Prosecutor is not the representative of the victim, not of the accused, even not
of the government, but he/she is the spokesperson rather agent of the people of
the country in its real sense.
In this paper we will deal with role of prosecutor and the whole concept as to
why he/she is required.
We will focus more on the Indian perspective and try to
compare it with the US and the English criminal justice system. As different
countries follow different system some common law adversarial system and some
civil law inquisitorial system so the working may also differ.
under any system, their sole purpose is to deliver justice but the involvement
and the persons who are appointed or the manner of these appointments vary in
various countries. They are the representative of each country's government or
their states government still a difference resides as the interference of the
government and the countries judiciary and elocutionary body may waver.
paper will give an insight on the role and importance of prosecutor for the
protection of human rights and for the society's well-being and security. Also,
the comparative analysis of these three countries will make us understand what
are the perks as well as anomalies and why the justice delivery system differs
in India from the US and the UK.
Many people consider the word Prosecutor synonymous to lawyer, but there's a big
difference if we understand the legal definition which will give us clarity.
According to Merriam Webster dictionary a prosecutor institutes a proceeding or
represents the state in a criminal proceeding as defendant i.e. a government
The basic definition and work of prosecutor is this but the working
differs from country to country as depends whether they follow common law
adversarial system or inquisitorial system. In some countries the role of
prosecutor pertains in whole of the investigation process i.e. getting involved
with the police investigation, evidence collection etc. whereas in others there
is no interference, but whether the rights of accused are kept intact or not is
checked and everything works according to laid procedures.
Some countries even
let prosecutor defend any civil actions on them as well. Thus, a Prosecutor can
be called the advocate representing the government of that country in any
criminal prosecution or even sometimes in civil matters.
Who is a Public Prosecutor?
he is referred to as the agent of the state and keeps a check that whether
justice is provided in the right manner to the common people and helps the
judges in doing so. He is appointed by the government authority may be at
central level or at state level or even at local level. This division differs in
various countries. But they only have the job to check the justice is not denied
and properly provided to the accused as well. So as to suffice the Latin Rule of
law ‘Audi alteram partem', no one should remain unheard.
If the victim has the right to be heard then even the accused shall be provided
with the chance to prove his innocence as presumption of innocence is a
universal right even mentioned under the UN's declaration of Human rights
Article 11. The state considers whenever a criminal case is instituted then the
crime is also against the state as per the jurisprudence of societal security
thus the prosecutor ensures that law is not baffled with when the investigation
and trial of a case occurs on behalf of the state.
There are some guidelines which are stated by the OHCHR which was adopted by the
United nations congress on the Prevention of Crime and the treatment of
offenders on 9th September 1970 for the role of Prosecutor. They have to work in
order to keep intact human rights with the due process of law under the criminal
justice system. Their roles are:
- They shall dignify their position as they are appointed by the state.
- They shall not delve into any such arbitrary or fraudulent practice that
might harm the interest of the case.
- They shall be given protection i.e. personal safety if conditions demand
- They shall have the right to take part in public discussions regarding
- They shall have the right to take part in public discussion of matters
concerning the law in order to promote and protect human rights for which
they shall have freedom of expression and association.
- Investigation of crimes and supervision of execution of courts decision,
checking the fairness of investigation all falls under his duty.
- They shall conduct impartial investigation.
- They shall work keeping public interest intact.
- They shall keep matters confidential unless required.
- Act in accordance with the Declaration of Basic Principles of Justice
for Victims of Crime and Abuse of Power.
- They shall refuse to use evidences which are recruited by unlawful
methods such as torture, inhuman means against the suspects.
- They can also waive their prosecution rights on reasonable or
conditional grounds. (wherever it can be possible)
- Some countries give discretionary power to their prosecutors in juvenile
matters, so to use them the nature and gravity of offence is to be seen.
(they should try to avoid taking strict actions in such matters)
- They shall cooperate with all other bodies working on the case.
Thus, these guidelines are set by the human rights commission for the
prosecutors so that both the parties to the case get a fair trial and public
interest is safeguarded as well.
Difference Between Prosecutor and Lawyer!
Well one can say all Prosecutors are Lawyers and not all Lawyers are
Lawyers are licensed advocates they can have clients and can work in any field
of law. They can represent either the victim or accused and when they present
their case, they have the tendency to present facts, evidences and witnesses in
favour of their side of the case. They focus on delivering justice to their
client. Whereas Prosecutors are appointed by the state and they are
representatives on behalf of the government who ensures fair and reasonable
His duty is to keep intact human rights and dignity and maintain equality
and unambiguous investigation and trial. He cannot favour anyone side and shall
work in order to provide justice in the right manner. He is a state attorney in
criminal cases and if required can take up civil suits as well. A lawyer tries
to prove his side of the case whereas a prosecutor's sole purpose is to find the
truth in legal manner and provide the court with the same so that arbitrary
practices can be avoided.
Importance of Prosecutor under Criminal Justice System:
To provide fair and equal justice. We have already seen the role of prosecutors
so they are important in brief to suffice these 3 P's:
- Prosecute criminals who break the law by way of fair investigation and
- Prevent crimes from happening in the first place that is by creating
awareness taking part in public discussions advising the executionary bodies
- Protect the victims of crime, can be an individual or the whole society
or a community and to ensure everyone gets their right to be heard.
Prosecutors in Indian Criminal Justice System:
Under the Indian Criminal Justice System, the authority to investigate is with
the police and for the trial round we have judges, lawyers also involved but
everything is done under the supervision of magistrate. From seeking permission
to arrest, to giving reason for the arrest, to investigating and conducting
trial this everything is done by magistrate's permission. Then comes the role of
prosecutor in India referred to as public prosecutor which is defined under
section 24 of the Criminal Procedure Code which we will discuss later.
He is an
appointee of the state and represents them in such criminal proceedings. In
India when the need to prosecute a case arises the decision is taken by
magistrate on the report submitted by police and then the prosecutor is
appointed. The prosecutor is appointed to represent the government in any case
or give state's representation in any criminal case.
Section 24 of the CrPc. describes about the appointment of such public
prosecutor. In High court the public prosecutor is appointed by the central
government or the state government with their consultation if required can also
appoint an additional public prosecutor on behalf of them. Depending upon the
types of cases and the scrutiny the central government can appoint public
prosecutors in the district courts or local bodies for some case or class of
The public prosecutor along with the additional public prosecutor who is
appointed for a particular district can also get involved in other districts
cases if required. This appointment is done in consultation with District
Magistrate by way of preparing a proper panel to suggest names for the
appointment. If there already exists a cadre of prosecuting officers the state
shall choose a prosecutor from that if no suitable person is found then the
panel names will be considered.
Most importantly the person must be practicing
advocacy for at least 7 years then only he can be eligible for the post and for
the post of special public prosecutor a minimum of 10 years' experience is
required in practice as an advocate. Section 25 deals with appointment of an
assistant public prosecutor.
Role of the Prosecutor:
The prosecutor's job is to deliver justice not to secure conviction or acquittal
in order to satisfy anyone or any motive. His job is to see that whether in the
whole procedure of arrest to investigation to trial, whether the law was
followed or not. It is his job to provide means to regulate a fair hearing so
that no injustice or unlawful activities take place. He should not seem eager
but rather ensure both the victim and accused rights are safeguarded.
Therefore, the need to appoint a prosecutor arises to avoid the following:
- The accused must not be deprived of his rights
- To give fair trial i.e. both the parties are heard
- To conduct fair investigation
- To remove discriminatory practices
- To establish equality
- He is not appointed by the judiciary but is a statutory body appointed
by the state and as their representative its his duty to look into matters
for the benefit of the society. They can work along with the police
- He cannot appear on behalf of the accused. He can only demand for his
rights to be given to him that he's eligible for.
- As he has the complete discretion of withdrawal or continuance of
any case given to him under section 321 of the CrPc., he shall always see the public
benefit for this purpose and not for any mal-intentions. The same was stated by
the supreme court in Mohammed Mumtaz v Nandini Satpathy 1987 case that only the
courts consent is needed to be taken. As in India he has the complete discretion
and not even the district magistrate or the SOP can direct him but only suggest
him by way of notice.
- Speedy trial.
- To keep intact the right to life and personal liberty as guaranteed
under Article 21 of the Constitution
- The state can specially order such appointment when such a case arises
that largely affects public interest. For example, in 2019 Arvind Kejriwal Chief
Minister of Delhi ordered the appointment of special public prosecutor for the
infamous ‘journalist Soumya Vishwanaths murder case'.
In Thakur Ram vs. State of Bihar
 the supreme court held that the motive of
appointing a prosecutor is to represent the victims right as crime agaist
him/her is considered as crime against society. Therefore, no person in their
private interest to fullfill their private motives like vengeance etc. can use
In Mukul Dalal v. UOI
 the supreme court has stated that in India the public
prosecutor's office is a public one which is important under for the court and
the state to establish just for the social purpose.
In Radheshyam v. State of M.P. & others
 the court has stated that a special
public prosecutor can be appointed by the state whose remuneration shall also be
paid by the state to maintain its integrity. Thus, the government cannot appoint
him/her directing to get remunerated by the private party.
Therefore, in India there is the directorate of prosecution wherein all the
prosecutors were brought to supervise them. The director heads the office under
whom other officers and ministerial staffs fall. But since not all states have
established such system or are part of this system as it is not given
recognition under CrPc. as a mandate so many prosecutors are side-lined or fall
under top level police officers which affects their working. Defeating the whole
purpose of providing justice.
Prosecutors in the U.S. Criminal Justice System:
As the U.S. is divided into state and counties so the system there is a bit
different. For 50 states and about 3143 counties there they have their own
prosecutor. As U.S. is a federal republic so only at the federal level, they
have a unity i.e. form a single system and have prosecutors according to that.
Unlike the manner they appoint district attorneys by the U.S. general attorney's
office for each federal the district, the appointment of prosecutors is
It is not appointment at all it is done by way of election i.e. local
elections. In United States the U.S. federal attorneys act as prosecutors but
are elected to their office by the electorates. The Assistant United States
Attorney also called a federal prosecutor is appointed by the federal government
and they look into such public interest matters in criminal proceedings and even
some civil suits.
The major duty is that they are largely involved in
investigation procedure and keep check that rights of accused are protected by
the law. That is, they are highly involved in the whole investigating the crime
process and therefore enjoy the benefit of interrogating and interviewing the
witnesses as well.
Role of the Prosecutor in the U.S. Criminal justice System:
- He is the one who administers and ensures proper criminal justice.
- He has the discretionary power to charge any person of some offence or
not. Which he must function with utmost care. Although the police have the
power to make arrest on doubt but the charging capacity falls within the
ambit of prosecutor. And no one can question his/her decisions. One example
of prosecutors misusing this power is the Kemba Smith case where she was sentenced
to 24.5 years imprisonment as charges against her were framed to be included in
various drug supplying activities, but instead it was her husband who was a drug
dealer and she was just an acquaintance to him. But in exchange of her testimony
she was told that charges against her would be reduced but in the process of
investigation her husband died and the prosecution made her plead guilty leading
to her conviction. Therefore, to avoid such discrepancies we need the
prosecutors to use their charge framing power with utmost reasonableness.
- Thus, in the US criminal justice system usually prosecutors have an
upper hand on what the court will decide, which affects the fairness and
- Also, prosecutors regulate the entire plea-bargaining system and
statistics have shown that almost in 90% of cases defendants plead guilty.
Which usually used in a wrong manner by prosecutors as they delve into
over-charging practices so that the defendant gets convinced to plead guilty
for the lesser charges. As everyone wants to avoid the trial process and is
scared of the rigorous sentencing.
- They serve as quasi- judicial authority therefore they have to act with
fairness as he/she is the representative of the society and neither of the
parties. He should not aim at conviction rather should work to provide the
best possible remedy. The same was stated by the U.S. Supreme court in
Berger v. United States.
- They carry out excessive investigation and collect evidence, main
functions are filing subpoenas, plea bargaining, charge framing and ensure
rights to both victims and accused.
The discrimination between the black community and the white community is
prevalent in the United States from a very long time. Recently we all have seen
the outrage of the #blackslivesmatter case and seen the sensitivity of this
issue over there. Therefore, with the wide range of powers that the prosecutor
enjoys and as he has more overwhelming impact on the judiciary it has always
been the practice to discriminate among the defendants on the basis of their
Thus, it is seen that for example in a case where a white accused
is charged of murder and a black accused is charged of second- degree murder,
the prosecutors tend to take the white offender's case seriously ensuring
justice to him. There are instances they misuse this power and use it
arbitrarily. One such example is Central Park Joggers Case 1989, where 5 boys
(all under the age of 18) were convicted on charge of rape and sexual assault it
was years later of their conviction it was found out they never committed the
But during the investigation process gross violation of accused rights
specially as they were underage kids took place. And on the basis of false
charges they were forced to plead guilty and therefore prosecuted for rigorous
imprisonments. The key point was all of them were blacks and the reason they
were convinced was because of the colour of their skin, and people thought worst
from them. So, this is one of the major drawbacks because of the vast powers
given to a prosecutor in the US.
In People v Smith
, the court stated that either the prosecution proves guilty
or not guilty, sometimes the prosecution fails to prove the burden of proof then
the defendant must be allowed to go free. Here no forced scrutiny can be laid as
there was no evidence provided to prove the case.
Thus, in the US criminal justice system major outcome of the case is affected by
the prosecutor and his way of conducting the whole investigation and trial
process. Unlike in India where prosecutor is taken as a minister of justice who
advices the court but the major power to give judgement is with the judges the
prosecutor just ensures fair justice system.
Prosecutors in the English criminal Justice system:
In the UK the prosecutors fall under the Crown Prosecution system (CPS) and
are called crown prosecutors. The CPS was established in 1985 by the prosecution
of offences act to operate in England and Wales separate from the European
system. It is an independent body free from any interference by the police or
the government. As the UK has three different jurisdictions to regulate such
public prosecution one such under which prosecutors work to provide justice is
It is not dependent on the other 2 bodies. Also, the UK does not have a
penal code they work on statues, precedents and customs which are followed and
therefore according to that on behalf of the crown the CPS works. They are
required to follow the Code for Crown Prosecutors. They work to ensure equality
and inclusion with 14 regional teams that deal with cases on a local basis and
each one is headed by a Chief Crown Prosecutor.
They also work for 3 special
division, the international justice and organised crime division, special crime
and counter terrorism division and the fraud division team. They are responsible
for the drawing up of criminal prosecution in the UK as a judicial agency.
One important feature of appointment is that both law and non-law professionals
can apply to be a prosecutor and can practice as a solicitor or barrister
irrespective of having a degree or not. But for person without law degree he
must pass the common professional examination (CPO) or get a graduate diploma in
Role of Prosecutor under the CPS:
- They decide as to which cases are needed to be prosecuted and which are
- They carry out investigation and procure evidences for the same.
- They decide the charge.
- They can also advise the police in the process of investigation.
- Being an independent body, they cannot be obstructed by any authority in
- They also present in the court the cases (like a lawyer) i.e. they can
advise the counsel in cases.
- They also ensure assistance to victim and protection of witness. That
they are given their rights.
- There decision on whether to charge or not to charge is based on a full
code test, first part is to collect the evidences and whether these
evidences are reliable and can be used in court or not. Once this is done
the second stage is to see the public interest. After this only he/she can
proceed with the case.
But time and again questions have been arising over the independency of the CPS.
As many have suggested that the CPS is largely funded by the political
bureaucrats and is highly influenced or in predisposition with the police. This
is because of the lack of resources and funds which leads to incompatible
procedure and ultimately making these prosecutors work for the police.
|Public prosecutor appointed under Section 24
of the Code of Criminal Procedure 1973
||Prosecutors are federal attorney and are
elected by the electorates.
||Prosecutors fall under the independent body
i.e. Crown Prosecutor services.
|Mainly acts as a Minister of justice.
||His decisions in framing charges and plea
bargaining hugely impacts the outcome of case.
||They can investigate, prepare evidences and
present the case in court of crown.
|Ensures the rights are not violated and
justice is given in a fair manner. Does not interfere with the police
||Ensures that both parties are heard and is
much overpowering on the police and other authorities.
||It is an independent judicial agency that
works to ensures public interest but due to lack of resources and funds
are subjected to police.
|Judges and Magistrates give decision.
||Judges are largely influenced by the
||The court of crown has the power but CPS is
at times instigated by bureaucrats.
|Representative of the central or state
||Each state and county have its own
||Represents the Crown.
Human rights are to be ensured in every system and that is the sole purpose of
prosecutor. So that no arbitrariness, vagueness and injustice is done. In each
country prosecutor is present but they have their own way of functioning and the
major difference arises in the powers that are given to them. Each system has
its drawbacks but if they keep the public interest satisfied and work for the
true meaning of the prosecutor that was intended, the society can surely be made
a safer place.
Written By Varnika Singh
- For more information on the OHCHR guidelines for prosecutors and to
refer the original document refer to this link
- For information regarding such appointment made By CM Kejriwal refer to
this link on the news - https://www.ndtv.com/india-news/soumya-viswanathan-murder-case-arvind-kejriwal-orders-special-prosecutor-1989966
- AIR 1996 SC 911
- 1988 3 SCC 144
- 1999 (2) MPLJ 703
- For more insight on Kemba Smith's case refer to this link
- 295 U.S. 78, 88 (1935)
- For more information on the Central Park Joggers case which has also
been changed into a series called “when they see us”, refer to this link
- 185 Ill.2d 532, 545 (1999)
- To read more on the CPS visit their official website, refer to the
- (4th year Law student UWSL Karnavati University)