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Report No. 154

Chapter III

Independent Prosecuting Agency

1. In criminal law prosecution has an important role to play. Our system of administration of criminal justice contemplates fair and effective prosecution of offences. Under the present scheme of the Code of Criminal Procedure, the prosecution machinery has been completely separated from investigating agency and the prosecuting Officers are supposed to be independent from police. Under section 24 of the Code, the public prosecutors of High Courts are appointed by the Central Government or the State Government, as the case may be, on the recommendations of the High Court.

The public prosecutors and additional public prosecutors are appointed in Sessions Courts on the recommendations of the Sessions Judge. Section 24 also provides for appointment of such public prosecutors by the Central Government for the purpose of conducting any case or class of cases. In some States, Directorates of Prosecution have been set up. However, there is a common complaint that required number of prosecuting officers have not been appointed and the prosecutions are not being conducted efficiently and in the manner expected.

2. It has to be borne in mind that the quality of criminal justice is closely linked with the calibre of the prosecution system and many of the acquittals in courts can be ascribed not only to poor investigations but also to poor quality of prosecutions. There is a strong opinion in favour of the autonomy of the public prosecutors and creation of a separate prosecution agency under the control of a Directorate of Prosecution to exercise administrative supervision over the work of a network of public prosecutors at various levels.

The Supreme Court in S.B. Shahane v. State of Maharashtra, AIR 1995 SC 1628, held that the prosecution agency be autonomous having a regular cadre of Prosecuting officers. There is a general complaint that the public prosecutors in lower courts do not prepare cases carefully and that the quality of prosecutions is poor. Therefore, there should be careful selection and appointment of prosecutors who can closely co-ordinate with the investigation. No doubt, they have to closely co-ordinate with the police system since prosecutions are conducted on behalf of the police.

There should not be communication gap between the police and the prosecutors during the investigation stage. The police, however, are of the view that investigation and prosecution form a continuous link process in the administration of justice and, therefore, both should be closely coordinated in order to ensure successful prosecution of criminal cases.

They also stress that total detachment of prosecution department from the police will not only create conflicts between the two but also result in each throwing the responsibility on the other with the result that there will not be any effective control over the maintenance of law and order or prosecution of criminals. The police are firmly of the view that the prosecutors have to constantly advise the police in investigation of grave offences and collection of evidence to sustain the prosecution with success.

3. It is a matter of common knowledge, that a public prosecutor has a dual role to play, namely, as a prosecutor to conduct the trial and as a legal adviser to the police department in-charge of investigation. For some reason or the other, in the present administration, the latter part is not given due weight and a virtual communication gap exists.

The police officers also strongly feel that the concept of autonomy has done considerable harm, not from the point of objectivity but in reducing the scope for securing appropriate legal advice at the investigation stage. While nobody doubts the need for objectivity, it is felt that they should provide legal guidance at the stage of investigation. It is also noticed that some of the mistakes committed by investigating officers could have been avoided, if there had been some mechanism to provide legal guidance and assistance during the course of investigation.

4. The Law Commission in its 14th Report considered this issue. It is noted that a man of integrity should be chosen to be in charge of prosecution and the purpose of a criminal trial being to determine the guilt or innocence of the accused, the duty of a public prosecutor is not to represent any particular party but to act in an objective manner. The Commission also noted that very often there arise complicated cases which require legal assistance even during the stage of investigation.

But the public prosecutor has however, neither the 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. This is anomalous because though he is responsible for the conduct of the prosecution in court, he has no opportunity of controlling or shaping the material on which the case is to be founded and presented before, the court.

The Law Commission, after making an in-depth study about the prosecuting systems obtaining in other countries and also the system in our country, made several suggestions. One firm suggestion was that "the prosecuting agency should be completely separated from the police department. In every district a separate prosecution department may be constituted and placed in charge of an official, who may be called the Director of Public Prosecutions.

The entire prosecution in the district should be under his control. In order to ensure that he is not regarded as the part of the police department, he should be an independent official."1 The Commission, however, concluded that as the head of the entire prosecuting machinery of the district, he should arrange for the prosecution of all cognizable cases through additional public prosecutors and distribute the work among them and should advise the police department and other government departments at the district level on the legal aspects of the case at any stage of criminal proceedings including the stage of investigation.

The Commission also suggested "that the Director of Public Prosecutions should be a full time government servant and should not be allowed the right of private practice."2 The Commission has also given some guidelines for structuring such prosecuting agency at the district level.3

1. Fourteenth Report of the Law Commission, (1958).

2. Ibid.

3. Ibid.

5. The Commission also considered the difficulties arising from the lack of cooperation between the police department and the public prosecutors and observed that the Superintendent of Police as the Head of the Police in the district has a duty to see that the prosecutors are given all the assistance and information they need at the trial.

6. We may also point out that the Law Commission in its 41st Report endorsed the recommendations made in the 14th Report and regretted that the same have not been given serious consideration by the State Governments. Further, it was recommended that "with the abolition of committal proceedings, it will be the responsibility of the public prosecutor to scrutinise the police report or charge-sheet before it is filed and see whether a case, which is exclusively traiable by Court of Sessions, is made out from the evidence.

At this stage, the public prosecutor should have the authority to send the case back for further investigation and to modify the proposed charge whenever he finds it necessary to do so."1 Of course, this will have to be done subject to the constraints of limitation prescribed.

1. Forty-first Report of the Law Commission, para. 18.26, (1969).

7.1. The National Police Commission in its Fourth Report surveyed the development of the prosecution agency and suggested a new set up, namely, that "the post of Assistant Public Prosecutors, Additional Public Prosecutors and Public Prosecutors should be so designed as to provide a regular career structure for the incumbents for the entire state as one unit."1

"The Public Prosecutor in a district should be made responsible for the efficient functioning of the subordinate prosecuting staff in the district and he should have the necessary supervisory control over them for this purpose."2 The Police Commission also recommended that a supervisory structure over the district prosecuting staff should be developed with Deputy Directors of Prosecution at the regional or district level and a Director of Prosecution at the State level.3

1. Fourth Report of the National Police Commission, para. 29.6, (1980).

2. ibid., para. 29.7.

3. Ibid., para. 29.12.

7.2. As regards recruitment, the Police Commission also recommended minimum qualifications for being appointed to these posts and also noted that judicial officers with experience may be appointed. For appointment to the post of Assistant Public Prosecutor Grade II, Assistant Public Prosecutor Grade I. Additional Public Prosecutor, Public prosecutor. Deputy Director of Prosecution. Additional Director of Prosecution and Director of Prosecution, a specified minimum number of years of practice at the Bar or experience as a judicial officer be stipulated.

For the post of Deputy Director of Prosecution, seven years practice at the Bar or seven years experience as a judicial officer of which at least three years should be as a Sessions Judge or three years experience as Additional Public Prosecutor or Public Prosecutor was recommended. For the post of Director of Prosecution and Additional Director of Prosecution, ten years practice at the Bar or ten years experience as a judicial officer of which at least live years should be as a Sessions Judge or three years experience as Deputy Director was recommended.1

1. Fourth Report of the National Police Commission, Para. 29.17.

8. During our workshops, though it was felt that prosecution agency should have autonomy, it was suggested that coordination between investigating agency, namely police and the prosecuting agency is vital for the efficient prosecution of cases at the trial stage. How to achieve this coordination? The National Police Commission recommended that the prosecuting cadres be constituted into a separate legal wing to function under a Director of Prosecution as an integral part of state police. This is not valid as it runs contrary to the law laid down by the Supreme Court in Shahane's case.

9. We also recommend that the Home Departments of the State Governments should prescribe guidelines to achieve the desirable coordination between the Director of Prosecution and the Investigating Agency of the Police for efficient prosecution of cases.

Pursuant to our recommendation that there should be a separate investigation agency for investigation of grave offences, i.e. offences punishable with imprisonment of seven years and above and/or fine, it is further recommended that such investigating agency should work in close coordination with the Directorate of Prosecution at state and district levels. We are of the view that some of the prosecutors may be earmarked at one time for advising the investigating agency.

10. We are of the view that the Directorate of Prosecution shall be structured as suggested by the National Police Commission and accordingly a cadre be created on those lines with necessary modifications as the Home and Justice Departments of the State Governments may deem fit.

11. Clause 3 of the Code of Criminal Procedure (Amendment) Bill, 1994 seeks to insert the following Explanation to section 24(6) after the proviso which shall be deemed to have been inserted with effect from 18th day of December, 1978:

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

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

These changes are sought to be introduced keeping in view the promotional avenues to the members of the regular cadre of prosecuting officers in a state where such cadre exists.

12. We approve of the recommendations of the National Police Commission to establish a Directorate of Investigation and also clause 4 of the Amendment Bill providing for insertion of new section 25A. which reads as under:

"25A(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) 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.

(3) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution.

(4) 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.

(5) 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 suction 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.

(6) 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.

(7) The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor.

We, however, feel that sub-section (4) of new section 25A placing the public prosecutors appointed under section 24(1) to conduct cases in the High Court to be subordinate to the Director of Prosecution need not be there as, in our view, the Public Prosecutors appointed exclusively to conduct cases on the appellate side in the High Court should be differentiated from those prosecuting officers appointed to conduct cases in the lower courts. In this context, we may also point out that the object underlying the establishment of Directorate of Prosecution is to facilitate and expedite the trial work and also to bring about coordination with investigating agency which is very much essential in a criminal trial.

We accordingly suggest the deletion of sub-section (4) of the proposed section 25A.

13. We recommend that the Government while appointing Public Prosecutors and Assistant Public Prosecutors under sections 24 and 25 shall, as far as practicable, appoint sufficient number of woman Public Prosecutors and Assistant Public Prosecutors so that they can effectively deal with cases involving women who are under 18 years of age and in respect of whom offences under sections 354, 376, 376A to 376E (both inclusive) proposed by the National Commission for Women and 509 of the Indian Penal Code.

14. In Sunil Kumar Pal v. Phota Sheikh, (1984) 4 SCC 532 the Public Prosecutor appeared on behalf Of accused persons which lent support to the allegation that the accused were supported by the ruling political party in the State of West Bengal. The Supreme Court held that the trial was vitiated and remanded the case to another Sessions Court for re-trial. With regard to the role played by the Public Prosecutor, the Court observed, "that is inconsistent with the ethics of legal profession and fair play in the administration of justice for the Public Prosecutor to appear on behalf of the accused."

At this stage while considering the observations made by the Supreme Court in the case of Sunil Kumar Pal v. Phota Sheikh, we are also of the view that where there are conflicting interests and where propriety requires that the prosecution in such a case has to be conducted by someone other than a member of the Directorate of Prosecution, such court should have the power, in its discretion, to permit any other person competent to coordinate the prosecution in consultation with the appropriate government, who shall act under section 24(8) expeditiously. The appropriate government should make the appointment in accordance with section 24(8). Section 24(8) be amended accordingly.

15. In the various workshops, views were expressed that though it is the bounden duty of the State to conduct prosecution, as crime is against society, the private complainants or victims of crime or his dependence be also given a role in bringing the offender to justice. The Code of Criminal Procedure in section 301 permit the private counsel to assist the prosecutor and section 302 empowers the Magistrate to permit the prosecution to be conducted by any other person as well.

In Babu v. State of Kerala, 1984 Cr LJ 499 (502) (Ker), the Kerala High Court graphically described the role of Public Prosecutors as follows:

"Public Prosecutors are really Ministers of Justice whose job is none other than assisting the State in the administration of justice. They are not representatives of any party. Their job is to assist the Court by placing before the Court all relevant aspects of the case. They are not there to see the innocent go to the gallows; they are also not there to see the culprits escape the conviction."

These observations were made in a case where a magistrate had refused permission under section 302 of the Criminal Procedure Code to the complainant to engage an advocate to conduct the prosecution. The High Court examined section 301 of the Code under which the advocate engaged by a private person can assist the Prosecutor in the conduct of the prosecution. But under section 302 the magistrate may permit the prosecution itself to be conducted by any aggrieved person or an advocate.

The distinction is that when permission under section 302 is given, the Public Prosecutor virtually disappears from the scene and the private lawyer takes over the prosecution. There is a vast difference between assisting the Public Prosecutor under section 301 and conducting the prosecution on the basis of a permission granted under section 302. The Court pointed out that though the magistrate has a discretion under 302, this discretion be exercised only under exceptional circumstances where he feels that denial of permission will obstruct justice.

16. Section 302 has to be used if necessary, by the magistrate in granting permission to the private complainant where ends of justice require, particularly where he finds that Public Prosecutors are not effectively discharging their duties thereby subverting the process of law and justice. So far as the interest of the complainant in Sessions cases is concerned, section 301 permits a private person to instruct the prosecutor.

To that extent the complainant's interest is being taken care of and such private person need not take the place of public prosecutor. Consequently, no further change is necessary in section 301. As regards section 302 which is applicable only to the trials before the Magistrates, the magistrate has ample discretion to permit the prosecution to be conducted by any person. As observed by the Kerala High Court in Baba's case, in appropriate cases, the Magistrate may exercise that power by permitting the complainant's advocate to conduct the prosecution. So no change is necessary.

17. In view of the recommendations to establish the Directorate of Prosecution, section 25(3) and section 302 to the extent that they enable police officers to conduct prosecution, need to be suitably amended.

The Code of Criminal Procedure, 1973 Back

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