JAMIA MILLIA ISLAMIA

CrPC assignment

HIERARCHY OF PUBLIC PROSECUTORS

Submitted by – Submitted
to-
Shahbaz Khan Mehar Dr. (Prof) Asad Malik
Semester – VIII
Section – B
Roll No – 29
TABLE OF CONTENT
Acknowledgement
Introduction
Directorate of Prosecution
Director of Prosecution
Public Prosecutor and Addl. Public Prosecutor
Assistant Public Prosecutor
Special Public Prosecutor
Advocate General as Public Prosecutor
Conclusion
Bibliography
ACKNOWLEDGEMENT
I have taken efforts in this project but it wouldn’t have been possible without the support of
many individuals. I would like to extend my sincere thanks to all of them. I am highly
indebted Dr. Asad Malik for his guidance and constant supervision as well as for providing
necessary information regarding the project and also for his support in completing the
project. My thanks and appreciations are also due to my friends who helped me a lot in
developing the project and people who have willingly helped me out with their abilities.
REGARDS
Shahbaz Khan Mehar.
INTRODUCTION
Prosecutors hold a strategic position and pay a prominent role in Criminal Justice System.
Efficient prosecution management is therefore a critical necessity. This part deals with the
administrative structure, the various categories of prosecutors functioning in the courts, the
nature of control mechanism provided, the aims and objects of the organisation for Public
Prosecutors. An attempt is made to analyse and find out the efficacy of the existing
structure and trace the deficiencies of it. It finally argues for a change so as to invest the
structure with more fundamental functions which could bring smoothness and quality in
public prosecutions and seeks for broadening the reach of the central structure.
Procedural criminal law has been designed to look after the process of the administration
and enforcement of the substantive criminal law. The Code of Criminal Procedure, 1973
provided the basic framework of the hierarchy of criminal courts as well as Public
Prosecutors. Since criminal justice administration is the area earmarked for the States in the
Indian federation by the Constitution of India1, the organisations are to be built in by the
states. Sections 24, 25, 25A of Cr.P.C spell out the organisation of Public Prosecutors. These
provisions conceive of a separate and independent prosecution department. Its
independence lies on the fact that it is separate from police. A Directorate of prosecution is
put in place.

Seventh schedule, List III item 1( Criminal law), item 2 (Criminal Procedure).
THE DIRECTORATE OF PROSECUTION
To exercise close supervision and scrutiny of work of various prosecuting agencies, to advise
the Government with regard to filing of appeals and revisions and to advise the police in all
legal matters and important issues arising during investigation or trial and to maintain over
all control, authority and responsibility for the work, efficiency, integrity and discipline of all
prosecutors a Directorate of prosecution is eminently needed. Law therefore provided that
there may be a Directorate of Prosecution in every state. 2 It consists of:

 Director of Prosecution
 Deputy Directors of Prosecution
 Public prosecutors
 Additional Public Prosecutors
 Assistant Public Prosecutors
 Special Public Prosecutor
Thirty three years after, the advent of the present Code of Criminal Procedure, 1973,
Parliament of India was convinced of the desirability of creating a statutory structure of
Directorate of prosecution. Prior to this, various states established Directorates by way of
administrative arrangements through Rules or Guidelines3
Therefore, there is a variety of hierarchy available in different states in India. In the State of
Andhra Pradesh, there are Additional Director of Prosecutions and joint Director of
Prosecutions but there is not Deputy Director of Prosecution. There are Additional Public
Prosecutor, Grade-I and Grade-II, Senior Assistant Public Prosecutor, 4 which categories are
not provided by the Code of Criminal procedure, 1973. In the State of Uttar Pradesh, there is
Director General, Additional Director General, Joint Directors, Senior Prosecuting Officer 5
which categories find no place in Cr.P.C.
Besides the conspicuous categories of Public Prosecutors referred earlier, there is significant
number of certain more categories of Public prosecutors discharging similar functions and
some of them are not within the sweep of the Directorate of Prosecution.
They are:
1. Assigned Prosecutors
2. Binary Prosecutors
3. Departmental Prosecutors
4. Vacuum Filler Prosecutors

2
Section 25A of CrPC was inserted by Code of Criminal Procedure (Amendment) Act 25 of 2005 with effect
from 23/6/2006.
3
For instance, in the state of Andhra Pradesh, the Directorate of Prosecution was created under G.O.Ms.No.
323, Home Department, dt. 26-5-1986.
4
Order no. 585 Part 1, Vol. 2, the Andhra Pradesh Police Manual, 2002, The DGP, Andhra Pradesh,
Hyederabad.
5
NR Madhava Menon, Criminal Justice India Series, Vol. 3 UP, Allioed Publishers pvt. Ltd., Kolkata 2002, pg.92.
5. Supplementary Prosecutor
6. Advocate General.
A succinct summary of prosecution failures in India is exposed by the Karnataka High Court.
Acquittal of many accused in courts is because of complete failure of the system.
Investigation is extremely casual and in majority of the cases totally negligent. There is
astounding level of negligence on the part of the investigating agency in the production of
evidence and the witnesses. It has almost become a joke for the courts to have to put up
with thousands of false endorsements from the police about non availability of witnesses.
Courts shall exercise stringent supervision and take action against errant officers if cases fail
because of inefficient investigation and prosecution.6 It seems that the advent of
Directorate of prosecution has not brought a wee bit of change in this situation. The
Directorate is still unable to fulfil the expectations of legal vision in maintaining close
supervision and scrutiny of work of various prosecuting agencies. It is still a routine truth
that many bad cases are put forwarded for prosecution and many good cases are
improperly prosecuted in courts. The key area of Directorate of prosecution shall be to
formulate case standards relating to all kinds of Public Prosecutors and all kinds of
prosecutions and to pursue broader approaches relating to their advancement.

DIRECTOR OF PROSECUTION
The head of the prosecuting authority in a State is typically known to be Director of
Prosecution7. He is an appointed officer. He shall be a law graduate. “A person shall be
eligible to be appointed as a Director of Prosecution or a Deputy Director of prosecution,
only if he has been in practice as an advocate for not less than ten years and such
appointment shall be made with concurrence of the Chief Justice of the High Court 8. He shall
function under the administrative control of the Head of the Home Department in the
State9. The powers and functions of the Director of Prosecution and the Deputy Directors of
prosecution and the areas for which each of the Deputy Directors of Prosecution have been
appointed shall be such as the State Government may specify. 10
The Director is a legal advisor to the Director General and Inspector General of Police. He
can be called upon to tender advice on matters relating to other departments of the
Government. The Director of Central Bureau of Investigation also discharges similar but
more elaborate functions. He supervises and monitors the conduct of prosecution in courts.
He gives advises to police officers in all legal matters on general points, specific cases or
important issues arising during investigation or trial. He can prefer as well as appear in
6
State vs. Krishna 1998 CriLJ 1665.
7
Section 25 A (3) Cr.P.C.
8
Section 25 A (2) Cr.P.C.
9
Section 25 A (3) Cr.P.C.
10
Section 25 A (7) Cr.P.C.
appeals, revisions etc., on behalf of the CBI in appellate and revisional courts. He shall
maintain overall control, authority and responsibility for the work, efficiency, integrity and
discipline of all legal officers of CBI.
Thus, in theory, the Director of prosecution in the States is not one to appear in any court to
conduct any case, but the Director of Prosecution in CBI is empowered to appear and
conduct cases. However, in reality such instances do not take place since the Directors in CBI
are drawn from the Law Officers and Legal Advisors for Central Government functioning in
the Ministry and those officers never appeared in courts to conduct any cases.
In the States, who shall be an appropriate person to hold the position of Director of
Prosecution evoked wide variety of responses indicating it be a Public Prosecutor or a police
officer or a judge? Malimath committee felt that the Director be a police officer of the rank
of Director General of Police. National Police Commission was of the view that a person with
ten years practice at bar as an advocate or ten years experience as judicial officer of which
at least five years shall be as a Sessions Judge 11. This view was also endorsed by the Law
Commission of India12. As the law stands now, in terms of Section 25 A (2) of Cr.P.C., 1973
only an advocate with ten years standing at the bar is eligible to become the Director of
Prosecution. Going by the letter of the law, police officer, judicial officer, Public Prosecutor
cannot be appointed as Director of prosecution. However, in reality, District and Sessions
Judge is appointed on deputation as Director of Prosecution in some states such as the State
of Andhra Pradesh.

It is necessary to juxtapose Section 25A (2) of Cr.P.C., and Section 24(7)&(9) Cr.P.C, in
connection with the eligibility norms of Director of Prosecution.
Section 25 A (2):
“A person shall be eligible to be appointed as a Director of Prosecution or a Deputy
Director of Prosecution, only if he has been in practice as an advocate for not less than ten
years”
Section 24 A (7):
“A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public
Prosecutor … … only if he has been in practice as an advocate for not less than seven years”
Section 24 A (9):
“For the purpose of Sub-Section (7) … the period during which a person has been in
practice as a pleader, or has rendered…service as Public Prosecutor or as an Additional
Public Prosecutor or Assistant Public Prosecutor or other prosecuting officer by whatever
name called, shall be deemed to be the period during which such person has been in
practice as an advocate”

11
4th report of National Police Commission (1980) pg. 24-25.
12
Law commission of India 154th report (1996) pp 9-10.
Section 25A does not have a Sub-Section resembling Section 24(9) of Cr.P.C., the
comparison brings out the difference that while only an advocate is eligible for the post of
Public Prosecutor or the Director of Prosecution, in computing the relevant years of practice
of that advocate, the period of term an individual earlier served as a prosecuting officer is
deemed to be the period during which he has been in practice as an advocate in the case of
appointment for the post of Public Prosecutor but not considered in the case of
appointment for the post of Director of prosecution. This situation is anomalous to the very
office of Director of Prosecution. A person who was never a prosecutor or a judge or a police
officer, is to become the boss of the State prosecution hierarchy is a sad reflection of law.
An advocate who merely defended the accused against the prosecutions conducted at
courts is to be chosen as Director of prosecution is disheartening. It serves no purpose to
have at the helm of prosecutions a man who never prosecuted a case on behalf of the State
or who never adjudicated a prosecution as a judge. There is every need to reform the law in
this regard.
There is yet another legal snag about his selection. The appointment of a Director of
Prosecution by the State Government shall be with the “concurrence” of the Chief Justice of
the High Court. The appointment of Public Prosecutor at the High Court shall be after
‘consultation’ with the High Court. The words ‘Concurrence’, ‘Consultation’ are not defined
by the Code of Criminal Procedure. Therefore, the meaning of these words is to be gathered
from judicial pronouncements, dictionaries, guidelines provided by the Governments.
Generally, it is understood that in ‘consultation’, the process is more like taking advice by
one from the other but ‘concurrence` connotes acting in conjunction, agreeing in the same
act. ‘Concurrence of Chief Justice’ and ‘Consultation with High Court’ is completely two
different methods. In the light of the prevailing practice that Chief Justice of every High
Court is drawn from another State, it is somewhat difficult for the Chief Justice at High Court
to know and assess the capability and credibility of an individual for the post of Director of
prosecution in the State. Inadequate exposure of the Chief Justice to the native talent of the
individuals would lead to either of the two situations. Chief Justice may tend to take more
time to appreciate the talent of others before he grants his concurrence. This results in
longer delays. It may also be that to avoid delay the Chief Justice may concur with the
proposal put forwarded to him by the Government irrespective of the merit of the individual
proposed. This results in mere formal concurrence with possible indifference to the spirit of
the scheme of the things. Looking at it either way, it sounds more appropriate to confer this
power of concurrence with the High Court instead of with the Chief Justice. If it is High
Court, normally, a committee of judges would look into the matter and that brings out
better results as they are more exposed to the native talent.

PUBLIC PROSECUTOR & ADDITIONAL PUBLIC PROSECUTOR

Prosecuting officers to conduct cases before the High Court and before the courts in the
Districts are required. Certain prosecutions are on behalf of the Central Government and
certain prosecutions are on behalf of the State Government. The appointment of such Public
Prosecutors and additional prosecutors is regulated by Section 24 of the Code of Criminal
Procedure, 1973. A person shall be eligible to be appointed as a Public Prosecutor or an
additional Public Prosecutor only if he has been in practice as an advocate for not less than
seven years13. In computing this period of seven years practice as an advocate his earlier
service as a prosecuting officer of any description and category is also deemed to be the
period during which such person has been in practice as an advocate 14. Therefore, only
advocate is made eligible to become Public Prosecutor or Additional Public Prosecutor.

At the High Courts

The Central Government or the State Government shall appoint a Public Prosecutor for
every High Court for conducting any prosecution, appeal or other proceedings. There is no
option left to the respective Governments and the mandate of law is clear that the
Governments are bound to appoint such officers. However, the Governments have
discretion either to appoint or nor to appoint one or many additional Public Prosecutors for
the High Courts15. Thus, it is for the Government to assess the need on the basis of volume
of work and take a decision.
The respective Governments shall appoint the Public Prosecutor or additional Public
Prosecutor for the High Court only after consultation with the High Court. The normal
connotation of ‘consultation’ is holding discussions in order to exchange opinions or get
advice.

At the Districts
The Central Government ‘may’ appoint one or more Public Prosecutors in any district, or
local area16. Thus, there is option for the Central Government to make or not to make any
appointment considering the fact whether it has cases in a particular district. There is no
provision for additional Public Prosecutors. Any number of prosecutors appointed in a
district by the Central Government is only in the category of Public Prosecutors. There is no
need for the Central Government to consult any authority in appointing a Public Prosecutor
in the districts. This is in contrast to appointment of Public Prosecutor for the High Court by
the Central Government as well as appointments of such officers by the State Governments
in the Districts.
The State Government ‘shall’ appoint a Public Prosecutor for each district 17. It being
mandatory, there is no escape for the State Government and it shall appoint at least one
Public Prosecutor in every district. However, appointment of Additional Public Prosecutors is
13
Section 24(7) CrPC, 1973.
14
Section 24(9) CrPC, 1973.
15
Section 24(1) CrpC, 1973.
16
The word ‘may’ used in section 24(1) CrPC, 1973 indicates the discretion for government.
17
Section 24(3) CrPC, 1973.
left to the choice of the State Government and it may make or may not make any such
appointments. It all depends on the volume of the work and the number of courts available
in a district that shall govern the discretion of the State Government.
The mode and method of appointment of Public Prosecutors and the Additional Public
Prosecutors of the State Government is similar. The District Magistrate of each district shall
prepare a panel of names of advocates and the State Government shall choose the persons
for appointments only from those panels18. For each post, how many names are to be
empanelled is not referred to by the Code of Criminal Procedure and it is left to the
subordinate legislation or circular orders19 .
Concerning the preparation of panel of names, it is not the exclusive forte of the District
Magistrate, since he shall consult the Sessions Judge and then only prepare the panel 20.
Thus, the District Magistrate shall ascertain the views of the Sessions Judge concerned and
prepare the panel making the recommendations21. It thus transpires from the law that in the
appointments of Public Prosecutors and Additional Public Prosecutors in every court in the
State, the judiciary is given a role and without consulting it, the State Governments are
prohibited from making any such appointments. In contrast, judiciary has no role to play in
cases of appointments of Public Prosecutors for the districts by the Central Government.
The concept of ‘consultation’ referred to in Section.24 of Cr.P.C and the method and
manner of it has been a debated area. Explaining it the Supreme Court of India held that it
does not mean that some names are to be suggested by the Sessions Judge and some
comments are to be made by him in respect of those names suggested by the District
Magistrate. They shall together sit and discuss over the names to be empanelled. The
statutory mandate must be complied with by them in true spirit 22.
The words ‘in his opinion’ occurring in Section 24(4) of Cr.P.C appear to vest power in the
District Magistrate to consider the suitability of the person concerned for appointment
according to his own opinion and since the power has been vested in a particular authority
in subjective terms judicial review appear impermissible unless a clear case of malice on the
part of the District Magistrate is made out. However, such arguments were turned down by
the judiciary on the premise that the judicial review on the process of executive decision
making is permissible though court cannot substitute its opinion for the opinion of the
executive.
The entire scheme of panel preparations and consultations between the executive and
judiciary is not applicable, if there is a regular cadre of prosecuting officers in the State.
When there is such a cadre the State Government shall appoint a Public Prosecutor or an
additional Public Prosecutor only from among the persons constituting such cadre.
However, if no suitable person is available in such cadre, the State Government has to resort

18
Section 24(5) CrPC, 1973.
19
However, in the state of Andhra Pradesh, Andhra Pradesh Law Officers (appointment of conditions of
service) rules, 1999 is silent about the number of persons to be empanelled for each post.
20
Section 25(4) CrPC, 1973.
21
Rule 5 of the rules mentioned Supra 298.
22
Harpal Singh Chauhan vs, State of U.P. AIR 1993 SC 2436.
to panel preparation exercise and make appointments23. As the things stand now this
alternative scheme is a non-starter and the appointments of tenure prosecutors based on
professional contracts is the order of the day in most part of the country. It is in the best
interest of the Criminal Justice System to have a professional cadre of prosecutors for the
State.

ASSISTANT PUBLIC PROSECUTOR

For conducting cases in courts of Magistrates, the State Government shall and the Central
Government may appoint such number of Assistant Public Prosecutors in every District 24.
Where no Assistant Public prosecutor is available for the purposes of any particular case,
the District Magistrate may appoint any other person to be the Assistant public Prosecutor
in charge of that case25. Thus, Assistant Public Prosecutors can be appointed by the Central
Government, State Government and in a certain contingency by the District Magistrate. In
contrast to appointment of Public Prosecutors, the provision for appointment of Assistant
Public Prosecutors does not specify the manner and method of their appointment and
notably there is no reference to the eligibility criteria as to the educational or other
qualifications a person shall possess to be eligible for being appointed as Assistant Public
Prosecutor. It is not expressly provided in law that he should be legally qualified. There is no
indication in the Section whether his appointment is to be on a contract basis for a specified
period or he is a fulltime government servant. All these aspects associated with his
recruitment are left to the subordinate legislation of the respective State Governments.
However, the recruitment mechanism adopted in all the States is through the respective
Service Commissions in the states or through Police Recruitment Boards by way of
competitive examination. The eligibility rules generally indicate that the persons shall have a
law degree and may be some times required to have some specified period of experience at
the bar as an advocate. Once they are selected they become full time employees of the
State Government and are forbidden from doing private practice. It seems that in many
States Assistant Public Prosecutors is made a cadre in the service and limited promotional
channels are created. A person is initially recruited as Assistant Public Prosecutor and after
putting up a certain years of service he would be promoted as Senior Assistant Public
Prosecutor. All the Public Prosecutors, Additional Public Prosecutors and Assistant Public
Prosecutors are under the control of Directorate of Prosecution as specified in Section.25A
of Cr.P.C.1973. This symmetry has thus dispensed with the earlier existing diverse controls
held by police department, judicial department over the Assistant Public Prosecutors.

The Assistant Public Prosecutors perform prosecution functions in the courts of Magistrates;
render necessary legal advice to police officers. As to the court of Magistrates where they
function there is discrepancy considering the hierarchy of courts. Section 6 of the Code of

23
Section 24(6) CrPC, 1973.
24
Section 25(1), (1-A) CrPC,1973.
25
Section 25(3) CrPC, 1973.
Criminal Procedure, 1973 provides classes of Criminal Courts which include courts of
Session, Judicial Magistrates of first class and Metropolitan Magistrates in Metropolitan
Area. Section 15 Cr.P.C, provides that Judicial Magistrates are subordinate to Chief Judicial
Magistrate. In Metropolitan areas, Metropolitan Magistrates are subordinate to Chief
Metropolitan Magistrates as provided in Section 19 of Cr.P.C. Chief Judicial Magistrate and
Chief Metropolitan Magistrate are equated by Section 3(1)(d) or Cr.P.C. The category of
Assistant Sessions Judges is provided by Section 9(3) Cr.P.C, and they are made subordinate
to Sessions Judge by Section 10(1) or Cr.P.C. However, Chief Judicial Magistrate as per
Section 15(1) of Cr.P.C. and Chief Metropolitan Magistrate as per Section 19(1) of Cr.P.C, are
subordinate to Sessions Judge. The picture that emerges is that Assistant Sessions Judge,
Chief Judicial Magistrate, Chief Metropolitan Magistrate are equal in their ranks and are
subordinate to Sessions Judge. In practice too same rank officers are occupying such posts.
In Assistant Sessions Courts Prosecutions are conducted by Additional Public Prosecutors
appointed under Section 24 of Cr.P.C., whereas in Chief Metropolitan Magistrate’s Court
prosecution are conducted by Assistant Public Prosecutors appointed under Section 25 of
Cr.P.C. State Governments require to suitably modify the scheme of service rules to set right
the discrepancy.
On the use of the Assistant Public prosecutor for Sessions cases two divergent views
developed. His normal functions require him to conduct Public prosecutions before the
courts of Magistrates. It is the usual practice that for each of the criminal courts the
Government appoints a prosecutor. It is also the privilege of the State to assign any
particular case to any one of its prosecuting officers. However, when an Assistant Public
Prosecutor was put in charge of a sessions case it was held by the courts as invalid since a
sessions case has to be conducted only by a Public Prosecutor and not by the Assistant
Public Prosecutor26. The reason assigned by the court is that it is unfair treatment to the
accused to be prosecuted by anyone other than a Public Prosecutor. As against this when an
Assistant Public Prosecutor was appointed as Special Public Prosecutor and was put in
charge of a case it was held valid27. The reason assigned by the court is that the accused
cannot claim a right that the prosecution against him be conducted by a particular
prosecutor and not by any other. It does not seem reasonable at law to consider the choice
of the State in appointing a particular state prosecutor in charge of a case on the plank of
the honour to the accused especially when there is no violation of his rights at law.
The Assistant Public Prosecutors are in the regular stream of State prosecuting officers and
are under the supervision and control of the Directorate of Prosecution. In view of this, any
role for the District Magistrate to appoint any person as Assistant Public Prosecutor for a
case need be dispensed with so as to achieve harmony conceived in the independence of
the prosecution structure. Section 25 of Cr.P.C, 1973 shall be redrafted after suitably making
provisions concerning the eligibility criterion for appointments of Assistant Public
Prosecutors. The Public Prosecutors of the district shall be empowered to appoint a person
as an Assistant Public Prosecutor in the event of non-availability of the Assistant Public
Prosecutor for a case.
26
J. Rambabu v. Govt. of Andhra Pradesh 1992 (1) ALT 688 AP.
27
Vijay v. State of Maharashtra 1986 CriLJ 2093.
SPECIAL PUBLIC PROSECUTOR
Law attempts to address usual as well as unusual situations. Crimes and criminals are
prosecuted in courts. That being the usual, there is provision for a Public Prosecutor for
each court to prosecute the usual. When there is something unusual, either with the crime
or with the criminal, there is provision for ‘Special Public Prosecutor’ to tackle that exigency.
It is quite usual in law that when something is posited as unusual it raises a host of issues.
That comes true as regards the Special Public Prosecutor too. What is unusual, who is to
decide it, how is to decide it, how to appoint a Special Public Prosecutors are a few such
issues.
The designation Special Public Prosecutor is not defined anywhere but finds mention in
Section 24(8) of Cr.P.C., and in certain other statutes such as Section 15 of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. As functionaries in the
system there are no differences between Public Prosecutor on one hand and Special Public
Prosecutor on the other hand. Their powers and duties are identical. However, the setting in
which they come to play their roles is the difference.
Under the Code of Criminal Procedure “The Central Government or the State Government
may appoint for the purposes of any case or class of cases, a person who has been in
practice as an advocate for not less than ten years as a Special Public Prosecutor” 28. This is
both an enabling provision for the Government to appoint special Public Prosecutor and it
also postulates the eligibility criteria of the appointee. While the State Government is bound
to appoint a regular Public Prosecutor for every district29 discretion seems to have been
conferred upon the State Government to appoint a special Public Prosecutor 30. The
expression ‘Special’ prefixing ‘Public Prosecutor’ connotes that his appointment must be
preceded by some special circumstances. Looking at the length of practice that is required
for appointing a person as Special Public Prosecutor as compared to that of a Public
Prosecutor, it is evident that the Special Public Prosecutor must be a more competent and
experienced person than a Public Prosecutor. Further, there should be special circumstances
for making such appointments31. As and when such special circumstances are available there
is choice and discretion for the government to appoint a Special Public Prosecutor and
entrust him the assignment. To the extent of such case or class of cases, the built in area of
operation of the regular Public Prosecutor gets restricted. Thus, the emergence of Special
Public Prosecutor for any case of the State indicates the fact that the State has felt that its
regular prosecutor need be relieved of a case and such case be entrusted to the Special
Public Prosecutor. The Code of Criminal Procedure conferred the choice of such discretion
with the Government only. Cognisance of the need for appointing a Special Public
Prosecutor may come to the Government from the Governmental circles themselves or may
be brought to its knowledge by a victim of crime or any other person interested in
28
Section 24(8) CrPC, 1973.
29
Section 24(3) CrPC, 1973.
30
Section 24(8) CrPC, 1973.
31
Susey Jose v. Janardhan Kurup, 1994 (2) ALT (Cri) 687 (Ker).
prosecution of crime and criminal. Before the Government resorts to the appointment of a
Special Public Prosecutor, it has to satisfy as to the special nature of the case or class of
cases in respect of which the Special Public Prosecutor is sought to be appointed. A case
does not become special just of the request by or persistence of a complainant. The
Government is required to apply its mind and arrive at a conclusion that the concerned case
has special significance and that the regular Public Prosecutor attached to the court cannot
effectively prosecute the matter. One view is that this satisfaction is purely subjective in
nature and the Government does not owe an obligation to record reasons in support of this
conclusion. However, satisfaction as such has to exist preceding the appointment 32. Thus, on
the mere request of one or other the Government shall not appoint a Special Public
Prosecutor but when it is satisfied about the need it can appoint one, though there is no
need to record the reasons for its decision. However, in certain jurisdictions, the courts
went a little further and took the view that the Government should record reasons in writing
as to why it opted to opt out the regular Public Prosecutor and appoint a Special Public
Prosecutor33. In some jurisdictions, the ply of the Government was further narrowed down
holding that only in exceptional cases and that too after recording reasons, the Government
can exercise its power of appointing a Special Public Prosecutor.
On the other extreme, there are views that held that the permission to appoint special
Public Prosecutor should be given as freely as possible by the Government34. Thus, the views
of various High Courts indicate very broad and liberal appointments at one end, the
restrained decisions to use the power treading the middle path, and a very narrow space for
exercising such power touching the other extreme. The Code of Criminal Procedure has
explicitly not mentioned any special reasons or circumstances guiding the competent
authority to consider the need for appointing special Public Prosecutor. It only says that in a
case or class of cases such appointment can be made. That makes it obvious that it is the
nature of the case and circumstances surrounding it that shall guide the decisions. Since the
Public Prosecutor holds a public office and is an independent and responsible character and
the same being true of a special Public Prosecutor too, the decision to appoint a special
Public Prosecutor need be in the public interest and not otherwise 35. Therefore, to uphold
the public interest in a case or set of cases a special Public Prosecutor can be appointed.

To evolve a systematic mechanism of screening the Supreme Court of India held that the
Governments shall frame guidelines for appointing Special Public Prosecutors and every
request received for any such appointment, there shall be scrutiny of it. While on principle
the court accepted the eligibility of a victim or a complainant to seek for appointment of
Special Public Prosecutor it cautioned the decision-maker to be vary of such request
whether a powerful complainant is trying to victimise his opponent. It said that only in

32
Devineni Sheshagiri Rao v. Govt. of Andhra Pradesh, 2004 CriLJ 52.
33
Madho Singh v. State of Rajasthan, 2002 CriLJ 1694.
34
Vijay Valia v. State of Maharashtra, 1986 CriLJ. 2093.
35
P.G. Narayan Kutty v. State of Kerala 1982 CriLJ (88) 295- “The Kerala High Court held that the Special Public
Prosecutor could be appointed only in the case of public interest and the not to vindicate the grievance of any
private individual.”
deserving cases Special Public Prosecutors shall be appointed. It also indicated a few
illustrative situations where a positive choice for appointment could be made. Cases where
really a public cause is in existence, cases where the victims are of economically backward
classes are some such instances. In the light of these guidelines of the Supreme Court of
India, the earlier views of certain High Courts that there was no need for more guidelines for
appointing Special Public Prosecutors are no more acceptable 36. A subsidiary issue that
crops up in the event of appointing a Special Public Prosecutor at the instance of a victim or
complainant is about the choice of the advocate and the fees to be paid to the Special Public
Prosecutor. Judicial opinions are not uniform on this aspect too. Bombay High Court took
the view that whenever there is a request made by a private party to engage an Advocate of
his choice to be paid for by him, the request should be granted. On the other hand, Delhi
High Court felt that putting the monetary burden on the aggrieved party would be morally
wrong and against public policy. If it is the obligation of the State to prosecute a criminal,
there should be no reason to burden the party with the costs of payment to Special Public
Prosecutor37. The Andhra Pradesh High Court took the view that while a complainant is at
liberty to seek for appointment of a Special Public Prosecutor it is not open to the
complainant to name a person of his choice for such appointment. Any such appointment
based on the name suggested by the complainant is not justified under law 38. The Supreme
Court of India took a middle path and held that ordinarily the Special Public Prosecutor
should be paid out of the State funds even when his appointment was at the request of a
private party. However, in some special cases the remuneration may be collected from the
private source. Illustrating such special cases it said that if the request is from a public sector
undertaking, a bank whether nationalised or not, an educational institution and the like, the
fee could be collected. It made it clear that the rate of fee should be prescribed by the
Government and should not be left to the parties. The fee shall not be allowed to be paid
directly by the party to the Special Public Prosecutor. The fee should be deposited in
advance by the party with a prescribed agency of the State named by the State from where
the special Public Prosecutor could collect the same.
The Procedure that is to be followed in appointing Special Public Prosecutor raised
conflicting interpretation of the provisions. Sub Sections (4)(5)(6) of Section 24 of Cr.P.C.,
envisage preparation of a panel of persons by the District Magistrate in consultation with
the Sessions Judge and the Government shall select a name and appoint him as Public
prosecutor. While so sub-section (8) of Section 24 of Cr.P.C., has not provided any such
procedure. This contrast raises the question whether the procedure of panel preparation is
applicable in the case of Special prosecutors or not.
One view is that sub-section (8) shall not be read in isolation and the entire section 24 shall
be read as a whole. Thus, in case of appointment of general Public Prosecutor as well as
Public Prosecutor, the selection shall be from the panel prepared and not otherwise 39. The
contrary view is that Sub-section (8) is totally independent and has nothing to do with the

36
Vijay Valia v. State of Maharashtra CriLJ 2093.
37
Ajay Kumar v, State, 1986 CriLJ 932.
38
Parmjit Singh Sadana v. State of Andhra Pradesh, 2008 (1) ALD (Crl) 712 (AP).
39
Supra 38.
panel procedure contained in the preceding sub sections. This runs on the reasoning that
regular Public Prosecutor is for a court and for all cases therefore selection from panel is
prescribed, whereas for different and special situations only the special Public Prosecutor
need be appointed for a case or class of cases and the context of the special circumstances
is meted out by a separate provision and thus it excludes the normal rule of panel
preparation and selection from it40.
Besides the Cr.P.C, mentioned Special Public Prosecutor there are Special Public Prosecutors
under Special statutes. For instance, to eradicate social evils such as untouchability, the
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was made.
Section 14 of the said Act envisages establishing Special Courts for the trial of offences
against the Scheduled Castes and Tribes. Section 15 of the Act reads “For every special
court, the State government shall, by notification in the official Gazette, specify a Public
Prosecutor or appoint an advocate who has been in practice as an advocate for not less than
seven years, as a special Public Prosecutor for the purpose of conducting cases in that
court”. The basic distinction between this Special Public Prosecutor as against Section24(8)
of Cr.P.C, Special Prosecutor is this. The Special Public Prosecutor under eection.15 of the
Act is a general appointment and is meant for the Special Court to conduct all the cases
coming up before the Special Court under that particular statute. His status is comparable to
that of general Public Prosecutor for any Sessions Court. Whereas the Section 24 (8) Cr.P.C,
Special Public Prosecutor is only in respect of any particular case or class of cases and his is
an appointment for an occasion and he ceases to exist as and when that occasion is over.
A survey of law concerning special Public Prosecutors would show lot of litigation
surrounding it. Several kinds of special Public Prosecutors have emerged. Under Criminal
Procedure Code, there are three classes of them:
1. Those appointed at the instance of the State and paid by the State.
2. Those appointed at the instance of the complainant, but paid for by the State.
3. Those appointed at the instance of the complainant and also paid for by him.
Under the S.C. & S.T. (Prevention of Atrocities) Act, 1989 and its Rules, there are five classes
of them:
1. Appointed by the State selected from the panel of advocates.
2. Appointed by the State selected from the panel of prosecutors.
3. Appointed by the District Magistrate or Sub-Divisional Magistrate at his volition and
paid specially by the State.
4. Appointed by the District Magistrate or Sub-Divisional Magistrate at the request of
the victim of atrocity and paid specially by the State.
5. Appointed by the District Magistrate or Sub-Divisional Magistrate at the request of
the victim of atrocity and paid for by him.
The system for supervision is diffused:

40
State of Andhra Pradesh, Department of Legislative affairs and justice v. Margadarsi Financiers represented
by Ramoji Rao 2009 (3) ALT p.1.
 1. Special Public Prosecutor at High Court is subordinate to Director of Prosecution.
2. Special Public Prosecutor in other courts is subordinate to the Deputy Director of
Prosecution.
3. Special Public Prosecutor at Special Courts is supervised by Director of Prosecution,
District Magistrate, various committees and high powered committees.
Appointment of special Public Prosecutor is a strenuous task as the decision is permitted to
be taken after considering the nature of the case, the evidence to be brought forward, and
the reasons for justifying the engagement of a special counsel, the circumstances on
account of which the regular Public Prosecutor concerned cannot be entrusted with the
case, the approximate number of days of hearing of the case, the name of the special Public
Prosecutor, the fees proposed to be paid and the manner of payment and public interest
justifying the appointment.

ADVOCATE GENERAL AS PUBLIC PROSECUTOR

To represent the State Government in Superior Courts and to perform connected functions
it is useful to have someone like Chief legal representative. In fulfilment of such an idea the
Constitution of India provided the post of Advocate General41. He is appointed by and holds
office at the pleasure of the Governor. The qualification is that of a High Court Judge,
although there is no age requirement for appointment or retirement. His functions are to
advice the Government on legal matters and to represent the State in the matters before
the High court which could include criminal appeals of Special importance. He would aid the
ministry in deciding any difficult questions arising out of pending prosecutions, which
require decisions of the Government. He plays a role in prosecution of crimes when
constitutional dimensions of crime are considered. He plays an important role in providing
an interface between the Government and the judicial system. Advocate General is a
constitutional functionary. His relationship with the Government is not that of a counsel and
client. The Government cannot direct him to discharge his functions and duties in the
manner in which it likes. He is free to exercise his discretion as provided under law. He is not
a government servant. There exists no master and servant relationship between him and
the Government. He is free to give such legal advice or assistance to private parties in all
such cases in which he is not likely to be called upon to give advice to the Government or to
conduct or argue them in the court on behalf of the State42.
His is a high office having power to enter Nolle prosequi and stop the trial by disclosing to
the court that the prosecution launched against the accused is withdrawn43.
Advocate General being a constitutional functionary high esteem is accorded to his words
and deeds in contradistinction to statutory creatures like government counsel. If a
government counsel makes a concession before the trial court without obtaining a written
instruction from the responsible officer of the Government, the concession is not binding on
41
Article 165 of the Constitution.
42
Dr Chandrabhan Singh v. State of Rajasthan AIR 1983 Raj 149.
43
Annamali v. Govt. of Tamil Nadu 1989 CriLJ 2055.
the Government. Such principle would not apply to a concession made by the Advocate-
General because he is assumed to make a statement with responsibility 44.
In some States, Government appoints law officers in the High Court and various Tribunals in
consultation with the Advocate General. He would conduct their performance reviews
periodically and could make interim appointments of Law Officers when such need arises
due to death or resignation of a Law Officer.
A Public Prosecutor is one who is appointed as per Section 24 of the Code of Criminal
Procedure. It is obvious that an Advocate General is not one so appointed. Therefore, it is
doubtful whether an Advocate General Could function as a Public Prosecutor for preferring
an appeal before the High Court in terms of Section 378 of Cr.P.C. In the view of Kerala High
court, except when appointed in the manner indicated in Section24 of Cr.P.C., the Advocate
General will not become a Public Prosecutor. He has no functions to be discharged which
are attributable to a Public Prosecutor. He can’t become a Public Prosecutor of the High
Court simply because under Constitution of India he shall represent the Government in High
Court in important civil and criminal Proceedings45.
In the State of Rajasthan, the Advocate General had by notification been appointed by the
Government as the Public Prosecutor for the State under Section 24 of Cr.P.C. Though
Section 24 of Cr.P.C does not contemplate appointment of a Public Prosecutor by mere
notification circumventing the procedure mentioned therein, the Supreme Court of India
upheld the notification and held that the Advocate General could function as Public
Prosecutor for the High Court46.
In the year 2005, Section 25A was brought in amending the Code of Criminal Procedure,
1973. Sub–Section (8) of it states that the Advocate General for the State is not subordinate
to or within the hierarchy of Directorate of prosecution, while performing the functions of a
Public Prosecutor. There has been no provision in the Code of Criminal Procedure describing
the Advocate General as a Public Prosecutor. However, the provision referred above
indicates a presupposition that the Advocate General is competent to act as a Public
Prosecutor. As per Section 302(1) of Cr.P.C the Advocate General is entitled to conduct
prosecution before a Magistrate. There is no corresponding provision concerning his right to
appear before Sessions Court.
In recognition to the constitutional status of the Advocate General, the Malimath committee
suggested that the Director of prosecutions should be appointed in consultation with the
Advocate General and should also function under his guidance. However, Parliament did not
accept this suggestion and as a result the Advocate General is not conferred with any
powers over the Director of Prosecution. The Advocate General and the Public prosecutor
are two separate and distinct entities in law. The former is a creature of, and derives
powers, from the constitution. The latter is a creature of the statute. The interface between
the Advocate General and the Directorate of prosecution is hazy. Functioning as a Public
Prosecutor, Advocate General is a unique breed of prosecutor but out of the net of the
44
Periyal v. State of Kerala AIR 1990 SC 2192.
45
T.A. Rajendran v. P.V. Ayappan 1985 CriLJ 1287.
46
State of Rajasthan v. St. Manbar (1981) 2 SCC 525.
Directorate of Prosecution. It is desirable to introduce clear provisions in the Code of
Criminal Procedure about the role of Advocate General as a Public prosecutor and the
interplay between him and the Directorate of prosecution.

CONCLUSION
To sum up, Criminal Justice System in India has grown up and fulfilled the concept of
fairness in criminal process by separating the branches of investigation, prosecution,
adjudication. Police, Prosecutors, Judges are independent from each other wielding powers,
discretions, assigned to them by law. Apparently, there is structural independence for
prosecution wing of the State. However, there is no follow up further. A great deal of
refinement remained unattended. All varieties of Public Prosecutors and all categories of
public prosecutions launched by any department of the State shall be within the controlling
authority of the Directorate of prosecution. The Directorate shall be empowered to recruit,
appoint, select the prosecutors and rest of the agencies of the State and the Judiciary shall
be relieved of any role in this regard. The Directorate shall be equipped and empowered to
impart training to every category of prosecutors, since it is the quality and competence of
the human resource that determines the success and survival of the organisation. The Head
of the Directorate shall always be a Prosecutor with adequate knowledge and flair for
administration. There shall be a mini directorate at each district headed by the Public
Prosecutor of the district. At the District and the State level, sufficient academic and office
staff shall be provided to study cases, and assist the prosecutors in due discharge of their
functions in advising the investigators, in assisting the courts, in informing the Government
on various issues. Suitable changes in law should address these structural concerns of the
organisation of prosecutors. Directorate of prosecution serves a symbolic significance and
does nothing more substantial in the present legal set up. The kind of Directorate aspired
for and the kind of Directorate provided is vastly different from a functional perspective.
Lamenting about the investigation and prosecution, the Supreme Court of India agonisingly
noted that discharge of accused by courts in several cases when charge sheets were filed
sufficiently indicate that either the investigation or the prosecution or both are lacking.
There shall be legal advice to investigator even during investigation. There shall be strong
and competent prosecution machinery. The Directorate of prosecution shall be one akin to
the Director of Prosecutions in U.K. in the functional aspects and shall be entrusted with the
task of supervision of prosecutions47.
In England and Wales, there is Crown Prosecution Service created by Prosecution of
Offences Act 1985. It has a duty to take overall prosecutions instituted by the police and has
a power to take over other prosecutions. There is a published Code for crown prosecutors.
Supplementing it there is a five-volume Prosecution Manual. There is published “Statement
of purposes and Values”, which act as a mission statement. It makes commitments on such
matters on openness, non-discrimination, fair treatment of victims, witnesses and accused 48.
Prosecution service in India is miles away from its counter-part in U.K. Prosecution are a
public service. There shall be a review of prosecution service with reference to the
structure, powers, procedures and policies. Law shall be amended providing statutory
supervision for prosecutors over the investigated cases. A comprehensive legislation on
Directorate of Prosecution, Prosecutors, Public Prosecution, with clear description of
prosecutorial decisions, accountability and ethics of prosecutors and prosecutions is the
immediate desideratum.

47
Vineet Naraian v, Union of india 1998 CriLJ 1208.
48
Andrew Ashworth, The Criminal Process an evaluation Study, 2 nd edn., Oxford University Press, 1998, pages
176 to 180.
BIBLIOGRAPHY
Statutes referred
 Code of Criminal Procedure, !973.
 Constitution od India.
 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Books referred
 Andrew Ashworth. The Criminal process an evaluation study; 2nd edition; Oxford
University Press; 1998; pg. 176 to 180.
 Criminal Procedure; R.V. Kelkar; 6th edition; Eastern Book Company.