Law and You >Procedural Laws > BNSS > Public Prosecutor (Ss. 18 to 20 of BNSS)

List of Sub-Topics

• Introduction
• Comparative Tables of Provisions BNSS and CRPC
• Appointment of PP and Add. PP
• Procedure for Selection of PP and Add. PP
• Qualifications Required for PP and Add. PP
• Assistant PP
• Directorate of Prosecution
• Classification of Public Prosecutors in India
• Special Public Prosecutor
• Role of Public Prosecutor
• Responsibilities of Public Prosecutor
• Conclusion
• Related Topics

In each state, there are a number of districts. District is governed by the District Magistrate, the District Superintendent of Police and the District and Sessions Judge. The District Magistrate is the chief executive officer of the district and he belongs to the Administrative Service. The police in the district functions under his general direction and control. The District Superintendent of Police is the head of the police force in a district. He is responsible for the prevention and detection of crime and the maintenance of law and order, subject to such directions as may be issued by the District Magistrate. In practical terms, the District Magistrate has no role in criminal investigations. The District and Sessions Judge is the head of the judiciary in a district. He belongs to the higher state judicial service. The entire magistracy in the district functions under his control and supervision. The criminal justice system has four important components in India, namely, the Investigating Agency (Police), the Judiciary, the Prosecution Wing and the Prison and Correctional Services. Each of these components in the system is to work in synchronization with each other. The harmonization among these organs will only make the success of the criminal justice system possible. In this article we shall discuss role and responsibilities of public prosecutor.

Every organised society has a well-developed prosecution system to prosecute those who break the society’s established legal rules. A Public Prosecutor is a state representative who is a law officer chosen by the state or central government to represent the interests of the public. He is a state representative who is elected after consultation with the High Court as a member of the criminal justice system. The state or central government can also appoint additional prosecutors on a case-to-case basis. The objective of any criminal trial is to investigate the crime and decide the accused’s guilt or innocence, and it is the prosecutor’s primary responsibility to assist the court in determining the truth of the case. The prosecutor must play an independent role at every step of the criminal proceeding to obtain the desired results. The most senior law officer in a state is the Advocate General who is a constitutional authority. He is appointed by the governor of a state under Article 165. He has the authority to address any court in the state.

Prior to the enactment of the Criminal Procedure Code of 1973, public prosecutors were attached to the police department and they were responsible to the District Superintendent of Police. However, after the Code of Criminal Procedure came into force in 1973, the prosecution wing has been totally detached from the police department. The prosecution wing in a state is now headed by an officer designated as the Director of Prosecutions. In some of the states, he is a senior police officer and in others, he is a judicial officer of the rank of District and Sessions Judge. He is assisted by a number of Additional Directors, Deputy Directors and Assistant Directors, etc.

Comparative Tables of Provisions BNSS and CRPC:

BNSS, 2023			CrPC, 1973
Section	Heading	Provision	Section	Heading
18	Public Prosecutors		24	Public Prosecutors
19	Assistant Public Prosecutors		25	Assistant Public Prosecutors
20	Directorate of Prosecution		25A	Directorate of Prosecution

Public Prosecutor:

According to Section 2(v) of BNSS, a Public Prosecutor is a person who is appointed under Section 18 of the BNSS and it also includes any person who is acting under the directions of Public Prosecutor.

Appointment of Public Prosecutor and Additional Public Prosecutor:

• According to Section 18(1) of BNSS, for every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or the State Government, as the case may be.
• Proviso attached to Section 18(1) of BNSS lays down that for National Capital Territory of Delhi, the Central Government shall, after consultation with the High Court of Delhi, appoint the Public Prosecutor or Additional Public Prosecutors for the purposes of this sub-section.
• According to Section 18(2) of BNSS, the Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case in any district or local area.
• According to Section 18(3) of BNSS, for every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district.
• Proviso attached to Section 18(1) of BNSS lays down that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.

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Procedure for Selection of Public Prosecutor and Additional Public Prosecutor:

• According to Section 18(4) of BNSS, the District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.
• According to Section 18(5) of BNSS, no person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4).
• According to Section 18(6) of BNSS, notwithstanding anything in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre.
• Proviso attached to Section 18(6) of BNSS lays down that where, 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).
• A “regular Cadre of Prosecuting Officers” means a Cadre of Prosecuting Officers which includes therein the post of Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post;
• A “Prosecuting Officer” means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, Special Public Prosecutor, Additional Public Prosecutor or Assistant Public Prosecutor under this Sanhita.

Qualification Required for Public Prosecutor and Additional Public Prosecutor Post:

• According to Section 18(7) of BNSS, a person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years.
• According to Section 18(8) of BNSS, 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.
• Proviso attached to Section 18(8) of BNSS lays down that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.
• According to Section 18(9) of BNSS, for the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice as an advocate, or has rendered (whether before or after the commencement of this Sanhita) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.

Assistant Public Prosecutors:

• According to Section 19(1) of BNSS, the State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates.
• According to Section 19(2) of BNSS, the Central Government may appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the Courts of Magistrates.
• According to Section 19(3) of BNSS, without prejudice to provisions contained in sub-sections (1) and (2), where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case after giving notice of fourteen days to the State Government.
• Proviso attached to Section 19(3) of BNSS lays down that no police officer shall be eligible to be appointed as an Assistant Public Prosecutor, if he—

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

(b) is below the rank of Inspector.

Directorate of Prosecution:

Establishment of Directorate of Prosecution:

• According to Section 20(1) of BNSS, The State Government may establish,—

(a) a Directorate of Prosecution in the State consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit; and

(b) a District Directorate of Prosecution in every district consisting of as many Deputy Directors and Assistant Directors of Prosecution, as it thinks fit.

Qualifications of Director of Prosecution and Deputy Director of Prosecution:

• According to Section 20(2) of BNSS, a person shall be eligible to be appointed,—

(a) as a Director of Prosecution or a Deputy Director of Prosecution, if he has been in practice as an advocate for not less than fifteen years or is or has been a Sessions Judge;

(b) as an Assistant Director of Prosecution, if he has been in practice as an advocate for not less than seven years or has been a Magistrate of the first class.

Subordination in Directorate of Prosecution:

• According to Section 20(3) of BNSS, the Directorate of Prosecution shall be headed by the Director of Prosecution, who shall function under the administrative control of the Home Department in the State.
• According to Section 20(4) of BNSS, every Deputy Director of Prosecution or Assistant Director of Prosecution shall be subordinate to the Director of Prosecution; and every Assistant Director of Prosecution shall be subordinate to the Deputy Director of Prosecution.
• According to Section 20(5) of BNSS, every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (1) or sub-section (8) of section 18 to conduct cases in the High Court shall be subordinate to the Director of Prosecution.
• According to Section 20(6) of BNSS, every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (3) or sub-section (8) of section 18 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of section 19 shall be subordinate to the Deputy Director of Prosecution or the Assistant Director of Prosecution.

Powers and Functions of the Director of Prosecution:

• According to Section 20(7) of BNSS, the powers and functions of the Director of Prosecution shall be to monitor cases in which offences are punishable for ten years or more, or with life imprisonment, or with death; to expedite the proceedings and to give opinion on filing of appeals.
• According to Section 20(8) of BNSS, the powers and functions of the Deputy Director of Prosecution shall be to examine and scrutinise police report and monitor the cases in which offences are punishable for seven years or more, but less than ten years, for ensuring their expeditious disposal.
• According to Section 20(9) of BNSS, the functions of the Assistant Director of Prosecution shall be to monitor cases in which offences are punishable for less than seven years.
• According to Section 20(10) of BNSS, notwithstanding anything contained in sub-sections (7), (8) and (9), the Director, Deputy Director or Assistant Director of Prosecution shall have the power to deal with and be responsible for all proceedings under this Sanhita.
• According to Section 20(11) of BNSS, the other powers and functions of the Director of Prosecution, Deputy Directors of Prosecution and Assistant Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution or Assistant Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify.
• According to Section 20(12) of BNSS, the provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor.

Classification of Public Prosecutors in India:

High Court:

• According to Section 18(1) of BNSS, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor for every High Court for conducting, in such Court, any prosecution, appeal or other proceeding on behalf of the Central or State Government, as the case may be.
• Under section 18(2) of BNSS, the central government may also appoint one or more public prosecutors in the High Court or in the district courts for the purpose of conducting any case or class of cases in any district or local area.

Session Courts:

• In Sessions Courts, the cases are prosecuted by Public Prosecutors. The District Magistrate prepares a panel of suitable lawyers in consultation with the Sessions Judge to be appointed as public prosecutors. The state government appoints public prosecutors out of the panel prepared by the District Magistrate and the Sessions Judge.
• It is important to mention that public prosecutors who prosecute cases in the Sessions Courts do not fall under the jurisdiction and control of the Director of Prosecutions.
• The Act made it mandatory that every State Government appoint Public Prosecutors for every district in the State.
• For that purpose the District Magistrate prepares list of the interested lawyers with a minimum of 7 years of experience to  be a  District  level Public  Prosecutor or  an Additional  Public  Prosecutor.  The Sessions Judge, i.e. the principal district Judge is consulted. Suitable candidate list is sent to the State and the State Government approves the list finally from the list it receives.
• Minimum seven  years  of  experience  is  mandatory  for  the  candidates  who  apply  for  the  post  of Prosecutors.  That  experience  should  be  of  the  Session’s  courts  litigation.  As  long  as  the Prosecutor is on the roll of Prosecutors, he is not entitled to appear against the Government in any civil or criminal cases. In order to avoid clashes in interest, this provision is made and is strictly followed in India.
• They have tenure appointments and are not permanent employees of the state government. They are paid an honorarium (not salary) by the state government.

Assistant Public Prosecutors at the Magistrates Courts:

• At the district level, there are two levels of public prosecutors, i.e., the Assistant Public Prosecutor, Grade-I and the Assistant Public Prosecutor, Grade-II. They appear in the Courts of Magistrates. The Director of Prosecutions is responsible for the prosecution of cases in the Magisterial Courts.
• The Assistant Public Prosecutors, Grade-I and Grade-II, are appointed by a state government on the basis of a competitive examination conducted by the State Public Service Commission. They are law graduates falling within a specified age group.
• They join as Assistant Public Prosecutors Grade-II and appear in the Courts of Magistrates. They are promoted to Assistant Public Prosecutors, Grade-I, and generally appear in the Courts of Chief Judicial Magistrates.
• On further promotion, they become Assistant Directors of Prosecution and can go up to the level of Additional Director of Prosecution. They, however, do not appear in the Sessions Court.

Special Public Prosecutors:

• Upon special request from the police or Public or sometimes the State Government or the Central Government on its own appoint Special Public Prosecutors. The  Special  Public  Prosecutors  are  appointed  under  Section 18 (8)  BNSS.
• They deal with the special cases registered under the Special Laws. At least 10 years practice is mandatory for the candidates willing to be Special Public Prosecutors.  Advocate on the roll list with minimum ten years of practice in the Session’s courts is eligible for the post of Special Public Prosecutors in India.
• The Special Public Prosecutors who deal with special offences punishable under the Indian Penal Code, 1860 or the Special Criminal Laws  made either  by the Central  Government  or the State Government  respectively. Those special laws can be the Narcotic Drugs and Psychotropic Drugs Act, 1985 (i.e. NDPS), The Prevention  of  Money  Laundering  Act,  2002,  The  Scheduled  Caste  and  Schedules  Tribes (Prevention of Atrocities) Act, 1987.
• These Special Public Prosecutors are appointed for a fix period and are paid comparatively higher than the Public Prosecutors working in the Session’s court or the High courts.

Role of Public Prosecutor:

The principle of natural justice “audi altrum partem,” means that no one shall be sentenced without a hearing. Every accused individual has the right to be heard, and public prosecutors are appointed to guard against the transformation of false accusations into unfair punishment. A public prosecutor serves as a state representative tasked with upholding the interests of the general public.

In Jitendra Kumar @Ajju v. State (NCT OF Delhi), 84 (2000) DLT 88 case, the High Court of Delhi observed that the Public Prosecutor acts on the behalf of the state. They are the ministers of justice who play a pivot role in the administration of criminal justice.

Role of Public Prosecutor at the Time of Investigation:

The public prosecutor plays the following role at the investigation stage:

• He appears in the court and obtains arrest warrant against the accused;
• He obtains search warrants from the court for searching specific premises for collecting evidence;
• He obtains police custody remand for custodial interrogation of the accused (Section 187 BNSS);
• If an accused is not traceable, he initiates proceedings in the court for getting him declared a proclaimed offender (Section 84 BNSS) and, thereafter, for the confiscation of his movable and immovable assets (Section 85 BNSS); and
• He records his advice in the police file regarding the viability/advisability of prosecution.

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.

Role of Public Prosecutors at the Time of Trial:

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 210 of BNSS. The trial in India involves various stages.

• Stage 1: Taking of cognizance of a case by the court.
• Stage 2: To frame charges against the accused, if there is a prima facie case against him.
• Stage 3: To record the prosecution evidence.
• Stage 4: To record the statement of the accused (Section 351 of BNSS).
• Stage 5: To record the defence evidence.
• Stage 6: To hear the final arguments from both sides, and
• Stage 7: To pronounce judgement by the Court.

The public prosecutor is the key person 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.

The prosecutors have a responsibility to call all the witnesses whose evidence is essential to decide the case. To cross-examine the witness and to see that no witness if left unexamined. To produce all the necessary documents. When the accused is proven guilty, the Public Prosecutor may argue for the adequate punishment keeping in mind the facts, circumstances of case and gravity of the offence. It helps the judge to arrive at a judicious decision.

In Thakur Ram v. State of Bihar, case, AIR 1966 SC 911 case, the Supreme Court observed that the reason behind the establishment of the office of Public Prosecutor is that no private person can use the legal apparatus to wreak private vengeance anyone.

Role of Public Prosecutors at the Post-Trial Stage:

Appeal by the State Government against Sentence:

Under Section 418 of BNSS, upon inadequacy of sentence, the State Government is empowered to direct Public Prosecutor to appeal in the respective High Courts.

Appeal in Case of Acquittal:

Under Section 419 of BNSS, upon order of acquittal, the State Government is empowered to direct Prosecutor to present an appeal to the High Court. However, Special Leave of Appeal from the High Court  is  needed  to entertain appeal against the Acquittals.

In Babu v. State of Kerala, 11 August, 2010 the Supreme Court observed that public prosecutors are the source of justice and that their primary responsibility is to support the court’s decision-making while adequately representing the interests of the general public.

Responsibilities of Public Prosecutors:

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

In Adam Ali Java v King, AIR 1927 Cal 324 case, the Supreme Court held that it is the exclusive privilege of the Public Prosecutor to open the trial and none other can do it. Hence, it is now a settled law that in  every  trial  before  a  Court  of  Sessions,  the  prosecution  shall  be  conducted  by  a  Public Prosecutor. It is immaterial whether the -trial pending in Court of Sessions was instituted on police report or on a private complaint. In this case, the court further held that it is illegal to commence the case in the absence of Public Prosecutors.

In Prabhu Dayal Gupta v State, 1992 (2) BLJR 1048  case, the Patna High Court held that while presenting case, the Prosecutor needs to be just and reasonable. Relevant evidence should be  placed before the courts without  bias and prejudice, all the evidences supporting and against the prosecution case should be categorically brought before the court to determine the guilt or innocence of an accused. An exhaustive scene should be placed before the court without hiding or concealing any material fact.

In Habeeb Mohamad v State of Hyderabad, AIR 1954 SC 51 case, the Supreme Court held that irrespective of the side of the case, the  Prosecutor  should  bring  before  the  court,  all  the  angles  of  the  case  for  and  against  an accused. Prosecutor’s job is not limited to make strong prosecution case but it extents to bring other side of the case before the courts too.

In Antu Mahadu Dhavade V State of Maharashrta, 1983 (2) BomCR 414  case, regarding the function of the Public Prosecutors in law courts, the court held that the function of Prosecutors is to bring the truth before the court and not merely to beg a conviction from the court.

In Tikam Singh vs State, RLW 2006 (4) RAJ 2636 case, the Rajasthan High Court observed that there is no dispute related to the office of the Public Prosecutor but there is a public element attached to it. He acts as the representative of the state but not a complainant. The role of the Public Prosecutor is distinguished from the role of private counsel.

Conclusion:

India follows an Adversarial Model of justice. Fair trial is the goal and the Prosecutors need to prove the case beyond reasonable doubts. Failure of the Prosecutors to prove the cases beyond reasonable doubt, leads to the benefit of doubt to the accused. It leads to acquittals. The role of Prosecutors is very significant since more acquittals can encourage criminal activities in future and may lead to rise in crime rate.  Hence, in order to prevent the rise of criminal activities in future, the Prosecutors should be empowered and strengthened.

Related Topics:

• Court of Sessions (Ss. 6 to 8, 21 and 22)
• Court of Judicial Magistrate (Ss. 6, 9 to 13 and 23)
• Executive Magistrate (Ss. 14 to 17)

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