An ideal Prosecutor must consider herself/himself as an agent of justice. In India, we have a public prosecutor who acts in accordance with the directions of the judge. Normally, the control of entire trial is in the hands of the trial judge. Investigation is the prerogative of the police. However, it is generally believed that traditional right of nulle prosequi is available to the prosecutor. The public prosecutor in India does not seem to be an advocate of the state in the sense that the prosecutor has to seek conviction at any cost. The prosecutor must be impartial, fair and truthful, not only as a public executive but also because the prosecutor belongs to the honourable profession of law, the ethics of which demand these qualities.
In India, the criminal justice system should function within the framework of the Indian Constitution. Succinctly speaking, the principles enunciated in the Constitution are as infra :
- Presumption of innocence: Accused presumed to be innocent 4. Deprivation of life / personal liberty only in accordance with procedure established by law (See Article 21 of the Indian Constitution)
2.Equality: The guarantee of equality before the law .
- Equal Protection: Equal protection of the laws .
Beyond all reasonable doubt: The guilt must be proved beyond all reasonable doubt
- Double jeopardy: Protection against double jeopardy
- Prohibition of discrimination: Prohibition of discrimination imposed upon the State
- The right of the accused to remain silent
- Arrest/detention must be in accordance with law and judicial guidelines.
- Speedy trial.
Coming the Directorate of Prosecution is concerned, the objective behind establishing the Directorate of Prosecutions was to exercise close supervision and scrutiny of work relating to various prosecuting agencies at Sessions and Assistant Sessions levels except at the High Court level. The Directorate of Prosecutions in the State of Andhra Pradesh was created vide G.O.Ms.No. 323, Home (Courts-C), Department, dated: 26-5-1986 wherein all the Prosecuting Officers were brought under the supervisory control of the Director of Prosecutions. This Directorate is headed by a Director assisted by other subordinate rank officials and ministerial staff. The major functions are:
Assistant Public Prosecutors – Assistant Public Prosecutor Officers scrutinise charge sheets prepared by the investigating agency and submit discharge/ acquittal. They evaluate the evidence in each case and make their recommendations for filing revision petitions or appeals against impugned orders and judgments, as well as conduct cases in Courts of MetropolitanMagistrates
Additional Prosecutors – Additional Public Prosecutors conduct cases in Sessions Courts
Chief Prosecutors – Chief Prosecutors supervise the work of Assistant Public Prosecutors in the Courts of Metropolitan Magistrates
Public Prosecutor – Public Prosecutor is responsible for supervision of prosecution work conducted by Additional Public Prosecutors in the Sessions Courts
Director of Prosecution – The Director of Prosecution is the Head of Office. The Director of Prosecution looks after the Establishment and Accounts Branches and exercises overall control over officers of the Directorate
The Role Of The Prosecutor:
The role of the Prosecutor is not to single-mindedly seek a conviction regardless of the evidence but his/her fundamental duty is to ensure that justice is delivered . The Indian judiciary interpreted role, responsibilities and duties of prosecution as follows:
1) 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. He must consider herself/himself as an agent of justice. The Allahabad High Court had ruled that it is the duty of the Public Prosecutor to see that justice is vindicated and that he should not obtain an unrighteous conviction.
2) There should not be on part of a Public Prosecutor a seemly eagerness for, or grasping at a conviction” The purpose of a criminal trial being to determine the guilt or innocence of the accused person, 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. In undertaking the prosecution, the State is not actuated by any motives of revenge but seeks only to protect the community. There should not therefore be “a seemly eagerness for, or grasping at a conviction.
3) A Public Prosecutor should not by statement aggravate the case against the accused, or keep back a witness because her/his evidence may weaken the case for prosecution. 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.
4) A Public Prosecutor should place before the Court whatever evidence is in her/his possession .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.31 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.
5). The duty of the Public Prosecutor is to represent the State and not the police. A Public Prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure, 1973. She/he is not a part of the investigating agency. She/he is an independent statutory authority. She/he is neither the post office of the investigating agency, nor its forwarding agency; but is charged with a statutory duty.
6). The purpose of a criminal trial is not to support at all cost a theory, but to investigate the offence and to determine the guilt or innocence of the accused and the duty of the Public Prosecutor is to represent not the police, but the State and her/his duty should be discharged by her/him fairly and fearlessly and with a full sense of responsibility that attaches to her/his position. There can be no manner of doubt that Parliament intended that Public Prosecutors should be free from the control of the police department.
7). A Public Prosecutor should discharge her/his duties fairly and fearlessly and with full sense of responsibility that attaches to her/his position The Patna High Court held that purpose of a criminal trial is not to support a given theory at all costs 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 her/his duty should be discharged by her/him fairly and fearlessly and with full sense of responsibility that attaches to her/his position.
8). The Andhra Pradesh High Court had ruled that prosecution should not mean persecution and the Prosecutor should be scrupulously fair to the accused and should not strive for conviction in all these cases. It further stated that the courts should be zealous to see that the prosecution of an offender should not be given to a private party. The Court also said that if there is no one to control the situation when there was a possibility of things going wrong, it would amount to a legalised manner of causing vengeance.
9). 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.
10). No fair trial when the Prosecutor acts in a manner as if he was defending the accused, It is the Public Prosecutors duty to present the truth before the court. Fair trial means a trial before an impartial Judge, a fair Prosecutor and atmosphere of judicial calm. The Prosecutor who does not act fairly and acts more like a counsel for the defense is a liability to the fair judicial system.
11). The statutory responsibility for deciding upon withdrawal squarely vests unwavering with the Public Prosecutor and should be guided by the Criminal Procedure Code The statutory responsibility for deciding upon withdrawal squarely vests on the Public Prosecutor and is entirely within the discretion of the Public Prosecutor. It is non-negotiable and cannot be bartered away in favour of those who may be above her/him on the administrative side. 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. So guided, the consideration which must weigh with her/him is, whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of the prosecution. 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.
12). District Magistrate or the Superintendent of Police cannot order the Public Prosecutor to move for the withdrawal The District Magistrate or the Superintendent of Police cannot order the Public Prosecutor to move for the withdrawal, although it may be open to the District Magistrate to bring to the notice of the Public Prosecutor materials and suggest to her/him to consider whether the prosecution should be withdrawn or not. But, the District Magistrate cannot command and can only recommend.
13). If there is some issue that the defense could have raised, but has failed to do so, then that should be brought to the attention of the court by the Public Prosecutor The Supreme Court stated that the duty of the Public Prosecutor is to ensure that justice is done. It stated that if there is some issue that the defense could have raised, but has failed to do so, then that should be brought to the attention of the court by the Public Prosecutor. Hence, she/he functions as an officer of the court and not as the counsel of the State, with the intention of obtaining a conviction.The District Magistrate or the Superintendent of Police cannot order the Public Prosecutor to move for the withdrawal, although it may be open to the District Magistrate to bring to the notice of the Public Prosecutor materials and suggest to her/him to consider whether the prosecution should be withdrawn or not. But, the District Magistrate cannot command and can only recommend. The Supreme Court stated that the duty of the Public Prosecutor is to ensure that justice is done. It stated that if there is some issue that the defense could have raised, but has failed to do so, then that should be brought to the attention of the court by the Public Prosecutor. Hence, she/he functions as an officer of the court and not as the counsel of the State, with the intention of obtaining a conviction.
Section 24 of Cr.P.C deals with ‘ Public Prosecutors’:
Section 24 of the CrPC says as to appointment of public prosecutors in the High Courts and the district by the central government or state government. Sub-section 3 says down that for every district, the state government shall appoint a public prosecutor and may also appoint one or more additional public prosecutors for the district. Sub-section 4 requires the district magistrate to prepare a panel of names of persons considered fit for such appointment, in consultation with the sessions judge. Sub-section 5 explains 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 provides for such appointment wherein a state has a local cadre of prosecuting officers, but if no suitable person is available in such cadre, then the appointment has to be made from the panel prepared under subsection 4. Subsection 4 says that a person shall be eligible for such appointment only after he has been in practice as an advocate for not less than seven years.
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. As already mentioned, 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.
Judicial response of role of prosecutors:
Zahira Habibullah vs State of Gujarat, where the conduct of the ‘’ BEST BAKERY ‘’ case in the Hon’ble Gujrat High Court , involving the burning down of an establishment in Vadodara which caused the death of 14 persons, came up for consideration before the Hon’ble Supreme Court, leading to what Rajeeva Dhavan has described as ‘’ The severest indictment evr of the Jusitce and governance system any State’’. The Hon’ble Supreme Court ordered retrial of the matter in The Hon’ble High Court of Maharastra, and observed that in Gujarat, ‘’ The Public Prpsecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the Court’’.
In R K Jain’s case (AIR 1980 SC 1510), the Hon’ble Supreme Court held quoting Shamsher Singh v. State of Punjab [(1974) 2 SCC 831), as regards the meaning and content of executive powers tends to treat the public prosecutor¡¦s office as executive. But the conclusions of some courts create doubt as to its exact nature. To the suggestion that the public prosecutor should be impartial (a judicial quality), the Kerala High Court equated the public prosecutor with any other counsel and responded thus: Every counsel appearing in a case before the court is expected to be fair and truthful. He must of course, champion the cause of his client as efficiently and effectively as possible, but fairly truthfully. He is not expected to be impartial but only fair and truthful. [Aziz v. State of Kerala (1984) Cri. LJ 1060 (Ker)]
In Thakur Ram vs. State of Bihar AIR 1996 SC 911, the Hon’ble Apex Court held: “Barring a few exceptions, in criminal matters the party who is treated as aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all steps necessary for bringing the person who has acted against the social interests of the community to book” The rationale behind the State undertaking prosecutions appears to be that no private person uses the legal apparatus to wreak private vengeance on anyone.
In Vineet Narain vs Union of India, when the court focused that the CBI failed to investigate properly offence involving high political dignitaries. The Hon’ble Court emphased the need to ensure that ‘’ there are no arbitrary restrictions to the initiation of Investigations or launching of prosecutions’’.
In Jitendra Kumar@ Ajju vs. State (NCT of Delhi) Crl. W.P. 216/99, Delhi High Court, it was observed that In the Criminal Justice System this role is performed by the Public Prosecutor on behalf of the State. The Public Prosecutor has been described as a Minister of Justice who plays a critical role in maintaining purity and impartiality in the field of administration of criminal justice.
In The Malimath Committee Report (2003), it is acknowledged that there is a crisis in the Indian Criminal Justice System. But its analysis of the crisis is disturbing. Rather than focusing on key issues that plague the Criminal Justice System, the Committee recommended changes that amounted to a complete departure from jurisprudential norms.
In R K Jain v. State (AIR 1980 SC 1510), the Supreme Court sketched out the contours of the public prosecutor¡¦s power for withdrawal of cases. In Shonandan Paswan v. State of Bihar [(1987) 1 SCC 288] and in Mohd. Mumtaz v. Nandini Satpathy [1987 Cri. L.J. 778 (SC)], the Supreme Court ruled that the public prosecutor can withdraw a prosecution at any stage and that the only limitation is the requirement of the consent of the court.
The Punjab & Haryana High Court in Krishan Singh Kundu v. State of Haryana [1989 Cri. LJ 1309 (P&H)] has ruled that the very idea of appointing a police officer to be in charge of a prosecution agency is abhorrent to the letter and spirit of sections 24 and 25 of the Code. In the same vein the ruling from the Supreme Court in SB Sahana v. State of Maharashtra [(1995) SCC (Cri) 787] found that irrespective of the executive or judicial nature of the office of the public prosecutor, it is certain that one expects impartiality and fairness from it in criminal prosecution. The Supreme Court in Mukul Dalal v. Union of India (1988 3 SCC 144) also categorically ruled that the office of the public prosecutor is a public one and the primacy given to the public prosecutor under the scheme of the court has a social purpose. But the malpractice of some public prosecutors has eroded this value and purpose.
The commission of a criminal act is commonly regarded as an offence against the State which to be dealt with by the Criminal Justice machinery of the State Executive. Therefore, on thorough considerations of the above material, it is crystal clear that it is not the duty of Public Prosecutors to quest conviction at all cost. Nor, is their duty to act as an avenging angle for the victim. On the contrary, their fundamental duty is to ensure that justice is delivered and in pursuance of this they should lay before the court all relevant evidence including the evidence that favours the accused. Corollary to this is the duty of a Public Prosecutor to bring to attention of the Court, any issue that the defense could have raised, but has failed to do. But, in doing so, they cannot act as if they are defending the victim, nor can they appear on behalf of the accused. When the Prosecutor acts in a manner as if she/he was defending the accused, then there is no fair trial. A Public Prosecutor is an independent entity from police and police cannot order her/him to conduct prosecution in a particular way. Police, politicians or any other extraneous party cannot influence her/his actions, including her/his discretion to decide withdrawal of a case. The Public Prosecutor represents the State but not the police and can only be influenced by public interest. In pursuance of their duties, public prosecutors should not use improper methods calculated to produce wrongful convictions and she/he must discharge her/his functions in a scrupulously fair and honest way. A fortiori, a Public Prosecutor has the responsibility of a minister of justice and not simply that of an advocate.
Important Judgments to know about the functions of Prosecutors:
– R. v. Boucher, (1954) 110 CCC 263 (SCC)
– R. v. Boucher, (1954) 110 CCC 263 at p. 270.
– R. v. Puddick, (1865) 176 ER 622 at p. 663. See R. v. Thomas (No. 2), (1974) 1 NZLR 658 (CA)
– R. v. Roulston, (1976) 2 NZLR 644 at p. 654.
– R. v. Henderson, (1999) 44 OR (3d) 628 (CA); R. v. Arthur F., (1996) 30 OR (3d) 470; R. v. Vandenberghe, (1995) 96 CCC (3d) 371 (CA); R. v. Stinchcombe, (1992) 68 CCC (3d) 1 (SCC)
– R. v. F.S., (2000) 47 OR (3d) 349 (Ont. CA); R. v. Chambers, (1990) 59 CCC (3d) 321 (SCC); R. v. McDonald, (1958) 120 CCC 209.
– R. v. Regan, (2002) 1 SCR 297 (SCC);
– Per Anantanarayanan, C.J., in A. Mohambaram v. M.A. Jayavelu, 1970 Cri LJ 241 at p. 245
– Kashinath Dinka, (1871) 8 BHC (Cr C) 126, 153
– Anant Wasudeo Chandekar v. King-Emperor, AIR 1924 Nag 243 at p. 245
– Ghirrao v. Emperor, (1933) 34 Cri LJ 1009 (Oudh Chief Court)
– Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, (2003) 7 SCC 749 : 2003 SCC (Cri) 1918, at para 35
– Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602, at para 23
– Ram Ranjan Ray v. Emperor, (1915) 42 Cal 422 at p. 428; Jai Pal Singh Naresh v. State of U.P., 1976 Cri LJ 32 (All);
– Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087- 1976 Cri LJ 32 (All)
– Kunja Subudhi v. Emperor, (1929) 30 Cri LJ 675
– Medichetty Ramakistiah v. State of A.P., AIR 1959 AP 659
– Sunil Kumar Pal v. Phota Sk., (1984) 4 SCC 533 : 1985 SCC (Cri) 18
– Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999
– Balwant Singh v. State of Bihar, (1977) 4 SCC 448 : 1977 SCC (Cri) 633, at para 2
– Shiv Kumar v. Hukam Chand, (1999) 7 SCC 467 : 1999 SCC (Cri) 1277
– To know more please visit www.ebc-india.com/practicallawyer
– Sunil Kumar Pal v. Phota Sheikh [(1984) 4 SCC 533
-State of Tamil Nadu v. Ganesan, 1995 Cri. L.J 3849 (Mad) at 3851
-Babu v. State of Kerala (1984) Cri. LJ 499 (Ker) at 502
– R.Sorala vs T.S.Velu
Author of This Article: Y.SRINIVASA RAO,
Source: Articles On Law
This article published in the interest Justice.