This article is written by Paridhi Dave, a student at the Institute of Law, Nirma University. This is an exhaustive article which deals with the appointment of special public prosecutors in the juvenile justice board and the qualifications required.

Introduction

In India, there are four important components of the criminal justice system. The police, the judiciary, the prosecution and the prison & correctional institutions. The role of public prosecutors has presumed central importance in all criminal proceedings, but their involvement in the matters of juvenile offenders is crucial for the administration of justice. The role of the prosecutors in these cases is not restricted to prosecution but also involves ensuring justice to the victims.

In this article, the office of public prosecutor, meaning of juvenile justice board, appointment, qualifications required and the fallacies in the juvenile justice system have been discussed.

Office of Public Prosecutor

The public prosecutor owes a duty to the State, the Court and the accused.

In the case of Babu vs. State of Kerala 1984 Cr LJ 499 (Ker H.C.), it was held that public prosecutors function as Ministers of Justice. Their job is to assist the State in the administration of justice. Further, the public prosecutors have the duty to present all the relevant aspects of the case before the Court. Their job is not to send the convicts to the jail, neither help them escape conviction. The prosecutors function as gatekeepers to the criminal justice process.

In Subhash Chander vs. State (AIR 1980 SC 423), the Court emphasized that the prosecutor alone could decide the withdrawal of prosecution, without any influence of other officials. The public prosecutors should function independently of the executive. They must be in a position to prosecute without undue influence or obstruction by other public or executive officials. This applies to the withdrawal of prosecution as well. 

In Tikam Singh vs. State & Ors. it was held that there is a public element attached to the office of a public prosecutor. Their role is different from the role of a private counsel.

It was held in Thakur Ram vs. State of Bihar that the purpose of establishing the office of a public prosecutor is to create a level playing field. This is to ensure that a private person cannot use the legal apparatus to create havoc for the weak or poor.

Role of a Public Prosecutor

When a crime is committed against an individual or a group, it is assumed that a crime has been committed against the State. This is because the State has a duty to protect its citizens and provide justice to the victims of crime. For this, the State appoints a public prosecutor as an officer of the Court. The primary functions of a prosecutor are:

1. To ensure equality before the law [Article 14 of the Indian Constitution]
2. To protect against ex-post-facto laws [Article 20(1) of the Indian Constitution]
3. To protect against double jeopardy [Article 20(2) of the Indian Constitution]
4. To protect against self-incrimination [Article 20(3) of the Indian Constitution]
5. To ensure the right to life and personal liberty [Article 21 of the Indian Constitution]

Juvenile Justice Board

The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter JJ Act, 2015) is a new legislation which repeals the Juvenile Justice Act, 2000. The primary focus of this Act is on the procedural aspect, with regard to pendency in cases, accountability of the functionaries, etc.

The Juvenile Justice Board is an institutional body established under Section 4 of the JJ Act, 2015. According to the division of powers, the subject of administration of criminal justice has been included in the State List (List II, Schedule VII) of the Indian Constitution. Therefore, one or more than one Juvenile Justice Board(s) are established by the State Government for each district. The Board exercises its powers and discharges functions relating to the ‘child in conflict with law’ as has been defined under Section 2(13) of this Act.

Under Section 7 of the Act, the procedure in relation to the Board has been laid down. The Board shall meet and carry out transactions of business as may be prescribed. It is the duty of the Board to ensure that all procedures are child friendly and the venue is not intimidating.

Procedure for being a prosecution lawyer of juvenile justice board

The proceedings before a Juvenile Justice Board are non-adversarial in their nature, unlike regular proceedings held in Courts. An important thing here is, that the Juvenile Justice Act, 2015 has no provisions for the appointment of a public prosecutor. It does not even mention the post as a functionary under the Act. However, the Public Prosecutors are invariably present before the Board in all the matters.

Appointment

The term ‘public prosecutor’ has been defined under Section 2(u) of the Code of Criminal Procedure, 1973. The clause provides an inclusive definition. The following persons come under the ambit of the meaning of public prosecutor.

1. Any person appointed under Section 24 of the Code.
2. Any person who acts under the directions of a Public Prosecutor.

The Code of Criminal Procedure,1973 under Section 24(8) mentions the appointment of a special public prosecutor. The provision says that an advocate who has practised for at least ten years can be appointed as a Special Public Prosecutor by either the Central Government or the State Government. A Special Public Prosecutor is appointed for either any special case or any class of cases.

Section 24(9) of the Code lays down that the following period shall be deemed as a period during which such person (as has been mentioned in sub-section 8) has been in practice as an advocate.

1. Duration wherein he practised as a pleader.
2. Duration wherein he rendered services as either a Public Prosecutor, Additional Public Prosecutor or Assistant Public Prosecutor. Any other type of Prosecuting Officer is also included in this provision.

Further, the duration counted includes the period, both before and after the commencement of the Code of Criminal Procedure, 1973.

Qualifications

1. Indian citizen.
2. Should have a degree in law from an institution recognized by the Bar Council of India.
3. Age should not be less than 35 years and not more than 45 years at the time of application for the post (Relaxation is provided in age limit for Scheduled Castes, Scheduled Tribes and Other Backward Classes).
4. A panel of eligible candidates is constituted on the basis of consultation of the district magistrate and sessions judges. If the person is not mentioned in the panel then the State Government can appoint them as a public prosecutor, in any district.
5. It is essential for the prospective candidates to appear for the Union Public Service Commission Exam for this post. An interview is taken post the examination.

The above-mentioned qualifications apply to all public prosecutors. The distinct qualification to become a special public prosecutor is to practice as an advocate for ten years at least. A Public Prosecutor requires only seven years of practice, as opposed to the Special Public Prosecutor.

Moreover, the person to be appointed as the Special Public Prosecutor for the Juvenile Justice Board should have special knowledge or skills in child welfare or child psychology. These are the distinguishing qualifications between a public prosecutor and a special public prosecutor appointed in a Juvenile Justice Board.

The Court has stated in Radheyshyam vs. State of MP & Ors. that a special public prosecutor can be appointed in certain cases, where there is a requirement. The State bears the burden of providing remuneration to the Special Public Prosecutor. They cannot be directed to receive their remuneration from a private individual since it would jeopardise their role as a prosecutor.

In the case of Mohammad Irfan vs. The Inspector of Police, the Madras High Court delivered a judgment that Assistant Public Prosecutors, as has been defined under Section 25 of the Code of Criminal Procedure, 1973 – cannot be appointed for conducting a prosecution before the Juvenile Justice Board. This is because the Juvenile Justice Board cannot be equated to a Court of Magistrate. Justice S. Nagamuthu gave his opinion that a special public prosecutor should be appointed for dealing with the cases of the Juvenile Justice Board. 

The facts of this case were, the juvenile in conflict with the law, who was a student, stabbed a teacher to death. The petitioner was not represented by any Advocate, neither was provided with legal aid. The counsel for the petitioner argued that the proceedings conducted did not strictly adhere to the Juvenile Justice Act and the rules thereof. The petitioner listed out all the irregularities, illegalities and the flaws committed by the Juvenile Justice Board. 

Further, the Director of Prosecution had nominated an Assistant Public Prosecutor to conduct the prosecution proceedings before the Juvenile Justice Board. The Court held that everybody who is involved in the process involving a juvenile should be trained and must possess special knowledge or skills. 

Apart from the Juvenile Justice Act, 2015 the Special Public Prosecutors are also appointed under Section 32 of the Protection of Children from Sexual Offences Act, 2012 by the State Government. To deal with matters under this Act, the prosecutors are supposed to respect the right of privacy and confidentiality of the child along with protecting its interests. This requires special skills and knowledge.

There are some principles which have to be borne in mind while dealing with juvenile offenders. This is applicable to all Juvenile Justice Boards, Child Welfare Committees, or any other stakeholders. The best interests of the child, reintegration of the child into the society and the presumption of innocence are some basic principles which should be adhered to.

The special public prosecutor has to be proactive and should assess whether the child in conflict with law is also a child in need of care and protection. The same has to be conveyed to the Board.

Fallacies in the juvenile justice system

It is essential that the public prosecutors in the matters of child protection under various laws such as the Juvenile Justice Act, 2015 or the Protection of Children from Sexual Offences Act are trained and sensitized. 

For instance, there are as many as 30 Juvenile Justice Boards in Karnataka, but only 3 or 4 special public prosecutors who are trained under the Juvenile Justice Act, 2015. This lack of trained personnel leads to the pendency of cases. Presently, senior assistant public prosecutors or assistant public prosecutors have been given the task of representing the State in lieu of the absence of trained prosecutors. This has severely impaired the speedy disposal of cases.

Similarly, in Delhi due to the lack of proper infrastructure at the juvenile justice boards, there is a delay in the delivery of justice. There are three juvenile justice boards in Delhi, but not enough special public prosecutors or even probation officers. 

The Supreme Court scrutinized the functioning of the Juvenile Justice Boards in a PIL filed in Sampurna Behrua vs. Union of India. The Court sought details of the pendency of cases, the vacancy of posts, the frequency of the sittings of the Board and other related issues. The Court also emphasized the problems faced in the methodology of training imparted to the legal aid lawyers. The National Legal Services Authority issued a guideline pursuant to this order to increase the availability of legal aid in Juvenile Justice Boards. 

The State should follow the principle of ‘parent patrie’ – meaning that it should function as the guardian of children and thereby ensure safety. For successful delivery of the juvenile justice system, the prosecution should create accountability at every stage of the process. Public Prosecutors should be proactive and act as facilitators for change.

Conclusion

Through this article, it can be understood that there is a severe lack of qualified prosecutors to proceed with the prosecution in the Juvenile Justice Board. It is important that awareness is created among the prospective lawyers and existing lawyers, that there is a dire need for prosecutors in this field of law.

Trained prosecutors are required to deal with juvenile offenders. Public prosecutors who appear for hardened criminals cannot deal with juvenile offenders with the same care and expertise. The Government should lay down clear guidelines for the appointment of special public prosecutors in the Juvenile Justice Board. The need of the hour is that proper guidance and training is imparted to these officers. There is also a lack of facilities provided by the respective state governments to these prosecuting officers, this should also be taken care of.

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