Office of Public Prosecutor: A Much Needed Clarity

By: Suvam Kumar


INTRODUCTION

In India, we follow the adversarial criminal system for dispensing justice. In an adversarial system, the judges play the role of an umpire and it is the prosecutor and the defense lawyer who present the case for the discovery of truth. Therefore, one of the key players in the criminal justice system is the Public Prosecutor. A Public Prosecutor is not merely an advocate for the litigant, he also performs duties which are of public nature. Hence, a Public Prosecutor helps the court in dispensing justice by acting as an agent of justice. Therefore, it is imperative that the duties performed by the Public Prosecutor be fair and impartial. 

However, one of the most problematic and controversial powers associated with a Public Prosecutor is with regard to the delegation of its power to the inexperienced juniors by virtue of Section 2(u) of CrPC. Section 2(u) states that Public Prosecutor means any person appointed under Section 24 and includes any person acting under the directions of a Public Prosecutor. Upon dissecting the definition, it is seen that it encapsulates two parts. First, it includes any person appointed under Section 24 of CrPC, which deals with the appointment of a Public Prosecutor. Second, it includes any person acting under the directions of a Public Prosecutor. With regard to the first part, the position is very clear and follows the procedural requirements as laid down in Section 24. However, with regard to the delegation of powers by the Public Prosecutor, there is a dearth of clarity and criterion for such delegation. This gives a very wide and broad connotation to the term Public Prosecutor and leaves space to exercise arbitrary delegation of powers. Without having any clear and concrete criterion as to when a Public Prosecutor can delegate his power, even the inexperienced lawyers can act as Public Prosecutors by the virtue of its broad definition given under CrPC and can put the justice at stake. Hence, there is a need to revisit the definition of a Public Prosecutor along with some clear guidelines and conditions so that the power of a Public Prosecutor can be rightly delegated.

IMPORTANCE OF THE OFFICE OF PUBLIC PROSECUTOR

In the case of  Laxman Rupchand Meghwani v. State of Gujarat and Ors, the Hon’ble Supreme Court has stated that under Code of Civil Procedure (hereinafter CrPC), the Public Prosecutor holds a special status and has a statutory appointment. The functions and the duties of a Public Prosecutor are of vital importance to the public. The Apex Court has firmly stated that a Public Prosecutor is not just an advocate engaged by the State to conduct its prosecutions. In the landmark case of Rajendra Kumar Jain Etc v. State Through Special Police, the Supreme Court has firmly stated that the Public Prosecutor is an officer of the Court and therefore, responsible to the Court. The office of Public Prosecutor holds great importance which is brought out in Section 321 of CrPC. Section 321 of CrPC. deals with the Public Prosecutor’s power to withdraw the prosecution after taking the consent from the Court. Similarly, Section 226 states that it is the Public Prosecutor who opens the case for prosecution and thereby putting the trial into the motion. Hence, the delegation of the powers of the Public Prosecutors must be cautiously done.

FAILED ATTEMPT TO RECTIFY THE LOOPHOLES IN THE INTERPRETATION

The court was met with a golden opportunity to discuss the problem of ambiguity in the interpretation of a Public Prosecutor and to fix it. However, the court did not pay any heed to the legal underpinnings of such vagueness and hence, miserably failed in resolving the problem. The court in the case of Varghese John v. State of Kerala was dealing with the issue of whether a Public Prosecutor can authorise any other advocate to conduct prosecutions in a Sessions Court or not. The court reiterated the definition provided under the CrPC and mechanically interpreted it without even discussing the nuances and intricacies of such strict interpretation. The court in its verdict said that the words used in Section 2(u) are “means and includes”. The court opined that the legislative intent behind using such a word is to give a much wider interpretation rather than a restrictive interpretation. However, the court failed to understand that such broad interpretation can open floodgates for arbitrary delegation of powers to the inexperienced juniors. It is, therefore, pertinent to note that the delegation of powers of Public Prosecutor to the inexperienced juniors, without any set standards, can have far-reaching consequences on the administration of the criminal justice system.

NEED TO RESOLVE THE DICHOTOMY

There exists a dichotomy between the ethics of the legal profession and the mechanical application of Section 2(u). Delegation of powers of the public prosecutor to the inexperienced juniors as per Section 2(u), without fulfilling any procedural requirements, would be inconsistent with the ethics of the legal profession. There is a need to resolve this dichotomy to revive the spirit of the legal profession. The legal profession is considered as a noble profession and the advocates are the part and parcel of the justice system. The profession of advocacy has been considered as a pure fountain of justice and hence, in order to maintain that esteem, the lawyers should follow certain ethical and professional conducts which are like the Seven Lamps of Advocacy. The Malimath Committee has also suggested certain key reforms in the criminal justice system: 

“Prosecutors are the Officers of the Court whose duty is to assist the court in the search of truth which is the objective of the Criminal Justice System. Any amount of good investigation would not result in success unless the institution of prosecution has persons who are of merit and who are committed with the foundation of a well-structured professional training. This important institution of the Criminal Justice System has been weak and somewhat neglected. Its recruitment, training and professionalism need special attention so as to make it synergetic with other institutions and effective in delivering good results.”

Therefore, it is imperative that the ethical regulations of the legal profession are followed by public prosecutors. For this, there should be strict compliance with certain guidelines and criterion for delegating the powers of public prosecutors to the junior lawyers.

SUGGESTIONS

The Court should lay down certain guidelines and criterion for delegating the powers of Public Prosecutor to their juniors. Some of the guidelines could be as follows:

  • Factors like the experience of lawyers in the courtrooms, their conduct in the courts, any remark made against a lawyer by the Court must be taken into consideration before delegating the powers to them.
  • Competency to act as the Public Prosecutor must also be considered as an important factor.
  • There shall not be any random selection of the lawyers for the delegation of the powers of a Public Prosecutor.
  • Research should be conducted to assess the fitness of the lawyers as a Public Prosecutor.
  • There should be strict administrative and disciplinary control over the prosecutors and Assistant Public Prosecutor to ensure impartiality and integrity of the institution. 

CONCLUSION

For the proper functioning of the criminal justice system, it is imperative that the important offices perform their functions with integrity and dedication. By leaving behind any scope for misuse of these powers and functions, the future of the justice system can be put at stake. A Public Prosecutor is an important pillar on which the justice rests. The office of Public Prosecutor reflects the institutional integrity associated with it. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society. This can be achieved only when the community is represented by a fair prosecuting agent. Thus, it is imperative that the prosecuting agents perform their duty with integrity without any misfeasance in the public office. Delegation of powers by Public Prosecutors to the junior lawyers in order to get away with their responsibility is a gross abuse of their powers. Therefore, it is the duty of the courts to assess the various loopholes in the system and deploy methods to rectify them. Hence, the Court must give clarity on the criterion for delegation of power of the Public Prosecutor to junior lawyers.


(Suvam is currently a law undergraduate at National Law University, Jodhpur.)

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