Report No. 14
11. Main defects of Prosecution machinery in India.-
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.
12. Limitations of a Police Prosecutor.-
It must not also be forgotten that a police officer is generally one-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. It is to be remembered that a belief prevails among police officers that their promotion in the department depends upon the number of convictions they are able to obtain as prosecuting officers. Finally, the only control or supervision of the work of these prosecuting officers is that exercised by the departmental officials.
13. Weakness of the system in India.-
The Public Prosecutor in India is almost wholly occupied with the conduct of prosecutions in the Sessions Courts 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.
14. Separation of Prosecuting Agency.-
It has been suggested, and we see great usefulness in the suggestion, that the prosecuting agency should be separated from and made independent of its administrative counter-part, 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.
15. A Director of Public Prosecutions for each District.-
We therefore suggest that as a first step towards improvement, 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 a "Director of Public Prosecutions". The entire prosecution machinery in the District should be under his control. In order to ensure that he is not regarded as a part of the police department, he should be an independent official, directly responsible to the State Government. The departments of the machinery of the criminal justice, namely the investigation department and the prosecuting department should thus be completely separated from each other.
16. His functions.-
The principal functions of the Director of Public Prosecutions should be as follows:-
(1) He should be the Head of the entire prosecuting machinery in the district and exercise administrative control over all the Prosecutors in the sessions courts and in the magisterial courts of the district.
(2) He should arrange for the prosecution of all cognisable cases, through Assistant Public Prosecutors and distribute the work among them. He should himself conduct important prosecutions.
(3) He should receive copies of the first information reports in all cognizable cases and also case diaries and other reports which are at present sent to magistrate's courts and are seldom looked into by them.
(4) Every police charge-sheet, before it is laid in the court, should be scrutinised in his department so that, in case any difficulty or lacuna exists in the prosecution case, it should be possible to remedy it by further investigation on the lines indicated by his department.
(5) He should advise the Police Department, or other Government Departments at the District level, on the legal aspects of a case, at any stage of criminal proceedings, including the stage of investigation. His advice will be particularly helpful in difficult and important cases, like cases involving charges of conspiracy, fraud and forgery, cases based on circumstantial evidence and evidence gathered from account books, especially of firms or corporations.
(6) In important and difficult cases he may, with the approval of the State Government, engage advocates as Special Public Prosecutors to appear in sessions courts or even in magisterial courts on behalf of the State.
(7) Cases in which the police department decides not to initiate prosecutions should similarly be scrutinised by his department.
(8) He should examine all cases of acquittals, or cases where there is a conviction only for a minor offence, the accused having been acquitted of more serious offences. This will enable him to find out the causes of acquittal, and devise methods to avoid miscarriage of justice.
(9) He should encourage the prosecutors to consult him in all cases of difficulty.