CHAPTERISATION

INTRODUCTION ORGANISATIONAL STRUCTURE.. ROLE IN CRIMINAL JUSTICE SYSTEM. ROLE DURING TRIAL AND TOWARDS ACCUSED.. ETHICS OF PUBLIC PROSECUTOR. CONCLUSION AND SUGGESTIONS BIBLIOGRAPHY 3 6 10 13 19 23

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ACKNOWLEDGEMENT
For this project has involved over one month time of researching and writing. This project has been helpful in enriching my knowledge and clearing my concept about the topic. Many people have been extraordinarily generous with time, information and counsel. So with pleasure, I would like to dedicate a paragraph to them. But I shall hope that each of the individuals and institutions named will appreciate the extent and warmth of my gratitude to them. Institutions The library staff of Chanakya National Law University, Patna who helped me during the entire period, with books and other materials for the accomplishment of this project work. Individuals These are divided into several groups, beginning with those friends, colleagues, and mentors who supported me all through the project work. In no particular order, they are: my honourable faculty
FR. PETER LADIS F and librarian RATNESH KUMAR and others.

Last but not least I would like to thank Almighty whose blessing helped me to complete this project

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INTRODUCTION
In organized societies, there is a public prosecution system to prosecute offenders who violate societal norms. The system in common law countries differs from that in the continental countries, but in both, this office is a centre of attraction, a power centre. It wields a lot of authority. It is the repository of the public power to initiate and withdraw prosecution. These powers are un trammeled in continental counties, where this office is called procurator. The word procurator is derived from the Latin word procuro, which means care, secure, protect. Though the prosecutors in the common law countries do not carry these adulations, it appears the powers exercised by procurators are similarly understood to be available to the prosecutors in common law countries. However, many of the main powers are not available. In continental countries the procurator is looked upon as the strict eye of the state. He prohibits, punishes and prevents. The defence lawyer is viewed as defender. One of the procurators chief functions must be to protect citizens legitimate rights and interests with actions, not words, as prescribed by the law. The impression that the procurator is independent and impartial is accepted in the common law countries though in fact in these countries they may not be impartial. Even in the face of statutory provisions to the contrary, their traditional rights like nulle prosequi are accepted. Therefore, generally speaking, it could be said that the prosecution system in common law countries works within the statutory provisions in the context of traditional powers and duties attached to this office in continental countries. In India, we have a public prosecutor who acts in accordance with the directions of the judge. The control of trial is in the hands of the trial judge. Investigation is the prerogative of the police. The decision to prosecuteXa function attributed to the procurator in continental countriesXis taken in India by the magistrate on the report submitted by the police. Again, the withdrawal of the prosecution can also be done only with the permission of the court. However, it is generally believed that traditional right of nulle prosequi is available to the prosecutor. Being an officer of the court, the prosecutor is believed to represent the public interest and as such not to seek conviction of a party by hook or crook. The prosecutor is supposed to lead evidence favourable to the accused for the benefit of the court, not conceal it to secure a
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conviction. It is also believed that in a case of withdrawal of prosecution, if the prosecutor makes an independent decision to withdraw a case then the court should accept this and permit withdrawal under section 321 of the Criminal Procedure Code (CrPC). The nature of the powers of the public prosecutor is sometimes doubted. At times, it appears to be executive power. In certain contexts, it may appear to be quasi-judicial. The principle that the Supreme Court laid down in R K Jains case1, quoting Shamsher Singh v. State of Punjab2, as regards the meaning and content of executive powers tends to treat the public prosecutors office as executive. But the conclusions of some courts create doubt as to its exact nature. To the suggestion that the public prosecutor should be impartial (a judicial quality), the Kerala High Court equated the public prosecutor with any other counsel and responded thus: Every counsel appearing in a case before the court is expected to be fair and truthful. He must of course, champion the cause of his client as efficiently and effectively as possible, but fairly truthfully. He is not expected to be impartial but only fair and truthful.3In a subsequent decision, however, the same high court had to distinguish between a public prosecutor and a counsel for the private party thus: Public prosecutors are really ministers of justice whose job is none other than assisting the state in the administration of justice. They are not representatives of any party. Their job is to assist the court by placing before the court all relevant aspects of the case. They are not there to use the innocents go to the gallows. They are also not there to see the culprits escape conviction. But the pleader engaged by a private person who is a de-facto complainant cannot be expected to be so impartial. Not only that, it will be his endeavour to get the conviction even if a conviction may not be possible.4 Though the office of the public prosecutor seems to have the features of the executive, the judiciary does not appear to treat it so, because it does not approve of the appointment of police officers as public prosecutors. The Punjab & Haryana High Court in Krishan Singh Kundu v. State of Haryana 5 has ruled that the very idea of appointing a police officer to be in
1 2

AIR 1980 SC 1510 1974) 2 SCC 831 3 Aziz v. State of Kerala (1984) Cri. LJ 1060 (Ker) 4 Babu v. State of Kerala (1984) Cri. LJ 499 (Ker) 5 1989 Cri. LJ 1309 (P&H)
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charge of a prosecution agency is abhorrent to the letter and spirit of sections 24 and 25 of the Code. In the same vein the ruling from the Supreme Court in SB Sahana v. State of Maharashtra6 found that irrespective of the executive or judicial nature of the office of the public prosecutor, it is certain that one expects impartiality and fairness from it in criminal prosecution. The Supreme Court in Mukul Dalal v. Union of India7 also categorically ruled that the office of the public prosecutor is a public one and the primacy given to the public prosecutor under the scheme of the court has a social purpose. But the malpractice of some public prosecutors has eroded this value and purpose.

AIMS AND OBJECTIVE

The aims and objective in carrying out this project are follows:

It is broadly aimed at understanding the role of public prosecutor during pre-trial and post trial. It is also to find out the advisory role of public prosecutors in his advisory role to the executive wing of the state and the role he plays as an advocate before the judicial wing of the state

HYPOTHESIS
There is no proper co-operation between Prosecutor and police. There is absence of training for prosecutor by the govt.

RESEARCH METHODOLOGY
The methodology for conducting this project work is purely doctrinal. The researcher used secondary sources like books, journals and reported cases. And primary source i.e bare act of code of criminal procedure act, 1973

6 7

(1995) SCC (Cri) 787 1988 3 SCC 144

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ORGANISATIONAL STRUCTURE:
PUBLIC PROSECUTOR & ADDITIONAL PUBLIC PROSECUTOR
Prosecuting officers to conduct cases before the High Court and before the courts in the Districts are required. Certain prosecutions are on behalf of the Central Government and certain prosecutions are on behalf of the State Government. The appointment of such Public Prosecutors and additional prosecutors is regulated by Section 24 of the Code of Criminal Procedure, 1973. A person shall be eligible to be appointed as a Public Prosecutor or an additional Public Prosecutor only if he has been in practice as an advocate for not less than seven years. In computing this period of seven years practice as an advocate his earlier service as a prosecuting officer of any description and category is also deemed to be the period during which such person has been in practice as an advocate. Therefore, only advocate is made eligible to become Public Prosecutor or Additional Public Prosecutor.

At the High Courts

The Central Government or the State Government shall appoint a Public Prosecutor for every High Court for conducting any prosecution, appeal or other proceedings. There is no option left to the respective Governments and the mandate of law is clear that the Governments are bound to appoint such officers. However, the Governments have discretion either to appoint or nor to appoint one or many additional Public Prosecutors for the High Courts. Thus, it is for the Government to assess the need on the basis of volume of work and take a decision. The respective Governments shall appoint the Public Prosecutor or additional Public Prosecutor for the High Court only after consultation with the High Court. The normal connotation of consultation is holding discussions in order to exchange opinions or get advice.

At the Districts
The Central Government may appoint one or more Public Prosecutors in any district, or local area295. Thus, there is option for the Central Government to make or not to make any
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appointment considering the fact whether it has cases in a particular district. There is no provision for additional Public Prosecutors. Any number of prosecutors appointed in a district by the Central Government is only in the category of Public Prosecutors. There is no need for the Central Government to consult any authority in appointing a Public Prosecutor in the districts. This is in contrast to appointment of Public Prosecutor for the High Court by the Central Government as well as appointments of such officers by the State Governments in the Districts. The State Government shall appoint a Public Prosecutor for each district. It being mandatory, there is no escape for the State Government and it shall appoint at least one Public Prosecutor in every district. However, appointment of Additional Public Prosecutors is left to the choice of the State Government and it may make or may not make any such appointments. It all depends on the volume of the work and the number of courts available in a district that shall govern the discretion of the State Government. The mode and method of appointment of Public Prosecutors and the Additional Public Prosecutors of the State Government is similar. The District Magistrate of each district shall prepare a panel of names of advocates and the State Government shall choose the persons for appointments only from those panel. For each post, how many names are to be empanelled is not referred to by the Code of Criminal Procedure and it is left to the subordinate legislation or circular orders. Concerning the preparation of panel of names, it is not the exclusive forte of the District Magistrate, since he shall consult the Sessions Judge and then only prepare the panel. Thus, the District Magistrate shall ascertain the views of the Sessions Judge concerned and prepare the panel making the recommendations300. It thus transpires from the law that in the appointments of Public Prosecutors and Additional Public Prosecutors in every court in the State, the judiciary is given a role and without consulting it, the State Governments are prohibited from making any such appointments. In contrast, judiciary has no role to play in cases of appointments of Public Prosecutors for the districts by the Central Government.

ASSISTANT PUBLIC PROSECUTOR

For conducting cases in courts of Magistrates, the State Government shall and the Central Government may appoint such number of Assistant Public Prosecutors in every District. Where 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. Thus Assistant Public Prosecutors can be appointed by the Central Government, State Government and in a certain contingency by the District Magistrate. In
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contrast to appointment of Public Prosecutors, the provision for appointment of Assistant Public Prosecutors does not specify the manner and method of their appointment and notably there is no reference to the eligibility criteria as to the educational or other qualifications a person shall possess to be eligible for being appointed as Assistant Public Prosecutor. It is not expressly provided in law that he should be legally qualified. There is no indication in the Section whether his appointment is to be on a contract basis for a specified period or he is a full time government servant. All these aspects associated with his recruitment are left to the subordinate legislation of the respective State Governments. However, the recruitment mechanism adopted in all the States is through the respective Service Commissions in the states or through Police Recruitment Boards by way of competitive examination. The eligibility rules generally indicate that the persons shall have a law degree and may be some times required to have some specified period of experience at the bar as an advocate. Once they are selected they become full time employees of the State Government and are forbidden from doing private practice. It seems that in many States Assistant Public Prosecutors is made a cadre in the service and limited promotional channels are created. A person is initially recruited as Assistant Public Prosecutor and after putting up a certain years of service he would be promoted as Senior Assistant Public Prosecutor. All the Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors are under the control of Directorate of Prosecution as specified in Section.25A of Cr.P.C.1973.

SPECIAL PUBLIC PROSECUTOR

Law attempts to address usual as well as unusual situations. Crimes and criminals are prosecuted in courts. That being the usual, there is provision for a Public Prosecutor for each court to prosecute the usual. When there is something unusual, either with the crime or with the criminal, there is provision for Special Public Prosecutor to tackle that exigency. It is quite usual in law that when something is posited as unusual it raises a host of issues. That comes true as regards the Special Public Prosecutor too. What is unusual, who is to decide it, how is to decide it, how to appoint a Special Public Prosecutors are a few such issues. The designation Special Public Prosecutor is not defined anywhere but finds mention in Section 24(8) of Cr.P.C, and in certain other statutes such as Section.15 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. As functionaries in the system there are no differences between Public Prosecutor on one hand and Special Public Prosecutor on the other hand. Their powers and duties are identical. However the setting in

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which they come to play their roles is the difference. Under the Code of Criminal Procedure 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. This is both an enabling provision for the Government to appoint special Public Prosecutor and it also postulates the eligibility criteria of the appointee. While the State Government is bound to appoint a regular Public Prosecutor for every district discretion seems to have been conferred upon the State Government to appoint a special Public Prosecutor. The expression Special prefixing Public Prosecutor connotes that his appointment must be preceded by some special circumstances. Looking at the length of practice that is required for appointing a person as Special Public Prosecutor as compared to that of a Public Prosecutor, it is evident that the Special Public Prosecutor must be a more competent and experienced person than a Public Prosecutor. Further, there should be special circumstances for making such appointments310. As and when such special circumstances are available there is choice and discretion for the government to appoint a Special Public Prosecutor and entrust him the assignment. To the extent of such case or class of cases, the built in area of operation of the regular Public Prosecutor gets restricted.

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Public Prosecutor in the criminal justice system:

It is worthwhile to go into the role of a Public Prosecutor in the criminal justice system. The Prosecutor has a duty to the State, to the accused and to the Court. The Prosecutor is at all times a minister of justice, though seldom so described. It is not the duty of the prosecuting counsel to secure a conviction, nor should any prosecutor even feel pride or satisfaction in the mere fact of success. Still less should he boast of the percentage of convictions secured over a period. The duty of the prosecutor, as I see it, is to present to the tribunal a precisely formulated case for the Crown against the accused, and to call evidence in support of it. If a defence is raised incompatible with his case, he will cross-examine dispassionately and with perfect fairness, the evidence so called, and then address the tribunal in reply, if he has the right, to suggest that his case is proved. It is not rebuff to his prestige if he fails to convince the tribunal of the prisoners guilt. His attitude should be so objective that he is, so far as humanly possible, indifferent to the result. It may be argued that it is for the tribunal alone, whether magistrate or jury, to decide guilt or innocence8 to the following effect: Public Prosecutors are really Ministers of Justice whose job is none other than assisting the State in the administration of justice. They are not representatives of any party. Their job is to assist the Court by placing before the Court all relevant aspects of the case. 9 They are not there to see the innocent sent to the gallows; they are also not there to see the culprits escape conviction Public Prosecutor is defined in some countries as a public authority who, on behalf of society and in the public interest, ensures the application of the law where the breach of the law carries a criminal sanction and who takes into account both the rights of the individual and the necessary effectiveness of the criminal justice system. Prosecutors have duties to the State, to the public, to the Court and to the accused and, therefore, they have to be fair and objective while discharging their duties. Public Prosecutor has to act independently from the Police: The independence of the prosecutors function stands at the heart of the rule of law. Prosecutors are expected to behave impartially10. Prosecutors are gatekeepers to the criminal justice process as stated by Avory J in R v. Banks11. The learned Judge stated that the prosecutor, throughout a case ought not to struggle for the verdict
8

Christmas Humphreys (1955 Criminal Law Review The Law Commission of India in its 154th Report on Code of Criminal Procedure, 1973 (in chapter III, para 15) 9 Babu v. State of Kerala : 1984 Cr LJ 499 (Ker H.C.) 10 (Report of the Criminal Justice Review in Northern Ireland, 2000) 11 1916 (2) KB 621

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against the prisoner but ought to bear themselves rather in the character of minister of justice assisting the administration of justice It is now too well-settled that Prosecutors are independent of the police and the Courts. While the police, the Courts and the prosecutors have responsibilities to each other, each also has legal duties that separate them from others. The prosecutor does not direct police investigations, nor does he advise the police. Public Prosecutors are part of the judicial process and are considered to be officers of the Court. Public Prosecutor must act on his own independent of Executive influence: The Government should ensure that public prosecutors are independent of the executive, and are able to perform their professional duties and responsibilities without interference or unjustified exposure to civil, penal or other liability. However, the public prosecutor should account periodically and publicly for his official activities as a whole. Public prosecutors must be in a position to prosecute without influence or obstruction by the executive or public officials for offences committed by such persons, particularly corruption, misuse of power, violations of human rights etc. Even in regard to withdrawal of prosecutions under sec. 321 of the Code of Criminal Procedure, 1973, the Supreme Court has pointed out in Balvant Singh v. State of Bihar: 12that it is the statutory responsibility of the public prosecutor alone to apply his mind and decide about withdrawal of prosecution and this power is non-negotiable and cannot be bartered away in favour of those who may be above him on the administrative side. In Subhash Chander v. State13 the Supreme Court stated that it is the public prosecutor alone and not any other executive authority that decides withdrawal of prosecution. Consent will be given by the Public Prosecutor only if public justice in the larger sense is promoted rather than subverted by such withdrawal. In doing so, he acts as a limb of the judicial process, and not as an extension of the executive. He has to decide about withdrawal by himself, even where displeasure may affect his continuance in office. None can compel him to withdraw a case. The public prosecutor is an officer of the Court and is responsible to the Court. These principles were reaffirmed by the Constitution Bench in the second case going by the citation, Sheonandan Paswan v. State of Bihar:14. Public Prosecutor not to involve himself in investigation of the case: The Public Prosecutor should not be involved in the investigation process. As held by the Supreme Court in R. Sarala v. T.S. Velu15, investigation and prosecution are two different facets in the administration of criminal justice. The Role of the public prosecutor is inside the Court, whereas the role of investigation is outside the Court.
12 13

AIR 1977 SC 2265 AIR 1980 SC 423 14 AIR 1987 SC 877 15 AIR 2000 SC 1731

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Normally, the role of the public prosecutor commences after investigation agency presents the case in the Court on the culmination of investigation. Involving the public prosecutor in investigation is unjudicious as well as pernicious in law.. The Investigation Officer cannot be directed to consult the public prosecutor and submit a chargesheet in tune with the opinion of the public prosecutor. Public prosecutor is appointed for conducting any prosecution, appeal or proceedings in the Court. He is an officer of the Court. The public prosecutor is to deal with a different field in the administration of justice and cannot be involved in investigation.

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ROLE OF PUBLIC PROSECUTOR DURING TRIAL TOWARDS ACCUSED

A trial is a search for truth. It is the task of the Public Prosecutor to reconstruct past events concerning the offence that was committed and the circumstances that led accused to commit the crime. He must bring out the facts and explain the law. Rules of evidence, rules of fair trial are the legal variables that govern the trial process. The character, competence and commitment of the counsel for State and the counsel for defence are important factors that determine how well and how swiftly the truth search can be completed. It is an entirely wholesome practice for trial to go on from day to day from its inception to its finish. It will be in the interest of both the prosecution and the defence that the trial proceeds from day to day Legally speaking, trial commences when the court hears both parties to the case and reads out the charges to accused and seeks his response to the charges.

What is the most important right guaranteed under the Constitution of India to an accused in a criminal trial? It is a right to have a fair trial, which is a logical expansion of Article 21 of the Constitution of India. If the trial should be fair its conductor should be fair to both parties. A special feature of the administration of justice in the filed of criminal law in is that only a Public Prosecutor can prosecute the case against an accused. This is reflected in the mandate contained in section 225 of the Code of Criminal Procedure. There is no exception to this rule. Any private counsel engaged by the injured, or any advocate briefed by the relatives of the deceased however influenced they may be, is not entitled to conduct the prosecution in the sessions cases. This system is the glaring acknowledgment of the special status and position, which the office of Public Prosecutor is expected to wield in our legal system16. Public prosecutor is defined in section 2(u) of the Code as any person appointed under section 24 and includes any person acting under the direction of the Public Prosecutor. Thus a special Public Prosecutor also would be a Public Prosecutor in respect of a particular case or a class of cases for which he is appointed. The powers conferred on Public Prosecutor are seemingly so wide and unfettered that parliament reposed confidence of great magnitude in the office of the Public Prosecutor. Thus special status and position as well as great powers have been conferred on the office of the Public Prosecutor. Every Public Prosecutor has reminded himself constantly of his enviable position of trust and
16

Seethi Haji Vs State of Kerala 1986 KLT 1274

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responsibility.17The very object of section 225 of the Code of Criminal Procedure which insists that the sessions cases should be conducted by the prosecutor is explained in Karthik Ram Vs Emperor18 wherein the court held that the interest of the crown and the complainant are not always the same. Private parties often wish to serve their own private ends and the criminal proceedings are not primarily designed for that. It would be unfortunate to allow private passions and prejudices to creed into the conduct of a criminal trial, when it can be avoided. In Babu Vs State of Kerala 19it is held that Public Prosecutors are really ministers of justice whose job is none other than assisting the state in the administration of justice. They are not representatives of any parties. Their job is to assist the court by placing before the court all the relevant materials. Though there is a plethora of judicial pronouncements of the apex court as well as of the various high courts the most elaborated one on the point is delivered by Thomas J. in Shiv Kumar Vs. Hukum Chand20. In the decision the court observed it is as well for the protection of the accused persons in sessions trial (in India) that provision is made to have the cases against him prosecuted only by a Public Prosecutor and not by any counsel engaged by any private party. Fairness to the accused who faces prosecution is a raison detre of the legislative insistence on that score. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a sessions court cannot be conducted by anyone other than the Public Prosecutor. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused some how or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence brings it to the notice of the court or it comes to his knowledge. (Emphasis supplied) An early decision of a full bench of the Allahabad High Court in Queen-Empress Vs Durga had pinpointed the role of a Public Prosecutor as follows: - it is duty of a Public Prosecutor to conduct the case for the crown fairly. His object should be, not to obtain an unrighteous conviction, but, as representing the crown, to see that justice is vindicated; and in exercising his discretion as to the witnesses whom he should or should not call, he should bear that in mind. In our opinion, a Public Prosecutor should not refuse to
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(Abdul Khader Vs. Government of Kerala 1992 (2) KLT 948) AIR 1937 Nag 123 19 (1984 KLT) 165 20 (1999 SCC (Cri) 1277)

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call or put into the witness box for cross-examination a truthful witness returned in the calendar as a witness for the crown, merely because the evidence of such witness might in some respects be favourable to the defence. This remarkable observation was later followed by the Supreme Court in many of its judgments for deprecating the practice of giving up witnesses on the apprehension that they may turn hostile. In such a situation it is the duty of prosecutor to recourse to S 154 of Indian Evidence Act after calling him. High Court of Andhra Pradesh in Medichetty Ramakistiah V State of A.P. held that A prosecution, to use a familiar phrase, ought not to be a persecution. The principle that the Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing any anxiety to secure a conviction is based upon high policy and as such courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the court to obtain its decision thereon and not to obtain a conviction by any means fair of foul.

DUTIES OF PROSECUTOR TOWARDS ACCUSED DURING TRIAL

A. Examination of witnesses In Darya Singh Vs State of Punjab

21

it is held that the prosecutor must act fairly and

honestly and must never allowed the devise of keeping back from the court eye witnesses only because their evidence is likely to go against the prosecution case. The duty of the prosecutor is to assist the court in reaching a proper conclusion in regard to the case, which is brought before the trial. In (Shivaji Bodade Vs State of Maharashtra)22 Krishna Iyer J. speaking for a three judge bench had struck a note of caution while a Public Prosecutor to pick and choose witnesses, he should be fair to the court, truth and to the accused. The
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(AIR 1965 SC 328) 1973 SCC (Cri) 1033

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Supreme Court reiterated the same position in Dalbar Kaur Vs State of Punjab23 and in Hukkum Singh Vs State of Rajasthan24.

B. Giving copies to the accused In (State of Kerala Vs Raghavan25) it is held that Moreover, if the argument that the accused is not entitled to get copies of statements on which the prosecution does not seek to rely is accepted it would imply that the prosecution can, at its sweet will and pleasure pick and choose the statements of witnesses in respect of which the copies are to be, or are not to be, furnished to the accused to suit its convenience, thus eliminating all chances of the witnesses being confronted with their previous statements inconsistent with or contradictory to the case which the prosecution seeks to establish which could never be the intention of the legislature. If there is embellishment or contradictions in the statements given by the very same witnesses on different occasion, the veracity and trust worthiness of the witnesses have to be tested in cross examination with the aid of such materials to deny that would be to deny a just and fair trial to the accused. It should not certainly be the concern of the prosecution in such circumstances to deviate from or circumvent the relevant provisions incorporated in the code with view to ensure that the accused gets every opportunity to meet case brought against him. They are provisions based certain salutary principles of criminal jurisprudents to which, as the guardian of law, the court is found to adhere in its true spirits, even where the prosecution is tempted to keep the accused out of accesses to some of the documents which for his fair trial he is entitled to have. C. Not to suppress material facts As per the provisions of Cr.P.C. and Indian Evidence Act there is a total prohibition in using a statement recorded under section 161 of Cr.P.C. except for contradicting a witness. When a material fact which is capable of proving the defence case or capable of creating reasonable doubt in the prosecution case is stated by a witnesses in a statement recorded by the police, the accused or his agents cannot use it if the Public Prosecutor decided not to examine that witnesses. Though the accused can examine that witnesses as defence witnesses, if that witnesses omitted to state that material fact the accused could not contradict
23 24

1976 SCC (Cri) 527 (2000 SCC (Cri) 201) 25 1974 KLT 148

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with that previous statement as held in Tahsildar Singh Vs State of Punjab26. Though in Vincent Vs State of Kerala27 it is held that the trial judge can put questions to witnesses so as to help the court to discover or to obtain proper proof of relevant facts u/s. 165 of Evidence Act though it is hit by section 162 Cr.P.C. the supreme court in Dandhu Lakshmi Reddy Vs State of Andhra Pradesh 28held that even the power under section 165 of the Evidence Act is controlled by section 162 of Cr.P.C. Hence it is the duty of the prosecutor to draw the attention of the court to such material facts in order to avoid unmerited convictions.
D. Avoid leading Questions

In (Kesavan & another Vs State of Kerala)29 P.T. Raman Nair.J. it is held that I might advert to the complaint for counsel for accused that when ever any of the so called eye witnesses gave an incomplete answer or an answer not to liking of the prosecutor, the prosecutor was allowed to elicit answers to his liking by the simple expedient of put in leading questions to the witnesses. The complaint I find is well founded, and I must take exceptions both the conduct of the Public Prosecutor in having put such questions and of the learned sessions judge in having allowed them. The position was reiterated by the supreme court in Varkey Joseph Vs State of Kerala30 and it is further held that it is generally the duty of the prosecutor to ask the witnesses to state the facts or to give his own account of the matter making him to speak as to what he has been. The prosecutor will not be allowed to frame his question in such a manner that the witnesses answering merely yes or no will give the evidence which the prosecutor wishes to elicit. E. Avoid putting forth a new case different from the charge in surprise of the accused It is the duty of the prosecution to prove the prosecution story as alleged. It is not fair on the part of the prosecutor to create a prosecutors story. It must stand on its own legs as held in (Bhageerath Vs State of MP)31. It cannot take advantage of the weakness of the defence or make out a new case for the prosecution and convict the accused on that basis. It is also not fair on the part of the prosecution to rely on the admissions made by the counsel

26 27

AIR 1959 SC 1012 1993 (1) KLT 777 28 1999 (3) KLT SN 41 29 1960 KLJ 546 30 1993 (2) KLT 617 31 AIR 1976 SC 975

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for the accused during the cross-examination. As held in 1982 KLT 605 it is no part of the duty of the Public Prosecutor to secure by unfair means or foul, conviction in any case. He has to safe guard public interest in prosecuting the case, public interest also demands that the trial should be conducted in a fair manner, needful of the rights granted to the accused under the laws of the country. The prosecutor while being fully aware of the duty to prosecute the case vigorously and also is prepared to respect and protect the accused. F. Section 308 of Cr.P.C. and the duty of the prosecutor As per sections 306 and 307 a magistrate or a trial judge, as the case may be have the power to grant pardon to an accused with a view to obtaining evidence in cases where the conviction of any accused is otherwise not possible. Though the prosecutor has no role with the process of granting pardon to an accused when a person accepted a pardon, either by wilfully concealed anything essential or by giving false evidence, or not complied with the condition on which the pardon was made he can be tried for the offence and also for the offence of giving false evidence only when the Public Prosecutor certifies that he violated the conditions. So the right to fair trial to an accused in these types of cases was totally controlled by the power of prosecutor. Even when an approver totally exculpate himself and exaggerate the case against the others the accused persons could not challenge the tendering of pardon unless the prosecutor certifies that approver violated the condition of pardon. Hence it is the duty of prosecutor to observe carefully the conduct of the approver and his statements with a view to make it sure that the accused persons also get fair trial.

G. Role of prosecutor in withdrawal from prosecution. The full bench of the Kerala High Court in Deputy Accountant General Vs State of Kerala32 held that by incorporating the section in the statute book the legislature gave a wide power to the public prosecutor to withdraw an accused from the prosecution. When the parliament conferred the wide discretion envisaged under section 321 of Code on a public prosecutor a special confidence has been reposed in his high office that the discretion would not be exercised unfairly or defeating the administration of the criminal justice. Hence the prosecutor should apply his mind independently and must be fair to the accused also.

32

AIR 1970 KER 158(FB)

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ETHICS OF PUBLIC PROSECUTORS:

There are Codes, Acts, Rules and Instructions instructing the prosecutor and guiding him to discharge his functions. Law allows certain discretion to be exercised by the prosecutor. In exercising the discretion there may be choices to follow one rule instead of the other rule. He may have to pursue one policy instead of the other. Occupational cultures may hamper his vision. Therefore, there is need for ethical principles that should shape the way in which he exercises his powers and discharges his duties in the Criminal Justice System. This chapter examines some of those ethical principles of Public Prosecutors and their observance by them and explores the problems of putting principles into practice and the solutions to overcome problems. Many legal rules are based on ethical principles. However, the function of ethical principles is to supply strong reasons for adopting a particular rule in a given situation or to pursue a particular course of action in general. Besides that ethics would govern the practices of prosecutors and would lead them to develop best practices. Several situations are dealt with by non-mandatory rules and their non observance is not illegal and hence their observance or breach is not well supervised. Ethics prompt the observance of those rules. Certain ethical values are results of judicial precedent and the courts monitor the compliance of those ethics on part of prosecutors. Some of the ethical principles deserve mention.

Impartiality

Impartial as between persons. In the context of prosecutor, it requires that no 201 preference should be shown specifically towards a person viz., suspect, accused, and victim. His attitude towards anyone should not be based on extraneous grounds such as wealth, connection, sex, race and such other factors. Prosecutor ought to behave according to the assigned role rather than according to personal convenience, profit, or other extraneous motivation. In the adversarial system of criminal justice, the defence lawyers role is essentially partisan and he can take advantage of any legal point in favour of the accused, however technical it is and he could pursue that to the advantage of the accused. On the other hand, the prosecutors role is not that of an advocate appearing for a party. The prosecutor is supposed to act impartially, not seeking convictions as such but taking on the role of a minister of justice. The prosecutors goal should be to conduct the case dispassionately, seeking justice according to the law and disclosing to the defence all evidence that should be disclosed. Kerala High Court
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stated that prosecutor withholding an eyewitness from testifying before court solely on the ground that his evidence is likely to go against the prosecution case or withholding an independent and neutral witness from testifying in the court but adducing only the evidence of a partisan or interested witness alone are to be deprecated33. Supreme Court stated that when there are two categories of witnesses to the occurrence of crime, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the prosecutor has to act in a fair manner and should examine witnesses of the latter mentioned category too34. These two rulings are indicative of the ethics of the prosecutor not to favour his own case or favour the cause of the victim and not to grasp at the conviction of accused and he shall be impartial to the result of the case and the norm to comply with is only to get all that evidence which could unfurl facts before the courts.

Independence

Police and prosecutors are two wings of the Home Department in the State. Each of the States may have a Directorate of prosecution headed by a Director of prosecution appointed by the State Government with the concurrence of the Chief Justice of the High Court. All cadres of prosecutors except the advocate General are subordinate to the Director or his deputies. The Director and his deputies are not from police and they are drawn from legal profession. Thus, the prosecutors are functionally independent from police as well as judiciary. While being independent, prosecutor has to interact with police, witnesses, victim, and court. In his many strands of interaction he should keep up his independence and take decisions befitting his legal status. Ethics shape proper prosecutorial cultures. In his relationship with the Police, there are administrative guidelines261 compelling the police officer to forward the case file to the Assistant Public Prosecutor who shall assess the evidential sufficiency to charge the accused. He could also suggest for further investigation, if in his opinion the evidence collected is insufficient to send the case to court. Thus the prosecutor is independent in this sphere of activity. The researcher found that in practice, barring a few exceptions, the prosecutor never insisted the police for compliance of this administrative norm. The practice patently available in the State of Andhra Pradesh as openly acknowledged by almost all

33

34

Dasan v. State of Kerala, 1987 CriLJ 180 Hukam Singh v. State of Rajasthan, 2000 (2) ALT (Crl) 203 (SC).

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prosecutors is that the police do not send case files to them and the prosecutors on their own also do not call for case files for scrutiny. Thus prosecutors have compromised their independence. Hundreds and thousands of cases disposed of by criminal courts bear testimony to the fact that many cases have not met the legal requirements of proof of guilt. Thus the unethical compromise of prosecutors independence in decision making resulted in wasteful trials. In his relationship with the court when the issue is about withdrawal from prosecution, the prosecutor is independent and should decide the issue independently. Supreme Court of India stated that withdrawal powers are the exclusive province of prosecutors discretionary powers and any prosecutor who bends to the commands of executive authority in this sphere betrays the authority of his office35. Plethora of reported decisions in the law Journals indicate failure of prosecutors acting independently in withdrawal decisions. The researcher finds that a great majority of trial judges openly state that they never saw a prosecutor independently moving the process for withdrawal of cases fit for withdrawal. All this indicate abdication of independence by prosecutors and they pursued cases not fit for prosecution resulting in injustice and waste of resources.

Propriety: The position of a Public Prosecutor appointed by the State is one of great trust and confidence36. Prosecutors appointed under Criminal Procedure Code 1973 are to conduct prosecution of cases filed by police in the courts against accused. They cannot defend the accused even if the accused are police officers with whom he has inter- relationship37. It ould be inconsistent with the ethics of the legal profession and fair play in the administration of justice, if Public Prosecutor appears on behalf of the accused persons. His appearance on behalf of the accused would give rise to apprehension in the minds of the witnesses that in giving evidence against the accused, they would be not only incurring the displeasure of the Government but would also be fighting against it38. Instances are not lacking where the prosecutor not only examined the witnesses for prosecution but he summoned and examined all those possible witnesses whom the defence may call it on its side and as those witnesses did not support prosecution version he cross examined them. The technical rules of law of

35

Subash Chander v. The State, AIR 1980 SC 423. Krishnavataram v. The State of AP,1969 (2) APLJ 352 (AP). 37 Kannappan v. Abbas, 1986 Cri.LJ 1022. 38 Sunil Kumar Pal v. Phota Sheikh, AIR 1984 SC 1591.
36

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evidence are not violated, but the courts strongly condemned those practices39. All these rulings reinforce the ethical norms with clear duties and lead to practical impact on prosecutors in maintaining propriety.

Working at the best of ability There is a need for every prosecutor to maintain proper work culture. He should never fall prey to laziness and do his advisory work as a matter of mere routine. He should always work to the best of his ability. It is unethical, if he fails to show proper respect for citizens and the rights of the accused. Speaking about the advisory role of a prosecutor in instructing his client regarding preferring an appeal against an acquittal judgement, the Andhra Pradesh High Court said that the prosecutor should call for all the materials, look into them, give serious consideration and only then give an opinion. Not doing so would be to jeopardise and harass an acquitted accused contrary to the highest standards of professional ethics and fair play that is attached to the office of the Public Prosecutor40. Thus, between slackness and hard work it is the ethics that shall guide the prosecutor in discharge of his duties.To sum up, many of the acts, attitudes and discretionary exercises of prosecutors are characterised by ethics rather than by binding rules. It is desirable to have a proper document of Statement of Values prepared by the Directorate of Prosecutions putting together examples of situations where there may be a divergence between the ethical and other approaches. The next step would be to inculcate the principles through training and other means. The main task would be to convey the reasons why these principles are worth adhering to, whether by abstract instructions or by means of role-play exercises, debates, etc. Otherwise, a statement of ethical principles would be a poor match for a wellentrenched occupational culture. The ethical approach may be viewed as preventive, in the sense that it seeks to foster ethical conduct that will lead to fewer system errors and fewer miscarriages of justice271. After all, the prosecutor is claimed to be Minister of Justice and the system shall prepare him to act as such.

39

Re Biswanath, 100 IC 365 as collected in Sarkar on Evidence at page 2150, 15 th Edition, Wadhwa and Company Nagpur. 40 In Re-Public prosecutor AIR 1960 AP 64

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CONCLUSION AND SUGGESTIONS:

The commission of a criminal act is commonly regarded as an offence against the State which to be dealt with by the Criminal Justice machinery of the State Executive. Therefore, on thorough considerations of the above material, it is crystal clear that it is not the duty of Public Prosecutors to quest conviction at all cost. Nor, is their duty to act as an avenging angle for the victim. On the contrary, their fundamental duty is to ensure that justice is delivered and in pursuance of this they should lay before the court all relevant evidence including the evidence that favours the accused. Corollary to this is the duty of a Public Prosecutor to bring to attention of the Court, any issue that the defense could have raised, but has failed to do. But, in doing so, they cannot act as if they are defending the victim, nor can they appear on behalf of the accused. When the Prosecutor acts in a manner as if she/he was defending the accused, then there is no fair trial. A Public Prosecutor is an independent entity from police and police cannot order her/him to conduct prosecution in a particular way. Police, politicians or any other extraneous party cannot influence her/his actions, including her/his discretion to decide withdrawal of a case. The Public Prosecutor represents the State but not the police and can only be influenced by public interest. In pursuance of their duties, public prosecutors should not use improper methods calculated to produce wrongful convictions and she/he must discharge her/his functions in a scrupulously fair and honest way. A fortiori, a Public Prosecutor has the responsibility of a minister of justice and not simply that of an advocate.

SUGGESTIONS: Law shall put a set of police personnel under the control of Public Prosecutor for trial There should be proper co-operation and co-ordination between prosecutor and police. There should be proper training for the public prosecutor by the state govt. and central govt. Awards and incentive should be given to the public prosecutor who done well in his case.

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BIBLIOGRAPHY:
Basu, Durga Das Criminal Procedure Code, 1973, 2 Vols, 2010 Sengupta, s.p, code of criminal procedure Askar, hasan , criminal procedure and police Bharti, Dalbir (2005). The Constitution and criminal justice administration. APH Publishing.

WEBSITES
http://www.delhidistrictcourts.nic.in/CrPC.htm http://www.law.cornell.edu/wex/criminal_procedure http://www.advocatekhoj.com/library/bareacts/codeofcriminalprocedure/index.php?Ti tle=Code%20of%20Criminal%20Procedure%20Act,%201973

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