Page |1

CHAPTER 1

1.1 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
procure 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 defense lawyer is viewed as defender. One of the
procurators chief functions must be to protect citizen's 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 Presque 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.

The underlying principle governing the Criminal Justice System is that all crime
(offences which have been codified as such in statutes) committed by an individual or
groups against others are deemed to have been committed against society.
Consequently the State takes action to prosecute the accused on behalf of, and in the
interest of society. The Supreme Court has discussed this thus; 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
 Page |2

the State to take all steps necessary for bringing the person who has acted against the
social interests of the community to book.1 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 the CJS 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.2

The present criminal justice system is based on principle that any crime committed by
individual is a crime against the societal order. The prosecution and punishment for the
crime is therefore responsibility of the state and not that victim of crime. It has been
said that this responsibility where the state acts on behalf of the victim limits the
scope for vengeance and revenge. Such prosecution, on behalf of state is performed by
P. P. appointed by the state. The P. P. is required to play an impartial and neutral role
and prosecute all persons who have been charge sheeted by police. However political
and economic forces that influence government, it is obvious that P. P. faces
tremendous pressure, not only from state but also from powerful elites who attempt to
influence prosecution.

1.2 Research Objectives

1) To study about public prosecution in India.

2) To compare the position of prosecutors in various countries.
3) To discuss the role and reasons of public prosecution.

1
Thakur Ram v. Bihar AIR 1966 SC 911
2
Jitender Kumar v. NCT Delhi
 Page |3

1.3 Literature Review

Books

1) C.K. Takwani, Criminal Procedure, 4th edition, Lexisnexis

This book lays bare the fundamental principles of procedural law and examines
the subject topic-wise, explaining important and complicated issues with the
help of case laws. The fourth edition examines the amendments introduced by
the Criminal Law (Amendment) Act, 2013 in detail.

2) Ratanlal and Dhirajlal, The Code of Criminal Procedure, 21st edition,

Lexisnexis

This book, analyzes the Code in detail, although simple in approach. With the
support of helpful case laws, this book maintains the clarity of concept and is
provides useful knowledge about the provisions.

3) K.N. Chandrasekharan Pillai, R.V. Kelkars Criminal Procedure, 6th edition,

Eastern Book Company

This book provides an interesting study of the fundamental principles of

criminal procedure in a logical sequence. It has incorporated all the recent
developments until 2008. It drew attention to some aspects of the code while
generating new ideas so that the criminal procedure may grow in tune with the
times.
 Page |4

1.4 Research Methodology

Given a study of this kind, this research project has been written using the doctrinal
or principled method of research, which involves the collection of data from
secondary sources, like articles found in journals and websites.

1.5 Source of Data

Accumulation of the information on the topic includes various secondary

sources such as books, e-articles, etc. The matter from these sources has been
complied and analysed to understand the topic in a better way.

1.6 Research Questions

1) Who is a public prosecutor and its role?

2) What is the significance of public prosecution?
3) What are the various stages where public prosecutor administers justice?

1.7 Scope and Limitation

The project is an attempt to study prosecutors and their role and duty in
criminal justice system. The study is limited to Indian law. It has not undertaken a
comparative analysis of Indian prosecutor as against commonwealth or continental
prosecutor. However, propositions from other countries are adverted to only for a
better elucidation of an issue or a more lucid illustration of a point in issue.
 Page |5

CHAPTER -2

2.1 Appointment of Public Prosecutors

In almost all civilized legal systems around the world. Prosecutors are agents of the
Attorney General and represent the interests of the general public in the criminal
justice system. As a society, we share an interest in protecting ourselves from
criminals and the damage they cause. Our law enforcement system investigates crime
and prosecutes offenders. However, the justice system must also protect our valued
rights and freedoms and convict only the guilty. The prosecutors job is to recognize
these different and competing interests and conduct the prosecutions business in a
way that best serves them all.

Prosecutors also have a duty to act in a way that strikes a fair balance between the
competing interests of convicting the guilty, protecting citizens rights and freedoms
and protecting the public from criminals. As a result, prosecutors do not work simply
to get convictions. They are not the representatives of any special interest group. They
do not act as the lawyers for victims of crime. Prosecutors represent the interests of all
of us in ensuring that prosecutions are conducted in a diligent, competent and fair way
that respects the rights of all citizens.

The most important right guaranteed under the Constitution of India to an accused is a
right to have a fair trial, which is a logical expansion of Article 21 of the Constitution
of India. If the trial should be fair its conductor should be fair to both parties. A
special feature of the administration of justice in the field of criminal law in is that
only a Public Prosecutor can prosecute the case against an accused. This is reflected
in the mandate contained in section 225 of the Code of Criminal Procedure. There is
no exception to this rule. Any private counsel engaged by the injured, or any
 Page |6

advocate briefed by the relatives of the deceased however influenced they may be, is
not entitled to conduct the prosecution in the sessions cases. This system is the
glaring acknowledgment of the special status and position, which the office of Public
Prosecutor is expected to wield in our legal system3

In India, we have a Public Prosecutor who acts in accordance with the directions of
the judge. The control of a criminal trial is in the hands of the trial judge.
Investigation is the prerogative of the police. The decision to prosecute is a function
attributed to the procurator in all Indian Sub-continental countries. It is taken in India
by the magistrate on the report submitted by the police.
Being an officer of the court, the prosecutor is believed to represent the public interest
and as such not to seek conviction of a party by hook or crook. The prosecutor is
supposed to lead evidence favourable to the accused for the benefit of the court, not
conceal it to secure a conviction. It is generally believed that traditional right of nulle
prosequi is available to the prosecutor but in a case of withdrawal of prosecution,
(nulle prosequi) if the prosecutor makes an independent decision to withdraw a case
then the court should accept this and permit withdrawal under section 321 of the
Criminal Procedure Code (CrPC).

Public prosecutor is defined in Section 2(u) of the Code as any person appointed
under section 24 and includes any person acting under the direction of the Public
Prosecutor. Thus a special Public Prosecutor also would be a Public Prosecutor in
respect of a particular case or a class of cases for which he is appointed. The powers
conferred on Public Prosecutor are seemingly so wide and unfettered that parliament
reposed confidence of great magnitude in the office of the Public Prosecutor. Thus
special status and position as well as great powers have been conferred on the office
of the Public Prosecutor.

In Babu v. State of Kerala4 it is held that Public Prosecutors are really ministers of
justice whose job is none other than assisting the state in the administration of justice.
They are not representatives of any parties. Their job is to assist the court by placing
before the court all the relevant materials.

3
Seethi Haji Vs State of Kerala 1986 KLT 1274
4
(1984 KLT) 165
 Page |7

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. 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.
 Page |8

CHAPTER 3

3.1 Position of Public Prosecutors in other countries

In France- prosecution is a public function conducted by officers of nation service,

a branch of the civil services. The procure de la republique in France is entrusted
with formal task of accusation, possessing wide discretionary powers to press or
not to press charge. In all charges, he is virtually the judge of advisability of the
prosecution. The German and Italian prosecutors are bound by the legality
principle, which means that he is obliged to initiate action whenever he can in a
case in court5.

In this context federal court observed some proposition emerged as common

ground between the parties. First, section 69 and 91 of Judiciary Act, in so far as
they related to the power of Attorney General, were no more than statutory
expression of two ancient prerogative power of Attorney General, as first law
officer of the crown , vested in him for proper administration of criminal justice.
Secondly, these powers were non-delectable by the Attorney General - although
person appointed for that purpose by Governor General might exercise them,
pursuant to the authority of the section themselves. Thirdly, the enactment of the
director prosecution Act did not derogate from the powers of the Attorney
General6.

In USA, states and counties have their own prosecutor, mostly elected to office. At
federal level, a district attorney is appointed for each federal district by the US
Attorney General and belongs to the executive branches of the government. The
office of district Attorney and independent prosecutor in united states of America
have wide inquisitorial jurisdictions and exercise great influence on the institution
and withdrawal of cases at any stage of trial. They have their machinery

5
Crime & Criminal Justice By H R Bhardwaj, Ch 8 at page 120
6
Clyne v. Attorney General of Australia 1984 (55) ALR 92
 Page |9

independent of police and move the court oily when they are satisfied that case is
fit enough to be taken to court, otherwise they are empowered to drop the case.
Their role in plea bargaining is well known so much so some people feel that
justice system operate in the main deals by the lawyers in the back room of the
court house corridors. The 1982 initiative adopted a victims Bill of Rights, which
curtailed the plea bargain to a great extent, in a state of California. The Attorney
General of Alaska banned the plea bargaining in his state in 1975.

The responsibility of prosecutor in U S A includes preparation of formal charges.

He may press certain charges and not press others. He may suspend a trial in
progress. In U S A, the prosecutor enjoys the enormous powers or discretion in the
criminal justice system. The discretion is beyond the control of court and
answerable only to legislature, the electorate, and the press. The prosecutor play
significant role in determining the sentence by plea bargaining process. Whenever
the likelihood of obtaining conviction is slight, the prosecutor may declaim
prosecution. Arrest are made with permission of prosecutor and Studies reveled
that majority of arrests of non serious offences were rejected by prosecution
because of in sufficiency of evidence to prove the guilt beyond doubt. The
prosecutor always shows interest in obtaining guilty pleas and will seek negotiated
pleas in preference to adversary proceedings. When formal prosecution has begun,
the prosecutor may decide to terminate prosecution through the noli (noli
Presque). A noli is a request made by prosecutor to the court for termination of
further criminal prosecution. The prosecutor made such request to reduce case
load, court backlog, and delay in bringing defendant to trial. In some states of U S
A, the prosecutor no lies as many as half of the cases.

In England, the Attorney General is minister and the titular head of the service with
his functions as governments chief legal representative and the head of bar, but de
facto head of the service is the director prosecutions with the headquarters at
London. In metropolitan city of London, the chief crown prosecutor has a
prosecutor for each area with large complement of Barristers and Solicitors who
work for the service.

After the enactment of the prosecution of Offences Act 1985, prosecution of

criminal cases has undergone a big change in England. A potential public
 P a g e | 10

prosecutor has to consider each case and decide whether he think that criminal
proceedings are justified. As a first step the police must decide whether the
proceedings to be filed or not and then the crown prosecutor must decide whether
he will carry the prosecution or not.

The guideline of the Attorney General for prosecution circulated in 1982 include
that the prosecutor should prosecute cases unless there are more than fifty per cent
chance of conviction. The object is to ensure uniformity in prosecutors decisions.
The code for crown prosecutor is published every year as an appendix to the
directorate of public prosecutions report. The P. P. has to be satisfied that there is
substantial and admissible evidence in the proposed prosecution. The code
warrants more than a prima facie case, known as fifty-one per cent rule.

The United Kingdom has chosen to create the office of director of public
prosecution to secure the services of an experienced legal practitioner who can
handle the day -to- day work of prosecution subject to guidelines .the evident
intention was to divorce the government and the attorney general in particular,
from day to day decision- making in these areas. The Attorney General, as the
first law officer, has borne the ultimate responsibility for prosecution decision and
the legislation enacted in England did not alter the position.7

3.2 Position in India

Prior to independence prosecution was carried on by police officer who were

designated as police prosecutors and there was no requirement to be of a lawyer,
this system worked in a colonial state where prosecutor were crucial in
suppressing the struggle for independence. Police prosecutors were functioning
under the administrative and disciplinary control police department. Since their
promotions to the higher posts in the department depend on number of conviction
they were able to obtain by court in the prosecution conducted by them, they were
not able to show needed detachment expected of prosecutors.

7
Crime & Criminal justice By H R Bhardwaj Page-119
 P a g e | 11

Under constitution public prosecutor is governed by item 2 of List III, (concurrent

list) of Schedule VII of constitution of India. At the time of commencement of the
constitution, the procedure for appointment of P. P. was contained in Section 492
of old Code, 1898 and hence the subject falls under item 2 of the concurrent list.
Therefore, under Art 246 (2), it is open to the parliament to legislate on the subject
but it is also open to state to amend parliamentary legislation by following the
procedure in Art 254 (2) of the constitution, by reserving the State Amendment Bill
for assent of the President of India and thus there is no uniformity in the structure
of prosecution in India.

Various reports of Law Commission in 1958 and 1969 recommended the setting up
of an independent prosecution agency. Therefore, Law commission suggested
remedial measures for conducting prosecution by prosecutors fairly and
impartially. Police department shall not continue as prosecution agency as the
practice prevailed. Secondly, the prosecution agency must have own cadre separate
and distinct from police department. Thirdly, the prosecutors of prosecution
department must have their own machinery who can exercise administrative and
disciplinary control over them being directly possible to government concerned. It
is ultimately suggested in unequivocal word that machinery of criminal justice
though comprised of investigation department and prosecution department, there
should be complete separation between them. The object of such separation is to
see that the officers of the police department who investigated the cases to be
prosecuted shall have in no manner control or influence over prosecutors who
conduct cases in courts based on the investigations made by police department8.

In India, we have a public prosecutor who acts in accordance with the directions of
the judge. The control of trial is in the hands of the trial judge. Investigation is the
prerogative of the police. The decision to prosecute is a function attributed to the
procurator in continental countries taken in India by the police. Again, the
withdrawal of the prosecution can also be done only with the permission of the
court. However, it is generally believed that traditional right of nulle presque is
available to the prosecutor

8
14th Law Commission Report, 1958
 P a g e | 12

On the recommendation of Law Commission Parliament has made effort to

separate prosecution from police by bringing new provision in new code of
Criminal Procedure in 1973 which came into force from April 1st, 1974. The
central govt. and state governments in India has been empowered to appoint
prosecutors for conducting prosecution and other criminal proceeding on their
behalf, in High Court, Sessions Court and the Court of Magistrate. It has been
specifically provided that in every trial before Sessions Court the prosecution shall
be conducted by public prosecutor. However, no specific provision has been made
in the code in respect of the conduct of prosecution in courts of magistrates.
According to prevailing practice, in respect of cases initiated on police report
prosecution is conducted by prosecutor and in case initiated on private complaint,
the prosecution is either conducted by complainant himself or by his lawyer.9

The prosecutor in charge of case may appear and plead without any written
authority before any court in which that case is dealt with10. Further it has also
been provided that the Advocate general or government advocate or P. P., assistant
P. P. shall have right to conduct prosecution and for that no permission is
required11. The code does not mention the duties of the prosecutor. However the
principles in this regard are well settled about the nature of the office it has been
held that this is a public office of much importance and that the present spoil
system of appointment to the office by political consideration should be done
away12.

Section 24 of the Cr.P.C. provides for appointment of public prosecutors in the

High Courts and the sessions by the central government or state government.

In this context, section 321 of the Cr.P.C. 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

9
Mukal Dalal v. Union of India 1988 SCC 144
10
Section 301(1), Code of Criminal Procedure
11
Section 302 (2), Code of Criminal Procedure
12
Srilekha Vidyarthi v. UP 1991 SCC 212
 P a g e | 13

to a public purpose entrusting the officer with the responsibility of so acting only in
the interest of administration of justice.

The nature of the powers of the public prosecutor is sometimes doubted. At times,
it appears to be executive power. In certain contexts, it may appear to be quasi-
judicial. The principle that the Supreme Court laid down in RK Jain case13,
quoting Shamsher Singh v. State of Punjab14, as regards the meaning and content
of executive powers tends to treat the public prosecutor 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 truthful15. Public prosecutor is not a government employee and cannot
be said to hold office under the state. This has been made very clear by the Apex
court while construing the provisions of section 46(2) of the Prevention of Money
Laundering Act, 2002, has held that the expression Under occurring in section in
46(2) must be reasonably construed in a manner which is consistent with the
dignity of office of the public prosecutor. A public prosecutor cannot be equated
with a person who is holding office under the state. He cannot be treated as
government employee. It may be that he should be lawyer on the government
panel. However, the independence of public prosecutor from any governmental
control is the hall mark of the high office16.

Public prosecutors are really ministers of justice whose job is none other than
assisting the state in the administration of justice. They are not representatives of
any party. Their job is to assist the court by placing before the court all relevant
aspects of the case. They are not there to use the innocents go to the gallows. They
are also not there to see the culprits escape conviction. But the pleader engaged by
a private person who is a de facto complainant cannot be expected to be so

13
AIR 1980 SC 1510
14
1974 SCC (2) 831
15
Aziz v. State of Kerala 1984 Cr.L.J. 1060
16
Center for PIL v. Union of India 2012 CrLJ 1153
 P a g e | 14

impartial. Not only that, it will be his endeavor to get the conviction even if a
conviction may not be possible17.

Though the office of the public prosecutor seems to have the features of the
executive, the judiciary does not appear to treat it so, because it does not approve
of the appointment of police officers as public prosecutors. The Punjab & Haryana
High Court in Krishan Singh Kundu v. State of Haryana18 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[26] 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.

It seems that the office of the public prosecutor belongs to the executive. However,
it is strongly felt that it is in fact not purely of the executive. As explained by the
Supreme Court in the Shamsher Singh (Supra), it takes on judicial character and
as such assumes a lot of importance in a democracy. The very establishment of this
office presupposes the understanding that we cannot afford to permit private
prosecution as it may result in utter chaos, particularly in the present political set
up. However, while we adopt this office in the place of private prosecution, we
cannot forget the interests of the victim. The public prosecutor may not share the
concerns of the victim, or safeguard the victim's interests. The Indian Cr. P.C.
therefore permits pleaders appointed by private persons to represent the interests of
victims. However, the courts insist that they should work under the directions of
the public prosecutor. This shows that the court gives more importance to the
public interest. 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 has to be impartial, fair and truthful, not only as a public executive but
also because the prosecutor belongs to the honorable profession of law, the ethics
of which demand these qualities. The facts in Sunil Kumar Pal and Ganesan make
us to open our eyes to the realities.

17
Babu v. State of Kerala 1984 Cr.L.J. 499
18
1989 Cr.L.J 1309(P&H)
 P a g e | 15

Section 25 of code imposed statutory obligation on state government, in

unequivocal terms that it shall appoint one or more assistant public prosecutor in
every district exclusively for the purpose of conducting prosecution in courts of
magistrate in such district19. That independence of assistant public prosecutor
sought to achieved under provision s in section 25 of the code is also sought to be
achieved in respect of prosecution conducted in sessions courts and High courts
which is obvious from the scheme of the provisions of section 24 of the code. The
end of practice of police prosecutor also led to a landmark judgment of Allahabad
High court, the court quashed a U P government order placing the Asst. P. P. under
administrative and disciplinary control of police20. After separating prosecution
completely from police Parliament intended to extend the regular cadre of
prosecuting officer to the courts of sessions also and for that Parliament introduced
sub section (6) and (9) in section 24. By these amendment it was sought that in the
state where exist regular cadre of prosecuting officers state shall appoint
prosecution officers in sessions courts in the country only amongst the cadre
constituting regular cadre of prosecution officers in a state. As the experience of 7-
10 years standing as an advocate was made essential for the appointment of
prosecutors in sessions court therefore, provision under sub section (9) was made
to the effect that for the above purpose the experience of assistant public prosecutor
shall be deemed to experience of Advocate21. However, 4th report of national
police commission argued that independence of prosecution reduced the power of
police and led to decline of convictions. Similar point has also been raised by
recent reports on prosecution system in Orissa and West Bengal. The infamous
Malimath committee also recommended that prosecution be headed by Director
General of police. On the other hand prosecutor, Law commission and human
rights activists do not support the idea of placing the agency under control of
police.

The Parliament in 2005 introduced amendment in Code of Criminal Procedure

1973 by inserting new section 25A which empowers every state to establish a
directorate of prosecution in each state with objective to control prosecution from
High court to Magistrate court in the country.
19
Section 25, The Code of Criminal Procedure, 1974
20
Jaipal singh v. U P 1976 Cr L J 32
21
Section 24, The Code of Criminal Procedure, 1974
 P a g e | 16

The parliament amended the CrPC so that state governments could adopt
prosecution services consisting of a director of public prosecutions at the top and
district public prosecutors and assistant public prosecutors at the lower formations.
Section 25A inserted by Act 25 of 2005, section 4 (with effect from 23 June 2006)
lays down that:

25A. Directorate of Prosecution (1) The State Government may establish a

Directorate of Prosecution consisting of a Director of Prosecution and as many
Deputy Directors of Prosecution as it thinks fit.

(2) A person shall be eligible to be appointed as a Director of Prosecution or a

Deputy Director of Prosecution, only if he has been in practice as an advocate for
not less than ten years and such appointment shall be made with the concurrence of
the Chief Justice of the High Court.

(3) The Head of the Directorate of Prosecution shall be the Director of Prosecution,
who shall function under the administrative control of the Head of the Home
Department in the State.

(4) Every Deputy Director of Prosecution shall be subordinate to the Director of

Prosecution.

(5) Every Public Prosecutor, Additional Public Prosecutor and Special Public
Prosecutor appointed by the State Government under sub-section (1), or as the case
may be, sub-sections (8), of section 24 to conduct cases in the High Court shall be
subordinate to the Director of Prosecution.

(6) Every Public Prosecutor, Additional Public Prosecutor and Special Public
Prosecutor appointed by the State Government under sub-section (3), or as the case
may be, sub-sections (8), of section 24 to conduct cases in District Courts and
every Assistant Public Prosecutor appointed under sub-section (1) of section 25
shall be subordinate to the Deputy Director of Prosecution.

(7) The powers and functions of the Director of Prosecution and the Deputy
Directors of Prosecution and the areas for which each of the Deputy Directors of
 P a g e | 17

Prosecution have been appointed shall be such as the State Government may, by
notification, specify.

(8) The provisions of this section shall not apply to the Advocate General for the
State while performing the functions of a Public Prosecutor.

Even after lapse of four years not a single state in India has established separate
and independent directorate of prosecution. Therefore, while some states have
created Directorate of prosecution while others have not (Arunachal, Mizoram and
Gujarat). Furthermore, in states which have The Director of Prosecution too, there
is no uniformity. In Goa, The Director of prosecution cover High courts, sessions
court and the magistrate court. In Delhi, Karnataka, Himachal and Orissa, The
Director of prosecution exclude High court. In states like Rajasthan, Andhra
Pradesh, Tamil Nadu, U. P., M. P. and Uttaranchal, the Director of
prosecution cover only magistrate court prosecutors and sessions and High court
are under Law department and prosecutors are appointed on tenure.

The impartiality of the P. P. is directly depend upon who control the agency. In
some states it is in control of police, in some sates like Goa and kernataka it is
control of Law department and in Rajasthan it is controlled by judiciary and all
these agency in their on interest by hook and crook want to keep prosecution in
their grip , despite of recommendation of law commission and verdict of Apex
court. This clearly reflect apathy and neglected approach of states in this regard
and in my view which is one of reasons for the fall in administration of criminal
justice in India. The present position of prosecution in India has been described by
H R Bhardwaj as The office of public prosecutor enjoyed great prestige in India
till recently and some of the most out standing lawyers adorned the august office.
The court relied upon their opinion and advice. The decline of the office of P. P. is
one of the many reasons for the fall in administration of criminal justice in India.
Although they are appointed in consultation of High courts, their quality has not
improved. There is no regular cadre of prosecuting officers in most of the states.

The state governments are yet to implement these provisions. Reorganization of the
public prosecution system in this pattern may help a lot in preventing police
torture, harassment and delays. There would be more transparency in the police-
 P a g e | 18

citizen relationship if the public prosecutor were an independent functionary

interposed between the police and the court.

The public prosecutor is the lynchpin of the criminal justice system. Once the
investigation is complete, the role of the public prosecutor commences. Increase in
white and gold collar crime requires different and advanced skills of investigation
and prosecution. There is a need for investigators well versed in accountancy and
commercial practice, and a continuous interaction of investigators with the legal
team and most importantall these in an independent prosecution agency that is
beyond the reach of the rich and powerful.
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CHAPTER 4

4.1 Role and Reasons for the Office of Public Prosecutor

As in the case of Babu v. State of Kerala22 enunciated above the court observed
that Public prosecutors are really ministers of justice whose job is none other than
assisting the state in the administration of justice. They are not representatives of
any party. Their job is to assist the court by placing before the court all relevant
aspects of the case. They are not there to use the innocents go to the gallows. They
are also not there to see the culprits escape conviction. But the pleader engaged by
a private person who is a de-facto complainant cannot be expected to be so
impartial. Not only that, it will be his endeavour to get the conviction even if a
conviction may not be possible.

A Public Prosecutor is not expected to show a thirst to reach the case in the
conviction of the accused somehow or the other irrespective of the true facts
involved in the case. The expected attitude of the Public Prosecutor while
conducting prosecution must be couched in fairness not only to the court and to the
investigating agencies but to the accused as well. If an accused is entitled to any
legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it.

The rationale behind a Public Prosecution, the underlying principle governing the
Criminal Justice System is that all crime (offences which have been codified as
such in statutes) committed by an individual or groups against others are deemed to
have been committed against society. Hence it is the responsibility of the state to
bring justice to the sections of the society which have been adversely affected by
the crime or offense.

Public Prosecutor should be scrupulously fair to the accused and present his case
with detachment and without evincing any anxiety to secure a conviction.
Otherwise there will be no guarantee that the trial will be as fair to the accused as a

22
1984 Cri LJ 499
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criminal trial ought to be. The State and the Public Prosecutor acting for it are only
supposed to be putting all the facts of the case before the court to obtain its
decision thereon and not to obtain a conviction by any means fair of foul.
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:

1. Presumption of innocence: Accused presumed to be innocent.

2. Deprivation of life / personal liberty only in accordance with procedure established
by law.23
3. Equality: The guarantee of equality before the law.
4. Equal Protection: Equal protection of the laws.
5. Beyond all reasonable doubt: The guilt must be proved beyond all reasonable
doubt
6. Double jeopardy: Protection against double jeopardy
7. Non-retrospective punishment
8. Prohibition of discrimination: Prohibition of discrimination imposed upon the
State.
9. The right of the accused to remain silent
10. Arrest/detention must be in accordance with law and judicial guidelines.
11. Speedy trial.

Directorate of Prosecution, 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. This Directorate is headed by a Director assisted by other
subordinate rank officials and ministerial staff.

23
See Article 21 of the Indian Constitution
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4.1.1 Role of a Public Prosecutor in Investigations

Investigations in India are conducted as per provisions of Chapter XII of the

Code.
Cases are registered under section 154 of the Code. A police officer is competent
to investigate only cognizable offences. Non- cognizable offences cannot be
investigated by the police without obtaining prior orders from the courts. A
police officer can examine witnesses under section 161. However, the statements
are not to be signed by the witnesses. Under section 164 of the Code Confessions
of accused persons and statements of witnesses are recorded. A police officer has
the power to conduct searches in emergent situations without a warrant from the
court under section 165. A police officer is competent to arrest an accused
suspected to be involved in a cognizable offence without an order from the court
in circumstances specified in section 41 of the Code. He is required to maintain a
day to day account of the investigation conducted by him under section 172.
After completion of investigation, a police officer is required to submit a final
report to the court under section 173. If a prima facie case is made out, this final
report is filed in the shape of a charge-sheet. The accused has, thereafter, to face
trial. If no cogent evidence comes on record, a closure report is filed in the Court.
The public prosecutor plays the following role at the investigation stage:

(1) He appears in the court and obtains arrest warrant against the accused;
(2) He obtains search warrants from the court for searching specific premises for
collecting evidence;
(3) He obtains police custody remand for custodial interrogation of the accused
(section 167);
(4) If an accused is not traceable, he initiates proceedings in the court for getting
him declared a proclaimed offender (section 82) and,
Thereafter, for the confiscation of his movable and immovable assets (section
83); and
(5) He records his advice in the police file regarding the viability/advisability of
prosecution.
 P a g e | 22

After the completion of investigation, if the investigating agency comes to the

conclusion that there is a prima facie case against the accused, the charge-sheet is
filed in the court through the public prosecutor. It is to be noted that the opinion
of the public prosecutor is taken by the police before deciding whether a prima
facie case is made out or not. The suggestions of the public prosecutor are also
solicited to improve the quality of investigation and his suggestions are generally
acted upon. However, the ultimate decision of whether to send up a case for trial
or not lies with the police authorities. In case there is a difference of opinion
between the investigating officer and the public prosecutor as to the viability of
the prosecution, the decision of the District Superintendent of Police is final.

4.1.2 Role of a Public Prosecutor during Trial

As stated above, the public prosecutor is vested with the primary responsibility
to prosecute cases in the court. After the charge-sheet is filed in the court, the
original case papers are handed over to him. The cognizance of the case is taken
by the courts under section 190 of the Code. The trial in India involves various
stages. The first and foremost is the taking of cognizance of a case by the court.
The second step is to frame charges against the accused, if there is a prima facie
case against him. The third step is to record the prosecution evidence. The fourth
step is to record the statement of the accused (section 313 of the Code). The fifth
step is to record the defence evidence. The sixth step is to hear the final
arguments from both sides, and the last step is the pronouncement of judgement
by the Court.

The public prosecutor is the anchor man in all these stages. He has no authority
to decide whether the case should be sent up for trial. His role is only advisory.
However, once the case has been sent up for trial, it is for him to prosecute it
successfully.
 P a g e | 23

A. Withdrawal from Prosecution

The public prosecutor has the authority to withdraw a case from trial under
section 321 of the Code. Under the case law, he and he alone has the ultimate
authority to withdraw a case from prosecution (AIR 1983 SC 194). But the
practice is that he receives instructions from the government and pursuant to
those instructions, he withdraws the case from prosecution. The grounds of
withdrawal could be many, including:
(1) False implication of accused persons as a result of political and personal
vendatta;
(2) Inexpediency of the prosecution for the reasons of state and public policy; and
(3) Adverse effects that the continuation of prosecution will bring on public
interest in the light of changed situation.

B. Burden of Proof on Prosecution

It is for the public prosecutor to establish the guilt against the accused in the court
beyond a reasonable shadow of doubt. The evidence is in three forms, namely,
oral evidence (i.e., statements of witnesses); documentary evidence; and
circumstantial evidence. Forensic evidence also plays an important role in varied
crimes. In the Indian system, the statement of a witness is recorded by the
investigating officer. The statement is not required to be signed by a witness
under the law. The witness is required to appear in the court and prove the facts
mentioned by him to the investigating officer at the pre-trial stage and to face
cross-examination by the defence lawyer. The public prosecutor conducts the
examination-in-chief of a witness and, thereafter, his re- examination, if need be,
in order to clarify ambiguity, if any, after a witness cross- examination.
Similarly, the documents cited in evidence are required to be proved by the public
prosecutor with the help of witnesses. The forensic evidence is proved through
the documents prepared by the experts and also by the testimony of the experts in
the court. The experts are also liable to be cross-examined by the defence
counsel. On the basis of the facts proved by the oral, documentary and forensic
evidence, the public prosecutor tries to substantiate the charges against the
accused and tries to drive home the guilt against him. If there is a statutory law
 P a g e | 24

regarding presumptions against the accused, the public prosecutor draws the
courts attention towards that and meshes it with other evidence on record. While
the law requires establishing a prima facie case for charge-sheet purposes, the law
for conviction is that the guilt should be proved beyond a reasonable shadow of
doubt. The standard of proof in Indian courts is quite high and that largely
explains the low conviction rate, particularly in IPC offences. The prosecutor has
an immense role. He has to prove the facts. He has to prove the circumstances,
and then he has to draw the inferences and convince the court that the arraigned
accused alone is guilty of the offences that he has been charged with. This is an
onerous task and requires sound legal knowledge, the ability to handle witnesses
and the capability to carry the court along with him.

4.1.3 Co-ordination between the Police and Public Prosecutors

Before 1973, the Assistant Public Prosecutors (some of them were police
officers) were under the direct control of the District Superintendent of Police.
The public prosecutors appearing in the Sessions Courts were drawn from the
open market on a tenure basis and they were responsible to the District
Magistrates. After the amendment in the Code, Assistant Public Prosecutors have
been totally detached from the police department. At present they report to the
District Magistrate at the district level and to the Director of Prosecutions at the
state level. The status of the public prosecutors appearing in the Sessions Courts
remains unchanged.
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CONCLUSION

The office of Public Prosecutors in India like almost every governmental setup in
this country is in a bad shape today, it suffers from various inadequacies and
incompetence due to rigid and at times useless formalities.

Most offices of public prosecutors have inadequate staff, space and furniture. Even
the recruitment rules do not provide sufficient clerical and supporting staff. Salaries
and other incentive are also in very bad shape. Once it was close with judicial officers
in whose courts prosecutors worked. It was true recognition of their value and status
as court officer.

The investigations are generally conducted by low level police officers who are not
proficient in laws, procedures and practical police working. The supervisory officers
are, sometimes, deficient in closely monitoring the investigations. Such cases when
sent up for trial, often result in acquittals and the blame comes on the public
prosecutors. While, it is necessary to improve the quality of public prosecutions, it is
clearly important to improve the quality of investigation. Special emphasis should be
laid on using modern scientific methods of investigation. A closer rapport between
the investigating agency and the prosecution agency should also improve the outcome
of trials.

Delay in trials is one of the fundamental reasons for acquittals in criminal cases.
Speedy trial is the fundamental right of the accused in Indian law. It is the paramount
duty of the public prosecutor to ensure speedy trial for which he has to take along
with him the court and also the defence lawyer.

A public prosecutor is an officer of the court and is required to render assistance to the
court to arrive at a just and equitable decision. He is also required to be fair to the
opposite party. His guiding principle should be not so much the letter of law, but the
spirit of law based on prudence, common sense and equity.
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BIBLIOGRAPHY

Primary Source:

Bare Act

Code of Criminal Procedure, 1973

Secondary Source:

Books:

1. C.K. Takwani, Criminal Procedure, 4th Edition, LexisNexis.

2. B.M Prasad, Manish Mohan, Ratanlal and Dhirajlal, The Code of Criminal Procedure
21st Edition, LexisNexis

3. K.N. Chandrasekharan Pillai, R.V. Kelkar's Lectures on Criminal Procedure; 6th

Edition, Reprinted 2011 (EBC)

4. K.N. Chandrasekharan Pillai, R.V. Kelkar's Criminal Procedure; 6th Edition, (EBC)

Articles:

Chargesheet, Wikipedia, (Last updated, 20th Aug. 2017)

http://en.wikipedia.org/wiki/Chargesheet

Sugandha Nayak, India: Framing of Charges: An Overview (Last updated, 13th Aug,
2013)
http://www.mondaq.com/india/x/257582/Crime/Framing+Of+Charges+An+Overview

Justice P. Sathasivam, Framing of Charges, Principles and Law, (Last updated, 28th Aug,
2011)

http://www.legalblog.in/2011/08/framing-of-charge-principles-and-law.html