APPOINTMENT AND TYPES OF PUBLIC PROSECUTOR

Author: Akhil Singh (University Institute of Legal Studies)

ABSTRACT

Public Prosecutor is a very integral part of Criminal Justice System. Public Prosecutor aims to represent the victim of crime and pleads justice for him/her. Public Prosecutor’s job is required to be free from any bias as to represent the true story of the crime. This blog tries to present the concept of Public Prosecutor and makes reader aware about how Public Prosecutor is appointed and Court’s opinions through various judgements regarding the same.

A crime is a public offence, whenever a crime happens especially when it is a grave one, it affects not only the person concerned but also disseminates a wave of terror in the society. As crime affects the society at large it establishes a duty on the Government to not only form deterrent laws and apply them to prevent crime but also if any crime happens it should become a voice of the immediate victim (actual victim) and the indirect victim (the society).This role of the government is fulfilled by its officer who is Public Prosecutor.

The word Public Prosecutor is defined in Section 2 (u) CrPC 1973 as- “any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor”. As it can be easily inferred it is not possible to determine the exact meaning of Public Prosecutor from CrPC, therefore it is convenient to have a look in other resources and dictionaries to have a proper understanding of the term.

Public Prosecutor is “An officer of government whose function is the prosecution of criminal actions, or suits partaking of the nature of criminal actions”- The Black’s Law dictionary.

Merriam Webster Dictionary has defined it to be- “a public official charged with the investigation and prosecution of punishable acts on behalf of the state or an international commission”.

Taking all these interpretations in consideration, Public Prosecutor can be summarised as him/her being- “An Officer/Public Official who investigates and prosecutes on behalf of the Government against someone accused of a crime in Court”.

CLASSES OF PUBLIC PROSECUTORS AND ASSISTANT PUBLIC PROSECUTORS

The Classes of Public Prosecutors and Assistant Public Prosecutors are provided in Section 24 and Section 25 of CrPC read with s.2 (u) and are as follows:

Public Prosecutor for High Court, u/sub-s. (1): This Public Prosecutor is appointed for prosecuting cases on behalf of the Central or State Government in the High Court. The appointment of this Public Prosecutor is done by Central or State Government in consultation with High Court. If the appointment of Public Prosecutor for High Court is not made with the consultation with the High Court it is not a valid appointment[i]. But the High Court cannot appoint a Public Prosecutor[ii].

The Section further provides for appointment of the Additional Public Prosecutors in the same manner as provided for Public Prosecutor who will help Public Prosecutor in prosecuting cases.

Public Prosecutor for any District or any Local Area appointed by Central Government, u/sub-s. (2): The Central Government is empowered by the Sub Section (2) of the above section to appoint a Public Prosecutor or additional Public Prosecutors for prosecuting cases on its behalf any case or any class of cases in any district or local area. These prosecutors are appointed to represent the Central Governments in District courts.

Public Prosecutor and Additional Public Prosecutor for any District appointed by State Government, u/sub-s. (3): The sub section (2) talked about the power of Central Government to appoint Public Prosecutor or additional Public Prosecutors for representing it in the District courts, in the same manner sub section (3) talks about the power of State Government to appoint Public Prosecutor or additional Public Prosecutors to represent it in the similar manner. However, the Powers given to State Government is subject to certain restrictions in sub section (4), (5) and (6).

Sub section (4) provides that it is required by District Magistrate, with consultation of Sessions Judge, to prepare a panel of names of persons, who are in his/her opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors. The use of the word ‘Panel’ suggests that name of a single person cannot be considered to be a panel for the purpose of this sub-section[iii].  An advocate general cannot represent the State in a criminal proceeding unless he is appointed as a Public Prosecutor under Section 24(1)[iv].

Sub Section (5) complements the above provision by stating that no appointment of Public Prosecutor or Additional Public Prosecutors can be made unless his/her name in present in the panel of names prepared in the sub section (4).

The Supreme Court, in Harpal Singh Chauhan v. State of U.P.[v], has reiterated that while preparing the panel for appointment for Public Prosecutors, the Sessions Judge and the District Magistrate are required to consult and discuss each name of the person to be included in the panel and the same procedure has got to be followed in cases of renewal or extension of the term of the person so appointed.

The High Court of Allahabad in Vinay Kumar Srivastava v. State of U.P.[vi], observed that the appointment of panel lawyer by the District Magistrate without recommendation of District Judge is liable to be set aside as there is no provision in Section 24 and Section 25 or the manual permitting the District Magistrate to appoint any penal lawyer without the recommendation of the District Judge and the appointment is to be made only by the Legal Remembrancer from the list of lawyers approved by both, the District Judge and the District Magistrate.

In Ghanshyam Kishore Bajpayee v. State of U.P.[vii], it has been further clarified that in the case of conflict of opinion between District Judge and District Magistrate as regards the appointment or renewal of the term of District Government Counsel, the opinion of District Judge would ordinarily prevail.

Surpassing the above two provisions Sub Section (6) says that primarily the appointment of Public Prosecutor is to be done by State government from the existing regular cadre of Prosecuting Officers if such cadre exists in a State. However, it is also provided in the sub section that if State Government is of the opinion that no suitable candidate is present in the Cadre then the State Government has to make the appointment from the panel of names prepared in the Sub Section (4). 

It was held in P.M. Sunny v. State of Kerala[viii], that the Government cannot keep posts vacant on the ground of administrative necessity and financial constraints. The appointment of a prosecutor is a compelling constitutional necessity obligatory under this Code. Financial constraints cannot absolve the State of its constitutional obligation.

All the three classes of Public Prosecutors explained above are also required to be appointed keeping in mind the sub section (7) of the given section. This provision requires that a person is only eligible to be appointed as Public Prosecutor or an Additional Public Prosecutor only if he/she has been in practice as an advocate for not less than 7 years. This provisions seems to be quite mandatory as it is pertinent for a Public Prosecutor to have a proper experience of being an advocate while is fulfilled by this sub section. The period of service as Judicial Officer will not be counted as to in the definition of practising advocate[ix].

Special Public Prosecutors appointed by the Central Government or State Government, u/sub-s. (8): Sub Section (8) of the section provides powers to the Central Government or the State Government to appoint a person who has been a practising advocate for not less than 10 years for prosecuting on their behalf in any case or class of cases.

Special Public Prosecutors are appointed for dealing in matters of high importance such as the cases which are more important due to its huge impact on society and it is pertinent that society is to be represented by a person having higher qualifications than any other Public Prosecutor. The requirement of having a practise of not less than 10 years does that work.

The Supreme Court in Mukul Dalal v. Union of India[x], held that the services of Special Public Prosecutor should not be made available to a private complainant as the expenses on appointment of Public Prosecutor or Special Public Prosecutor is to be borne out of State fund but in special circumstances it may be from the private fund of the party. It was held that the office of the Special Public Prosecutor is public one and such an appointment should be a social purpose.

In the case of Special Public Prosecutor appointed for the purpose of any case or class of cases no consultation with any authority is required and the Central Government or the State Government is fully empowered to appoint anyone with the requisite qualification, as a Special Public Prosecutor[xi].

Apart from all of the above requirements, sub section (9) provides additional information that is going to be applicable on all the types of Public Prosecutors above mentioned. It states that the time spent by a person in practising as a pleader or Additional Public Prosecutor or any of the other posts mentioned in the provision, will be counted as a period in which he/she has practised as an advocate as mentioned in sub section (7) and sub section (8).

Assistant Public Prosecutors: The Public Prosecutor is appointed for representing Central or State Government in the High Court and Session Court mainly. It is required that there is a person who represents Centre and State in the Magistrate Courts. This requirement is fulfilled by the Assistant Public Prosecutors.

The sub section (1) of the Section 25 talks about appointment of Assistant Public Prosecutor by the State Government. It states that State Government has to appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates.

The sub section (1A) of the above provision provides to the Central Government regarding Assistant Public Prosecutor similar powers as was given to it in sub section (2) of Section 24 in case of Public Prosecutors. It mandates Central Government to appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the Courts of Magistrates.

As the above two provisions talks about the powers and obligation of Central and State Government to appoint Assistant Public Prosecutors, the sub section (2) now talks about the restriction to it. It states that no police officer shall be eligible to be appointed as an Assistant Public Prosecutor.

Sub Section (3) works as an exception to the sub section (2), it authorises the Governments to even appoint any person as an Assistant Public Prosecutor even a Police Officer provided that Police Officer shall not be appointed if:

1. If he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or
2. If he is below the rank of Inspector.

Section 25 does not say like s. 24 that the Assistant Public prosecutor should also be a practising advocate. In fact, u/s 25, under certain circumstances even a police officer can be appointed as Assistant Public Prosecutor[xii].

The word “available” may mean either not appointed and, therefore not available, or not available because he is otherwise engaged, e.g., before another Magistrate, or is absent on leave, or has resigned. The Calcutta High Court in a case under the old Code where the word used was “absent” held that absence does not include a situation where a Public Prosecutor is appointed but is not available to conduct the case. In such a case, the Additional District Magistrate could not appoint a lawyer on behalf of the State and call him Public Prosecutor[xiii].  The situation is seemed to be covered by the use of words “available for the purposes of any particular case.”

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Books Referred:

1. Dr. N.V. Paranjape, THE CODE OF CRIMINAL PROCEDURE (Central Law Agency 2011)
2. Batuk Lal, THE CODE OF CRIMINAL PROCEDURE (Central Law Agency 2017)
3. R.V. Kelkar, CRIMINAL PROCEDURE (Eastern Book Company 2014)
4. Ratanlal & Dhirajlal, THE CODE OF CRIMINAL PROCEDURE (Lexis Nexis 2017)

Cases Referred:

[i] Re: Superintendent and Remembrancer of Legal Affairs, West Bengal v. Prafulla Majhi & anr. 1982 Cri LJ 1120

[ii] Kanhu Charan Prusty v Sarat Kumar Mohapatra and Anr. 1971 Cri LJ 740

[iii] V. Ramchandra v. M.C. Jagadhodhara Gupta and Ors. 1986 Cri LJ 1820

[iv] State Of Kerala v. Kolarveetiil Krishnan 1982 Cri LJ 301

[v]  AIR 1993 SC 2436

[vi] Vinay Kumar Srivastava v. State Of U.P. 2006 Cri LJ 702

[vii] 2005 Cri LJ 1985

[viii] 1986 Cri LJ 1517

[ix] Mallikarjuna Sharma and Ors. v. The State Of A.P. and Ors. 1978 Cri LJ 1354

[x] 1988 SCC (3) 144

[xi] Shankar Sinha v. State Of Bihar and Ors. 1995 Cri LJ 3143

[xii] K. Tirupathi v. Government of Andhra Pradesh, 1983 Cri LJ 1243 (AP).

[xiii] Raj Kishore Rabidas v. The State, 1969 Cri LJ 860