107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

THE ROLE AND FUNCTION OF PROSECUTION IN
CRIMINAL JUSTICE
Madan Lal Sharma*
I. INTRODUCTION
India is a Union of States and isgoverned by a written constitution whichcame into force on 26 November 1949.
India consists of 25 states and 7 Union
Territories. Due to its colonial heritage,
India follows the Anglo-Saxon common law
justice system. Article 246 of theConstitution provides for three lists which
are enumerated in 7th Schedule of theConstitution. List-1 is the Union List
which enumerates the subjects on which
the Parliament of India has exclusive
power to make the laws. List-2 is the State
List which enumerates the subjects on
which the legislature of a state has thepower to make laws. The third list is theConcurrent List which enumerates
subjects on which both the IndianParliament and the Legislatures of thestate can enact laws, but if there is any
conflict or inconsistency between the laws
made by the Indian Parliament and thelegislature of any state, the law enacted
by the Union Parliament will have overriding effect. Importantly, the “Public
Order” and the “Police” are enumerated in
Entries 1 and 2 respectively of the State
List, meaning thereby that all mattersrelating to the organisation, structure andregulation of the police force fall within theambit of the states. However, the ‘Criminal
Laws’and the ‘Criminal Procedure’ areenumerated in List-3, i.e., the Concurrent
List. Both the Indian Parliament and statelegislatures have the powers to makesubstantive and procedural laws in* Joint Director, Central Bureau of Investigation,
India.

criminal matters. The states can also enact
laws on local and special subjects. Thus,
under the constitutional scheme, the basic
criminal laws, i.e., the Indian Penal Code,the Code of Criminal Procedure and theIndian Evidence Act have been enacted by
the Indian Parliament. The Indian Police
Act has also been enacted by the IndianParliament. The states have also enacted
laws on several local and special subjects.
Some states in India have also enacted
their own Police Acts. The Indian Police
Act, 1861, however, is the basic statutory
law governing the constitution andorganisation of police forces in the states.
Article 14 of the Constitution provides
for equality before law. Article 21
guarantees protection of life and personal
liberty. Article 20 provides protection
against double jeopardy. No person can beprosecuted and punished for the sameoffence more than once. Article 39-A
mandates the states to secure equal justicefor all. It also provides for free legal aid inrespect of indigent persons. Article 50 isimportant as it provides for the separationof the judiciary from the executive in the
public services of states.
II. DISTRICT—THE BASIC UNIT OFADMINISTRATION
In each state, there are a number of
districts. The District is governed by atriumvirate consisting of the District
Magistrate, the District Superintendent of
Police and the District and Sessions Judge.
The District Magistrate is the chief
executive officer of the district and hebelongs to the Administrative Service. The
police in the district functions under his
general direction and control. The District
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RESOURCE MATERIAL SERIES No. 53
Superintendent of Police is the head of thepolice force in a district. He is responsible
for the prevention and detection of crime
and the maintenance of law and order,
subject to such directions as may be issued
by the District Magistrate. In practicalterms, the District Magistrate has no rolein criminal investigations. The District andSessions Judge is the head of the judiciaryin a district. He belongs to the higher state
judicial service. The entire magistracy inthe district functions under his control andsupervision.
III. CRIMINAL JUSTICE SYSTEM
The criminal justice system has four
important components in India, namely,
the Investigating Agency (Police), theJudiciary, the Prosecution Wing and thePrison 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 theprocedure 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 hasconstituted a central investigating agency
called the Central Bureau of Investigation(CBI) under the special enactment called
the Delhi Special Police Establishment Act,
1946. It has concurrent jurisdiction in thematters of investigation in the Union
Territories. It can take up the investigationof cases falling within the jurisdiction of
the states only with the prior consent of
the state governments concerned. Thereare certain other specialised investigating
agencies constituted by the central
government, in various departments,
namely, the Customs Department, theIncome Tax Department, the Enforcement
186

Directorate, etc. They investigate cases
falling within their jurisdictions andprosecute them in the courts of law.
Thus, India has both the state police
investigating agencies and a central
investigating agencies as mentioned above.
CBI, however, is the primary investigating
agency of the central government.
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 thebottom 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 morethan 7 years. In fact, the Code specificallyenumerates 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, apartfrom having writ jurisdiction. It is also a
court of record. The law laid down by theHigh Court is binding on all the courts
subordinate to it in a state.
At the apex, there is the Supreme Courtof India. It is the highest court in the
country. All appeals against the orders ofthe High Courts in criminal, civil and othermatters come to the Supreme Court. This
Court, however, is selective in its approachin taking up cases. The law laid down by
the Supreme Court is binding on all the
courts in the country.
C. Prosecution Wing
It is the duty of the state to prosecutecases in the courts of law. The state
governments have constituted cadres of107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
public prosecutors to prosecute cases atvarious levels in the subordinate courts andthe High Court. I will revert to the subject
later when I discuss the structure andfunctioning of the prosecution wings in thestates and the central governments.
D. Prisons and Correctional
Services
This is the fourth important element in
the criminal justice system. The prisonsin India are under the control of the state
governments and so are the correctional
services.
IV. CONSTITUTION AND
STRUCTURE OF PROSECUTION
WING
As stated above, the police is a state
subject in our constitutional scheme. The
primary investigative unit is the police
station in India. After due investigation,
charge-sheets are filed in the courts
concerned as per the provisions of the Code.
The cases are prosecuted by the publicprosecutors appointed by the state
governments.
Prior to the enactment of the Criminal
Procedure Code of 1973, public prosecutors
were attached to the police department andthey were responsible to the District
Superintendent of Police. However, after
the new Code of Criminal Procedure cameinto force in 1973, the prosecution wing has
been totally detached from the police
department. The prosecution wing in astate is now headed by an officer designatedas the Director of Prosecutions. In some ofthe states, he is a senior police officer andin others, he is a judicial officer of the rankof 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 levelsof public prosecutors, i.e., the AssistantPublic Prosecutor, Grade-I and theAssistant 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 areprosecuted by Public Prosecutors. The
District Magistrate prepares a panel ofsuitable lawyers in consultation with theSessions Judge to be appointed as publicprosecutors. The state government
appoints public prosecutors out of the panel
prepared by the District Magistrate andthe Sessions Judge. It is important tomention that public prosecutors who
prosecute cases in the Sessions Courts do
not fall under the jurisdiction and controlof 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 aconstitutional authority. He is appointed
by the governor of a state under Article 165.
He has the authority to address any courtin the state.
Under section 24 of the Cr.P.C., thecentral 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 ofcases in any district or local area. The mostsenior law officer of the Government ofIndia 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 astate government on the basis of acompetitive examination conducted by theState Public Service Commission. They arelaw 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

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RESOURCE MATERIAL SERIES No. 53
to Assistant Public Prosecutors, Grade-I,
and generally appear in the Courts of Chief
Judicial Magistrates. On further
promotion, they become Assistant Directorsof Prosecution and can go up to the level of
Additional Director of Prosecution. They,
however, do not appear in the Sessions
Court.
As mentioned above, the District
Magistrate in consultation with theSessions Judge prepares a panel of lawyers
with a minimum of 7 years of experience
to be appointed as public prosecutors. They
are so appointed by the state government.
They plead the cases on behalf of the state
government in the Sessions Courts. They
have tenure appointments and are notpermanent employees of the state
government. They are paid an honorarium(not salary) by the state government.
There is now a move to integrate theaforesaid two cadres of public prosecutors
with the object to improving the promotion
prospects of law officers who join at thelowest level, i.e., Assistant Public
Prosecutor, Grade-II. The idea is topromote the Assistant Public Prosecutors,
Grade-I to Additional Public Prosecutor or
Public Prosecutor, as the case may be, toplead cases in the Sessions Court. If it
comes about, this will obliterate the needfor appointing lawyers from the open
market as public prosecutors to plead casesin the Sessions Courts.
V. PROSECUTION BY CBIThe Central Bureau of Investigation has
a Legal Division which plays an advisoryand prosecutory role in the organisation.
It is headed by a Legal Advisor, who is a
deputationist from the Ministry of Law of
the central government. This arrangement
ensures objectivity of his office. He is
assisted by a number of Law officers whoare permanent employees of the CBI,
namely, Additional Legal Advisor, Deputy
Legal Advisors, Senior Public Prosecutors,

188

Public Prosecutors, Assistant Public
Prosecutors, etc. These are indicated indescending order of seniority and rank.
These officers render legal advice to theinvestigating officers during the course ofinvestigations as to the viability of
proposed prosecutions. Their advice istaken seriously, but they can be over-ruledby the executive CBI officers. Multiple andhierarchical systems of legal advice
prevails in the CBI. Legal advice is taken
at least at three levels before deciding thefate of a case. After a decision has beentaken to prosecute a case, the law officers
conduct the prosecution of cases in the
courts. The level of a law officer toprosecute a case is directly related to thelevel of the court, i.e., the higher the court,
the higher the rank of a law officer toprosecute it.
Besides, the CBI also engages Special
Public Prosecutors from the bar on a daily
fee basis in important and sensational
cases.
VI. CRIME SCENARIO IN INDIA
In order to analyse the role of publicprosecution, it is essential to have someidea about the crime situation prevailingin India. Table 1 gives the total crimes
registered under the Indian Penal Code in
India (hereinafter IPC) and the share ofviolent crimes there.
Table 1 shows that the IPC increased by
168.3 per cent in 1991 compared to 1961.
The percentage increase during the decade
1981 to 1991 was 21.1 per cent. The crime
increased by 4.7 per cent in 1995 compared
to 1994.
Apart from crimes under the IPC thepolice also registers cases under the local
and special laws (to be called SLL
hereinafter). It would be expedient to havea look at the volume of crimes under the
IPC and the SLL as also the rate of crimes(rate of crime is defined as crime per 1.00
lac of population).

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Table 1
Year
1953
1961
1971
1981
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995

Total Cognizable
Crimes (IPC)
601,964
625,651
952,581
1,385,757
1,405,835
1,406,992
1,440,356
1,529,844
1,604,449
1,678,375
1,689,341
1,629,936
1,635,251
1,695,696

Violent Crimes
Incidence% Total49,5788.2
55,726
8.9
124,380
13.1
193,224
13.9
182,11913.0
179,78612.8
203,58914.1
217,31114.2
234,33814.6
246,25214.7
251,952
14.9
232,55414.3
235,228
14.4
NA
NA
Table 2

Incidence

Rate

Year
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995

IPC
1,358,660
1,384,731
1,405,835
1,406,992
1,440,356
1,529,844
1,604,449
1,678,375
1,689,341
1,629,936
1,635,251
1,642,599

SLL
2,916,808
3,096,481
2,984,654
3,589,236
3,765,669
3,847,665
3,293,563
3,370,971
3,558,448
3,803,638
3,876,994
3,457,189

Total
4,275,468
4,481,212
4,390,489
4,996,318
5,206,025
5,377,509
4,898,012
5,049,346
5,247,789
5,433,574
5,512,245
5,699,788

Table 2 gives figures about the incidenceof crime under the IPC and SLL, the rateof crime under IPC and SLL, total rate ofcrime and percentage of IPC crime vis-àvis, total crimes.
From Table 2, the following trends
clearly emerge:(1) There is an increase in the total
volume of crime over the years—both

IPC
184.7
184.4
183.5
180.1
180.8
188.5
194.0
197.5
194.7
184.4
181.7
179.3

SLL
396.5
412.4
389.6
459.3
472.7
474.0
398.3
396.8
410.1
430.4
430.8
377.4

Total
581.2
596.8
573.1
639.4
653.5
662.4
592.3
594.3
604.8
614.8
612.5
556.7

% of IPC Crimes
Cognizable
Crimes
31.8
30.9
32.0
28.2
27.7
28.4
32.8
33.2
32.2
30.0
29.7
32.2

under the IPC as well as under the
SLL. IPC crime in 1995 shows anincrease of 18.6 per cent compared to1985. The crime registered under
SLL also shows an increase of 11.6
per cent in the aforesaid period.
(2) However, the crime rate for IPC
offences shows a slightly declining
trend in 1994 and 1995 compared to189

RESOURCE MATERIAL SERIES No. 53
1990-91. The downward trend in thecrime rate under the SLL is more
pronounced, i.e., 8.5 per cent in 1995
compared to 1985.
3) The IPC crime constitutes about onethird of the total cognizable crimes
registered in India.
VII. DISPOSAL OF IPC CRIMECASES BY POLICE
Table 3 shows the disposal of IPC crime
cases by the police.
The percentage of cases finalised frominvestigation, on average, is about 80 per
cent per year. In other words, only 20 per
cent of the cases registered by the police ina particular year remain unfinalized withinthat calender year. Happily, the percentage
of cases in which charge-sheets are filed isgoing up steadily. This is a positive
development showing lesser false
registrations and higher police disposal.

VIII. DISPOSAL OF CRIMES BY
THE COURTS
The charge-sheets filed by the police are,in fact, inputs for the trial courts. Efficacyof the criminal justice system hinges on theprompt completion of trials and higher
conviction rates. The opposite of it would
be symptomatic of the systemic failure.
Table 4 shows disposal of cases by courts
and conviction percentage recorded over
the years.
Table 4 shows that the percentage oftrials completed is going down steadily.
While about 30 per cent trials werecompleted in 1961 and 1971, thepercentage came down to 23.9 per cent in
1981 and to 16.8 per cent in 1991. This
percentage has further come down to only
15.5 per cent in 1994.
The conviction rate is also steadily
falling over the years. It was 64.8 per centin 1961, but came down to only 47.8 perTable 3
Total No. of cases for Inv.
Year (including cases fromprevious year)
1961
696,155
1971
1,138,588
1981
1,692,060
1991
2,075,718
1993
2,090,508
1994
2,077,631

No. of Cases
Investigated586,279
894,354
1,335,994
1,649,487
1,637,712
1,612,245

No. of Cases% of Cases % of Cases
Charge-sheeted Investigated Chargesheeted
285,059
84.2
53.6
428,38278.5
52.8
740,88179.0
61.3
1,091,579
79.5
71.3
1,106,435
78.3
72.5
1,109,030
77.6
74.1

Table 4
Year
1961
1971
1981
1991
1993
1994

190

Total No. of Cases for Trial(including pending cases)
800,784
943,394
2,111,791
3,964,610
4,504,396
4,759,521

No. of Cases
Percentage
Trial
Convicted Trial Completed Conviction
242,592
157,31830.3
64.8
301,869
187,07232.0
62.0
505,412265,53123.9
52.5
667,340
319,15716.8
47.8
752,852
345,81216.7
45.9
736,797
316,245
15.5
42.9

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
cent in 1991. The conviction percentage
has further come down to 42.9 per cent in
1994. It may be clarified that the aforesaid
conviction rate is for both IPC and SLL
crimes. If we exclusively take into accountthe IPC crimes, the conviction rate is still
lower.
In 1994, only 16.02 per cent of murdercases were disposed of from trial and theconviction rate was 38 per cent.
As regards cases relating to attempts tomurder, 15.75 per cent of cases were
disposed of in 1994, the conviction rate
being 38.8 per cent. Of under-trial rapecases, 17.75 per cent were disposed of in1994, the conviction percentage being 30.42
per cent.
The above shows that, generally
speaking, only one-sixth of the total undertrial cases were disposed of in 1994 andabout one-third of heinous crimes resulted
in conviction. This, however, does not take
into account subsequent acquittals in theappellate courts.
IX. EFFICACY OF THE CRIMINALJUSTICE SYSTEM
The courts are constituted by the state
government under the Code and cases areprosecuted by public prosecutors appointed
by the state government or the central
government as the case may be. Even
though the National Crime Records Bureau
has been collecting data about the disposalof cases by the courts, the statistics do notseem to be authentic. It has been aptly
remarked by a wisecrack that the place ofa nation on the civilizational scale is to be
determined by the manner in which its
criminal laws are enforced. Since all theelements of the public justice system areinter-dependent, even the strictest
enforcement of law by the police agency will
not deliver the goods unless it is supportedby the judicial system by way of prompt
disposals. The role of the public prosecutor
and his performance is also to be judged

by his ability to assist the court in thisregard.
It is in this context that we are going tohave a look at the overall pendency of casesin the country. According to an estimate,
there are 21.8 million cases pending in thesubordinate courts. About 3.1 million cases
are pending in the High Courts. The
Supreme Court has a pendency of 22,000
cases only. There are about 11,000 courts
working in the country.
The number of pending trial cases underthe IPC was 52.8 lacs in 1995 which
increased to 56.2 lacs in 1996. Of these,
21.6 per cent have been pending for morethan 8 years. The number of cases pending
trial for more than 8 years increased from
10.7 lacs in 1995 to 12.11 lacs in 1996,
showing an increase of 13.3 per cent.
Table 5 shows the states’ accounting for
major pendency.
Table 5
State
1995
1996
Maharashitra
1,184,187 1,424,867
U.P.
1,375,588 1,008,558
Gujarat473,694 619,473
Madhya Pradesh
360,664 497,728
Rajasthan
287,337 368,999
Bihar
231,799 301,360
Pune
74,302 271,318
Orissa218,954 210,318
Andhra Pradesh
179,635 165,412
Haryana
117,582 132,346
Kanpur111,594 116,775
Kerala121,972 114,007
Karnataka
96,646 111,023
Delhi
117,949 110,086
Tamil Nadu
94,273 103,037
Mumbai
84,741
94,890Assam
72,30072,300The pendency of trial cases during thedecade 1985-1995 has piled up more thandouble with a growth rate of 10.6 per centper annum.

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RESOURCE MATERIAL SERIES No. 53
Apart from the IPC cases mentioned
above, 69.01 lac SLL cases were awaiting
disposal by criminal courts in the country
at the beginning of 1995. The disposal
percentage in 1995 was 52.2 per cent. As
against this, the percentage of disposal of
IPC cases was only 18.2 per cent. This islargely explained by the fact that the SLL
cases pertain to violations of minor acts likethe Gambling Act, the Prohibition Act, andthe Motor Vehicle Act and there are tried
summarily, resulting in quicker disposals.
As mentioned earlier, the Directorate ofProsecutions in some states is under thecontrol of the Home Department, while inothers is under the control of the Law
Department. The following section
examines which of the two systems is
working more efficiently.
A. Prosecution System under theControl of the Home Department
In the states of Tamil Nadu, Madhya
Pradesh, Uttar Pradesh, Andhra Pradesh,
Delhi, Maharashtra, Jammu and Kashmir,
Bihar, and Kerala, the prosecution wing isunder the Home Department. The
conviction percentage in these states for thelast seven years ranges from 67.8 per centin Tamil Nadu to 17.7 per cent in Kerala.
The average percentage of conviction for 7
years is given in Table 6.
Table 6
Average Percentage ofConvictions of 7 years
Tamil Nadu
67.8
Madhya Pradesh
64.5
Uttar Pradesh
54.0
Andhra Pradesh
51.6
Delhi
47.6
Maharashtra
39.4
Jammu & Kashmir
37.4
Bihar
36.7
Kerala
17.7
State

192

B. Prosecution System under the
Department of Law
In certain other states, the average
percentage of conviction for seven years,
again, ranges from 76.4 per cent in
Meghalaya to 21.9 per cent in Himachal
Pradesh. This is shown in Table 7.
Table 7
Average Percentage ofConviction of 7 years
Meghayala
76.4
Pondicherry
72.2
Sikkim67.2
Chandigarh
65.5
Haryana61.2
Gujarat
61.0
Manipur
47.6
Goa
44.4
Karnatka
31.9
Himachal Pradesh
21.9
State

Thus, no clear picture emerges as towhich of the two systems is working more
efficiently.
X. THE DUTIES AND FUNCTIONS
OF A PUBLIC PROSECUTOR
Public prosecution is an importantcomponent of the public justice system.
Prosecution of an offender is the duty ofthe executive which is carried out throughthe institution of the Public Prosecutor.
The public prosecutor is appointed by theState, 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 concernedwith the outcome of the trial. He is an
officer of the court and is required topresent a truthful picture before the court.
Even though he appears on behalf of theState, it is equally his duty to see that theaccused does not suffer in an unfair andunethical manner. The public prosecutor,

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
though an executive officer, is an officer ofthe court and is duty bound to renderassistance to the court. The publicprosecutor represents the State and theState is committed to the administrationof justice as against advancing the interestof one party at the cost of the other. He
has to be truthful and impartial so thateven the accused persons receive justice.
The public prosecutor plays a dominantrole in the withdrawal of a case fromprosecution. He should withdraw fromprosecution in rare cases lest the confidenceof public in the efficacy of theadministration of justice be shaken.
The Supreme Court of India has defined
the role and functions of a public prosecutorin Shiv Nandan Paswan vs. State of Bihar& Others (AIR 1983 SC 1994) as under:a) The Prosecution of an offender is theduty of the executive which is carriedout through the institution of the
Public Prosecutor.
b) Withdrawal from prosecution is an
executive function of the Public
Prosecutor.
c) D i s c r e t i o n t o w i t h d r a w f r o mprosecution is that of the Public
Prosecutor and that of none else andhe cannot surrender this discretion
to anyone.
d) The Government may suggest to the
Public Prosecutor to withdraw a case,but it cannot compel him andultimately the discretion andjudgement 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 tofurther the broad ends of publicjustice, public order and peace.
f) The Public Prosecutor is an officer of
the Court and is responsible to it.

XI. ROLE OF A PUBLICPROSECUTOR IN
INVESTIGATIONSInvestigations 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 toinvestigate only cognizable offences. Noncognizable offences cannot be investigatedby the police without obtaining prior orders
from the courts. A police officer can
examine witnesses under section 161.
However, the statements are not to besigned by the witnesses. Confessions ofaccused persons and statements of
witnesses are recorded under section 164of 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 competentto arrest an accused suspected to be
involved in a cognizable offence without anorder from the court in circumstances
specified in section 41 of the Code. He is
required to maintain a day to day accountof the investigation conducted by him
under section 172. After completion of
investigation, a police officer is required tosubmit a final report to the court under
section 173. If a prima facie case is madeout, this final report is filed in the shape ofa charge-sheet. The accused has,
thereafter, to face trial. If no cogent
evidence comes on record, a closure reportis filed in the Court.
The public prosecutor plays the followingrole at the investigation stage:(1) He appears in the court and obtains
arrest warrant against the accused;(2) He obtains search warrants from thecourt for searching specific premises
for collecting evidence;(3) He obtains police custody remand forcustodial interrogation of the accused(section 167);

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RESOURCE MATERIAL SERIES No. 53(4) If an accused is not traceable, heinitiates proceedings in the court forgetting him declared a proclaimed
offender (section 82) and, thereafter,
for the consfiscation of his movableand immovable assets (section 83);and(5) He records his advice in the police fileregarding the viability/advisability ofprosecution.
After the completion of investigation, if
the investigating agency comes to theconclusion that there is a prima facie caseagainst the accused, the charge-sheet isfiled in the court through the publicprosecutor. It is to be noted that the opinionof the public prosecutor is taken by thepolice 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 ofinvestigation and his suggestions are
generally acted upon. However, theultimate decision of whether to send up acase for trial or not lies with the police
authorites. In case there is a difference of
opinion between the investigating officer
and the public prosecutor as to the viabilityof the prosecution, the decision of theDistrict Superintendent of Police is final.
XII. THE ROLE OF A PUBLICPROSECUTOR DURING TRIALSAs stated above, the public prosecutor isvested with the primary responsibility toprosecute cases in the court. After the
charge-sheet is filed in the court, theoriginal case papers are handed over tohim. The cognizance of the case is takenby 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. The
second step is to frame charges against theaccused, if there is a prima facie caseagainst him. The third step is to record
the prosecution evidence. The fourth step194

is to record the statement of the accused(section 313 of the Code). The fifth step isto record the defence evidence. The sixth
step is to hear the final arguments fromboth sides, and the last step is theprouncement 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.
A. Withdrawal from Prosecution
The public prosecutor has the authority
to withdraw a case from trial under section
321 of the Code. Under the case law, heand he alone has the ultimate authority towithdraw a case from prosecution (AIR1983 SC 194). But the practice is that hereceives instructions from the government
and pursuant to those instructions, hewithdraws the case from prosecution. The
grounds of withdrawal could be many,
including:(1) False implication of accused persons
as a result of political and personal
vendatta;(2) Inexpediency of the prosecution for
the reasons of state and public policy;and(3) Adverse effects that the continuationof prosecution will bring on public
interest in the light of changed
situation.
B. 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 animportant role in varied crimes. In the
Indian system, the statement of a witness
is recorded by the investigating officer. The

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
statement is not required to be signed by awitness under the law. The witness isrequired to appear in the court and prove
the facts mentioned by him to theinvestigating officer at the pre-trial stage
and to face cross-examination by the
defence lawyer. The public prosecutor
conducts the examination-in-chief of aw i t n e s s a n d , t h e r e a f t e r, h i s r e examination, if need be, in order to clarify
ambiguity, if any, after a witness’ crossexamination. Similarly, the documents
cited in evidence are required to be provedby the public prosecutor with the help ofwitnesses. The forensic evidence is proved
through the documents prepared by theexperts and also by the testimony of theexperts in the court. The experts are also
liable to be cross-examined by the defence
counsel. On the basis of the facts provedby the oral, documentary and forensic
evidence, the public prosecutor tries tosubstantiate the charges against theaccused and tries to drive home the guilt
against him. If there is a statutory law
regarding presumptions against theaccused, the public prosecutor draws thecourt’s attention towards that and meshes
it with other evidence on record. While thelaw requires establishing a prima facie casefor charge-sheet purposes, the law forconviction is that the guilt should be proved
beyond a reasonable shadow of doubt. The
standard of proof in Indian courts is quite
high and that largely explains the low
conviction rate, particularly in IPC
offences. The prosecutor has an immenserole. He has to prove the facts. He has toprove the circumstances, and then he has
to draw the inferences and convince thecourt that the arraigned accused alone isguilty of the offences that he has been
charged with. This is an onerous task andrequires sound legal knowledge, the ability
to handle witnesses and the capability tocarry the court along with him.

XIII. SPEEDY TRIAL
The concept of speedy trial is enshrinedin 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 toprocedure established by law.
The Supreme Court in 1997 CrLJ, page
195 has interpreted this Article to meanthat 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 accusedand the courts. All of them play acontributory role in the delays. While thepolice agency may be responsible for 25 percent of delays, non-police agencies are
responsible for the rest of it. The publicprosecutor, being an officer of the court, canplay an important role in ensuring speedy
trial. It is his duty to see that the adequate
number of witnesses are called at eachhearing and none of them goes backunexamined. Similarly, he is to ensure thatthe documents are put up to the court intime. He has also to ensure that police
officers, who generally prevaricate inappearing in the courts, do appear as per
the schedule fixed by the court. A goodworking relationship with the court may
help in achieving this end. Not muchcooperation can be expected from thedefence counsel as experience shows that
he is more interested in the delays than in
speedy trial because delay means morehearings which, in turn, means more feefor him. This behaviour may be unethicalon his part, but this is the ground reality.
In this scenario, the role of publicprosecutor assumes special significance.

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XIV. PLEA BARGAININGThe Indian law does not provide for plea
bargaining as it exists in the U.S.A.
However, the Law Commission of India hasrecently recommended to the governmentthat 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 believedthat 75 per cent of convictions in the U.S.A.
are based on plea bargaining. It is proposed
to introduce a plea bargaining system inless grievous offences, to begin with. If thisexperiment succeeds, it will be extended
to grievous offences thereafter.
XV. PUBLIC PROSECUTION
AND SENTENCING
In the criminal statutes, varied
sentences are provided for different
offences. The most serious offence is thecrime of murder for which life
imprisonment or death is provided. A death
sentence is, however, to be awarded in therarest of rare cases. There are certain
statutes which provide for minimum
imprisonment, but may exceed theminimum imprisonment so provided. Afterthe court has held the accused guilty, thedefence counsel and the public prosecutor
are called upon to argue on the quantumof punishment. The courts in India
generally believe in the individualisationof 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 asentence. The public prosecutor has to use
his discretion in arguing for adequate
punishment, keeping in view thecircumstances mentioned above. He should
exercise the discretion keeping in mind thegravity of the offence, and the facts andcircumstances of the case.
Besides, the court has the statutory
authority to release a convict on probation196

in certain offences under the Probation of
Offenders Act. The court can release aconvict on admonition in cases where thepunishment is not more than two years.
The public prosecutor should guide thesteps of the court in this regard.
The court also has the discretion torelease 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 imprisonmentof 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 hisage, character and antecedents and the factthat he is not a previous convict.
The court can also release the offenderon probation of good conduct in otheroffences excluding offences punishable withdeath or life imprisonment.
The prosecutor is required to help the
court in arriving at a fair and judicious
finding in this matter.
XVI. CO-ORDINATION BETWEEN
THE POLICE AND PUBLICPROSECUTORSBefore 1973, the Assistant Public
Prosecutors (some of them were police
officers) were under the direct control of
the District Superintendent of Police. The
public prosecutors appearing in the
Sessions Courts were drawn from the open
market on a tenure basis and they were
responsible to the District Magistrates.
After the amendment in the Code,Assistant Public Prosecutors have been
totally detached from the police
department. At present they report to theDistrict Magistrate at the district level andto the Director of Prosecutions at the statelevel. The status of the public prosecutors
appearing in the Sessions Courts remains
unchanged. There is no institutionalised

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
interaction or co-ordination between theinvestigating agency and the prosecuting
agency. The police files are sent to theAssistant Public Prosecutors for their legal
opinion at the pre-trial stage. As they are
not responsible to the district police
authorities, the legal advice is sometimes
perfunctory and without depth. Further,
the district police is totally in the dark as
to the fate of cases pending in the courts.
Even though there is a district level law
officer (called District Attorney in somestates), to supervise the work of theAssistant Public Prosecutors, he does nothave the status and stature that theDistrict Superintendent Police has.
Whatever the reasons, as shown supra in
Table 4, the conviction rate is falling over
the years. Be that as it may, there is no
immediate prospect of the Assistant Public
Prosecutors being placed under the control
of District Superintendent of Police. The
Law Commission of India has also
supported total separation between thepolice department and the prosecution
agency. Even so, it would be desirable to
make some institutional arrangement for
proper co-ordination between the two
agencies. The following suggestions arebeing made in this regard:(1) The District Superintendent of Police
should periodically review the workof the Assistant Public Prosecutors;(2) He should be authorised to call for
information from the prosecution
agency regarding the status of aparticular case pending in the court;(3) The prosecution agency should send
periodical returns to the District
Superintendent of Police regarding
disposal of cases in the courts;(4) The District Superintendent of Police
should send a note annually to theDistrict Magistrate regarding theperformance of each Assistant Public
Prosecutor working in his district,which should be placed in his
confidential annual report/dossier;and(5) On its part, the police department
should make available certain
facilities to the prosecutors such as
housing, transport, and telephones.
The state government may provide forthe above arrangement by issuingnecessary orders. Such an arrangement
would go a long way in bringing about coordination between the police and theprosecution agency.
XVII. ROLE OF PUBLICPROSECUTORS 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 theprosecution agency has any say in theformulation of laws. The number ofcriminal 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 with the formulation/
drafting of laws. Their field experiencewould go a long way in improving thequality of laws enacted. Further, unlike
the police, the prosecution agency does nothave a national level body to watch its
professional and service interests. This isdue to the fact that prosecution agencies
are organised at the state level and not at
the national level. Such an apex should beconstituted by the government.
XVIII. PROBLEMS OF
PROSECUTION AND
SUGGESTIONS FOR
IMPROVEMENT
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 fallingover the years. In 1994, it stood at 15.5
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RESOURCE MATERIAL SERIES No. 53
per cent of the total cases pending in the
Courts in that year. This clearly
demonstrates non-efficacy of the publicjustice system. The public prosecutors
cannot escape the blame for this dismal
state of affairs. It is proposed to highlightsome of the problems being faced by theprosecution agency and also to suggest
measures to improve the situation.
(1) The first and the foremost problem
is the poor quality of entrants in theprosecution agency. Undoubtedly, theentrant is a law graduate who
qualifies through a state-levelcompetitive exam, but the quality oflaw education is not uniform in the
country and is not up to the mark incertain law colleges. Further, theearnings in the open market aremuch higher than what the
government offers to the prosecutors.
Resultantly, able and competentadvocates shy away from joining theprosecution agency. The only way toremedy the situation is to make thejob attractive by improving the salarystructure and by providing otherperks such as government housing,transport, telephone facilities andallowances such as non-practisingallowance, rob allowance, and libraryallowance.
(2) According to an estimate, 21.8 million
cases are pending trial in thesubordinate courts. The exact
number of public prosecutors in the
country is not known. Experience,
however, shows that the publicprosecutors are overburdened withcases and their number is notadequate enough to efficiently handle
the cases entrusted to them. It isdifficult to fix a norm as to thenumber of cases to be entrusted to a
public prosecutor as it would dependon the nature of the case. Further,
the performance of a publicprosecutor is largely dependent on
the performance of the presiding
198

officer and other collateral factors.
While there is a case for increasing
the number of criminal courts, there
is equally a case for increasing thenumber of public prosecutors. As anorm, at least two public prosecutorsof the appropriate level should be
attached with each court.
(3) The Assistant Public Prosecutors arerecruited from the open market, andthey are entrusted with the cases
without any institutional training.
They learn by experience, but thattakes time and, in the meanwhile, thecases suffer. It is suggested that anational level training institution
should be set up for the publicprosecutors to impart them proper
training. The duration of the training
could be one and a half years. Six
months could be earmarked fortraining in law; four months for
attachment with a police station; fourmonths for attachment with acompetent magistrate; and theremaining four months for
attachment with a senior andexperienced public prosecutor. The
proposed institutional training could
be supplemented with refersher
courses from time to time.
(4) The pay scales of the Assistant Public
Prosecutors are rather low. AssistantPublic Prosecutors Grade-II are
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 open to them in the market,
it is necessary that their pay scales
be improved and also they be given
sumptuous allowances so as to makethe job attractive. Similarly, thehonorarium paid to the publicprosecutors appearing in the Sessions
Courts is grossly inadequate and thisneeds to be enhanced drastically.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS(5) Another problem facing the publicprosecutors is the lack of promotional
avenues. As stated in the preceding
paras, an Assistant Public Prosecutor
Grade-II is promoted to AssistantPublic 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 tointegrate the two cadres and allow an
Assistant Public Prosecutor to rise in
the heirarchy; enabling him to appear
not only in the Sessions Court, buteven in the High Court, depending on
his ability and calibre.
(6) The investigations are generally
conducted by low level police officers
who are not proficient in laws,
procedures and practical police
working. The supervisory officers
are, sometimes, deficient in closely
monitoring the investigations. Suchcases when sent up for trial, often
result in acquittals and the blamecomes on the public prosecutors.
While, it is necessary to improve thequality of public prosecutions, it isclearly important to improve thequality of investigation. Special
emphasis should be laid on using
modern scientific methods ofinvestigation. A closer rapport
between the investigating agency andthe prosecution agency should also
improve the outcome of trials.
(7) D e l a y i n t r i a l s i s o n e o f t h efundamental reasons for acquittals in
criminal cases. Speedy trial is thefundamental right of the accused inIndian law. It is the paramount dutyof the public prosecutor to ensure
speedy trial for which he has to takealong with him the court and also thedefence lawyer. The police officers,
sometimes, are responsible for delays

in trials because of their lack ofinterest in trials as evidenced in nonproduction of witnesses in time and,occasional prevarication in appearing
in the courts themselves to renderevidence. A multi-disciplinary
approach needs to be evolved to
remedy this situation and no shortcut solutions are possible.
(8) The prosecutors generally do nothave good library facilities. Due totheir rather inadequate pay scales,
they are not in a position to spend on
books. The libraries of the Bars are
overcrowded and the books are notmade available to the prosecutors. It
would be advisable to set up exclusive
libraries for the prosecutors in cities
and bigger towns at government cost.
(9) There is virtually no accountabilityon the part of the prosecution agency.
The work of Assistant Public
Prosecutors is supervised by theDistrict Magistrate, who being thechief executive of the district, issaddled with multifarious
responsibilities and has virtually notime to supervise their work. The
public prosecutors appearing in the
Sessions Courts, again, areresponsible to the District
Magistrate. Apart from the time
constraint, the District Magistrate
generally does not possess the legal
acumen and knowledge to objectively
assess the performance of each publicprosecutor and cannot give thrustand impetus to the prosecution
agency. The departmental superiors
should play a dominant role in thisregard. Norms for disposal of work
should be fixed and non-performers
should be penalised.

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XIX. CONCLUSION
In the final analysis, a public prosecutor
is an officer of the court and is required torender assistance to the court to arrive ata just and equitable decision. He is also
required to be fair to the opposite party.
His guiding principle should be not so muchthe letter of law, but the spirit of law basedon prudence, common sense and equity. A
society which is governed by the letter oflaw does not fully exploit its humanpotentialities. I conclude by quoting from
Russian Nobel laureate Solzhenitsyn,
A society which is based upon theletter 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 haveany beneficial influences on society.
Whenever the issue of life is woven inlegalist relations, there is anatmosphere of moral mediocrity,
paralysing man’s noblest impulses.

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