Public Prosecutor

Who is a Public Prosecutor?

A crime is a wrong not only against an individual but also against the State as a whole and therefore the State takes upon itself, at least in case of serious offenses, the responsibility of prosecuting the accused persons and the government then takes upon itself to appoint prosecutors to fight such cases. Those prosecutors appointed by the state are called public prosecutors.

Official Definition of a Public Prosecutor

A public prosecutor is defined as a person appointed under Section 24 of the Criminal Procedure Code ( Section 18 of Bharatiya Nagrik Suraksha Sanhita) and any other person appointed under his/her directions. A public prosecutor is an important officer of the State Government and is appointed by the State. He/She is not a part of the investigating agency. He/she is an independent statutory authority. The government has to ensure that prosecution is conducted in a free and fair manner and that power has been delegated to a public prosecutor who is tasked with presenting fairly and comprehensively the results of the police and helping prevent miscarriage of justice. The role of a prosecutor begins after the process of investigation comes to an end. It is only the prosecutor who can decide the withdrawal of prosecution and not any other executive authority.

The Hon’ble Supreme Court in India stated in Shiv Nandan Paswan v. State of Bihar & Others 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 judgment 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 for it.”

Appointment of prosecutors

Section 24 of the CrPC (section 18 of Bhartiya Nagrik Suraksha Sanhita, 2023) 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, upon application to engage an advocate of their choice to assist the prosecution under Section 301(2) of CrPC read with the proviso to   Section   24(8) of CrPC (Section 338(2) read with the proviso to Section 18(8)of BNSS).

Section 25 (Section 19 of BNSS) talks about the appointment of assistant public prosecutors and a Directorate of prosecution appointed at the state and the central levels to oversee the prosecution of criminal cases. In case of assistant public prosecutors, the individual must practice as an advocate for at least three years and sit for the Assistant Public Prosecutor examination conducted by various State Public Service Commissions. It also incorporates rights to information and participatory rights for victims at various stages of criminal procedures. Victims are allowed to engage an advocate to assist the prosecution, indicating a crucial role for legal representation in safeguarding victims' interests.

The BNSS expands the victim's right to information, such as providing a copy of the FIR free of cost and keeping the victim informed of the investigation's progress. Clauses 193(3) and 230 of the BNSS offer victims crucial rights to information about their case but require them to be represented by an advocate to access these rights. Despite the emphasis on legal representation for victims, challenges arise, particularly for socio-economically disadvantaged victims who may struggle to afford legal aid.

The prosecution can also withdraw from the case under Section 321 of the Code of Criminal Procedure, 1973. Cl.360 BNSS largely mirrors s.321 CrPC, with the addition of one important proviso that the victim must be heard before such withdrawal is allowed. This is a significant recognition of the victim as a stakeholder in the criminal trial.

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 (BNSS), which allows for the appointment of Special Public Prosecutors (SPP) for specific cases or case categories. Section 20 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empowers the State Government to establish a Directorate of Prosecution, comprising a Director of Prosecution and Deputy Directors of Prosecution, thereby formalizing a structured framework to oversee prosecutorial activities within the state. Additionally, provisions for appointing SPPs are also found in special legislation like the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; Narcotic Drugs and Psychotropic Substances Act, 1985; Prevention of Corruption Act, 1988, and Protection of Children from Sexual Offences (POCSO) Act, 2012.

According to the prevailing practice, in respect of cases initiated on police reports, the prosecution is conducted by the Assistant Public Prosecutor and in cases initiated on a private complaint, the prosecution is either conducted by the complainant himself or by his duly authorized counsel. Subsection (2) of Section 302, CrPC provides that any person can conduct a prosecution personally or by a pleader. In such cases also the State can appoint prosecutors if the cause has public interest. It also incorporates rights to information and participatory rights for victims at various stages of criminal procedures. Victims are allowed to engage an advocate to assist the prosecution, indicating a crucial role for legal representation in safeguarding victims' interests. The BNSS expands the victim's right to information, such as providing a copy of the FIR free of cost and keeping the victim informed of the investigation's progress. Clauses 193(3) and 230 of the BNSS offer victims crucial rights to information about their case but require them to be represented by an advocate to access these rights. Despite the emphasis on legal representation for victims, challenges arise, particularly for socio-economically disadvantaged victims who may struggle to afford legal aid.

197th Law Commission Report

This report was prepared by the Law Commission to reiterate the importance of the public prosecutor being an independent party in a case. The report addresses some of the concerns of the then Prime Minister and proposes amendments to section 24 which in their opinion will result in a more efficient and effective system of appointing public and additional public prosecutors. The report specifically addresses three key matters: (i) the appointment of Public Prosecutors/Additional Public Prosecutors exclusively from the regular Cadre of Prosecuting Officers; (ii) the need for consultation with the Sessions Judge under section 24(4); and (iii) suggestions for additional institutional mechanisms and safeguards to minimize arbitrariness in appointments.

Regarding the appointment procedure, the Commission expresses support for the mandatory requirement in section 24(4) for the District Magistrate to consult the Sessions Judge, because of  some states having dispensed with this consultation procedure. The report emphasizes on the importance of including members of the Bar from the Sessions Court in the appointment process. The key recommendations include the suggestion that Public Prosecutor positions must be filled by members of the Bar from a panel prepared by the District Magistrate in consultation with the Sessions Judge. For Additional Public Prosecutor positions, the report proposes that 50% should be filled by the Bar and the remaining 50% from the Regular Cadre of Prosecuting Officers. It recommends explicit provisions for the Sessions Judge to recommend names of lawyers with substantial experience and good character. Additionally, the report suggests a State Level Committee for assessing the merit and character of Assistant Public Prosecutors, constituting 50% of Additional Public Prosecutor positions. It calls for the establishment of Regular Cadres of Prosecuting Officers by State Governments within six months of the proposed amendment. The report concludes by requesting instructions to transmit the 197th Report to the Home Ministry. The comprehensive recommendations aim to fortify the independence and integrity of the Public Prosecutor appointment process.

Public Prosecutors' Appointment ( R.V. Kelkar's Lectures on Criminal Procedure by Dr. K.N. Chandrasekharan Pillai)

Can a victim appoint his/her own counsel?

The proviso to Section 24(8) of the Code of Criminal Procedure, 1973 allows for victim's counsel to assist the prosecution but emphasizes that this assistance should be secondary and supportive in nature. The term "assist" is crucial, implying that the victim's counsel is not intended to take on a parallel role as a prosecutor but rather to complement the efforts of the public prosecutor. This principle aims to ensure that the victim's interests are represented while preserving the pivotal position of the public prosecutor in conducting the trial. This approach is designed to prevent potential pitfalls, such as a vindictive battle between the victim's counsel and the accused, and to uphold the fairness and integrity of criminal trials while accommodating the realities of overworked public prosecutors. Therefore, while the victim's counsel may play a significant role in assisting the prosecution, the overarching principle is to strike a delicate balance in the criminal justice system.

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 that the government should ensure that the prosecutors remain impartial and independent of any external political influence.

Appearances in Official Databases

Prosecutor Performance Evaluation System

The Public Prosecutor Performance Evaluation System, established by the government of Madhya Pradesh assesses the efficiency of prosecutors at both state and district levels, meticulously analyzes daily activities and monthly performance data. Utilizing a well-defined formula, the system reviews details provided by prosecutors, with reporting officers overseeing the process. A matrix and established rules are employed to generate productivity and performance scores for each prosecutor. Notably, achieving a death sentence earns the highest score of 1,000 points, while life imprisonment garners 500 points, and a three-year conviction results in 300 points. Complementing this, the introduction of the 'e-Prosecution MP' online app enabled superiors to closely monitor prosecutors.

A snapshot of the system in operation

Furthermore, the government proactively invested in training prosecutors to enhance their skills. As a result of these comprehensive efforts, the state witnessed a notable 10% increase in the conviction rate for heinous cases.

Although the training and the superiors keeping a check on the public prosecutors definitely ensures efficiency and effort on part of the public prosecutors, the formula developed to score their performance is not suitable keeping in mind the importance of the prosecutor to act as an independent party in the case. It uses the conviction rate as the primary factor to measure their performance which unnecessarily incentivises the prosecutors to get the courts to sentence the defendant. It might also lead to a counterproductive result where prosecutors try to conceal some important information from the court. The user manual to use the portal can be accessed here: https://eprosecution.mp.gov.in/ADPO/Pages/Prosecutor_Daily_Diary_UM.pdf

Research that engages with public prosecutors

The Role of Public Prosecution in the Criminal Justice System: This is a recommendation report prepared by a Committee of Ministers of the Council of Europe in October 2000 on the Role of Public Prosecution in the Criminal Justice System and the publication lists those recommendations and the explanatory memorandum.

Role of Public Prosecutor as defined by International Guidelines and International & National Jurisprudence: The article explores the role of Public Prosecutors in the Indian criminal justice system, highlighting the controversies and misconceptions surrounding their duties. It emphasizes the conflicting beliefs about the Prosecutor's role held by the police, the accused, and the victim. The paper aims to clarify the responsibilities of Public Prosecutors by analyzing international guidelines, judicial pronouncements, and standards set by organizations like the United Nations and the International Association of Prosecutors. The analysis is divided into five parts: international guidelines, jurisprudence from common law countries, the interpretation by the Indian judiciary, and a conclusion. The paper contends that the role of a Public Prosecutor is not solely to secure convictions but to act as a "minister of justice." It underscores the importance of fairness, impartiality, and cooperation with various entities in the criminal justice system.

Handbook For Public Prosecutors Issues Under The Pocso Act: A Compilation Of Legal Cases And Facts: This handbook serves as a valuable resource for public prosecutors dealing with cases of child sexual abuse. It is specifically tailored to enhance their capacities by addressing key topics related to the investigation and trial processes in instances of sexual violence against children. The content covers not only legal aspects but also emphasizes the rights of the victims as guaranteed by the law. By compiling relevant judgments from the Supreme Court of India and various High Courts, the handbook provides practical insights and guidance for public prosecutors and lawyers representing children. The inclusion of case law, especially related to the Protection of Children from Sexual Offences (POCSO) Act, encourages a focused and child-sensitive approach in handling cases. The handbook's updates reflect the evolving legal landscape, ensuring that public prosecutors have access to the latest developments in the law concerning child sexual abuse. In summary, this handbook serves as a comprehensive tool for public prosecutors, offering them the knowledge and resources needed to navigate and address the complexities of child sexual abuse cases effectively.

Rewards for Good Behavior: Influencing Prosecutorial Discretion and Conduct with Financial Incentives - The article suggests a way to ensure efficiency in the criminal justice system. It discusses the impact of financial incentives on the prosecutors and the relation between those financial incentives and his/her motivation to secure justice and fairness. The proposed reward system focuses on individual incentives for prosecutors, particularly at the federal level, with the possibility of adaptation to state prosecutors under certain circumstances. The article acknowledges alternative incentive models but favors individual incentives, citing their documented effectiveness in motivating individuals and promoting greater individual responsibility. The article concludes by emphasizing that the proposed incentive system is not solely based on the view of prosecutors as wealth maximizers but rather capitalizes on a prosecutorial culture that values winning, acting as a mechanism to shape preferences for good behavior within the adversarial role of prosecutors in the criminal justice system and ensuring the justice for the victims of grave offenses.  

Public Prosecution - In Need of Reform: This article emphasizes on the need for reform in the prosecution system in India. It highlights the various challenges faced by the prosecutors. Additionally, it also highlights the role of human rights activists and their relationship with prosecutors. It also touches upon how the police system and the prosecution system are supposed to be two different institutions and calls for reforms to enhance the autonomy, integrity, and effectiveness of the prosecution service, considering the pressures from political, communal, and global forces.

Paper by the Sub-Committee of Justice A.M. Khanwilkar on Case Management - Chapter 12 - This paper highlights the importance of public prosecutors and recommends that the successful prosecution of criminal cases by the State hinges on the effectiveness and accessibility of Public Prosecutors. To ensure this, the State should appoint competent Public Prosecutors in sufficient numbers, with a minimum of one assigned to each criminal court. Additionally, the paper advocates for the computerization of the Public Prosecutor's office and its integration with the court's official website/portal for real-time updates on the case's progress.

Prosecutor or Persecutor: Analysis of Madhya Pradesh Government’s Reward System: The article examines the controversial reward system implemented by the government of Madhya Pradesh, using a mobile application named 'M.P. Prosecution' to incentivize prosecutors based on the type of sentences obtained. The paper analyzes this rewarding and evaluation policy, pointing out potential flaws in compromising quality for quantity. It also discusses legal perspectives on the role of public prosecutors, emphasizing fairness, impartiality, and the pursuit of justice. The conclusion suggests a need for a more comprehensive evaluation system that considers factors beyond convictions to ensure a fair and impartial trial.

International Experiences

France

The Indian criminal justice system appears to be more decentralised and accused-friendly compared to the French system. It places greater importance on transparency and the involvement of various stakeholders, while the French system grants more discretion to the prosecutor and emphasises the role of judges. The differences between the systems of the two countries can be attributed to their different law systems i.e. Civil law system and Common law system.

India relies on cooperation between public prosecutors and the police during the investigation phase whereas in France, the prosecutor, who is a judge, can initiate criminal proceedings independently, excluding the involvement of police in the prosecution system during the investigation phase.

In India, the procedure for evidence collection mandates that evidence must be recorded in the presence of the accused, ensuring their active participation in the process. Furthermore, Indian prosecutors bear the responsibility of leading cases before the Sessions Court, outlining charges, and presenting proposed evidence to establish guilt in the court of law.

On the other hand, the French prosecution system follows a different approach. Evidence is collected in a dossier that remains inaccessible to defence lawyers, maintaining strict secrecy during the investigation phase. French prosecutors, acting as judges empowered by the law, have a unique role in seeking both evidence of guilt and innocence but do not lead the case in the same way as their Indian counterparts. This contrast in evidence collection and the role of prosecutors reflects fundamental differences between the two systems.

Philippines

Both India and the Philippines have adversarial legal systems, where the prosecution and defence present their cases before a judge or court. In both countries, the role of the prosecutor is vital in presenting evidence, outlining charges, and ensuring a fair trial. Additionally, both systems recognize the principle of "innocent until proven guilty” and have provisions for bail, protecting the rights and liberty of the accused during the legal process.

While both countries share an adversarial legal system, the specific legal procedures, laws, and codes governing the prosecution process differ significantly. For instance, Indian law is based on the Code of Criminal Procedure (CrPC), while the Philippines follows its own set of rules and codes, including the Revised Rules of Court and relevant laws.

Canada

Prosecutors in Canada, like in the Indian prosecution system, play a crucial part in the Canadian criminal justice system. Prosecutors are required to act impartially, independently, and without bias. They must ensure that all matters that merit prosecution are brought to trial and handled fairly, skillfully, and diligently. Above all else, prosecutors must have honesty and must also use the substantial discretion granted to them in a fair and sincere manner, without taking the political ramifications of their actions into account. They must be advocates, but their job is not to win cases at all costs; rather, it is to provide the court with all relevant and admissible evidence so that it can decide whether the accused is guilty or innocent.

United States

Prosecutors in the United States hold immense authority when it comes to charging individuals with criminal offenses. While law enforcement officers can make arrests based on probable cause, it is ultimately the prosecutor's decision whether to proceed with formal charges. Prosecutors there also have the power to offer plea deals to defendants, allowing them to plead guilty to lesser charges in exchange for reduced sentences or other concessions. This process is a fundamental aspect of the U.S. criminal justice system, and prosecutors' discretion in offering and negotiating these deals can greatly influence case outcomes.

Much of a prosecutor's decision-making, especially in individual cases, occurs behind closed doors and may not be readily transparent to the public.

In the United States, prosecutors are elected. Whereas, the Indian legal system does not involve the election of prosecutors. In India, prosecutors are appointed based on their qualifications and experience, and their roles are not subject to direct elections by the public. Prosecutorial discretion in India operates within the framework of established laws and procedures, with oversight by the judiciary.

Additionally, the United States has a completely separate office for the public prosecutors known as the District Attorney’s Office. It has much more independence than the department of prosecution in India. Under their criminal justice system, the prosecutor has wide latitude in determining when, whom, how, and even whether to prosecute apparent violations of federal criminal law. In India, however, this discretion lies with the judge instead.

United Kingdom

In the United Kingdom, prosecutors operate within the Crown Prosecution Service (CPS) and are referred to as crown prosecutors. The CPS, established in 1985 through the Prosecution of Offences Act, functions independently in England and Wales, distinct from the European system. This autonomous body operates free from any influence by the police or the government, serving as one of the three jurisdictions in the UK overseeing public prosecution to administer justice.

Unlike the other two bodies, the CPS is not reliant on them. Additionally, the UK lacks a penal code and relies on statutes, precedents, and customs as its legal framework. In accordance with these principles, the CPS operates on behalf of the crown, adhering to the guidelines set forth in the Code for Crown Prosecutors. The CPS actively promotes equality and inclusion, managing 14 regional teams that handle cases locally, each led by a Chief Crown Prosecutor.

Furthermore, the CPS is involved in three special divisions: the International Justice and Organised Crime Division, Special Crime and Counter Terrorism Division, and Fraud Division Team. As a judicial agency, it plays a pivotal role in formulating criminal prosecutions throughout the UK.

ICC Court - code of conduct for the office of the prosecutor

The Code of Conduct for the Office of the Prosecutor at the International Criminal Court (ICC) serves as a comprehensive guide, outlining the ethical standards and professional conduct expected of its members. Encompassing various sections, the code is designed to uphold the integrity, independence, and efficacy of the ICC's prosecutorial functions. The chapters lay the foundation by emphasizing the overarching principles that guide the conduct of members, highlighting the importance of professionalism, integrity, and compliance with the law. It delves into the Standards of Conduct, elucidating the general and specific expectations placed on the  members. The Prosecutor and Deputy Prosecutor(s) are tasked with exemplifying impeccable conduct, providing guidance to staff, and fostering a culture aligned with the Office's standards. Members are bound by the Court's Staff Regulations and Rules, including adherence to the Code of Conduct for Staff Members and other relevant administrative instructions. Independence takes center stage in Section 2, emphasizing that the Office acts autonomously as a distinct organ of the Court which is something that is common in all the countries. Members are required to function free from external influences, pressures, or interference. The section articulates specific measures to ensure independence, such as refraining from seeking instructions externally, avoiding conflicts of interest, and reporting attempts to compromise loyalty and independence.

The subsequent sections elucidate the standards for honorable, faithful, conscientious conduct, and impartiality. Members are expected to embody dignity and courtesy in their interactions, extending respect to the Court, colleagues, victims, witnesses, and counsel. Faithful conduct underscores loyalty to the Court's principles, while conscientious conduct emphasizes diligence in pursuing the goals established by the Office.

The Code also delves into confidentiality, specifying the highest standards to be maintained. Members must uphold confidentiality in all aspects of their duties, reporting breaches promptly. Public expression and association are regulated to ensure compatibility with the office, avoiding statements that could detract from the role of the Office and the Court. Further, the Code outlines specific duties, emphasizing truth-seeking, effective investigation, and disclosure. Members must investigate incriminating and exonerating circumstances with equal diligence, ensuring a fair trial. Effective investigation and prosecution standards mandate competence, diligence, and respect for the rights of persons under investigation or accused.

It also discusses working relations, stressing equal treatment, non-discrimination, and non-harassment. Members are expected to engage courteously and respectfully with colleagues, other Court organs, victims, witnesses, and counsel. Clear guidelines are provided for interactions with persons under investigation, accused persons, and conduct in court. Meanwhile, the code addresses discipline, outlining offenses against the administration of justice. Prohibiting conduct detrimental to justice, members are mandated to cooperate with investigations. The code underscores disciplinary measures for unsatisfactory conduct, reinforcing the commitment to upholding ethical standards within the Office.