judgments on public prosecutors
In Thakur Ram vs. State of Bihar AIR 1996 SC 911, the Hon’ble Apex Court held: “Barring a few exceptions, in criminal matters the party who is treated as aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all steps necessary for bringing the person who has acted against the social interests of the community to book” The rationale behind the State undertaking prosecutions appears to be that no private person uses the legal apparatus to wreak private vengeance on anyone.
In Vineet Narain vs Union of India, when the court focused that the CBI failed to investigate properly offence involving high political dignitaries. The Hon’ble Court emphased the need to ensure that ‘’ there are no arbitrary restrictions to the initiation of Investigations or launching of prosecutions’’.
In Jitendra Kumar@ Ajju vs. State (NCT of Delhi) Crl. W.P. 216/99, Delhi High Court, it was observed that In the Criminal Justice System this role is performed by the Public Prosecutor on behalf of the State. The Public Prosecutor has been described as a Minister of Justice who plays a critical role in maintaining purity and impartiality in the field of administration of criminal justice.
In The Malimath Committee Report (2003), it is acknowledged that there is a crisis in the Indian Criminal Justice System. But its analysis of the crisis is disturbing. Rather than focusing on key issues that plague the Criminal Justice System, the Committee recommended changes that amounted to a complete departure from jurisprudential norms.
In R K Jain v. State (AIR 1980 SC 1510), the Supreme Court sketched out the contours of the public prosecutor¡¦s power for withdrawal of cases. In Shonandan Paswan v. State of Bihar [(1987) 1 SCC 288] and in Mohd. Mumtaz v. Nandini Satpathy [1987 Cri. L.J. 778 (SC)], the Supreme Court ruled that the public prosecutor can withdraw a prosecution at any stage and that the only limitation is the requirement of the consent of the court.
The Punjab & Haryana High Court in Krishan Singh Kundu v. State of Haryana [1989 Cri. LJ 1309 (P&H)] has ruled that the very idea of appointing a police officer to be in charge of a prosecution agency is abhorrent to the letter and spirit of sections 24 and 25 of the Code. In the same vein the ruling from the Supreme Court in SB Sahana v. State of Maharashtra [(1995) SCC (Cri) 787] found that irrespective of the executive or judicial nature of the office of the public prosecutor, it is certain that one expects impartiality and fairness from it in criminal prosecution. The Supreme Court in Mukul Dalal v. Union of India (1988 3 SCC 144) also categorically ruled that the office of the public prosecutor is a public one and the primacy given to the public prosecutor under the scheme of the court has a social purpose. But the malpractice of some public prosecutors has eroded this value and purpose.
The commission of a criminal act is commonly regarded as an offence against the State which to be dealt with by the Criminal Justice machinery of the State Executive. Therefore, on thorough considerations of the above material, it is crystal clear that it is not the duty of Public Prosecutors to quest conviction at all cost. Nor, is their duty to act as an avenging angle for the victim. On the contrary, their fundamental duty is to ensure that justice is delivered and in pursuance of this they should lay before the court all relevant evidence including the evidence that favours the accused. Corollary to this is the duty of a Public Prosecutor to bring to attention of the Court, any issue that the defense could have raised, but has failed to do. But, in doing so, they cannot act as if they are defending the victim, nor can they appear on behalf of the accused. When the Prosecutor acts in a manner as if she/he was defending the accused, then there is no fair trial. A Public Prosecutor is an independent entity from police and police cannot order her/him to conduct prosecution in a particular way. Police, politicians or any other extraneous party cannot influence her/his actions, including her/his discretion to decide withdrawal of a case. The Public Prosecutor represents the State but not the police and can only be influenced by public interest. In pursuance of their duties, public prosecutors should not use improper methods calculated to produce wrongful convictions and she/he must discharge her/his functions in a scrupulously fair and honest way. A fortiori, a Public Prosecutor has the responsibility of a minister of justice and not simply that of an advocate.
Important Judgments to know about the functions of Prosecutors:
– R. v. Boucher, (1954) 110 CCC 263 (SCC)
– R. v. Boucher, (1954) 110 CCC 263 at p. 270.
– R. v. Puddick, (1865) 176 ER 622 at p. 663. See R. v. Thomas (No. 2), (1974) 1 NZLR 658 (CA)
– R. v. Roulston, (1976) 2 NZLR 644 at p. 654.
– R. v. Henderson, (1999) 44 OR (3d) 628 (CA); R. v. Arthur F., (1996) 30 OR (3d) 470; R. v. Vandenberghe, (1995) 96 CCC (3d) 371 (CA); R. v. Stinchcombe, (1992) 68 CCC (3d) 1 (SCC)
– R. v. F.S., (2000) 47 OR (3d) 349 (Ont. CA); R. v. Chambers, (1990) 59 CCC (3d) 321 (SCC); R. v. McDonald, (1958) 120 CCC 209.
– R. v. Regan, (2002) 1 SCR 297 (SCC);
– Per Anantanarayanan, C.J., in A. Mohambaram v. M.A. Jayavelu, 1970 Cri LJ 241 at p. 245
– Kashinath Dinka, (1871) 8 BHC (Cr C) 126, 153
– Anant Wasudeo Chandekar v. King-Emperor, AIR 1924 Nag 243 at p. 245
– Ghirrao v. Emperor, (1933) 34 Cri LJ 1009 (Oudh Chief Court)
– Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, (2003) 7 SCC 749 : 2003 SCC (Cri) 1918, at para 35
– Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602, at para 23
– Ram Ranjan Ray v. Emperor, (1915) 42 Cal 422 at p. 428; Jai Pal Singh Naresh v. State of U.P., 1976 Cri LJ 32 (All);
– Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087- 1976 Cri LJ 32 (All)
– Kunja Subudhi v. Emperor, (1929) 30 Cri LJ 675
– Medichetty Ramakistiah v. State of A.P., AIR 1959 AP 659
– Sunil Kumar Pal v. Phota Sk., (1984) 4 SCC 533 : 1985 SCC (Cri) 18
– Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999
– Balwant Singh v. State of Bihar, (1977) 4 SCC 448 : 1977 SCC (Cri) 633, at para 2
– Shiv Kumar v. Hukam Chand, (1999) 7 SCC 467 : 1999 SCC (Cri) 1277
– To know more please visit www.ebc-india.com/practicallawyer
– Sunil Kumar Pal v. Phota Sheikh [(1984) 4 SCC 533
-State of Tamil Nadu v. Ganesan, 1995 Cri. L.J 3849 (Mad) at 3851
-Babu v. State of Kerala (1984) Cri. LJ 499 (Ker) at 502
– R.Sorala vs T.S.Velu