Public Prosecutors

Public Prosecutors 1

In India the adversary system of criminal trial is adopted.

2

In an adversary system the state uses its machinery for investigation of crimes and employs a prosecutor to prosecute the accused.

3

The accused will be entitled to appoint or engage a competent defense counsel to challenge the evidence of the prosecution.

4

The Central and State Governments are empowered to appoint prosecutors on its behalf for conducting prosecution and other criminal proceedings in the High Court, Sessions Court or Court of a Magistrate.

5

Sections 24 and 25 of the Cr.P.C deal with qualification and appointment of Public Prosecutors and Assistant Public Prosecutors.

6

Public Prosecutors in High Court- Section 24 (1) of the Code provides that, the Central Government or State Government shall, after consultation with the High Court, appoint a Public Prosecutor and one or more Additional Public Prosecutors for every High Court in order to conduct any prosecution, appeal or other proceedings on behalf of the Central Government or State Government.

7

A person shall be eligible to be appointed as Public Prosecutor or Additional Public Prosecutor in the High Court only if he is an advocate with not less than seven years practice.

8

Public Prosecutors in Sessions Court-The Central Government may appoint one or more public prosecutors in the Sessions court for the purpose of conducting any case or class of cases in the Sessions court.

9

The State Government shall appoint a public prosecutor and may appoint one or more Additional Public Prosecutors for conducting criminal cases in the Sessions Court in every district.

10 The Advocate to be appointed by the State Government as Public Prosecutor or Additional Public Prosecutor must be one of the advocates in the panel prepared by the District Magistrate (Collector) in consultation with Sessions Judge. 11 In order to be appointed as Public Prosecutor or Additional Public Prosecutor, the advocate should have practice for not less than seven years.

12 Special Public Prosecutor- By section 24 (8) of the Cr.P.C, the State Government as well as the Central Government can appoint Special Public Prosecutor for conducting prosecution of any case. A person who has been in practice as an advocate for not less than ten years is eligible to be so appointed.

13 Assistant Public Prosecutors. a

The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecution in Magistrate Courts.

b

The Central Government can also appoint Assistant Public Prosecutors for conducting cases in Magistrate Courts.

c

A police officer shall not be eligible to be appointed as an Assistant Public Prosecutor.

d

If no Assistant Public Prosecutor is available for the purpose of any particular lease, the District Magistrate may appoint any person to be the Assistant Public Prosecutor in charge of that case, in such a circumstance, a police officer who has taken part in the investigation of that case shall not be appointed as Assistant Public Prosecutor.

e

If a police officer is appointed as Assistant Public Prosecutor, he shall not be an officer below the rank of Inspector.

f

In the State of Kerala, advocates having three years active practice in the criminal courts and not above the age of 35 years are qualified to be appointed as Assistant Public Prosecutors.

g

The appointment is given by the Government after conducting a written test and oral interview.

h

The appointment is permanent in nature.

i

A person holding the office of Assistant Public Prosecutor cannot practice as a lawyer. He cannot take private cases.

j

A Public Prosecutor appointed for conducting cases Sessions Court can take private cases in which State is not a party.

[In Abdul Khader v. Government of Kerala (1992 (2) KLT 948), the court held that a District Magistrate is obliged to consult the Sessions Judge in the matter of appointment of Public Prosecutor. It is the Sessions Judge who has better opportunities to assess the merits and capabilities of an advocate. His views on the person acquire considerable weight to help the District Magistrate in preparing the panel. A District Magistrate is not supposed to delete a person recommended by the Sessions Judge from the panel, nor could the District Magistrate include a name which has not been recommended by the Sessions Judge. Consultative process envisaged in the provision cannot be made a mere formality. Office of a Public Prosecutor carries very great public importance in the scheme of criminal trials in Sessions Court.

In Slfieo Nandan Paswan v. State of Bihar (AIR 1987 SC 878), it was held that a Public Prosecutor is an officer of the Court and owes an obligation to the court to be fair, just and impartial. He is bound to represent the case cjf the State fearlessly and with full sense of responsibility. He is not merely a mouthpiece of Government. The Office of the Public Prosecutor is of a public nature of considerable significance for the integrity and efficiency of the administration of criminal

justice. The object of criminal trial is to find out truth and to determine whether the accused has committed a crime with which he is charged. It is, therefore, required of the public prosecutor to place all evidence before the court and not to secure conviction of the accused at any cost or by hook or crook.

In! Rondel v. Worsely (1967) 1 QB 443), (by Lord Denning), it was held that an Ideal Public Prosecutor should neither mis - state the facts, nor conceal the truth. He must present a full and complete picture of facts and of reievtant, evidence before the Court. He should not consider himself an agent of the Government but an agent of Justice. He is, in real sense, a Minister of Justice.]

[In Abdul Khader v. Government of Kerala (1992 (2) KLT 948), the Court rfeld that a Special Public Prosecutor can be appointed under section 24 (8) pf the Code of Criminal Procedure by the Government. The Code does not lay down the conditions for appointment of a Special Public Prosecutor A Special Public Prosecutor can be appointed only in special circumstances. When a situation arises for appointing a Special Public Prosecutor, Government shall consider a more experienced advocate for the assignment. Special Public Prosecutor could be appointed only when public interest demands it and not to vindicate the grievances of a private person^ such as close relation of the deceased. The mere fact that the accuseti ma particular case are engaging a leading criminal lawyer is not sufficient to make it s special situation warranting appointment of Special Public prosecutor.]