Office of the Prosecutor and Prosecution of Criminal Cases in India

BASIC ISSUES

Deal Making: The Power of the Plea Bargain
Federal Prosecutors and the power of the Attorney General
Prosecutor and the Dealth Penalty
Prosecutor and the Victims of Crime
Prosecutor of the national agencies
Prosecutor of the State
Prosecutorial Discretion
Prosecutorial Ethnics
Prosecutorial Misconduct: the Abuse of Power and Discretion
Prosecutorial Responsibility
The Power to Charge
Trial Deliberation

KEYWORDS: PROSECUTION DEPARTMENT-PROSECUTION OFFICER-

The main function of the Department of Prosecution is to plead criminal matters/ cases on behalf of State Government in various criminal courts namely Judicial Magistrate, ACJM, CJM and Special Sessions Courts. Malimath Committee recommended establishing a Directorate of Prosecution on State Basis, working under the Department of Home. Again the Principal function of the Director includes the administrative control of the Prosecution machinery and also to give advice whenever required in criminal matters.

Status of Prosecutor
Independence of prosecutor
Prosecution and Bias

CRIMINAL PROSECUTION SYSTEM IN INDIA

PROSECUTION AT CENTRAL LEVEL [COMPLAINT INVESTIGATED BY CENTRAL GOVERNMENT/POLICE]
PROSECUTION AT STATE LEVEL [COMPLAINT INVESTIGATED BY STATE GOVERNMENT/POLICE]
PRIVATE PROSECUTION BY THE COMPLAINANT IN CERTAIN CASES

Investigation and prosecution can be transferred to central level, although there is no centralized prosecution agency is available in India.

Under Code of Criminal Procedure -1973 [Sec 24 to 25A]

24. 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 and may also appoint one or more Additional Public Prosecutor, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.

(2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district, or local area.

(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.

(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutor or Additional Public Prosecutors for the district.

(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by me District Magistrate under sub-section (4).

(6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre:
Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4).
Explanation— For the purposes of this sub-section,—

(a)”regular Cadre of Prosecuting Officers” means a Cadre of Prosecuting Officers which includes therein the post of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post;

(b)”Prosecuting Officer” means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.

(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (I) or sub-section (2) or sub-section (3) or subsection (6), only if he has been in practice as an advocate for not less than seven years.

(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.
Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.

(9) For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.

25. 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.

(1A) The Central Government may appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the Courts of Magistrates.

(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.

Comment :

Duties of the prosecutors:-

Gujurat- Verses -Kishanbhai etc (Criminal Appeal No.1485 of 2008), the direction was given to the Home Department of every State Government to formulate a procedure for taking action against all erring investigating/ Prosecuting Officials.

The Public Prosecutor shall keep close liaison with the District Magistrate and Superintendent of Police of the District and apprise them about developments in every sensitive and important case pending in the various Courts including matters affecting the effectiveness of the system of criminal justice.

PRODUCTION OF WITNESSES AND THEIR EXAMINATION
PRODUCTION OF DOCUMENTARY EVIDENCE AND MATERIAL OBJECT
CUSTODY AND REMAND
PROSECUTOR TO OPPOSE BAIL IN PUBLIC INTEREST
PROSECUTOR MAY MOVE FOR CANCELLATION OF BAIL IN PUBLIC INTEREST
CUSTODY AND DISPOSAL OF PROPERTY
CONDUCT REGULAR CASES BEFORE COURTS
GET PROSECUTION SANCTION-EXAMINATION OF SANCTIONING AUTHORITY AS A WITNESS
PROSECUTION FOR PERJURY
APPEAL AGAINST ACQUITTAL OR LESSER PUNISHMENT
WITHDRAWAL OF CASES
COMPOUNDING OF OFFENCES
PROSECUTOR TO FACILITATE THE VICTIM TO GET COMPENSATION

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-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.

Advocate General

The Advocate General of a State[under UNION OF INDIA] is a Constitutional post and authority duly appointed as per Article 165 of the Constitution of India. The authority and function of Advocate General is specified in the Constitution of India under Article 165 and 177.

Article 165: Advocate General for the State

The Governor of each State shall appoint a person who is qualified to be appointed as a Judge of a High Court to be Advocate General for the State.
It shall be the duty of the Advocate General to give advice to the Government of concerned State upon such legal matters and to perform such other duties of a legal character; as may from time to time be referred or assigned to him by the Governor and to discharge the functions conferred on him by or under this constitution or any other law for the time being in force.
The Advocate General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the governor may determine.

Article 177: Every Minister and the Advocate-General for a State shall have the right to speak-in, and otherwise take part in the proceedings of Legislative Assembly of the State or in case of a State having a Legislative Council; Both Houses, and to speak-in, and otherwise to take part in the proceedings of, any committee of the Legislature of which he may be named a member but shall not; by virtue of this Article, be entitled to vote.

The Hon’ble Supreme Court of India taking into account the above-mentioned Articles has held that:
” 12: The Office of Advocate General is an exalted one. He is the Supreme law officer of the State”
” 18: Under Article 177 he is conferred with the right to audience before the Legislature of a State both in the Assembly and the Council. Infact, he is treated on at par with Minister.”

SUPREME COURT CASES

Joginder Singh Wasu v/s State of Punjab[(1994) SCC 184] The Advocate General and his Law officers are basically engaged to deal with court cases in the High Court by State Government and the relationship between the Government and Law Officers is that of a client and counsel.

State of U.P. & Others v/s U.P. State Law Officers Associations & others[(1994) SCC 204] The Advocate General and his office defends and protects the interest of State Government and gives invaluable legal guidance to the State Government in formulation of its policy and execution of its decisions.