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1
INTRODUCTIONThe commission of a criminal act is commonly
regarded as an offence against the State, to be
dealt with by the criminal justice machinery of
the State executive. Further, two essential
components of any functioning system of
criminal justice are the investigation of alleged
offences, and their prosecution. Nevertheless,
the nature of the relationship between the
entities that investigate offences, those that
prosecute them, and the State executive itself,
remains a matter of controversy in India and
elsewhere. The importance of understanding
this relationship is highlighted in certain widely
discussed judgments of the Supreme Court,
which deal explicitly with the implications of a
nexus developing between the processes of
investigation, prosecution, and the executive.1
The first and most recent is Zahira Habibullah
v. State of Gujarat,2
wherethe conduct of the
Best Bakery case in the 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 Supreme Court,
leading to what Rajeev Dhavan has described
as the severest indictment ever of the justice
and governance system of any State. The
Supreme Court, in ordering a retrial of the
matter in the Maharashtra High Court,
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 andcastigated the State Government, for having
subjected the criminal administration system
to its own whimsical political wills. Similarly,
1see Smith and Hogan: criminal lawDavid
Ormerod (11th
ed.)pg.592
AIR 2004SC O322
the other case where the importance of
shielding the agencies charged with
investigation and prosecution from
extraneous influences, even of the controlling
executive was noted, was Vineet Narain v.
Union of India3, where the Court found that
the CBI had failed to investigate properly
offences involving high political dignitaries. The
Court emphasized the need to ensure that
there are no arbitrary restrictions to the
initiation of investigations or launching of
prosecutions. Finally, in 2000, in R. Sarala v.
T.S. Velu,4 the Supreme Court ruled that any
nexus between the prosecution and the
investigative agency was also pernicious in law,
and that the prosecutors place was inside the
courtroom, not outside it.
Prosecution has been defined as the
institution or commencement of criminal
proceedings, the process of exhibiting formal
charges against an offender before a legal
tribunal, and pursuing them to final judgment
on behalf of the State or Government. It is
now widely accepted that although the
prosecutor is formally engaged in adversarialproceedings against the accused, he in fact
owes allegiance to a higher cause- the
administration of justice. Further, in recent
times the Courts in India have held that the
public prosecutor who discharges this function
is first and foremost an officer of the court,
an agent of justice, who, though
representing the State in criminal proceedings,
is the independent holder of a public office.
But although its most recent judgments doprovide definite support to the idea of the
independence of the prosecutor, from both
the police and the State executive, the
Supreme Court itself has over the years
3AIR 1998 SC 827
4AIR 2000 SC 1731
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expressed conflicting views on the status of
the prosecutor and the degree, if any, to which
he is subordinate to other authorities in his
functioning. Further, opinions as to the extent
to which the prosecutor should be linked to
the investigation of offences, and how far he
or she oughtto be subject to the directions of
the executive, in order to best fulfill his role,
vary. The Law Commission5, in its 14
thReport,
argued strongly for a separation between the
police- as the investigative agency- and the
prosecutor, but several State Police
Commissions have disagreed with this
demarcation, as has the Malimath Commission
in its recent report on criminal justice in India..
Aim of the Paper
The aim of this paper is to comparatively
analyses the structure, role and function of the
prosecuting agencies in india and England .
This paper also analyses various provisions of
law relating to prosecuting agencies in Indian
as well as in English law. Further, It is the
issues raised in the abovestated decisions-
insofar as they relate to the proper place of
prosecution in Indias criminal procedure, and
its relationship with both the investigative
agency and the State executive- that form the
subject matter of this paper This paper is
primarily concerned with the structure, role
and function of prosecuting agencies in India
and England.
For the preparation of this paper I have
primarily relied on books and various statutes
in operation in india and England . I have also
used various journals,research papers and
ariticles published in press and on internet for
the purpose of this research paper.
514
THreport of the Law Commission on the Reform
of the Judicial Administration
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INDIAN SYSTEM
I. INTRODUCTION
India is a Union of States and is governed by a
written constitution which came into force on
26 November 1949. India consists of 25 states
and 7 Union Territories. Due to its colonial
heritage, India follows the Anglo-Saxon
common law justice system. Article 2466 of the
Constitution provides for three lists which
are enumerated in 7th Schedule of the
Constitution. List-1 is the Union List
which enumerates the subjects on which
the Parliament of India has exclusive
power to make the laws. List-2 is the State
List which enumerates the subjects on
which the legislature of a state has the
power to make laws. The third list is the
Concurrent List which enumerates
subjects on which both the Indian
Parliament and the Legislatures of the
state can enact laws, but if there is any
conflict or inconsistency between the laws
made by the Indian Parliament and the
legislature of any state, the law enacted
by the Union Parliament will have overridingeffect. Importantly, the Public
Order and the Police are enumerated in
Entries 1 and 2 respectively of the State
List, meaning thereby that all matters
relating to the organisation, structure and
regulation of the police force fall within the
ambit of the states. However, the Criminal
Lawsand the Criminal Procedure are
enumerated in List-3, i.e., the Concurrent
List. Both the Indian Parliament and statelegislatures have the powers to make
substantive and procedural laws in criminal
matters. The states can also enact
laws on local and special subjects. Thus,
6See also M.P.JAIN .constitutional law of india(9
th
ed.)wadhwa publicaations
under the constitutional scheme, the basic
criminal laws, i.e., the Indian Penal Code,
the Code of Criminal Procedure and the
Indian Evidence Act have been enacted by
the Indian Parliament. The Indian Police
Act has also been enacted by the Indian
Parliament. The states have also enacted
laws on several local and special subjects.
Some states in India have also enacted
their own Police Acts. The Indian Police
Act, 1861, however, is the basic statutory
law governing the constitution and
organisation of police forces in the states.
Article 14 of the Constitution provides
for equality before law. Article 21
guarantees protection of life and personal
liberty. Article 20 provides protection
against double jeopardy. No person can be
prosecuted and punished for the same
offence more than once. Article 39-A
mandates the states to secure equal justice
for all. It also provides for free legal aid in
respect of indigent persons. Article 50 is
important as it provides for the separation
of the judiciary from the executive in the
public services of states.
II. DISTRICTTHE BASIC UNIT OF
ADMINISTRATION
In each state, there are a number of
districts. The District is governed by a
triumvirate consisting of the District
Magistrate, the District Superintendent of
Police and the District and Sessions Judge7.
The District Magistrate is the chief
executive officer of the district and he
belongs to the Administrative Service. The
police in the district functions under his
general direction and control. The District
7See ICJ POSITION Paper on reform of cr. Justice
system in india :review of recommendations of
malimath committee.
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Superintendent of Police is the head of the
police force in a district. He is responsible
for the prevention and detection of crime
and the maintenance of law and order,
subject to such directions as may be issued
by the District Magistrate. In practical
terms, the District Magistrate has no role
in criminal investigations. The District and
Sessions Judge is the head of the judiciary
in a district. He belongs to the higher state
judicial service. The entire magistracy in
the district functions under his control and
supervision.
III. CRIMINAL JUSTICE SYSTEM
The criminal justice system has four
important components in India, namely,
the Investigating Agency (Police), the
Judiciary, the Prosecution Wing and thePrison and Correctional Services.8 A brief
mention of their structure and their roles
is made here below:
A. Investigating Agency
The police forces are raised by the state
under the Indian Police Act, 1861. The
basic duty of the police forces is to register
cases, investigate them as per the
procedure laid down in the Code of
Criminal Procedure (to be referred to as
the Code hereinafter) and to send them upfor trial. In addition to the State Police
Forces, the Government of India has
constituted a central investigating agency
called the Central Bureau of Investigation
(CBI) under the special enactment called
the Delhi Special Police Establishment Act,
1946. It has concurrent jurisdiction in the
matters of investigation in the Union
Territories. It can take up the investigation
of cases falling within the jurisdiction of
the states only with the prior consent of
the state governments concerned.9 There
are certain other specialised investigating
agencies constituted by the central
8See shamsul huda:principles of law of crime (2
nd
edition)9
0utlines of criminal procedure code :
R.V.KELKAR(2ND
ED.1997)pg.15-31
government, in various departments,
namely, the Customs Department, the
Income Tax Department, the Enforcement
Directorate, etc. They investigate cases
falling within their jurisdictions and
prosecute them in the courts of law.
Thus, India has both the state police
investigating agencies and a central
investigating agencies as mentioned above.
CBI, however, is the primary investigating
agency of the central government.
B. The Courts
The cases instituted by the state police
and the Central Investigating Agency are
adjudicated by the courts. We have a fourtier
structure of courts in India. At the
bottom level is the Court of Judicial
Magistrates. It is competent to try offencespunishable with imprisonment of three
years or less. Above it is the Court of Chief
Judicial Magistrates, which tries offences
punishable with less than 7 years. At the
district level, there is the Court of District
and Sessions Judge, which tries offences
punishable with imprisonment of more
than 7 years. In fact, the Code specifically
enumerates offences which are exclusively
triable by the Court of Sessions.
The highest court in a state is the HighCourt. It is an appellate court and hears
appeals against the orders of conviction or
acquittal passed by the lower courts, apart
from having writ jurisdiction. It is also a
court of record. The law laid down by the
High Court is binding on all the courts
subordinate to it in a state.10
At the apex, there is the Supreme Court
of India. It is the highest court in the
country. All appeals against the orders of
the High Courts in criminal, civil and other
matters come to the Supreme Court. This
Court, however, is selective in its approach
in taking up cases.11
The law laid down by
the Supreme Court is binding on all the
10Cr.p.c.;m.p. tendon and rajesh tendon (7
th
ed,)pg.6 -4011
ibid
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courts in the country12
.
C. Prosecution Wing
It is the duty of the state to prosecute
cases in the courts of law. The state
governments have constituted cadres of
public prosecutors to prosecute cases at
various levels in the subordinate courts and
the High Court.13 I will revert to the subject
later when I discuss the structure and
functioning of the prosecution wings in the
states and the central governments.
D. Prisons and Correctional
Services
This is the fourth important element in
the criminal justice system. The prisons
in India are under the control of the state
governments and so are the correctional
services.
IV. CONSTITUTION AND
STRUCTURE OF PROSECUTION
WING14
As stated above, the police is a state
subject in our constitutional scheme. The
primary investigative unit is the police
station in India.15
After due investigation,
charge-sheets are filed in the courts
concerned as per the provisions of the Code.
The cases are prosecuted by the publicprosecutors appointed by the state
governments.16
Prior to the enactment of the Criminal
Procedure Code of 1973, public prosecutors
were attached to the police department and
they were responsible to the District
Superintendent of Police. However, after
the new Code of Criminal Procedure came
into force in 1973, the prosecution wing has
been totally detached from the police
department. The prosecution wing in a
state17
is now headed by an officer designated
12ibid
13ibid
14Outlines of Cr.P.C:R.V.KELKAR CH.III Pg.15-31
15ibid
16Kelkars Lectures on cr.p.c. ch.ii (2
nded.1990)
17Outlines of cr.p.c.R.V. kelkar PG 15-31
as the Director of Prosecutions. In some of
the states, he is a senior police officer and
in others, he is a judicial officer of the rank
of District and Sessions Judge. He is
assisted by a number of Additional
Directors, Deputy Directors and Assistant
Directors, etc.
At the district level, there are two levels
of public prosecutors, i.e., the Assistant
Public Prosecutor, Grade-I and the
Assistant Public Prosecutor, Grade-II.
They appear in the Courts of Magistrates.
The Director of Prosecutions is responsible
for the prosecution of cases in the
Magisterial Courts.
In Sessions Courts, the cases are
prosecuted by Public Prosecutors. The
District Magistrate prepares a panel ofsuitable lawyers in consultation with the
Sessions Judge to be appointed as public
prosecutors. The state government
appoints public prosecutors out of the panel
prepared by the District Magistrate and
the Sessions Judge. It is important to
mention that public prosecutors who
prosecute cases in the Sessions Courts do
not fall under the jurisdiction and control
of the Director of Prosecutions.
The state government also appointspublic prosecutors in the High Court. The
appointments are made in consultation
with the High Court as per section 24 of
the Code.
The most senior law officer in a state is
the Advocate General who is a
constitutional authority. He is appointed
by the governor of a state under Article 165.
He has the authority to address any court
in the state18
.
Under section 24 of the Cr.P.C., the
central government may also appoint one
or more public prosecutors in the High
Court or in the district courts for the
purpose of conducting any case or class of
cases in any district or local area19
. The most
18IBID
19ibid
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senior law officer of the Government of
India is the Attorney General for India, who
is a presidential appointee under Article
76. He has the authority to address any
court in the country.20
The Assistant Public Prosecutors,
Grade-I and Grade-II, are appointed by a
state government on the basis of a
competitive examination conducted by the
State Public Service Commission. They are
law graduates falling within a specified age
group. They join as Assistant Public
Prosecutors Grade-II and appear in the
Courts of Magistrates. They are promoted
to Assistant Public Prosecutors, Grade-I,
and generally appear in the Courts of Chief
Judicial Magistrates. On further
promotion, they become Assistant Directors
of Prosecution and can go up to the level of
Additional Director of Prosecution. They,
however, do not appear in the Sessions Court.
As mentioned above, the District
Magistrate in consultation with the
Sessions Judge prepares a panel of lawyers
with a minimum of 7 years of experience
to be appointed as public prosecutors. They
are so appointed by the state government.
They plead the cases on behalf of the state
government in the Sessions Courts. Theyhave tenure appointments and are not
permanent employees of the state
government21
. They are paid an honorarium
(not salary) by the state government.
There is now a move to integrate the
aforesaid two cadres of public prosecutors
with the object to improving the promotion
prospects of law officers who join at the
lowest level, i.e., Assistant Public
Prosecutor, Grade-II. The idea is to
promote the Assistant Public Prosecutors,
Grade-I to Additional Public Prosecutor or
Public Prosecutor, as the case may be, to
plead cases in the Sessions Court. If it
comes about, this will obliterate the need
for appointing lawyers from the open
20IBID
21IBID
market as public prosecutors to plead cases
in the Sessions Courts22
.
V. PROSECUTION BY CBI
The Central Bureau of Investigation has
a Legal Division which plays an advisory
and prosecutory role in the organisation.
It is headed by a Legal Advisor, who is a
deputationist from the Ministry of Law of
the central government. This arrangement
ensures objectivity of his office. He is
assisted by a number of Law officers who
are permanent employees of the CBI,
namely, Additional Legal Advisor, Deputy
Legal Advisors, Senior Public Prosecutors,
Public Prosecutors, Assistant Public
Prosecutors, etc.23
These are indicated in
descending order of seniority and rank.
These officers render legal advice to theinvestigating officers during the course of
investigations as to the viability of
proposed prosecutions. Their advice is
taken seriously, but they can be over-ruled
by the executive CBI officers. Multiple and
hierarchical systems of legal advice
prevails in the CBI. Legal advice is taken
at least at three levels before deciding the
fate of a case. After a decision has been
taken to prosecute a case, the law officers
conduct the prosecution of cases in thecourts. The level of a law officer to
prosecute a case is directly related to the
level of the court, i.e., the higher the court,
the higher the rank of a law officer to
prosecute it.
Besides, the CBI also engages Special
Public Prosecutors from the bar on a daily
fee basis in important and sensational
cases.
VI. THE DUTIES AND FUNCTIONS
OF A PUBLIC PROSECUTOR
Public prosecution is an important
component of the public justice system.
Prosecution of an offender is the duty of
22IBID
23SEE the Delhi Special Police Establishment
Act,1946.
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the executive which is carried out through
the institution of the Public Prosecutor.
The public prosecutor is appointed by the
State, and he conducts prosecution on
behalf of the State. While it is the
responsibility of the public prosecutor to
see that the trial results in conviction, he
need not be overwhelmingly concerned
with the outcome of the trial. He is an
officer of the court and is required to
present a truthful picture before the court.
Even though he appears on behalf of the
State, it is equally his duty to see that the
accused does not suffer in an unfair and
unethical manner. The public prosecutor,
though an executive officer, is an officer of
the court and is duty bound to render
assistance to the court. The public
prosecutor represents the State and the
State is committed to the administration
of justice as against advancing the interest
of one party at the cost of the other.24 He
has to be truthful and impartial so that
even the accused persons receive justice.
The public prosecutor plays a dominant
role in the withdrawal of a case from
prosecution. He should withdraw from
prosecution in rare cases lest the confidence
of public in the efficacy of theadministration of justice be shaken.
The Supreme Court of India has defined
the role and functions of a public prosecutor
in Shiv Nandan Paswan vs. State of Bihar
& Others25
as under:
a) The Prosecution of an offender is the
duty of the executive which is carried
out through the institution of the
Public Prosecutor.
b) Withdrawal from prosecution is an
executive function of the Public
Prosecutor.
c) Discretion to withdraw from
prosecution is that of the Public
Prosecutor and that of none else and
24Outlines of cr.p.c.;R.V.KELKAR CH.III PG 15-31
( 2ND
ED.1997)25
AIR 1983 SC 1994
he cannot surrender this discretion
to anyone.
d) The Government may suggest to the
Public Prosecutor to withdraw a case,
but it cannot compel him and
ultimately the discretion and
judgement of the Public Prosecutor
would prevail.
e) The Public Prosecutor may withdraw
from prosecution not only on the
ground of paucity of evidence but also
on other relevant grounds in order to
further the broad ends of public
justice, public order and peace.
f) The Public Prosecutor is an officer of
the Court and is responsible to it.
VII. ROLE OF A PUBLIC
PROSECUTOR ININVESTIGATIONS
Investigations in India are conducted as
per provisions of Chapter XII of the Code.
Cases are registered under section 154 of
the Code. A police officer is competent to
investigate only cognizable offences. Non
cognizable offences cannot be investigated
by the police without obtaining prior orders
from the courts. A police officer can
examine witnesses under section 161.
However, the statements are not to besigned by the witnesses. Confessions of
accused persons and statements of
witnesses are recorded under section 164
of the Code. A police officer has the power
to conduct searches in emergent situations
without a warrant from the court under
section 165. A police officer is competent
to arrest an accused suspected to be
involved in a cognizable offence without an
order from the court in circumstances
specified in section 41 of the Code. He is
required to maintain a day to day account
of the investigation conducted by him
under section 172. After completion of
investigation, a police officer is required to
submit a final report to the court under
section 173. If a prima facie case is made
out, this final report is filed in the shape of
a charge-sheet. The accused has,
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thereafter, to face trial. If no cogent
evidence comes on record, a closure report
is filed in the Court.26
The public prosecutor plays the following
role at the investigation stage:
(1) He appears in the court and obtains
arrest warrant against the accused;
(2) He obtains search warrants from the
court for searching specific premises
for collecting evidence;
(3) He obtains police custody remand for
custodial interrogation of the accused
(section 167);
(4) 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 movableand immovable assets (section 83);
and
(5) He records his advice in the police file
regarding the viability/advisability of
prosecution. After the completion of
investigation, ifthe investigating agency comes
to theconclusion that there is a prima facie
caseagainst 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 thepolice 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
authorites. 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.
VIII. THE ROLE OF A PUBLIC
PROSECUTOR DURING TRIALS
As stated above, the public prosecutor is
26SEE ALSO Outlines of cr.p.c.;R.V.KELKAR CH.III (
2ND
ED.1997)
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 court. 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 theprouncement 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.27
However, once the case has been sent up
for trial, it is for him to prosecute it
successfully.
A. Withdrawal from Prosecution
The public prosecutor has the authority
to withdraw a case from trial under section321 of the Code. Under the case law, he
and he alone has the ultimate authority to
withdraw a case from prosecution (AIR
1983 SC 194). But the practice is that he
receives instructions from the government
and pursuant to those instructions, he
withdraws the case from prosecution.28 The
grounds of withdrawal could be many,
including:
(1) False implication of accused persons
as a result of political and personal vendatta;
(2) Inexpediency of the prosecution for
the reasons of state and public policy; and
(3) Adverse effects that the continuation
27See CODE OF CRIMINAL PROCEDURE CODE(as
amended by Act of 1988):rattan lal and dhiraj
lal(15th
ed.)ch.i,ii,andiii.28
ibid
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of prosecution will bring on public
interest in the light of changed
situation.
B. 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. In the
Indian system, the statement of a witness
is recorded by the investigating officer29
. The
statement is not required to be signed by a
witness under the law. The witness is
required to appear in the court and prove
the facts mentioned by him to the
investigating officer at the pre-trial stage
and to face cross-examination by the
defence lawyer. The public prosecutor
conducts the examination-in-chief of a
witness and, thereafter, his reexamination,
if need be, in order to clarify
ambiguity, if any, after a witness
cross examination. Similarly, the documents
cited in evidence are required to be proved
by the public prosecutor with the help of
witnesses30
. The forensic evidence is provedthrough the documents prepared by the
experts and also by the testimony of the
experts in the court. The experts are also
liable to be cross-examined by the defence
counsel. 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
courts attention towards that and meshes
it with other evidence on record. While the
law requires establishing a prima facie case
for charge-sheet purposes, the law for
29Ibid
30Ibid
conviction is that the guilt should be proved
beyond a reasonable shadow of doubt31
. The
standard of proof in Indian courts is quite
high and that largely explains the low
conviction rate, particularly in IPC
offences. 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 him.
IX. SPEEDY TRIAL AND PUBLIC PROSECUTION
The concept of speedy trial is enshrinedin Article 21 of the Constitution of India.32
Article 21 reads as under:
No person shall be deprived of his life
or personal liberty except according to
procedure established by law.
The Supreme Court in 1997 CrLJ, page
195 has interpreted this Article to mean
that right of speedy trial is also a
fundamental right. Undeniably, the trials
in India drag on for years together. There
are several agencies responsible for delays,namely, the police, the lawyers, the accused
and the courts. All of them play a
contributory role in the delays. While the
police agency may be responsible for 25 per
cent of delays, non-police agencies are
responsible for the rest of it. The public
prosecutor, being an officer of the court, can
play an important role in ensuring speedy
trial. It is his duty to see that the adequate
number of witnesses are called at each
hearing and none of them goes back
unexamined. Similarly, he is to ensure that
the documents are put up to the court in
time. He has also to ensure that police
officers, who generally prevaricate in
31ibid
32See V.N.SHUKLAs constitution of india(2010 ed.)
part iii.
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appearing in the courts, do appear as per
the schedule fixed by the court. A good
working relationship with the court may
help in achieving this end. Not much
cooperation can be expected from the
defence counsel as experience shows that
he is more interested in the delays than in
speedy trial because delay means more
hearings which, in turn, means more fee
for him33. This behaviour may be unethical
on his part, but this is the ground reality.
In this scenario, the role of public
prosecutor assumes special significance .
X. PUBLIC PROSECUTION
AND SENTENCING
In the criminal statutes, varied
sentences are provided for different
offences. The most serious offence is the
crime of murder for which life
imprisonment or death is provided. A death
sentence is, however, to be awarded in the
rarest of rare cases. There are certain
statutes which provide for minimum
imprisonment, but may exceed the
minimum imprisonment so provided. After
the court has held the accused guilty, the
defence counsel and the public prosecutor
are called upon to argue on the quantumof punishment. The courts in India
generally believe in the individualisation
of sentences. The age, educational
background, social status and liabilities of
the accused such as infant children,
dependent wife and other factors are
considered by the court before imposing a
sentence. The public prosecutor has to use
his discretion in arguing for adequate
punishment, keeping in view the
circumstances mentioned above. He should
exercise the discretion keeping in mind the
gravity of the offence, and the facts and
circumstances of the case.34
33ibid
34See CODE OF CRIMINAL PROCEDURE CODE(as
amended by Act of 1988):rattan lal and dhiraj
lal(15th
ed.)ch.i,ii,andiii.
Besides, the court has the statutory
authority to release a convict on probation
in certain offences under the Probation of
Offenders Act. The court can release a
convict on admonition in cases where the
punishment is not more than two years.
The public prosecutor should guide the
steps of the court in this regard.
The court also has the discretion to
release a convict on probation under section
360 of the Code35, in the following
circumstances:
(1) a convict of more than 21 years of age
punished with fine or imprisonment
of less than 7 years; and
(2) a convict of less than 21 years of age
or any woman not punished with life
imprisonment or death.The court will take into consideration his
age, character and antecedents and the fact
that he is not a previous convict.
The court can also release the offender
on probation of good conduct in other
offences excluding offences punishable with
death or life imprisonment.36
The prosecutor is required to help the
court in arriving at a fair and judicious
finding in this matter.
XI.CO-ORDINATION BETWEEN
THE POLICE AND PUBLIC PROSECUTORS
Before 1973, the Assistant Public
Prosecutors (some of them were police
officers) were under the direct control of
the District Superintendent of Police. The
public prosecutors appearing in the
Sessions Courts were drawn from the open
market on a tenure basis and they were
responsible to the District Magistrates.
After the amendment in the Code,
Assistant Public Prosecutors have been
totally detached from the police
department. At present they report to the
District Magistrate at the district level and
35ibid
36ibid
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to the Director of Prosecutions at the state
level. The status of the public prosecutors
appearing in the Sessions Courts remains
unchanged. There is no institutionalized
interaction or co-ordination between the
investigating agency and the prosecuting
agency. The police files are sent to the
Assistant Public Prosecutors for their legal
opinion at the pre-trial stage. As they are
not responsible to the district police
authorities, the legal advice is sometimes
perfunctory and without depth. Further,
the district police is totally in the dark as
to the fate of cases pending in the courts.
Even though there is a district level law
officer (called District Attorney in some
states), to supervise the work of the
Assistant Public Prosecutors, he does nothave the status and stature that the
District Superintendent Police has.
Whatever the reasons, as shown supra in
Table 4, the conviction rate is falling over
the years. Be that as it may, there is no
immediate prospect of the Assistant Public
Prosecutors being placed under the control
of District Superintendent of Police. The
Law Commission of India has also
supported total separation between the
police department and the prosecutionagency. Even so, it would be desirable to
make some institutional arrangement for
proper co-ordination between the two
agencies37
. The following suggestions are
being made in this regard:
(1) The District Superintendent of Police
should periodically review the work
of the Assistant Public Prosecutors;
(2) He should be authorised to call for
information from the prosecution
agency regarding the status of a
particular case pending in the court;
(3) The prosecution agency should send
periodical returns to the District
Superintendent of Police regarding
disposal of cases in the courts;
(4) The District Superintendent of Police
37ibid
should send a note annually to the
District Magistrate regarding the
performance of each Assistant Public
Prosecutor working in his district,
which should be placed in his
confidential annual report/dossier; and
(5) On its part, the police department
should make available certain
facilities to the prosecutors such as
housing, transport, and telephones.. Such an
arrangement would go a long way in bringing
about coordination between the police and the
prosecution agency.38
XII. ROLE OF PUBLIC PROSECUTORS IN
NATIONAL CRIMINAL JUSTICE POLICY
The laws are enacted by the legislature,
enforced by the police, and interpreted by
the courts. Neither the police nor theprosecution agency has any say in the
formulation of laws. The number of
criminal laws is increasing by the day, but
the quality of drafting shows definite
deterioration and bristles with avoidable
vagueness in construction. It is felt that a
representative each of the police
department and the prosecution agency
should be associated with the formulation/
drafting of laws39
. Their field experience
would go a long way in improving thequality of laws enacted. Further, unlike
the police, the prosecution agency does not
have a national level body to watch its
professional and service interests40
. This is
due to the fact that prosecution agencies
are organised at the state level and not at
the national level. Such an apex should be
constituted by the government.
XIII.Notion of Prosecutorial Independence
38ibid
39ibid
40ibid
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This section of the paper tries to examine the
notion of prosecutorial independence, a notion
that concerns the relationship of the
prosecutor with both the investigative agency
and the State executive, and to suggest how
the law in India on this point can be improved,
so as to enable the prosecutor to fulfill his role
in the administration of justice. In specific, this
section is concerned with the notion of
prosecutorial independence, a notion that
can be broken down into two fundamental
dimensions:
(i) the need for prosecution decisions to be
made free from any political influence or
considerations
(ii) the need to clearly demarcate criminal
investigations from prosecutions decisions41
i- Prosecutorial Independence In India
Prior to the enactment of the Code of Criminal
Procedure of 1973, the system of prosecution
in India contained several elements that were
criticized as weaknesses by the Law
Commission, in its 14th
Report on the Reform
of the Judicial Administration. At the time, the
Commission noted that there is no uniformity
in the prosecuting organisation in India, but
that generally speaking, prosecution in the
magisterial courts is in the hands of either
police officials or persons recruited from the
Bar and styled Police Prosecutors or Assistant
Public Prosecutors, who work under the
directions of the Police department. This led
to a setup where, as one commentator put it,
the identity of the prosecuting agency waspractically merged with that of the police and
the prosecution branch was not recognized as
a separate and distinct entity, independent of
41See Article role of public prosecutor under
Cr.P.Cby legal sutra law students knowledge-base
pg 4.-16
police control. The Law Commission believed
that such a setup was flawed, because the
Police Department had neither the legal know-
how to conduct a prosecution, nor the degree
of detachment necessary in a prosecutor. On
a more general note, the Commission also
criticized the overall subordination of the
prosecutor, to the District Superintendent of
Police (in cases before the magisterial courts)
and to the District Magistrate (in prosecutions
at the Sessions Courts), who controlled to a
large extent the exercise of the prosecutors
powers. As a result, it recommended not only
that the prosecution agency be made separate
from the police, but also that its subordination
to the executive be reduced, and that it be
given more independent powers in the actual
conduct of the prosecution- for example, indeciding whether or not to withdraw
prosecutions. To this end, the Commission
suggested that a separate prosecution
department be established in each district,
headed by a Director of Public Prosecutions,
who would, however, be responsible to the
State Government. Clearly, therefore,
although the Law Commissions report did
continue to conceptualize the status of the
prosecutor as an agent of the Government,
responsible to it, it also noted the importanceof his or her independence from both the
police and the State executive. The
Commissions recommendations were
espoused, but only to some measure, and not
in so many words, in the Code of Criminal
Procedure of 1973 (hereinafter referred to as
Code).42
S. 2(u) of the Code defines a public
prosecutor as any person appointed under S.
24, as well as any person acting under the
directions of a public prosecutor. As per S. 24,all public prosecutors and additional public
prosecutors- who conduct prosecutions in the
Sessions Courts and High Courts- are to be
appointed by the Government, Central or
State- the Superintendent of Police and District
42ibid
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Magistrate no longer have any such power.43
The District Magistrate is only required, in
consultation with the Sessions Judge, to
prepare a panel of names of persons whom he
thinks fit for such appointment, from which
panel the State Government is to make its
selection, unless a regular cadre of prosecuting
officers exists in the State, in which case the
State Government must make its appointment
from this cadre. Further, S. 24(7) provides that
only advocates who have a minimum of 7
years experience in practice are eligible for
appointment as public prosecutors, or
additional public prosecutors. Therefore,
police officers who lack such experience can no
longer function as prosecutors. Similarly, S. 25-
on the appointment of assistant public
prosecutors, who conduct prosecutions inmagisterial courts-, also provides that,
ordinarily, no police officer is eligible to be so
appointed, and every such appointment is to
be made by the State or Central Government.
Only in exceptional cases, where no assistant
public prosecutor is available, can the District
Magistrate appoint another person in his
stead, and even in such a case he may only
appoint a police officer if he is of the rank of
Inspector or above, and provided that he has
not participated in the investigation into theoffence being prosecuted.
44Thus, although as
per S. 173 of the Code the police have the
power to file a charge-sheet for the judicial
magistrate to take cognizance of an offence,
the prosecution itself cannot, except in the
exceptional situation envisaged by S. 25, be
conducted by a police officer.
Separation of Police and Prosecution
These provisions indicate that the Code does
envisage a separation between the
investigation and the prosecution of offences.
In addition, although the Code itself says
nothing about the manner in which the
prosecutor must discharge his duties, Courts
have uniformly held that he must not display
43ibid
44ibid
any unseemly eagerness for or grasping at
conviction, his primary duty being to assist
the administration of justice, thereby lending
support to the premise of the Law
Commissions view that the police- as biased
investigators- ought not to be involved in
prosecution.
However, it has rightly been pointed out that
the provisions contained in Ss. 24 and 25 do
not give an adequate idea as to the actual
organization of the prosecuting agency in the
district or as to the hierarchy or the
administrative control envisaged therein. As a
result, the hopes entertained by the Law
Commission seem to have been belied,
inasmuch as several State Governments
continue to this day to follow the system ofpolice prosecution, and prosecution
subordinated to District Magistrates. In fact,
the Assam Police Commission has observed
that it would be advantageous and proper if
the prosecution agency continues to remain
under the control of the police department,
and the Delhi Police Commission has suggested
that members of the prosecution organization
should remain under the control of the Head
of Police, and should form a separate cadre
in the police establishment.45
According to
Professor D. Shankara Reddy, former DPP of
Karnataka, Karnataka is one of the only States
where the prosecutor has some independence
from the police, and even here, for the last 15
years, the police has been trying to regain its
upper hand. Now, the Courts have on
occasion invalidated such attempts. For
example, the Allahabad High Court in 1975
struck down an order of the Government of
Uttar Pradesh placing a group of assistant
public prosecutors under police control, as
being violative of S. 25. The Supreme Courtreiterated the same principle in S.B.Shahane
Vs. State of Maharastra46
where it was held
that a government notification in regard to the
appointment of Police Officer as Directors of
45ibid
46MANU/SC/0312/1995.
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Public Prosecution violated S. 25. Further, in
Hitendra Vishnu Thakur v. State of
Maharashtra47 the Supreme Court concluded
that under the Code the public prosecutor was
an important officer of the State
Government- an independent statutory
authority who was not a part of the
investigating agency. Nevertheless, in spite of
these decisions the old system of prosecution
still persists in some States, so much so that
now in Orissa and Uttar Pradesh the
separation between the police and the
prosecutor has been statutorily diminished
through amendment of S. 25, to allow for
police control over assistant public
prosecutors. Also, in Tamil Nadu and Uttar
Pradesh, IPS officers of the rank of Director
General of Police or Inspector General hold thepost of Director of Prosecution.
Separation of Prosecution and Executive
The independence of the public prosecutor
from the State executive is also a matter that
the Code fails to deal with explicitly. Although
it does curtail the power of the District
Magistrate over the prosecutor, it is silent on
the relationship between the prosecutor and
the Government. In fact, S. 37848
of the Code,
which deals with appeals from acquittals andprovides for such appeals to be made by the
public prosecutor on direction by the State or
Central Government, would appear to support
the view that the prosecutor is merely a
functionary of the Government. Judicial
pronouncements on this matter have varied
over the years. In 1957, in State of Bihar v.
Ram Naresh Pandey49 the Supreme Court
accepted the view that prosecution is a
function of the State executive, and as such,
that the status of the public prosecutor is that
of an executive officer. That case dealt with
the power of the prosecutor to withdraw
prosecutions under S. 494 of the old Criminal
47MANU/SC/0526/1994.
48Rattan lal dhiraj lal: cr. Procedure code (15
th
ed)pg .15-3149
AIR 1957 SC 389
Procedure Code, which power is now
conferred by S. 321 of the Code. Similarly, in
M.N. Sankaranarayanan Nair v. P.V.
Balakrishnan,50
the Court accepted the
argument that the prosecutor must obey
executive directions as to whether to withdraw
prosecutions. This position was also treated as
correct in State of Orissa v. C. Mohapatra51,
where it was held that the policy decision as to
withdrawal from prosecution is rightly that of
the State Government.However, in the period
after 1978, the Court began to re-
conceptualize the status and role of the public
prosecutor. Beginning with Balwant Singh v.
State of Bihar,52
where Krishna Iyer J. held that
the Criminal Procedure Code is the only
master of the Public Prosecutor, the
prosecutor has come to be regarded as theholder of a public office- not merely the
professional counsel of the Government-
whose appointment may not be terminated at
will by it, and in whom the Code vests
statutory discretion regarding such matters as
the withdrawal of prosecution. Nevertheless,
the practice of certain States runs contrary to
this doctrine- so much so that it has been
observed that in politically sensitive cases the
independence of the public or special
prosecutor is a myth. The Uttar Pradeshlegislature, for example, has deleted the
requirement in S. 24(1) that the Government
must consult the High Court before appointing
a public prosecutor in such Court, as well as
the provisions in S. 24 requiring selection of
the prosecutor only from a panel prepared by
the District Magistrate in consultation with the
Sessions Judge, or from the regular cadre of
prosecuting officers, if any. Thereby, it has
strengthened the exclusive power of the
Government in making such appointments. But
in a judgment delivered in April 2004, the
Supreme Court, while reiterating its view that
public prosecutors are required by the Code to
perform statutory duties independently, with
50(1972) 1 SCC 318.
51(1976) 4 SCC 250.
52(1977) 4 SCC 448
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the object of serving the administration of
justice, expressed pain at the amendments
in Uttar Pradesh, for which it could not see
any rationale.
Clearly, the presence of such divergent theory
and practice indicates that the law as it standsis not sufficiently clear on what the precise
nature and extent of prosecutorial
independence from the police and the
executive is, and to whom the prosecutor is
accountable. Given that it is generally accepted
that the role of the prosecutor is to further the
achievement of a just decision in each case,
the question is- what manner of prosecutorial
independence, if any, would best promote the
fulfillment of this role?53
ii-The Debate on Prosecutorial Independence
Although there does exist discussion on such
matters as the independence of the prosecutor
from the victim, and the prosecutions financial
independence, as already mentioned, this
paper is concerned only with the fundamental
dimensions of the concept of prosecutorial
independence- independence from the
investigative agency, and independence from
the Government executive. The debates that
have been associated with both these
dimensions are reviewed and analyzed
separately in this section
Independence from the Investigative Agency
The arguments for establishing a separation
between the investigation of offences, and
their prosecution, as put forth by the Law
Commission, among others, have already been
noted. Summarized briefly, these arguments
hold that it is not advisable for the police to
undertake or supervise prosecutions, because
they lack the objectivity and detachment
necessary for the purpose, as well as the legal
know-how, and are also not subject to the
53 See Article role of public prosecutor under
Cr.P.Cby legal sutra law students knowledge-base
pg 4.-22
professional and ethical guidelines which apply
to officers of the court. However, there also
exists considerable support for the contrary
viewpoint. Those who argue for police
prosecutions emphasize that, in the minds of
the common man, it is the police which is
morally responsible for the fate of criminal
trials; as such it is only fair that they should
have supervision of the prosecution process.
Further, they point to the fact that such a
system is by no means novel. In New Zealand,
the police themselves conduct all the
prosecutions in the lower courts, and in
Northern Ireland as well as the Republic of
Ireland this is true for minor offences. Further,
until the Prosecution of Offences Act of 1985,
police prosecutions were also widely prevalent
in England. 54 In addition, a recent PublicProsecution System Study Group in the
Republic of Ireland thought that the question
of police prosecutions was a pragmatic issue
of effectiveness and cost. Its report supported
this system, on the grounds that police officers
who are familiar with the details of a case are
better place to prosecute than lawyers who
lack such familiarity, and that allowing for
police prosecutions dispenses with the delay
involved in briefing a lawyer and preparing
reports for this purpose. The report alsoaddressed concerns of biased prosecution with
the argument that Garda *the name of the
Irish police force] discipline and procedures,
trial in open court, the existence of basic
constitutional rights for the accused and a
vigorous legal system should, if rigorously
operated, provide sufficient safeguards in the
criminal prosecution system. Closer home,
the Malimath Committees Recommendations
on the Reform of the Criminal Justice System,
while recognizing that the public prosecutor is
an officer of the Court, whose duty is to
advance justice, recommended that a police
officer not below the rank of Director General
of Police be appointed as Director of Public
Prosecutions in each State, on the ground that
54ibid
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this would promote coordination between
investigation and prosecution.55
Such arguments, however, are not decisive.
The United Nations Guidelines on the Role of
Prosecutors state that prosecutors must
possess integrity, so as to further theadministration of justice. Most countries today
have recognized that police prosecutions are
inconsistent with this requirement of fair and
impartial prosecution. Canadas Law Reform
Commission stated in 1990 that having
prosecutions prosecuted by the police is
undesirable, and that all public prosecutions
should be conducted by a lawyer responsible
to, and under the supervision of, the Attorney
General. Similarly, in 1996, the Australian
Federal Director of Public Prosecutions pointedto the compelling reasons of both efficiency
and public policy why the police should not be
involved in the conduct of prosecutions. In
Northern Ireland, a report commissioned by
the Criminal Justice Review Group disagreed
with the conclusions of the Public Prosecution
System Study Group, arguing that
considerations of fairness in prosecution must
supervene pragmatic considerations of cost. In
the United Kingdom, the Prosecution of
Offences Act of 1985 was specifically brought
in to end the practice of police prosecutions.56
Professor Shankara Reddy also pointed out
that police prosecution was inconsistent with
the impartiality required of a prosecutor, and
his duty to do justice, as an officer of the
judiciary. As such, it can be concluded that if
prosecution is to conducted fairly and
impartially- as a facet of the administration of
justice- then the practice of police
prosecutions ought rightly to be abandoned,
and the provisions of the Code in India that
accomplish this are therefore to be lauded.
It should be noted, however, that given that
prosecution follows investigation as a stage in
the administration of criminal justice, it is
evident that there must be an interface of
55ibid
56ibid
some nature between the two. In this context,
it is relevant to note that in America the
District Attorney who conducts prosecutions is
often heavily involved with the investigations,
long before the charge is framed.57 Further,
although the Law Commission of India did
argue that the police should have no role in
prosecution, it did not suggest that the reverse
is also true. In fact, it recommended that the
Director of Public Prosecutions (DPP) in each
district should have access to the FIRs in all
cognizable cases, and the power to advise the
Police Department in the course of
investigation in all cases, particularly complex
cases involving charges of conspiracy, forgery
etc., as well as the power to scrutinize the
charge-sheet before it is placed before the
Court and to indicate to the police the linesalong which further investigation ought to be
conducted to remedy any lacuna that might be
found in it. It also recommended that the DPP
be empowered to look into all cases where the
police decide not to file a charge sheet, to
ascertain if such a decision is justified. The
Code itself is entirely silent on this aspect of
the Commissions recommendations. Now,
some supporters of prosecutorial
independence from the police believe that this
notion entails the unambiguous separation ofthe roles of investigator and prosecutor so as
to eradicate the prosecutions involvement in
investigation. Even the Supreme Court, in
Saralas Case,58
appears to have lent support
to this extreme point of view by holding, not
only that under the Code there is no stage
during which the investigating officer is legally
obliged to take the opinion of a Public
Prosecutor, but also that it is not in the
scheme of the Code for supporting or
sponsoring any combined operation between
the investigating officer and the Public
Prosecutor for filing the report in the court.
However, although this decision may be a
correct interpretation of the Code as it is,
which does not explicitly provide for such
57ibid
58AIR 2000 SC 1731
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combined operation, it does not necessarily
reflect a desirable state of affairs. Even if the
American position leans too heavily towards
an intermingling of prosecution and
investigation, so as to raise fears of conviction-
oriented prosecutions, it is evident that a
complete separation between the investigative
agency and the prosecution would militate
against the creation of a healthy relationship
of cooperation between the two. It has been
pointed out that the criminal justice system in
India suffers at present from the apathetic
attitude that the police and prosecutors have
towards each other. In order to address this
problem, the recommendations of the Law
Commission for prosecutorial involvement
with investigation should be given serious
consideration. By enabling the prosecutor toguide the police in conducting investigations,
not only is the investigation itself likely to be
more effective, but the prosecutors familiarity
with the case prior to trial will also be
achieved, thereby addressing one of the
principal concerns of those who argue for
police prosecutions. Such contact with the
police during the investigative stage would also
equip the prosecutor better in making
decisions such as whether or not to withdraw
prosecutions.
59
This view is also supported bythe former DPP of Karnataka, who stated that,
although it was not formally provided for,
there ought to be good co-ordination
between the prosecutor and the police.
Independence from the Executive
The dangers of political influence on the
conduct of prosecutions was the central theme
of the Supreme Courts judgment in the Best
Bakery case, and to a lesser extent, in Vineet
Narain60
as well. However, it has already been
noted that although recent Court decisions
have sought to protect the prosecutor from
governmental interference, the Code itself
does not at present do so. Now, in considering
the question of prosecutorial independence
59See the above cited(at no.48) article
60MANU/SC/0827/1998
from the executive, two issues must be
tackled- the first is as to what the theoretical
justification of such independence is, and the
second is as to how it can be secured while
retaining the accountabilityof the prosecutor.
If prosecution is thought of as a primarilyexecutive function, then it is difficult to
conceptualize the independence of the
prosecutor from the executive. The American
Supreme Court has been ambiguous on this
issue, holding in Morrison v. Olson61
that
although prosecution is an executive function,
it is not a core executive function. In India, as
noted earlier, Courts have been moving away
from the view that prosecution is an executive
function. One important argument against
treating prosecution as an executive functionderives from the doctrine of separation of
powers, which has been held to be part of the
Indian Constitutions unamendable basic
structure.The argument is that the notion of
the separation of powers would seem to
stipulate that crimes committed by members
of the government should be investigated and
prosecuted by persons that are not dependent
on government personnel. The Supreme
Court in Vineet Narain62
also pointed to this
very need. Now, given that, as discussed
previously, it is commonly recognized today, in
India and outside, that the roleof prosecutors
is such as to require that they bear
themselves in the character of ministers of
justice assisting in the administration of
justice it is perhaps most accurate to treat
prosecution as essentially a part of thejudicial
process. Such a treatment would by no means
be uncontroversial- given that the United
Nations Guidelines on the Role of Prosecutors
themselves provide that the office of
prosecutors shall be strictly separated fromjudicial functions. However, the sense of this
guideline is that prosecutors ought not to
judge in their own cause; this is different from
suggesting that, as officers of the court,
61108 S.Ct. 2597 (1988)
62MANU/SC/0827/1998
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prosecutors should also be encompassed by
the concept of the independence of the
judiciary. In addition, Italian law is an example
of this position. A.104 (1) of the Italian
Constitution63 provides that The judiciary
constitutes an autonomous and independent
branch of government not subject to any
other, and A. 104(3) makes the general public
prosecutor a member of the judiciary. In
addition, A. 108(2)64 provides that The law
has to protect the independence of judges, of
special courts, of the public prosecutors
attached to them, and of all those not
belonging to the judiciary who participate in
the administration of justice. This has been
praised as a system that offers an
unprecedented degree of freedom and
independence in the execution of judicialduties and the discharging of its functions,
especially in cases involving the state, the
government and its officers. Professor
Shankar Reddy was also of the view that,
although the law in India does not clearly make
the prosecutor independent of government
orders in his functioning, this is a requirement,
and that constitutionalizing the office of the
prosecutor might assist its achievement. As
such, the Italian system might provide an
adequate basis for prosecutorial independencein India as well.
The other difficult issue relates to ensuring the
accountability of an independent prosecutor65
.
Clearly, independence without accountability
is untenable; in fact, it has been noted that the
accountability of a prosecuting service is in
fact one of the bastions of its independence,
in the absence of which no independence
could be conferred. One way of achieving
accountability is to adopt the system prevalent
in several American States, where theprosecutor is elected by the people, and
therefore answerable to them.Such a system
would also be consistent with the idea that the
63See Constitution of Italy, available at
www.electionworld.org/italy.htm(5/5/2004).64
ibid65
Basus Cr.p.c (2nd
ed. 1973) pg 59-67
public prosecutor conducts the prosecution in
the court for the people.66
However, it is not
likely to work in India, not just because it
would represent a clean break from the
current system of prosecution but also
because it would entail- as it has in America- a
high degree of politicization of the office of the
prosecutor, who would align himself with
political parties in fighting elections. Perhaps a
better option, then, is the one proposed by the
Law Commission, which had recommended
that the Director of Public Prosecutions be
responsible to the State Government. Would
such responsibility be incompatible with his
independence from it? To answer this, a
distinction must be drawn between
explanatory and co-operative accountability
and subordinate and obedientaccountability
67. While the former refers to a
process whereby the decision-maker may be
called to explain an impugned decision to a
responsible authority and may canvass the
views of other authorities or agencies about
certain matters of policy, the latter implies a
relationship in which one party is of lower rank
or is of lesser importance inferior, and under
the orders of the other.68
It is true that if the
prosecutor were responsible to the
Government in this latter sense, then it wouldconflict with his independence from it, but if
the Government could only note the
explanations and responses of the prosecutor
and perhaps broadcast them to a wider
audience- such as Parliament, to which the
Government itself is responsible- and also
consider policies of the prosecution agency
and perhaps make recommendations in
respect of policy, this would be perfectly
compatible with prosecutorial independence.69
Such a system would not confer any power on
the Government to override the decisions of
the prosecutor (although the Courts
66ibid
67Granville Williams the book of criminal law (2
nd
ed.)ch.ii pg 42-6968
ibid69
ibid
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themselves would retain judicial review over
such decisions), but it would enable it to take
suitable action if he were found to be abusing
his discretion. A system close to this exists in
the United Kingdom, where although the
Crown Prosecution Service, headed by the
Director of Public Prosecutions, is
superintended by the Attorney General,
constitutional convention dictates that it is
accountable to him only in an explanatory
form.70 The institution of a system along the
same lines in India, as an elaboration on the
Law Commissions recommendation that the
prosecution be responsible to the State
Government, might therefore be beneficial.
70See prosecution of offences Act,1985
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ENGLISH SYSTEM
I.INTRODUCTION
The Crown Prosecution Service (CPS) is the
principal public prosecution service for Englandand Wales. In January 2010,
it merged with the Revenue and Customs
Prosecutions Office (RCPO). The service is
headed by the Director of Public Prosecutions
(DPP) who is also the Director of Revenue and
Customs Prosecutions. The DPP exercises his
functions independently, subject to the
superintendence of the Attorney General who
is accountable to Parliament for the work of
the prosecution service.71 The Crown
Prosecution Service is responsible for criminalcases beyond the investigation, which is the
role of the police. This involves giving advice to
the police on charges to bring, being
responsible for authorizing all but a very few
simple charges (such for court, both in
magistrates' courts as begging), and preparing
and presenting cases and, increasingly, the
Crown Court.72
II.History
Historically, in England, with no police forces
and no prosecution service, the only route to
prosecution was through private prosecutions
brought by victims at their own expense or
lawyers acting on their behalf. From 1829
onwards, as the police forces began to form,
they began to take on the burden of bringing
prosecutions against suspected criminals.73
In 1880, Sir John Maule was appointed to be
the first Director of Public Prosecutions,operating as a part of the Home Office; the
71Rt Hon Sir Iain Glidewell, The Review of the
Crown Prosecution Service: A Report, June 1998, Cm
3960, para 1672
ibid73
Seewww.wikipedia.org/search/ crown
prosecuting service
jurisdiction was only for the decision as to
whether to prosecute, and just for a very small
number of difficult or important cases; once
prosecution had been authorised, the matter
was turned over to the Treasury Solicitor.
Police forces continued to be responsible for
the bulk of cases, sometimes referring difficult
ones to the Director. In 1884, the offices of the
DPP and the Treasury Solicitor were merged,
but were again separated by the Prosecution
of Offences Act 190874.
In 1962, a Royal Commission recommended
that police forces set up independent
prosecution departments so as to avoid having
the same officers investigate and prosecute
cases though, technically, the prosecuting
police officers did so as private citizens.
However, the Royal Commission's
recommendation was not implemented by all
police forces, and so in 1978 another Royal
Commission was set up, this time headed by
Sir Cyril Philips. It reported in 1981,
recommending that a single unified Crown
Prosecution Service with responsibility for all
public prosecutions in England and Wales be
set up75
. A White Paper was released in 1983,
becoming the Prosecution of Offences Act1985, which established the CPS under the
direction of the Director of Public
Prosecutions, consisting of a merger of his old
department with the existing police
prosecution departments. It started operating
in 198676
.
The power of the police to charge for all but
the most minor offences was transferred to
the CPS following the Criminal Justice Act
2003.
74ibid
75ibid
76ibid
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III.Organisational structure of crown
prosecuting service
i.GENERAL
The CPS is divided into 13 geographical Areas
across England and Wales. Each Area is led by
a Chief Crown Prosecutor (CCP) who is
responsible for the provision of a high quality
prosecution service in their Area. Each CCP is
supported by an Area Business Manager
(ABM), and their respective roles mirror, at a
local level, the responsibilities of the DPP and
Chief Executive. Administrative support to
Areas is provided by Area Operations Centres.
A 'virtual' 14th Area, CPS Direct, is also headed
by a CCP and provides out-of-hours charging
decisions to the police.77
Each area is headed by a Chief Crown
Prosecutor who reports directly to the Director
of Public Prosecutions. In London, the Chief
Crown Prosecutor is supported by Sector
Directors. Although Chief Crown Prosecutors
are directly accountable for the prosecutions
in each area, most of the responsibility for the
business administration of the area is overseen
by an Area Business Manager.78
The CPS is the largest employer of lawyers in
the UK, dealing exclusively with criminal
prosecutions. At the end of March 2006, it
employed a total of 8,775 people; almost a
third of which were qualified prosecutors.[2]
They deal with more than 1.3 million cases
annually in the Magistrates' court and
approximately 115,000 in the Crown Court.79
Other staff include Associate Prosecutors, who
are not qualified lawyers but are specially
trained to review and present limited range of
cases in magistrates' courts, paralegal staff
who carry out work required to implement
77Keir Starmer QC, A prosecution service for the
21st century, a speech to the London Metropolitan
University, 9 January 200978
ibid79
ibid
decisions and progress existing cases, and
administrative staff who deal with tasks such
as tracking the progress of cases, liaising with
other agencies, matching incoming material to
case files and copying and sending out
documents.
The headquarters in South-East London sets
national business strategies; develops and
delivers policies, practices and procedures for
the prosecution process; delivers IT and other
services; deal with issues such as equality and
diversity issues for the organisation and
provides administrative support to areas.
Complementing the bulk of qualified lawyers
prosecuting in-area, the Crown Prosecution
Service also has the following two specialist80casework groups:
Central Fraud Group based in London,Manchester in York, concentrating on the
country's most serious and complex cases
of fraud and associated dishonesty
offences
Serious Crime Group which is furtherdivided into two divisions
o Organised Crimeo Special Crime & Counter Terrorism
On 2 March 2004 the Director of Public
Prosecutions commented on a rumoured re-
naming of the service to the 'Public
Prosecution Service':
"We are a public prosecution service and for
some time I have favoured a change of name
to make that clearer. This would reflect themajor transformation that we are making in
the role of prosecutors within the criminal
80Coppen, J., PACE: A View from the Custody
Suite, in Cape, E. and Young, R., (eds), (2008)
Regulating Policing: The Police and Criminal
Evidence Act 1984 Past, Present and Future, Oxford
and Portland, Hart Publishing, p. 87
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justice system. I have discussed this with the
Attorney General who takes the same view
and I am discussing it with my staff. No final
conclusion has yet been reached. When this
process is complete the Attorney General and I
will announce our decision.
Ken Macdonald QC81
Some suggest that such a change would
undermine the constitutional role of the
department, nominally at least. It is unclear
whether a name change is imminent, or is still
being discussed at all. This proposed change
was very unpopular within the Service as being
pointless and otiose, as well as somehow
insulting.
ii.STATUTORY PROVISIONS
The preamble to the Prosecution of offences
Act,198582
provides as follows:
An Act to provide for the establishment of a
Crown Prosecution Service for England and
Wales; to make provision as to costs in
criminal cases; to provide for the imposition of
time limits in relation to preliminary
stages of criminal proceedings; to amendsection 42 of the Supreme Court Act 1981 and
section 3 of the Children and Young Persons
Act 1969; to make provision with respect to
consents to prosecutions; to repeal section 9
of the Perjury Act 1911; and forconnected
purposes
Thus this Act is the main enactment which
provides for the constitution and functions of
the C.P.S.
I.CROWN PROSECUTING AGENCY
Section 1 83of the Prosecution of offences
Act,1985 provides as follows:
81ibid
82See preamble to THE PREAMBLE TO THE
PROSECUTION OF OFFENCES
ACT,1985{U.K.STATUTE.}(hereinafter reffered as
POOA,1985)
(1)There shall be a prosecuting service for
England and The Crown Wales (to be known as
the " Crown Prosecution Service ") consisting
of-
(a)the Director of Public Prosecutions, who
shall be head of the Service ;
(b) the Chief Crown Prosecutors, designated
under subsection(4) below, each of whom shall
be the member of the Service responsible to
the Director for supervising the operation of
the Service in his area ; and
(c) the other staff appointed by the Director
under this section.
(2) The Director shall appoint such staff for the
Service as, with the approval of the Treasury as
to numbers, remuneration and other terms
and conditions of service, he considersnecessary for the discharge of his functions.
(3) The Director may designate any member of
the Service who is a barrister or solicitor for
the purposes of this subsection,and any person
so designated shall be known as a Crown
Prosecutor.
(4) The Director shall divide England and Wales
into areas and, for each of those areas,
designate a Crown Prosecutor for the purposes
of this subsection and any person so
designatedshall be known as a Chief Crown Prosecutor.
(5) The Director may, from time to time, vary
the division of England and Wales made for the
purposes of subsection (4) above.
(6) Without prejudice to any functions which
may have been assigned to him in his capacity
as a member of the Service, every Crown
Prosecutor shall have all the powers of the
Director as to the institution and conduct of
proceedings but shall exercise those powers
under the direction of the Director.
(7) Where any enactment (whenever passed)-
(a) prevents any step from being taken without
the consent of the Director or without his
consent or the consent of another ; or
(b) requires any step to be taken by or in
relation to the Director ;
83POOA 1985,SECTION 1
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any consent given by or, as the case may be,
step taken by or in relation to, a Crown
Prosecutor shall be treated, for the purposes
of that enactment, as given by or, as the case
may be, taken by or in relation to the Director.
II.The Director of Public Prosecutions:
Appointment (section 2)
Section 284 of the Act of 1985 provides for the
appointment of director of public prosecution
,as follows:
(1) The Director of Public Prosecutions shall
be appointed by the Attorney General.
(2) The Director must be a barrister or solicitor
of not less than ten years' standing.
(3) There shall be paid to the Director such
remuneration as the Attorney General may,with the approval of the Treasury,
determine.
III.Functions of the Director
Section 385 of the Act of 1985 states as follows:
(1) The Director shall discharge his functions
under this or any other enactment under the
superintendence of the Attorney General. .
(2) It shall be the duty of the Director-
(a) to take over the conduct of all criminalproceedings, other than specified proceedings,
instituted on behalf of a police force (whether
by a member of that force or by any other
person) ;
(b) to institute and have the conduct of
criminal proceedings in any case where it
appears to him that-
(i) the importance or difficulty of the case
makes it appropriate that proceedings should
be instituted by him ; or
(ii) it is otherwise appropriate for proceedings
to be instituted by him ;
(c) to take over the conduct of all binding over
proceedings instituted on behalf of a police
force (whether by a member of that force or
by any other person) ;
84POOA 1985 SECTION 2
85SECTION 3
(d) to take over the conduct of all proceedings
begun