It is well-settled law in our criminal jurisprudence that when a crime is committed against a particular individual, it is believed that it has been committed against society as a whole. So, an obligation lies on the shoulder of the states to provide justice to the person and the concerned section of the society. In this justice delivery mechanism, the person which represents the state is known as a “Public Prosecutor”. He acts as an agent of the state and represents the common interest of the society.
In this article, we will explore the meaning, role and functions of the public prosecutor. Further, we will also look into the types, qualifications and manner of appointment as per the statutory provisions.
Meaning of Public Prosecutor
As the name suggests, the term public prosecutor means a person which represents or advocates the interest of the common public in a court of law. This concept of “Public Prosecutor” is an essential element of the Latin maxim “Audi Alteram Partem” as it ensures that the interest of all the stakeholders is represented before the court.
The statutory definition of Public Prosecutor is given under section 2(u) of the Criminal Procedure Code (CrPC). It states that a person appointed under Section 24 of the CrPC will be known as a public prosecutor.
Section 24 of the Criminal procedure code empowers the central government and the state government to appoint public prosecutors for their respective jurisdictions. The true meaning of public prosecutor was expounded by our hon’ble supreme court in the matter of Babu vs State of Kerala wherein it observed that public prosecutors are the source of justice and their main task is to assist the court in the decision making process while ensuring that the interest of the general public is adequately represented.
Qualification and procedure for appointment of Public prosecutor
As per section 24 of the Criminal Procedure code, mainly 3 types of prosecutors are appointed.
- A prosecutor or additional prosecutors appointment by the central or the state government for a particular High Court
- A prosecutor is appointed by the central government with the sole purpose of conducting any case or any proceedings in a local area.
- A prosecutor appointed by the state government for every district falling under its territorial limit.
The primary qualification for a person who desired to be a public prosecutor is that he must have experience of at least 7 years as a practising advocate in a court of law. However, this threshold is increased to 10 years when the prosecutor is appointed by the central government for a particular case.
Manner of Appointment
For appointing a public prosecutor for a district, firstly a penal shall be constituted comprising the district magistrate and the session judges. This penal after conducting due deliberation will recommend a list of names that in their opinion best suited for this rule. Then, the state government has the sole authority to appoint a public prosecutor from that list.
In a landmark case of Abdul Khader v State Of Kerala, it was stated by the court that he must be appointed within the list of recommendations given to the state government. The district magistrate doesn’t have any power to expel or delete a person’s name from the list without consulting the session judge.
However, there is an exception to this provision. If a regular cadre of prosecuting officers exist in a state, then the state government can appoint the public prosecutor from that cadre.
Type of Prosecutors
There are various types of prosecutors as per their designations. These are as follows –
Public Prosecutor (PP)
The main function of a public prosecutor is to supervise the work conducted by the Additional Public Prosecutor in the High court and the Session Court.
Assistant Public Prosecutor
This provision is provided under Section 25 of the CrPC. His main work lies in examining the charging sheet framed by the agencies and submitting the statement for discharge. The duty to evaluate the evidence is also performed by assistant public prosecutors. They also file revised petitions and conduct criminal proceedings in the Metropolitan Magistrate court.
His primary duty lies in supervising the function performed by the Assistant Public Prosecutor in the Metropolitan Magistrate Court.
These are those prosecutors who assist the chief public prosecutor. Their main function lies in conducting criminal proceedings in the district and the session court.
Director of Prosecution
As per section 25(a) of the CrPC, the state government can appoint a person as “director of the prosecution”. The minimum eligibility for this is that he must be a practising advocate for the last 10 years. He is the head of the operation and the office of public prosecutor is subordinate to him. The main task performed by them is to look after and control all the administrative work involved in the proceedings. Further, he can also look into the accounts department.
Role of a Public Prosecutor
The role of the public prosecutor can be broadly divided into 2 parts namely during the investigation and during the trial.
Public Prosecutor’s Rule During Investigating Process
The investigation is the backbone of a criminal case as all the core evidence is collected and a charge sheet is framed. The evidence collected at this stage became the basis of the outcome of the case. So, during the process of investigation, a PP has the role of –
- For securing the arrest warrant of the accused, he had the role of making an appearance before the court and taking his permission for the same.
- He also needs to take a search warrant from the court, if the case involves conducting an inquiry or search in particular premises.
- He put a petition on behalf of the state to obtain police custody of the accused. The main purpose of this custody is the interrogation of the accused and he is put on remand during this period. Even, In the case of judicial interrogation, he needs to take permission from the court.
- If an offender is non-traceable after making all possible efforts, he initiates a proceeding to declare him as a proclaimed offender.
- Lastly, he also records the evidence or testimony of the accused in the police report pertaining to the availability of prosecution during this process.
Public Prosecutor’s Role During the Time of Trial
During the stage of the trial, he represents the vision of the state and it is generally expected from him to follow all the due process of law including protecting the fundamental rights of the accused. His core functions during this period are as follows –
When the court declares a person guilty of a particular offense, then a particular hearing is undertaken for determining the quantum of punishment. At this stage, both defense counsel and the public prosecutor argue on the period of sentence. Thus, it is the role of the public prosecutor to ensure that an adequate sentence is given to the accused keeping in mind the facts and circumstances of the case.
Conducting a speedy trial
The hon’ble supreme court in the case of Hussainera Khatoon vs State of Bihar held that the right to a speedy trial is a fundamental right of the accused under Article 21 of the constitution. Thus, it is the responsibility of the public prosecutor to ensure the entire case is adjudicated in a timely manner. In other words, it is his duty that all the witnesses present their statement and evidence and the process of cross-examination of witnesses shall be undertaken fairly and expeditiously.
Functions of Public Prosecutor
There are certain functions that he/she needs to perform. These functions are as follows –
Conducting Cooperative Litigation
The main function of a public prosecutor is to unearth or discover the truth. He shall not indulge in an adverse form of litigation but there shall be cooperative litigation wherein he helps the court in reaching the final outcome. For doing this, he needs to ensure that he doesn’t aggravate the facts of the case or deny the examination of a particular witness which may hamper the prosecution case. Thus, he needs to comply with the procedure of a fair trial.
Duty to Complain in Case of Force
The district magistrate or the Superintendent of police can’t put force or exert some pressure on the public prosecutor to withdraw the case. If this happens, then it is the duty of the prosecutor to complain about this incident to the director of the prosecution.
No defense of Accused
The Public prosecutor is a representative of the state and not of the police. Further, he is not a part of any investigating agency. Thus, he should never defend the accused. It will be totally against the concept of administrative justice and also against the basic principle of the legal profession.
Duty to disclose all the material Information
It is the utmost duty of the public prosecutor to put all the evidence before the court. He should not hide the evidence only because of the fact that it may go against the case of the prosecution. The objective of a PP is not to convict the accused but it is to achieve the ends of justice. Thus, the PP should disclose all the material facts to the court.
Assisting Defense Counsel in Adversity
The public prosecutor also performs the function of being an officer of the court. Thus, if the defense counsel faced any issue and he is not in a condition to put forth some material to the judge, then it is the responsibility of the PP to convey this information to the court.
Landmark Cases Related to public Prosecutor
Vineet Narain vs Union of India,
In this case, the hon’ble supreme court held that there shall be no restrictions in relation to the initiation of investigation by the PP.
Jitendra Kumar vs NCT of Delhi.
In this case, it was held that Public prosecutors are the essential instruments of justice delivery mechanism and they act as an agent of the state.
Thakur Ram vs State of Bihar,
In this landmark case, the hon’ble supreme discussed the reason behind the establishment of the office of Public prosecutor. As per the court, this position was started to ensure that the interest of the entire society is represented.
Sandeep Bafna vs State of Maharashtra
In this case, the Supreme Court held that the role of the public prosecutor doesn’t indicate in any sense that he needs to secure the conviction of the accused. He should adopt a fair attitude toward the investigating agencies as well as against the accused.
Radheyshyam vs State of M.P & Ors,
In this case, it was held that a public prosecutor is only appointed when the interest of the general public is put at stake or the administration of justice is required for the welfare of society. There is a distinction between private counsel and the public prosecutor as the latter receives the salary from the funds of the government, thus, he shall fight for the larger interest, not for a person’s individual interest.
Kunja Subidhi and Anr vs Emperor
In this case, the court held that it is the principal duty of the public prosecutor to disclose all the relevant evidence to the court irrespective of the fact whether it will favour the prosecution or the defense counsel. The court has the authority to decide on the same.
The concept of public prosecutor is one of the essential elements of the criminal justice system and almost all countries of the world follow this. A PP acts as an agent of the state that helps the court in the matter of administration of justice. The minimum qualification for being appointed a prosecutor is that he must have a minimum practising experience of 7 years. He shall be honest, impartial and follow all the provisions of law. The principle objective behind his work is achieving the ends of justice in a quick and fair manner.