The Role of Public Prosecutors In The Administration of Criminal Justice System

By Ankit Kumar 22 Minutes Read

Introduction

•  Public Prosecutor plays a vital role in the administration of the Criminal Justice System in India. The Police, the Prosecution, the Judiciary, and the Prison and Correctional Services constitute the components of the Criminal Justice System.
•  A Public Prosecutor represents the State in a criminal case as a crime is considered to be an offense against the State.
•  His role came into the picture after chargesheet is submitted by the police. He presents the multiple aspects of the case during the trial and assists the Court in the delivery of Justice.
•  The United Nations Guidelines on the Role of the Prosecutors requires Prosecutors to perform their duties fairly, impartially, and consistently, protecting human dignity, upholding human rights and avoiding all political, social, religious, cultural, sexual or any other kind of discrimination[1].
•   In order to ensure the fairness and effectiveness of prosecution, prosecutors must strive to cooperate with the police, the courts, the legal profession, public defenders and other government agencies or institutions[2].
•  Complying with these provisions, the Code of Criminal Procedure, 1973 mandates the appointment of Public Prosecutors in the High Courts and District Courts.

Public Prosecutor and His Appointment

•  A Public Prosecutor is a lawyer who acts for the government against someone accused of a crime and prosecutes them in the Court.
•  According to the Code of Criminal Procedure, 1973 (CrPC, 1973) “Public Prosecutor” means any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor[3]. While, under Bhartiya Nagarik Suraksha Samhita, 2023 (BNSS), he is a person appointed under Section 18 and includes any person acting under his directions.

Categories of Public Prosecutor

Section 24 of CrPC (now, Section 18 of BNSS, 2023) provides three main categories of Public Prosecutors:

A.  Category I: Those who are attached to a particular High Court or district;

B.  Category II: Assistant Public Prosecutors who are linked to a particular case or a class of cases but in a specified jurisdiction;

C.  Category III: Special Public Prosecutors appointed under Section 24(8) of the Code [or Section 18(8), BNSS].

A. Appointment of Public Prosecutor under CrPC, 1973 (Category I)

Section 24 of the CrPC, 1973 (Section 18 of BNSS, 2023) mandates the appointment of a Public Prosecutor or Additional Public Prosecutor for every High Court and District Court. The provisions of this section can be explained in the following steps:

1. Who Appoints

Section 24(1) of CrPC provides that the Central Government and the State Government appoint a Public Prosecutor and may appoint one or more Additional Public Prosecutors for every High Court and they have to conduct prosecution, appeal or other proceeding in such Court on behalf of the respective Government.

This provision is similar to Section 18(1) of BNSS. However, the BNSS includes a proviso clause for NCT Delhi, according to which only Central Government shall appoint the Public Prosecutor or Additional Public Prosecutors, after consultation with the High Court of Delhi.

The point to be noted here is that the power of the State Government to appoint a Public Prosecutor or Additional Public Prosecutor would extend only for conducting prosecution, appeal or other proceedings in the courts within that State (Jayendra Saraswathi Swamigal v. State of Tamil Nadu)[4].

2. Panel of Names

To appoint a Public Prosecutor or Additional Public Prosecutors for every district, the District Magistrate u/s 24(4) of CrPC (now, Section 18(4) of BNSS) shall prepare a panel of names in consultation with the session judge.

The panel of names include the name of those who are in their opinion fit to be appointed as Public Prosecutor or Additional Public Prosecutor. The State government shall appoint them from these panel of names u/s 24(3) CrPC [similar to Section 18(3) BNSS].

Further, Section 24(5) CrPC [similar to Section 18(5), BNSS] puts an obligation on the State that it can not appoint any person as the Public Prosecutor or Additional Public Prosecutor unless his name is not in the list of panel of names prepared by the District Magistrate.

3. Regular Cadre of Prosecuting Officers

Section 24(6) of the CrPC mandates that, if there exists a regular Cadre of Prosecuting Officers in a State, the State Governments are obliged to appoint Public Prosecutors or Additional Public Prosecutors only from amongst the persons constituting such cadres. The same provision is also laid down by BNSS u/s 18(6).

If in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4).

The expression “regular cadre of Prosecuting Officers”[5]as held by Supreme Court in the case of A.K. Ahlawat v. State of Haryana[6], (2010) comprised a service with the Assistant Public Prosecutor at the lowest level and Public Prosecutors at the top. Further the court in the case of K.J. John, Asst. Public Prosecutor v. State of Kerala[7] held that in case a regular cadre of Prosecuting Officers did not go up to the Public Prosecutor at the top, the State Government cannot be considered as bound to appoint Public Prosecutor or Additional Public Prosecutor only from among the persons constituting such cadre under the Code of Criminal Procedure for conducting cases in the sessions court.

4. Experience

Section 24(7) of CrPC [similar to Section 18(7) of BNSS] laid down a mandatory provision that the person has been in practice as an advocate for not less than seven years to be appointed as an Additional Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6) of this Code.

In short, Public Prosecutor and Assistant Public Prosecutor is appointed by Centre and State Government in High Court and in a district the Public Prosecutor or assistant Public Prosecutor is appointed from the panel of names prepared by District Magistrate in general.

B. Assistant Public Prosecutor (Category II)

Section 25 of CrPC [S.19 of BNSS] deals with the appointment of Assistant Public Prosecutors in the district for prosecution in the courts of Magistrate. Section 25(1) of CrPC states that the State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates.

Further, u/s 25(2) CrPC, no police officer shall be eligible to be appointed as an Additional Public Prosecutor subject to the provision under sub-section (3). According to Section 25(3), where no Assistant {Public Prosecutor is available for the purpose of any particular case, the District Magistrate may appoint any other person to be Assistant Public Prosecutor in charge of that case:

Provided that a police officer shall not be so appointed –

(a)   If he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or

(b)   If he is below the rank of inspector.

C. Special Public Prosecutor

The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor u/s 24(8) of CrPC[s.18(8) of BNSS].

It is to be noted that Supreme Court in the case of Poonamchand Jain v. State of M.P.[8] held that the appointment of Special Public Prosecutor is not with reference to the High Court or district, but is an appointment for a case or class of cases in any court. Without disclosing a special reason, order appointing a Special Public Prosecutor is illegal.

Role of Public Prosecutor

The Public Prosecutor is an office of high regard and carries great responsibility. He has to act objectively and not according to the dictates of the State Government (see: Captain Amarinder Singh v. Prakash Singh Badal[9]). The role of the Public Prosecutor has been emphasized in various judgments of the Supreme Court which has been discussed below:

1. Sole authority to conduct prosecution in a session Court

The Public Prosecutor has the sole authority to conduct prosecution in the Sessions Court. While observing the role of the Prosecutor, Supreme Court in the case of Shiv Kumar v. Hukam Chand[10] held that, from the scheme of the Code the legislative intention is manifestly clear that prosecution in and Sessions Court cannot be conducted by anyone other than Public Prosecutor. The court highlighted the importance and responsibility of public prosecutors in conducting prosecutions fairly, ensuring they prioritize justice over convictions.

2. Public Prosecutor does not represent the investigating agency

There have been claims that the Public Prosecutor acts as part of the investigating agency. However, the Supreme Court, in Hitendra Vishnu Thakur v. State of Maharashtra[11], determined that a Public Prosecutor is not a member of the investigating agency, but rather an independent statutory authority.

The Public Prosecutor is required to independently evaluate the investigating agency’s request before presenting a report to the court for an extension of the investigation period. However, he is not simply a post office or forwarding agency. The Prosecutor may reject the investigating officer’s rationale for requesting more time and may find that the investigation has not advanced appropriately, or that there has been unnecessary, deliberate, or avoidable delay in its completion

This distinction was further stressed upon in S.B. Shahane v State of Maharashtra[12] where the apex court emphasized on the desirability of separation of prosecution agency from the investigation agency.

3. During the Trial of a session case

The Public Prosecutor plays a crucial role during the trial of a sessions case. While the Sessions Judge supervises the overall conduct of the trial, it is the Public Prosecutor who determines which witnesses will are to be examined on behalf of the prosecution or which will be dismissed, and which will be recalled for further examination. [Jayendra Saraswati Swamigal alias Subramaniam vs State of Tamil Nadu [13]].

Taking a step further, the Court in Niranjan Gosai v. State of Jharkhand[14] observed that under Section 225 CrPC, every trial before the Court of Session must be conducted by the Public Prosecutor. Furthermore, regarding withdrawal of prosecution, the Public Prosecutor in charge of the case must make the application for withdrawal as per Section 321 CrPC.

4. His duty is not to secure conviction or acquittal of the accused

The Public Prosecutor’s key duties include to present all evidences before the Court and also, to ensure that all crucial witnesses appear in court. His objective is to assist the court in delivering justice and not to secure the conviction or acquittal of an accused.

5. Maintenance of the rule of law lies in their hand

The Public Prosecutors while presenting the prosecution case have a duty to see that innocent persons may not be convicted as well as an accused guilty of commission of a crime does not go unpunished. Maintenance of law and order in the society and, thus, to some extent maintenance of the rule of law which is the basic fibre for upholding the rule of democracy lies in their hands [State of U.P. and Another v. Johri Mal][15].

6. Ensuring fairness in the proceeding

The duties of Public Prosecutor extend to ensuring fairness in the proceedings and also to ensure all relevant facts and circumstances are brought to the notice of the Court for a just determination of the truth so that due justice prevails [V.K Sasikala v. State Represented by Superintendent of Police[16]; Sidhartha Vashisht Alias Manu Sharma v. State (NCT of Delhi)[17]]. The role of Public Prosecutor in ensuring a fair trial is of paramount importance [National Human Rights Commission v State of Gujarat and Others][18].

7. Ensure administration of justice

As reiterated in Babu vs. State of Kerala[19], a Public Prosecutor is essentially a minister of justice whose role is to assist the State in administering justice, rather than representing any particular party. The role of the Public Prosecutor in the criminal justice system has been very aptly described in Centre for Public Interest Litigation v. Union of India[20], (2011) as:

“The Prosecutor has a duty to the State, to the accused and to the court. The prosecutor at all times a minister of justice, though seldom so described. It is not the duty of the prosecuting counsel to secure conviction, nor should any prosecutor even feel pride or satisfaction in the mere fact of success.”[21]

The Supreme Court in Shrilekha Vidyarthi v. State of U.P.[22] emphasized that the role of a Public Prosecutor is to serve the public interest and ensure the administration of justice. The statutory provisions in the CrPC highlight that the Public Prosecutor holds a public office, which goes beyond a mere professional engagement between a client and lawyer.

Therefore, a Public Prosecutor’s duties extend beyond ensuring the accused is punished. They must ensure fair play in the proceedings, present all facts to the court, and seek truth and justice for all parties, including the victims. These responsibilities do not permit the prosecutor to be lax in any duties as against the accused [Sidhartha Vashisht Alias Manu Sharma v. State (NCT of Delhi)[23]].

Appearance by Public Prosecutor

Section 301 of CrPC which is similar to Section 338 of BNSS deals with appearance by Public Prosecutor. Section 301(1) provides that the Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial, or appeal.

Under Section 301(2) CrPC [s. 338 of BNSS], a private person can instruct his advocate to prosecute any person in any court in any such case. The Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the advocate so instructed shall act therein under their directions. With the permission of the Court, they can also submit written arguments after the evidence is closed in the case.

Further, Section 302 CrPC [Section 339 BNSS] enables the Magistrate to permit any person to conduct the prosecution (except a police officer below the rank of Inspector). This laxity is not extended to any other courts. It is to be noted that Section 301 has wider application than Section 302. While, the later applicability confined to Magistrate Courts, former extends to all the courts of criminal jurisdiction.

When a privately engaged counsel assists the Public Prosecutor, their role is similar to that of a junior advocate working under a senior in court. The private counsel acts on behalf of the Public Prosecutor, even though they are hired by a private party. If the Public Prosecutor’s role is reduced to mere supervision, the trial could become a battle between the private party and the accused, undermining Section 225 of the Code (Shiv Kumar v. Hukam Chand)[24]. This ruling addresses cases where private counsels, despite having the Public Prosecutor’s consent, were not allowed to prosecute the accused.

CONCLUSION

“The office of a Public Prosecutor is a public one” and “the primacy given to the Public Prosecutor under the Scheme of the Code (CrPC) has a social purpose” [Mukul Dalal v. Union of India][25]. He is not appointed only to perform the function of prosecution on behalf of the State, but he has a very important role in the administration of justice. He has to work objectively with his own application of mind on case to case basis. His power and function vested with the duty of appreciation of all the facts before the court so that justice can be delivered. Thus, as a minister of justice, he is a means to secure justice. His office aims to secure the rule of law in the country as it facilitates fairness in the proceedings.

[1] International Association of Prosecution’s Standards of Professional Responsibility and Statement of the Essential Duties and Right of Procedures, Article 2.1.

[2] United Nations Guidelines on the Role of Prosecutors, Article 20.\

[3] Code of Criminal Procedure, 1973, § 2(u), No. 2, Acts of Parliament, 1974.

[4] AIR 2005 SC 716.

[5] Code of Criminal Procedure, 1973, § 24(6)(a), No. 2, Acts of Parliament, 1974.

[6] (2010) SCC OnLine P&H 5139.

[7] (1990) 4 SCC 191.

[8] (2001) SCC OnLine MP 27.

[9], (2009) 6 SCC 260.

[10] (1999) 7 SCC 467.

[11] (1994) 4 SCC 602.

[12] (1995) SCC (Crl) 787.

[13] (2008) 10 SCC 180.

[14] (2017) SCC OnLine Jhar 1802.

[15] (2004) 4 SCC 714.

[16] (2012) 9 SCC 771.

[17] (2008) 5 SCC 230.

[18] (2009) 6 SCC 767.

[19] 1984 CRILJ 499.

[20] (2011) 15 SCC 169.

[21] Ibid.

[22] (1991) 1 SCC 212.

[23] (2008) 5 SCC 230.

[24] (1999) 7 SCC 467.

[25] (1988) 3 SCC 144.

Ankit Kumar