Prosecuting Agencies

8/22/2019 Prosecuting Agencies

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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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3

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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11

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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12

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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13

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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14

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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15

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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16

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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17

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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18

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
http://en.wikipedia.org/wiki/British_Policehttp://en.wikipedia.org/wiki/Magistrates%27_courtshttp://en.wikipedia.org/wiki/Begginghttp://en.wikipedia.org/wiki/Crown_Courthttp://en.wikipedia.org/w/index.php?title=John_Maule_(lawyer)&action=edit&redlink=1http://en.wikipedia.org/wiki/Home_Officehttp://www.wikipedia.org/search/http://www.wikipedia.org/search/http://www.wikipedia.org/search/http://en.wikipedia.org/wiki/Treasury_Solicitorhttp://en.wikipedia.org/wiki/Royal_Commissionhttp://en.wikipedia.org/wiki/Cyril_Philipshttp://en.wikipedia.org/wiki/White_Paperhttp://en.wikipedia.org/wiki/Prosecution_of_Offences_Act_1985http://en.wikipedia.org/wiki/Prosecution_of_Offences_Act_1985http://en.wikipedia.org/wiki/Criminal_Justice_Act_2003http://en.wikipedia.org/wiki/Criminal_Justice_Act_2003http://en.wikipedia.org/wiki/Criminal_Justice_Act_2003http://en.wikipedia.org/wiki/Criminal_Justice_Act_2003http://en.wikipedia.org/wiki/Prosecution_of_Offences_Act_1985http://en.wikipedia.org/wiki/Prosecution_of_Offences_Act_1985http://en.wikipedia.org/wiki/White_Paperhttp://en.wikipedia.org/wiki/Cyril_Philipshttp://en.wikipedia.org/wiki/Royal_Commissionhttp://en.wikipedia.org/wiki/Treasury_Solicitorhttp://www.wikipedia.org/search/http://en.wikipedia.org/wiki/Home_Officehttp://en.wikipedia.org/w/index.php?title=John_Maule_(lawyer)&action=edit&redlink=1http://en.wikipedia.org/wiki/Crown_Courthttp://en.wikipedia.org/wiki/Begginghttp://en.wikipedia.org/wiki/Magistrates%27_courtshttp://en.wikipedia.org/wiki/British_Police


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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

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