The criminal justice system has four important components in India, namely, the investigation agency (police), the judiciary, the prosecution wing and the prison and correctional services. This article mainly focuses on the prosecution wing, its role and functions in the criminal justice system.
A Public Prosecutor is the one who conducts criminal proceedings in the system of justice. A Public Prosecutor is a law officer appointed on behalf of the state. The word “Public” itself states that he is a representative of a state and is appointed in the interest of the common person in an established criminal justice system in India. He is an agent of the state, appointed in criminal proceedings.
The existence of a Public Prosecutor as an agent is governed under Section 24 of Criminal Procedure Code in India. Accordingly, Section 2(u) of the Criminal Procedure Code states that a Public Prosecutor is any person appointed under section 24, of the code, and includes any person acting under the directions of the Public Prosecutor.
A Public Prosecutor assists to the basic principle of natural justice i.e Audi Alteram Partem which means no person should be left unheard. Therefore, a Public Prosecutor is not just a representative body of the state, but at the same time, it is also a representative of a constitutional body functioning in a criminal justice system and securing fundamental rights of each individual guaranteed under Article 14-21 of the Constitution of India.
Therefore, the appointment of prosecutor is a compelling constitutional necessity, the court cannot stop or stay criminal trial by refusing to appoint a prosecutor on the ground of financial constraint. The court has observed that public prosecutors are ministers of justice who are duly bound to assist the judge in the administration of justice.
Who can be appointed as a public prosecutor?
As mentioned above, the existence of a public prosecutor is governed by Section 24 of the Code of Criminal Procedure, the said Section also mentions who can be appointed as a public prosecutor.
Any person who has been in practice as an advocate for not less than 7 years, shall be eligible for being appointed as a public prosecutor or additional public prosecutor of a high court.
Who appoints a public prosecutor?
According to Section 24 of Code of Criminal Procedure, the appointment of the public prosecutor or additional public prosecutor in a high court is made by the central government or state government in consultation with the high court. The Supreme Court in case of State of Uttar Pradesh vs. Johri Mal, held that the appointment of a public prosecutor is governed solely by criminal procedure code or executive instructions framed by the state, governing the terms of their appointment.
Therefore, the appointment of public prosecutor for a sessions court is made by the central or state government after consultation from the district magistrate. In this procedure of appointment, the district magistrate in consultation with a sessions judge prepares a panel of names of persons, who are eligible to be appointed as a public prosecutor or additional public prosecutor. Unless and until its name appears on the panel prepared by the district magistrate, he/she cannot be appointed as a public prosecutor or additional public prosecutor. But in case if there is an existing regular cadre, which means a core group of prosecuting officers, the state government shall appoint a public prosecutor or additional public prosecutor only among the persons from such cadre. And if no suitable person is available in the cadre then the appointment should be done from the panel of names prepared by the district magistrate. It is to be noted that the name of the single person won’t be considered as a panel for the purpose of section 24(4) of the code as held in V.Ramachandra v M.C. Jagadhri 1986 Cr LJ 1820 AP
Abdul Khader v State Of Kerala it was held that, District Magistrate has no power to delete a person recommended by Sessions Judge from the panel or he cannot add a person with the consultation of Sessions Judge. The appointment of Public Prosecutor must be in consultation with the Sessions Judge only. Section 24(5) states that if the name of the advocate is not listed in the panel, then he could not be appointed as a Public Prosecutor or Additional Public Prosecutor.
Who is a Special Public Prosecutor?
Under Section 24(8), of the code, special public prosecutors are appointed. They deal with special cases registered under the special laws. To be appointed as a special public prosecutor, he/she must have 10 years of experience as an advocate in sessions court. The court of India has recognised appointing a special public prosecutor at the instance of aggrieved persons in criminal cases.
Who is an Assistant Public Prosecutor?
According to Section 25, of the code, the assistant public prosecutors are the prosecutors in the courts of magistrates. Their jurisdiction is limited to Judicial Magistrate First Class, Judicial Magistrate Second Class, Metropolitan Magistrate Courts and the Chief Judicial Magistrate Courts. Any person having knowledge of law other than a police officer is appointed through competitive examination through its respective State Public Service Commission. The role of the assistant public prosecutor is to assist the public prosecutor and when the public prosecutor is not available then the assistant public prosecutor will be taken over.
Functions Of Public Prosecutor
Public prosecutor or the prosecution wing is an important component of the Criminal justice system. Public prosecutor ensures fair play while prosecuting. The appointment of a public prosecutor ensures that the society or the people of the society are not deprived of their rights which even includes the rights of the accused person. The functions of public prosecutor differ from their designation.
1) Public prosecutor functions as a presenter of the state before the court.
A public prosecutor is appointed by the state and conducts the prosecution on behalf of the state. His/her function is to ensure that the case is clearly presented before the court. Here we can say he acts as the narrator of the incident before the court. He is expected to present a truthful picture of the case before the court. He is not overwhelmingly concerned about the outcome of the trial; he is just there to function as a court officer and ensure that justice is being fairly done. For presenting a case he need not provide Vakalatnama as being the officer of a judiciary as per section 301, Code of Criminal Procedure.
2) Public prosecutor functions impartial and neutral
Public prosecutor functions on the principle or rule of fairness. Even though he appears on the side of the state or for benefit of the victim. While functioning on behalf of the state his duty is to see that the accused person’s right is not violated. He must function on fair basis on both sides. The Public Prosecutor functions as the truth rivalry authority whose only concern is to open up the true incident based on the investigation, evidence and witnesses available at his hand. Therefore, it is his neutral nature for what he is appointed at.
3) Public prosecutor as a judicial officer
Public prosecutor is though an executive officer but is duty bound to assist the court. It supervises the function exercised by the additional public prosecutor in the sessions court and high court. As well the functions exercised by the assistant public prosecutor in Metropolitan Magistrate court. The public prosecutor functions as an advisory body of the investigation agencies. The assistant public prosecutor in that place examines the charge sheet prepared by the agencies and submits acquittal or discharge. He equates the evidence and can file a revision petition if necessary.
Role Of A Public Prosecutor
To know a public prosecutor’s importance in the judiciary we need to know about the roles that a public prosecutor plays in the justice system.
Padmashri N.R Madhava Menon in his article, “Strengthening The Prosecution” had quoted the objective of the prosecution proceeding. Where he states that, ‘the prosecution proceeding’s object is to protect the innocent and seek conviction of guilty. Prosecutor is motivated neither by any sense of revenge nor commitment to get a conviction. Therefore, the public prosecutor’s basic role is to place all evidences before the court, irrespective of whether it goes against or is likely to help the accused’
1) Role of public prosecutor during investigation
Role of the public prosecutor is seen in an investigation process as well as during a judicial trial. Normally, after the investigation agency i.e police present the case in a form of a charge-sheet in the court, the role of public prosecutor begins. Once the charge-sheet is filed or presented before the court, he appears in the court and obtains the arrest warrant against the accused person.
When a public prosecutor appears before the court he represents the state and not the investigating officer or an agency in a criminal proceeding.The investigation agency can take the opinion of the public prosecutor during filing of a charge sheet. It is done to improve the transparency of the investigation. Public prosecutors, however, can just give an opinion in that regard. Whether to accept that opinion or not is at the discretion of a police or investigation agency. But in case if there are differences of opinion regarding it, the decision of higher authority of the investigation agency i.e the Superintendent of police will be final. Therefore it is not obligatory to seek the opinion of the public prosecutor. For the purpose of further investigation, public prosecutors can also obtain from the court the police custody or remand of the accused for interrogation of such accused. Therefore, we can say that the role of the public prosecutor at an investigation stage is just advisory.
2) Role of public prosecutor during trial
The actual role of Public Prosecutor in judicial trials begins after the investigation is done by the agency (i.e the police). He represents the state because it is considered that when a crime takes place in a society it is not just the victim who is affected, the entire society, state in fact get affected by such conduct in various ways. Therefore, the public prosecutor acts impartially while examining the facts and witnesses. When he appears before the court with criminal matters his role is to open up the case entirely before the court. He is not entitled to change the case in the course of giving evidence. He must give the full list of evidence whom he wants to examine during the trial.
a) While examining the witnesses
The Public Prosecutor has an independent say in the matter of criminal trial while examining the witnesses. He can choose any witnesses from the list and it is unquestionable. It is he who decides which witnesses to be called up for examination and which witnesses are to be just sidelined from the matter and therefore this is the reason why the public prosecutor is considered to be master of the roster of the witnesses.
b) While arguing the matter
After the examination of witnesses, the argument on the matter begins. When we state his argument skills during the trial, he can only argue based on the evidence before the court as he stands on his own feet and does not take advantage of weaknesses of the defence side. 
c) While deciding the quantum of punishment to the accused/sentencing
When the matter is on deciding the measure or quantum of punishment the public prosecutor argues based on the facts, circumstances and the nature of the offence committed by the accused. His role here is to ensure maximum accountancy of the punishment to the offender.
d) While withdrawal from prosecution
The public prosecutor is authorised under the Code of Criminal Procedure to withdraw the case from a trial only on the instructions received from the government and in pursuant of those instructions he withdraws the case from the trial.
e) While ensuring speedy trial
As the concept of speedy trial is incorporated in the Indian constitution, the public prosecutor being a court officer plays a significant role in ensuring speedy trial. For that, he examines all the witnesses thoroughly and makes sure that none of them are missed out.
3) Judicial verdict as to the role and functions of a public prosecutor
The important role of a Public prosecutor in consideration of his overall role in prosecuting a case is to ensure that justice is being done. It is his primary role in that context. There are cases where the public prosecutor failed with his primary duty to carry out justice and involved with defence counsel. One of the famous case favouring this statement is of Best Bakery case in this case the public prosecutor opposed the arrest warrant against the accused who had not appeared before the court and the Supreme Court had transferred the case from Gujarat to Maharashtra in that consequences and for the first time the affected people were given right to appoint the public prosecutor to prosecute the case. Here the supreme court stated that the public prosecutor acted more as a defence rather than focusing on presenting the truth before the case which is his primary role.
While establishing his role in the proceeding he must not hurry up or must not aim at the conviction of the accused person, he must be fair on the side of investigation authorities as well the accused person until and unless the truth is being established through the evidence available.
To sum with the overall role and functions of the public prosecutor, the Supreme Court of India has defined the same in Shiv Nandan Paswan vs. State of Bihar & Others as under –
a) The Prosecution of an offender is the duty of the executive which is carried out through the institution of the Public Prosecutor.
b) Withdrawal from prosecution is an executive function of the Public Prosecutor.
c) Discretion to withdraw from prosecution is that of the Public Prosecutor and that of none else and he cannot surrender this discretion to anyone.
d) The Government may suggest to the Public Prosecutor to withdraw a case, but it cannot compel him and ultimately the discretion and judgement of the Public Prosecutor would prevail.
e) The Public Prosecutor may withdraw from prosecution not only on the ground of paucity of evidence but also on other relevant grounds in order to further the broad ends of public justice, public order and peace.
f) The Public Prosecutor is an officer of the Court and is responsible to it
Public prosecutor is therefore an important and significantary component of the judiciary system. When the public prosecution functions it functions as an umbrella of the constitution where the fundamental rights of the victim as well as the accused person are protected. It is done as the law of India considers every person innocent until and unless proven guilty and keeping this in mind the prosecutor plays its role and functions in neutrality.
- Aditya vallabh Tripathi vs. state of Madhya Pradesh [2001 Cr.L.J NOC44]
- Babu vs. state of kerala
- 1992 (2) KLT 948
- Jitendra kumar @ajju vs. State (NCT Delhi )
- Padma vs. Emperor[ 30 C.R L.J 993]
- Manu sharma vs. State [ AIR 2010 SC 2352]
- Jose v State of Kerala [ 1984, Cr. L.J.748 ]
- Sheonandan Paswan vs State Of Bihar
- Zahira Habibullah vs State of Gujarat,
- Sandeep Kumar Bafna vs State of Maharashtra & Anr,
- Indian kanoon
- Ratanlal & Dhirajlal – Bare Act
This article has been written by Meghana Prashant Naik, 4th year BA.LLB. student at V.M Salgaocar College of Law, Miramar, Goa.
Note - The information contained in this post is for general information purposes only. We try our level best to avoid any misinformation or abusive content. If you found any of such content on this website, please report us at [email protected]
Interested to publish an article at Law Corner? Click Here to submit your article.