Jayant G Satpute
Asked August 24, 2016

Who is the Public Prosecutor responsible to?

  • 1 Answer
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The senior Public prosecutor or DGP in any court is reporting to whom? He/She is answerable to whom?

Answer 1

The Public prosecutor is an officer of the court and hence responsible to the Court.[1]

 

Details about the structure of prosecution in India:

Police is a state subject in our constitution. Cases are prosecuted by the public prosecutors appointed by the state governments.

Prior to the enactment of the Criminal Procedure Code of 1973, public prosecutors were attached to the police department and hence 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.

Now, the prosecution wing in a state is headed by a “Director of Prosecutions”[2]. The criterion and rank differs from state to state. In one state he may be a senior police officer and in another, he may be a judicial officer. He is assisted by Additional Directors, Deputy Directors and Assistant Directors, etc. The Director of Prosecutions is responsible for the prosecution of cases in the Magisterial Courts.

In Sessions Courts, cases are prosecuted by Public Prosecutors. A panel of lawyers is prepared by the District Magistrate, in consultation with the Sessions Judge, to appoint public prosecutors from. The state government appoints public prosecutors out of this panel. Public prosecutors plead the cases on behalf of the state government in the Sessions Courts. They have tenure appointments and are not permanent employees of the state government. They are paid an honorarium (not salary) by the state government. Please note that public prosecutors who prosecute cases in the Sessions Courts do not fall under the jurisdiction and control of the Director of Prosecutions.[3]

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 Cr. P. C., under which the central government may also appoint one or more public prosecutors.

The public prosecutor is an officer of the court and is duty bound to render assistance to the court and is required to present a truthful picture before the court. His duty includes ensuring that the accused does not suffer in an unfair and unethical manner. He represents the State, and he must 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[4]:

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.

 

After the completion of investigation, if the investigating agency comes to the conclusion that there is a strong 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 strong case has been made out. However, the ultimate decision of whether to send up a 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 then the decision of the District Superintendent of Police is final.[5]

 

 

 

 

[1] Shiv Nandan Paswan vs. State of Bihar & Others, (AIR 1983 SC 1994).

[2] Details of Director of Prosecutions for Maharashtra available here.

[3] Madan Lal Sharma. “The Role and Function of Prosecution in Criminal Justice.” Resource Material Series No. 53. 107th International Training Course Participants’ Papers. United Nations Asia and Far East Institute. Available online at http://www.unafei.or.jp/english/pdf/RS_No53/No53_21PA_Sharma.pdf

[4] (AIR 1983 SC 1994)

[5] Madan Lal Sharma. “The Role and Function of Prosecution in Criminal Justice.”

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