JAMIA MILLIA ISLAMIA

FACULTY OF LAW

CODE OF CRIMINAL PROCEDURE ASSIGNMENT

ON

HIERARCHY OF PUBLIC PROSECUTOR AND PROCEDURE OF

APPOINTMENT

Submitted To- Submitted By-

Dr. Mohd. Asad Malik Abhinav Pandey

Associate Professor Roll no. 04

Faculty of Law B.A.LL.B (Self-Financed)

Semester-VIII
ACKNOWLEDGEMENT

I am deeply indebted to Dr Mohd. Asad Malik, Faculty of Law, Jamia Millia

Islamia, New Delhi for his initial and continuous encouragement and guidance,
without which this work would have been very difficult for me. If I have failed to
come up to his expectation, both on facts and interpretation, I alone am
responsible.

I would be failing in my obligations if I do not convey my thanks to all the authors

of the books and articles from which I have quoted and made references.

I am very thankful to everyone who have had given me their direct and indirect
support to complete my work and give support to outcome from and difficulty
while completing my work.

I wish to thank my parents and my brother for their moral support and constant
inspiration. I am also thankful to those who have not being mentioned by name but
nevertheless having been of invaluable help in their inscrutable ways. Lastly, I
would like to thank the Almighty God, without whose blessing no one can
accomplish anything.

-ABHINAV PANDEY
INTRODUCTION

In India, after commission of a crime, the police, which is the investigative authority,
investigates the case and files the charge sheet, subsequent to which the public prosecutor
prosecutes the case. Before independence, the Prosecutors were a part and parcel of the police
department. They were subordinate to the police department of the respective States. Prior to the
Code of Criminal Procedure, 1973 (‘CrPC’) public prosecutors were accountable to the Deputy
Superintendent of the Police (‘DSP’).1 Since 1973, however, the assistant public prosecutors are
not under the direct control of the DSP and are detached completely from the control of the
police. Instead, they are now answerable to the District Magistrate at the district level and to the
Director of Prosecutions at the state level.

Prosecutors are important pillar of Criminal Justice System. A Public Prosecutor is considered
as the agent of the state to represent the interest of common people in the criminal justice system.
The prosecution of the accused is the duty of the state but not individually the duty of the
aggrieved party. They are appointed in almost all countries. The Public Prosecutor is defined in
section 24 of Cr.P.C. They serve as the basic principle of Rule of Law i.e. audi alteram partem.
It is duty of the prosecutors to strike balance between the competing interests of conviction of
guilty, protection of citizen’s rights and freedoms and protection of the public from crimes.

In Jaipal Singh Naresh V State of Uttar Pradesh, it was pointed out by the Allahabad High Court
that the intention of parliament to keep separate prosecution from the police is to investigate the
offence and identify the guilt of accused. The Prosecutor is not under duty to represent police but
has a duty to represent Crown. He should perform his duty without favor or fear. Hence, it was
held that the prosecution should not be a part of investigation directly or indirectly. 2Before the
charge sheet has been filed matter lies in hands of police but once case comes in court, it is
prosecutor who has duty to represent the matter. However, the role of police and Prosecutors is
complementary to each other. Mutual Cooperation between police and prosecutor is necessary
for justice system, it is prosecutor who provides legal advice to the police at the time
investigation and filling of chargesheet.
1
Madan Lal Sharma, 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, 187 (1997),
http://www.unafei.or.jp/english/pdf/RS_No53/No53_21PA_Sharma.
2
1976, Cr. L. J. 32.
Section 2(u) of the Code of Criminal Procedure defines,

“A person who is appointed under Section 24 of CrPC and it also includes any person who is
acting under the directions of Public Prosecutor.”

In the case of Babu v. State of Kerala3, The Court observed that Public Prosecutors are ministers
of justice who is duty bound to assist the judge in the administration of justice.

The role of the public prosecutor was defined by the Supreme Court in Sheonandan Paswan v.
State of Bihar4 as, “a duty to represent the executive for trying the offender. While broadly his
responsibility is to see that the trial results in conviction, but he need not be overenthusiastically
concerned about the outcome of the case. He acts as the officer of the court and is duty bound to
assist them and ensure that the accused is not unfairly treated. He may withdraw from a case for
reasons like public interest, paucity of evidence and can never surrender this power to withdraw
to anyone else”.

However, in the 197th Law Commission Report, the view of the Supreme Court in R. Sarala v.
T.S. Velu5 was quoted to stress that the role of the public prosecutor should be limited to the post
investigation stage as they are the officers of the court and their work is inside the court, which
consequently removes their role or responsibility in the investigation stage.6

HIERARCHY OF PUBLIC PROSECUTOR

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
justice administration is the area earmarked for the States in the Indian federation by the
Constitution of India7, the organizations are to be built in by the states. Sections 24, 25, 25A of
Cr.P.C spell out the organization of Public Prosecutors. These provisions conceive of a separate
3
1984 (KLT) 165.
4
Sheonandan Paswan v. State of Bihar, (1983) 1 SCC 438: AIR 1983 SC 194.
5
R. Sarala v. T.S. Velu, (2000) 4 SCC 459: AIR 2000 SC 1731.
6
Public Prosecutor’s Appointments, Law Commission Of India Rep. No. 197 (2006).
7
Seventh Schedule, List III item 1 (Criminal law), item 2 (Criminal Procedure). List II item 2 (Police) item 4
(Prisons and reformatories).
and independent prosecution department. Its independence lies on the fact that it is separate from
police. A Directorate of prosecution 8 is put in place 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.

Section 24 of Cr.P.C talks about the hierarchy and appointment of Public Prosecutors in the
District Court and High Court by the state government and central government respectively.
Hierarchy of Public Prosecutor according to Section 24 of CrPC is as follows:

 The Public Prosecutor appointed by Central Government

 The Public Prosecutor appointed by State Government

 Additional Public Prosecutor appointed by State Government.

 Special Public Prosecutor appointed by Central Government

 Special Public Prosecutor appointed by State Government.

APPOINTMENT OF PUBLIC PROSECUTOR & ADDITIONAL PUBLIC

PROSECUTOR

There are various categories of public prosecutors in India and the mode of appointment differs
between categories. 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 years 9. 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

8
Section 25 A Cr.P.C., was inserted by Code of Criminal Procedure (Amendment) Act 25 of 2005 with effect from
23-6-2006.
9
Section 24 (7) Cr.P.C, 1973.
has been in practice as an advocate10. Therefore, only advocate is made eligible to become
Public Prosecutor or Additional Public Prosecutor.

1. At the High Courts

At the High court level, The Central Government or the State Government appoints public
prosecutors under section 24 of the CrPC in consultation with the High court for conducting
any prosecution, appeal or other proceedings.

Section 24(1) of the CrPC defines,

“For every High Court, the Central Government or the State Government shall, after
consultation with the High Court, appoint a Public Prosecutor and may also appoint one or
more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal
or other proceeding on behalf of the Central Government or State Government, as the case
may be”.11

These rules are alterable by the respective states. It is discretion on part of government to
either appoint or nor to appoint one or many additional Public Prosecutors for the High
Courts. 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.

2. At the district level.

While appointing Public Prosecutor for the districts 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. The provision for appointment of Public prosecutor at district

10
Section 24 (9) Cr.P.C., 1973.
11
Section 24 (1) Cr.P.C., 1973.
 level states that The Central Government ‘may’ appoint one or more Public Prosecutors in
any district, or local area. Thus it totally depends upon the discretion of the government.

Section 24(2) of the Code defines,

“The Central Government may appoint one or more Public Prosecutors for the purpose of
conducting any case or class of cases in any district or local area.”12

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. The central government does not need to to consult any authority in appointing a
Public Prosecutor in the districts.

However, the appointment of The Public Prosecutor made by the central government differs
from the procedure of appointment of the same by the State Government. It becomes
mandatory for the state government to appoint a public prosecutor for each district. there is
no escape for the State Government and it shall appoint at least one Public Prosecutor in
every district.

Section 24(3) of CrPC deals with the provision of appointment by state government. It
defines,

“For every district, the State Government shall appoint a Public Prosecutor and may also
appoint one or more Additional Public Prosecutors for the district: Provided that the Public
Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also
to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for
another district.” 13

However, appointment of Additional Public Prosecutors is 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.

PROCEDURE OF APPOINTMENT
12
Section 24 (2) Cr.P.C., 1973.
13
Section 24 (3) Cr.P.C., 1973.
The procedure of appointment of Public Prosecutors and the Additional Public Prosecutors of the
State Government is similar. The District Magistrate of each district is responsible for preparing
a panel of names of advocates and the State Government shall choose the persons for
appointments only from those panels. No person other than those whose names have been
mentioned in the panel can be appointed by the State Government.

Section 24(5) of the code defines,

“No person shall be appointed by the State Government as the Public Prosecutor or Additional
Public Prosecutor for the district unless his name appears in the panel of names prepared by the
District Magistrate under sub- section (4)”.14

The preceding clause of the same section makes it mandatory for the District Magistrate to
consult with the session judges. It is not the exclusive forte of the District Magistrate,
since he shall consult the Sessions Judge and then only prepare the panel. Thus,
the District Magistrate shall ascertain the views of the Sessions Judge concerned and prepare the
panel making the recommendations 15. 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 Government 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.

Section 24(4) of CrPC reads,

“The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of
names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or
Additional Public Prosecutors for the district.”16

The concept of ‘consultation’ referred to in Section.24 of Cr.P.C and the method of it has been
discussed in Harpal Singh Chauhan v. State of U.P.17. The Supreme Court of India held,

14
Section 24 (5) Cr.P.C., 1973.
15
Rule 5, The Andhra Pradesh Law Officers (Appointment and conditions of service) Rules, 1999.
16
Section 24 (4) Cr.P.C., 1973.
17
AIR 1993 SC 2436.
“When Sub-section (4) and Sub-section (5) of Section 24  of the Code, speak about preparation
of a panel, out of which appointments against the posts of Prosecutor or Additional Public
Prosecutor have to be made, then the Sessions Judge and the District Magistrate are required to
consult and discuss the names of the persons fit to be included in the panel and to include such
names in the panel. The expressions "panel of names of persons", do not mean that some names
are to be suggested by the Sessions Judge and some comments are to be made, in respect of
those names by the District Magistrate, without proper consultation and discussion over such
names. The statutory mandate ought to have been complied with by the District Magistrate and
the Sessions Judge in its true spirit.”

There has to be a sitting and discussion of the District Magistrate and the session judges over the
names to be empanelled.

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 to panel preparation exercise and
make appointments.18

The total number of names for the post that are to be empanelled is not referred to by the Code of
Criminal Procedure and it is left to the subordinate legislation or circular orders of the respective
states. However in the State of Andhra Pradesh, The Andhra Pradesh Law Officers
(Appointment and conditions of service) Rules, 1999 is silent about the number of persons to be
empanelled for each post.

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 19.
Where no Assistant Public prosecutor is available for the purposes of any particular case, the
18
Section 24 (6) Cr.P.C. 1973.
19
Section 25 (1), (1-A) Cr.P.C. 1973.
District Magistrate may appoint any other person to be the Assistant public Prosecutor in charge
of that case304. Thus Assistant Public Prosecutors can be appointed by the Central Government,
State Government and in a certain contingency by the District Magistrate.

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 full time 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 State 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.

SPECIAL PUBLIC PROSECUTORS

The Special Public Prosecutors are appointed under Sec 24 (8) of the Code of Criminal
Procedure 1973. They deal with the special cases registered under the Special Laws. At least 10
years practice is mandatory for the candidates willing to be Special Public Prosecutors. Also, the
Special Public Prosecutors are appointed for CBI Courts under Sec 24 (8) of the Code of
Criminal Procedure, 1973. As per notification Directorate of Prosecution 2002, the Central
Government issues notifications to appoint special Public Prosecutors in CBI courts.

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” 20. 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 district21, discretion seems to have been conferred upon the State
Government to appoint a special Public Prosecutor22. 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 appointments23.

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 prosecution of
crime and criminal. Before the government resorts to making such appointment, 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. 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

20
Section 24 (8) Cr.P.C.
21
Section 24 (3) Cr.P.C.
22
Section 24 (8) Cr.P.C.
23
Susey Jose v. Janardhan Kurup, 1994 (2) ALT (Crl ) 687 (Ker).
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.24 But 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 Prosecutor.25

POLITICIZATION IN APPOINTMENT
The appointments of Prosecutors have become dependent on political affiliations rather than
merit. The reason behind the politicization of the process could be the fact that the rules laid
down for the appointment are alterable by the respective states. Since the government in each
state undergoes fresh elections every five years and each political party has its wing of lawyers
as supporters who might be favoured, to the prejudice of others. In order to gain political
support, offering such benefits in the form of appointments to important positions is a very
common phenomenon.26

As was rightly stated by Sairam Sanath Kumar and Dr. V. Krishna Ananth, the appointment of
public prosecutors seems to be determined, to a great extent, by political affiliations, than by
merit.27 To avoid the risk of political manipulations, there could be a separate entrance exam for
public prosecutors in the Sessions Court and High Court with eligibility of fixed minimum tenure
of experience as a lawyer in the respective courts as this will ensure transparency as well as
practical exposure to the functioning of these courts.

In Kumari Shrilekha Vidyarth etc. v. State of UP 28 the newly formed Government in 1990, issued
termination order of all the Prosecutors and Govternment Counsels in all the Districts. It had
asked the administration to prepare a list of new names. This order by the UP Govt. was
unreasonable. This order was scrutinized by the Supreme Court which held it to be arbitrary and
unfair. It was also held to be violative of Article 14 of the Indian Constitution. Ultimately, The

24
Devineni Seshagiri Rao v. Government of AP. 2004 Cri LJ 52.
25
Madhao Singh v. State of Rajasthan, 2002 CriLJ 1694.
26
V. Radha Krishna Krupa Sagar, The Role Of Public Prosecutor In Criminal Justice System 174-175 (2013).
27
Sairam Sanath Kumar and V. Krishna Ananth, The Prosecutorial System in our Criminal Justice Administration –
A Close Look, nualS l.J. 2, 14 (2008).
28
AIR 1991 SC 537.
Supreme Court has nullified that Govt. order and retained the positions of part time Prosecutors
who had suffered.

Again in State of UP v. Johrimal29, the Supreme Court of India held that the State Govt. should
not rescind the appointment because of change in Govt. Unfortunately the appointments of
Prosecutors depends on political connections, rather than merit.

This is an unwelcome practice to remove the earlier appointments in toto. In V. Ramchandra v.

M.C. Jagadhodhara Gupta30, Justice Ramaswamy of Andhra Pradesh High Court has narrated
the qualities of Prosecutors. The qualities like, impartiality, co-operation towards the court,
watch on guilty to be punished, full integrity, honest, devoted, and competency are a must.
Political Interference in the appointment of office of Public Prosecutor would not ensure these
qualities.

In Elango v. State,31 the Madras High Court expressed the expectation of the judiciary from a
public prosecutor to maintain the honour and dignity of being true to the court. The court stated
that the prosecutor should not become a mouthpiece of police and must reflect allegiance to the
higher cause. The court went further to discuss the Guidelines on the Role of Prosecutors laid
down in a United Nations Congress meeting at Havana where the importance of appropriate
qualifications for a prosecutor was highlighted, owing to the essential position they hold.
Moreover, stress was laid on a method of recruitment that ensures quality and competence.

JUDICIAL TRENDS IN PUBLIC PROSECUTOR

In Vinit Narain v. Union of India32, the relationship amongst police, prosecution and the
executive has received attention of the Supreme Court of India. In this case, the Supreme Court
of India has issued specific guidelines about various functionaries of the States. Specifically, the
bureaucratic politician criminal nexus had used all the means needed to thwart investigation and
prosecution of corruption cases by the Central Bureau of investigation. After considering the fact

29
AIR 2000 SC 3800.
30
1986, Cr. L.J. 1820.
31
Elango v. State, (1998) 1 LW (Cri) 32.
32
C.W.P.No.2992 of 1997.
and circumstances of the case, the court has issued directions for the efficient and impartial
administration of justice. The Supreme Court of India has warned the concerned minister not to
interfere in the investigation and prosecution. The court stated that there are no limitations or
restrictions as to launching of prosecutor or initiation of investigations.

In Zahira Habibullah Sheikh v. State of Gujarat,33 also known as Best Bakery case, Supreme
Court has taken notice of some of the obvious irregularities in some of the cases. In this case
duties of the police and of the Prosecutors provided under the Code of Criminal Procedure were
not carried out by the police as well as by Prosecutors. There was a burning down of construction
in the city of Vadodara results in the death of 14 persons Besides this under Sections 321 Code
of Criminal Procedure 1973., the Prosecutor is entitled to withdraw prosecution of any person in
respect of specific offences for which he is tried with the consent of the court and that results in
acquittal of the accused. The Supreme Court stated the “Public Prosecutors acted more as the
defence rather than focusing on presenting the truth before Court”.

In P.M. Sunni v. State34, the Government cannot stop or stay a criminal trial by refusing to
appoint a Prosecutor either on the ground of absence of any administrative necessity or due to
paucity of funds. The appointment of a Prosecutor is a compelling constitutional necessity which
is also obligatory under the Code of Criminal Procedure.

Regarding Public Prosecutors for sensitive cases in K. I. Pavunny v. Assistant Collector 35 the
court held that for the conduct of sensitive cases like those under Customs Act and Gold Control
Act, the cases must be assigned only to those counsels who possess experience and ability in that
branch of law.

33
(2004) 4 SCC 158.
34
1986 Cr.L.J.1517, 1520 Ker.
35
(1997) 3 SCC 721.
CONCLUSION

There is a need to revisit the interpretation of the role of the prosecutors as it exists today. It is
often stated that the prosecutors are the ministers of justice and have to assist the court with the
true picture of the case without any aim of securing conviction. The role of the prosecutor while
discharging its duty of representing the state is to secure the objective of the state. That objective
should not be to secure the conviction regardless of the guilt; instead it is to secure conviction of
the guilty and acquittal of the innocent. To perform this role, the prosecutor ‘need not act as
neutral’; he is the advocate of the state and must perform that role.

Indian Prosecutors need a solid and far reaching system. The organization of criminal justice isn't
sufficiently strong to focus on the Prosecutors. The Legal executive and Judiciary in India have
intermittently attempted to shape the system of Prosecutors. Since Indian Criminal Justice isn’t
old enough and hasn’t faced obstacles, it needs time and attention and also proper scrutiny. The
term Prosecutors is defined and his prerogative of opening a criminal case is given the role in the
examination of witnesses are elaborated, however the right and duties of the Prosecutors need to
be elaborated more clearly from time to time.. The Law Commissions and Judiciary have
proposed certain changes anyway so as to keep up with the development but; it is beyond the
realm of imagination to expect to follow those changes. It will affect right of both accused and
victim thus creating imbalance.
BIBLIOGRAPHY