Role of Public Prosecutor

Public Prosecutor is defined under Section 2(u) of the Code of Criminal Procedure, 1973 as:

"Public Prosecutor means any person appointed under section 24, and includes any person acting under the directions of a Public Prosecutor".[1]

A criminal wrong is considered a crime against the whole society and not just a wrong against one particular individual (Victim). Therefore, the state is the opposite party (Prosecution) against the person who is accused of committing an offence in question. The counsel for the state in these cases is called Public Prosecutor.

In Thakur Ram v. State of Bihar[2], it was observed by the Hon’ble Apex Court:

“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”

The rationale behind the State undertaking prosecutions appears to be that no private person uses the legal apparatus to wreak private vengeance on anyone.

Types of Public Prosecutors

Public Prosecutors can be categorised as follows:

• Public Prosecutors and Additional Public Prosecutors for High Courts- Section 24(1) specifies that the Public Prosecutor and Additional Public Prosecutor can be appointed by Central and State governments after consultation with the High Court. The eligibility for the public prosecutor and additional public prosecutor is mentioned under Section 24(7) of the Code. According to this section, the person should be a practicing advocate for not less than seven years.

In Thilayil Abdurahiman v. State of Kerala[3], it was observed that the state government may appoint a Director of Public Prosecutions; but he shall be functioning under the Advocate- General of the State.[4]

• Public Prosecutors and Additional Public Prosecutors for District- The eligibility for the public prosecutor or additional public prosecutor for any district is same as that of public prosecutor for High Courts. A person shall be eligible for the post of Public Prosecutor or Additional Public Prosecutor if he has been in practice as an advocate for not less than 7 years.
• Assistant Public Prosecutors- Assistant Public Prosecutors is responsible for carrying out prosecutions in the Magistrate's courts. The appointment of assistant public prosecutor has been specified under Section 25 of the Code of Criminal Procedure, 1973.
• Special Public Prosecutors- Section 24(8) talks about the appointment of Special Public Prosecutors. They deal with the special cases registered under the Special Laws. To be eligible for the post of public prosecutor, 10 years of practise is mandatory. The special laws with which public prosecutors deal with are Narcotic Drugs and Psychotropic Drugs Act, 1985, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1987, etc.

Functions of Public Prosecutor

The role of the public prosecutor is not mentioned anywhere in the Code of Criminal Procedure, 1973. It does not speak of the attitude the prosecutor should adopt while conducting the prosecution. However, many judgments laid down certain functions and rules for the role of public prosecutor. Following are the same:

1. Role of PP as defined under Shiv Nandan Paswan v. State of Bihar & Others[5]

In this case, the appellants challenged the withdrawal from prosecution in a criminal case under Section 321 of the Criminal Procedure Code, 1973. The Supreme Court has defined the role and functions of public prosecutors as follows:

• The prosecution of an offender is the duty of the executive, which is carried out through the institution of the Public Prosecutor.
• Withdrawal from prosecution is an executive function of the Public Prosecutor.
• Discretion to withdraw from prosecution is that of the Public Prosecutor and that of none else, and he cannot surrender this discretion and judgment of the Public Prosecutor would prevail.
• 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.[6]

1. Role at investigation stage[7]

The public prosecutor plays the following role at investigation stage:

• He appears in the court and obtains arrest warrant against the accused;
• He obtains search warrant from the court for searching specific premises or collecting evidence;
• He obtains police custody remand for custodial interrogation of the accused;
• If an accused is not traceable, he initiates proceedings in the court for getting him declared a proclaimed offender and thereafter, for the consideration of his moveable and immovable assets;
• He records his advice in the police file regarding the viability/ advisability of prosecution.

Role in the trial of offences

After the filing of the charge sheet in court, the case is given to Public Prosecutor.

The Public Prosecutor is an officer of the court and is responsible to it. Following points were observed in many significant cases related to trial of offences by Public Prosecutor:

• In Ghirrao v. Emperor[8], it was observed in this case that is the prime duty of public prosecutor to present all the evidence before the court irrespective of the fact that they favor or go against the accused.
• Further, in Anant Wasudeo Chandekar v. King Emperor[9], it was observed that there should not be any "unseemly eagerness" on the part of public prosecutor to secure the conviction of the accused.
• In Mohd. Mumtaz v. Nandini Satpathy[10], it was held that public prosecutor should not be attached to the case in any manner.
• In Sunil Kumar Pal v. Phota Sheikh[11], it was observed that a Public Prosecutor could not appear on behalf of the accused. It is inconsistent with the ethics of the legal profession and fair play in the administration of justice for the Public Prosecutor to appear on behalf of the accused.
• Further, public prosecutor under Section 154 of the Indian Evidence Act, 1872, can cross-examine the witnesses who have turned hostile. Section 321 of Criminal Procedure Code, gives the power to public prosecutor to withdraw from the case with the consent of the court at any time before the judgment is pronounced.

[I am Ritika Sharma, pursuing B.com LLB from UILS, Panjab University, Chandigarh. My fields of interest are Law and Psychology.]

[1] The Code of Criminal Procedure, 1973, s. 22

[2] AIR 1996 SC 911

[3] 1997 Cri LJ 2199 (Ker)

[4] K.N. CHANDRASEKHARAN PILLAI, CRIMINAL PROCEDURE 20 (Eastern Book Company, 6th Edn., 2016)

[5] AIR 1983 SC 1994

[6] Dr, Benny Paul, Criminal Procedure Code (Shree Ram Law House, Chandigarh, 2nd Edn., 2018)

[7] Role of Prosecutor in Indian Criminal Justice System, SHODHGANGA (https://shodhganga.inflibnet.ac.in/bitstream/10603/144597/8/chapter%20iv.pdf

[8] (1933) 34 CriLJ 1009

[9] AIR 1924 Nag 243

[10] (1987) 1 SCC 279

[11] (1984) 4 SCC 533