Role of public prosecutor in criminal administration of justice

In organized societies, there is a public prosecution system to prosecute offenders who violate societal norms. The system in common law countries differs from that in the continental countries, but in both, this office is a centre of attraction, a power centre. It wields a lot of authority. It is the repository of the public power to initiate and withdraw prosecution. These powers are untrammeled in continental counties, where this office is called procurator. The word procurator is derived from the Latin word procure which means care, secure, protect Though the prosecutors in the common law countries do not carry these adulations, it appears the powers exercised by procurators are similarly understood to be available to the prosecutors in common law countries. However, many of the main powers are not available.

In continental countries the procurator is looked upon as the strict eye of the state. He prohibits, punishes and prevents. The defense lawyer is viewed as defender. One of the procurators chief functions must be to protect citizen's legitimate rights and interests with actions, not words, as prescribed by the law. The impression that the procurator is independent and impartial is accepted in the common law countries though in fact in these countries they may not be impartial. Even in the face of statutory provisions to the contrary, their traditional rights like nulle Presque are accepted. Therefore, generally speaking, it could be said that the prosecution system in common law countries works within the statutory provisions in the context of traditional powers and duties attached to this office in continental countries.

The underlying principle governing the Criminal Justice System  is that all crime (offences which have been codified as such in statutes) committed by an individual or groups against others are deemed to have been committed against society. Consequently the State takes action to prosecute the accused on behalf of, and in the interest of society. The Supreme Court has discussed this thus; “Barring a few exceptions, in criminal matters the party who is treated as aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all steps necessary for bringing the person who has acted against the social interests of the community to book”[2] The rationale behind the State undertaking prosecutions appears to be that no private person uses the legal apparatus to wreak private vengeance on anyone.


In the CJS this role is performed by the Public Prosecutor on behalf of the State. The Public Prosecutor has been described as a Minister of Justice who plays a critical role in maintaining purity and impartiality in the field of administration of criminal justice[3]

The present criminal justice system  is based on principle that any crime committed by individual is a crime against the societal order. The prosecution and punishment for the crime is therefore responsibility of the state and not that victim of crime. It has been said that this responsibility – where the state acts on behalf of the victim – limits the scope for vengeance and revenge. Such prosecution, on behalf of state is performed by P. P. appointed by the state.  The P. P. is required to play an impartial and neutral role and prosecute all persons who have been charge sheeted by police. However political and economic forces that influence government, it is obvious that P. P. faces tremendous pressure, not only from state but also from powerful elites who attempt to influence prosecution.

P. P. represents the state in trial of criminal cases. He performs public duty, which by it's vary nature warrents him to be independent and fair. He is bound to act as pro bono publico to foster the ends of justice. He is neither an extension of police nor a complinent. Client- litigation relations exist between him and police. He is an officer of court ready to secure ends of justice in performing his duty he has to act according to law with avowed commitment to administration of justice. He can not act on the dictates of any high ups.[4] The P. P. should regard themselves as minister of justice, assisting in its administration rather than advocates.[5]  Duty of P. P. is fairly and impartially to exhibit all the facts to the court and it is not his duty to obtain conviction at all costs; and he should not urge any arguments which does not carry weight in his mind or omit matter that are important or favorable to the accused. P. P. should not attempt to persuade the court by advocacy to inflict sever sentence or contradict plea in mitigation unless invited by court to assist it[6].

The prosecutor stands on different position from advocate who represent the complainant. He does not represent the de facto complainant or police. He is representative of state and is part of court and in that sense called minister of justice. His function is to assist court in arriving at the truth. It is not duty to obtain conviction  at any cost but to simply lay before court  the whole of the facts of the case and law. The state too has no interest in procuring conviction. its only interest is that that guilty must be punished and justice should be done. The position of prosecutor is thus quasi – judicial and one of trust.[7]

The prosecutor occupies a unique position in criminal justice system as the lawyer for the state, the prosecutor is automatically considered as officer of court ; and at the same time, he is formally member of executive wing of government and thus independent from judiciary. Prosecution in criminal cases is taken on behalf of people [The state v. accused] rather on behalf of individual victim or complainant. Prosecutor is the person who, in criminal court, presents the case against accused. In principle, securing conviction is less important among prosecutor’s responsibilities  than administrating justices .as an officer of court, he  makes proper balance between  conflicting interest of accused and victim or society.

The object of criminal trial is to find out the truth and determine guilt or innocence of accused. The prosecutor plays important role in reaching conclusion of guilt or innocence by the court. The prosecutor must be fair and just to both side. It has been held by Delhi high court that prosecutor has to fair in the presentation of prosecution case .He must not suppress   or keep back from the court evidence relevant to determination of guilt or innocence of accused. He must present complete picture and not one side of picture. He must not be partial to the prosecution or to accused. He has to be fair to both side in the prosecution of the case.[8]

The policy of criminal law has been to see that as against the prisoner every rule in his favors is observed and that no rule is broken so as to prejudice the chance of jury fairly trying the true issues. The sanction for observance of the rule of evidence in criminal cases is that, if they are broken in any case, the conviction may be quashed.[9] If in some irregularities came to knowledge of prosecutor, he should bring it to knowledge of court at earliest possible moment so that court may consider before giving the verdict, lord Goddaid said[10].

POSITION OF PUBLIC PROSECUTOR IN OTHER COUNTRY

In France- prosecution is a public function conducted by officers of nation service, a branch of the civil services.Theprocure de la republique in France is entrusted with formal task of accusation, possessing wide discretionary powers to press or not to press charge. In all charges, he is virtually ‘the judge of advisability’ of the prosecution. The German and Italian prosecutors are bound by the ‘legality principle’, which means that he is obliged to initiate action whenever he can in a case in court [11].

In this context federal court observed “some proposition emerged as common ground  between the parties. first , section 69 and 91 of judiciary Act, in so far as they related to the power of Attorney General, were no more than statutory expression of two ancient prerogative power of Attorney General, as first law officer of the crown , vested in him for proper administration of criminal justice. Secondly, these powers were non-delectable by the Attorney General - although person appointed for that purpose by Governor General might exercise them, pursuant to the authority of the section themselves. Thirdly, the enactment of the director prosecution Act did not derogate from the powers of the Attorney General”[12].

In U S A- states and counties have their own prosecutor, mostly elected to office. At federal level, a district attorney is appointed for each federal district by the U S Attorney General and belongs to the executive branches of the government. The office of district Attorney and independent prosecutor in united states of America have wide inquisitorial jurisdictions and exercise great influence on the institution and withdrawal of  cases at any stage of trial.  They have their machinery independent of police and move the court oily when they are satisfied that case is fit enough to be taken to court, otherwise they are empowered to drop the case. Their role in ‘plea bargaining’ is well known so much so some people feel that justice system operate in the main deals by the lawyers in the back room  of the court house corridors. The 1982 initiative adopted a victim’s Bill of Rights, which curtailed the plea bargain to a great extent, in a state of California. The Attorney General of Alaska banned the plea bargaining in his state in 1975.

The responsibility of prosecutor in U S A includes preparation of formal charges. He may press certain charges and not press others. He may suspend a trial in progress. In U S A, the prosecutor enjoys the enormous powers or discretion in the criminal justice system. The discretion is beyond the control of court and answerable only to legislature, the electorate, and the press. The prosecutor play significant role in determining the sentence by plea bargaining process. Whenever the likelihood of obtaining conviction is slight, the prosecutor may declaim prosecution. Arrest are made with permission of prosecutor and Studies reveled that majority of arrests of non serious offences were rejected  by prosecution because of in sufficiency of evidence to prove the guilt beyond doubt. The prosecutor always shows interest in obtaining guilty pleas and will seek negotiated pleas in preference to adversary proceedings. When formal prosecution has begun, the prosecutor may decide to terminate prosecution through the noli (noli Presque). A noli is a request made by prosecutor to the court for termination of further criminal prosecution. The prosecutor made such request to reduce case load, court backlog, and delay in bringing defendant to trial. In some states of U S A, the prosecutor no lies as many as half of the cases.

In England- the Attorney General is minister and the titular head of the service with his functions as government’s chief legal representative and the head of bar, but de facto head of the service is the director prosecutions with the headquarters at London. In metropolitan city of London, the chief crown prosecutor has a prosecutor for each area with large complement of Barristers and Solicitors who work for the service.

After the enactment of the prosecution of offences Act 1985, prosecution of criminal cases has undergone a big change in England. A potential public prosecutor has to consider each case and decide whether he think that criminal proceedings are justified. As a first step the police must decide whether the proceedings to be filed or not and then the crown prosecutor must decide whether he will carry the prosecution or not.

The guideline of the Attorney General for prosecution circulated in 1982 include that the prosecutor should prosecute cases unless there are more than fifty per cent chance of conviction. The object is to ensure uniformity in prosecutor’s decisions. The code for crown prosecutor is published ever year as an appendix to the directorate of public prosecution’s report. The P. P. has to satisfied that there is substantial and admissible evidence in the proposed prosecution. The code warrants more than a prima facie case, known as fifty-one per cent rule.

British prime minister said “ it is an established principle of government  that the decision to prosecute, should be a matter, where public, as opposed to private, prosecution is concerned, for prosecuting authority to decide on merits of each case without political or other pressure. It would be most dangerous deviation from the sound principle if prosecution were to be instituted or abandoned as a result of political pressure or popular clamor[13]

The United Kingdom has chosen to create the office of director of public prosecution to secure the services of an experienced legal practitioner who can handle the day -to- day work of prosecution subject to guidelines .the evident intention was to divorce the government and the attorney general in particular, from day – to – day decision- making in these areas. The Attorney General, as the first law officer, has borne the ultimate responsibility for prosecution decision and the legislation enacted in England did not alter the position.[14]

POSITION OF PUBLIC PROSECUTOR IN INDIA

Prior to independence prosecution was  carried on by police officer who were designated as police prosecutors and there was no requirement to be of a lawyer, this system worked in a colonial state where prosecutor  were crucial in suppressing the struggle for independence. Police prosecutors were functioning under the administrative and disciplinary control police department. Since their promotions to the higher posts in the department depend on number of conviction they were able to obtain by court in the prosecution conducted by them, they were not able to show  needed detachment expected of prosecutors.

Under constitution public prosecutor is governed by item 2 of list iii, (concurrent list) of 7th schedule of constitution of India.At the time of commencement of the constitution, the procedure for appointment of P. P. was contained in Section 492 of old Code, 1898 and hence the subject falls under item 2 of the concurrent list. Therefore, under Art 246 (2), it is open to the parliament to legislate on the subject but it is also open to state to amend parliamentary legislation by following the procedure in art. 254 (2) of the constitution, by reserving the state amendment Bill for assent of the President of India and thus  there is no uniformity in the structure of prosecution in India Various reports of law commission in 1958 and 1969 recommended the setting up of an independent prosecution agency. Therefore, Law commission suggested remedial measures for conducting prosecution by prosecutors fairly and impartially. Police department shall not continue as prosecution agency as the practice prevailed. Secondly, the prosecution agency must have own cadre separate and distinct from police department. Thirdly, the prosecutors of prosecution department must have their own machinery who can exercise administrative and disciplinary control over them being directly possible to government concerned. It is ultimately suggested in unequivocal word that machinery of criminal justice though comprised of investigation department and prosecution department, there should be complete separation between them. The object of such separation is to see that the officers of the police department who investigated the cases to be prosecuted shall have in no manner control or influence over prosecutors who conduct cases in courts based on the investigations made by police department.[15]

In India, we have a public prosecutor who acts in accordance with the directions of the judge. The control of trial is in the hands of the trial judge. Investigation is the prerogative of the police. The decision to prosecute is a function attributed to the procurator in continental countries taken in India by the police. Again, the withdrawal of the prosecution can also be done only with the permission of the court. However, it is generally believed that traditional right of nulle Presque is available to the prosecutor

On the recommendation of Law commission parliament has made effort to separate prosecution from police by bringing new provision in new code of criminal procedure in 1973 which came into force from April 1st ,1974. The central govt. and state governments in India has been empowered to appoint prosecutors for conducting prosecution and other criminal proceeding on their behalf, in High court , sessions court and  the court of magistrate. It has been specifically provided that in every trial before sessions court the prosecution shall be conducted by public prosecutor. However, no specific provision has been made in the code in respect of the conduct of prosecution in courts of magistrates. According to prevailing practice, in respect of cases initiated on police report prosecution is conducted by prosecutor and in case initiated on private complaint, the prosecution is either conducted by complainant himself or by his lawyer.[16]

The prosecutor in charge of case may appear and plead without any written authority  before any court in which that case is dealt with[17] . Further it has also been provided that the Advocate general or government advocate or P. P., assistant P. P. shall have right to conduct prosecution  and for that no permission is required[18]. The code does not mention the duties of the prosecutor. However the principles in this regard are well settled about the nature of the office it has been held that this is a public off ice of much importance and that the present spoil system of appointment to the office by political consideration should be done away.[19]

Section 24 of the Cr.P.C. provides for appointment of public prosecutors in the High Courts and the sessions by the central government or state government. sub-section (3) lays down that for every district, the state government shall appoint a public prosecutor and may also appoint one or more additional public prosecutors for the district. sub-section (4) requires the district magistrate to prepare a panel of names of persons considered fit for such appointment, in consultation with the sessions judge. sub-section (5) contains an embargo against appointment of any person as the public prosecutor or additional public prosecutor in the district by the state government unless his name appears in the panel prepared under subsection 4. sub-section (6) provides for such appointment wherein a state has a local cadre of prosecuting officers, but if no suitable person is available in such cadre, then the appointment has to be made from the panel prepared under sub-section (4). sub-section (4) says that a person shall be eligible for such appointment only after he has been in practice as an advocate for not less than seven years. 

In this context, section 321 of the Cr.P.C. is also relevant. As already mentioned, it permits withdrawal from prosecution by the public prosecutor or assistant public prosecutor in charge of a case with the consent of the court at any time before the judgment is pronounced. This power of the public prosecutor in charge of case is derived from the statute and must be exercised in the interest of the administration of justice. There can be no doubt that this function of the public prosecutor relates to a public purpose entrusting the officer with the responsibility of so acting only in the interest of administration of justice.

The nature of the powers of the public prosecutor is sometimes doubted. At times, it appears to be executive power. In certain contexts, it may appear to be quasi-judicial. The principle that the Supreme Court laid down in R K Jain¡[20]case, quoting Shamsher Singh v. State of Punjab[21], as regards the meaning and content of executive powers tends to treat the public prosecutor office as executive. But the conclusions of some courts create doubt as to its exact nature. To the suggestion that the public prosecutor should be impartial (a judicial quality), the Kerala High Court equated the public prosecutor with any other counsel and responded thus:Every counsel appearing in a case before the court is expected to be fair and truthful. He must of course, champion the cause of his client as efficiently and effectively as possible, but fairly truthfully. He is not expected to be impartial but only fair and truthful[22]. Public prosecutor are  not government employee  and can not be said to hold office under the state. This has been made very clear by the Apex court while construing the provisions of section 46(2) of the Prevention of Money Laundering Act. 2002 has held that the expression “Under” occurring in section in 46(2) must be reasonably construed in a manner which is consistent with the dignity of office of the public prosecutor. A public prosecutor can not be equated with a person who is holding office under the state. He can not be treated as government employee. It may be that he should be lawyer on the government panel. However, the independence of public prosecutor from any  governmental control is the hall mark of the high office.[23]

Public prosecutors are really ministers of justice whose job is none other than assisting the state in the administration of justice. They are not representatives of any party. Their job is to assist the court by placing before the court all relevant aspects of the case. They are not there to use the innocents go to the gallows. They are also not there to see the culprits escape conviction. But the pleader engaged by a private person who is a de facto complainant cannot be expected to be so impartial. Not only that, it will be his endeavor to get the conviction even if a conviction may not be possible[24].

Though the office of the public prosecutor seems to have the features of the executive, the judiciary does not appear to treat it so, because it does not approve of the appointment of police officers as public prosecutors. The Punjab & Haryana High Court in Krishan Singh Kundu v. State of Haryana [25] has ruled that the very idea of appointing a police officer to be in charge of a prosecution agency is abhorrent to the letter and spirit of sections 24 and 25 of the Code. In the same vein the ruling from the Supreme Court in SB Sahana v. State of Maharashtra[26] found that irrespective of the executive or judicial nature of the office of the public prosecutor, it is certain that one expects impartiality and fairness from it in criminal prosecution. The Supreme Court in Mukul Dalal v. Union of India [27] also categorically ruled that the office of the public prosecutor is a public one and the primacy given to the public prosecutor under the scheme of the court has a social purpose. But the malpractice of some public prosecutors has eroded this value and purpose. The Apex court while construing the provisions of section 46(2) of the Prevention of Money Laundering Act. 2002 has held that the expression “Under” occurring in section in 46(2) must be reasonably construed in a manner which is consistent with the dignity of office of the public prosecutor. A public prosecutor can not be equated with a person who is holding office under the state. He can not be treated as government employee. It may be that he should be lawyer on the government panel. However, the independence of public prosecutor from any  governmental control is the hall mark of the high office.[28]

It has been the consistent policy of the appellate courts that it is the prerogative of the public prosecutor to recommend withdrawal of prosecution. Indeed, this prerogative right is to be exercised with the permission of the court. And it is the impression, having regard to the case law, that if the public prosecutor comes up with the proposal of withdrawal independently, i.e., without being influenced by the government, the court may grant permission. The courts reiterate this principle time and again, even in cases where permission is refused. In State of Punjab v. Union of India[29], the Punjab & Haryana High Court ruled that public prosecutor withdrawal from prosecution could follow not only from the paucity of evidence but also in order to further the broad ends of public justice, which may include appropriate social, economic and political purposes. In R K Jain v. State (Supra), the Supreme Court sketched out the contours of the public prosecutors power for withdrawal of cases. In Shonandan Paswan v. State of Bihar[30] and in Mohd. Mumtaz v. Nandini Satpathy[31], the Supreme Court ruled that the public prosecutor can withdraw a prosecution at any stage and that the only limitation is the requirement of the consent of the court. Even when reliable evidence has been adduced to prove the charges, the public prosecutor can seek the consent of court to withdraw prosecution. The court specifically ruled that it should be seen whether application for withdrawal is made in good faith, in the interests of public policy and justice and not to thwart or to stifle the process of law.

The Supreme Court in a later case viz. V. S. Atchulthanandan v. R. Balakrishna Pillai [32] allowed the petition of a third party to annul the High Courts order permitting withdrawal of prosecution against the respondent. It was with the active support of the state government that the prosecution against the respondent, a former minister, was permitted to be withdrawn. The opposition leader challenged this order in the Supreme Court. The court accepted his plea and set aside the order. Of late, there has been a change of approach to public prosecution. With the advent of partisan politics, political parties tend to interfere with administration of justice, including appointment of public prosecutors and determination of their functions. The decisions in Sunil Kumar Pal, Ganesan and Atchulthanandan (Supra) speak to the changes and the responses of the judiciary.

It seems that the office of the public prosecutor belongs to the executive. However, it is strongly felt that it is in fact not purely of the executive. As explained by the Supreme Court in the Shamsher Singh (Supra), it takes on judicial character and as such assumes a lot of importance in a democracy. The very establishment of this office presupposes the understanding that we cannot afford to permit private prosecution as it may result in utter chaos, particularly in the present political set up. However, while we adopt this office in the place of private prosecution, we cannot forget the interests of the victim. The public prosecutor may not share the concerns of the victim, or safeguard the victim's interests. The Indian Cr. P.C. therefore permits pleaders appointed by private persons to represent the interests of victims. However, the courts insist that they should work under the directions of the public prosecutor. This shows that the court gives more importance to the public interest. The public prosecutor in India does not seem to be an advocate of the state in the sense that the prosecutor has to seek conviction at any cost. The prosecutor has to be impartial, fair and truthful, not only as a public executive but also because the prosecutor belongs to the honorable profession of law, the ethics of which demand these qualities. The facts in Sunil Kumar Pal and Ganesan make us to open our eyes to the realities.

The difficulties arising where public prosecutors are appointed on the basis of political affiliations also came before the Supreme Court in Kumari Srilekha Vidyarthi v. State of UP(Supra) [33]. The Supreme Court deprecated this trend and said that appointment to such vital offices should not be allowed on the basis of political party preferences and should be done away, but even today, state governments distribute these offices among their sympathizers. And after assuming office many incumbents feel that they need to look after the interests of the ruling party. still there have been cases where prosecutor or assistant public prosecutor appeared for accused.[34], this practice has been disapproved by the court. The appointment of the senior officer of police as head of prosecution agency in state came to severely criticized by judiciary[35] and likewise the practice of appointing police prosecutor as assistant public prosecutor has also been disapproved by supreme court. After considering the 14th  law commission report  the court suggested following remedial measures. Firstly, it is suggested that the police department shall not continue as  the prosecution agency .Secondly, the prosecution agency must have its own prosecution department separate and distinct from police department. Third , the prosecutor of prosecution department must have their own heads who can exercise administrative and disciplinary control over them being directly responsible to the government concerned.[36]

Section 25 of code imposed statutory obligation on state government, in unequivocal terms that it shall appoint one or more assistant public prosecutor in every district exclusively for the purpose of conducting prosecution in courts of magistrate in such district.[37] That independence of assistant public prosecutor sought to achieved under provision s in section 25 of the code is also sought to be achieved in respect of prosecution conducted in sessions courts and High courts which is obvious from the scheme of the provisions of section 24  of the code. The end of practice of police prosecutor also led to a landmark judgment of Allahabad High court, the court quashed a U P government order placing the Asst. P. P. under administrative and disciplinary control of police[38] and same was subsequently approved by Supreme court in S B  Shahane’s case(Supra) After separating prosecution completely from police Parliament intended to extend the regular cadre of prosecuting officer to the courts of sessions also and for that Parliament introduced sub section (6) and (9) in section 24. By these amendment it was sought that in the state where exist regular cadre of prosecuting officers state shall appoint prosecution officers in sessions courts in the country only amongst the cadre constituting regular cadre of prosecution officers in a state. As the experience of 7/ 10  years standing as an advocate was made essential for the appointment of prosecutors in sessions court therefore , provision under sub section (9) was made to the effect that for the above purpose the experience of assistant public prosecutor shall be deemed to experience of Advocate.[39] However, 4th report of national police commission argued that independence of prosecution reduced the power of police and led to decline of convictions. Similar point has also been raised by recent reports on prosecution system in Orissa and West Bengal. The infamous Malimath committee also recommended that prosecution be headed by Director General of police. On the other hand prosecutor, Law commission and human rights activists do not support the idea of placing the agency under control of police.

The object of the above amendment made by parliament was defeated by state government by not implementing the provisions of section 24 in respective state and some states went one step further and brought state amendment to defeat the mandate of parliament. The Prime minister has showed his anguishes over the subject and stated “There is a need to fix responsibility on directorate of prosecution. The criminal trial should always conducted by police/C. B. I. prosecutors only but by not state public prosecutors. There is a problem of accountability in contractual P. P. appointed on political recommendations in a state. The provision in criminal procedure code which empowers the state government to appoint P. P. should be got amended with immediate effect[40]”. As desired by the prime minister’s office , the ministry of home affairs has sought view of law commission of India  and commission after examining the issue at length has suggested remedial measure : we therefore suggested that[41] “ making of appointment of public prosecutor (hereinafter referred to as public prosecutor, special   public prosecutor and   additional public prosecutor) only from amongst persons constituting regular cadre of prosecuting officer in term of S.24(6) of Cr.P.C. 1973 as originally legislated by parliament- may need to be legislatively restored to override various state amendments . Further a time limit may need to be prescribed by law to require creation of such cadres in definite time frame”. Amendment in light of the above recommendation are still awaiting. The Apex court held in Vineet Narain’s case that there is need for strong and competent prosecution machinery and not merely a fair and competent investigation agency[42].

In the mean time with a view to have uniformity in the structure of [43]prosecution in India, The parliament in 2005 introduced amendment in code of criminal procedure 1973 by inserting new section 25 A which empowers every state to establish a directorate of prosecution in each state with objective to control prosecution from High court to Magistrate court  in the country.

The parliament amended the Cr. P.C. so that state governments could adopt prosecution services consisting of a director of public prosecutions at the top and district public prosecutors and assistant public prosecutors at the lower formations. Section 25A inserted by Act 25 of 2005, section 4 (with effect from 23 June 2006) lays down that:

25A. 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-sections (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-sections (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.

Even after lapse  of four years not a single state in India has established separate and independent directorate of prosecution. Therefore, while some states have created Directorate of prosecution while others have not ( Arunachal, Mizoram  and Gujarat ). Further more , in states which have The Director of prosecution too, there are no uniformity. In Goa, The Director of prosecution  cover High courts , sessions court and the magistrate court. In Delhi, Karanatka, Himichal and Orissa, The Director of prosecution   exclude High court. In states like Rajasthan, Andhra Pradash, Tamil nadu,  U. P., M. P. and Uttaranchal, The Director of prosecution  cover only magistrate court prosecutors and sessions and High court are under Law department and prosecutors are appointed on tenure.

The impartiality of the P. P. is directly depend upon who control the agency. In some states it is in control of police, in some sates  like Goa and kernataka it is control of Law department and in Rajasthan it is controlled by judiciary  and all these agency in their on interest by hook and crook  want to keep prosecution in their grip , despite of recommendation of law commission and verdict of Apex court. This clearly reflect apathy and neglected approach of states in this regard and in my view which is one of reasons for the fall in administration of criminal justice in India. The present position of prosecution in India has been described by H R Bhardwaj as “  The office of public prosecutor enjoyed great prestige in India till recently and some of the most out standing lawyers adorned the august office. The court relied upon their opinion and advice. The decline of the office of P. P. is one of the many reasons for the fall in administration of criminal justice in India. Although they are appointed in consultation of High courts, their quality has not improved. There is no regular cadre of prosecuting officers in most of the states.

The state governments are yet to implement these provisions. Reorganization of the public prosecution system in this pattern may help a lot in preventing police torture, harassment and delays. There would be more transparency in the police-citizen relationship if the public prosecutor were an independent functionary interposed between the police and the court.

The public prosecutor is the lynchpin of the criminal justice system. Once the investigation is complete, the role of the public prosecutor commences. Increase in white and gold collar crime requires different and advanced skills of investigation and prosecution. There is a need for investigators well versed in accountancy and commercial practice, and a continuous interaction of investigators with the legal team and most important—all these in an independent prosecution agency that is beyond the reach of the rich and powerful. The Supreme Court directed the creation of an independent directorate of prosecutions. The Code of Criminal Procedure was amended to provide for a directorate of prosecutions. And that is all that we have done— amended the law. Resultantly as per As per the NCRB, conviction rate for IPC crimes decreased marginally from 42.9 per cent in 2006 to 42.3 per cent in 2007. But NGOs tell a different story— in one report it was suggested that the reality is that our conviction rate is as low as 6.2 per cent for assault and murder cases and is 4.8 per cent for molestation cases. The improved figures include cases where the accused pleads guilty and is let off with a fine.

The late Nani Palkhivala used to say that we are a country of gestures, as a gesture to the problem; we made the law and stopped there. The new government would do a great service to the system by creating at the level of the Union (and prodding the states to create at their level) an independent directorate of prosecution, as a cadre service with its own in-house training mechanism, and making it lucrative enough to attract the best talent. Let us not forget that those working in this directorate will not enjoy the invisible perks of the civil services.

CONCLUSION

The role of prosecution in the future will de depend how states deal the issues concerning prosecution. There is no doubt that number of steps need to be taken before that to ensure that the prosecution service can even attempt to resist this pressure. This, with great autonomy from both police and the executive and in some state from judiciary will allow the prosecution to be more successful. This success must not be measured in term of conviction, but instead by observing whether an independent and autonomous prosecution can act to facilitate a culture of rights by ending impunity and imitating action against powerful sections of state and society that violate the law.

The Attorney General for India, no doubt is the principle law officer of union government  but the decision to prosecute does not lie with Attorney General or Advocate General of state. The police files charge sheet and government decide to file appeal and revisions, withdraw case with consent of court although filed though prosecutor but not his own. The office of public prosecutor has lost its independence and credibility. Most of the state governments make political appointments without considering merits. After considering the matter at length the Supreme court of India in Vineet Narain’s case held that there is need for strong and competent prosecution machinery and not merely a fair and competent investigation by the C. B. I. can hardly be overemphasized.

Will the government be interested in reforming the criminal justice system? If the decline of the criminal justice system was on account of governmental apathy, its demise will be because of a vested interest in destroying an effective criminal justice system. A political system that brushes aside periodic scams worth billions howls at the prospect of the financial burden of such reform.

The late Nani Palkhivala used to say that we are a country of gestures, as a gesture to the problem; we made the law and stopped there. The new government would do a great service to the system by creating at the level of the Union (and prodding the states to create at their level) an independent directorate of prosecution, as a cadre service with its own in-house training mechanism, and making it lucrative enough to attract the best talent. Let us not forget that those working in this directorate will not enjoy the invisible perks of the civil services.

The perception is irresistible that the failure to reform is in direct proportion to the growing influence of criminals in politics. A number of cabinet members (and chief ministers) and M. P's and M. L. A's would be without jobs if the justice system had been timely and effective. The task of the  government is to change this perception and to prevent criminalization of politics (slowly but surely) being imparted acceptability as a legitimate part of the political process. Democracy is, in the ultimate analysis, a fragile virtue and its success depends on the faith of the citizenry in the rule of law. Democracy perishes when disgruntled citizens turn to demagogic dictators who promise justice. People have almost lost all faith in the system and if this trend is not reversed, it will bring down the curtain on the rule of law, and in time, on Indian democracy itself.
                                        

AGENDA—JUDICIARY

Our criminal justice system is in tatters—justice delayed is justice denied—but that is just one of the ways in which we deny justice to ourselves. Shoddy investigations leading to poor conviction rates, framing innocent people to get the heat off high profile crimes, goofed up trials, witnesses turning hostile. You name it, it happens in our system.


The public prosecutor is the lynchpin of the criminal justice system. Once the investigation is complete, the role of the public prosecutor commences. Increase in white and gold collar crime requires different and advanced skills of investigation and prosecution. There is a need for investigators well versed in accountancy and commercial practice, and a continuous interaction of investigators with the legal team, and most important—all these in an independent prosecution age-ncy that is beyond the reach of the rich and powerful. The Supreme Court directed the creation of an independent directorate of prosecutions. The Code of Criminal Procedure was amended to provide for a directorate of prosecutions. And that is all that we have done— amended the law.

The late Nani Palkhivala used to say that we are a country of gestures, as a gesture to the problem, we made the law and stopped there. The new government would do a great service to the system by creating at the level of the Union (and prodding the states to create at their level) an independent directorate of prosecution, as a cadre service with its own in-house training mechanism, and making it lucrative enough to attract the best talent. Let us not forget that those working in this directorate will not enjoy the invisible perks of the civil services.

The legal procedures possibly need simplification, but more importantly, the infrastructural improvements are the first priority. The current delays are principally because we have very few judges, and even those that we have, work in appalling conditions. The chief justice of India, in order to drive home this point, gave an interesting statistic that at the current rate of disposal, we can clear the arrears (civil and criminal) in 124 years.

In its report given in 1987, the Law Commission lamented that India has only 10.5 judges per million population as against Australia at 41.6, Canada at 75.2, the UKat 50.9 and the US at 107 per million. It suggested that India should have at least 50 judges per million and this should be spread out over 10 years. Fifteen years later, the Supreme Court observed “…time and again inadequacy in the number of judges has adversely been commented upon…we are of the opinion that time has now come for protecting the pillars of the Constitution...” and directed that by March 3, 2003, all sanctioned posts should be filled, and the increase to 50 judges per million population be completed in phases so that an increase of 10 judges per million is in place every year. Seven years later, little has been achieved. Even now there are unfilled sanctioned posts in many states.

We need more judges but mere numbers would not help—quality is vital. The jobs have to be made financially attractive to get talent—again there are no hidden perquisites here. This is the task for the new government. And to achieve this, the government will need rocket-like determination to achieve “escape velocity” to break free of the gravitational pull of the civil service which insists (contrary to innumerable judgements of the Supreme Court) on a “parity” in pay scales.

Will the new government be interested in reforming the criminal justice system? If the decline of the criminal justice system was on account of governmental apathy, its demise will be because of a vested interest in destroying an effective criminal justice system. A political system that brushes aside periodic scams worth billions howls at the prospect of the financial burden of such reform.

The perception is irresistible that the failure to reform is in direct proportion to the growing influence of criminals in politics. A number of cabinet members (and chief ministers) and MPs and MLAs would be without jobs if the justice system had been timely and effective. The task of the new government is to change this perception and to prevent criminalisation of politics (slowly but surely) being imparted acceptability as a legitimate part of the political process.

Democracy is, in the ultimate analysis, a fragile virtue and its success depends on the faith of the citizenry in the rule of law. Democracy perishes when disgruntled citizens turn to demagogic dictators who promise justice. People have almost lost all faith in the system and if this trend is not reversed, it will bring down the curtain on the rule of law, and in time, on Indian democracy itself.

AGENDA—JUDICIARY

Our criminal justice system is in tatters—justice delayed is justice denied—but that is just one of the ways in which we deny justice to ourselves. Shoddy investigations leading to poor conviction rates, framing innocent people to get the heat off high profile crimes, goofed up trials, witnesses turning hostile. You name it, it happens in our system.

As per the NCRB, conviction rate for IPC crimes decreased marginally from 42.9 per cent in 2006 to 42.3 per cent in 2007. But NGOs tell a different story— in one report it was suggested that the reality is that our conviction rate is as low as 6.2 per cent for assault and murder cases and is 4.8 per cent for molestation cases. The improved figures include cases where the accused pleads guilty and is let off with a fine.

A number of Cabinet members, MPs and MLAs would be without jobs if the justice system was effective

A deadly mix of lack of investment in human resources and infrastructure and an archaic structure of police that breeds incompetence, an abysmally low judge strength and not the least, rampant political interference in the process of law, have contributed to the disease that has beset our criminal justice system. The criminal justice system—comprising investigation of crime and expeditious trial, while at the same time affording them all the protection for the safety of the innocent built into such a system—evolved over years of experience of abuses and excesses. Each segment needs urgent and drastic reform.

The Indian police force suffers from a lack of cohesion and its concomitant fall-out on the morale of the force. The old structure put in place by the British where a small fraction of officers are recruited to the IPS (a Central service which prior to Independence was manned by the British) and the rest of the force is in the state police contributes to this lack of cohesion.

Selection to the IPS is through the UPSC. Recruitment to the state services is at the state level—the repeated successful challenges to the recruitments to the state police bear testimony to the irregularities in the selection.

The police is hopelessly understaffed and poorly paid. The salary is nowhere commensurate with the enormous powers conferred—the most dreaded being the power of arrest. The result? Rampant corruption. Add demoralisation to this and it is a sure recipe for catastrophe. We lament lack of sensitivity in the police but given the conditions in which they work, one wonders how they perform as much as they do.


The National Police Commission (1977-81), various high-powered committees and commissions— the National Human Rights Commission, Law Commission, Ribeiro Committee, Padmanabhaiah Committee and the Malimath Committee on Reforms of Criminal Justice System—have examined the issue of police reforms.

On August 3, 1997, a letter was sent by the home minister to the state governments revealing a distressing situation and expressing the view that if the rule of law has to prevail, it must be cured.

When the system refused to respond, the Supreme Court finally issued directions (based on a PIL filed by an ex-police officer) to the Union and state governments. These included establishment of the State Security Commission, appointment of the DGP on objective criteria with a minimum tenure, postings of IGs, DIGs, SSPs and SHOs with minimum tenures, and most importantly, the Police Establishment Board in each state which shall decide all transfers, postings, promotions and other service-related matters of officers of and below the rank of DSP.

This judgement has remained as a parchment in a glass case. If a full scale reform is too tall an order, the new government can at least ensure that the reforms recommended by the police commission reports and directions issued by the Supreme Court are implemented.

The public prosecutor is the lynchpin of the criminal justice system. Once the investigation is complete, the role of the public prosecutor commences. Increase in white and gold collar crime requires different and advanced skills of investigation and prosecution. There is a need for investigators well versed in accountancy and commercial practice, and a continuous interaction of investigators with the legal team, and most important—all these in an independent prosecution age-ncy that is beyond the reach of the rich and powerful. The Supreme Court directed the creation of an independent directorate of prosecutions. The Code of Criminal Procedure was amended to provide for a directorate of prosecutions. And that is all that we have done— amended the law.

The late Nani Palkhivala used to say that we are a country of gestures, as a gesture to the problem, we made the law and stopped there. The new government would do a great service to the system by creating at the level of the Union (and prodding the states to create at their level) an independent directorate of prosecution, as a cadre service with its own in-house training mechanism, and making it lucrative enough to attract the best talent. Let us not forget that those working in this directorate will not enjoy the invisible perks of the civil services.

The legal procedures possibly need simplification, but more importantly, the infrastructural improvements are the first priority. The current delays are principally because we have very few judges, and even those that we have, work in appalling conditions. The chief justice of India, in order to drive home this point, gave an interesting statistic that at the current rate of disposal, we can clear the arrears (civil and criminal) in 124 years.

In its report given in 1987, the Law Commission lamented that India has only 10.5 judges per million population as against Australia at 41.6, Canada at 75.2, the UKat 50.9 and the US at 107 per million. It suggested that India should have at least 50 judges per million and this should be spread out over 10 years. Fifteen years later, the Supreme Court observed “…time and again inadequacy in the number of judges has adversely been commented upon…we are of the opinion that time has now come for protecting the pillars of the Constitution...” and directed that by March 3, 2003, all sanctioned posts should be filled, and the increase to 50 judges per million population be completed in phases so that an increase of 10 judges per million is in place every year. Seven years later, little has been achieved. Even now there are unfilled sanctioned posts in many states.

We need more judges but mere numbers would not help—quality is vital. The jobs have to be made financially attractive to get talent—again there are no hidden perquisites here. This is the task for the new government. And to achieve this, the government will need rocket-like determination to achieve “escape velocity” to break free of the gravitational pull of the civil service which insists (contrary to innumerable judgements of the Supreme Court) on a “parity” in pay scales.

Will the new government be interested in reforming the criminal justice system? If the decline of the criminal justice system was on account of governmental apathy, its demise will be because of a vested interest in destroying an effective criminal justice system. A political system that brushes aside periodic scams worth billions howls at the prospect of the financial burden of such reform.

The perception is irresistible that the failure to reform is in direct proportion to the growing influence of criminals in politics. A number of cabinet members (and chief ministers) and MPs and MLAs would be without jobs if the justice system had been timely and effective. The task of the new government is to change this perception and to prevent criminalisation of politics (slowly but surely) being imparted acceptability as a legitimate part of the political process.

Democracy is, in the ultimate analysis, a fragile virtue and its success depends on the faith of the citizenry in the rule of law. Democracy perishes when disgruntled citizens turn to demagogic dictators who promise justice. People have almost lost all faith in the system and if this trend is not reversed, it will bring down the curtain on the rule of law, and in time, on Indian democracy itself.
 

J.S.[1]RAJAWAT

[1] Advocate, Spl P P , CBI and Retd.Dy. Director prosecution, A C B , Rajasthan

[2] Thakur ram v/s Bihar AIR 1966 Sc 911

[3] Jitender kumar v/s NCT Delhi

[4] Crine & criminal justice by H R Bhardwaj Ex law minister of India (ch 8 P 117)

[5] Halsbury law of England ( 4th ed , vol ii  criminal law para 283)

[6] libd  Vol 3 Barrister , para 1140

[7] Kenny;s out line of criminal law , 19th Ed.(1966) P 611- 612

[8] Prabhul dayal v. state 1986 Cr L J 383

[9] Lord Chancellor in R v. Maxwell 1934  C A R 176

[10] R v. Neat 1941 (2) A E R 438

[11] Crime & criminal justice By H R Bhardwaj c Ch 8 at page 120

[12] Clyne v. attorney General of Auttralia 1984 (55) A L R 92.

[13] Speech in House of Commons Dt 16th Feb 1959 by Mr. Harold macmillan

[14] crime & Criminal justice By H R Bhardwaj Page-119

[15] 14th Law commission report 1958

[16] Mukal dalal v. U O I 1988 SCC 144

[17]Cr P C  Section 301 (1)

[18] Cr P C Section 302 (2)

[19] Srilekha Vidyarthi v. U P 1991 SCC  212

[20] A I R 1980 Sc 1510

[21] 1974 S C C (2) 831

[22] Aziz v/s State of kerela 1984 Cr.L.J. 1060

[23] Center for PIL v/s UOI 2012 Cr L J  1153

[24] Babu v/s state of Kerala 1984 Cr.L.J. 499

[25] 1989 Cr.L.J 1309(P&H)

[26] 1995 SCC(cri) 787

[27] 1983 SCC(3) 144

[28] Center for PIL v/s UOI 2012 Cr L J  1153

[29] 1987 Cr.L.J. 151(sc)

[30] 1987 SCC (1) 288

[31] 1987 Cr.L. J.778(Sc)

[32] 1994 SCC (4) 299

[33] 1991 SCC(1) 212

[34] Sunil kumar pal v/s photosheikh 1984 SC 533

[35] Krishan singh kunda v/s Haryana 1989 Cr.L.J 1309

[36] S B Shanane A I R 1995 Sc 1628

[37] Section 25 Cr.P C 1974

[38] Jaipal singh v. U P 1976 Cr  L J 32

[39] Section 24 of Cr. P c

[40] Letter of P M O Dated 16.5.06

[41] 197th law commission report  31st July, 2006

[42] 1988 SCC 265

[43] Ins. New section 25 A by section 4 of Cr  P C (amendment ) Act, 2005

 

JasRaj Rajawat 
on 17 November 2014
Published in Criminal Law
Views : 6155
Other Articles by - JasRaj Rajawat
Report Abuse









×

  LAWyersclubindia Menu

web analytics