the murder case of Ankit Saxena Murder Case for the purpose of the rial.
In the year 2019, Arvind Kejriwal ordered for the appointment of a special Public Prosecutor in the Soumya Vishwanath’s case.
Present scenario India
There is no uniformity in the structure of the public prosecution in India. There is no boundary created between the investigating agency and the prosecution in a number of states. This affects the impartiality of Public Prosecutor since police control the prosecutions. When the prosecution is headed by a senior police officer, the boundary collapses completely.
Although the Law Commission in the year 1958 suggested the establishment of Directorate of prosecution with its own cadre, such a recommendation was not accepted in Cr.P.C. Some states have Directorate of Prosecution while others do not.
- Encouraging more lawyers to become Public Prosecutors.
- Increasing the salary structure of the Public Prosecutor so that it can act as a reinforcement to more people.
- Limit the experience required to 3 years instead of 7 years.
- To establish a national institute to impart proper training upon the aspiring candidates.
- Making compulsory for all the states to create its own Directorate of Prosecutions.
A Public Prosecutor is an officer of the court helping in the administration of justice. It is clear from the fact that the main duty of the Public Prosecutor is to help the court in finding the facts of the case. The Public Prosecutor must be impartial, fair and honest. He must act on the directions of the judge. He should not believe in the conviction of accused by hook or crook. The guiding principles of any public prosecution must be equity, justice and good conscience.