From decades before ‘woman’ is considered as a source of energy in our ancient civilization. Our Scripture also praise her as backbone of social nucleus. We may found multiple quotations likeयत्र नार्यस्तु पूजयन्ते रमन्ते तत्र देवता:,(where women adored deities enjoys there) નારી તુ નારાયણી નારી જગતની ખાણ.. ( Oh. Women thou is creation of lord almighty (Narayana) thyself is source of world) etc.. We often read such eulogy of women in our scripture and literature. Not only that, legislature and judiciary also time and again praise woman. But it is a bitter reality that still women are neglected within her home, office and everywhere in spite woman sacrifice herself for betterment of family as a daughter, bride and mother. She always remains dependent and sometime, tortured and humiliated. Women’s role in the betterment of society could not be overlooked. She proves her importance on the anvil of civilization; despite this reality she always put one step down to men. Male dominant society always believes that, masculine gender is more powerful then feminine. Reader may think that how this is relevant with the title of this article..?
But, this talk of woman possesses relevancy for the subject I want to enlighten through this article. As said earlier, just like ‘woman’ ‘Public Prosecutor’ is very important functionary of criminal justice delivery system. Prosecutor’s role in criminal justice delivery system is identical to the role performed by ‘woman’ in society. If you make search on this word ‘Public Prosecutor’ you may find numbers of praising sentences in the statute book, judicial pronouncements and reports of law commission for the prosecutor. All legal institutions including apex court and high courts in their pronouncements frequently reiterated importance of prosecution by greeting them as a‘minister of justice’ and ‘Angel of law’ and so on; but since all these, just like woman hardly any change happens in reality about change of attitude or behavior towards Prosecutor however prosecutor is actually working in the frame of judiciary.
Situation of this important agency is not so good in the country. Before we discuss about PROSECUTION we must glance over our CJDS. We have not adopted inquisitorial system as like
To meet this requirement and demand of time, amendment made in Cr.P.C and Provision of Sec 25A ‘Directorate of Prosecution’ has been introduced although complete and uniform implementation is still in the proposals of files of state portfolio. But to implement this provision courage and will of polity is require. Of course there are existing Directorate of Prosecution in some of the States of India but still there are so many things lacking. Universal independent prosecution department is yet dream for our democracy.
For the sake of precision and perfection in this subject I would like to distinguish my thoughts in following segments.
CRIMINAL JUSTICE DELIVERY SYSTEM IN
In India criminal justice delivery system may be categorize by its main functions like1) inquiry 2)trial and 3) Hearing of appeal or revision. Out of this three at the stage of inquiry i.e. bail, remand role of Prosecutor is to assist the court precisely on law points as and when require. While at the hearing of appeal or revision also role of Prosecutor is to argue on law points, more particularly when trial court has made any mistake in correct and proper appreciation of evidence and thus assist the appellate court at just decision.
In our criminal Justice Delivery System at High court level and at the apex court level there may sufficient provisions to secure interest of public at large as State also interested in the result. So, my intention of writing this paper is to discuss reality, quality and facility of prosecution at session’s court and at the Judicial Magistrate court.
It is true that in CJDS most important and vital role of prosecution envisaged at the trial. In Code Of criminal Procedure 1973 functions of prosecutor included in summons or warrant trial at The Magistrate court and also Session’s trial at the Sessions Court. There is vast difference between prosecution at sessions trial and prosecution in the warrant or summons trial at magistrate court.
In order to understand role of Public Prosecutor at both levels if we categorized trials as it is in Cr.P.C for our criminal justice delivery system, it is as under;
• TRIAL OF CRIMINAL CASE
1. SESSIONS TRIAL
• Sessions Case (Sec.225-237)
• Special Case (as per Special Act)
2. TRIAL BY JUDICIAL MAGISTRATE
• Warrant trial ( Sec 238 – 250)
• Summons Trial ( Sec 251-259)
• Summary Trial ( Sec 260 – 265)
As above mentioned there are mainly two type of criminal trial categorized as per the gravity of crime and its punishment by different court i.e court of session and court of magistrate.
Trial of Murder, Rape, Attempt to murder and Sedition etc. are declared triable by Sessions Court. Further, Sessions trial is conducted as expedite as possible during session.. as it is verbal meaning of sessions trial.
It is also required to be noted that, sessions Judge is not authorized to take cognizance sue-Moto except in certain exceptions.(AIR-2013-SC-3900)trial commenced at sessions court only up on committal only. Further it is compulsory u/s 225 that trial shall be conducted by public prosecutor. Even as per Sec 234 Cr.P.C in session’s trial, it is compulsory for public prosecutor to sum-up his case. While warrant trial conducted by Judicial Magistrate under sec.238 Chepter-19 of Cr.P.C., performed by concern magistrate. It is also compulsory for magistrate to complied with the provision of section 207 i.e. supply to accused the copy of police report, FIR and statements, confessions or statements recorded u/s 164, documents submitted u/s 173. It is very important to note that u/s 242(3) it is duty of magistrate to take all such evidence as may be produced in support of prosecution.
Sparkling difference between session’s trial and warrant trial is that, in Sessions trial Public Prosecutor is sole in charge of trial. He has to brief charge, he has to take evidence and at the end it is compulsory for him to sum-up the case. While at the trial before magistrate role of public prosecutor is less important with compare to Sessions trial. His duty is to assist court by conducting prosecution. As per my humble belief such difference is significant. The ‘Public Prosecutor’ at the Session’s trial is in charge of case, while ‘Assistant Public Prosecutor’ in magistrate court is there to assist the court as and when required by court. By meaning ‘Assistant Public Prosecutor’ is it transpire from its verbal meaning assistant to court.. he is minister to Magistrate and his role is to guide magistrate..
At both the trial i.e. sessions and at warrant, if we consider intention of legislation there is very vital role of Public Prosecutor to perform. Efficient Public Prosecutor works as a catalyst in criminal justice delivery system. He is now no more police prosecutor. He is not the lawyer of complainant or lawyer of State. Prosecutor is an officer who represents public at large and performs his duty to ensure justice.
But, with all respect to all concerns, I, with pain and grief, would like to say that, Some Judges believes Public Prosecutor either lawyer of State or Lawyer of complainant, while Police believe Public Prosecutor his own paid lawyer. Sometime task entrusted on Public Prosecutor to secure conviction in matter and some other time Public Prosecutor branded sole responsible for acquittal judgment.
We must consider at this juncture the results of criminal trial. Out of 100 cases submitted in court by police hardly 10 ends in conviction. Numbers may less than this figure in lower court. What does it mean..? There is either something lacking in investigation or in trial or we can say society is corrupt who lodges 90% false complaints to police. If we open mindedly consider the Role of Public Prosecutor enshrined by legislature, his function is to brush up and keep watch on both investigation and trial, but in vain.. as like ‘Women’ in the society ‘Prosecutor’ is most useful but avoided and neglected organ remains only for disposal machine for judges and free and ready advisor and protector for police.
Whenever found any miscarriage of justice just like bride in the joint family ‘PROSECUTION’ has been simply blamed in judgments of higher courts.
It is apparent that, when acquittal happens in criminal trial not only Police or Prosecutor but whole system is responsible. We strongly believe that innocent should not be penalized but then it is also our duty to take care that, no culprit should be left unpunished. Therefore, we must find out the reasons for poor conviction ratio.As only 10% conviction is secured. Would it be mean that in 90% cases innocent or merely suspect was wrongfully drawn in trial? Is there no any responsibility of judiciary towards society..?
NEED OF IMPROVEMENT IN CJDS (CRIMINAL JUSTICE DELIVERY SYSTEM)
It is very much clear that Criminal Justice Delivery System overall works in the following manner.
1) Investigation (Police)
2) Prosecution (Public Prosecutor)
3) Trial (Judiciary)
Strong and impartial investigation of crime is a basic requirement. Then impartial and enthusiastic prosecution is required which needs support of witness. And at the last evidence adduced need to be appreciated in the light of cardinal rules of appreciation of evidence by judge.
Duty of prosecutor in this process is of hinge. Prosecutor can brush up investigation and appreciation of evidence both. But for that he is required to be armed with sufficient power and knowledge with integrity. Law Commission also in its 197th Report categorically proposed amendment in procedure of appointment of Public Prosecutor.
APPOINTMENT OF PUBLIC PROSECUTOR
To establish effective prosecution appointment of Public Prosecutor mentioned in sec 24 and 25 according to their role to be perform at different level. Appointment of public prosecutor made by state for High court and for District court u/s 24 and appointment of Assistant Public Prosecutor for the court of Judicial Magistrate made u/s 25 of Cr.P.C
PUBLIC PROSECUTOR FOR SESSIONS TRIAL
This appointment made U/s 24. By reading this provision it is very much clear that, Public Prosecutor for sessions trial in district is appointed u/s 24(3) Cr.P.C. by state government shall be out of name of panel prepared u/s 24(4) by Distract magistrate and District Judge. And that person must possess experience of at least seven years in practice.
But, very important provision is provided u/s 24(6) that, State Government shall appoint such public prosecutor only from cadre if there exist any cadre of prosecuting officer in state notwithstanding anything contained u/s 24(5). Although it is expressly provided in statute book in some state, this provision has been overlooked and therebyefficient persons existing in cadre such appointments made u/s 24(4) from lawyers are avoided.
It is also pertinent here to note that in BIHAR, HARIYANA, KARNATAKA, MADHYA PRADESH, MAHARASHTRA, RAJESTHAN, TAMILNADU, UTTARPRADESH and
If this appointment made by impartial way out of regular cadre of prosecuting officer, scenario of criminal justice delivery system may be changed. But for the reasons best known to rulers this legislative mandate is being thrown away in our country. Even fundamental Right under Article-16 of our constitution regarding equality of opportunity in the matter of appointment is also overlooked.
Further it is required to be noted that prosecutors appointed on ad-hoc basis are not given sufficient fees for their work. State should appoint public prosecutor on permanent basis or allow attractive remuneration for prosecution.
It is obvious that inequality in remuneration always leads toward corruption.
ASSISTANT PUBLIC PROSECUTORS
In every District one or more Assistant Public Prosecutor shall be appointed for conducting prosecution in the court of magistrates. It is also provided in this provision that police officer shall not be eligible to be appointed as Assistant Public Prosecutor.
Assistant Public Prosecutors are appointed by State Service Commission from Advocates who have at least three years experience. They have to conduct prosecution in the courts of Magistrate.
Assistant Public Prosecutor is an officer who by conducting prosecution represents public at large and assist magistrate in his task of taking evidence. His role and function has not been specified as like Public Prosecutor in session trial therefore, often lower courts impose duty and functions of public prosecutor of session’s trial on APP. Further it is also pertinent to mention that, In the court room most pitiable situation is that of Assistant Public Prosecutor though he is important functionary in CJDS he has not been provided any subordinate staff, peon or even office premises in the court. Situation is worst in some states where directorate of prosecution is yet to be formed. Somewhere Assistant Public prosecutor is mentioned as ‘SARAKARI VAKIL’ and somewhere ‘COURT SAAB’ which is not real meaning of the function which he has to perform.
As Prosecutor is important functionary, until system provides respectable status and facilities according to his job profile as they are CLASS-II officers of State, how the aim of impartial justice be achieved !
NEED TO EMPOWER AND WELL EQUIP PROSECUTION
There are
PUBLIC PROSECUTOR.. IF PMPOWERED WITH INFRASTRUCTURE AND POWERS CAN BECOME P.R.O OF COURT..
In modern management system every organization related to public functions have one public relation officer. But if we think of Criminal Justice dispensing procedure it is fully based and relied up on witnesses. But we have no sufficient facility to protect and welcome and to guide them properly regarding court procedure.
It is now requirement of time to protect witnesses and this task can be better served by Public Prosecutor, if he is provided sufficient staff, sitting arrangement and funds to provide hospitality to witnesses. To achieve this motto of protection of witness and to secure his attendance establishment can also seek help of information and technology. As Public Prosecutor is an officer working for the betterment of public at large in the court room he would be best PRO if opportunity is given from court machinery.
CONCLUSION
If any part of our body remain weak, then how that person said healthy..? In this era of modernization we hear everywhere boasting of reformation of judiciary. State Governments and even Central Government has expend too much for judiciary But no one is thinking of making prosecution powerful. At the cost of repetition it is required to mention that efficient criminal justice delivery system can only be possible when independent impartial, intelligent and eminent ‘Public Prosecution’ established in the country. We Hope Sec 25-A Cr.P.C would implemented universally in the country. We also hope from other limbs of CJDS to morally support and respect prosecution.
We must not forget cardinal principle that, at whatever position we are working, we actually serving The people of
So, just like ‘women’, prosecution is required to be respected and protected in the society in its real sense.
Reference:
1) Code Of Criminal Procedure 1973
2) 197th Law Commission Report
3) JX-2013-SC-465 Dharmpal vs. State of
4) 1990-SCC-4191.
BY-DHARMENDRASINH G. RANA
ASSISTANT PUBLIC PROSECUTOR
JUDICIAL MAGISTRATE COURT-SURAT
GOVERNMENT OF
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