Who Is A Public Prosecutor

Section 2 (u) of the Code of Criminal Procedure describes, who is a public prosecutor—

(u)"Public Prosecutor" means any person appointed under section 24, and includes any person acting under the directions of a Public Prosecutor

There are several classes of public prosecutors: (section 24 read with Section 2(u) of Cr.P.C)

Public Prosecutor appointed by the Central Government, and

Public Prosecutor appointed by the State Government, under Sub-s(1)

Public Prosecutor, and

Additional Public Prosecutor, appointed by the State Government under sub-s (2)

Special Public Prosecutor appointed by the Central Government, and

Special Public Prosecutor, appointed by the State Government, under sub-s (6)

The public prosecutor is an important officer of the state government and is appointed by the state government under the provisions of criminal procedure code [1] 

The function of the public prosecutor relates to a public purpose entrusting him with the responsibility of acting only in the interest of administration of justice. In the case of public prosecutors this additional public element flowing from statutory provisions in Cr.P.C., undoubtedly, invest the PP with the attributes of holder of a public office which cannot be whittled down by the ascension that their engagement is purely professional between a client and his lawyer with no public element attaching it [2] 

The appointment og prosecutor is a compelling constitutional/administrative necessity, the court cannot refuse to appoint prosecutor merely on the ground of financial constraint and also stop or stay criminal trial.

The purpose of a criminal trial is not to support, at all costs a theory, but to investigate the offence and to determine the guilt or innocence of the accused, and the duty of a public prosecutor is to represent not the police, but the state and his duty should be discharged by him fairly and fearlessly, and with a full sense of the responsibility that attached to his position.

CASE ONE

Prabhu Dayal v. State 1986 CriLJ 383.

In this case, the appellant, Prabhu Dayal was convicted of an offence punishable under section 302 of IPC. It was alleged that he had burnt his wife, Sarita, at his house.

There were several witnesses who had seen her body, mostly police officers to whom prabhu dayal himself had gone to, to inform about the mishap. Sarita was taken to the hospital, where its record shows that she herself had made a dying declaration accusing the husband of burning her.

Further, Dr. Rohotaswa (P.W. 9) performed the post-mortem on the dead body of Sarita Gupta. Superficial and deep burns were present all over the body. Contusion of 1 cm xl cm size over upper lateral quarter of left breast.

The prosecution case mainly rests on these two facts.

Now, there were two witnesses, that the prosecution had called for were the victim’s father- Dwarka Dass and the elder brother Chander Shekhar. However, when questioned in the court, they vouched in favour of Prabhu Dayal; that the accused was a loving husband and that there was no strain between the couple prior to this incident. Chander Shekhar further confirmed that his sister used to complain of headache and body ache immediately after the birth of her third child-a son; and had become superstitious off late . The Additional Public Prosecutor requested the court to declare the Chander Shekar hostile. The court obliged the Additional Public Prosecutor.

When the time to examine Dwarka Dass had come, the Additional Public Prosecutor made a statement giving up Dwarka Dass as unnecessary.The court held that such an act was purposely done to prevent the two witnesses from offering constructive evidence in favour of the accused.

The court held, that it was not for the additional Public Prosecutor to decide whether Dwarka Dass was or was not a necessary witness. In the circumstances of this case, he should not have withheld Dwarka Dass and should have examined him to present a complete picture, both for and against the accused and left it to the court to judge the truth. The prosecutor has to be fair in the presentation of the prosecution case.

It is a well known fact, that mentally unsound patients sometime assume facts which have no reality and sometimes they form fixed ideas and repeat the same without there being any truth or reality in them. On these findings and the fact that Santa was mentally sick the court held that it would not be safe to rely on the dying declarations without corroboration and hence allowed the appeal.

Therefore, the duty of the public prosecutor is to be fair and present a complete picture; neither in favour of the prosecution or the accused.

CASE TWO

R. Sarala v. T.S. Velu and Ors 2000 CriLJ 2453

Arasu Elango and Selvi were married. Soon after their marriage Selvi committed suicide. Since the time between their wedding and the misfortune was so short that an inquiry under Section 174(3) of the Cr.P.C was held. The Sub-Divisional Magistrate conducted the inquiry and submitted a report holding that she had committed suicide due to mental restlessness and not due to dowry harassment.

However, the police continued with the investigation and submitted a challan against Arasu Elango and his mother for the offences under Section 304B and 498A of the IPC.

Selvi's father - the first respondent herein-was not satisfied as Arasu Elango's sister (the present appellant) and her father were not accused. Hence he moved the High Court of Madras under Section 482 of the Code. And here we come to the main problem of the case- The Learned Single Judge of the High Court directed that that all the papers should be placed before the Public Prosecutor, without any further investigation; so as to obtain an impartial opinion on the matter and thereafter an amended charge-sheet should be filed in the concerned court. This was objected by the counsel for the appellant; who contended that learned HC had erred in directing the investigating officer to submit the amended charge sheet in accordance with the opinion of the Public Prosecutor. Therefore, the question in this case is- should the High Court direct the investigating officer to take opinion of the Public Prosecutor for filing the charge sheet. The court held, that the High Court has committed an illegality in directing the final report to be taken back and to file a fresh report incorporating the opinion of the Public Prosecution; that, such an order cannot stand legal scrutiny and hence the appeal was allowed.

Note that Investigation and prosecution are two different facets in the administration of criminal justice. The role of Public Prosecutor is inside the court, which commences after investigating agency presents the case in the court on culmination of investigation; whereas investigation is outside the court undertaken by the police officer or by any person (other than a Magistrate) who is authorised by a Magistrate under Section 2 (h) of Cr.P.C

The court cannot ask the investigating officer to direct himself according to the opinion of the Public Prosecutor

CASE THREE

Darya Singh and Ors. v. State of Punjab AIR 1965 SC 328

Darya Singh, Rasala and Pehlada, (appellants) along with their brother Ratti Ram were tried under section 302 read with s. 34 of the Indian Penal Code for having committed the murder. Ratti Ram was acquitted. The other three were sentenced to life-imprisonment.

The case has come up to the Supreme Court under Special leave petition under Art. 136 of the constitution. The counsel for the appellant argues that the evidence given by the witnesses examined by the Trial court and the High Court cannot be relied upon since they were related to the victim and shared a common feeling of resentment towards the accused.

The SC said that only if the court observes serious hostility of the witnesses towards the accused, should it taken upon itself to enquire In the present case, where the scene of crime was in fact in front of the house, it is not improbable that the victims relations would not come out to rescue him.

The SC rejected the appellant’s contention that the High Court had erred in accepting the evidence of the three eye-witnesses without corroboration; the cousel for the appellant further stated, that since the alleged murder took place in a densely populated locality it was the duty of the prosecution to examine the residents of the locality and suggested that if the prosecution failed to do so, then the Court should have exercised its power under S.540 of Cr.P.C and summoned them individually; and that, since this had not been done the case being weak, the conviction should be set aside.

It is here that the court discusses the duty of the Public Prosecutor as against the court. It said, that in a murder case, it is primarily the discretion of the prosecutor to decide which of the witnesses are to be examined; and in doing so he is meant to act fairly and honestly by never adopting the device of keeping back from the Court eye-witnesses only because their evidence is like to be contrary to the prosecution case. normally he ought to examine all the eye-witnesses in support of his case; but when the number of such persons be large then it would be open to the prosecutor to make a selection of those witnesses. If at the trial it is shown that persons who had witnessed the incident have been deliberately kept back, the Court may draw an inference against the prosecution and may, in a proper case, regard the failure of the prosecutor to examine the said witnesses as constituting a serious infirmity in the proof of the prosecution case. And only in such cases should the court examine such witnesses (under S.540) as may be deemed by it in the interest of justice, but to say that in every murder case, the Court must scrutinise the list of witnesses the prosecutor examines, is virtually to suggest that the Court should itself take the role of a prosecutor.

SC dismissed the case under art 136 and upheld the decision of HC.

Hence we see, that if required the Court can override the power of the Public Prosecutor, under Section 540 Cr.P.C but taking upon itself to examine the witnesses, if it has sufficient reasons to believe that the Public Prosecutor did not discharge its duty honestly.

CASE FOUR

Thilayil Abdurahiman and Anr. V. State of Kerala and Anr. 1997 CriLJ 3496

The matter has come before the SC, in view of the unresolved question about the competence of the Advocate General to appear for State in a Criminal Appeal, where the Government has specifically authorised him even though there is a Public Prosecutor appointed in terms of Section 24 of the Code of Criminal Procedure.

It was argued by the petitioner that in the case of State of Kerala v. Krishnan 1981 Ker LT 839:(1982 Cri LJ 301, the court on reading S.24 and S.2(u) of Cr.P.C together, concluded that the effect of all the above provisions of the Code is that if the State wants to file an appeal to the High Court from an order of acquittal, that can only be by a Public Prosecutor or a person acting under his direction presenting the appeal to the court. Hence, the counsel for the petitioner argues that the Advocate General by filing a memo of appearance on behalf of the State of Kerala had defaulted. The petitioner argues nothing can override the powers of a Public Prosecutor of the High Court who is appointed as per Section 24(1) of the Code; and that, as long as the Advocate General is not appointed as a Public Prosecutor Under Section 24(1) of the Code he will not become a Public Prosecutor of the High Court.

The SC, held, that as per Article 165(2) of the Constitution it is the duty of the Advocate General to give advice to the Government of the State upon such legal matter and to perform such other duties of a legal character as may from time to time be assigned to him; and that the case cited by the petitioner is related to the power of presentation of the appeals against acquittal and that it has no application in this case, where the appeal is not by the State, but by the accused and the question involved is whether the right of appearance for the State is only of the Public Prosecutor and not of the Advocate General, even if authorised on behalf by the Government.

SC further stated, that keeping in view the pre-eminence of the Advocate General in the hierarchy of law officers and respective functions and duties assigned to them it seems that in a case-where the Advocate General appears for the State arid in a criminal appeal where he has been specifically empowered by the Government to appear, other law officers including the Public Prosecutor have no right to be heard except through him arid under his instructions.

Therefore, it is evident that there are circumstances where the Public Prosecutor cannot be representing the State separately and where he might have to act in subordination to the Adovcate General. However, a PP is still superior in certain matters; as it’s power of presenting an appeal against an order of acquittal under S.378 of Cr.P.C.

CASE FIVE

A. Mohambaram v. M.A. Jayavelu and Ors, 1970 CriLJ 241

This case is related to the appointment of the PP. The State had failed to appoint the person who was nominated by the collector as the PP. Instead, it appointed Respondent No.1 to the said office.

Now, there was an explicit procedure laid down in Rule 45 of Madras High Court Rules of Practice and Circular Orders, 1958 which is founded under Article 227 of the Constitution, which was not complied with while appointing the respondent as the PP.

The questions before the SC are :-

whether the Rule 45 is administrative rule of directory significance or statutory or law based mandatory rule.

Is the Office of Public Prosecutor, a public office, within the ambit of quo warranto jurisdiction?

Is the State Government bound to conform to the rule and prescribed procedure, in making such an appointment to a public office?

While answering these questions in the affirmative SC, laid down the principle of appointing a person to the office of Public Prosecutor. It said that the ideal Public Prosecutor is not concerned with securing convictions; but is an agent of Justice who must apply his discretion to apply to the Court for its consent to withdraw from any prosecution, if necessary. It is in the interests of the State and the Public, that any selection to such an office must be based on the most pertinent considerations, without prejudice or favour, and that only the best person or persons should be appointed.

Rule 45 which lays down the procedure can be changed, if, in practice, there are difficulties experienced in the working of the rule; but it cannot be done in individual cases, merely because of caprice. If that happens, the Courts are bound to Interfere, though it may be open to Government to modify or alter the rule, for future contingencies. Therefore though the State is the appointing authority with the power to appoint a person to the concerned office and the collector subordinate to the government, the government cannot appoint whosoever it likes without following the procedure laid down in Rule 45. Such arbitrariness if exercised will jeopardise the rule of law.

The SC held that Rule 45 is a law base rule which Government must adhere to; and that in failing to do so, the appointment of respondent No. 1 as public prosecutor stands quashed.

Hence, the office of Public Prosecutor is one of the most important public office and the appointment of an unbiased person is necessary in the interest of justice.

CASE SIX

M.C. Mehta v. Union of India (UOI) and Ors. (2007) 1 SCC 110

The Uttar Pradesh Government started a project known as Taj Heritage Corridor Project to divert the Yamuna and to reclaim 75 acres between Agra Fort and the Taj and use the reclaimed land for constructing food plazas, shops and amusement activities in terms of development of Heritage Corridor for Taj Trapezium Zone.

This led to the filing of an Interlocutory Application pending in this Court. The Court observed that, it was painful that the concerned persons in power are trying to damage or endanger the World Heritage by their hasty/ irregular/ illegal activities. By a previous order this Court directed a detailed inquiry as to who cleared the project, for what purpose it was cleared, and why it was cleared without the sanction of the competent authority. Accordingly by the said order, a CBI inquiry was ordered.

CBI reports show the release of Rs. 17 crore from the state exchequer without proper sanction of the competent authority. Accordingly, this Court i directed CBI to register an FIR and make further investigation in accordance with law.

With regards to the investigation the opinion of the Attorney General of India was sought. Who has since given his opinion, and said, that in absence of any evidence to suggest criminal mens rea on the part of any individual and due to lack of evidence of any pecuniary benefit to any of the officers or any other person, the proper course of action would be to take disciplinary action against the officers for their omission and misconduct.

The key issue which arises for determination in this case is: whether on the facts and the circumstance of this case, the Director, CBI, who has not given his own independent opinion, was right in referring the matter for opinion to the Attorney General of India.

SC holds, that in the instant case, at the present stage, the question is of investigation and not of prosecution. Under the Code of Criminal Procedure (Cr. PC), investigation consists of among other things ‘formation of opinion’- as to whether on the material collected there is a case to place the accused before a Magistrate for trial. This is the final step would consist of the opinion of the officer in charge of the police station. This authority cannot be delegated.

In this case the High Court has committed an illegality in directing the final report to be taken back and to file a fresh report incorporating the opinion of the Public Prosecutor. The question of seeking the Attorney General’s opinion only arises when there is a difference of opinion in the concerned team, but such a situation did not arise in the present case; in fact the opinion of the Attorney general was a dissenting one. Hence the Interlocutory applications were accordingly disposed off

Therefore there is a clear-cut and well-demarcated sphere of activities in the field of crime detection and crime punishment and the "Term "investigation" under Section 173(2) of the Code of Criminal Procedure, 1973 includes opinion of officer in charge of police station as to whether there is sufficient evidence or reasonable ground of suspicion to justify forwarding of case to concerned Court or not and formation of such opinion should be that of officer in charge of police station and none else."

CASE 7

Dr. Md. Rafeeq v. State of Andhra Pradesh 2007 CriLJ 2641

The question in this case is the same as the previous one; that should the prosecution against the petitioner be quashed on the ground that opinion of Public Prosecutor had been obtained before filing the case.

The petitioner was the accused under Sections 409 and 468 of IPC. The allegation against the petitioner was that he forged his last pay certificate as if it was issued by the Assistant Research Officer and drew salary on its basis.

It was contended, that the filing of the case after consulting the Public Prosecutor is the abuse of law and that on reading S.2(h) and S.154 to S.168 of Cr.P.C it is evident that investigating is the domain of the police; and therefore the prosecution is liable to be quashed.

SC agrees that the role of Public Prosecutor is inside the Court, whereas investigation is outside the Court; and that at any rate no investigating agency can be compelled to seek the opinion of a Public Prosecutor under the orders of Court; but if the investigating officer seeks the opinion of the PP on his choice, nothing can be held against him, because he did it to get the best legal opinion on any legal aspect concerning the preparation of the report

However, in this case, the investigating officer, with the public prosecutor to form an opinion in the case and hence the filing of such complaint after consulting the Public Prosecutor is not illegal and it is maintainable under law. Therefore the SC found no grounds to quash the proceedings against the petitioner.

It is not in the scheme of the Code for supporting or sponsoring any combined operation between the Investigating Officer and the Public Prosecutor for filing the report in the Court, but if the I.O does so, with an intention to get the best legal opinion he cannot be questioned. However, if the investigating officer was asked to consult the PP by an order of HC it would be considered illegal and hence liable to be set aside.

CASE 8

Pratap Narayan Gope, Anil Kumar Mahato and Premchandra Agarwal and Ors. V. State of Jharkhand and Ors, 2008 CriLJ 1550

Three writ petitions were filed by three Public Prosecutors who had been appointed to that post for a period of 3 years which had expired. Here the three petitioners challenge the appointment of Assistant Public Prosecutor to the post of Public Prosecutor or Additional Public Prosecutor until they resign .

The grievance of the petitioners is that though their names were sent to the Government duly recommended by the respective Deputy Commissioners of the Districts but instead of acting on the recommendation of the Deputy Commissioner for renewing their tenure, the State Government issued a notification by naming the Assistant Public Prosecutors to work as Acting Public Prosecutors till further orders.

It was argued by the petitioner that the Assistant Public Prosecutors conducting cases before the Magisterial Courts in the State of Bihar under the control and supervision of Director of Prosecution do not belong to a regular cadre of prosecuting officers as envisaged under Section 24 of the Code of Criminal Procedure.

It has further been held that these Asst.P.P could have qualified for the office of Public Prosecutor or Additional Public Prosecutor if they had the requisite experience as prescribed, by Sub-section (7) read with Sub-section (9) of Section 24 of the Code of Criminal Procedure.

However, the SC held, that Section 24 of Cr.P.C was amended in 2005 and S.24(2) explicitly stated "Prosecuting Officer means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code."

Therefore the petitions were set aside; especially because the State Government has acted in order to prevent the vacancy till the office of PP is filled.

Therefore, in view of such aforementioned amendment, now a Public Prosecutor cannot be appointed directly but the said post of Public Prosecutor has to be filled up by promotion from Assistant Public Prosecutors.