Role Of Prosecutor:
Prosecuting agents will function for criminal proceedings and will not interfere
in any judicial matter. They are authorized by law to require proper
investigation in a particular case. They can challenge any decision from the
court and require proper proof and basis of any decision as they are acting for
the public interest.
They are the representatives of the public in the court of
law. They need to honour the administration of justice by prosecuting only those
who need to be prosecuted and issuing the use of non-punitive methods of
treatment of those who are liable for that punishment.
A Public Prosecutor is considered as the agent of the state to represent the
interest of common people in the criminal justice system. The prosecution of the
accused is the duty of the state but not individually the duty of the aggrieved
party. They are appointed in almost all countries. The Public Prosecutor is
appointed under Section 24 of Cr.P.C. They serve as the basic principle of Rule
of Law i.e. audi alteram partem (no person shall be condemned unheard).
Section 2(u) of the Code of Criminal Procedure defines Public Prosecutor.
A person who is appointed under Section 24 of CrPC and it also includes any
person who is acting under the directions of Public Prosecutor.
In the case of Babu vs. State of Kerala
(2010) the Court observed that Public
Prosecutors are ministers of justice who is duty bound to assist the judge in
the administration of justice.
Appointment of Public Prosecutor:Section 24 provides for the appointment of public prosecutors as follows:
- For every High Court, the Central Government or the State Government
shall, after consultation with the High Court, appoint a Public Prosecutor
and may also appoint one or more Additional Public Prosecutors, for
conducting in such Court, any prosecution, appeal or other proceeding on
behalf of the Central Government or State Government, as the case may be.
- The Central Government may appoint one or more Public Prosecutors for
the purpose of conducting any case or class of cases in any district or
- For every district, the State Government shall appoint a Public
Prosecutor and may also appoint one or more Additional Public Prosecutors
for the district: Provided that the Public Prosecutor or Additional Public
Prosecutor appointed for one district may be appointed also to be a Public
Prosecutor or an Additional Public Prosecutor, as the case may be, for
- 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 Public Prosecutors or Additional Public Prosecutors for the
- No person shall be appointed by the State Government as the Public
Prosecutor or Additional Public Prosecutor for the district unless his name
appears in the panel of names prepared by the District Magistrate under sub-
- Notwithstanding anything contained in sub- section (5), where in a State
there exists a regular Cadre of Prosecuting Officers, the State Government
shall appoint a Public Prosecutor or an Additional Public Prosecutor only
from among the persons constituting such Cadre: Provided that where, in the
opinion of the State Government, no suitable person is available in such
Cadre for such appointment that Government may appoint a person as Public
Prosecutor or Additional Public Prosecutor, as the case may be, from the
panel of names prepared by the District Magistrate under sub- section (4).
- A person shall be eligible to be appointed as a Public Prosecutor or an
Additional Public Prosecutor under sub- section (1) or sub- section (2) or
sub- section (3) or sub- section (6), only if he has been in practice as an
advocate for not less than seven years.
- The Central Government or the State Government may appoint, for the
purposes of any case or class of cases, a person who has been in practice as
an advocate for not less than ten years as a Special Public Prosecutor.
Section 25 of Cr.P.C states that the Assistant Public Prosecutors is appointed
in the district for the purpose of conducting prosecution in Magistrate Court.
The court may appoint one or more Assistant Public Prosecutors for the purpose
of conducting a case. If there are no Assistant Public Prosecutors then District
Magistrate may appoint any other person to act as the Assistant Public
Functions:The functions of the Public Prosecutor differ according to their designation:
- Public Prosecutor:
supervise the function exercised by the Additional Public Prosecutor in
Session Court and High Court.
- Chief Prosecutor:
supervise the functions exercised by Assistant Public Prosecutor in
Metropolitan Magistrate Court.
- Additional Prosecutor:
conduct criminal proceedings in the Session Court.
- Assistant Public Prosecutor:
they examine the charge sheet prepared by agencies and submit the acquittal
or discharge. They also are responsible for the evaluation of evidence and
filing revisions petitions. They also conduct the criminal proceedings in
the Court of Metropolitan Magistrate.
- Director of Prosecution:
it is the head office. They exercise the overall control and supervision of
officers of Directorate. They also look after the Account Branches. The
objective of establishing a Directorate of Public Prosecutors is to
supervise and scrutinise the functions relating to various
prosecution agencies at Assistant Session level and Session level except at High
Reasons for the appointment of public prosecutors:
Whenever any crime is committed against a group or individual, it is assumed
that it has been committed against society. It is the duty of the state to
provide justice to any group of society or person who is affected by the crime.
In India, it is necessary that the criminal justice system should function
within the limits of the Indian Constitution, which means that it is necessary
for the Public Prosecutor to act in accordance with the principles of:
- Equality before law
- Protection against double jeopardy
- Protection against self-incrimination
- Protection against ex-post law
- Right to life and personal liberty except procedure established by law
- Presumption of innocence until proven guilty
- Arrest and detention must be in accordance with the provisions of Cr.P.C
- Equal protection of laws
- Speedy trial
- Prohibition of discrimination
- Right of accused to remain silent
Role of Public Prosecutors:It is divided into two parts:
- In investigating process
- During the trial
In investigating process:The public prosecutors have the following role in investigating process:
- He appears in the court and obtains arrest warrant against the accused;
- He obtains search warrants from the court for searching specific
premises for collecting evidence;
- He obtains police custody remand for custodial interrogation of the
accused (section 167);
- If an accused is not traceable, he initiates proceedings in the court
for getting him declared a proclaimed offender (section 82) and, thereafter,
for the consfiscation of his movable and immovable assets (section 83); and
- He records his advice in the police file regarding the
viability/advisability of prosecution.
After the completion of investigation, if the investigating agency comes to the
conclusion that there is a prima facie case against the accused, the
charge-sheet is filed in the court through the public prosecutor. It is to be
noted that the opinion of the public prosecutor is taken by the police before
deciding whether a prima facie case is made out or not. The suggestions of the
public prosecutor are also solicited to improve the quality of investigation and
his suggestions are generally acted upon.
However, the ultimate decision of
whether to send up a case for trial or not lies with the police authorities. In
case there is a difference of opinion between the investigating officer and the
public prosecutor as to the viability of the prosecution, the decision of the
District Superintendent of Police is final.
During the trial:
As stated above, the public prosecutor is vested with the primary responsibility
to prosecute cases in the court. After the charge-sheet is filed in the court,
the original case papers are handed over to him. The cognizance of the case is
taken by the courts under section 190 of the Code. The trial in India involves
various stages. The first and foremost is the taking of cognizance of a case by
The second step is to frame charges against the accused, if there is
a prima facie case against him. The third step is to record the prosecution
evidence. The fourth step is to record the statement of the accused (section 313
of the Code). The fifth step is to record the defence evidence.
The sixth step
is to hear the final arguments from both sides, and the last step is the
pronouncement of judgement by the Court. The public prosecutor is the anchor man
in all these stages. He has no authority to decide whether the case should be
sent up for trial. His role is only advisory. However, once the case has been
sent up for trial, it is for him to prosecute it successfully.
The role of the
public prosecutor during trial is as follows:
Other important roles:
when the accused is proven guilty, then the defence counsel and
the Public Prosecutor further argue to decide the quantum of punishment. At this
stage, the Public Prosecutor may argue for the adequate punishment keeping in
mind the facts, circumstances of case and gravity of the offence. It helps the
judge to arrive at a judicious decision.
- To conduct a speedy trial:
Right to a speedy trial is a fundamental right
and it is impliedly given in Article 21 of Constitution of India which states
Right to life and Personal Liberty. The prosecutors have a responsibility to
call all the witnesses whose evidence is essential to decide the case. To
cross-examine the witness and to see that no witness is left unexamined. To
produce all the necessary documents.
- Burden of proof on prosecution:
It is for the public prosecutor to
establish the guilt against the accused in the court beyond a reasonable shadow
of doubt. The evidence is in three forms, namely, oral evidence (i.e.,
statements of witnesses); documentary evidence; and circumstantial evidence.
Forensic evidence also plays an important role in varied crimes.
On the basis of
the facts proved by the oral, documentary and forensic evidence, the public
prosecutor tries to substantiate the charges against the accused and tries to
drive home the guilt against him. If there is a statutory law regarding
presumptions against the accused, the public prosecutor draws the court's
attention towards that and meshes it with other evidence on record. The
prosecutor has an immense role. He has to prove the facts.
He has to prove the
circumstances, and then he has to draw the inferences and convince the court
that the arraigned accused alone is guilty of the offences that he has been
charged with. This is an onerous task and requires sound legal knowledge, the
ability to handle witnesses and the capability to carry the court along with
- The Public Prosecutor cannot aggravate the facts of the case or deny to
examine the witness whose evidence may weaken the case. The main aim must be
to discover the truth.
- He should not defend the accused. It is against the fair play of
administration of justice or against the legal profession.
- He represents the State, not police. He is an Officer of State and is
appointed by State Government. He is not a part of any investigating
agencies but an independent authority. He is charged with statutory duties.
- Superintendent of police or District Magistrate cannot compel the Public
Prosecutor to withdraw the case.
- If there is an issue which is raised by defence counsel and failed, it
should be brought out in the notice of the court by Public Prosecutor.
- To ensure that justice is done.
Judicial Response to role of prosecutors:Zahira Habibullah vs. State of Gujarat
(2006), where the conduct of the BEST
BAKERY' case in the Hon'ble Gujarat High Court , involving the burning down of
an establishment in Vadodara which caused the death of 14 persons, came up for
consideration before the Hon'ble Supreme Court. The Hon'ble Supreme Court
ordered retrial of the matter in The Hon'ble High Court of Maharashtra, and
observed that in Gujarat,:
The Public Prosecutor appears to have acted more as
a defence counsel than one whose duty was to present the truth before the Court
In the final analysis, a public prosecutor is an officer of the court and is
required to render assistance to the court to arrive at a just and equitable
decision. He is also required to be fair to the opposite party. His guiding
principle should be not so much the letter of law, but the spirit of law based
on prudence, common sense and equity.
Role Of Judicial Officers:
Judicial officers, especially Magistrate, can make meaningful interventions
during investigation, with a view to protect liberty and also to ensure an
In chronological order, the role of magistrate in investigation can be
understood in terms of these five stages:
- Stage–I – Soon after the registration of FIR
- Stage–II – In cases where the arrest is effected by the Investigating officer,
on his production before the court and while deciding the question of the
validity of arrest and need for further custody – Judicial or Police.
- Stage–III- Magisterial interventions while deciding misc. applications for
recording of statement(s) u/s 164 of the Cr.P.C, test identification parades,
- Stage–IV – Monitoring of investigation.
- Stage–V – Further investigation, post-filing of police report u/s 173 of the
Stage–I – Soon after the Registration of FIR:
Criminal justice Administration is set into motion with the receipt of
information with respect to the commission of a cognizable offence (Section
154 of the Cr.P.C). Section 157 Cr.P.C mandates the sending of a report to this
effect to the area magistrate forthwith, to bring the matter to his scrutiny. This is a safeguard meant to prevent police excess, embellishments, false
prosecutions and non-investigation at a crucial stage.
A copy of the FIR is to
be brought to the Magistrate empowered to take cognizance as soon as possible,
and any delay can adversely affect the prosecution case at trial, if not
explained adequately. In heinous cases, a copy of the FIR along with an
endorsement is dispatched via a special messenger to the area magistrate or duty
As per sec 155 (2) of Cr.P.C. no police officer shall investigate a
non-cognizable case without the order of a magistrate having power to try such
case or commit the case for trial.
Stage II – Production of the Accused before the court for the first time:
According to the latest amendments in the CrPC, in cases covered u/s 41(1)(b) of
the CrPC, i.e where the case relates to offence punishable with imprisonment of
7 years or less, arrest can be made by the police only on satisfaction (recorded
in writing) to the effect that, the arrest is imperative for:
- prevention of further offences;
- proper investigation of the offence;
- prevention of tampering or disappearance of evidence;
- prevention of any undue influence/threat to the complainant or
- ensuring his presence in the court
The recording of these reasons is a condition precedent for arrest.
Magisterial check on police powers of arrest:
The sufficiency of reasons for arrest recorded by the police officer is to be
examined by magistrates and not to be accepted at the mere ipse dixit of the
police. After examining the validity of the arrest, the next point of inquiry
is: whether there are grounds to keep the accused in detention or whether he can
be released on bail, or otherwise discharged.
The Supreme Court recently in Arnesh Kumar vs. State of Bihar (2014) has ruled
that decision to detain & remand is not a mechanical act and a remand order has
to be a reasoned order and should reflect due application of mind. Mere
mechanical reproduction of above elements in remand application is also to be
Safeguards relating to arrest:
The magistrate is also under an obligation to peruse the Arrest Memo/Medical
examination report of the accused to rule out cases of police torture as well as
the victim to preserve crucial medical evidence. It is also incumbent on the
Magistrate to ensure production of the accused before itself within 24 hours of
arrest as per sec 57 of Cr.P.C. and communication of information to
relatives/friends about his arrest as per Sec 50 of Cr.P.C.
In the case of Youth Bar association of India vs. Union of India and others
(2016) the Apex Court held that the Magistrate is to also ensure that the copy
of the FIR is uploaded on the Internet, forthwith, except of course, in cases
where the matter is sensitive in nature, or issues of privacy are involved.
Fair trial to accused:- Co-relative duties of Magistrate:
It is well settled today that the accused has fundamental right to know the
grounds of his arrest, right to legal aid in case he is indigent, right to
consult his lawyer and such other rights guaranteed by Constitution and
equivalent safeguards incorporated in CrPC.
Article 22(2) provides that every person who is arrested and detained in custody
shall be produced before the nearest magistrate within a period of 24 hours of
such arrest and no one shall be detained in custody beyond the said period
without the authority of a magistrate. The magistrate can pass order of remand
to authorise the detention of the accused in such custody as such magistrate
thinks fit, for a term not exceeding 15 days in the whole.
The fundamental rights will remain mere promise if Magistrates do not ensure
compliance of the same. Hence, magistrates have been given the fundamental duty
under amended section 50A of the Criminal Procedure to satisfy that the police
has informed the arrested person of his rights and made an entry of the fact in
book to be maintained in the police station.
There have been frequent complaints about the police's noncompliance of the
above mentioned requirements. The magistrates are empowered under section 97 to
issue search warrant which is in the nature of a writ of habeas corpus for
rescue of a wrongfully confined person by intervention of police directed by a
magisterial order. If magistrate has reason to believe that any person is
confined under circumstances that amounts to an offence, he may issue a search
warrant and person if found shall be immediately taken before a magistrate.
In Sheela Barse vs State of Maharashtra
(1983), it was held by the Hon'ble
Supreme Court that the arrested accused person must be informed by the
magistrate about his right to be medically examined in terms of section 54. In
this case, High court directed magistrates to ask the arrested person as to
whether he has any complaint of torture or maltreatment in police custody.
Further, in Hussainara Khatoon and others vs. Home secretary, State of Bihar
it was held that it is the duty of the magistrate to inform the accused
that he has a right to be released on bail on expiry of statutory period of 90
or 60 days as the case may be.
Suffice is to say that magistrates are the best persons to oversee that the
accused is not denied his rights.
STAGE – III – Magisterial interventions while deciding applications for
recording of statement u/s 164 of the Cr.P.C/Test Identification Parade, and the
Recording of Statements of the witnesses is a vital part of the
investigation. Statements recorded by the Police Officers during investigation
are inadmissible in evidence, except in limited cases where it can either be
used as a Dying Declaration or only insofar as it leads to a recovery. These
statements, however, can be used for contradiction and cross examination of the
prosecution witnesses, at the time of trial.
Section 164 of Cr.P.C. allows recording of statement of witnesses & confessions
by the magistrate. The statement of witnesses under this section is recorded on
oath. Section 164 empowers magistrate to record even when he has no jurisdiction
in the case.
Before recording any such confession, the magistrate is required to
explain to the person making confession that:
- He is not bound to make such a confession
- If he does so it may be used as evidence against him
Confessions and dying declarations recorded by magistrate constitute valuable
evidence as they may form the basis of conviction of the accused. Although there
is no hard and fast rule as to proper manner of recording the same, the
Magistrate must follow certain broad guidelines to ensure that the document
inspires confidence of the court assessing it.
STAGE – IV – Monitoring of Investigation:
The argument that there is no provision in CrPC that allows the magistrate to
monitor an investigation has been debunked by the Supreme Court conclusively
in Sakiri Vasu vs. State of U.P. (2008) wherein such power has been read
within Section 156(3) of the CrPC. It has been held that the power to direct
investigation u/s 156(3) of the CrPC is wide enough to include all such powers
in a Magistrate which are necessary for ensuring a proper investigation and the
Magistrate can also under the same provision monitor the investigation to ensure
a proper investigation.
Therefore, in appropriate cases, the victim, complainant
or a witness can approach the court seeking necessary directions to the police
and supervision of investigation.
Where the power to pass necessary directions may be used are: to protect
witnesses, check disregard of vital evidence (which may get obliterated in
course of time), non-examination of witnesses, deliberate shielding of some
accused, or the investigating officer being interested in the case. In such
cases, a magistrate ought to push the envelope and actively monitor the
investigation, while avoiding investigating himself, or directing investigation
by a specific agency, with respect to which there is a specific embargo on the
powers of the magistrate.
Monitoring of investigation by the magistrate is, therefore, of vital importance
to protect the integrity of prosecution.
Stage – V – Further investigation after filing of police report:
Magisterial vigil does not terminate on the filing of the police report on the
conclusion of the investigation and the court is not bound to accept the results
of an investigation conducted by the police. After completion of investigation,
the police files either be in the nature of charge sheet or final report. If the
investigation ends with final report, different courses are open to the
He may either accept the final report and close the proceeding or he
may take the view that the said report is not based on complete investigation,
in which case he may in exercise of power conferred by sec 156(3) of CrPC,
direct the police concerned to make further investigation.
The third course open
to him is that he in not agreeing with the views of the investigating officer,
may on the scrutiny of the case diary take cognizance of the offence. In the
case the police concludes that no case is made out against the accused, the
Magistrate has to issue a notice to the informed/victim and hear him out. After
hearing the informant, the court can, notwithstanding the closure report, choose
to proceed with the matter, as a case based on police report or even a prior
Another option available is ordering further investigation. Section 173(8) of
the CrPC expressly lays down such a course of action. However, the section does
not enlist considerations that will govern the exercise of such power.
Illustrative cases where further investigation may be ordered are : where the
police acts in a partisan manner to shield the real culprits and the
investigation has not been done in a proper and objective manner but is tainted,
non-examination of crucial witnesses, clearing of doubts and to substantiate the
prosecution case. To conduct fair, proper and an unquestionable investigation is
the obligation of the investigation agency and the court in its supervisory
capacity is required to ensure the same.
The magistrate also cannot order a further investigation by a different agency
(agency other than the original investigating agency) either, as that will
amount to re-investigation. Only the higher courts have the power to order
reinvestigation by a different agency, such as the CBI. The result of the
further investigation is called a ‘supplementary report' and can supplement the
primary police report, already on record.
It is apparent that ample powers are vested in the magistrate to check arbitrary
arrests, police excesses & to facilitate a more incisive probe into the
discovery of truth, at various stages of an investigation, and even after filing
of the police report.