ROLE AND STRUCTURE OF PROSECUTION WITH RESPECT TO INDIA AND

USA PROSECUTORS

TITLE OF THE DISSERTATION

By

Name of the Student

B. Milinda

Roll No.

2018017

5 Year Integrated B.A., LL.B. (Hons.) Course

Under the supervision of

PROF. NITYANANDA RAO BABU PYLA

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM, VISAKHAPATNAM-531035
ANDHRA PRADESH, INDIA

Date of Submission

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 CERTIFICATE

This is to certify that the dissertation entitled ROLE AND STRUCTURE OF

PROSECUTION WITH RESPECT TO INDIA AND USA PROSECUTORS FOR THE
SEMINAR PAPER COMPARATIVE CRIMINAL PROCEDURE to Damodaram
Sanjivayya National Law University, Visakhapatnam is a record of original work done by
Ms. B. Milinda under my supervision and guidance to my satisfaction.

SIGNATURE OF THE GUIDE

Visakhapatnam

Date:

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 ACKNOWLEDGEMENT

I am using this opportunity to express my gratitude to everyone who supported me through

the course of the dissertation. I would like to thank our teacher who encouraged, guided and
supported me for doing this dissertation paper. And sincerely grateful to them for sharing
their truthful and illuminated views on the issues related to the Comparative Criminal
Procedure.
I express my warm thanks to Prof. Nityananda Rao Babu Pyla sir for his support and
guidance in this dissertation paper without his help it would be difficult task for me. I have no
valuable words to express my thanks, but my heart is still full of the favour received from
you. It was all my pleasure to have you as my teacher and guider throughout this paper for
this I am thanking you from my heart.

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 TABLE OF CASES

1. Jaipal Song Naresh V State of Uttar Pradesh, 1976, Cr. L. J. 32

2. S. B. Shahane V State of Maharashtra, AIR 1995 SC 1628
3. Thakur Ram vs. State of Bihar, 1966 AIR 911, 1966 SCR (2) 740
4. Vinit Narayan v Union of India, (1998), 1 SCC. 226
5. Mukul Dalal v. UOI, 1988 SCR (3) 868, 1988 SCC (3) 144
6. Radheshyam v. State of M.P. & others, 2000 (4) MPHT 124
7. Union of India V Shishil Kumar Modi, 1997, 4 SCC, 770
8. Shiv Nandan Paswan v. State of Bihar & Ors, AIR 1983 SC 1994
9. Katasani Siva Reddy v. Govt of A.P, 2004 (1)ALD (Crl) 43 (AP)
10. Ghanshyam Kishore Bajpayee v. State of Uttar Pradesh, 2005 Cri LJ.198
11. Zahira Habibullah Sheikh v State of Gujrath, (2004) 4 SCC 158
12. Kumari Shrilekha Vidyarth etc. v. St. of UP, AIR 1991/ SC537
13. State of UP v. Johrimal, AIR 2000 SC 3800
14. State of Bihar v. Ram Naresh Pandey, AIR 1957 SC 389, 1957 1 SCR 279
15. M.N. Sankaranarayanan Nair v. P.V. Balakrishnan, 1972 AIR 496, 1972 SCR (2) 599
16. State of Orissa vs. C. Mohapatra, 1963 AIR 779
17. Balwant Singh v. State of Bihar, 1977 AIR 226
18. R.Sarala v. T.S Venu, AIR 2000 SC 1731
19. Zahira Habibullah v. State of Gujarat, MANU/ SC / 0322/ 2004
20. Srilekha Vidhyarthi v. State of U.P, (1999) 1 SCC 212

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 TABLE OF CONENTS

1. INTRODUCTION
• Definition of Prosecution
• Importance of Prosecution
2. PROSECUTION SYSTEM IN INDIA
• A brief of the Prosecution System in India
• Independence of Prosecutors from Executive Interference
3. THE DUTIES AND FUNCTIONS OF A PUBLIC PROSECUTOR
4. CONSTITUTION AND STRUCTURE OF PROSECUTION WING
5. THE ROLE OF A PUBLIC PROSECUTOR DURING TRIALS
6. ROLE OF A PUBLIC PROSECUTOR IN INVESTIGATIONS
7. PROBLEMS OF PROSECUTION AND SUGGESTIONS FOR
IMPROVEMENT
8. PUBLIC PROSECUTION AND SENTENCING
9. ROLE OF PUBLIC PROSECUTORS IN NATIONAL CRIMINAL JUSTICE
POLICY
10. USA PROSECUTOR AND CRIMINAL JUSTICE STEPS
11. PROSECUTORS IN THE U.S. CRIMINAL JUSTICE SYSTEM
12. ROLE OF THE PROSECUTOR IN THE U.S. CRIMINAL JUSTICE SYSTEM
13. PROSECUTORS IN THE ENGLISH CRIMINAL JUSTICE SYSTEM:
14. COMPARATIVE OF PROSECUTION BETWEEN INDIA AND USA
15. MODIFICATIONS OR DEPARTURES
16. RECOMMENDATIONS
17. CONCLUSION
18. BIBLIOGRAPHY

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 INTRODUCTION

In a criminal trial, the public prosecutors conduct the prosecution of the accused on behalf of
the state. “Decisions of the courts depend on the skills of the public prosecutors. Prosecutors
institutes and carries proceedings in a court of law, especially in criminal court. Research
oriented and sincere prosecutors definitely contribute in the well-organized criminal justice
system in India. One of the aims of Criminal Justice Reform 2003 was to face the challenge
before existing criminal Justice System in India as to improve the level of professional
competence of the prosecutors and to insure they function in coordination with the
investigation agency.” The prosecutors are one of the major components in the criminal
justice system “The prosecutors have more control over life, liberty and reputation than any
other person in America.” Inefficient role of prosecutors in criminal justice system of India is
one of the reasons for low conviction rates in India. This situation is fatal to protection of
society and for the faith of public towards law. The conviction rate of the state is a mirror as
to the efficient functioning of prosecution system. Therefore, in most of the countries
prosecutors are indispensable authority.

“Indian Penal Code and Code of Criminal Procedure are together known as “twin sisters” of
criminal law. Code of Criminal Procedure (Cr. P. C.) is the procedural law for conducting a
criminal trial in India. The procedure includes the manner for collection of evidence,
examination of witnesses, interrogation of accused, arrests, safeguards, and procedure to be
adopted by Police and Courts, bail, the process of criminal trial, a method of conviction, and
the rights of the accused of a fair trial by principles of natural justice.

Indian Penal Code (IPC) is the primary penal law of India, which applies to all offences.
Indian Evidence Act (IEA) is a comprehensive, treaty on the law of “evidence”, which can be
used in the trial, the manner of production of the evidence in a trial, and the evidentiary value
which can be attached to such evidence.”

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Objective of study:

The objective of the study is to

 Scrutinize and critically examine the role of Prosecution in the entire Criminal Justice
Delivery System in India and USA

 Observe role of supportive system in the success of prosecution in India vis a vis
supportive system in USA

 Suggest reforms to Indian model of governance for better administration of Criminal

Justice Delivery System.

Research question

• Whether Indian Legislative Framework and other supportive mechanism are

providing a conductive environment for a Prosecutor to discharge his role
effectively?
• What reforms can be suggested to make the role of Prosecutor more effective
under Indian Criminal justice Deliverance System?

Research Methodology:

Doctrinal methodology will be used to address a relevant material. The researcher has
primarily used interpretative approach along with comparative approach. The Non-doctrinal
research methodology is not selected by the researcher taking in to account time, financial
sources, energy, and scope of this topic.

Review of Literature:

To study the nature of problem and to provide framework of this research, the researcher has
analyzed accessible material available for research study to achieve end results of this
research. Various authors have contributed to this research topic. Their contribution has
facilitated to get acquainted with historical evolution of many concepts, like the primary
notions and similar aspects connected with the criminal justice system in India.

S. Govind Swaminathan1, in his wonderful article has described in detail the different
classes of “the Prosecutors and the principles of the criminal trial in India where and accused
1
S Govind Swaminathan, (Advocate General, Madras), ‘Investigation and Prosecution in Criminal Cases’, Indian
Journal of Criminology, 1973, Vol 5

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is presumed to be innocent till his guilt is proved in the law court by the prosecution.
Different aspects of the police officers and the Prosecutors and the importance of their
independence, the functions to be performed by the Director of the Prosecution, etc. are
covered with rationale. This article is an outline of the connection of the prosecution with an
investigating agencies and advantages and disadvantages of the coordination between both.
While tracing out the border line, the author has quoted fundamental jurisprudential
principles under the Indian Justice System to protect the innocence of accused and burden of
proof on the prosecution. Certain suggestions for harmony of the Prosecutors and police
department are mentioned.

Prof. (Dr.) N. R. Madhav Menon2, in his article has expressed his concern about
detachment of the police and Prosecutors due to Amendment Act 1973 in the Code of
Criminal Procedure, 1973. He has also noted the better idea of coordination between the
police and Prosecutors India had earlier and it sounds like the amendments suggested by the
Criminal Justice Reform Committee 2003 i.e. Malimath Committee Reform. At the end there
are certain executable recommendations for the better function of the Prosecutors in India. In
the concluding remark, Dr. Menon has stressed upon the failure of the prosecution is an
outcome of the failure of all who are working with the prosecution. This article is a product
of deep research of the author about how the Prosecutors in India are in difficulty. In a
systematic manner, the role of prosecution, its connections with the Indian Constitution and
statutory framework, hierarchy of prosecution service in the various States,” time to time
recommendations given by the Law Commission of India and its execution part is elaborated.

 Definition of Prosecution:

2
Public Prosecution System in India: An institution in need of Reform , Strengthening the Criminal Justice
System ( From the ADB Regional Workshop in Dhaka , Bangladesh, 30-31 May2012) Asian Development Bank

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The term ‘prosecution’ means the entire criminal justice machinery working for the State in
criminal proceeding. As per Law Lexicon, “Prosecution is the institution or commencement
of a criminal proceeding in a process of exhibiting formal charges against an offender before
a Criminal tribunal and perusing them to final judgment on behalf of the State or
Government or by indictment or information. A prosecution exists until terminated in a final
judgment of the court which may sentence, discharge or acquittal.”3 As per “Black’s Law
Dictionary4, Prosecution is conducted by a Prosecutor who enjoys different discretionary
powers in different States. In Europe as a whole, prosecution is waived in a large number of
cases - but not if evidence is insufficient. In Scotland an accused in let off by Prosecutor
Fiscal by merely giving him a personal warning. A fixed rate of fine is imposed on the
offender if the offender agrees. In Germany, Prosecutors are given a free hand and wide
options to dismiss cases against offenders who may be asked, at the most, to do community
work. As per N. R. Madhav Menon, Prosecution is one of the significant part of the criminal
just call administration. The modus operandi of the prosecution in the criminal trial leads that
case towards either conviction or acquittal. The Prosecutors are supposed to work hand in
hand with police in the inquisitorial criminal justice system to do effective work. The steps
like investigation process, filling charge sheets, framing of charges, holding trial etc can be
classified according to the prosecution of the offence. It leads to prompt registration of cases,
speedy investigation and quick decisions of the courts without delay. 5 Under connotation of
the functions of Prosecutors to be done, Prosecutor means the one who prosecutes and the
one who initiates and carries out a legal action, especially criminal proceedings.”
Government Attorney who presents the State's case against the defendant in a criminal
prosecution. In nexus of work of the Prosecutor against accused, Prosecutor means “A lawyer
who works in court against a person charged with crime.” The prosecution is linked with the
administration of criminal justice. To understand the concept of Prosecutor’s role in a
criminal trial, it is very important to know the concept of prosecution. In general way,
prosecution is one of the important legal formalities to be conducted by the Prosecutors.6

 Importance of Prosecution:

3
The Law Lexicon, 2nd Edition, (2006) p.no.1562
4
Blacks Law Dictionary, III rd Pocket Edition, (May 2006) Thomson West publication, p. no.576
5
Dr. N. R. Madhav Menon, Criminal Justice India Series, Vol. 4 Allied publication p. no.89
6
http://prosecution.askdefine.com

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The Prosecution is meant for providing legal assistance to investigators i.e. police officials in
complex cases. “Criminal trials are always prosecuted on behalf of the state, not on behalf of
victims or individual citizens. Important difference between criminal cases and civil cases is
that criminal cases are regulated by the Constitution to a much greater extent than civil cases.
Many provisions like the right to confront witnesses and the right to a speedy trial are
directed only to criminal cases. This concern in the Constitution reflects the fact that, unlike
civil cases which are usually concerned with money damages and related to the movable or
immovable properties, what actually involves a criminal case is usually the freedom of the
defendant and in many cases evens the life or death of the defendant. For this reason, the
Indian constitution provides defendants with guarantees aimed at ensuring that their treatment
at the hands of the state shall be proper and that the trials they receive will be fair and free of
any pressure. The accused shall have the right to defend his case even at the state expenses if
he is not able to manage for his personal lawyer and shall have the vast opportunities before
the different levels of the courts starting from trial court, high court, and supreme court, so
that the spirit of Justice prevails and no aspect of the case remains unexamined and
unanswered.

The Indian constitution provides for the cases be heard starting in the trial court with the
presence of the victim and the accused so as to ensure that the truth comes out before the
court at the first instance. The prosecutor in constancy with the victim advocate, are expected
to make every efforts during the hearings of the case to protect the safety of the victim and
also protect the rights of the accused. For an instance, such efforts are required to be made in
the offences against women especially in Rape cases, the confidentiality of the Victim and
their Address shall be made along with the police reports, witness statements, and all other
discovery materials provided to the defence shall be kept nonpublic. In court, prosecutors are
directed to never ask for the victim to disclose her current address, should advise victims to
refrain from giving an address when testifying to avoid inadvertent disclosure and should
object to requests for such information when made in the course of questioning by the
defense. Further the investigators and prosecutors have been empowered by the constitution
to consider whether all reasonable lines of enquiry have been pursued. The related sources of
evidence and unused material should be explored and decisions made as to how this material
should be obtained and produced in the court.” With such vast powers and responsibilities
vested in it, still the Indian prosecution system is sadly termed as one of the most slow and
non-punctual wings of the criminal administration in India. “In the Indian spoken vocabulary

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the prosecutors generally are termed in Hindi as ‘Sarkari Vakil’ i.e. Government Lawyer, but
sadly over the years this term has meant to be a person who is paid by the Government to
handle the state cases to protect the larger interests of general public whether or not he does
achieve Justice or not, may be due to certain technical or perceived reasons 7. The prosecution
system is seen to be as a department from which a general public person may never expect to
get any support or any proper guidance which may help the innocent person in getting justice.
The prosecution department over the years with the increase in the crime rate and criminals in
the society has not been able to prove its reputation of protector of Truth and Justice.

In the present day situation the courts are highly overburdened due to the increase in the
crime rate in the modern society and also due to the awareness of legal knowledge of the
rights of the individual. But it has been seen that the number of the prosecutors are less in
number as compared to the number of courts. In the present day scenario, there are more
number of Judges than compared to the number of prosecutors and this dazzling fact was
revealed during the collection of data during this research. This discrepancy arose when a
need of setting up new courts and forming new benches was felt and as a result to fulfill this
requirement new courts are set up and the vacancies of the Judges have also been increased
and due to the proper follow up of the higher Judiciary and department of Home and Justice,
new Judges have been recruited throughout. With the coming and working of the new judicial
officers the paucity of the cases is now getting lesser and the cases are being heard at a fast
rate, but now the courts are facing the shortage of the Law officers i.e., public prosecutors in
the cases to assist the courts.

The study suggests that due to lack of public prosecutors the cases must be adjusted as per the
availability of the public prosecutor in the court. During research the respondents from the
other wings of the criminal justice administration had revealed about this short coming in the
prosecution department. The judicial officers had stated that at several times during the
proceedings on any given day the judges are frequently compelled to hear the case at a time
convenient to the public prosecutor and even have to wait for the prosecutor as he is busy in
another court.” The situation is so grave that in many districts one prosecutors has been given
charge of several courts, so alarming are the circumstances that due to lack of the state
counsel (prosecutor) the judges even are compelled to adjourn the cases as the public
prosecutor is not available in the court even after calling the case severally during the hearing

7
Gurpuneet Singh Randhawa & Dr. D.J. Singh, Analysis of Challenges Faced by Indian Prosecution System,
International Journal of Research in Humanities and Social Studies Volume 3, Issue 5, May 2016, PP 1-9

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of the case on one given date. “The lack of prosecutors is found to be a big hindrance in
achieving the goal of speedy Justice for all in the welfare democratic state of India. The
prosecution system is required to recruit new prosecutors at the earliest so as to eliminate this
short coming and to provide better services in coordination with other wings of criminal
justice administration in India and especially with the hyper use of modern technologies
which has given birth to new types of crimes such as cybercrime and use of advance
technology in committing of crimes, the prosecutors further needs to be very well informed
and trained for cyber and other technical crimes which are alarmingly on the rise.

As per the guidelines of the Supreme court of India and also by the strict instructions of the
government emphasis has been laid on providing better infrastructure and man power to
combat with this increase of crime and criminals. With a high increase in the crime rate and
criminals there is a big inflow of criminal cases and for the proper adjudication of these cases
a number of courts have been set up and new recruitments of the judicial officers, police
personals, etc is being done at a fast pace but the research study has revealed that the number
of prosecutors has not been increased in accordance with the increase in the numbers of
Courts, Judges, Police officers etc. The police officials have also indicated during the study
that due to lack of prosecutors they face a lot of problems not only at time of hearing of cases
but also during the investigation of case and making and filing of the Challans in the courts.
Being overburdened the prosecutors spare very little time to listen and solve the problems
faced by the investigating officer during the investigation of the case. So from above scenario
it is clear that Prosecution system in India is facing various problems which need to be
marked out so that these issues may be resolved and redressed to improve Indian Prosecution
system.” Through our work we present various challenges faced by Prosecution system in
India and propose solution to them.8

PROSECUTION SYSTEM IN INDIA

Law and Justice come in concurrent list under “the Indian Constitution, therefore, the law can
be passed either by the central government or the state government. The law passed by the
Central government may or may not take into consideration by the state. Though the common
aim of prosecution machinery is one, there is slight difference of hierarchy, governing
ministry and the modus operendi of the prosecution wings in India. On the basis of state
requirements, the prosecution machinery of the state is different. In some of the provincial

8
Ibid.

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Governments in India, the boundary between investigation and prosecution is blurred. In few
of the States the police officials head prosecution machinery wherein the boundary is
completely disappeared. In Arunachal Pradesh and Mizoram the police officers head
prosecution machinery. The Directorate of the prosecution is heading organs of the
prosecution of the States. In some of the States the Directorate of Prosecution is headed by
the police officers. In many of the States the Directorate of Prosecution works under the State
Home Ministry. However, in the States of Goa and Karnataka, the Law Ministry controls the
Directorate of Prosecution. In recruitment procedure also, there is an executive interference.
Most of the times they prefer to recommend the names of Ad hoc Appointees.” Various
Courts have held that the prosecution and investigation machineries should not be one and the
same.

In “Jaipal Song Naresh V State of Uttar Pradesh,9 it was pointed out by the Allahabad High
Court that the intention of parliament to keep separate prosecution from the police is to
investigate the offence and identify the guilt of accused. The Prosecutor is not under duty to
represent police but has a duty to represent Crown. He should perform his duty without favor
or fear. Hence, it was held that the prosecution should not be a part of investigation directly
or indirectly. Before filling charge sheet in the court, the ball is in the court of police as soon
as documents are prepared; it is the prosecution who leads the case. However, the role of
police and Prosecutors is complementary to each other. Their mutual cooperation and
harmony is a must in order to conduct effective prosecution. Police should take needful
advice by the Prosecutors at the time of filling charge sheet in the law court.

In year 1958 and 1969, The Law Commission of India has recommended to set up
independent prosecution machinery. In S. B. Shahane V State of Maharashtra,10 it was held
that the objective of keeping Prosecutors outside the police control is to ensure independence.
If the Prosecutors are under police control, it will affect Prosecutorial independence. In order
to smooth functions of police and prosecution, there is an urgent need of coordination.
However, if the Prosecutors are kept subordinate to the police, it will affect the objective of
the machinery. The Prosecution Machinery faces many kinds of pressures from the executive
wing. The appointment, tenure, remuneration and perks, are decided by the Executive. Hence,
the Prosecutors should be protected from the Executive interference.”

9
1976, Cr. L. J. 32
10
AIR 1995 SC 1628

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In “Jain Hawala Case,11 the relationship amongst police, prosecution and the executive has
received attention of the Supreme Court of India. In this case, the Supreme Court of India has
issued specific guidelines about various functionaries of the States. Specifically, the
bureaucratic politician criminal nexus had used all the means needed to thwart investigation
and prosecution of corruption cases by the Central Bureau of investigation. After considering
the fact and circumstances of the case, the court has issued directions for the efficient and
impartial administration of justice. The Supreme Court of India has warned the concerned
minister not to interfere in the investigation and prosecution.

In Thakur Ram vs. State of Bihar12 the Supreme Court held that the motive of appointing a
prosecutor is to represent the victim’s right as crime against him/her is considered as crime
against society. Therefore, no person in their private interest to fulfill their private motives
like vengeance etc. can use this means.

In Mukul Dalal v. UOI13 the Supreme Court has stated that in India the public prosecutor's
office is a public one which is important under for the court and the state to establish just for
the social purpose.

In Radheshyam v. State of M.P. & others14 the court has stated that a special public
prosecutor can be appointed by the state whose remuneration shall also be paid by the state to
maintain its integrity. Thus, the government cannot appoint him/her directing to get
remunerated by the private party.

Therefore, in India there is the directorate of prosecution wherein all the prosecutors were
brought to supervise them. The director heads the office under whom other officers and
ministerial staffs fall. But since not all states have established such system or are part of this
system as it is not given recognition under CrPc. as a mandate so many prosecutors are side-
lined or fall under top level police officers which affects their working. Defeating the whole
purpose of providing justice.”

Political interference is possible in the process of withdrawal of prosecution under “Section-

321 of Cr.P.C. How to exercise the withdrawal of prosecution power is not mentioned in laws
in India though that power is not subject to delegation and is in the domain of the Public

11
Vinit Narayan v Union of India, (1998), 1 SCC. 226
12
1966 AIR 911, 1966 SCR (2) 740
13
1988 SCR (3) 868, 1988 SCC (3) 144
14
2000 (4) MPHT 124

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Prosecutor. However, In the case of Bhopal Gas Leak Disaster, the Prosecutor was not
considered in the compromise process. Though Indian Public Prosecutors are theoretically
independent and free, in practice, they face a lot of interference and obstacles. In Union of
India V Shishil Kumar Modi,15 the Supreme Court of India quoted the words of Lord Denning
in R. V Metropolitan Police Commissioner 16. The crux of the quotation is that every constable
in the land should be independent from executive control and should not be subject to the
order of secretary of the State. The law of the land should be enforced and monitored by
every Commissioner of Police as well as each police constable. He must take the required
steps to post his men to detect crime and honest citizens get peace. He should decide whether
to investigate the case or not. Nobody should interfere in this task of decision making. He is
answerable to the law itself and nobody else. The Prosecutors are one of the important
officers in the administration of criminal justice in India. The role of Prosecutor is connected
with pre-trial, during trial and in post-trial phases. The Prosecutors are very important for
crime control in the society. Efficient Prosecutors can contribute efficiently to the
administration of justice and can control crime. Indian Criminal Justice follows Adversarial
Model of Justice.” Hence under the light of the Adversarial Model Prosecutors in India
perform their function.

 A brief of the Prosecution System in India:

To focus on the problems faced by the Prosecution System in India, a fundamental

understanding of the same is a prerequisite. The Criminal Justice system has four important
components in India:

i. The Investigating Agency (The Police),

ii. the Judiciary,

iii. the Prosecution Wing and

iv. the Prison and Correctional Services.

Criminal Prosecution typically has two streams in India- “The first which relates to criminal
cases initiated on the basis of FIR or a police report, and the second which refers to criminal
cases initiated on the basis of private complaints17.

15
1997, 4 SCC, 770
16
1968, 1 All E R 763
17
Unit IV: Judiciary: Constitutional, Civil and Criminal Courts and Processes, Legal Studies, NCERT.

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With reference to the first stream, the primary investigation unit is the police station in India.
After due investigation, charge-sheets are filed in the Court. These cases are prosecuted by
the Public Prosecutor of the State. Prior to the enactment of the Criminal Procedure Code of
1973, Public Prosecutors were attached to the police department and were responsible to the
District Superintendent of the Police. However, after the Code came into picture, the
Prosecution has been detached from the Police18. The Prosecution wing is now headed by the
Director of Prosecutions. In some states, he is a senior police officer and in some 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.

At district level, there are two levels of Public Prosecutors, i.e, Assistant Public Prosecutor,
Grade-I and the Assistant Public Prosecutor, Grade- II who appear in the Courts of
Magistrates19. The Director of Prosecution is responsible for the prosecution of cases in the
Magisterial Courts. In Sessions Courts, the cases are prosecuted by the Public Prosecutors.
The District Magistrate prepares a panel of suitable lawyers in consultation with the Sessions
Judge20. The State Government appoints public prosecutors out of this panel. However, it is
important to mention that the Public Prosecutors of the Sessions Court do not fall under the
jurisdiction and control of the Directorate of the Prosecutions. The State Government also
appoints Public Prosecutors in the High Court as per Section-24 of the Criminal Procedure
Code, 1973. The appointments are made in consultation with the High Courts 21. Under
Section-24 of the CrPC, the Central Government may 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. The most senior law officer of the State is the Advocate General, who is appointed by
the Governor under Article 165 of the Constitution.” The most senior officer of the
Government of India is the Attorney General of India, who is appointed by the President
under Article-76 of Indian Constitution. Public Prosecution is an important component of the
public justice system. While it is the responsibility of the public prosecutor to see that the
trial results in conviction, since he represents the State; he need not be overwhelmingly

18
The Role and Functions of Prosecution in Criminal Justice, Madan Lal Sharma, 107th International Training
Course: Participants Paper, Resource Material Series No.53, Pg (187)
19
They are appointed by the State Government on the basis of a competitive examination conducted by the
State Public Service Commission.
20
They have experience of a minimum of 7 years. They have tenure appointments and are not the permanent
employees of the state government.
21
They have experience of a minimum of 7 years.

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concerned with the outcome of the trial. The Law Commission of India in its 154th Report on
‘Code of Criminal Procedure, 1973) quoted Babu v. State of Kerala22 that

“Public Prosecutors are really Ministers of Justice whose job is none other than assisting the
State in the administration of justice. They are not representatives of any party. Their job is
to assist the Court by placing before the Court all relevant aspects of the case. There are not
there to see the innocent sent to gallows; they are also not there to see the culprits escape
conviction.”

The Public Prosecutor plays the following role at the investigation stage:

i. He appears in the court and obtains arrest warrant against the accused.

ii. He obtains search warrants from the court for searching specific premises for
collecting evidence.

iii. He obtains police custody remand for the custodial interrogation of the
accused(Section-167, Code of Criminal Procedure, 1973).

iv. If the accused is not traceable, he initiates the proceedings in the court for getting him
declared a proclaimed offendor(Section-82, Code of Criminal Procedure, 1973) and,
therefore, for the confiscation of his movable and immovable assets(Section-83, Code
of Criminal Procedure, 1973)

v. He records his advice in the police file regarding viability and advisability of the
prosecution.

“After the completion of investigation, if the investigating agency comes to the conclusion
that there is a prima facie case against the accused, the charge-sheet is filed in the court
through the public prosecutor. The opinion of the Public Prosecutor is taken by the police
before deciding whether a prima face case is made or not. However, the ultimate decision of
whether to send up case for trial or not lies with the police authorities. 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 the Police is final 23.
His role is only advisory. However, once the case has been sent up for trial, it is for him to
prosecute it successfully. It is for the prosecutor to establish the guilt against the accused
22
1984 Cr LJ 499 (Ker H.C)
23
The Role and Functions of Prosecution in Criminal Justice, Madan Lal Sharma, 107th International Training
Course: Participants Paper, Resource Material Series No.53, Pg(194)

17 | P a g e
‘beyond reasonable doubt.’ This is done with suitable evidence and that involves witnesses.
The process of examination-in-chief and reexamination (if-required) is conducted by the
prosecution. Similarly, documents are to be proved by the Prosecutor with witnesses. Since
the standard of proof of guilt beyond reasonable doubt is high, the job of the Public
Prosecution has become highly challenging. The Public Prosecutor has to draw inferences
and convince the Court that the accused is guilty beyond reasonable doubt of the offences he
has been charged with.”

“The Supreme Court of India has defined the role and functions of Public Prosecutor in Shiv
Nandan Paswan v. State of Bihar & Ors24 as under:

 The Prosecution of an offender is the duty of an executive which is carried out

through the institution of Public Prosecutor.

 Withdrawal from prosecution is the execution function of the Public Prosecutor.

 Discretion to withdraw from prosecution is that of a Public Prosecutor and that of

none else and he cannot surrender this discretion to anyone.

 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.”

However, when a Public Prosecutor is not conducting a case expeditiously and remains a
mute spectator to evasive conduct of the accused, “the aggrieved victim could seek
entrustment of the case to another Prosecutor and the Government can relieve the case from
the Prosecutor of that court and entrust it to another (Katasani Siva Reddy v. Govt of A.P)25.
Also, if the accused apprehends that he will not get justice because of the actions of the
Prosecuting Agency, the Supreme Court could transfer the case to another State. In such a
case, the prosecution has to be conducted by the prosecutors appointed by the Transferee
State and the Transferor State holds no control over the prosecutors” of the Transferee State26.

 Independence of Prosecutors from Executive Interference:

24
AIR 1983 SC 1994
25
2004 (1)ALD (Crl) 43 (AP)
26
Jayandra Saraswati Swamingal @ Subramanian v. State of Tamil Nadu, 2008 (3) ALT (Crl) (SC)

18 | P a g e
India has democratic form of Government. “The rulers are elected by the people, they rule for
the people and the Government is of the people as per Abraham Lincoln’s philosophy. The
Montesqou’s doctrine of separation of power is not strictly followed in India. Though
Prosecutors are separate from the Law Makers and the Judiciary, some legal provisions and
conventions give scope for executive interference in the Prosecutor's work. The District
Magistrate shall, upon application of the Prosecutor sanction appeal or revision in the
appellate courts. These appeals are filed either against acquittals or inadequate sentences.
Unfortunately, our system empowers District Magistrate to initiate appeal instead of the
Prosecutor who is ideally supposed to have this discretion. The Central Rule 1995 empowers
the District Magistrate or Sub Magistrate to engage an eminent Sr. Lawyer. However the
remuneration shall be fixed by the State Government. In Ghanshyam Kishore Bajpayee v.
State of Uttar Pradesh27, the Allahabad High Court felt concern about the casual approach of
the District Magistrate and the Sessions Judge in empanelling advocate. It also held that
mostly part time Prosecutors are appointed on the basis of political nexus, caste or creed
instead of their merits. In Zahira Habibullah Sheikh v State of Gujrath,28 Supreme Court has
taken notice of some of the obvious irregularities in some of the cases. In the famous Best
Bakery case duties of the police and of the Prosecutors provided under the Code of Criminal
Procedure were not carried out by the police as well as by Prosecutors. Besides this under
Sections-321 Cr.P.C, the Prosecutor is entitled to withdraw prosecution of any person in
respect of specific offences for which he is tried with the consent of the court and that results
in acquittal of the accused. Supreme Court of India Stated that it is the Public Prosecutor
alone and not any other executive authority that decides withdrawal of prosecution. Court
performs only a supervisory function and not an adjudicatory function in the legal sense of
the term(Sheonandan Paswan v. State of Bihar29).”

“Indian Prosecutors are either full time Prosecutors or part time Prosecutors. There is a
possibility of appointing new cadre of Prosecutors replacing earlier cadre appointees by the
earlier Govt. This is an unwelcome practice to remove the earlier appointments in toto. In
Kumari Shrilekha Vidyarth etc. v. St. of UP 30, the newly formed Govt. in 1990, issued
termination order of all the Prosecutors and Govt. Counsels in all the Districts. It had asked
the administration to prepare a list of new names. This order by the UP Govt. was

27
2005 Cri LJ.198
28
(2004) 4 SCC 158
29
1987 Cri LJ 793
30
AIR 1991/ SC537

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unreasonable. This order was scrutinized by the Supreme Court which held it to be arbitrary
and unfair. It was also held to be violative of Article-14 of the Indian Constitution.
Ultimately, The Supreme Court has nullified that Govt. order and retained the positions of
part time Prosecutors who had suffered. Again in State of UP v. Johrimal31, the Supreme
Court of India held that the State Govt. should not rescind the appointment because of change
in Govt. Unfortunately the appointments of Prosecutors depends on political connections,
rather than merit. In V. Ramchandra v. M.C. Jagadhodhara Gupta32, Justice Ramaswamy of
Andhra Pradesh High Court has narrated the qualities of Prosecutors. The qualities like,
impartiality, co-operation towards the court, watch on guilty to be punished, full integrity,
honest, devoted, and competency are a must.”

However, no one is willing to learn the lesson and every time the new Government treads the
ill minded path. “Once again, the S.C to say that the State Government is not expected to
rescind the appointments with the change in the Governments 33 Yet the repetition of
malpractice was once again resorted to and the issue came up for adjudication before
Allahabad High Court34. The appointments of Prosecutors have become dependent on
political affiliations rather than merit. In fact, the engagement of the Public Prosecutor on a
tenure basis and on payment of fees on a daily basis, has paved the way for disregard and
apathy on the part of the Public Prosecutor. A Prosecutor with impartial disposition, a
Prosecutor who assists the court, a Prosecutor who sees that the guilty is punished, a
Prosecutor with unquestionable integrity, honesty and devotion to duty and of competence is
required.

Under Section 24 of the Code of Criminal Procedure, 1973, the Government shall appoint
Prosecutors in High Court and the Sessions courts. The District Magistrate is empowered to
enlist the cadre of prosecuting officers in consultation with the Session’s Judge. The District
Magistrate is representative of the State Government in the District concerned. Here, the
ruling political party recommends the list of preferred persons for the posts of Prosecutors.
Generally the ruling political parties recommend the names of Advocates who are near and
dear to them. In some States of India, the State Government is eligible to appoint Prosecutors
without consultation with the Session Judge. At this moment, there is a political interference
in appointment of Prosecutors. The appointment of a Prosecutor is a compelling
31
AIR 2000 SC 3800
32
1986, Cr. L.J. 1820
33
State of U.P v.Johrimal ,AIR 2004 SC 3800
34
Ghanashyam Kishore Bajapayee v State of Uttar Pradesh,2005 CriLJ 1985

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constitutional necessity, obligatory under the Code of Criminal Procedure also. The State is,
therefore, wrong if it ever assumed that there is no administrative necessity to make
appointment of Prosecutors. Financial constraints cannot absolve the State of its
constitutional obligation. If functioning of criminal court is a necessity, the post of a
Prosecutor to conduct the prosecution is an absolute necessity. Just as abolition of all courts
due to financial constraints cannot even be imagined, so also, the non-appointment of a
Prosecutor to conduct cases in criminal courts cannot be tolerated. The system of putting one
Prosecutor in charge for more than one court shall be stopped. Considering the heavy
pendency in each of the criminal courts, a Prosecutor shuttling from one court to another does
not do any justice to either court. The functioning of the criminal courts cannot be paralyzed
even temporarily by the non-appointment of Prosecutors.” The State is bound to make
appointment to the existing vacancies without delay.

In Subhash Chandra v. The State,35 “the Supreme Court has emphasized the independence of
the office of Public Prosecutor. It was observed that any authority that coerces or orders or
pressurizes a functionary like the Public Prosecutor in the exclusive province of his
discretionary power, violates the rule of law, and any Public Prosecutor who ends before such
command betrays the authority of his office. In Jain Hawala case, the relationship between
the investigation, prosecution and the executive received the Supreme Court's attention. Here,
the bureaucrat-politician-criminal nexus had used all means necessary to thwart the
investigation and prosecution. The corruption cases were handled by the Central Bureau of
Investigation. The Court monitored the progress of these cases and passed detailed directions
on the functioning of various agencies involved; and even warned the minister in charge to
avoid interfering with the investigation and prosecution.

Types of Criminal Trial

According to the Code of Criminal Procedure, a Criminal Trial is of three types. Depending
upon the type of criminal trial the different stages of a criminal trial are discussed below.

CRIMINAL JUSTICE SYSTEM “The criminal justice system has four important
35
A.I.R. 1980 SC 423

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components in India, namely, the Investigating Agency (Police), the Judiciary, the
Prosecution Wing and the Prison and Correctional Services. 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 up for 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.
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 offences
punishable 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 High Court. 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. At the apex, there is the
Supreme Court of India.
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. 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.”

THE DUTIES AND FUNCTIONS OF A PUBLIC PROSECUTOR

22 | P a g e
 Public prosecution is an important component of the public justice system. “Prosecution
of an offender is the duty of 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. 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 the administration 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 & Others (AIR 1983 SC 1994) 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 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.

CONSTITUTION AND STRUCTURE OF PROSECUTION WING

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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 state is now headed by an officer designated 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 of
suitable 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.36 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 appoints public
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 state. 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 area.” The most 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. “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

36
S Govind Swaminathan, (Advocate General, Madras), ‘Investigation and Prosecution in Criminal Cases’,
Indian Journal of Criminology, 1973, Vol 5

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Assistant Directors of Prosecution and can go up to the level of Additional Director of
Prosecution.

THE ROLE OF A PUBLIC PROSECUTOR DURING TRIALS

As stated above, the public prosecutor is 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. 37 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 the prouncement 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. However, once the case has been sent up for
trial, it is for him to prosecute it successfully.”

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 officer. 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 re-examination, 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 witnesses. The forensic evidence is proved through 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.
37
S Govind Swaminathan, (Advocate General, Madras), ‘Investigation and Prosecution in Criminal Cases’,
Indian Journal of Criminology, 1973, Vol 5

25 | P a g e
ROLE OF A PUBLIC PROSECUTOR IN INVESTIGATIONS

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 be signed 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, thereafter, to
face trial. If no cogent evidence comes on record, a closure report is filed in the Court. 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 confiscation of his
movable and 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, if the investigating agency comes to the conclusion that
there is a prima facie case against 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 the
police 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

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trial or not lies with the police authorities. 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.”

SPEEDY TRIAL “The concept of speedy trial is enshrined in Article 21 of the Constitution
of India. 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 is 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
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 him. 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.

PLEA BARGAINING

“The Indian law does not provide for plea bargaining as it exists in the U.S.A. However, the
Law Commission of India has recently recommended to the government that a separate
Chapter (Chapter 21-A) be incorporated in the Code to provide for plea bargaining. The
system of plea bargaining has been recommended as it is believed that 75 per cent of
convictions in the U.S.A. are based on plea bargaining. It is proposed to introduce a plea
bargaining system in less grievous offences, to begin with. If this experiment succeeds, it will
be extended to grievous offences thereafter.”

PROBLEMS OF PROSECUTION AND SUGGESTIONS FOR IMPROVEMENT

Problems with the Indian prosecution system

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The founder of “the National Judicial Academy Mr. N.R. Madhava Menon critiqued the
prosecution system and said that it was the weakest link in India’s criminal justice system.
Prosecutors are overburdened with cases, lack proper training and have issues regarding
accountability. This has resulted in a rate of conviction as low as 26 percent, compared to 99
percent in countries like Japan. He also advocated for specialisation in prosecution, as a
prosecutor cannot be thorough in all laws.

Mr. Madhava Menon has also said that the inefficiencies of the criminal justice system have
had an unintended effect, as the present criminal justice system is failing to protect the life
and property of the ordinary people, people have started trusting Maoists and other extremist
groups than the government and the police, in 60-odd districts of the country. Most Indians
are of the view that the government and the police protect the interests of only the rich and
the powerful.

The biggest problem with the prosecution system is that the Indian administration refuses to
recognize the role of prosecutors as the most important cog in the machinery of the criminal
justice system. The government, Supreme Court, high courts, law commissions and all other
stakeholders consider the dearth of courts, availability of police personnel, political
interference in high profile cases, corrupt officers and other factors as responsible for the
deplorable state of the criminal justice system in India. While improvement of the above-
mentioned elements is essential to make the justice system more efficient, it won’t be enough
unless the prosecution system is completely revamped and is given more power. To deal with
the problems thoroughly and arrive at solutions, it is necessary to categorise the different
problems facing the Indian Prosecution System, let’s see:”

“It bears repetition that the conviction percentage in India has been falling over the years. It
was 64.8 per cent in 1961, and fell down to 42.9 per cent in 1994. The disposal of cases by
the courts is also falling over the years. In 1994, it stood at 15.5

per cent of the total cases pending in the Courts in that year. This clearly demonstrates non-
efficacy of the public justice system. The public prosecutors cannot escape the blame for this
dismal state of affairs. It is proposed to highlight some of the problems being faced by the
prosecution agency and also to suggest measures to improve the situation.

(1) The first and the foremost problem is the poor quality of entrants in the prosecution
agency. Undoubtedly, the entrant is a law graduate who qualifies through a state-level

28 | P a g e
competitive exam, but the quality of law education is not uniform in the country and is not up
to the mark in certain law colleges. Further, the earnings in the open market are much higher
than what the government offers to the prosecutors. Resultantly, able and competent
advocates shy away from joining the prosecution agency. The only way to remedy the
situation is to make the job attractive by improving the salary structure and by providing
other perks such as government housing, transport, telephone facilities and allowances such
as non-practising allowance, rob allowance, and library allowance.

(2) According to an estimate, 21.8 million cases are pending trial in the subordinate courts.
The exact number of public prosecutors in the country is not known. Experience, however,
shows that the public prosecutors are overburdened with cases and their number is not
adequate enough to efficiently handle the cases entrusted to them. It is difficult to fix a norm
as to the number of cases to be entrusted to a public prosecutor as it would depend on the
nature of the case. Further, the performance of a public prosecutor is largely dependent on the
performance of the presiding officer and other collateral factors. While there is a case for
increasing the number of criminal courts, there is equally a case for increasing the number of
public prosecutors. As a norm, at least two public prosecutors of the appropriate level should
be attached with each court.

(3) The Assistant Public Prosecutors are recruited from the open market, and they are
entrusted with the cases without any institutional training. They learn by experience, but that
takes time and, in the meanwhile, the cases suffer. It is suggested that a national level training
institution should be set up for the public prosecutors to impart them proper training. The
duration of the training could be one and a half years. Six months could be earmarked for
training in law; four months for attachment with a police station; four months for attachment
with a competent magistrate; and the remaining four months for attachment with a senior and
experienced public prosecutor. The proposed institutional training could be supplemented
with refresher courses from time to time.”

(4) The pay scales of the Assistant Public Prosecutors are rather low. “Assistant Public
Prosecutors Grade-II is bracketed with a Sub Inspector of Police and Assistant Public
Prosecutors Grade-I with an Inspector of Police. As they are law graduates and have lucrative
avenues opened to them in the market, it is necessary that their pay scales be improved and
also they be given sumptuous allowances so as to make the job attractive. Similarly, the

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honorarium paid to the public prosecutors appearing in the Sessions Courts is grossly
inadequate and this needs to be enhanced drastically.

(5) Another problem facing the public prosecutors is the lack of promotional avenues. As
stated in the preceding paras, an Assistant Public Prosecutor Grade-II is promoted to
Assistant Public Prosecutor Grade-I and thereafter as Assistant Director or Deputy Director,
as the case may be. He can appear only in the Magisterial Courts and not in the Sessions
Courts, where more heinous offences are tried. It would be expedient to integrate the two
cadres and allow an Assistant Public Prosecutor to rise in the heirarchy; enabling him to
appear not only in the Sessions Court, but even in the High Court, depending on his ability
and calibre.

“Given the organizational set-up of the prosecution and its sensitive relation with the police,
the prosecution machinery suffers from multiple disabilities38.

i. The nature of office of the Public Prosecutor : The Criminal Procedure Code, 1973
has been silent on the nature of the office of the Public Prosecutor, thus adding
complexities to his functions to be carried out effectively. It is unclear whether the
Public Prosecutor is an executive or a judicial officer, which is a deciding factor on
his involvement in a case. However, in certain context it also appears as though the
office of the Public Prosecutor is quasi-judicial in nature. In the case of State of Bihar
v. Ram Naresh Pandey39 the Supreme Court accepted the view that the prosecution is
the function of the State Executive, and as such, the status of the Public Prosecutor is
that of an Executive Officer. In cases such as, M.N. Sankaranarayanan Nair v. P.V.
Balakrishnan40 and State of Orissa vs. C. Mohapatra41 a similar view was taken by
the Courts. However, the Court began to re-conceptualize the status and role of the
Public Prosecutor and in the light of the case of Balwant Singh v. State of Bihar42
Krishna Iyer.J. held that “The Criminal Procedure Code is the only master of the
Public Prosecutor.” The Public Prosecutor holds a public office, independent in
nature. This confusion in the nature of his office leads to another problem with respect
to the directions to be given to the Public Prosecutor. It is an unresolved dilemma
whether the Police and Public Prosecutor are on an equal footing or one above the
38
Strengthening the Prosecution System, N.R.Madhava Menon, The Hindu, July 17, 2008
39
AIR 1957 SC 389, 1957 1 SCR 279
40
1972 AIR 496, 1972 SCR (2) 599
41
1963 AIR 779
42
1977 AIR 226

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 other. Hence, creating a divide between the two agencies resulting in lack of co-
ordination. Ultimately, any fallout of a case is attributed to this lack of connectivity
between the two agencies.”

ii. Involvement in Investigations: “Given that the Prosecution follows investigation as

a stage in the administration of criminal justice, it is evident that there must be a
linkage of some nature between the Police and the Prosecution. Although, the Law
Commission43 of India did argue that the Police should have no role in Prosecution,
the reverse is also not suggested to be true. The involvement of Public Prosecutor in a
case is often discouraged in India. This has resulted in failing conviction and disposal
rate, filing of poorly investigated cases, indifferent management of trial proceedings
including bail and lack of effective review 44. The Public Prosecutor’s role is merely
advisory, which often limits his duties to that of a puppet. Although the opinion of the
Public prosecutor is sought before sending the charge-sheet; the ultimate decision
with respect to the same lies with the District Superintendent of the Police. The
Directorate of Public Prosecutions lack access to important documents that constitute
a case and the power to advise the Police in the process of investigation. The opinion
of the Courts in this matter has been mentioned in the case of R.Sarala v. T.S Venu45
which reads that “there is no stage during which the investigation officer is legally
obliged to take the opinion of the Public Prosecutor… it is not in the scheme of the
Court for supporting or sponsoring any combined operation between the Investigation
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 combined operation,” it does not necessarily reflect a
desirable state of affairs46

iii. Independence from Executive: “The Courts have been trying to stray away from the
notion of Public Prosecutor being an Executive Officer for the rampant interference of
the Executive in criminal matters. In the case of Zahira Habibullah v. State of
Gujarat47 popularly known as the Best Bakery case and Vineet Narain v. Union of
India48 heavily criticized the Public Prosecutor for succumbing the whims and
43
14th Law Commission Report on Reform of Judicial Administration, Vol.2, 1958
44
Strengthening the Prosecution System, N.R.Madhava Menon, The Hindu, July 17, 2008
45
AIR 2000 SC 1731
46
Role of Public Prosecutor in the Criminal Procedure Code, Legalsutra, November 30, 2010.
47
MANU/ SC / 0322/ 2004
48
MANU/SC/ 0827/ 1998

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 caprices of the Executive, which is politically driven. In the Best Bakery case the
Supreme Court noted that “the Public Prosecutor appears to have acted more as a
defense counsel than whose duty was to present the truth ...” The Court was appalled
by such deep influence of politics over judicial matters. Unfortunately, even the
appointment of Public Prosecutors is made on the basis of political affiliation of the
persons concerned. The difficulties arising out of such appointments came to be
examined by the Supreme Court in Srilekha Vidhyarthi v. State of U.P 49; the Court
deprecated this trend and declared that the appointment of such vital offices should
not be allowed to be made by the spoilt systems of the political parties in power. The
Supreme Court has also deprecated the politically motivated withdrawals of
prosecutions by some state governments, but there has been no change in such
interference despite measure being taken by the Judiciary.”

iv. Appointment and Training of Public Prosecutors : “One of the fundamental

problems is the system of selection and training of the Public Prosecutors. Selection is
neither merit-based nor competitive. Remuneration and conditions of service are not
very attractive. Because of which, the morale of the service is very low and
prosecutors become vulnerable to bribery and corruption 50. There is no national level
training institute for entrants of all level. Numerous reports have also suggested that
lack of promotional revenues have discouraged law graduates from considering this
office. The increase in backlog of cases has also built pressure on the Public
Prosecutors resulting in shoddy preparation and poor performance. Also, a regulating
agency to work on the accountability of the prosecutors is missing.”

The ideal system for India

“Indian prosecution system suffers from a lot of problems and it is high time to reconstitute
the entire system from ground zero. Prosecution is the engine of criminal justice and it needs
to be given more liberty to operate. After briefly learning the prosecution systems of two
other common law countries, the author thinks that we need to borrow from the best practices
of the United States of America and England & Wales and assimilate them into our system
keeping in mind the ground realities of our society. The following changes are suggested to
make the Criminal Justice System better:”

49
(1999) 1 SCC 212
50
Strengthening the Prosecution System, N.R.Madhava Menon, The Hindu, July 17, 2008

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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 quantum
of 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.
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 Code, 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, The prosecutor is required to
help the court in arriving at a fair and judicious finding in this matter.”

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 the prosecution 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

33 | P a g e
with the formulation/ drafting of laws. Their field experience would go a long way in
improving the quality of laws enacted. Further, unlike the police, the prosecution agency does
not have a national level body to watch its professional and service interests. 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.”

USA PROSECUTOR AND CRIMINAL JUSTICE STEPS

 Investigation
 Charging
 Initial Hearing/Arraignment
 Discovery
 Plea Bargaining
 Preliminary Hearing
 Pre-Trial Motions
 Trial
 Post-Trial Motions
 Sentencing
 Appeal
 Codification of Criminal Procedure

Congress codified the federal criminal law and criminal procedure in Title 18 of the U.S.
Code with 1 to 2725 dealing with crimes.

“Title 18 designates various conduct as federal crimes, such as arson, use of chemical
weapons, counterfeit and forgery, embezzlement, espionage, genocide, and kidnapping.
These statutes usually prescribe a maximum sentence appropriate for a convicted individual.
For additional Federal Regulations, consult 28 C.F.R. The federal government has also
codified the specific procedures which must take place during the course of a criminal
proceeding in the Federal Rules of Criminal Procedure.

PROSECUTORS IN THE U.S. CRIMINAL JUSTICE SYSTEM:

As “the U.S. is divided into state and counties so the system there is a bit different. For 50
states and about 3143 counties there they have their own prosecutor. As U.S. is a federal
republic so only at the federal level, they have a unity i.e. form a single system and have

34 | P a g e
prosecutors according to that. Unlike the manner they appoint district attorneys by the U.S.
general attorney's office for each federal the district, the appointment of prosecutors is
different.

It is not appointment at all it is done by way of election i.e. local elections. In United States
the U.S. federal attorneys act as prosecutors but are elected to their office by the electorates.
The Assistant United States Attorney also called a federal prosecutor is appointed by the
federal government and they look into such public interest matters in criminal proceedings
and even some civil suits.51

The major duty is that they are largely involved in investigation procedure and keep check
that rights of accused are protected by the law. That is, they are highly involved in the whole
investigating the crime process and therefore enjoy the benefit of interrogating and
interviewing the witnesses as well.”

ROLE OF THE PROSECUTOR IN THE U.S. CRIMINAL JUSTICE SYSTEM:

He is the one who administers and ensures proper criminal justice. “He has the discretionary
power to charge any person of some offence or not. Which he must function with utmost
care. Although the police have the power to make arrest on doubt but the charging capacity
falls within the ambit of prosecutor. And no one can question his/her decisions. One example
of prosecutors misusing this power is the Kemba Smith case where she was sentenced to 24.5
years imprisonment as charges against her were framed to be included in various drug
supplying activities, but instead it was her husband who was a drug dealer and she was just an
acquaintance to him. But in exchange of her testimony she was told that charges against her
would be reduced but in the process of investigation her husband died and the prosecution
made her plead guilty leading to her conviction. Therefore, to avoid such discrepancies we
need the prosecutors to use their charge framing power with utmost reasonableness.

Thus, in the US criminal justice system usually prosecutors have an upper hand on what the
court will decide, which affects the fairness and justice.

Also, prosecutors regulate the entire plea-bargaining system and statistics have shown that
almost in 90% of cases defendants plead guilty. Which usually used in a wrong manner by
prosecutors as they delve into over-charging practices so that the defendant gets convinced to

51
Criminal Justice in the United States: A Primer asjournal.org /49-2007/criminal-justice-in-the-united-states/
by James B. Jacobson 17 May 2017

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plead guilty for the lesser charges. As everyone wants to avoid the trial process and is scared
of the rigorous sentencing.

They serve as quasi- judicial authority therefore they have to act with fairness as he/she is
the representative of the society and neither of the parties. He should not aim at conviction
rather should work to provide the best possible remedy. The same was stated by the U.S.
Supreme court in Berger v. United States.

They carry out excessive investigation and collect evidence, main functions are filing
subpoenas, plea bargaining, charge framing and ensure rights to both victims and accused.”

IMPORTANT CASE:

In People v Smith52, “the court stated that the prosecution proves guilty or not guilty,
sometimes the prosecution fails to prove the burden of proof then the defendant must be
allowed to go free. Here no forced scrutiny can be laid as there was no evidence provided to
prove the case.

Thus, in the US criminal justice system major outcome of the case is affected by the
prosecutor and his way of conducting the whole investigation and trial process. Unlike in
India where prosecutor is taken as a minister of justice who advices the court but the major
power to give judgement is with the judges the prosecutor just ensures fair justice system.

PROSECUTORS IN THE ENGLISH CRIMINAL JUSTICE SYSTEM:

In the UK the prosecutors fall under the Crown Prosecution system (CPS) and are called
crown prosecutors. The CPS was established in 1985 by the prosecution of offences act to
operate in England and Wales separate from the European system. It is an independent body
free from any interference by the police or the government. As the UK has three different
jurisdictions to regulate such public prosecution one such under which prosecutors work to
provide justice is the CPS.

It is not dependent on the other 2 bodies. Also, the UK does not have a penal code they work
on statues, precedents and customs which are followed and therefore according to that on
behalf of the crown the CPS works. They are required to follow the Code for Crown

52
35 Cal. 3d 798, 201 Cal. Rptr. 311, 678 P.2d 886 (1984)

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Prosecutors. They work to ensure equality and inclusion with 14 regional teams that deal with
cases on a local basis and each one is headed by a Chief Crown Prosecutor.

They also work for 3 special division, the international justice and organised crime division,
special crime and counter terrorism division and the fraud division team. They are
responsible for the drawing up of criminal prosecution in the UK as a judicial agency.

One important feature of appointment is that both law and non-law professionals can apply to
be a prosecutor and can practice as a solicitor or barrister irrespective of having a degree or
not. But for person without law degree he must pass the common professional examination”
(CPO) or get a graduate diploma in law.53

PURPOSE

The principles of federal prosecution set forth herein are intended to promote the reasoned
exercise of prosecutorial discretion by attorneys for the government with respect to:

1. Initiating and declining prosecution;

2. Selecting charges;

3. Entering into plea agreements;

4. Opposing offers to plead nolo contendere;

5. Entering into non-prosecution agreements in return for cooperation; and

6. Participating in sentencing.

Under “the federal criminal justice system, the prosecutor has wide latitude in determining
when, whom, how, and evens whether to prosecute for apparent violations of federal criminal
law. The prosecutor's broad discretion in such areas as initiating or foregoing prosecutions,
selecting or recommending specific charges, and terminating prosecutions by accepting guilty
54
pleas has been recognized on numerous occasions by the courts. This discretion exists by
virtue of the prosecutor's status as a member of the Executive Branch, and the President's
responsibility under the Constitution to ensure that the laws of the United States be ‘faithfully

53
Criminal Justice in the United States: A Primer asjournal.org /49-2007/criminal-justice-in-the-united-states/
by James B. Jacobson 17 May 2017
54
See, e.g., United States v. LaBonte, 520 U.S. 751, 762 (1997); Oyler v. Boles, 368 U.S. 448 (1962); United
States v. Fokker Services B.V., 818 F.3d 733, 741 (D.C. Cir. 2016); Newman v. United States, 382 F.2d 479 (D.C.
Cir. 1967); Powell v. Ratzenbach, 359 F.2d 234 (D.C. Cir. 1965).

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executed.’ U.S. Const. Art. II § 3. See Nader v. Saxbe,55 Since federal prosecutors have great
latitude in making crucial decisions concerning enforcement of a nationwide system of
criminal justice, it is desirable, in the interest of the fair and effective administration of
justice, that all federal prosecutors be guided by a general statement of principles that
summarizes appropriate considerations to be weighed, and desirable practices to be followed,
in discharging their prosecutorial responsibilities.

Although these principles deal with the specific situations indicated, they should be read in
the broader context of the basic responsibilities of federal attorneys: making certain that the
general purposes of the criminal law assurance of warranted punishment, deterrence of
further criminal conduct, protection of the public from offenders, and rehabilitation of
offenders are adequately met, while making certain also that the rights of individuals are
scrupulously protected.

IMPLEMENTATION

Each United States Attorney and responsible Assistant Attorney General should establish
internal office procedures to ensure:

1. That prosecutorial decisions are made at an appropriate level of responsibility, and are
made consistent with these principles; and

2. That serious, unjustified departures from the principles set forth herein are followed
by such remedial action, including the imposition of disciplinary sanctions or other
measures, when warranted, as are deemed appropriate.

One purpose of such procedures should be to ensure consistency in the decisions within each
office by regularizing the decision -making process so that decisions are made at the
appropriate level of responsibility. A second purpose, equally important, is to provide
appropriate remedies for serious, unjustified departures from sound prosecutorial principles.
The United States Attorney or Assistant Attorney General may also wish to establish internal
procedures for appropriate review and documentation of decisions.

MODIFICATIONS OR DEPARTURES

55
497 F.2d 676, 679 n. 18 (D.C. Cir. 1974).

38 | P a g e
United States Attorneys may modify or depart from the principles set forth herein as
necessary in the interests of fair and effective law enforcement within the district. Any
modification or departure contemplated as a matter of policy or regular practice must be
approved by the appropriate Assistant Attorney General and the Deputy Attorney General.
Similarly, Assistant Attorneys General overseeing prosecuting components may modify or
depart from the principles set forth herein in the interests of fair and effective law
enforcement, and any modification or departure contemplated by an Assistant Attorney
General as a matter of policy or regular practice must be approved by the Deputy Attorney
General.”

Although these materials are designed to promote consistency in the application of federal
criminal laws, they are not intended to produce rigid uniformity among federal prosecutors in
all areas of the country at the expense of the fair administration of justice. “Different offices
face different conditions and have different requirements. In recognition of these realities,
and in order to maintain the flexibility necessary to respond fairly and effectively to local
conditions, each United States Attorney and Assistant Attorney General overseeing
prosecuting components is authorized to modify or depart from these principles, as necessary
in the interests of fair and effective law enforcement within the district. In situations in which
a significant modification or departure is contemplated as a matter of policy or regular
practice, the appropriate Assistant Attorney General and the Deputy Attorney General must
approve the action before it is adopted.

If the attorney for the government concludes that there is probable cause to believe that a
person has committed a federal offense within his/her jurisdiction, he/she should consider
whether to:

1. Request or conduct further investigation;

2. Commence or recommend prosecution;
3. Decline prosecution and refer the matter for prosecutorial consideration in another
jurisdiction;
4. Decline prosecution and commence or recommend pretrial diversion or other non-
criminal disposition; or
5. Decline prosecution without taking other action.

JM 9-27.200 sets forth the courses of action available to the attorney for the government once

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he/she concludes that there is probable cause to believe that a person has committed a federal
offense within his/her jurisdiction. The probable cause standard is the same standard required
for the issuance of an arrest warrant or a summons upon a complaint (see Fed. R. Crim. P.
4(a)), and for a magistrate's decision to hold a defendant to answer in the district court
(see Fed. R. Crim. P. 5.1(a)), and is the minimal requirement for indictment by a grand
jury. See Branzburg v. Hayes, 408 U.S. 665, 686 (1972).” This is, of course, a threshold
consideration only. Merely because this requirement can be met in a given case does not
automatically warrant prosecution; further investigation may instead be warranted, and the
prosecutor should still take into account all relevant considerations, including those described
in the following provisions, in deciding upon his/her course of action. On the other hand,
failure to meet the minimal requirement of probable cause is an absolute bar to initiating a
federal prosecution and in some circumstances may preclude reference to other prosecuting
authorities or recourse to non-criminal sanctions or other measures as well.

“The system of election of prosecutors must be established in India

 Just like in the U.S.A. Prosecutors in India must be elected for each District of a state,
by the people of the district.
 Elections for all districts in a state can be held just like legislative assembly elections.
 The eligibility of the contesting candidates must be decided by the state government
in consultation with the High Court of the state and only the candidates with
experience of 15-20 years or above must be allowed to contest. Retired judges of the
High Courts and Supreme Court must be eligible as well keeping in mind the
linguistic requirements of a district.
 The candidates should not be allowed to contest on tickets of political parties to avoid
the problems faced by the US system of election of prosecutors.
 To ensure absence of political backing, the candidates must submit an affidavit
declaring their assets and liabilities and any campaign funding must be done through a
transparent system of electoral bonds.
 Malpractices in the election process shall render the candidate ineligible for election.

 The term of District attorney should be made upto 6 years, although this can be
changed according to the time taken for completion trials in different states.

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In some countries the prosecutor takes charge of the investigation once a crime has been
committed. In both the United States and Russia the prosecutor is largely responsible for the
police investigation, in which he must assure that the guaranteed rights of the accused are
protected. In England, most prosecutions are undertaken by the police, on the basis of
complaints made to them; the more serious crimes, such as murder, are prosecuted by a legal
officer of the government.” The English procedure does not centralize all prosecutions for
crime in a public official or department and thus differs from the system employed in
Scotland and continental European countries, as well as from the American system. In some
countries the prosecutor takes charge of the investigation once a crime has been committed.

COMPARATIVE OF PROSECUTION BETWEEN INDIA AND USA

It appears therefore that the test the U.S. Supreme Court would adopt in determining the
question of violation of due process clause in these situations would be whether or not there
is absence of fundamental fairness essential to the very concept of justice". This peculiar
federal concept prevailing in the U.S.A, would often come in the way of the Supreme Court
overturning a State prosecution. In India, on the other hand, the strict rule is that the accused
must be afforded opportunity to consult his lawyer if he so demands from the moment of his
arrest, that is, during interrogation as well as during trial, and any denial of such opportunity
would be treated as violation of one's fundamental right to counsel guaranteed in Art. 22. So
far as is known, there is no decided case in India where a confession extracted by the police
during investigation without providing the accused an opportunity to consult his counsel has
been regarded as admissible evidence and made the basis of the conviction of the accused. In
fact the provisions of the Indian Evidence Act 89 exclude any confession made before a
police officer whether with the assistance of a counsel or not from being admitted in the trial
or relied upon for the purposes of conviction of the accused”

The right to be produced before a Magistrate Due process of la under the American
Constitution does not make it obligatory on the arresting officer to produce the arrested per
son before a judicial officer for arraignment within a certain specified period after arrest.
Perhaps, because of the availability of certain statutory procedural safeguards there was no
necessity felt to invoke the due process clause for such purpose. For federal prosecutions, rule
5a) of the Federal Rules of Criminal Procedure provides:

“Any officer making an arrest under complaint or any person making an arrest take the
arrested person without an unnecessary delay take or send the person arrest before the nearest
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available Commissioner or before empowered to commit persons charged laws of the United
States. Most of the states in the United States too have similar enactments. In India, for all
federal and state prosecutions, sections 60 and 61 of the Code of Criminal Procedure, 1 898,
provide as below

Most of the states in the United States too have similar enactments. In India, for all federal
and state prosecutions, sections 60 and 61 of the Code of Criminal Procedure, 1 898, provide
as below:

Sec. 60 - A police officer making an arrest without warrant shall without unnecessary delay
take or sent the person arrested before a magistrate having jurisdiction in the officer in charge
of the police station.

Sec. 61 - No police officer shall detain i arrested without warrant for a longer period
circumstances of the case is reasonable, and in the absence of a special order of a magistrate
extend twenty-four hours

These provisions of the Criminal Procedure code lacked the special sanctity which the
constitutional provisions have and were not deemed as satisfactory by the Indian statesmen.
The Constitution makers therefore, provided in Article 22(2) 90 a rigid rule of arraignment of
all arrested persons within 24 hours of the arrest”

FEDERAL PROSECUTION CASES IN THE U.S.A

Under “the United States Constitution even though no rigid time limit has been provided
either by the due process clause or by the statutory law, in federal prosecutions, the arrested
person is required by rule 5(a) of the Federal Rules of Criminal Procedure noted above to be
produced before a magistrate or a judicial officer without unnecessary delay and this
requirement has been given strict enforcement by the U.S. Supreme Court Thus, in Upshaw
v. U.S, where a person was arrested on suspicion and held for 30 hours during which time his
confession was obtained, it was held by the Supreme Court that the arrest was illegal and
hence the confession inadmissible. In the recent case of Mallory v. US. similarly, where a
negro boy of 19 years age was arrested for suspected rape at about 2 p.m, in the afternoon and
had confessed by 10 p.m. the same day and the next morning produced before the
Commissioner, the Supreme Court held that the arraignment was not without unnecessary

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delay. The Supreme Court observed: The circumstances of this case preclude a holding that
arraignment was without unnecessary delay. Petitioner was arrested in the early afternoon
and was detained at headquarters within the vicinity of numerous committing magistrates.
Even though the police had ample evidence from other sources. They first questioned him
(petitioner) for approximately a half hour. When this enquiry of 19 years old lad of limited
intelligence produced no confession the police asked him to submit to a lie-detector test. He
was not told of his rights to counsel or to a preliminary: examination before a magistrate, nor
was he warmed that he might keep silent and hat any statement made by him may be used
against him. After four hours of further detention at headquarters, during which arraignment
could easily have been made in the same building in which the police headquarters were
housed, petitioner was examined by the lie-detector operator for another hour and a half
before his story began to waver.” Not until he had confessed, when any judicial caution had
lost its purpose, did the police arraign him.56

In the Mallory case thus where the detention before arraignment was for a short duration,
being even less than 24 hours, the U.S. Supreme Court held the arrest illegal and any
confession made during this period as inadmissible.

RECOMMENDATIONS

Independence, both from the police and the government, is essential for the efficient
discharge of the prosecutor's functions. This calls for the creation of a strong DoP in every
state that is both operationally and financially independent. Some of the ways to do this are
by statutorily providing for a transparent appointment process for the head of the DoP, a fixed
term of service and clear process of removal for cause. The functions of the DoP should also
be clearly articulated in the law to cover the appointment, evaluation and training of PPs and
allocation of work to them. In addition, improvements of remuneration and working
conditions are required so as to improve the talent pool. There is a pressing need for better
coordination between the investigation and prosecution wings. The DOPs can manage this
interface with the police through a formal coordination mechanism that will enable the police
to seek legal advice from the prosecution prior to the framing of charges even though they are

56
318 U.S. 332 [1942]

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not statutorily bound to do so. The prosecution will also benefit from police assistance in the
production of witnesses and evidence before the court. The goal should be to strike a fine
balance between the independence and interdependence of the two agencies.

Indian Adversarial Model should adopt the compatible and suitable aspects from the
Inquisitorial Model in Indian Criminal Justice Model:

The fundamental principle of the Adversarial Model of Justice is fair trial. However, it is
witnessed that under the flag of fair trials the accused are getting undue advantages.
Considering the recent trend of crime graph going upwards and increasing acquittals there is
an urgent need to modify the modus operendi of handling crimes and modifying criminal
justice pattern in India. The heavy burden of proof demanded by our legal system is one of
the biggest barriers in the path of Indian Prosecutors. Due to this unreasonable burden, the
Prosecutors are unable to succeed in their case. All the time Defence Counsels try to turn the
prosecution witnesses hostile, in order to create reasonable doubt in the minds of the courts.
Naturally, the benefit of doubt is given to the accused. In addition to this the accused are
presumed to be innocent till proved guilty. In most of the cases, prima facie evidence does
show the guilt of accused. Yet they are proved to be considerably clean. Though the
fundamental principles of the Indian Criminal Justice System are based on these
presumptions, considering the current scenario in India, these principles under Adversarial
Mode are fatal. The inquisitorial model has certain ideal principles like 'average burden of
proof', involvement of the Judges in the investigation, police and Prosecutors coordination at
pre-trial stage. If Indian Criminal Justice adopts those principles, then the Prosecutors will be
successful in their work and criminals would be booked. Law is an instrument of social
change, researcher recommends that Indian legal system should adopt the French principle of
(1) average burden of proof (2) involvement of Judges and also Prosecutors in investigation
(3) accused's right to silence be withdrawn. The above TRIO would make the Indian Law an
effective instrument of social change.

The role of Prosecutors in India should be clearly defined, protected and nourished
by the Government for their better future in the administration of justice:

Prosecutors, are the representatives of the State in the courts of law. If the Prosecutors are not
treated properly at the right time, the image and caliber of the country will be in danger. To
prevent the commission of the crimes through deterrence by the effective Prosecutors, the
Prosecutors institution must be protected from degradation. If the criminals are not deterred at

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the right time at the right place with right direction, they may indulge into criminal acts.
Hence the State should note the contribution of the Prosecutors in crime control and take the
needful steps for their better role. Though Indian Judiciary has prescribed various guidelines
regarding rights and duties of the Prosecutors in the light of various facts and circumstances
India faces, those guidelines are not enough to strengthen Prosecutors to represent it in courts.
The State allows Prosecutor and that representation should be given strong legal support. If
we expect the Prosecutors to be efficient, then comprehensive and strong laws should be
passed to avoid ambiguity. French Criminal Procedure Code (CCP) 1958 is a comprehensive
and clear federal legislation for the Prosecutors. For each class of Prosecutors, a specific part
of the section must be given and the powers and prerogatives must be given in a clear
manner. The Communication of the laws, rules, regulations, policies, schemes, international
treaties to the Prosecutors in India is not clear. Most of the Prosecutors who are working in
rural and remote areas do not acquaint themselves with the laws and regulations. Under the
Indian Evidence Act, 1872, there is an excessive burden on the Prosecutors for proof which
needs to be reduced so that the Prosecutors can work effectively and criminals are not let off

CONCLUSION

In “the final analysis, a public prosecutor is an officer of the court and is required to render
assistance to the court to arrive at a just and equitable decision. He is also required to be fair
to the opposite party. His guiding principle should be not so much the letter of law, but the
spirit of law based on prudence, common sense and equity. A society which is governed by
the letter of law does not fully exploit its human potentialities. I conclude by quoting from
Russian Nobel laureate Solzhenitsyn, A society which is based upon the letter of law, and
never reaches any higher is taking very scarce advantage of high level of human possibilities.
The letter of the law is too cold to have any beneficial influences on society. Whenever the
issue of life is woven in legalist relations, there is an atmosphere of moral mediocrity,
paralysing man’s noblest impulses.57

Law should not sit limply, while those who defy it go free and those who seek its protection
lose hope. (Jennison v. Baker (1972) 1 All ER 997). Personal security of citizens and
prevention of crime is one of the foremost duties of a nation state and India is failing at it
badly. Every year we as a nation drop down in rankings of so many indices about the world’s
countries regarding matters of safety of women, enforcing speedy trials, police corruption,
57
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by James B. Jacobson 17 May 2017

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custodial tortures etc. More than seventy years have passed since independence and our
country still struggles in providing one of the most basic human rights. Although the failings
of the country in this aspect cannot be pinned on the prosecutors alone, regardless of that it is
the most important part of the structure of criminal administration and the first change should
begin with reforming the system of prosecution.

Separation of powers of the legislature, executive and judiciary is the fundamental principle
of Indian constitution. Even though the police and the prosecutors belong to different
categories but due to their importance in criminal justice they need to work in tandem and
directing them to compartmentalize is wishful thinking. The Supreme Court itself recently
discussed the feasibility of creating an independent and separate cadre of Judicial Magistrates
for monitoring evidence collection during criminal investigation, which only indicates that it
recognizes the failings of the current system and there is a need for judicial guidance in the
matters of the investigation by the police.” The purpose will be better served by the
prosecutor than a magistrate whose requirements lie on the bench and not on the field.

BIBLIOGRAPHY

 S Govind Swaminathan, (Advocate General, Madras), ‘Investigation and Prosecution

in Criminal Cases’, Indian Journal of Criminology, 1973, Vol 5
 Public Prosecution System in India: An institution in need of Reform , Strengthening
the Criminal Justice System ( From the ADB Regional Workshop in Dhaka ,
Bangladesh, 30-31 May2012) Asian Development Bank
 The Law Lexicon, 2nd Edition, (2006) p.no.1562
 Blacks Law Dictionary, III rd Pocket Edition, (May 2006) Thomson West publication,
p. no.576

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  Dr. N. R. Madhav Menon, Criminal Justice India Series, Vol. 4 Allied publication p.
no.89 http://prosecution.askdefine.com
 Gurpuneet Singh Randhawa & Dr. D.J. Singh, Analysis of Challenges Faced by
Indian Prosecution System, International Journal of Research in Humanities and
Social Studies Volume 3, Issue 5, May 2016, PP 1-9
 Unit IV: Judiciary: Constitutional, Civil and Criminal Courts and Processes, Legal
Studies, NCERT.
 The Role and Functions of Prosecution in Criminal Justice, Madan Lal Sharma,
107th International Training Course: Participants Paper, Resource Material Series
No.53, Pg (187)
 14th Law Commission Report on Reform of Judicial Administration, Vol.2, 1958
 Strengthening the Prosecution System, N.R.Madhava Menon, The Hindu, July 17,
2008
 Criminal Justice in the United States: A Primer asjournal.org /49-2007/criminal-
justice-in-the-united-states/by James B. Jacobson 17 May 2017

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48 | P a g e