ROLE OF PUBLIC PROSECUTOR

IN CRIMINAL JUSTICE SYSTEM

Ahmad Ammar, VIII SEMESTER Regular

SUBJECT: CODE OF CRIMINAL PROCEDURE-I 
Submitted to- Dr. Asad Malik 

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 CONTENTS

INTRODUCTION.....................................................................................................................................1

PUBLIC PROSECUTOR: MEANING...........................................................................................................2

UNITED NATIONS GUIDELINES ON THE ROLE OF THE PUBLIC PROSECUTOR....................................3

LEGAL FRAMEWORK OF THE PUBLIC PROSECUTOR IN INDIA...........................................................4

NATURE OF THE OFFICE OF THE PUBLIC PROSECUTOR......................................................................6

AREAS OF CONCERNS IN APPOINTMENT OF PUBLIC PROSECUTOR...................................................8

Impartiality and Independence of the Public Prosecutor.............................................................8

Withdrawal from Prosecution......................................................................................................10
CONCLUSION.......................................................................................................................................13

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The Role of Public Prosecutor in the
Criminal Justice System
“Prosecutors are the essential agents of the administration of justice, and as such should
respect and protect human dignity and uphold human rights, thus contributing to ensuring
due process and the smooth functioning of the criminal justice system. Prosecutors also play
a key role in protecting society from a culture of impunity and function as gatekeepers to the
judiciary.”1

- Report of the Special Rapporteur on the independence of judges and lawyers

(A/HRC/20/19), para. 93

INTRODUCTION
A crime is defined as a wrong not only against the victims but also against the society at
large. The criminal justice administration system plays a significant role to control crime
rates and punish criminals. India follows the adversarial model of the Criminal Justice
System. This system is essentially played role in crime control in the society. Society
considers some behaviours so dangerous and destructive that it either strictly controls their
occurrence or outlaws them absolute. The criminal justice system largely involves four key
components, namely, the courts, police, public prosecutor, accused, victims and the defence
lawyer. The moment trail begins, the court, public prosecutor and the defence counsel involve
themselves rigorously in the process of determination of guilt. Under domestic law, the state
has the primary responsibility to protect its citizens. Thus, every crime committed is
considered a failure of the state (government) for not preventing its commission. 2 In order to
comply with its role as protector of society, the state considers any crime committed to be
against itself, and not against the victim alone. It professes to guarantee justice to the victim
and society at large by punishing the offender and prosecuting the case under its own name.
By taking over the responsibility of the prosecution, the government seeks to maintain public
confidence and faith in its criminal justice system. Public Prosecutors represent the state in

1
Report of the Special Rapporteur on the independence of judges and lawyers (A/HRC/20/19), para. 93
https://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A.HRC.20.19_En.pdf
2
Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran, International Human Rights Law ch. 6 (2nd ed.
2014).

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criminal trails. Their duty is to assist the fair trail process and to prevent the abuse of court’s
process by not letting the citizens directly handle criminal case via private counsels for
satisfaction of their personal vengeance.

Before venturing into the role of a public prosecutor, it is important to understand the system
in which a public prosecutor essentially operates. The legal systems around the world can be
largely classified as “Adversarial” and “Inquisitorial” systems. In a purely adversarial trial,
the control of proceedings vests squarely on the parties. They are at liberty to conduct their
cases the way the wish to through their counsel. The implication of this leverage is that, they
formulate the issues for determination for the court, decide the number of witnesses they
desire to call to testify for them, the kind of evidence to tender before the court, make timely
objections to questions they deemed inappropriate and decide what to build their case on.3 In
an adversarial trail, there is a ‘contest’ between the prosecutor and the defense counsel which
is moderated by an impartial judge for the purpose of determining the truth. Thus, the
neutrality of judges and parties having control of the proceedings are fundamental defining
features of an adversarial legal system. Whereas, in case of an inquisitorial trail system, the
judge has a key role in investigating parts of a case, collecting evidence, and examining and
asking witnesses questions. This paper aims to explain the role of a public prosecutors in
criminal justice system. The scope of the paper shall remain largely confined to Indian
criminal justice system. In addition, the author shall also briefly discuss international
standards with respect to the power and duties of a public prosecutor.

PUBLIC PROSECUTOR: MEANING

Public prosecutors are the persons entrusted with the duty of representing the state in criminal
trials in which the state participates. The office of the public prosecutor represents collective
will of the society. In continental countries such an office has wide powers and is called
procurator. The word 'procurator' has its roots in the Latin word procuro which roughly
translates into 'I care, secure, protect’. 4 However, in common law countries prosecutors do
not have such untrammeled powers as with the procurators but there are few similarities. In
continental countries procurator is perceived as the strict watchman of the state. He is
responsible to prohibit, punish and prevent criminal actions. The defence pleader is perceived
as a defender. One of the primary responsibilities of the procurator is to preserve and

3
Adele, Justice, Comparative Analysis between Adversarial and Inquisitorial Legal Systems (November 25,
2017). Available at SSRN: https://ssrn.com/abstract=3077365 or http://dx.doi.org/10.2139/ssrn.3077365
4
Pillai, K. N. Chandrasekharan. “PUBLIC PROSECUTION IN INDIA.” Journal of the Indian Law Institute,
vol. 50, no. 4, 2008, pp. 629–639. JSTOR, www.jstor.org/stable/43952181. Accessed 25 Apr. 2020.

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safeguard the legitimate rights of the citizens not merely by words but concrete action There
is a slight difference in the position and working of common law prosecutor. However, in the
common law countries he is also expected to be independent, fair and impartial but in actual
functioning, he may not be as impartial. In sum, the reason or creation of a system of public
prosecution system are twofold. First, to represent the collective interest of the society by
punishing the offender and secondly, to protect the interest of the individual accused by
avoiding vexatious litigations. Public Prosecutors are officers of the court and are regarded as
independent and impartial. At the same time, they represent the state in a criminal trial. Thus,
the position and role of the public prosecutors has been subject of much debate and
discussion.

In the UK the development of the system of public prosecutors was a result of the emergence
of the idea to do away with the practice of private prosecution. Private Prosecution is the
practice of hiring of private lawyers by the victims to argue their case. The system of private
prosecution was abused as there were vexatious litigation. In addition, the need for a
functionary to look after the public interest involved in criminal litigation augmented the
development of public prosecution. The public prosecution services in the UK function under
the aegis of Crown Prosecution Service. The Crown Prosecution Service is headed by the
Director of Public Prosecutions while the Crown prosecutors work at the lower levels.5

UNITED NATIONS GUIDELINES ON THE ROLE OF THE PUBLIC PROSECUTOR

Even though the role played by the public prosecutors in criminal proceedings is of huge
importance, there is little mention of prosecutors in international instruments in comparison
to judges, defence attorneys and court administrators. In order to address this gap, the 80th UN
Congress on the Prevention of Crime and the Treatment of Offenders adopted the Guidelines
on the Role of Prosecutors (also known as the “Havana Guidelines”).

These Guidelines provides that a Prosecutor must perform his duties impartially while
upholding the virtues of human rights and avoid any form of discrimination. 6 The exercise of
prosecutorial discretion, when permitted, must be independent and free from any political
pressure.7 For a prosecution to be fair and effective, prosecutors must strive to function in

5
MA Malik, Role of Prosecutors in Criminal Justice Administration: An Analysis, Journal of Legal Studies 2
(1), 34-44(2014)
6
Articles 12 and 13(a), United Nations Guidelines on the Role of Prosecutors
7
Article 2.1, International Association of Prosecution's Standards of Professional Responsibility and Statement
of the Essential Duties and Right of Procedures

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cooperation with the investigating agencies, the courts, and other government agencies. 8
Corollary to requirements of fairness and impartiality is the condition that prosecution should
not be initiated or every effort to stay proceedings should be made where an impartial
investigation shows the charge to be unfounded. 9 Providing a corollary to this, the
International Association of Prosecutors standards provide that criminal proceedings should
be proceeded with only when a case is well founded upon evidence, which is reasonably
believed to be reliable and admissible.10 The Prosecutors are under a positive duty to refuse
the usage of an evidence against a suspect when the evidence in question has been procured
by way of some unlawful method. This duty applies especially in case where unlawful
obtainment of such evidence involve a serious violation of the suspect's human rights,
especially involving torture or cruel, inhuman or degrading treatment or punishment. 11 Most
importantly the Prosecutors is required to consider all relevant circumstances, and disclose all
relevant evidence irrespective of whether it is to the advantage or disadvantage of the
suspect.12 He must also give proper heed to the position of the suspect and the victim in
relation to a case. The Prosecutors are required to maintain objectivity. They must take into
account the public interest associated with the prosecution in case.

LEGAL FRAMEWORK OF THE PUBLIC PROSECUTOR IN INDIA

India’s criminal justice administration system is based on adversarial system based on the
accusatorial method. Under Indian legal system, there is a presumption of innocence towards
the accused. Therefore, the burden lies on the prosecution to prove guilt of the accused
beyond reasonable doubt. We inherited this system from our colonisers, the British. Section
2(u) of Code of Criminal Procedure, 1973 (hereinafter “CrPC”) defines Public Prosecutor as
“any person appointed under Section 24 and includes any person acting under the directions
of Public Prosecutor”. The Central Government and each State Government have the power
to appoint Public Prosecutor for conducting the prosecution and other criminal proceedings
on their in the High Courts, Sessions Courts and Court of Magistrates. 13 Section 24 of the
CrPC defined the public prosecutors as-:
8
Article 20, United Nations Guidelines on the Role of Prosecutors
9
Article 14, United Nations Guidelines on the Role of Prosecutors
10
Article 4.2(d), International Association of Prosecution's Standards of Professional Responsibility and
Statement of the Essential Duties and Right of Procedures
11
Article 16, United Nations Guidelines on the Role of Prosecutors; Article 4.3(f), International Association of
Prosecution's Standards of Professional Responsibility and Statement of the Essential Duties and Right of
Procedures
12
Article 3(d), International Association of Prosecution's Standards of Professional Responsibility and
Statement of the Essential Duties and Right of Procedures
13
See Section 24, CrPC

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 1) For every High Court, the Central Government or the State Government shall, after
consultation with the High Court, appoint a Public Prosecutor for conducting, in such
Court, any prosecution, appeal or other proceeding on behalf of the Central or State
Government, as the case may be.

2) For every district, the State Government shall appoint a public prosecutor and may
appoint one or more additional public prosecutor for the district.

3) The district magistrate shall in consultation with the Session Judge, prepare a panel of
names of persons who are, in his opinion fit to be appointed as the Public Prosecutor or
additional Public prosecutor for the district.

4) The state government shall appoint no person as the public prosecutor or additional
public prosecutor for the district unless his name appears on the panel of names
prepared by the district magistrate under sub-Section (3).

5) A person shall only be eligible to appointed as a public prosecutor or an additional

public prosecutor under sub-Section (1) or sub-Section (2), if he has been in practice as
an advocate for not less than seven years. 6) The central government or the state
government may appoint, for the purposes of any case or class of the cases, an advocate
who has been in practice for not less than ten years, as a special public prosecutor

Section 25 provides for the appointment of Assistant Public Prosecutor by the State
Government or by the Central Government for conducting prosecution in the Court of
Magistrate. The section also provides that in case of absence of Assistant Public Prosecutor,
the District Magistrate may appoint any other person to act as Public Prosecutor. Though the
general rule is that no police officer can be appointed as public prosecutor but when a police
officer is appointed as public prosecutor under Section 25, there are two conditions that need
to be fulfilled. First, the police officer appointed a Public Prosecutor has not participated in
the investigation of the particular case and secondly, he should be below the rank of
Inspector. A significant development in the area of appointment of public prosecutor was
introduced by insertion of Section 25A via the Code of Criminal Procedure (Amendment)
Act, 2005. The amendment empowers the State Government to establish a hierarchical
structure for prosecution. The State can establish Directorate of Prosecution under the head of
the Home Department and it shall be headed by Director of Prosecution.

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The Public Prosecutor or APP in charge of a case has the liberty to appear and plead without
any authority before any Court in which that case is under inquiry, trial or appeal. 14 Section
301, CrPC prescribes that the pleader appointed by a private party has to act under the
directions of Public Prosecutor. The original papers of the case are handed over to the Public
Prosecutor after the charge sheet is filed by the police. The trial in India takes place over
various stages. As a first step the Court takes the cognisance of a case. Subsequently the
charges are framed against the accused, if there is a prima facie case against him. The next
move is to record the evidence presented by the prosecution. After that the statement of the
accused is recorded (Section 313 CrPC) which is followed by the recording of the defense
evidence. Lastly, the Court hears the final arguments from both sides, and proceeds to give
the judgment. It is to be noted that the role of public prosecutor is only of an active
commentator in all these stages. It is work of the court and not the prosecutor to decide
whether the case should be set up for trial. However, once the court proceeds with setting
up the trial of a case, it is for the prosecutor to prosecute it efficaciously.15

The present criminal justice system in India is premised on the idea that any crime committed
by a person is a crime against the entire society. Therefore, the state takes up the primary
responsibility of prosecution and punishment of crime. The scope of vengeance is limited
when the state acts on behalf of the victim. This the reason why a public prosecutor is
required to play an impartial role and prosecute. Since the prosecutor performs a duty which
is essentially public in nature, such public nature of duty demands him to be an independent
and fair officer.

NATURE OF THE OFFICE OF THE PUBLIC PROSECUTOR

Since the public prosecutor represents the state in a trial and acts in cooperation with the
investigating agencies, therefore, office of the public prosecutor is a part of the executive and
not judiciary. Thus, he acts on behalf of the state and in cooperation with the Police. But there
has been some confusion amongst the Court with regard to the nature of public prosecutor.
Professor K.N Pillai points out that at times it appears to be executive. If the post of public
prosecutor is seen as an officer of the court, his position might seem to be quasi-judicial
one.16

14
Section 301(1), CrPC
15
Role of Public prosecutor in criminal administration of justice available at, 2017.
www.lawyersclupedia.com>article>criminal law
16
Pillai, K. N. Chandrasekharan. “PUBLIC PROSECUTION IN INDIA.” Journal of the Indian Law Institute,
vol. 50, no. 4, 2008, pp. 629–639. JSTOR, www.jstor.org/stable/43952181. Accessed 25 Apr. 2020.

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Having regard to meaning and content of the executive power attached to the office of public
prosecutor, the Supreme Court in the case of R K Jain v. State while citing Shamsher Singh
v. State of Punjab17observed that the public prosecutor should be treated as a part of the
executive. However, rulings of few courts had created ambiguity with regard to precise
nature of this office. Taking into account the suggestion that the public prosecutor should act
impartially, which is a judicial attribute, the Kerala High Court compared the public
prosecutor with any other counsel. It observed that fairness and truthfulness is to expected
from every counsel appearing before the court. Even though he must argue the case of the
client as efficaciously as possible but he must at all-time be fairly truthful. The court doesn’t
expect him to be impartial but only truthful and fair.18

However, in a later decision in Babu v. State of Kerala19 the same high court had to
distinguish between a counsel for the private party and a public prosecutor. The court
observed that the public prosecutors are actually ministers of justice whose foremost job is to
assist the state in the administration of justice and nothing beyond. They do not represent of
any party per se. They are supposed to place before the court all relevant attributes of the case
and assist the court in arriving at a just decision. They are also not there to be mere spectators
to see the culprits escape the clutches of the law. It is be kept in mind that the counsel
engaged by athe complainant or the victim cannot be reasonable expected to be so impartial.
He will push to convict the accused even when conviction may not be possible

The judiciary doesn’t seem to treat the office of public prosecutor as a part of the executive
even when it displays few characteristics of the executive. This is because the appointment of
police officers as public prosecutor is disapproved by it. In the case of Krishan Singh Kundu
v. State of Haryana20 the High Court held that the very idea of having a police officer as in-
charge of prosecution agency is repugnant to the letter and spirit of Sections 24 and 25 CrPC.
In S. B. Sahana v. State of Maharashtra21 the Apex Court held in the same vein that
irrespective of the judicial or executive character of the office of the public prosecutor, the
principle of impartiality and fairness is expected from the public prosecutor.

Whether the office of the Public Prosecutor a “public office”? In the case of Kumari
Shrilekha Vidyarthi v. State of U.P. 22 the appellants argued that the relationship of the
17
(1974) 2 SCC 831
18
Aziz v. State of Kerala, (1984) Cri LJ 1060 (Ker)
19
Babu v. State of Kerala, (1984) Cri LJ 499 (Ker)
20
1989 Cri LJ 1309 (P&H)
21
(1995) SCC (Cri) 787.
22
1991 AIR 537

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Government Counsel or Public Prosecutor with the Government was not merely one of
counsel and a client. Instead it stands in the nature of a public employment. They further
contended that since such an appointment is made to a public office, the termination a
Government Counsel could not be equated with the termination by a private counsel. There is
no public element attaching to a hiring of private counsel. Having regard to the statutory
provisions regarding the appointment of public prosecutors and their role from prosecution
under Section 321 CrPC, the Court held that the office of the Public Prosecutor is a public
office and his relationship with the government is not the same as that of an ordinary advocate
representing his client. The Court further premised its reasoning on Section 321 CrPC. It held
that the public element attached to the post of public prosecutor also flows from the statutory
provision of Section 321 which entrusts him with the responsibility to act in the interest of
justice is reflective of the public purpose. Section 321 provides prosecutor the liberty to
withdraw prosecution with the consent of the Court, prior any to the judgment is pronounced.
This power entrusted to the Public Prosecutor flows from statute. The most important
consideration while exercising the power is that it must be exercised to further the cause of
justice. Such an entrustment is indeed reflective of a public element attached to the post of
public prosecutor and in such a case it cant be asserted that the relation between government
counsel and government is of a mere client and a private counsel.

AREAS OF CONCERNS IN APPOINTMENT OF PUBLIC PROSECUTOR

Impartiality and Independence of the Public Prosecutor
The Code of Criminal Procedure, 1973 does not expressly lay down the spirit in which the
Public Prosecutor is supposed to function. However, the judiciary over time has commented
on the role of public prosecutor and its importance in its various decisions. A Public
Prosecutor is essentially an officer of the court and plays a central role in the court process. In
one of the early cases of Queen-Empress v. Durga,23 the Allahabad High Court succinctly
explained role of the Public Prosecutor. The Court observed that it is responsibility of the
Public Prosecutor to prosecute a case on behalf of the Crown in fair manner. His objective
should not be to obtain an unjust conviction of the accused. Since he represents the Crown his
duty must be to see that justice is vindicated. While exercising the discretion of choosing to
call witnesses, he should be mindful of the interest of justice.

23
ILR (1894) 16 All 84

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In Hitendra Vishnu Thakur vs State of Maharashtra,24 the Supreme Court explained that a
public prosecutor is an important officer of the State Government and is appointed by the
State under the Code of Criminal Procedure. He is not a part of the investigating agency. He is
an independent statutory authority. The success of a trial mainly depends on the effective
prosecution, which is possible only through well, qualified, trained, fair and dedicated
prosecutors. It goes without saying the integrity and impartiality of the public prosecutor is
essential for the administration of justice.

For the purpose of developing context before discussing Best Bakery case it is necessary to
first understand Section 24 of the Code of Criminal Procedure, 1973 (CrPC). Section 24 of
CrPC lays down that a Public Prosecutor shall be appointed for conducting prosecution,
appeal or other proceeding on behalf of the Government, as the case may be. Another
important provision is Section 301 CrPC states that the Public Prosecutor or the APP in
charge of a case may appear and plead without any written authority before any court in
which that case is under inquiry, trial or appeal. It further states that if the complainant
appoints a private counsel as a pleader, such pleader shall be work under the instruction of the
PP or APP in charge of the case. Such pleader may with the permission of the court present
written argument after the closing of evidence. Further, Section 302 CrPC empowers the
Magistrate inquiring into or trying a case to allow the prosecution to be conducted by any
person other than a police officer below the rank of inspector. It further states that no person
other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant
Public Prosecutor shall be entitled to do so without such permission. Any person conducting
the prosecution may do so personally or through his pleader.
The role of the Public Prosecutor had become an important subject, with the Supreme Court
pulling up the Prosecutor in the infamous Best Bakery case,25 for practically shielding the
accused from conviction. The Court held that denial of a fair trial would be equally unjust to
the accused as to the victim and society. The observed, “Fair trial obviously would mean a
trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm.” For a
trial to be fair, it must be free from any bias or prejudice against the accused, the complainant
or the subject matter of the case.
Withdrawal from Prosecution
The power to withdraw criminal cases is vested with the public prosecutor or assistant public
prosecutor under Section 321 of the CrPC. As per the Code, at any stage prior to the
24
1994 AIR 2623
25
Zahira Habibullah Sheikh v. State of Gujarat, (2004) 5 SCC 353

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judgement the Prosecutor has the power to withdraw prosecution against one or all offenders
in a case under one or all offences. If such an application to withdraw from prosecution is
made prior to the charge-sheet is filed, it would lead to discharge. Where the charge sheet is
already filed, it would lead to acquittal of the accused. Section 321 reads as under: -

“The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent
of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of
any person either generally or in respect of any one or more of the offences for which he is
tried; and, upon such withdrawal,-

a) if it is made before a charge has been framed, the accused shall be discharged in respect
of such offence or offences;
b) if it is made after a charge has been framed, or when under this Code no charge is
required, he shall be acquitted in respect of such offence or offences: Provided that
where such offence-
(i) was against any law relating to a matter to which the executive power of the
Union extends, or
(ii) was investigated by the Delhi Special Police Establishment under the Delhi
Special Police Establishment Act, 1946 (25 of 1946), or
(iii) involved the misappropriation or destruction of, or damage to, any property
belonging to the Central Government, or
(iv) was committed by a person in the service of the Central Government while
acting or purporting to act in the discharge of his official duty, and the Prosecutor
in charge of the case has not been appointed by the Central Government, he shall
not, unless he has been permitted by the Central Government to do so, move the
Court for its consent to withdraw from the prosecution and the Court shall,
before according consent, direct the Prosecutor to produce before it the
permission granted by the Central Government to withdraw from the
prosecution”

The Supreme Court in Sheo Nandan Paswan v. State of Bihar26 reiterated that though the
Public Prosecutor is the counsel for the Government for conducting prosecution on behalf of
the government but at the same time he is an officer of the court. Therefore, he is obliged to
act in a fair and truthful manner. He must be careful to not introduce his personal interest in
26
AIR 1987 SC 877

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the prosecution and not be anxious to secure conviction at any cost. He is bound to assist the
court by basing his decision on fair grounds. The Court further held that the withdrawal of
prosecution can be permitted to advance the cause of justice. The Court is bound to consider
all relevant material before it in deciding legality of the withdrawal of prosecution even when
the withdrawal is pursuant to the orders of the Government and an application is filed to that
effect.

In the case of Subhas Chander v. State,27 the Supreme Court held that the power to withdraw
from a prosecution of a criminal case is vested in the Public Prosecutor alone and not in any
executive authority. The Code further mandates that this power is to be exercised only with
the consent of the court. Such imposition of a condition to obtain consent from the court
before withdrawal from prosecution acts as a check on the exercise of it. The consent may
only be granted if the withdrawal furthers the cause of justice rather subvert it. The Public
Prosecutor is neither the executive nor a stooge of political power. He is vested with the
statutory authority to exercise discretion to withdraw from prosecution, it is for him to
exercise that discretion in a fair and independent manner. He is an officer of the Court and
thus answerable to the Court.

The Supreme Court in Shiv Kumar v. Hukam Chand emphasised the greater responsibility of
the Public Prosecutor to bring to notice of the court any legitimate benefit to which the
accused is entitled to, even when the defence counsel overlooks it. If unchecked liberty is
granted to a private counsel, he would be anxious to seek conviction of the accused even if the
accused case is not fit be so convicted.28

In Bairam Muralidhar v. State of A. P 29, while analysing Section 321 CrPC, the Court laid
down that it is duty of the court to examine all the relevant material before it satisfies itself
that the withdrawal from prosecution would further the cause of justice. The Court must see
whether the permission or consent would obstruct the course of law or cause profound
injustice. The Court exercises its ‘judicial’ discretion while giving consent to withdraw from
prosecution under Section 321 CrPC. The exercise of judicial discretion, as a matter of settled
law, must not be mechanical. The court must have regard to all relevant material before it to
examine whether the application filed for withdrawal is advanced in good faith and would
further the interest of justice and public interest. While considering to allow withdrawal the

27
1980 AIR 423
28
(1999) 7 SCC 467 p. 472, para 13
29
(2014) 10 SCC 380

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condition of advancement of justice remains very important. The exercise of discretion must
be guided by the consideration of advancement of justice. There are certain crimes which are
against the State and society. Such crimes demand justice to be done for preserving law and
order and peace in the society. In this context, the public prosecutor is not supposed to act like
a post office on behalf of the government. He is required to form independent opinion on the
basis of relevant material and act in good faith. The orders of the government are not binding
on him. He cannot stay oblivious to his statutory duty.

A controversy regarding the subject in question, withdrawal of cases, arose back in 2017
when the Government of Uttar Pradesh under Chief Minister Yogi Adityanath asked its public
prosecutor to withdraw cases against Mr. Yogi Adityanath. Furthermore, CM Yogi went
ahead and announced that his government intends bring a bill to withdraw 20,000 cases
against politicians.30 With regards to this debate on politically influenced withdrawal of case
the Supreme Court in Rahul Agarwal v. Rakesh Jain31 held that court must take into account
all relevant circumstances in determining the correctness of withdrawal from prosecution and
find out whether the withdrawal of prosecution would advance the cause of justice. The court
may allow the withdrawal of prosecution if the case is likely to end in an acquittal and the
continuance of the case is only causing severe harassment to the accused. Also, if the
withdrawal of prosecution is likely to diminish the dispute and bring about an amicable
settlement between the parties and further the interest of justice, the court may allow the
withdrawal of prosecution. The Court further cautioned that the discretion under Section
321 CrPC is to be exercised carefully by having due regard to all the relevant facts and
circumstances. Such discretion should not be motivated to restrain a genuine prosecution
which is being done at the instance of the complainant or the State. Since every criminal
action is a wrong against the entire society and if the accused committed an offence, it is
imperative for him to be punished. Redressal to wrong against the society in form of a crime
and its punishment are sine qua non for the preservation of rule of law and peace in the
society. Thus, the withdrawal of the prosecution should necessarily be grounded on strong
valid reasons.

In the case of V.L.S. Finance Limited v. S.P. Gupta & Anr. 32 the Supreme Court held that in
deciding whether the withdraw from the prosecution of a case the Public Prosecutor is

30
https://indianexpress.com/article/explained/the-power-to-withdraw-a-case-vested-with-state-govt-subject-to-
court-approval-yogi-adityanath-5133706/
31
AIR 2005 SC 910
32
(2016) 3 SCC 736

12
required to act in bona fide, examine the materials on record and form an independent and
impartial opinion as to whether the withdrawal from the prosecution would be further the
cause of justice and public interest

In a more recent judgement of Abdul Wahab K. vs The State of Kerala wherein a bench
comprising Justice Dipak Mishra and Justice D.Y Chandrachud while referring to the
previous jurisprudence held that though there is vexatious litigation but that does not mean
that there are no genuine cases which require justice to be done. Having said that, the Court
held that the Public Prosecutor has to act responsibly. He is not to be absolutely guided by the
instructions of the Government. Instead, he is bound to assist the court and in turn the court is
bound to see the precedents and decide accordingly.33

CONCLUSION
The office of the public prosecutor is essentially a public office. He is an officer of the court,
which requires him to perform his duties in a fair and impartial manner. He is guided to act in
the interest of justice in criminal administration system. He is required to assist the court in
arriving at a just and equitable ruling. An element of public interest is attached to his post.
Therefore, the manner in which prosecutors discharge their duties, directly affects criminal
legal system and the whole society as well. While discharging the power of withdrawal of
prosecution he should have utmost regard to the interest of justice. Section 321 does not
expressly lay down any grounds on which the state government or public prosecutor can push
for withdrawal. However, the jurisprudence which has developed over the years by the
judgments by the Apex Court and various high courts makes it clear that it must be guided by
public interest and furtherance of justice. There is emerging needs for the institution of public
prosecutor to be independent from political interference and competent in its function. It is
necessary that such an institution must function impartially so that it can instil confidence in
the society and the faith in rule of law remains intact.

33
(2018) 18 SCC 448

13