Report No. 41
Chapter XXXVIII
The Public Prosecutor
38.1. Introductory.-
The appointment and functions of the Public Prosecutor are dealt with in this short Chapter consisting of only 4 sections. The Chapter does not give any indication of the actual organisation of the prosecuting agency in the districts. Under section 492, there could be any number of Public Prosecutors; some appointed by the Central Government, others by the State Government, and yet others by the District Magistrate or, subject to his control, by the Su.-divisional Magistrate. Then under section 495, any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person who may do so personally or by a pleader.
38.2. Existing prosecuting agency in the districts.-
In practice, however, there is 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.
38.3. Section 492.-
In an earlier Chapter,1 we have recommended that in every district a separate prosecution department should be constituted and placed in charge of a Director of Public Prosecutions, or, if this is not considered feasible, of the Public Prosecutor of the district who should be given 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.
Now, section 492 provides for the appointment of several Public Prosecutors in a district all of whom can apparently function at the same time. No qualifications are laid down in the law for a Public Prosecutor and the Government is empowered to appoint any one it likes to be a Public Prosecutor. We think that the Code should provide a better fram.-work for organising the prosecuting agencies in the district in a systematic way, and for this purpose, we propose the following two sections in place of section 492.-
"492. Appointment of Public Prosecutor.- (1) For every district the State Government shall appoint a Public Prosecutor. It may also appoint one or more additional Public Prosecutors for the district.
(2) A person shall only be eligible to be appointed a Public Prosecutor or Additional Public Prosecutor under su.-section (1) if he has been for not less than seven years an advocate and is recommended by a High Court for appointment.2
(3) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, an advocate of not less than ten years' standing as a Special Public Prosecutor.
492A. Appointment of 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.
(2) No polic.-officer shall be eligible to be appointed as Assistant Public Prosecutor under su.-section (1).
(3) Where no Assistant Public Prosecutor appointed under su.-section (1) 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 polic.-officer shall not be so appointe.-
(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."
The Public Prosecutors appointed under section 492 will ordinarily conduct cases on behalf of Government in the Sessions Court, while the Assistant Public Prosecutors appointed under section 492A will be for conducting cases in the Courts of Magistrates. Although it is not expressly provided in the latter section that Assistant Public Prosecutors should be legally qualified, we have no doubt that the present trend of appointing, as far as possible, qualified legal practitioners as Assistant Public Prosecutors or Police Prosecutors or Police Prosecutors will be maintained in all States and the provision made in sub¬section (3) above (corresponding to su.-section (2) of section 492) will be resorted to less and less in future years.
1. See paras. 18.24 and 18.25 above.
2. Cf. Article 233(2) of the Constitution.
38.4. Section 493 amended.-
Section 493 does not require any change of substance, but an express reference to the Assistant Public Prosecutor besides the Public Prosecutor will be necessary. The section may be modified to read as follows.-
"493. Appearance by Public Prosecutors.- (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.
(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public. Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under his direction."
38.5. Section 49.-withdrawal from prosecution only by Public Prosecutor in charge of case.-
Section 494 seems to authorise any Public Prosecutor to withdraw from the prosecution with the consent of the Court. The Supreme Court has held1 that the reasonable interpretation to be placed on this section is that it is only the Public Prosecutor who is in charge of a particular case and is actually conducting the prosecution that can file an application under this section seeking permission to withdraw from the prosecution. If a Public Prosecutor is not in charge of a particular case and is not conducting the prosecution, he will not be entitled to ask for withdrawal from prosecution of that case under section 494.
If any Public Prosecutor who has nothing to do with a particular case is held entitled to file an application under section 494, the result will be anomalous. The contrary view viz., that the section gives an unqualified right to any person who, in law, is a "Public Prosecutor" to file an application for withdrawal from prosecution was, it appears, strongly urged in the case supported by a few decisions of High Courts. That view was negatived by the Supreme Court.
1. State of Punjab v. Surjit Singh, (1967) 2 SCR 347: AIR 1967 SC 1214.
38.6. Previous consent of Central Government provided for in certain cases.-
We have elsewhere referred to a conflict of interests that may possible arise between the Central Government and the State Government in the matter of remitting or commuting sentences.1 A similar conflict of interests can arise under section 494 in respect of withdrawal of prosecutions. A State Public Prosecutor appointed by the State Government can, if he is in charge of the case, withdraw from the prosecution, though the Central Government may be much concerned in the prosecution of the offenders.
This could happen where the offence relates to a matter to which the executive power of the Union extends, or was investigated by the Delhi Special Police Establishment, or involved the misappropriation of destruction of, or damage to, Central Government property, or was committed by a Central Government servant in the course of his official duty.2 We are of the view that in such cases it is desirable that the consent of the Central Government should be obtained before the Public Prosecutor seeks permission of the Court to withdraw from the prosecution. We recommend the insertion of a proviso to that effect in section 494.
1. See para. 29.13 above.
2. Cf. revised section 402B proposed in para. 29.14 above.
38.7. Section 494 revised.-
Section 494 may accordingly be revised to read as follows.-
"494. Withdrawal from prosecution.- (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal.-
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences:
Provided that where such offence
(i) was against any law relating to a matter to which the executive power of the Union extends, or
(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946, or
(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the prosecutor in charge of the case has not been appointed by the Central Government he shall not withdraw from the prosecution without the previous permission of the Central Government."
38.8. Section 495 revised.-
In view of the new section 492A regarding Assistant Public Prosecutors and the changes made in section 494, section 495 may be revised as follows.-
"495. Permission to conduct prosecution.- (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a polic.-officer below the rank of Inspector, but no person, other than the Advocat.-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:
Provided that no polic.-officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so personally or by a pleader."
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