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Report No. 41

18.21. Existing prosecuting agency in the districts.-

We have now in every district an officer appointed by the State Government who is designated the Public Prosecutor and who, with the assistance of one or more additional Public Prosecutors, conducts all prosecutions on behalf of the Government in the Court of Session. These senior Public Prosecutors are under the general control of the District Magistrate. Prosecution in the magisterial courts is, generally speaking, in the hands of either the police officers or of persons recruited from the bar and styled Police Prosecutors or Assistant Public Prosecutors all of whom work under the directions of the Police Department.

18.22. Defects of the system pointed out in 14th Report.-

In an earlier Report1, the Law Commission analysed the defects of the existing system in the following passage:

"We have pointed out earlier that, in most of the States, the prosecutors in the Magisterial courts are either police officers, who may or may not be legally qualified, or members of the Bar, but they all function as a part of the Police Department. However experienced the specially appointed police officers might be, want of legal knowledge or legal qualifications must affect adversely prosecutions conducted by them. On account of a lack of adequate knowledge of law, and particularly of case law and the law of evidence, such prosecuting officers are not capable of presenting their cases with ability and effectiveness.

As compared with counsel appearing for the accused, who are all legally qualified and trained, their performance is bound to be inadequate. The burden of proving a case is upon the prosecution, and the prosecution ought to be represented by advocates, as able if not abler than the lawyers for the accused. In any case, there can be little dispute about the general principle, now largely accepted, that the prosecutors ought to be legally qualified persons and should be recruited from the Bar.

It must not also be forgotten that a police officer is generally on.-sided in his approach. It is no reflection upon him to say so. The Police Department is charged with the duty of the maintenance of law and order and the responsibility for the prevention and detection of offences. It is naturally anxious to secure convictions. Not infrequently, relevant witnesses are kept back by the prosecution. Intimidation of defence witnesses is also not unusual. These are the results of an excess of zeal by the police officers and a want of a realization of their true function.

But if the purity of judicial administration is to be maintained, such conduct must be sternly checked. We have also been told of police officers of the lower grade in charge of the prosecutions deliberately weakening their cases out of corrupt motives. It is obvious that by the very fact of their being members of the police force and .the nature of the duties they have to discharge in bringing a case to court it is not possible for them to exhibit that degree of detachment which is necessary in a Prosecutor.

The Public Prosecutor is almost wholly occupied with the conduct of prosecutions in the Sessions Court and in appearing for the State in criminal appeals or revisions and like matters. Apart from such advisory functions as he may discharge when requested to do so by the District Magistrate or the District Superintendent of Police, he has no control over the cases before they come to the court. Even in the exercise of the power to withdraw from a prosecution, he is controlled to a large extent by the District Magistrate or the District Superintendent of Police.

On account of the practice that has prevailed for a long time, the Public Prosecutor has come to occupy a subordinate position. Even when he is aware of the defects in the prosecution evidence, he is not in a position to influence the future course of the prosecution. He is rarely consulted at the crucial stages of investigation and has no opportunity of guiding the investigating agency in the matter of gathering relevant evidence.

A large number of complaints never come to court for the reason that the police after investigation report them to be not worth proceeding upon grounds of insufficient evidence or legal difficulties. It is true that in such cases, the complainant can himself directly file a complaint. The propriety of dropping the prosecution in such cases is a matter that is at present examined only by the departmental officials. The Public Prosecutor is unable to interfere in any of these matters, being regarded more or less as a subordinate official under the control of the District Magistrate and the District Superintendent of Police."

1. 14th Report, Vol. II.

18.23. Recommendation to make prosecuting agency independent of police department.-

The Law Commission then suggested1 "that the prosecuting agency should be separated from and made independent of its administrative counterpart, that is the Police Department, and that it should not only be responsible for the conduct of the prosecution in the court but it should also have the liberty of scrutinising the evidence particularly in serious and important cases before the case is actually filed in court.

Such a measure would ensure that the evidence in support of a case is carefully examined by a properly qualified authority before a case is instituted so as to justify the expenditure of public time and money on it. It would also ensure that the investigation is conducted on proper lines, that all the evidence needed for the establishment of the guilt of the accused has been obtained. The actual conduct of the prosecution by such an independent agency will result in a fairer and more impartial approach by the prosecutor to the case."

1. 14th Report, Vol. II.

18.24. Director of public prosecution for each district recommended.-

As a first step towards improvement, the Law Commission proposed1 that in every district a separate prosecution department should be constituted and placed in charge of an official who may be called a "Director of Public Prosecutions", and indicated2 in some detail what his principal functions should be.

1. Ibid.

2. Ibid.

18.25. Public Prosecutor to be of higher status with wider range of functions.-

It is to be regretted that this recommendation has not been given any serious consideration by the State Governments and that there has been little improvement in the calibre of the prosecuting agencies in India and, consequently, in the level of efficiency in the conduct of prosecutions in the more important cases; whether before the Sessions Court or the Courts of Magistrates.

We would therefore repeat the recommendation. Should the reluctance of the State Governments to move in this direction be to the creation of a new office with a high sounding designation, we would suggest that the objective could be achieved by giving the Public Prosecutor of the district a greater authority, a higher status and a wider range of functions than he has at present, and approximating to those envisaged for the Director of Public Prosecutions by the Law Commission in the earlier Report. The;e changes, substantial as they would be, would not require any radical amendment of the Code and could be effected by administrative action of the State Government.

18.26. Responsibility of public prosecutor in polic.-report sessions cases.-

With the abolition of committal proceedings, it will be the responsibility of the Public Prosecutor to scrutinise the police report (or "charg.-sheet" as it is commonly called) before it is submitted to the Magistrate and to see that a case which, according to the police is exclusively triable by a Court of Session, is really so and that there is sufficient evidence to support it. This is said to be the practice even now, at least in important sessions cases, and there should accordingly be no difficulty in enforcing it in all sessions cases. 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.

18.27. Sessions cases to continue to be instituted in Magistrates' Courts.-

Though committal proceedings as such are to be abolished, we propose that the existing system under which Magistrates alone are competent to take cognizance of offences should be continued even in regard to cases triable exclusively by the Court of Session. Later in this Report,1 we are recommending a considerable reduction in the number of offences under the Indian Penal Code which should be within the exclusive jurisdiction of the Sessions Court; but the cases pertaining to such offences need not be instituted directly in that Court. Whether on a police report or otherwise, such cases will, as at present, be instituted in the Court of a competent Magistrate.

1. See para. 47.10 below.

18.28. Magistrate's function in police report cases.-

We have recommended in an earlier Chapter that the duty now cast on the police by section 173(4) to furnish copies of the police report statements of witnesses, and relevant documents to the accused should be shifted to the Magistrate taking cognizance of the offence.1 When a sessions case is instituted before a Magistrate on a police report, he will first see to it that all these copies are furnished to the accused in good time and will also decide that, prima facie, the case is triable exclusively by the Court of Session.

1. See para. 14.21 above.

18.29. Procedure in complaint cases.-

As regards the small number of sessions cases that may be instituted on complaint, it would obviously be convenient if they were also brought before a Magistrate in the first instance; but we do not consider it necessary to retain the elaborate provisions contained in sections 208 to 220 which lay down the procedure for committing such cases to the Court of Session. The object of this procedure is to get all prosecution witnesses examined by the Magistrate in the presence of the accused in order that the accused may have a full idea of the case which is brought against him.

We propose1 that in such cases it will be sufficient if the Magistrate taking cognizance of the offence on complaint holds an inquiry under section 202 and examines the complainant and all his witnesses on oath, but not in the presence of the accused. If on the basis of such sworn statements he finds that there is "sufficient ground for proceeding" he should issue process to the accused a% provided in section 204. He should then grant to the accused copies of the statements of all persons examined by the Magistrate and other material on which the prosecution relies in order that the accused may get adequate information about the charge against him and prepare for his defence.2

The combined effect of these two provisions will be to place a person accused of a grave offence by a private complainant in a somewhat better position than one charged with a similar offence on the basis of a police investigation. In the former case, a preliminary inquiry by a Magistrate into the truth of the complaint is made mandatory and takes the place of an investigation by the police. The accused gets copies of the statements of all prosecution witnesses recorded by the Magistrate in the former case and the statements recorded by the police under section 161(3) in the latter case. With these safeguards which appear to us to be sufficient, we consider that committal proceeding could be dispensed with for complaint cases also.

1. See paras. 16.11 and 16.12 above.

2. See para 17.10 above.

18.30. Procedure for the sessions trial.-

Although there will be no committal proceedings as such, in the sense of a judicial inquiry with the accused present, the Magistrate will, under the proposed scheme, be "committing the case to the Court of Session" whenever it appears that it is triable exclusively by that Court. The steps to be taken by him have been indicated1 at the end of the last Chapter. The procedure for the sessions trial will broadly be the same as for the trial of a warrant case instituted on a police report. The statutory provisions in this respect are set out in a subsequent Chapter;2 but we may mention here the main features of the trial before the Court of Session.

The first hearing will be devoted to a statements of the case by the Public Prosecutor, consideration of the statements of witnesses and other documents on which he propose to reply, framing of the charge against the accused, recording of his plea and other necessary preliminaries. An adjournment will be necessary at this stage in order to secure the attendance of all the prosecution witnesses and also to give the defence time to prepare for their examination in the light of the opening day's proceedings. The second stage will be the recording of the prosecution evidence which could, and should, go on de die in diem, followed by the examination of the accused. Another short adjournment will be necessary at this stage for the defence evidence and conclusion of the trial.

The proposed scheme for the sessions trial does involve two adjournments for 10 or 15 days each which are probably not require.-in theory, at any rat.-under the existing procedure. In practice, however, many sessions trials even now are not concluded at one continuous sitting and adjournments are found to be necessary for one reason or another. The inability of the prosecution to produce all its witnesses on the appointed days is said to be the main cause. Such delays can only be avoided if all concerned in the trial are imbued with a feeling of urgency and a desire for its speedy conclusion.

1. See para. 17.11 above.

2. See para. 23.2 below.

18.31. Omission of Chapter 18 recommended.-

The whole of Chapter 18 of the Code may accordingly be omitted.

Code of Criminal Procedure, 1898 Back

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