Prosecution

What is prosecution?

The act of commencing proceedings against a person accused of committing a criminal offence is termed as prosecution.^[1] There are different ways in which prosecution against a person can be initiated. It can either be initiated by the state in a suo moto action or an individual can lodge a complaint which would eventually lead to the initiation of the proceedings. Once it is initiated, it is the duty and responsibility of the state to conduct the proceedings related to the prosecution in a free and fair manner.

The person who represents the State (or the victim), is termed as a public prosecutor because a criminal offence is considered a wrongdoing not only against the victim but also against society as a whole. Criminal cases are always referred to as "State vs the accused" since they are seen as offences committed against the society as a whole. Public prosecutors serve as ministers of justice, and their primary role is to assist the State in serving justice. Their duty is to aid the Court by presenting all relevant aspects of the case. ^[2]

The proceedings for the prosecution commences once the police have concluded their investigation and filed the charge sheet. At this stage, the public prosecutor represents the State's interests and conducts the prosecution on its behalf.

Official Definition of Prosecution

Code of Criminal Procedure (CrPC)

Code of criminal procedure, 1973 does not explicitly define the term ‘prosecution’ but it does refer to the procedures related to the initiation of the proceedings of the prosecution. As stated earlier, prosecution proceedings can only be initiated for offences against the state. The CrPC talks about the procedure for initiating proceedings against almost all the offences committed against the state. For example, prosecution proceedings can be initiated for defamation under section 199 and for offences against marriage under section 198. The statute also talks about the procedure for introducing evidence for the proceeding and some other general requirements.

Section 24 of the CrPC deals with the appointment of public prosecutors and additional prosecutors. The Central Government or State Government, in consultation with the High Court, appoints prosecutors for the high court, and the central government can also appoint public prosecutors for specific cases or classes of cases in any district or local area. For each district, the state government appoints a prosecutor and may also appoint additional public prosecutors. The District Magistrate (in consultation with the Sessions Judge) prepares a panel of suitable names for appointment for the district. The appointment must be made from this panel, except in cases where a regular cadre of prosecuting officers exists. In that case, the appointment is to be made from within the cadre. To be eligible for these appointments, a person must have practised as an advocate for at least seven years. For specific cases, a person with at least ten years of practice as an advocate may be appointed as a special public prosecutor, and the victim may be allowed to engage an advocate of their choice to assist the prosecution. Section 25 talks about appointment of assistant public prosecutors and a Directorate of prosecution appointed at the state and the central levels for overseeing the prosecution of criminal cases. The prosecution can also withdraw from the case under Section 321.

The Directorate of Prosecution (DoP) typically oversees the department of prosecution at the state level, supervising various prosecution agencies at the Sessions and Assistant Sessions level, excluding the High Court level. The Public Prosecutor is responsible for overseeing the work of Additional Public Prosecutors in the Sessions Courts, while Chief Prosecutors supervise Assistant Public Prosecutors in the Court of Metropolitan Magistrates. At this level, the Assistant Public Prosecutor reviews charge sheets and submits discharge or acquittal recommendations. However, there may be slight variations in this structure across different states due to Section 25(8) of the CrPC, which allows for the appointment of Special Public Prosecutors (SPP) for specific cases or case categories. Additionally, provisions for appointing SPPs are also found in special legislation like the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.^[3]

The Indian Evidence Act, 1872, primarily deals with the rules governing the admissibility, relevance, and weight of evidence in court proceedings.

In addition to these provisions, a lot of other acts deal with the procedure for initiating proceedings against the offences the act deals with. Some of them include the NDPS Act, Prevention of Corruption Act, 1988 and the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

The case of Saurav Kalia v. State of Punjab and Anr^[4] discusses what prosecution means and also states the difference between the stage of investigation and prosecution.

Role and Functions of a Prosecutor

A prosecutor is one of the pillars of the Criminal Justice System which consists of the police, prosecution, courts and correctional administration. It is imperative that all the components of this system work together to help maintain law and order.

A prosecutor helps in defending the interests of the state and ensures fairness in the conduct of the prosecution. It is the primary responsibility of the prosecutor to assist the court in ascertaining the truth. Avory J. stated in R v. Banks^[5] that the government should ensure that the prosecutors remain impartial and independent of any external political influence.^[6] It is only the prosecutor who can decide the withdrawal of prosecution and not any other executive authority.^[7]

The Hon’ble Supreme Court in India stated in Shiv Nandan Paswan v. State of Bihar & Others^[8] that the role and functions of a prosecutor are as follows:

“a) That the Prosecution of an offender is the duty of the executive which is carried out through the institution of the Prosecutor.

b) That the withdrawal from prosecution is an executive function of the Prosecutor.

c) That the discretion to withdraw from prosecution is that of the Prosecutor and that of none else and he cannot surrender this discretion to anyone.

d) That the Government may suggest to the Prosecutor to withdraw a case, but it cannot compel him and ultimately the discretion and judgement of the Public Prosecutor would prevail.

e) That the Prosecutor may withdraw from prosecution not only on the ground of paucity of evidence but also on other relevant grounds to further the broad ends of public justice, public order and peace.

f) That the Prosecutor is an officer of the Court and is responsible to it.”^[9]

Appearance in Official Databases

Official e-Prosecution website created by the Ministry of Home Affairs^[10]

This official website has been created by the Ministry of Home Affairs as a part of the Interoperable Criminal Justice System (ICJS) that links and enables the transfer of data among different pillars of the criminal justice system that is the police (through CCTNS), e-Forensics, e-Courts, e-Prosecution, and e-Prisons.^[11] The portal is accessible by all the prosecution users from all state departments and the police users having ICJS credentials.^[12] The main portal also connects the users to specific portals of different states and union territories. Physical files of cases can be entered in the portal by the police through manual case entry option and it can be accessed by other users and the cases can be submitted to the desired prosecution office for legal opinion and scrutiny of the draft charge sheet.^[13] The Ministry of Home Affairs’ (MHA) recently added a new feature in the portal that will also fix accountability of government lawyers. The system will send alerts to senior officers whenever a public prosecutor seeks a stay in a criminal case more than twice, a senior government official said.^[14] The following states have their prosecution portals linked to this main e-prosecution portal:

Chandigarh^[15]
Chhattisgarh^[16]
Himachal Pradesh^[17]
Jammu and Kashmir^[18]
Jharkhand^[19]
Madhya Pradesh^[20]
Meghalaya^[21]
Odisha^[22]
Rajasthan^[23]
Telangana^[24]
Tripura^[25]
Uttar Pradesh^[26]
West Bengal^[27]

Additionally, department of prosecution of Karnataka,^[28]Delhi,^[29]Haryana,^[30]Kerala,^[31] Maharashtra,^[32] Goa,^[33] and Punjab^[34] have their own websites.

National Crime Records Bureau (NCRB) Official website

The NCRB serves as a central hub for crime and other related information, helping investigators to reach the culprits. It takes on a lot of tasks, including coordinating and disseminating data on criminals. It has its own official website and the Crime and Criminal Tracking Network & Systems (CCTNS) is a significant part of its activities.^[35] The website^[36] also provides data on prosecution. For eg. One of its reports provided data on seizures and prosecution in India in particular year.

Research that engages with prosecution

Public Prosecution in India:^[37] This research paper starts with a brief comparison of laws encompassing public prosecution in common law countries with the laws in continental countries. Regardless of the difference in laws, the importance accorded to a public prosecutor remains the same. The paper also discusses different laws prevalent in India in the Criminal Procedural Code and how time and again, Indian courts have reiterated the roles and functions of public prosecutors. Finally, it gives an account of some of the challenges faced by the public prosecution system in India, one of them being political influence due to affiliation with the ruling party.

The Role and Function of Prosecution in Criminal Justice:^[38] This paper again discusses the public prosecution laws prevalent in India. It also discusses the laws related to initiation of investigation and how the police and the Magistrate works in tandem. It also gives some statistics on the conviction rates of different states and the no. of pending cases while discussing the efficacy of the criminal justice system in India.

Quest For Prosecutorial Independence, Vidhi, Centre for Legal Policy:^[39] The paper discusses the often overlooked and understudied role of the prosecutor's office in India. It provides some instances of improper functioning and political appointments within the prosecutor's office, drawing attention to cases like Zahira Habibulla H. Sheikh And Another v. State Of Gujarat And Others^[40] (also known as the Best Bakery case). The paper also lays emphasis on the complexity of laws and practices governing prosecutors' roles, with differences between states in terms of administration and responsibilities. The paper tries to address the need for a comprehensive inquiry into the functioning of prosecutors and explores themes such as the evolution of prosecution law in India, the appointment and functioning of prosecutors, their discretion during different stages of criminal trials, and the relationship between prosecutors and the executive. The paper uses judicial decisions and empirical data to analyse executive interference and assess the independence of the prosecutor's office, ultimately connecting the independence of the prosecution with the effectiveness of the criminal justice system.

[1] ttps://www.law.cornell.edu/wex/prosecution

[2] ttp://www.dppodisha.nic.in/?q=node/18

[3] ttps://eprosecution.gov.in/eprosecution/about-prosecution.jsp

[4] 2019 SCC ONLINE P&H 4333

[5] (1916) 2 KB 621

[6] Law Commission of India, 197th Report on Public Prosecutor's Appointments, (July, 2006)

[7] Subhash Chander v. State, AIR 1980 SC 434

[8] AIR 1983 SC 1994

[9] ttps://indraprasthalawreview.in/wp-content/uploads/2021/09/GGSIPU_USLLS_ILR_2020_V1-I2-010-Dr_Mudasir_Bhat_Dr_Mehraj_Ud_Din_Mir-1.pdf

[10] ttps://eprosecution.gov.in/eprosecution/

[11] ttps://www.insightsonindia.com/2023/04/15/e-prosecution-portal/

[12] ttps://eprosecution.gov.in/eprosecution/faq.jsp

[13] ttps://eprosecution.gov.in/eprosecution/faq.jsp

[14] ttps://www.thehindu.com/news/national/home-ministry-develops-online-module-for-timely-disposal-of-criminal-cases/article66737728.ece

[15] ttps://chandigarh.gov.in/dept_law.htm

[16] ttp://cgprosecution.gov.in/

[17] ttps://himachal.nic.in/index.php?lang=1&dpt_id=173

[18] ttps://jkhome.nic.in/Prosecution.html

[19] ttps://www.jharkhand.gov.in/PDepartment?department=62cc46459284fd62c0ad61eb117f1645

[20] ttps://www.eprosecution.mp.gov.in/

[21] ttp://meglaw.gov.in/

[22] ttp://www.dppodisha.nic.in/

[23] ttps://home.rajasthan.gov.in/prosecution/#

[24] ttps://www.telangana.gov.in/Departments/Law

[25] ttps://law.tripura.gov.in/

[26] ttps://www.upprosecution.com/

[27] ttps://wb.gov.in/departments-details.aspx?id=D170911193153844&page=Law

[28] ttps://dop.karnataka.gov.in/english

[29] ttps://prosecution.delhi.gov.in/

[30] ttps://prosecutionhry.gov.in/

[31] ttps://prosecution.kerala.gov.in/

[32] ttps://dop.maharashtra.gov.in/home

[33] ttps://www.goa.gov.in/department/prosecution/

[34] ttps://punjab.gov.in/government/departments/department-prosecution-and-litigation/

[35] ttps://ncrb.gov.in/en/origin-ncrb

[36] ttps://ncrb.gov.in/en

[37] ttp://14.139.60.116:8080/jspui/handle/123456789/12827

[38] ttps://www.unafei.or.jp/publications/pdf/RS_No53/No53_21PA_Sharma.pdf

[39] ttps://vidhilegalpolicy.in/wp-content/uploads/2022/02/220208_Quest-for-Prosecutorial-Independence.pdf

[40] 2004 SCC 4 158

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