All about the job of Public Prosecutors in India!

INTRODUCTION

 A Public Prosecutor is an indispensable part of the criminal justice system. One can’t imagine the criminal justice system without the public prosecutor. He initiates the proceedings against the accused and takes it to the logical end and therefore, his role in the dispensation of the justice to the society and victim of crime is very important. In this article we will discuss the meaning, appointment, administrative control, role of public prosecutor along with the challenges, the public prosecutor generally faces in today’s scenario.

MEANING

The term “Public Prosecutor” is defined in the section 2 (u) of the Code of Criminal Procedure, 1973 as “any person appointed by under section 24 of the Code of Criminal Procedure, 1973 and includes any person acting under the directions of the public prosecutor.”  

For a man who does not belong to the field of law, it would be difficult to understand the meaning of the public prosecutor from the above said definition and for them, public prosecutor can be defined as “an advocate who on behalf of the either State Government or in some cases, the Central Government, prosecutes the accused person for the offence committed by him, in the criminal courts.”

Google Dictionary defines the public prosecutor as “A law officer who conducts criminal proceedings on behalf of the state or in the public interest.”

Merriam Webster defines the public prosecutor as “A public official charged with the investigation and prosecution of the punishable acts on behalf of the state or an international commission.”

So, by concluding the all above said definitions it becomes very clear that public prosecutor is an officer appointed by the government, who deals with the case against the accused person, on behalf of such government for an offence committed by him.

APPOINTMENT

Need for appointment of the Public Prosecutor

The question may arise in the mind of the readers that though an offence is committed against the particular individual & his family and they can hire their private advocate for that purpose, so why the State appoints the Public Prosecutor to deal a case committed against the particular individual??

The answer to above said question is that “when an offence is committed by an accused person, the commission of offence is not only against the victim/individual but also against the State/Society because, crime committed by such accused person has impact not only on the victim but also on the society at large and therefore, In order to protect the interests of society, the State Govt. appoints its own advocate to defend the interests of the society.”

Further, there is also one more reason attached to this practice and that is to ensure the fairness in trial against the accused person. If the victim is allowed to hire his/her own advocate, then his/her advocate’s main aim would be to seek conviction of the accused person by hook or crook to wreak vengeance against the accused person and in such a scenario, the fairness in trial against such accused person may be compromised, but if the impartial/neutral person is appointed to deal with the case, then in such case, On one hand, his  endeavour would be to bring truth in front of the court, which is ultimate goal of every trial, irrespective of the fact that whether it is against the accused or not, and on other hand, chances of fairness in trial increases to great extent, which is fundamental right of the accused person.”

Appointment in the High Court and Sessions Court(Section 24)

The section 24 and 25 of the Code of Criminal Procedure, 1973 provides for the appointment of the Public Prosecutors in the High Court and the Sessions Court and Section 25 of the Code provides for the appointment of Public Prosecutor in the Courts of Magistrates.

Sub-section (1) of the Section 24 says that the “for every High Court, the Central or the State Government may after consultation with the High Court , shall appoint the Public Prosecutor and may also appoint the Additional Public Prosecutors for conducting in such court, any prosecution, appeal or any other proceeding.”

Similarly, under section 24(3) of the Code, “ For every district, the State Govt. shall appoint the Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district.”   Central Govt. also has the power to appoint the Public Prosecutors for the purposes of conducting any case or class of cases in any district or local area.

Generally, in case of appointment of the Public Prosecutors in the High Court, there is no permanent cadre of such officers and the holders of the office holds the office during the pleasure of the Governor of the State, However, in case of district, their exists the regular cadre of the officers and they are permanent in nature and hold office till their superannuation.

Appointment in the Courts of Magistrates (Section 25)

Section 25 of the Code says that the “State Govt. shall appoint in every district one or more Assistant Public Prosecutors for conducting the prosecution in the Courts of Magistrates.”

Similarly, Central Govt. may also appoint one or more Assistant Public Prosecutors for conducting the prosecution in any case or class of cases in the Courts of Magistrates.

As earlier said, there exists the regular cadre of the Public Prosecutors in the State from where the appointment takes place, But in case of exceptional circumstances where there is no Asst. Public Prosecutor available, in that case, the District Magistrate may appoint any person as the Asst. Public Prosecutor including the police officer, provided

• He did not take part in the investigation of the offence with respect to which the accused is being prosecuted; or
• He is not below the rank of the Inspector.

Eligibility

For appointment of the Public Prosecutor either in the High Court or the Court of Session, section 24 says that “person shall be eligible for the appointment only if he has been practising as an advocate for not less than 7 years.”                               

In case of the appointment in the Courts of Magistrates, no eligibility criteria have been specified by the section 25 and different states have different rules in that regard.

Appointment of the Special Public Prosecutors( Section 24)

Either Central or State Government may appoint for any case or class of cases “any person who has been practising as an advocate for not less than 10 years as Special Public Prosecutor.”

Generally, the Special Public Prosecutor is appointed in special cases by the Govt. and more probably in those cases which are serious in nature and they have caused substantial impact on the society like Nirbhya Case, 26/11 attacks, Afzal Guru’s attack on parliament, 2G Scam, etc.

ADMINISTRATIVE CONTROL OVER PUBLIC PROSECUTORS IN INDIA

The bare reading of the sections 24 and 25 of the Code of Criminal Procedure, 1973, does not give an adequate idea about the organisational structure or the administrative control over the public prosecutors. Initially, before the Criminal Procedure Code Amendment Act, 2005, the public prosecutors in the Courts of Magistrate were deemed to be under the Police Department, whereas, in case of public prosecutors working in Session Courts, they were deemed to be under the District Magistrate.

However, the 14th Law Commission advocated the separation of the Public Prosecutors from the Police Department and to convert them into agency independent from the Police. The extract of views of the 14th Law Commission on the reform of Judicial Administration on this issue is as under:

“we see great usefulness in the suggestion, that the prosecuting agency should be separated from and made independent of its administrative counterpart, that is the Police Department, and that it should not only be responsible for the conduct of the prosecution in the court but it should also have the liberty of scrutinising the evidence particularly, in serious and important cases, before the case is actually filed in the Court. Such a measure would ensure that the evidence in support of the case is carefully examined by a properly qualified authority before a case is instituted so as to justify the expenditure of the public time and money on it. It would also ensure that the investigation is conducted on proper lines, that all the evidence needed for the establishment of the guilt of the accused has been obtained. The actual conduct of the prosecution by such an independent agency will result in a fairer and more impartial approach by the prosecutor of the case.”

Therefore, after the long demand of the Law Commission to release the public prosecutors from the clutches of the Police Department, and various decisions of the Honourable Supreme Court in favour of this issue, the Criminal Procedure Code, Amendment Act, 2005 made a directory provision in this regard, which gave discretionary power to the State Governments to establish the Directorate of Prosecution.

Directorate of Prosecution ( Section 25 A)

The Directorate of Prosecution is an agency whose purpose is to exercise control over all the Public Prosecutors in the State including in the High Court. It consists of the Director of Prosecution and Deputy Directors of Prosecution. The Director of Prosecution works directly under the Head of the Home Department of the State. The Director and Deputy Director are none other than advocates who has been practising as an advocate for more than 10 years. Their appointment is made by the State Government after concurrence with the Chief Justice of the High Court.

The Public Prosecutors including Special Public Prosecutors working in the High Court are subordinate to the Director of Prosecution. Similarly, the Public Prosecutors including the Assistant and Special Public Prosecutors working in the District are under the Deputy Director of Prosecution.

However, if the Advocate General functions as a public prosecutor, then this provision do not apply to him.

ROLE OF THE PUBLIC PROSECUTORS

The Code of Criminal Procedure, 1973 did not provide that in what spirit the Public Prosecutor shall discharge his duty. However, the principle in this regard is well settled which is to place before the court, all the facts and evidences irrespective of the fact that it favours the accused and leave the rest to the court to decide. Public Prosecutor shall not act as a mouthpiece of the either victim or the investigating authorities; neither he is there to secure the conviction by hook or by crook.

In Law Commission’s 14th Report, Vol.2 page 765   it has been observed as under:

“A Public Prosecutor shall be personally indifferent to the result of the case. His duty should consist only in placing all the available evidence irrespective of the fact whether it goes against the accused or helps him, before the court, in order to aid the court in discovering the truth. It would thus be seen that in the machinery of justice a Public Prosecutor has to play a very responsible role; the impartiality of his conduct is as vital as the impartiality of the court itself.”

Similarly in Ghirrao v. Emperor(1933) (34)  Cri.LJ 1009  it was observed that:

“The duty of the prosecutor in such a trial is not merely to secure a conviction at all costs but to place before the court whatever evidence is possessed by the prosecutor, whether it be in favour of or against the accused, and to leave the court to decide upon all such evidence ­­­­­­---  whether accused was or was not guilty of the offence alleged.”

CHALLENGES FACED BY THE PUBLIC PROSECUTORS IN THE CURRENT SCENARIO

The Public Prosecutors in India, in current scenario are facing the numerous challenges in their day to day life. Some of the challenges that are faced by them are as under:

1. Lack of job satisfaction-

The strength of the public prosecutors in the prosecution wing is very low because of which the public prosecutor has to face the numerous challenges. As a consequence of shortage, the existing public prosecutor has to see around two to three courts daily. The workload is such that sometimes he does not get time to have his lunch. Apart from the prosecution work he also has the other obligations to fulfil like helping police in their investigation, processing the challan, giving legal opinions on matters referred to him by the bureaucrats etc. All of these not only creates the frustration in mind of the prosecutor but also prevents him from giving time to his family, friends and relatives. This gradually leads to poor job satisfaction.

In order to solve this, government shall take steps to increase the number of public prosecutors and ensure that at least there is one public prosecutor attached with respect to one court. Further, it can separate the prosecution and legal works of the prosecutor and can appoint separate prosecutors for the same and divide the work between them. This type of practice is generally followed in some areas but not everywhere. This will substantially reduce the burden on the public prosecutor and will increase his job satisfaction.

2.  Poor Co-ordination between Prosecutors and Investigating agencies-

The lack of co-ordination between the prosecutors and the police is one of the major challenges that are being faced by the public prosecutors. The police officer though required, but is hardly aware of the legal intricacies involved in the particular case. He either intentionally or unintentionally misses the various important evidences or links that are very important to particular case of which the public prosecutor is not apprised of during the investigation. The prosecutor only comes to know about the same at the time when the investigating officer submits his report/challan under section 173(2) Cr.P.C and at that time, the public prosecutor can hardly do anything.This leads to acquittal in the cases despite of the fact that such cases would have ended up in conviction if the IO had done his duty properly. Many of times, one can easily find while reading the judgments of the Supreme Court and High Courts,that the IO of the particular case has not done the investigation as required, as a consequence of which the Courts has no other option but to acquit the particular accused on basis of lack of evidence. This is the consequence of lack of co-ordination between the public prosecutors and the police and this factor is ultimately leading to the low conviction rate in India .

Therefore, there is need to have better co-ordination between the Prosecutors and the Police so that the investigation is being conducted by the IO as required which can help the public prosecutor in trial to secure the conviction in genuine cases. However, it is not going to happen unless there is political will. Law Ministry at the Central and State Levels has lot to do in this regard.

3. Lack of proper training-

Training is very important. It serves the two purposes firstly, person becomes aware about the functions of position of which he is getting training and how to perform such functions properly. secondly, it keeps updating the trainer about the current trends.

The training of the public prosecutor both at entry level and during the service, is indispensable keeping in mind the role attached to the office. But unfortunately, the public prosecutors are not being imparted with the proper training. According to the research paper presented by the Gurpuneet Singh Randhawa and Dr. D.J Singh on challenges faced by the  Indian Prosecution System, 80% of the public prosecutors are of the view that there is need to improve the service training within the department.

Therefore, keeping in mind the role attached to the office of the public prosecutor it is imperative that the proper training of the public prosecutors shall be conducted time to time in order to enable them to discharge the functions in more better way. There can be separate institute for the training of the public prosecutors like the judicial officers, however, the same infrastructure can be used to provide the training but the main purpose is to ensure that the public prosecutors are getting the quality training time to time to enable them to function properly.

4. Poor Pay Scale and Facilities-

The income of the public prosecutors in India is very low as compared to the good criminal defence lawyers. The public prosecutors, in some states, are given salary which is equivalent to that of clerk, which lowers the morale. Further, it makes the post of public prosecutor less attractive in the eyes of the youth.

Governments must be liberal when it comes to the salary and other facilities to the public prosecutors because, they are backbone of the criminal justice system and if they would be kept happy, then it will definitely help and motivate them to do good in their duties.

5.  Interference from the Government:

It is very common for the public prosecutor like police and bureaucracy to face the interference from the government. Despite of the fact that public prosecutors in India are separate agency in itself and they has to discharge their duty in spirit as above said, still this fact can’t be ignored that the interference in the working of Public Prosecutors by the Govt. is common especially in the High Profile cases involving the person having strong background or relating to the ruling party in the State or Centre.

The solution of this problem lies not with the government but with the public prosecutor himself. It will depend upon the individual public prosecutor whether he succumbs to the government pressure or not. Many of the times, the public prosecutors have discharged their duties in the proper spirit despite of the govt. pressure. So, solution of this problem lies with the individual public prosecutor himself.

CONCLUSION

To conclude, the Public Prosecutor is the indispensible part of the criminal justice system. He has to discharge his duty with the spirit of bringing the truth in front of the court irrespective of the fact that whether it is against the accused or not, so that the judge can deliver a verdict and can do justice. In short, one can say that he has to assist the Court in doing the justice. There is great responsibility attached to the office of the public prosecutor, so, it becomes imperative for the government to take care of him so that he can function smoothly and can focus on his core duty of bringing truth in front of the court.

References

1. Code of Criminal Procedure 1973, by R.V Kelkar published by Eastern Book Company.

2. Report of the 14th Law Commission, Volume 2.

3. Analysis of challenges faced by the Indian Prosecution System by Gurpuneet Singh Randhawa and Dr. D.J Singh, Research Scholar and Professor respectively, at Guru Nanak Dev University, Amritsar, India.

4. Google.

Bio- Author is the criminal lawyer practising at the Punjab and Haryana High Court and District and Sessions Courts, Mansa (Punjab).