INTRODUCTION

The code of criminal procedure of India is a

comprehensive and exhaustive procedural law for conducting a
criminal trial in India, including the manner for collection of
evidence, examination of witnesses, interrogation of accused,
arrests, safeguards and procedure to be adopted by police and
courts, bail, process of criminal trial, method of conviction and
the rights of the accused for a fair trial.

The present criminal justice system is based on the

principle that any crime committed by an individual is a crime
against societal order. The prosecution and punishment for the
crime is therefore the responsibility of the state, and not that of
the victim of the crime. It has been argued that this
responsibility where the state acts on behalf of the victims,
limits the scope for vengeance and revenge. Such prosecution,
on behalf of the state, and therefore, is performed by a public
prosecutor appointed by the State. The public prosecutor is
required to play an impartial and neutral role and prosecute all
persons who have been chargesheeted by the police.

While the police act as an instrument for prevention and

detection of crime 1 , the public prosecutor however is an
instrument that is needed after a crime has been committed
against a person. The police force is needed before the fact;

1
The Police Act, 1861, Preamble

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 whereas a public prosecutor is needed to represent the victim
of the crime after the crime has been committed. India being a
country that follows the adversarial system, a system used in
common law countries, generally the onus of proof is on the
State(prosecution) to prove the case against the accused, and
until and unless the allegation against the accused are proved
beyond reasonable doubt, the accused is presumed to be
innocent.2
It is because of this that public prosecutors play a very
important role in the administering of justice in the country. A
public prosecutor is an attorney who works for the government
on a local, state or central level. They represent the interests of
public safety and work with the police to bring accused
criminals to justice.
Since a crime is not only a wrong against the individual
victim but also against society at large, the state, representing
their collective capacity, participates in a criminal trial as party
against the person accused of the crime, more particularly if
the crime is a cognizable offence. The Public Prosecutor or
Assistant Public Prosecutor is the counsel for the State in such
trials. The duties of such include the main task of conducting
prosecutions on behalf of the State. The Public Prosecutor also
appears as State Counsel in criminal appeals, revisions and such
other matters in the Sessions Courts and the High Courts.
The Public Prosecutor however, cannot under any
circumstances represent the accused.3 The Public Prosecutor
or the Assistant Public Prosecutor has the authority to appear
and plead before any court in any case entrusted to him, as per

2
http://www.mondaq.com/india/x/318472/Crime/Process+Of+Trial+Of+Criminal+Cases+In+India
3
Sunil Kumar Pal v. Phota Sheikh (1984) 4 SCC 533

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 section 301 of the Code. Section 301 of the code states that “
(1) the Public Prosecutor or Assistant Public Prosecutor in
charge of a case may appear and plead without any written
authority before any Court in which that case is under inquiry,
trial or appeal....”
According to section 321 of the code, “The Public
Prosecutor or Assistant Public Prosecutor in charge of a case
may, with the consent of the Court, at any time before the
judgement is pronounced, withdraw from the prosecution of
any person either generally or in respect of any one or more of
the offences for which he is tried,.....” He can also give advice
to the police or other Government Departments with regards
to the prosecution of any person of his advice is sought.
According to the pattern set by the Criminal Procedure
Code, while Public Prosecutors, including Additional Public
Prosecutors and Special Public Prosecutors, are to conduct
prosecutions and other criminal proceedings in the Session
Courts and the High Courts, Assistant Public Prosecutors are
appointed for conducting prosecutions in the Magistrates’
Court. According to the prevailing practise, 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 authorised counsel. In such
cases also the State can appoint prosecutors if the cause has
public interest.4

According to the formal definition given by clause (u) of

section 2, Public Prosecutor means “ any person appointed
4
Mukul Dalal v. Union of India (1988) SCR (3) 868

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 under section 24, and includes any person acting under the
directions of Public Prosecutor”. Assistant Public Prosecutors
are not covered by this definition as they are not appointed
under section 24; at the same time they have not been defined
separately.

Eligibility for being appointed as a public prosecutor:

A person shall be eligible to be appointed as a public prosecutor

if he/she satisfies the following conditions:
• He/ she must be a citizen of India;
• He/she must have practised as an advocate for a period of not
less than seven years;
• He/she must not be less than thirty five years and not more
than forty five years of age;

In states which have a Directorate of Prosecution, Public

prosecutors are often divided into different categories whose
responsibilities vary according to the category they belong in.
Such are as follows:

(i) Assistant public prosecutors: assistant public prosecutors

scrutinise the charge sheets prepared by the investigating
agencies. They evaluate the evidence in each case and make
their recommendations for filing revision petitions or appeaks
against impugned orders and judgements, as well as conduct
cases in the Courts of Metropolitan Magistrates.

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(ii) Additional prosecutors: additional public prosecutors conduct
cases in sessions courts.

(iii) Chief prosecutors: chief prosecutors supervise the work of

Assistant Public Prosecutors in the Courts of Metropolitan
Magistrates.

Public prosecutors and additional public prosecutors for high

courts:

Certain conditions must be satisfied before a person can

be appointed as a public prosecutors and additional public
prosecutors for high courts and such are as follows:

a) As per section 24(7), a person shall be eligible to be appointed

in High Court as a public prosecutor if he has been in practised
as an advocate for not less than seven years. However it has
been clarified by section 24(9) that the period during which a
person has been in practise as a pleader, or has been
rendered(whether before pr after the commencement of the
Code) service as any prosecuting officer by whatever named
called, shall be deemed to be the period during which such
person has been in practise as an advocate;

b) Section 24(1) states that the appointing authority can make the
appointment only after consultation with the High Court;

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c) Section 24(1) also states that the Central Government shall
appoint a Public Prosecutor and may also appoint one or more
Additional Public Prosecutors for conducting in a High Court
any prosecution, appeal or other proceeding on behalf of the
Central Government;

d) Similarly, the State Government shall appoint a Public

Prosecutor and may also appoint one or more Additional Public
Prosecutors for conducting in a High Court any prosecution,
appeal etc., on behalf of the State Government:
The state government may appoint a Director of Public
Prosecution but he shall be functioning under the Advocate
General of the State.

Public prosecutors and Additional public prosecutors for the

districts:

The code lays down that a person is eligible to be

appointed as a public prosecutor or additional public
prosecutor if he has been in practise as an advocate for not less
than seven years
The district magistrate shall, in consultation with the
Sessions Judge, prepare a panel of names of persons who are,
in his opinion, fit to be appointed as the Public Prosecutor or
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 Additional public prosecutor and no person shall be appointed
as the Public Prosecutor or Additional public prosecutor for the
district unless his name appears on such panel. However where
in a state there exists a regular cadre of Prosecuting officers,
the state government shall appoint Public Prosecutor or
Additional public prosecutor only from among the persons
constituting such cadre.5
But if, in the opinion of the State Government, no suitable
person is available in such cadre for such appointment then the
Government may appoint a Public Prosecutor or Additional
public prosecutor from the panel if names prepared by the
district magistrate.

Section 25 makes provisions prescribing the eligibility

qualifications for being appointed as a the Public Prosecutor, as
well as qualifications required for being appointed as an
Additional public prosecutor for conducting prosecutions in the
Magistrates’ Court. It states that the state government shall
appoint in every district one more Assistant Public Prosecutor
for conducting prosecutions in the Magistrates’ Courts.
Certain exceptions have also been added in section 2, one
such being that no police officer shall be eligible to be
appointed as an Assistant Public Prosecutor. If no Assistant
Public Prosecutor is available for the purposes of any particular
case, the District Magistrate may appoint any other person to
be the Assistant Public Prosecutor in charge of that case:

Provided that a police officer shall not be appointed:

a) if he has taken any part in the investigation into the offence
with respect to which the accused is being prosecuted; or
5
K. J. john v. State of Kerala (1990) 4 SCC 191

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b) if he is below the rank of an officer

ROLE OF PUBLIC PROSECUTOR

The present criminal justice system is based on the

principle that any crime committed by an individual is a crime
against societal order. The prosecution and punishment for the
crime is therefore the responsibility of the state Public
prosecutors are irreplaceable part in the delivery of justice in
the country seeing as they are public authorities who on behalf
of society and in public interest, ensure the application of the
law, where the breach of law carries a criminal sanction, taking
into consideration both the rights of the individual. They decide
whether to initiate or continue prosecutions, they conduct
prosecutions before the courts and may appeal or conduct
appeals concerning all or some court decision. In other words,
the process of delivering justice to those who have been
deprived of it is only complete and capable of being done with
the help of public prosecutors.6
The public prosecutor however is in no way a single
minded instrument of the government who only seeks
convictions regardless of the evidence, instead the

6
Dr K. N. Chandrasekharan Pillai, Criminal Procedure, Fifth Edition, Eastern Book Company, 2008.

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fundamental and core duty of a public prosecutor is to ensure
the delivery of justice. In other words, the prosecutor is an
agent of justice. The Allahabad high court had ruled that it is
the paramount duty if the public prosecutor to see that justice
is vindicated and that he should not obtain an unrighteous
conviction.
As mentioned above, the aim of a prosecutor should not
be to attain the maximum number of convictions; instead
he/she should act as an instrument that determines the guilt or
innocence of the accused party. As such trial must be carried
without any foul play and should be based on the principles of
equity so as to ensure fairness to all the parties involved.
Seeing as how the protection of the community is the top
priority of the state, as such its motive should never be backed
by revengeful motives.
It is of utmost important the public prosecutor does
whatever is in his capacity in order to assist the court in the
discovery of truth, in other words, the public prosecutor must
avoid intimidating or influencing witnesses on the other side so
as to aggravate the case against the accused, the public
prosecutor must also ensure that he or she will keep back a
witness because his or her evidence may weaken the case for
the prosecution. 7
It is also the duty of the public prosecutor to submit
before the court any such evidence as is possessed by him,
whether or not such evidence will strengthen or weaken the
prosecution’s case. In order to ensure that justice is rightly
delivered, it is paramount that all such evidence is brought
forward on record so as to allow the court to examine such

7
S. N. Mishra, Code of Criminal Procedure, 20th edition, Central Law Publications, 2016

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 evidence so it can come to a conclusion. Failure to submit such
evidence will only lead in the miscarriage of justice.8
If there is some issue that the defence could have raised,
but has failed to do so, then that should be brought to the
attention of the Court by the Public Prosecutor. It is the duty of
the Public Prosecutor to ensure that justice is done. Hence,
she/he functions as an officer of the court and not as counsel of
the State, with the intention of obtaining a conviction.
The District Magistrate or the Superintendent of Police
cannot order the Public Prosecutor to move for withdrawal,
although it may be open to the District Magistrate to bring to
the notice of the Public Prosecutor materials and suggest to
him/her to consider whether the prosecutor should be
withdrawn or not. But, the District Magistrate cannot command
and can only recommend. The Supreme Court stated that the
duty of the Public Prosecutor is to ensure that justice is done. 9
As was mentioned earlier under section 25 of the code, a
police officer who has taken any part in the investigation into
the offence with respect to which the accused is being
prosecuted. This is done as the public prosecutor’s office main
job is to represent the State not the police. In order words, the
public prosecutor is not a part of the investigating agency. This
is important so as to ensure that he/ she is an independent
authority. She/he is neither the post office of the investigating
agency, nor it’s forwarding agency, but is instead charged with
a statutory duty.10

8
M. P Tandon, &Justice Rajesh Tandon, Criminal Procedure Code, Sixteenth Edition, Allahabad Agency,
2005
9
Legalservicesindia.com
10
Dr. K. N. Chandrasekharan Pilla, R. V. Kelkar’s Criminal Procedure, Fifth Edition, Eastern Book
Company , 2008

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Flaws of the prosecution system in India

With law and justice being a State subject, there is no

uniformity in the structure of public prosecution in India. In a
large number of states, the boundary between the
investigation agency and the prosecution is blurred. This
adversely affects the impartiality of the public prosecutor since
the police could control the prosecution. In a few states where
the prosecution is headed by senior police officers, the
boundary completely collapses. This system continues
presently in states like Uttar Pradesh and Tamil Nadu, despite
doubts about its legality in light of a number of Supreme Court
rulings.
Although the law commission in 1958 had recommended
the setting up of a Directorate of Prosecution (DOP) with its
own cadre such a recommendation was not adopted in the
CrPC of 1978. Therefore while some states have created the
DOP, others however have not.
Furthermore, even the states which do have a DOP, such
have differing characteristics from other states, in Goa the DOP
covers high courts, sessions courts and the magistrates courts.
In Delhi, Karnataka, Himachal Pradesh and Orissa, the DOP
excludes the high courts. In a number of states including that of
Andhra Pradesh, Tamil Nadu, Uttar Pradesh and Uttaranchal,
the DOP extends only to the magistrates courts and session and
high courts are excluded and prosecutors are appointed in
tenure.

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 The impartiality of the public prosecutor is directly
dependent upon who controls the prosecution agency, DOP or
otherwise. For instance, the prosecutors in states like
Arunachal Pradesh and Mizoram function directly under the
police. In a large number of states, the DOP is controlled by the
home department, while in Goa and Karnataka, it is the Law
department that controls the DOP. Such clearly indicates a lack
of uniformity in all the states.
Although in theory, selection of the public prosecutors is
based on a number of rules and requirements that are to be
strictly adhered by, in most cases these are often overridden by
the executive who instead appoint adhoc appointees
.
Public Prosecution and the executive: The prosecution agency
also faces pressure from the executive in a number of ways. An
extreme case is Arunachal Pradesh where the question of
autonomy and independence of the prosecution is redundant
as there is not even the constitutionally required separation
between the executive and judiciary. For instance, the Deputy
Commissioner is also the Ex officio district and sessions judge.11
In other states where the judiciary and the executive are
independent of each other, appointment, security of posts and
tenure are methods by which the executive seeks to control the
prosecution. Even where the appointments made are not ad
hoc, there are a number o ways the executive can ensure that
the prosecution is reliant on it.
The relationship between the investigation, prosecution
and the executive received the Supreme Court’s attention in
Vineet Narrain v. Union of India12 . In this case, the bureaucrat-

11
Indiatogether.org/prosecutegovernment
12
1998 (1) SCC 226

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politician-criminal nexus had used all means necessary to
thwart the investigation and prosecution of corruption cases by
the Central Bureau of Investigation. The court monitored the
progress of these cases and passed detailed directions on the
functioning of various agencies involved and even warned the
minister in charge to avoid interfering with investigation and
prosecution.
Political interference can also take a more direct form, i.e.
ensuring the withdrawal of cases. Under section of 321 CrPC
the public prosecutor has the power to withdraw a case at any
time before the judgement is pronounced. There is no clear
indication in the CrPC, however, as to how this power is to be
exercised. Case law has indicated that while the power to
withdraw can be exercised by the Public Prosecutor only on the
request of the State Government or complainant, the decision
whether to withdraw or not is only that if PP and cannot be
delegated to any other, including the State Government.
Prosecutors, police officers and defence lawyers, however
insist that in reality, the PP has no role in deciding on
withdrawal of the case and it is the executive that decides on
the withdrawal. Given the control of the executive over the
security of posts, it is obvious that the Public Prosecutor has
little defence against the executive. An excellent example is
the withdrawal of criminal charges in the Bhopal gas leak case.
In that instance, the Union of India arrived at a settlement with
the Union Carbide Corporation under the aegis of the Chief
Justice of India. It is unlikely that there was any independent
application of mind by the PP in charge of the criminal case
before withdrawal from the prosecution.
The role played by the executive in thwarting prosecution
following communal violence situations has raised concern. For
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 instance, after the 1984 anti-sikh carnage in Delhi, the Congress
government was unwilling to appoint lawyers with integrity and
experience to prosecute those cases. Any doubt of executive
interference was removed after the cases relating to the 2002
genocide in Gujarat came up in courts up in the State. While
the Supreme Court has taken notice of some of the blatant
irregularities in some of the cases, other cases from Gujarat are
languishing. In the prominent Best Bakery case, the Supreme
Court unprecedentedly ordered a retrial in Maharashtra
virtually indicting the BJP government in Gujarat for
interference in cases.
Another area where the executive exerts influence on the
PP is in filing appeals and revisions. Here again the Public
Prosecutor is supposed to take direction from the executive
and then apply an independent mind. However, in practise the
decision is taken completely by the executive with the Public
Prosecutor only playing a forwarding role.13

Section 25(8) of the CrpC provides that the Central or

State government may appoint a Special Public Prosecutor
(SPP) for any cases or class of cases. Provisions for appointment
of such are also found in special legislation like the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act.
1989. Appointment of such however is a vexatious issue. It is
often said that because of this provision, the executive has little
interest in reforming and improving the prosecution system as
a whole. in politically sensitive and important cases where the
executive needs a conviction to take place, it appoints a leading
lawyer as SPP, instead of relying on the poorly paid and often
leaky prosecution that it has created. Thus it is of no surprise
13
Indiatogether.org/prosecutegovernment

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that regular prosecutors, whether cadre or tenure, display
considerable resentment against appointment of SPPs. They
argue that if the prosecution was given proper facilities,
training and incentives there would be no need to hire lawyers
from outside the prosecution agency.

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 CONCLUSION

Seeing as how significant Public Prosecutors are in the delivery

of justice to victims, it is extremely important that such
problems as aforementioned be remedied in order that such
delivery of justice takes place. And in order for that to happen,
the judiciary must make sure that the victim’s deprivation must
be given utmost importance. Introduction of services like the
Victim and Witness Service will be a positive move towards
protecting the interests of the victim. This would allow the
Public Prosecutor to maintain autonomy and integrity. Thereby
ensuring that there are no hurdles towards delivery of justice
such being one of the main duties of the Judiciary of the
country.

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 Bibliography

Secondary sources

1. Tandon ,M. P, Criminal Procedure Code, Sixteenth Edition.

2. Pilla, Dr. K. N. Chandrasekharan, R. V. Kelkar’s Criminal

Procedure, Fifth Edition.

3. Mishra, S. N., Code of Criminal Procedure, 20th Edition.

Internet Sources

1. Indiatogether.org/prosecutegovernment

2. Legalservicesindia.com

3. http://www.mondaq.com/india/x/318472/Crime/Process
+Of+Trial+Of+Criminal+Cases+In+India

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