Supreme Court on Public Prosecutors - Judgments

Table of Contents

Landmark Judgments of Supreme Court on role of Public Prosecutors in Judicial System. Who is a Public Prosecutor? What are the Powers of a Public Prosecutor? Responsibilities of a Public Prosecutor? Can a Public Prosecutor withdraw a criminal case? Answers to these and many more questions would be found here…

1. Introduction – Who is a Public Prosecutor?

Public Prosecutor (PP) is a legal professional who represents the State (which is the Government) in criminal cases in courts. They act on behalf of the State to ensure that justice is done, especially in criminal matters where the accused is prosecuted for violating the law. The State (or Government) is the body that initiates criminal proceedings against the accused, and the Public Prosecutor acts as the legal representative for that entity.

“Public Prosecutor” has been defined under Section 2(u) of the CrPC :-

Section 2(u) in The Code of Criminal Procedure, 1973

(u)  "Public Prosecutor" means any person appointed under section 24, and includes any person acting under the directions of a Public Prosecutor;

As per Section 24 of the Criminal Procedure Code (CrPC), a Public Prosecutor must be a person who has been in practice as an Advocate for at least 7 years, with a degree in law from a recognized university, and with necessary experience in criminal law.

2. Powers and Responsibilities of a Public Prosecutor

a) A Public Prosecutor is appointed by the Government to represent the interests of the State in criminal proceedings, which means they work on behalf of society to seek justice. They present evidence, examine witnesses, and argue the case before the court.

b) Public Prosecutor plays a key role in determining whether the case should proceed in court or not. In simpler terms, they have the requisite authority to decide whether a case should be filed in court, based on the evidence available.

c) Public Prosecutor also has the discretion to withdraw a case, under certain circumstances, as outlined in Section 321 of the CrPC.

Section 321 in The Code of Criminal Procedure, 1973

321. Withdrawal from prosecution.

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

(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;

(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences :

Provided that where such offence -

(i) was against any law relating to a matter to which the executive power of the Union extends, or

(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or

(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or

(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.

UTTAR PRADESH.- In Section 321 after the words "in charge of a case may" insert the words "on the written permission of the State Government to that effect (which shall be filed in Court)". - [U.P. Act No. 18 of 1991, Section 3 w.e.f. 16.2.1991].

d) While Public Prosecutors are appointed by the government, their role is meant to be impartial. They are expected to pursue justice rather than merely obtaining a conviction.

e) Public Prosecutor assists the court in interpreting the law and ensuring that justice is done, without being biased in favour of the prosecution or defense.

3. Supreme Court Judgments on Role of a Public Prosecutor

The Supreme Court of India has emphasized the important role of a Public Prosecutor (PP) through its various judgments. The Court has recognized that the role of a Public Prosecutor is not merely to secure convictions but to ensure that justice is done in a fair and impartial manner. Some key principles and observations made by the Supreme Court regarding the role of a Public Prosecutor are:

3.1 Public Prosecutor is an Officer of the Court

In Sheonandan Paswan vs. State of Bihar 1987 (1) SCC 288, the Supreme Court of India held-

The Public Prosecutor is an officer of the Court, as indeed every advocate practising before the Court is, and he owes an obligation to the Court to be fair and just: he must not introduce any personal interest in the prosecution nor must he be anxious to secure conviction at any cost. He must present the case on behalf of the prosecution fairly and objectively..

The Hon’ble Apex court in the case of K.K. Mishra vs. State of Madhya Pradesh (2018) 6 SCC 676 : (2018) 3 SCC (Cri) 397 : 2018 SCC OnLine SC 374 ruled that :-

"17. The Public Prosecutor in terms of the statutory scheme under the Criminal Procedure Code plays an important role. He is supposed to be an independent person and apply his mind to the materials placed before him.

In State of Bihar vs. Ram Naresh Pandey [(1976) 4 SCC 250 : 1976 SCC (Cri) 584 : (1977) 1 SCR 335] the Supreme Court of India ruled-

The Public Prosecutor is also an officer of the Court and that he is bound to assist the Court with his fairly-considered view and the Court is entitled to have the benefit of the fair exercise of his function.

3.2 Public Prosecutor cannot act on the dictates of the State Government

Being an Officer of the court, the Public Prosecutor has to act objectively, and not on the dictates of the State Government.

The Supreme Court of India in Amarinder Singh vs. Parkash Singh Badal, (2009) 6 SCC 260 : (2009) 2 SCC (Cri) 971 held-

We are satisfied that the Presiding Officer of the Special Court is conscious of his power and how to conduct a fair trial at the same place. We are also of the opinion that the Public Prosecutor cannot act on the dictates of the State Government, he has to act objectively as he is also an officer of the court. The Special Court is free to assess whether the prosecution has established its case.

3.3 Public Prosecutor during Trial of a Sessions case

In Jayendra Saraswati Swamigal vs. State of Tamil Nadu (2008) 10 SCC 180 : (2009) 1 SCC (Cri) 27, the Supreme Court of India held-

The Public Prosecutor plays a key role during trial of a Sessions case. Though the Sessions Judge has got a supervising control over the entire trial of the case, it is the Public Prosecutor who decides who are the witnesses to be examined on the side of the prosecution and which witness is to be given up, or which witness is to be recalled for further examination.

In Shiv Kumar vs. Hukam Chand and another, (1999) 7 SCC 467, the Supreme Court of India held as under-

From the scheme of the Code the legislative intention is manifestly clear that prosecution in a sessions court cannot be conducted by any one other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a sessions court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.

3.4 Public Prosecutor’s power to withdraw the prosecution

In Balwant Singh & Ors vs State Of Bihar, 1977 AIR 2265, (1977) 4 SCC 448, the Hon’ble Supreme Court of India held-

The Criminal Procedure Code is the only matter of the public prosecutor and he has to guide himself with reference to, Criminal Procedure Code only. So guided, the consideration which must weigh with him is, whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of the prosecution.

In Jayendra Saraswati Swamigal vs. State of Tamil Nadu (2008) 10 SCC 180 : (2009) 1 SCC (Cri) 27, the Supreme Court of India held-

For proper conduct of a criminal case the Public Prosecutor plays a vital role. It may also be noticed herein that under Section 225 of the Cr.P.C. during every trial before the court of Sessions, the prosecution shall be conducted by the Public Prosecutor and as regards withdrawal also, the Public Prosecutor in charge of the case has to make the application for withdrawal of prosecution as per Section 321 of the Cr.P.C. In case of acquittal of the accused the State Government may direct the Public Prosecutor to file an appeal.

The Supreme Court in Bairam Muralidhar vs. State of Andhra Pradesh, (2014) 10 SCC 380 : (2015) 1 SCC (Cri) 42 observed that-

The public prosecutor cannot act like the post office on behalf of the State Government. He is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal of the case would really subserve the public interest at large. An order of the Government on the public prosecutor in this regard is not binding. He cannot remain oblivious to his lawful obligations under the Code. He is required to constantly remember his duty to the Court as well as his duty to the collective.

In Subhash Chander vs State (Chandigarh Admn.) & Ors, 1980 AIR 423, 1980 SCC(CRI) 376, the Supreme Court of India held-

The District Magistrate who is an Executive Officer is not the Public Prosecutor and cannot dictate to him either. Maybe, the officer had not apprised himself of the autonomous position of the Public Prosecutor or of the impropriety of his intrusion into the Public Prosecutor's discretion by making an order of withdrawal. Similar mistakes are becoming commoner at various levels and that is why we have had to make the position of law perfectly clear. We emphasise that the rule of law warns off the executive authorities from the justicing process in the matter of withdrawal of cases. Since we are satisfied that the Public Prosecutor did not yield to the directive of the District Magistrate but made an independent study of informing himself of the materials placed before the court and then sought permission to withdraw from the prosecution, we decline to reverse the order passed by the courts below.

3.5 Involving the Public Prosecutor in investigation is unjudicious

The Supreme Court of India in R. Sarala vs T.S. Velu & Ors. 2000 (4) SCC 459 held-

Investigation and prosecution are two different facets in the administration of criminal justice. The role of Public Prosecutor is inside the court, whereas investigation is outside the court. Normally the role of Public Prosecutor commences after investigating agency presents the case in the court on culmination of investigation. Its exception is that Public Prosecutor may have to deal with bail applications moved by the parties concerned at any stage. Involving the Public Prosecutor in investigation is unjudicious as well as pernicious in law. At any rate no investigating agency can be compelled to seek opinion of a Public Prosecutor under the orders of court.

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3.6 Role of Public Prosecutor under Section 313 CrPC

The Supreme Court of India in Ashok vs. State of Uttar Pradesh, 2024 INSC 919, held as under-

Under sub-Section (5) of Section 313 of CrPC (subSection (5) of Section 351 of Bharatiya Nagarik Suraksha Sanhita, 2023), the Court is entitled to secure the assistance of the public prosecutor and the advocate representing the accused to prepare the questions to be put in the examination under Section 313. A Public Prosecutor has to play an active role in ensuring that every trial is conducted in a fair manner and in accordance with the law. Hence, it is the Public Prosecutor's duty to invite the Court's attention to the requirement of putting all incriminating material to the accused. Therefore, the Public Prosecutor is under an obligation to remain present when the examination of the accused is made to assist the Court.

3.7 Public Prosecutor must act impartially to uphold justice and work for Truth

The Supreme Court has repeatedly stressed that the role of the PP is to ensure the proper administration of justice, rather than simply securing a conviction.

4. Law Commission Reports on Role of a Public Prosecutor

4.1 197th Report of Law Commission of India

“The Prosecutor has a duty to the state, to the accused and the Court. The Prosecutor is all times a minister of justice, though seldom so described. It is not the duty of the prosecuting counsel to secure a conviction, not should any prosecutor even feel pride or satisfaction in the mere fact of success.”

Law Commission of India
197th Report on Public Prosecutors’ Appointments (2006)

4.2 154th Report of Law Commission of India

“Prosecutors are the 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. They are also not there to see the culprits escape conviction.”

Law Commission of India
154th Report

5. Conclusion

In summary, a Public Prosecutor is a crucial part of the criminal justice system, working to represent the state and ensure that criminal justice is delivered fairly and impartially.

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