In Indian courts, a trial is initiated by a Prosecutor who first examines witnesses in his Examination-in-chief and then he proceeds with his arguments. If evidence produced before him is found to be irrelevant or inadmissible, an impartial Judge objects to it and discards it as unacceptable. International Covenant on civil and political rights insists upon fair trials by presuming innocence and by insisting upon proof ‘beyond reasonable doubt.5 Indian courts follow the principle of fair trial, during which Prosecutors enjoy a lot of discretion which enables them to protect the innocent and to convict the guilty.6 The notion of fair trial and justice is protected. Normally, the prosecution begins after the police end their investigation. In the year 1958, the Law Commission of India had recommended the appointment of the Director of Public Prosecution to control all he Prosecutors. This is a separate department of prosecution. Trial stage is the work intensive stage for the Indian Prosecutors. However, that recommendation was not executed for many decades and the mandate of this Board of Directorate of Prosecutor was incorporated in year 2005.

CONSTITUTIONAL PROVISIONS

List III of the 7th Schedule to the Indian Constitution allows the Center and also the States to legislate on prosecution. Of course,there exists no direct provision relating to prosecution in Indian Constitution. Prosecutor’s post is a statutory post. It is not a constitutional post as Attorney General of India or Solicitor General of India. However, it is the duty of States to protect the interest of the society. Prosecutors represent the State in criminal courts and incidentally they protect the victim’s interest. Therefore, indirectly it is incumbent on Prosecutors to protect the interest of State. Indian Constitution is a written document. It follows the Anglo-Saxon common law justice system. Article 14 of the constitution mandates equality before law or equal protection of laws within the territory of India. Article 21 mandates protection of life and personal liberty Article 20 provides protection against self- incarnation and double jeopardy. Article 20 (3) allows an accused to maintain silence. The accused will not be compelled to be a witness against himself. Under Article 20 innocents are constitutionally protected and no person would be subject to pay penalty greater than that which might have been inflicted upon him under the law in force at the time of commission of the offence.

These fundamental rights can be claimed against the State which is bound to protect them. Under Article 39 (A) of State must secure equal justice to all its citizens. This is one of the Directive Principles of State Policy. Free and Fair trial is indispensable part of Adversarial criminal justice system. In K. Anbhazhaganv Superintendence of police A.I.R. 2004, S.C.524 case, the court held that Free and Fair trial is a sine qua non of Article 21 of the Indian Constitution. It is trite law that justice should not only be done but it should be seen to have been done. If the criminal trials not free and fair and not free from bias, judicial fairness and judicial system would be at stake, shaking the very confidence of the Public in the system and woe would be the rule of law. There is a close nexus of truth with free and fair trial. In this regard, as per Philip Rechel, The Adversarial Process assumes that truth will emerge only from free and open competition. Here, the struggle is between the State on one hand and the defendant on the other.

Indian Prosecutors are regulated and governed under the Code of Criminal Procedure, 1973. Along with these, there are special statutes where specific provision for the Public Prosecutor is given. The Prosecutors follow the rules of evidence under the Indian Evidence Act, 1872 throughout the criminal proceedings. In addition to these provisions, there are special legislation’s governing Prosecutor’s appointments, their powers, etc. under the special laws enacted by the Parliament Indian and enacted by State legislatures.

Reasons for the Appointment of Public Prosecutor

Whenever any crime is committed against a group or individual, it is assumed that it has been committed against society. It is the duty of the state to provide justice to any group of society or person who is affected by the crime. In India, it is necessary that the criminal justice system should function within the limits of the Indian Constitution, which means that it is necessary for the Public Prosecutor to act in accordance with the principles of:

• Equality before law
• Protection against double jeopardy
• Protection against self-incrimination
• Protection against ex-post law
• Right to life and personal liberty except procedure established by law
• Presumption of innocence until proven guilty
• Arrest and detention must be in accordance with the provisions of Cr.P.C.
• Equal protection of laws
• Speedy trial
• Prohibition of discrimination
• Right of accused to remain silent

CLASSIFICATION OF PROSECUTORS IN INDIA

a) Public Prosecutor/ Additional Public Prosecutors-

High Courts and Sessions Courts After consultation with the High Courts, Central Government or State Government is empowered to appoint Prosecutors for purpose of prosecution, appeal or for any other purpose. The Act made it mandatory that every State Government appoint Public Prosecutors for every district in the State. For that purpose the District Magistrate prepares list of the interested candidates to be a District level Public Prosecutor or an Additional Public Prosecutor. The Sessions Judge, i.e. the principal district Judge is consulted. Suitable candidate list is sent to the State and the State Government approves the list finally from the list it receives. Minimum seven years of experience is mandatory for the candidates who apply for the post of Prosecutors. That experience should be of the Session’s courts litigation. As long as the Prosecutor is on the roll of Prosecutors, he is not entitled to appear against the Government in any civil or criminal cases. In order to avoid clashes in interest, this provision is made and is strictly followed in India .

b) Special Public Prosecutors-

The Special Public Prosecutors are appointed under Sec 24 (8) of the Code of Criminal Procedure 1973. They deal with the special cases registered under the Special Laws. At least 10 years practice is mandatory for the candidates willing to be Special Public Prosecutors. Also,the Special Public Prosecutors are appointed for CBI Courts under Sec 24(8) of the Code of Criminal Procedure, 1973. As per notification Directorate of Prosecution 2002, the Central Government issues notifications to appoint special Public Prosecutors in CBI courts. As a result of Vinit Narayan V UnionofIndia decided in the year 1963, Santhanam Committee has recommended the appointment of Prosecution Wing to deal with CBI cases in the CBI or the Sessions courts. Advocate on the roll list with minimum ten years of practice in the Session’s courts is eligible for the post of Special Public Prosecutors in India. The Special Public Prosecutors who deal with special offences punishable under the Indian Penal 86 Code, 1860 or the Special Criminal Laws made either by the Central Government or the State Government respectively. Those special laws can be the Narcotic Drugs and Psychotropic Drugs Act, 1985 (i.e. NDPS), The Prevention of Money Laundering Act, 2002, The Scheduled Caste and Schedules Tribes (Prevention of Atrocities) Act, 1987. These Special Public Prosecutors are appointed for a fix period and are paid comparatively higher than the Public Prosecutors working in the Session’s court or the High courts. Upon special request from the police or Public or sometimes the State Government or the Central Government on its own appoint Special Public Prosecutors.

c) Assistant Public Prosecutors at the Magistrates Courts-

The Assistant Public Prosecutors are the Prosecutors dealing with the cases in Magisterial Courts. The State Govt. conducts competitive examinations through its respective State Public service commissions. Their jurisdiction is limited to Judicial Magistrate First Class, Judicial Magistrate Second Class, Metropolitan Magistrates Court and the Chief Judicial Magistrate Courts. These assistant Public Prosecutors are appointed by States. Police officers are not entitled to work as Prosecutors. The District Magistrate may appoint any person as Public Prosecutor if he or she is not an investigating officer in a specific case and he / she is of or above the rank of Inspector. These Prosecutors are regular full time Prosecutors appointed by the Home Ministry of the respective State Government. They are entitled to receive benefits from Govt.

d) The Director of Prosecution-

The Head of the prosecuting authority in a State is known to be Director of Prosecution.A person shall be eligible to be appointed as Director of Prosecution or a Deputy Director of prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with concurrence of the Chief Justice of the High Court. He shall function under the administrative control of the Head of the Home Department in the State Secretariat. The powers, functions and area of authority of the Director of Prosecution and the Deputy Director of prosecution shall be such as the State Government may specify. In year 2005, a major amendment was made to Section 25 of the Code of Criminal Procedure. The Directorates of Prosecutors are created in States for multiple reasons. Their primary task is to bring about coordination among different prosecuting agencies. In addition to this, the directorate of prosecution advises the State Govt. for filling of appeals and revision petitions. It also takes care of efficiency,integrity and discipline of all Prosecutors. The Directorate of Prosecutor consists of a Director of Prosecution, the Dy. Directors of Public Prosecutors, Additional Public Prosecutors and the Special Public Prosecutors.

e) Prosecution by Central Bureau of Investigation (C.B.I.)-

The Central Bureau of Investigation has its Legal Division which plays an advisory and Prosecutor role. The Legal Division is headed by a Legal Advisor, who is sent on deputation to CBI by the parent Union Ministry of Law. This arrangement ensures objectivity of his office. The Legal Advisor is assisted by a number of Law officers namely, Additional Legal Advisor, Deputy Legal Advisors, Senior Public Prosecutors, Public Prosecutors, Assistant Public Prosecutors. These are indicated in descending order of seniority and rank. These officers who are permanent employees of the CBI, render legal advice to the investigating officers during the course of their investigations as to the viability of proposed prosecutions.

Functions

The functions of the Public Prosecutor differ according to their designation.

• Public Prosecutor- supervise the function exercised by the Additional Public Prosecutor in Session Court and High Court.
• Chief Prosecutor- supervise the functions exercised by Assistant Public Prosecutor in Metropolitan Magistrate Court.
• Additional Prosecutor- conduct criminal proceedings in the Session Court.
• Assistant Public Prosecutor- they examine the charge sheet prepared by agencies and submit the acquittal or discharge. They also are responsible for the evaluation of evidence and filing revisions petitions. They also conduct the criminal proceedings in the Court of Metropolitan Magistrate.
• Director of Prosecution- it is the head office. They exercise the overall control and supervision of officers of Directorate. They also look after the Account Branches.

General Duties of Prosecutors

Following are the duties of Prosecutors based on the statutes and case laws.

a) Examination of Independent Witnesses – When there were independent witnesses who had seen the occurrence, it was incumbent on prosecution to examine them. If the examination of such witness is necessary to protect the interest of the State, the Prosecutor is under duty to examine that witness.

b) Duty to Examine Important Witnesses– Sometimes, the witness may be of such importance for securing conviction, and then to protect the interest of justice the Prosecutor is under a duty to examine that witness. It is the duty of the Public Prosecutor to examine important witnesses. Dropping of important witnesses is not proper since it deprives the right of defence to cross examine such witnesses.For the sake of protection of victim’s right, it is necessary to examine such a witness.

c) Duty in Cases of Hostile Witnesses– The witness who does not support the party who has invited him to be his witness is called a hostile witness. Section 154 of the Evidence Act 1872 permits the prosecution to cross examine such witnesses who have turned hostile.

d) Duty to be Fair – Prabhu Dayal Gupta v State 1986, Cr. L. J. p. n. 389 it was held that while presenting case, the Prosecutor needs to be just and reasonable.Relevant evidence should be placed before the courts without bias and prejudice, all the evidences supporting and against the prosecution case should be categorically brought before the court to determine the guilt or innocence of an accused. An exhaustive scene should be placed before the court without hiding or concealing any material fact.

e) The Public Prosecutor has a Public Responsibility at the time of With drawing Prosecution– In Koli Nana Bhana and others v. State of Gujarat 1986 Cr. L. J . 571 p.no.574,decision of withdrawal of prosecution lies with the Prosecutor engaged in the case. This is the Prosecutor’s exclusive prerogative which can take initiative for withdrawal if the case is fit for withdrawal of prosecution as per existing provisions. In State v. Bhim Singh 1978 Cr. L. J. 1041 p. no. 1043 (HP) it was held that when the cognizance of the complaint is taken by the magistrate, the Prosecutor should take initiative in the case and not wait for the Magistrates initiative in the case.

f ) Duty in Context of Standard Number of Witnesses to be Examined – The number of witnesses which should be examined by the Prosecutors in the court does not matter. As evidence is weighted and not counted under the statutory provisions of Indian Legal System. In Tangaru Pradhan V State of Orrissa 1984,(2) 576 ,the court held that Law it is well settled that there can be conviction on the basis of sole testimony of witness. It is not necessary for the Prosecutor to bring as many prosecution witnesses as he can to secure conviction.

g) Examination of Investigating Officer is to Avoid Acquittal– Investigating officer plays a very important role in the criminal cases in India. Investigation officers are considered as Prosecution Witnesses. Therefore, much care is taken by the Prosecutors to examine the investigation officer. Most of the cases lead to acquittal due to material contradictions and omissions in the case. In order to avoid miscarriage of justice , the Prosecutor should examine the police officer/ officers who have dealt with the case.

h) Duty of Prosecution to Explain the Delay in Examining Prosecution Witnesses by Investigating Officer during Investigation– If there is a delay on the part of the police doing investigation, then the Prosecutor is a duty bound to explain to the court the reason for such delay.

i) Duty to Explain Delay in F.I.R- It is expected that the First Information Report should be lodged as soon as possible in the police station. Prompt First Information Report is always better in strengthening prosecution case. In case of delayed First Information Report, there can be suspicion and lead to create doubt about prosecution case. Therefore, the Prosecutors should be able to justify the reasons for delayed First Information Reports in the Law Courts. Upon successful justification, there cannot be any room of suspicion affecting prosecution case.

j) Duty to Examine Magistrate who conducted Test Identification– In this case, it was held that the executive magistrate who dealt with the identification parade should be examined by the Prosecutors. Unless and until the examination of executive magistrate is conducted by the Prosecutors and the genuineness of the identification memo is admitted by the Defence Counsel, that identification memo cannot be an evidence and that cannot be used in the courts of law.

k) Examination of New Witnesses – During trial of criminal cases, new witnesses not named in F.I.R. nor named in charge sheet or not examined by the investigating officer can be examined by the Public Prosecutor. The Prosecutors are empowered to conduct the examination of witnesses whose names are not categorically mentioned in the First Information Report or in the charges of the police officers and who have not interrogated those witnesses earlier.

l) Prosecution cannot take Advantage of Weaknesses of Defence– In Jose v State of Kerala 1984, Cr. L.J.748 ,it was held that Prosecution shall stand on its own feet.It cannot take advantage of the weaknesses of defence side. The prosecution can succeed by substantially proving the very story it alleges. Nor can the court, on its own, make out a new and novel case of the prosecution and convict the accused on that basis.

Role of Public Prosecutors

It is divided into two parts:

• In investigating process
• During the trial

Role of the Public Prosecutor in the investigating process

• To make an appearance in the Court and obtain an arrest warrant
• To obtain search warrants for conducting a search in specified premises
• To obtain police custody remand for interrogation (including custodial interrogation) of the accused
• To initiate a proceeding for the declaration of the non-traceable offender as the proclaimed offender
• To record the evidence of accused in the police report regarding the advisability of the prosecutions

Role of Public Prosecutors at the time of trial

• Sentencing- when the accused is proven guilty, then the defence counsel and the Public Prosecutor further argue to decide the quantum of punishment. At this stage, the Public Prosecutor may argue for the adequate punishment keeping in mind the facts, circumstances of case and gravity of the offence. It helps the judge to arrive at a judicious decision.
• To conduct a speedy trial- Right to a speedy trial is a fundamental right and it is impliedly given in  Article 21 of Constitution of India which states “Right to life and Personal Liberty”. The prosecutors have a responsibility to call all the witnesses whose evidence is essential to decide the case. To cross-examine the witness and to see that no witness if left un examined. To produce all the necessary documents.

Other Important Roles

• The Public Prosecutor cannot aggravate the facts of the case or deny to examine the witness whose evidence may weaken the case. The main aim must be to discover the truth.
• He should not defend the accused. It is against the fair play of administration of justice or against the legal profession.
• He represents the State, not police. He is an Officer of State and is appointed by State Government. He is not a part of any investigating agencies but an independent authority. He is charged with statutory duties.
• Superintendent of; police or District Magistrate cannot compel to the Public Prosecutor to withdraw the case.
• If there is an issue which is raised by defence counsel and failed, it should be brought out in the notice of the court by Public Prosecutor.
• To ensure that justice is done.