A crime is wrong not only against the individual victim but also against society at large. Because of this consideration, the state, representing the people collectively, participates in a criminal trial as a party against the person accused of a crime, mainly if the crime is a cognizable offence.
The Public Prosecutor (PP) or the Assistant Public Prosecutor (APP) is the counsel for the state in such trials. His duties mainly consist of conducting prosecutions on behalf of the state. The Public Prosecutor also appears as State Counsel in criminal appeals, revisions and other matters in the Sessions Courts and the High Courts. The Public Prosecutor should not appear on behalf of the accused.
Meaning of Public Prosecutor
Public Prosecutor is defined in section 2(1)(u) of the Criminal Procedure Code, 1973. A Public Prosecutor means any person appointed under section 24 of the CrPC and includes any person acting under the directions of a public prosecutor. A Public Prosecutor is a public officer charged with investigating and prosecuting punishable acts on behalf of a State.
State of Bihar vs Ram Naresh, AIR 1957 SC 389: A Public Prosecutor is an executive officer but, in a sense, an officer of the court. He is bound to assist the court with his fairly considered view, and the court is entitled to benefit from the fair exercise of his function.
T.A. Rajendra vs P.V. Ayyappan, 1986 Cri. L.J. 1287 (Ker): An Advocate General whom the Governor asks of a State to represent an accused in a Sessions Court will not be a Public Prosecutor unless appointed as such Public Prosecutor under section 24 of the CrPC.
Classes of Public Prosecutor
- PP appointed by the Central Government;
- PP appointed by the State Government;
- Additional PP appointed by the Central Government;
- Additional PP appointed by the State Government;
- Special PP appointed by the Central Government;
- Special PP appointed by the State Government;
- Assistant PP appointed by the State Government;
- Assistant PP appointed by the District Magistrate.
Nature of Duty of Public Prosecutor
The CrPC does not mention the spirit in which the duties of the Prosecutor are to be discharged. However, the principles in this regard are well-settled. The PP is not the protagonist of any party. In theory, he stands for the state in whose name all prosecutions are conducted.
The purpose of the criminal trial is not to support the all-costs theory but to investigate the offence and determine the guilt or innocence of the accused. A PP must represent not the police but the state, and his duty should be discharged fairly and fearlessly and with a full sense of the responsibility that attaches to his position.
The duty of the PP in a criminal trial is not merely to secure a conviction at all costs but to place before the court whatever evidence is in his possession, whether it be in favour or against the accused, and to leave it to the court to decide upon all such evidence whether the accused was or was not guilty of the offence alleged. It is not a part of the prosecutor’s duty to obtain convictions by hook or crook.
The counsel for the prosecution should not, by the statement, aggravate the case against the prisoners or keep back a witness because his evidence may weaken the case for the prosecution. His only object should be to aid the court in discovering the truth. He should avoid anything likely to intimate or unduly influence witnesses on either side.
There should be on his part no unseemly eagerness for or grasping at conviction. The ideal PP is not concerned with securing a conviction or satisfying departments of the State Government with which he has to be in the contract. He must consider himself an agent of justice.
Section 24: Public Prosecutors
Section 24 of the Code of Criminal Procedure, 1973, outlines the appointment of Public Prosecutors by the Central and State Governments for High Courts, districts, and local areas. The appointment is subject to consultation with relevant authorities, and Additional Public Prosecutors may also be appointed. The District Magistrate, in consultation with the Sessions Judge, prepares a panel of eligible candidates for the district. Only individuals appearing on this panel can be appointed as Public Prosecutors or Additional Public Prosecutors for that district. The eligibility criteria include at least seven years of advocacy practice for general appointments and ten years for Special Public Prosecutors. In cases where a regular cadre of Prosecuting Officers exists, appointments must be made from within the cadre unless the State Government deems no suitable candidate available.
P.M. Sunny vs State of Kerala, 1986 Cri. L.J. 1517 (Ker): It was held that the government couldn’t keep posts vacant because of administrative necessity and financial constraints. Appointing a prosecutor is a compelling constitutional necessity obligatory under this CrPC. Financial constraints can’t absolve the state of its constitutional obligation.
State of Maharashtra vs Prakash Prahlad Patil, (2010) 1 Cri. L.J. 466 (SC): It has been held that the close relatives of the victim challenged the appointment of a Special Public Prosecutor made after taking decisions at various levels by the State Government, picking up stray sentences from records by the High Court to conclude that non-application of mind in the appointment was not proper.
Section 25: Assistant Public Prosecutors
Section 25 of the Code of Criminal Procedure, 1973, addresses the appointment of Assistant Public Prosecutors by the State Government in every district to conduct prosecutions in Magistrates’ Courts. The Central Government may appoint Assistant Public Prosecutors for specific cases in Magistrates’ courts. Notably, police officers are generally ineligible for such appointments, with exceptions. Suppose no Assistant Public Prosecutor is available for a particular case. In that case, the District Magistrate has the authority to appoint any other suitable person for that role, excluding police officers involved in the investigation or holding a rank below Inspector.
Vijay vs State of Maharashtra, 1986 Cri. L.J. 2093 (Bom.): A police officer to the rank of Inspector or above may be appointed to act as Assistant Public Prosecutor in any case, provided that he has not himself been the investigation officer in the offence for which the accused was being tried. The discretion under section 25(3) of the CrPC should be exercised in such a manner as to ensure that a case is conducted correctly. Sections 24(8) and 25(1) of the CrPC do not violate Article 14 of the Indian Constitution. They lay down sufficient guidelines for the appointment of Special Public Prosecutor (SPP) and APP. The accused can’t demand that the prosecution should be conducted by a particular prosecutor only.
K. Tirupathi vs State of AP, 1983 Cri. L.J. 1243 (AP): Section 24 provides that the APP should also be a practising advocate. However, section 25 does not provide so; therefore, under certain circumstances, even a police officer can be appointed as an APP under this section.
Kannappan vs Abbas, 1986 Cri. L.J. 1022: It was held that an APP couldn’t be permitted to defend a case even if the accused are police officers because he is appointed to conduct the prosecution and not to defend the accused.
Does Section 25A Ensure the Independence of the Public Prosecutors?
The scheme under section 25A of CrPC (through the 2005 Amendment) departs from the set-up initially envisaged under the Criminal Procedure Code of 1973. The Director shall be in charge of the Directorate and shall function under the administrative control of the head of the Home Department in the state.
PP, APP and SPP shall conduct cases and work under the Directorate of Prosecution. There will undoubtedly be active coordination and cooperation between the Police and the Prosecution, though it may make the PP’s independence suspicious. It is pertinent to note that the Director and the Deputy Directors are appointed with the concurrence of the Chief Justice. The provisions of section 25A do not apply to the Advocate General for the state while performing the functions of the PP.
Section 301: Appearance by Public Prosecutors
The Public Prosecutor or the Assistant Public Prosecutor has the authority to appear and plead before any court in any case entrusted to him under section 301 of the CrPC. He can also advise the police or other government departments about the prosecution of any person if his advice is so sought.
The PP may avail himself of the assistance of the counsel retained by the private individual, but he will manage the case himself. Both of them may work in harmony, and if they do not, the counsel may retire, or the PP may keep the conduct of the case solely to himself.
With the court’s permission, the counsel appointed by the private party can submit written arguments after the evidence is closed in the case.
Re Rakhan Ojha, 1988 Cri. L.J. 278 (Cal.): The court held that section 301(2) of the CrPC says that the lawyer engaged by the private person can submit written arguments. It does not mean such a lawyer could also address the court orally.
Section 321: Withdrawal From Prosecution
Abdul Wahab K. vs State of Kerala & Ors., AIR 2018 SC 4265 (Para 8): The Supreme Court stated that it would be improper for the court, keeping in view the scheme of section 321 of the CrPC, to embark upon a detailed enquiry into the facts and evidence of the case or to direct retrial because that would be destructive of the object and intent of this section.
Mohammad Safi vs State of West Bengal, AIR 1966 SC 69: Where the court is not competent to frame a charge in an offence, it shall not be competent to permit withdrawing from prosecution.
L. Choraria vs State of Maharashtra, AIR 1968 SC 938: It is not unconstitutional under this section to withdraw a prosecution and make the accused a witness.
A Public Prosecutor represents the state in whose name the prosecution is conducted. All offences affect the individual injured as well as the public in general. Therefore, in all offences, the state is the prosecutor. Therefore, prosecutions are generally carried out in the name of the state for the commission of an offence, which is treated as an invasion of public peace and is not merely a contention between the complainant and the accused.
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