Report No. 14

35. Prosecuting Agency-director of Public Prosecutions

1. The role of Public Prosecutors (Appointment of Public Prosecutor) (His duties and powers).-

A Public Prosecutor is appointed by the State Government under section 492 of the Criminal Procedure Code, generally, or in any case, or for any specified class of cases in any local area. His duties principally consist in conducting prosecutions on behalf of the Government and in appearing on behalf of the State in proceedings like criminal appeals, revisions and other matters in the sessions courts and the High Courts. He is competent to appear and plead before any court in any case that is entrusted to him. He is empowered by law with the consent of the court to withdraw from the prosecution of any person. Though it is no part of his statutory duties, he has also sometimes to advise the Police and other Government departments with regard to prosecution of offenders, if called upon to do so.

2. The role of the public prosecutor.-

The integrity of a person chosen to be in charge of a prosecution does not need to be emphasised. The purpose of a criminal trial being to determine the guilt or innocence of the accused person, the duty of a Public Prosecutor is not to represent any particular party, but the State. The prosecution of accused persons has to be conducted with the utmost fairness. In undertaking the prosecution, the State is not actuated by any motives of revenge but seeks only to protect the community.

There should not therefore be "an unseemly eagerness for, or grasping at a conviction".1 A Public Prosecutor should be personally indifferent to the result of the case. His duty should consist only in placing all the available evidence irrespective of the fact whether it goes against the accused or helps him, before the court, in order to aid the court in discovering the truth. It would thus be seen, that in the machinery of justice, a public prosecutor has to play a very responsible role: the impartiality of his conduct is as vital as the impartiality of the court itself.

1. Mont Wasudeo Chandikar v. King Emperor, AIR 1924 Nag 243 (245).

3. Not subordinate to the Police.-

There was a time when the Public Prosecutor was inclined to regard himself as the right-hand man of the Superintendent of the Police. Occasionally complaints are still heard that some Public Prosecutors function as though they are a part of the police machinery. But we believe that this tendency has now largely disappeared. Fairly senior members of the Bar are now appointed Public Prosecutors and it is unlikely, that they would sacrifice their independence and self-respect and conduct themselves as subordinate of the District Superintendent of Police.

4. Assistance at the stage of investigation.-

In the investigation of important criminal cases, the assistance of the Public Prosecutor is frequently sought by the investigating agency itself. The majority of cases which are of a simple nature are handled by the police without much difficulty. Now and again, however, there arise very important and complicated cases, which require legal assistance even during the stage of investigation. Whether any particular link in the chain of evidence is missing, whether any connected aspect of the matter requires to be investigated in order to fill up a possible lacuna in the prosecution case, whether sanction for the prosecution is necessary and such other matters cause difficulty to the investigating officers during the investigation and before they file a police report.

When such difficulties arise, the Public Prosecutor is generally approached for advice and assistance by police officials. The Public Prosecutor has however no power to interfere in the investigation, nor can he call for the police papers and scrutinise them or otherwise examine the available evidence before a report is actually filed in court. This is somewhat anomalous. Though he is responsible for the conduct of the prosecution in court, he has no opportunity of controlling or shaping the materials on which the case is to be founded and put before the court.

5. Organisation of Prosecuting Agency (In Magistrates Courts).-

Before we proceed to suggest measures for the improvement of the Prosecuting Agency, we may outline the salient features of this organisation in some of the States. There is no uniformity in the prosecuting organisation in India. Generally speaking, prosecution in magisterial courts is in the hands of either the police officials or persons recruited from the Bar and styled "Police Prosecutors" or "Assistant Public Prosecutors". These officers work under the directions of the Police Department. The Public Prosecutor who is entrusted with the prosecution. of trials in sessions courts is under the general control of the District Magistrate.

In the States of Andhra Pradesh and Madras, however, the system of police officers functioning as Prosecutors has been completely given up. Even in the Magistrates' Courts, prosecutions are conducted by a class of officers known as Assistant Public Prosecutors who are recruited from the Bar and are under the control of the District Collector. There exists in Madras a regular cadre of whole-time Assistant Public Prosecutors. In Bombay, these officers, though they are recruited from the Bar, are styled "Police Prosecutors". In the Punjab, the Prosecuting Agency is a part of the Police Department itself and is headed by a Deputy Superintendent of Police in charge of prosecution work in all the Magistrates' Courts.

In Uttar Pradesh, a Prosecuting Inspector is generally appointed either from the Bar or from the Police Department, if he has worked for three years as an investigating officer and has either a degree in Law or holds a certificate of having passed LL.B. (Previous) examination of the Allahabad University. in the subject of the Indian Penal Code, the Criminal Procedure Code and the Evidence Act. In other States, police officers including Head Constables, who need not possess any legal qualification are authorised to conduct prosecutions in the Magistrates Courts. They are called "Prosecuting Inspectors," or "Prosecuting Sub-Inspectors" according to their rank in the Police Department. In Bihar, law graduates are recruited both from the Bar and the Police Establishment for appointment as Assistant District Prosecutors and they are under the control of the Police Department.

6. In Sessions Courts.-

In most of the States, the Public Prosecutors are not whole time employees. In Bombay and Madras, the Public Prosecutors are not whole time Government servants. They are paid monthly retainers and daily fees for the work done. They are also entitled to accept private work subject to certain restrictions. In some of the districts of the Punjab, Public Prosecutors are whole-time Government servants.

7. Prosecution Machinery in England (Director of Public Prosecutions) (His duties).-

In England, there is no centralized prosecuting agency. The Common Law theory is that prosecution of an offender is essentially the concern of the aggrieved party. In contrast with this, in Scotland, the right to institute and carry on criminal proceedings is that of the State. But even in England, the great majority of prosecutions are in fact instituted and conducted by the police. Even where the prosecution is started by a private citizen, it is normally conducted by the police in all cases of serious offences.

In a preliminary enquiry, the prosecution may be conducted by a police officer, but serious offences which cannot be tried summarily are handed over to a Counsel engaged by the Police through a Solicitor. In the case of offences of exceptional gravity, the responsibility of initiating the prosecution lies with an officer known as the "Director of Public Prosecutions." He is an official appointed by the Home Secretary from among barristers or solicitors of ten years' standing. He does not conduct the prosecutions himself, but is generally represented by a Counsel in court. He has his own legal and administrative staff to assist him. The Director's main functions are as follows1:-

1. The Prosecution of Offences Regulation, 1946 and under the Prosecution of Offences Acts. Cited in Archibald Pleading Evidence & Practice in Criminal cases 33rd Edn., pp. 113-114.

(1) He gives advice to police authorities, Government departments, and others;

(2) He prosecutes (a) all offences punishable with death (b) cases referred to him by Government departments, if he thinks there should be a prosecution, and cases which appear to him to be of importance or difficulty or, which for any other reason require his intervention.

(3) The Police must report to him certain offences specified in the Regulations, like offences of murder, manslaughter, rape, sexual offences, sedition, public misChief, bribery and corruption of public servants, fraudulent conversion by a public official, solicitor or trustee, and others. The list of such offences is a long one.

8. In respect of these and certain other specified offences, reports are sent to the Director of Public Prosecutions by the Chief officer of Police from every police district. This enables him to keep a check on the final result of the investigations into these offences. He is also informed of every case in which the prosecution for an offence instituted before examining justices or a court of summary jurisdiction is wholly withdrawn or is not proceeded with within a reasonable time. In such cases if the Director is satisfied that some circumstance, e.g. improper conduct, has arisen in connection with the proposed withdrawal, he can intervene and carry on the prosecution under his statutory powers.

However, the most important duty of the Director is to give advice, whether on his own initiative or when asked, to Government departments, Chief Officers of the Police, and other officers, in any matter relating to a crime which appears to him to be of sufficient gravity. One of his important duties is to advise the investigating agency in important and serious cases. Such advice is particularly sought in matters where technical evidence may be required e.g. of a medico-legal kind, or where questions arise which may require examination by an expert accountant or some scientific expert.

9. Prosecutors in U.S.A.-

In the American Legal System, Prosecutors are generally elected by the people for a fixed term, and appear to enjoy even greater powers than their counter-parts in England. The American Prosecutor has the power to investigate into the case himself. Every Prosecutor has a separate investigating staff attached to his office. The District Prosecutor may disregard the police investigation or he may supplement it with his own. In cases of grave and heinous crimes, where indictment by Grand Jury is not obligatory (that is so in many States), the Prosecutor has the exclusive power to decide, whether to send the accused for trial or not.

Being an elected official, the District Prosecutor is independent of the police and other executive influences and enjoys complete discretion in the matter of initiation and conduct of prosecution. He, therefore, occupied an important position in the machinery of criminal justice. He exercises considerable initiative in the matter of investigation, and his concurrent powers of investigation with the police enable him to exercise an effective check on police investigation.1

1. Meyers The American Legal System, p. 104 and following pages.

10. Can we with advantage introduce in India some useful aspects of the systems that obtain in England and in United States?

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