Law and You >Procedural Laws > CrPC > Public Prosecutor Under CrPC (Ss. 24 and 25)
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 new 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.
Public Prosecutor:
According to Section 2(u) CrPC, a Public Prosecutor is 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.
Section 24 CrPC:
Public Prosecutors:
(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor for conducting, in such Court, any prosecution, appeal or other proceeding on behalf of the Central or State Government, as the case may be.
(2) For every district the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district.
(3) 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 the Public Prosecutor or Additional Public Prosecutor for the district.
(4) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears on the panel of names prepared by the District Magistrate under sub-section (3).
(5) A person shall only be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2), if he has been in practice as an advocate for not less than seven years.
(6) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, an advocate who has been in practice for not less than ten years, as a Special Public Prosecutor.
Section 25 CrPC:
Assistant Public Prosecutors:
(1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates.
(2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor.
(3) 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:
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.
Classification of Prosecutors in India:
High Court:
According to Section 24(1) CrPC,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 24 of the CrPC, 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 Sec 24 (8) CrPC. 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.
The Director of Prosecution:
Section 25A CrPC:
Directorate of Prosecution
(1) The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit.
(2) A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court.
(3) The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the Head of the Home Department in the State.
(4) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution.
(5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (1), or as the case may be, sub-section (8), of section 24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution.
(6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (3), or as the case may be, sub-section (8), of section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of section 25 shall be subordinate to the Deputy Director of Prosecution.
(7) The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify.
(8) The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor.
The Directorate of Prosecutor consists of a Director of Prosecution, the Dy. Directors of Public Prosecutors, Additional Public Prosecutors and the Special Public Prosecutors. The Head of the prosecuting authority in a State is known to be Director of Prosecution.
A person shall be eligible to be appointed as Director of Prosecution or a Deputy Director of prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with concurrence of the Chief Justice of the High Court. He shall function under the administrative control of the Head of the Home Department in the State Secretariat. The powers, functions and area of authority of the Director of Prosecution and the Deputy Director of prosecution shall be such as the State Government may specify.
In year 2005, a major amendment was made to Section 25 of the Code of Criminal Procedure. The Directorates of Prosecutors are created in States for multiple reasons. Their primary task is to bring about coordination among different prosecuting agencies. In addition to this, the directorate of prosecution advises the State Govt. for filling of appeals and revision petitions. It also takes care of efficiency, integrity and discipline of all Prosecutors.
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.
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 167);
- If an accused is not traceable, he initiates proceedings in the court for getting him declared a proclaimed offender (section 82) and, thereafter, for the confiscation of his movable and immovable assets (section 83); 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 190 of the Code. 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 313 of the Code).
- Stage 5: To record the defence evidence.
- Stage 6: To hear the final arguments from both sides, and
- Stage 6: 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.
Role of Public Prosecutors at the Post Trial Stage:
Appeal by the State Government Against Sentence:
Under Section 377 CrPC, 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 377 CrPC, 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:
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.
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.