Role of Public Prosecutor in the Criminal Justice System

The author in this article discusses the role of the Public Prosecutor and how his role is considered under the judicial system and how his roles and duties are empowered under the statutes and expressed by the precedents.

Role of Public Prosecutor is assigned as the agent of the state to represent the interest of common people in the criminal justice system. The prosecution of the accused is, not restricted to, but, the duty of the state and not individually the duty of the aggrieved party. Such Prosecutors are appointed in almost all countries in world judicial systems.

Public Prosecutor means “A person who is appointed under Section 24 of CrPC and it also includes any person who is acting under the directions of Public Prosecutor”.

The Public Prosecutor thus, has a wider duty under the judicial system, but the Public Prosecutors are assigned by the appropriate Government in India in the capacity and necessity with absolute adherence to the Code of Criminal Procedure (hereinafter referred as “”CrPC””).

Section 2(u) of the CrPC defines Public Prosecutor.

The Public Prosecutor is defined under Section 24 of Cr.P.C. They fulfil the basic principle of Rule of Law i.e. auld alteram partem (no person shall be condemned unheard).

This research further demonstrates the role of the Public Prosecutor and how his role is considered under the judicial system and how his roles and duties are empowered under the statutes and expressed by the precedents.

The Role of Public Prosecutor in Criminal Justice

In the case of Laxman Rupchand Meghwani v. State of Gujarat and Ors,[1] the ‘Hon’ble Supreme Court of India (hereinafter referred as “”Apex Court””) explained that under Code of Criminal Procedure 1973 (hereinafter referred as “”CrPC””), the Public Prosecutor has been designated a special status with conferring him with statutory appointment. Thus, the functions and duties of a Public Prosecutor are of critical essence to the public. The Apex Court has also contemplated that a Public Prosecutor should not be considered as just an advocate engaged by the state for conducting prosecutions on their behalf. Thus, a Public Prosecutor is differentiated to be considered as just an advocate engaged by the state for representing prosecutions on their behalf.

A brief of relevant provision under Cr.P.C

The Hierarchy of Public Prosecutor under Section 24:

  1. The Public Prosecutor appointed by Central Government
  2. The Public Prosecutor appointed by State Government
  3. Additional Public Prosecutor appointed by State Government.
  4. Special Public Prosecutor appointed by Central Government
  5. Special Public Prosecutor appointed by State Government.

Section 24 of Cr.P.C contemplates regarding appointment of Public Prosecutors at the District Courts and High Courts by the state government and central government respectively and provisions relating thereto.

Sub-section 1 stipulates that every High Court, the Central or the State Government with consultation from High Court can appoint a Public Prosecutor and further may also appoint one or more Additional Public Prosecutors for proceeding in respective court any such prosecution appeal or other proceedings on behalf of the respective government, as the case may be.

Sub-section 2 states that powers are with the Central Government for appointing one or more Public Prosecutors for representing any case or class of cases in any district or local area.

Sub-section 3 ensures that the Public Prosecutor should be essentially appointed for each district and further also allows to appoint Additional Public Prosecutor where it is required.

Subsection 4 mandates that the District Magistrate with consulting the Session judge required to draft a panel of names who are considered as fit for such an appointment.

Subsection 5 restricts that a person cannot be appointed as a Public Prosecutor or Additional Public Prosecutor by State Government for a district unless such names are on the panel prepared under subsection 4.

Subsection 6 explains that where a state has a functioning local cadre of prosecuting officers, yet there is no appropriate person in such cadre with eligibility for appointment, such appointment must be made from panel ascertained as under subsection 4.

Subsection 7 states that person(s) can be appointed as Public Prosecutor only after such person(s) has been practised as an advocate for not less than a period of 7 years.

Subsection 8 contemplates that the appropriate government may appoint for the purposes of any case or class of cases, a person who has been in practice as an advocate for at least ten years as a Special Public Prosecutor.

Subsection 9 contemplates that the period during which a person has been in practice as a pleader, or has rendered service as a Public Prosecutor or Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, such period shall be deemed to be the appropriate period during which such person has been in practice as an advocate.

Section 25 of Cr.P.C states that the Assistant Public Prosecutors are appointed for the proceedings of district, in Magistrate Court, here, the State Government is responsible to appoint in every district, such number of Assistant Public Prosecutors for representing prosecutions in the Courts of Magistrates. Furthermore, the Central Government may appoint such a number of Assistant Public Prosecutors for the purpose of representing a case in the courts of magistrates, if there are no Assistant Public Prosecutors then in such case the District Magistrate may appoint such other person to act as the Assistant Public Prosecutors.

Section 225 state that the trial to be conducted by a Public Prosecutor. In every trial before a Court of Session, the prosecution representation shall be conducted by a Public Prosecutor.

Section 301 contemplates regarding Appearance by Public Prosecutors.

(1)        The concerned Public Prosecutor or Assistant Public Prosecutor who is in charge of a case may respectively appear and plead without any such written authority before any Magistrate in which that particular case is under inquiry, trial or appeal.

(2)        Where any such case appear where any private person instructs a pleader to prosecute a person in any Court, the concerned Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall proceed therein under the directions of the Public Prosecutor or Assistant Public Prosecutor as the case may be, and further may with the permission of the court, submit such written arguments after the evidence is closed in the case.

Section 302 allows Permission to conduct prosecution.

(1)        The Magistrate who is conducting the trial in a case may allow the prosecution to proceed by any person other than a police officer below the rank of Inspector; but no such person other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor to be entitled to do so without prescribed permission, also, there shall not be granted any such permissions to conduct the prosecution if he has a participation with the investigation of the respective offence with respect to which the accused is being prosecuted.

(2)        Any person conducting the prosecution may do so personally or through appointing pleader.

Section 321 permits the Public Prosecutor or Assistant Public Prosecutor to withdraw from an ongoing case or prosecution with prior permission of the court at any time before the judgement is pronounced, the power of the prosecutor is derived from the statute itself and they must act in the interest of the administration of justice.

Role of Public Prosecutor with reference to precedents

In the case of Jitendra Kumar @Ajju vs State (NCT OF Delhi) And Anr.[2]

The High Court of Delhi stipulated that, “”It is well conclusive that a Public Prosecutor is a designated officer of the court and he is required and expected to assist the Court procedures to unravel the truth in a given case. In performance of such duty he may prosecute the accused but he shall not assume the role of a persecutor. It is no part of his duty to ensure the conviction at all costs. In such discharge of his duty the Public Prosecutor should act fairly and impartially and must be thus conscious about the rights of the accused. He apart from conducting prosecution cases to the best of his ability, at the same time he is also expected to maintain and protect the rights of the accused. While appointing a Special Public Prosecutor, the state must be mindful of the aforesaid duties while conducting the prosecution in a given case. The state must also be aware of the fact that the cause and interests of justice shall be secured by a Special Public Prosecutor, and not to act as sheer mouth piece of the victim of the crime or any such of his close relations, he must be considered as an agent of justice and truth. In other words, such a Special Public Prosecutor should be allowed to perform independently without taking bias.

The court also made a reference to the case In Ram Ranjan v. The Emperor,[3] where it was observed that the paramount purpose of a criminal trial is not to support at all costs a theory but the duty is to investigate the principal offence and further to determine the committed fault or innocence of the accused and the duty of a Public Prosecutor is not to represent the police but the Crown such his duty should be discharged by him honestly and fearlessly and with complete sense of responsibility that attaches to his position.

In the case of Zahira Habibullah vs State of Gujarat[4], This case is known as “Best Bakery Case”.

Burning down of construction at Vadodara which resulted in dreaded deaths of 14 persons, this matter came up before the Apex Court for consideration. The court further contemplated that, it has been noticed earlier in the earlier case reported in [2004 (4) SCC 158], that the role to be precisely played by Courts, witnesses, investigating officers, public prosecutors to be more focused, more particularly when eyebrows are raised about their roles.

In the case of Tikam Singh vs State & Ors,[5]

There is no contest with respect to the office of the Public Prosecutor yet there is an open component connected to it. He performs as the agent of the state however not a complainant. The job of a Public Prosecutor is recognized from the job of private advice.

A Division Bench of Rajasthan High Court while stating the role of complainant in the matters of appointment of Public Prosecutor referred to the case of Bhopal Singh v. State of Rajasthan and Ors.,[6]

The court here re-emphasized stating about ailing prosecutions, the state is performing as prosecutor and the complainant has no such independent right to have guilty persons punished. While observing the scheme of Sections 225, 301 and 302 of the Code, the Division Bench has expressed that the complainant is allowed limited right to speak during the ongoing trial by way of filling the prescribed written arguments as per Section 301(2) of the Code and assist the Public Prosecutor through private counsel with permission of the court if the facts so permit. The court observed the foundation of Sections 225, 301 and 302 under the CrPC is a reasonable public policy. A balance is maintained by the public interest and private interest which while maintaining the management of the prosecution attached with the Public Prosecutor, concerning provisions are made to take care about the complainant’s view, on legal as well as factual aspect.

The Hon’ble Apex Court in Shiv Kumar v. Hukum Chand and Anr.[7]

It specifies that the present that the act of Public Prosecutor is altogether unique in relation to the act of an advocate for and by a party and by the very concept of the exceptional obligations, the conduct of prosecution thus cannot be transferred to an advocate connected with the complainant.

The court further also stated that it is not merely an overall observation which the Public Prosecutor is to be performing in such cases where a privately engaged counsel is allowed to represent on his behalf. The private counsel at such time be allowed to perform and such act is comparable as a junior advocate undertaking the case of his senior in the concerned court. The private counsel has to represent on behalf of the Public Prosecutor even though the fact that such counsel is engaged in the case through a private party. When the role of the Public Prosecutor is allowed to compress to a supervisory role the entire proceeding would become a contention between the private party and the concerned accused which would trigger the legislative mandate under Section 225 of the Code as a dead letter.

A reference was also made at an early decision of where a full Bench of the Allahabad High Court in Queen-Empress v. Durga,[8] has precisely pointed at the role of a Public Prosecutor where it passed the observations stating that, it is the liability of a Public Prosecutor to undertake the case(s) for the Crown honestly. His object should not be to obtain a conviction on false activity, rather it is to represent the Crown, to further see that justice is imposed and in such exercising his discretion as to the concerned witnesses he considers appropriate to call, he should maintain this in mind. In the ‘court’s opinion, it stated that a Public Prosecutor should not refuse to perform to call or ask into the witness-box for any such cross-examination of a truthful witness registered in the calendar as the witness for the Crown sheerly on the grounds that the evidence with such witness considerably in some respects be reasonably favourable for the defence. Where a Public Prosecutor is of the opinion that a witness is a hostile witness or is likely to make false testimonial when put under the witness-box, in such circumstances he is not bound to call such witness or to compel him for cross-examination.

In the case of Sandeep Kumar Bafna v. State of Maharashtra & Anr,[9] the Apex Court contemplated;

The court stated that “”a Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or other irrespective of the facts of the case. The attitude of the Public Prosecutor must be fair towards the investigating agencies and as well as towards the accused”.”

The court also made reference to the role by Public Prosecutor and that of a Private Counsel under Prosecution. The object of the Three-Judge Bench in Thakur Ram v. State of Bihar,[10] principally was whether the concerned case before them should have been prior committed to Sessions, as also whether the particular plea could be further allowed at the stage when the final Judgment was awaited and any interference made by this court would effectuate with regards to the accused to further authorised trial virtually de novo. The learned bench came through that where “”a case has proceeded on a police report a private party has really no locus standi, since the aggrieved party is the State””, are strictly opinion of the judge but it did further foreshadow the view that it was to be considered by this court later.

In the case of Radhey Shyam v. State of M.P & Ors,[11]

Here the court precisely stipulated that a Special Public Prosecutor can be appointed when there is a requirement to the administration of justice. Such an appointment cannot be made only by request made by the complainant. His costs of remuneration to be borne by the state as it will be paid by the private party, then capacity to perform his role as a Public Prosecutor will be endangered. No government shall appoint a Special Public Prosecutor on the terms which direct him to accept his respective remuneration from any private individual.

In the case of Kunja Subidhi and Anr v. Emperor,[12]

The Public Prosecutor has to place all relevant evidence before the court whether it is in favour of it is against the accused and to leave further upon the proceedings of the court to decide the matter.

The provision under section 2(u) of the CrPC mentions “means and includes”, the Apex Court in Hardeep Singh v. State of Punjab[13] has explained such expressions by a constitutional bench of the honourable Apex Court and observed that,

The provision above-mentioned definitions clearly suggest that it is an explanative definition, thus wherever the words “”means and include”” are mentioned it is directing the fact that its interpretation ‘is a hard and fast ‘ definition’, and in such case no other interpretation can be associated to the expression, than the one which is contemplated under the definition. Furthermore, it depicts an exhaustive explanation for the interpretation which strictly with regards to the purposes of the act which must absolutely be attached to these words or expressions.

Discussion

The role of a Public Prosecutor is very essential in the Criminal Justice not sheerly on the part of representing the state, but also for the criminal justice system by the powers conferred and the obligatory duties assigned by the statutes.

The Public Prosecutor can also assign a private counsel in his place but such person shall be as a junior associate of the Public Prosecutor and shall act with attenuation of the powers to the private counsel perform with adherence to the Public Prosecutor.

The definition though exhaustive, is restrictive to the theoretic limitations and thus, the meaning and interpretation is reckoned by the precedents where a perspicuous explanation to the definition under the statute is also given where the role of a Public Prosecutor is considered enigmatic.

Conclusion

The Public Prosecutor plays a very vital role under the Criminal Justice, where he is assigned not only to represent the state under the judicial matter but also as an associate of the court to handle the matters as directed to them by the concerned government.

The Public Prosecutor is allowed to assign a private counsel on whom he can assign representation of his cases, where the private counsel should be restricted as a junior associate to the Public Prosecutor.

The Public Prosecutor is not having a duty to mandatorily prove the party he is representing, to be innocent or guilty, the duty is to present the evidence and facts of the concerned case before the court, and further leave it to the court to make the further judgement of ascertaining the innocence or guilt of the parties to the suit.


[1] Supreme Court of India, Special Criminal Application 8151/2017, Declared on 22 November 2017

[2] 84 (2000) DLT 88, 2000 (53) DRJ 707

[3] ILR 1942 Calcutta 422

[4] Supreme Court of India, Appeal (crl.)  446-449 of 2004, Date of Judgement – 08 March 2006

[5] RLW 2006 (4) Raj 2636, 2006 (4) WLC 46

[6] 2001(1) Cr.L.R. (Raj.) 161 : RLW 2000(4) Raj. 136

[7]  1998 Cr.L.R. (SC) 689

[8] ILR 1894 Allahabad 84

[9] CRIMINAL APPEAL No.  689   OF 2014 [Arising out of SLP (Crl.) No.1348 of 2014], Declared on 27 March, 2014

[10] AIR 1966 SC 911

[11] 2000 (4) MPHT 124

[12] 116 Ind Cas 770

[13](2014) 2 SCR 1