Subject: Code of Criminal Procedur-I

B.A.LL.B-VIIIth Sem
Subject Teacher: Dr. Md. Junaid
Teaching Material of Unit-II-(D)
Topic: Public Prosecutor and Defence Counsel-Choice of Accused-Sections 24, 25, 303, and
304 CRPC

Public Prosecutor and Defence Counsel

Public Prosecutor

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 appointed under Sections 24 and 25 of Cr.P.C.

Section 24 provides as under:

1. 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 Prosecutor, 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.

2. 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.

3. 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.
4. 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 Prosecutor or
Additional Public Prosecutors for the district.

5. 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 me District Magistrate under Sub-Section (4).

6. Notwithstanding anything contained in Sub-Section (5), where in a State there exists a

regular Cadre of Prosecuting Officers, the State Government shall appoint a Public
Prosecutor or an Additional Public Prosecutor only from among the persons constituting
such Cadre:

Provided that where, in the opinion of the State Government, no suitable person is available
in such Cadre for such appointment that Government may appoint a person as Public
Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names
prepared by the District Magistrate under Sub-Section (4).

Explanation – For the purposes of this Sub-Section:

a) “regular Cadre of Prosecuting Officers” means a Cadre of Prosecuting Officers which

includes therein the post of a Public Prosecutor, by whatever name called, and which
provides for promotion of Assistant Public Prosecutors, by whatever name called, to that
post;
b) “Prosecuting Officer” means a person, by whatever name called, appointed to perform the
functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public
Prosecutor under this Code.

7. A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public

Prosecutor under Sub-Section (1) or Sub-Section (2) or Sub-Section (3) or Sub-Section
(6), only if he has been in practice as an advocate for not less than seven years.

8. 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.
 Provided that the Court may permit the victim to engage an advocate of his choice to assist
the prosecution under this sub-section.

9. For the purposes of Sub-Section (7) and Sub-Section (8), the period during which a
person has been in practice as a pleader, or has rendered (whether before or after the
commencement of this Code) service as a 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.

Section 25 – Assistant Public Prosecutors

1. The State Government shall appoint in every district one or more Assistant public
Prosecutors for conducting prosecutions in the Courts of Magistrates.

1A. The Central Government may appoint one or more Assistant Public Prosecutors for
the purpose of conducting any case or class of cases in the Courts of Magistrates.

2. Save as otherwise provided in Sub-Section (3), no police officer shall be eligible to be

appointed as an Assistant Public Prosecutor.

3. 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 case:

Provided that a police officer shall not be so appointed-

1. if he has taken any part in the investigation into the offence with respect to which
the accused is being prosecuted; or

2. if he is below the rank of Inspector.

Role of Public Prosecutor

Section 24 deals with the Public Prosecutor. The main function of the office of Public
Prosecutor is to administer justice and to secure the public purpose entrusted with him. The
Public Prosecutor is an important officer of the State Government and is appointed according to
the provisions of this code. The Public Prosecutor is an independent statutory authority and is not
a part of any investigating agency.

It is mandatory to appoint a Public Prosecutor in all the cases when the prosecution is against the
State. The Court cannot provide any reasons like shortage of funds to appoint a Public
Prosecutor. The Advocate-General cannot become a Public Prosecutor unless he is appointed
under Section 24. The relationship between the Public Prosecutor and the Government is that of
a counsel and a client. The Public Prosecutor shall never be partial to either the accused or
prosecution.

Section 24(1) provides powers to the Central Government or State Government to appoint a
Public Prosecutor for every High Court. They can also appoint one or more Additional Public
Prosecutors. The appropriate Government can appoint the Public Prosecutors after consultation
with the High Court. The eligibility of the person to be appointed as a Public Prosecutor is that
he should be practising as an Advocate for not less than seven years.

Section 25 deals with the appointment of Assistant Public Prosecutors. The State Government
has to appoint one or more Assistant Public Prosecutors for conducting prosecutions in different
districts. The Assistant Public Prosecutors have no right to practise as advocates or defend the
accused in criminal cases. Their only work is to conduct prosecutions on behalf of the State. A
police officer who is not below the rank of Inspector and who has not taken part in the
investigation of offence can also be appointed as Assistant Public Prosecutor when there is no
availability. The Assistant Public Prosecutors are full-time Government servants.

Duties of Public Prosecutor

The prosecutor has numerous duties with respect to witnesses, key amongst which is to ensure
that all witnesses mentioned in the charge sheet are examined thoroughly and properly. The
major functions of Public Prosecutor are as under:

1. Under the Code of Criminal Procedure there is a mandate that the Public Prosecutor
should conduct prosecution in every trial placed before the Sessions Courts. (Section
225)
2. Upon appearance of accused before the court of Sessions or if an accused is brought
before the court of Sessions, the Prosecutor is under duty to open his case before the
court. The Prosecutor shall describe the charge against the accused with the proposed
evidences to be placed to prove the guilt in the court. (section 226)
3. The Public Prosecutor or the Assistant Public Prosecutors dealing with the criminal case
are empowered to represent the case directly before the Sessions court or the Magistrates
courts in all the stages of Inquiry, Trial or Appeal in the Appeallate courts. In case of
request of any private person to the Prosecutor to prosecute any person, it is mandatory
for the Prosecutor or assistant Prosecutor to take the needful action upon such request.
(section 301)
4. If an inquiry or trial is conducted before the Magistrates Court , as a special case, the
magistrate is empowered to permit prosecution to be conducted by the Police officer
above rank of Inspector. However, prior permission of the Magistrate is mandate to
permit such person to conduct the prosecution. And the Police officer who investigated
the crime is not entitled to conduct the prosecution in the same case where the accused is
prosecuted. (section 302)
5. The Public Prosecutor in the Session’s court or the Asst Public Prosecutors are
empowered to withdraw from the prosecution. However the parties to the case should
agree for the same and withdrawal can be possible at any stage before the judgment is
pronounced. Withdrawal of prosecution can be done with respect to any one offence in
the charge or from the whole offences subject to limitations under the Code of Criminal
Procedure. The impact of withdrawal is that if withdrawal is made before a charge is
framed, the accused shall be discharged. And in case of withdrawal is made after charge,
it leads to acquittal. (section 321)
6. If a case is tried by the High Court, the while exercising extra ordinary criminal
jurisdiction, the appeal will be entertained by the Supreme Court of India. In case of
Punishment for seven years or more passed by the Sessions Court, the Appeal will lie to
the High Court of the respective State Government. The Sessions court at the District
level entertains appeals from the Magistrates Courts or an Assistant Sessions Court.
(section 374)
 7. Upon inadequacy of sentence, the State Government is empowered to direct Public
Prosecutor to appeal in the respective High Courts. Even the Central Government is
empowered to direct Delhi police to appeal to the High Court if the case is investigated
by the Delhi Special Police Establishment. In such cases, only after giving reasonable
opportunity of showing cause, the sentence can be enhanced of the accused. (section 377)
8. To make an appearance in the Court and obtain an arrest warrant.
9. To obtain search warrants for conducting a search in specified premises
10. To obtain police custody remand for interrogation (including custodial interrogation) of
the accused
11. To record the evidence of accused in the police report regarding the advisability of the
prosecutions

In Ghirrao v. Emperor (1933) the court held that “the prosecutor should place before the court
all evidence in his possession whether it be in favour of or against the accused”

In Prabhu Dayal Gupta v State(1985) it was held that while presenting case, the Prosecutor
needs to be just and reasonable. Relevant evidence should be placed before the courts without
bias and prejudice, all the evidences supporting and against the prosecution case should be
categorically brought before the court to determine the guilt or innocence of an accused. An
exhaustive scene should be placed before the court without hiding or concealing any material
fact.

The role of the prosecutors under Cr.P.C was elaborately explained by the apex court in Md.
Mumtaz v. Nandini Satpathy(1987). The court observed that “a public prosecutor should be
personally indifferent to the result of the case. His duty should consist of placing all the available
evidence in order to aid the court in discovering the truth”

In Thakur Ram vs. State of Bihar (1996) the Apex Court held: “Barring a few exceptions, in
criminal matters the party who is treated as aggrieved party is the State which is the custodian of
the social interests of the community at large and so it is for the State to take all steps necessary
for bringing the person who has acted against the social interests of the community to book” The
rationale behind the State undertaking prosecutions appears to be that no private person uses the
legal apparatus to wreak private vengeance on anyone.
In the case of Jitendra Kumar @Ajju vs State (NCT OF Delhi) (1999) the High Court of Delhi
held that “the Public Prosecutor acts on the behalf of the state and they are the ministers of
justice who play a pivot role in the administration of criminal justice”.

In Zahira Habibullah vs State of Gujarat (2004), where the conduct of the ‘’ BEST BAKERY ‘’
case in the Hon’ble Gujrat High Court , involving the burning down of an establishment in
Vadodara which caused the death of 14 persons, came up for consideration before the Supreme
Court Supreme Court ordered retrial of the matter in The Hon’ble High Court of Maharastra, and
observed that in Gujarat, ‘’ The Public Prosecutor appears to have acted more as a defence
counsel than one whose duty was to present the truth before the Court’’.

In the case of Sandeep Kumar Bafna vs State of Maharashtra & Anr, (2014) the court stated that
“a Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the
accused somehow or other irrespective of the facts of the case. The attitude of the Public
Prosecutor must be fair towards the investigating agencies and as well as towards the accused.”

Choice of Accused and Defence Counsel-Section 303 and Section 304 CRPC

The basic principle of natural justice says that no one should be condemned unheard. It is a
fundamental rule of justice that the accused must be given adequate opportunity to defend the
charges against her/him. The rule of law mandates the observance of due process to the accused,
no matter how heinous the offence. Assurance of a fair trial is the first imperative for the
dispensation of justice.

Section 303 CRPC deals with right of person against whom proceedings are instituted to be
defended and provides any person accused of an offence before a Criminal Court, or against
whom proceedings are instituted under this Code, may of right be defended by a pleader of his
choice.

As per Section 303 Cr.P.C. every accused should have an opportunity to be defended by a
pleader of his choice at the time of the proceedings and should have sufficient opportunity with
his legal adviser for the purpose of his defence. In relation to the prosecution, the defence must
have an equal opportunity to prepare and present a case, and that the prosecution and defence
must have an equal position throughout the proceedings. A defence counsel should be provided
to the accused even in cases of committing capital offences where they have no right to defend
themselves. The right guaranteed under this Section is indispensable as it guarantees a fair trial.
When the accused is not represented by counsel, it is the duty of the court to put appropriate
questions to the witnesses in cross-examinations in order to find out the truth. The court also has
the duty to examine the evidence.

In the case of State of Madhya Pradesh v.Shobharam (1966), it was provided that any law that
takes away the right to defend is against the rights guaranteed in the constitution. This provision
should be construed in relation to Article 22 of the Constitution which provides the right to free
legal aid to the accused. The arrest leads to restriction of personal liberty and thus the right to
defend himself by the counsel of his choice is a compulsory right.

Unlike other functionaries under the Code, the defence counsel is not a government employee
but is employed by the accused person or his family to defend him against the alleged charges.
Nevertheless, they are considered to be the officers of the court because their existence is
indispensable to meet the purpose of a fair trial. These defence counsels acquire their right to
represent the accused by independent contracts called the ‘vakalatnama’ and are not established
under the code.

Right To Have Free Legal Aid:-

Section 30- Legal aid to accused at State expense in certain cases

(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and
where it appears to the Court that the accused has not sufficient means to engage a pleader, the
Court shall assign a pleader for his defence at the expense of the State.

(2) The High Court may, with the previous approval of the State Government, make rules
providing for-

(a) the mode of selecting pleaders for defence under sub- section (1);

(b) the facilities to be allowed to such pleaders by the Courts;

(c) the fees payable to such pleaders by the Government, and generally, for carrying out the
purposes of sub- section (1).
(3) The State Government may, by notification, direct that, as from such date as may be specified
in the notification, the provisions of sub- sections (1) and (2) shall apply in relation to any class
of trials before other Courts in the State as they apply in relation to trials before Courts of
Session.

As per Sec 304 CrPC, when the accused is not represented by an advocate in trial before the
court and when the court finds that the accused does not have sufficient means to engage an
advocate, the court shall assign a pleader to defend the accused at the State’s expenses. Apart
from Sec.304 Cr.P.C., Section 12 of Legal Services Authority Act also provided free Legal
Services to certain people including the accused who are in prison.

Objective of Free Legal Aid

(1) No accused person who is unable to afford a lawyer goes unrepresented in criminal
proceedings.

(2) Certain minimum standard of a performance of the assigned lawyers must be insisted

(3) Legal aid lawyers fees must to be paid by District Legal Services Authority.

(4) In a case where on a conviction at the time of imposing sentence, the Magistrate or Sessions
Judge is under obligation to inform the accused about the availability of free legal services at the
State expenses to prefer an appeal. If free legal services are not provided to an accused who has
no means to engage an advocate, the trial itself would run the risk of being vitiated as
contravening Article-21 of the Constitution.

The right to be defended by a legal practitioner, flowing from Article 22 (1) of the Constitution
has further been fortified by the introduction of the Directive Principles of State Policy embodied
in Article 39 A of the Constitution by the 42nd Amendment Act of 1976 and enactment of sub-
section 1 of Section 304 of the Code of Criminal Procedure. Legal assistance to a poor person
facing trial whose life and personal liberty is in jeopardy is mandated not only by the
Constitution and the Code of Criminal Procedure but also by International Covenants and
Human Rights Declarations.
Article 14 (3) (d) of the International Covenant on Civil and Political Rights entitles the person
facing the criminal charge either to defend himself in person or through the assistance of a
counsel of his choice and if he does not have legal assistance, to be informed of his right and
provide him the legal assistance without payment in case he does not have sufficient means to
pay for it.

Every person, therefore, has a right to a fair trial by a competent court in the spirit of the right to
life and personal liberty. The object and purpose of providing competent legal aid to undefended
and unrepresented accused persons are to see that the accused gets free and fair, just and
reasonable trial of charge in a criminal case.

In Maneka Gandhi v. Union of India(1978), it has been held by a Constitution Bench of this
Court that the procedure for depriving a person of his life or liberty should be fair, reasonable
and just. Court observed:

“We are of the opinion that it is not fair or just that a criminal case should be decided against an
accused in the absence of a counsel. It is only a lawyer who is conversant with law who can
properly defend an accused in a criminal case. Hence, in our opinion, if a criminal case
(whether a trial or appeal/revision) is decided against an accused in the absence of a counsel,
there will be violation of Article 21 of the Constitution.”

Section 304 in The Code Of Criminal Procedure, 1973

Legal aid to accused at State expense in certain cases-

(1) Where, in a trial before the Court of Session, the accused is not represented by a
pleader, and where it appears to the Court that the accused has not sufficient
means to engage a pleader, the Court shall assign a pleader for his defence at the
expense of the State.

(2) The High Court may, with the previous approval of the State Government,
make rules providing for-
 (a) the mode of selecting pleaders for defence under sub- section (1);
(b) the facilities to be allowed to such pleaders by the Courts;
(c) the fees payable to such pleaders by the Government, and generally,
for carrying out the purposes of sub- section (1).

(3). The State Government may, by notification, direct that, as from such date as may be
specified in the notification, the provisions of sub- sections (1) and (2) shall apply in relation to
any class of trials before other Courts in the State as they apply in relation to trials before Courts
of Session.

In Khatri (2) v. State of Bihar (1981) the court held that providing free legal aid and appointing a
defence counsel for indigent accused is obligatory.

The Supreme Court in Sukh Das v. State of Arunachal Pradesh (1986) has held that a conviction
of the accused in a trial in which he was not provided legal aid would be set aside as being
violative of Article 21 of the Constitution. But where the accused pleads guilty without the
assistance of a counsel under the legal aid scheme and was convicted by the Magistrate it was
held that the trial and conviction was not vitiated because the Magistrate was fully satisfied that
the plea was voluntary, true and genuine.

In Ram Awadh v. State of U.P,(1998) the Allahabad High Court held:

“The requirement of providing counsel to an accused at the State expense is not an empty
formality which may be not by merely appointing a counsel whatever his calibre may be. When
the law enjoins appointing a counsel to defend an accused, it means an effective counsel, a
counsel in real sense who can safeguard the interest of the accused in best possible manner
which is permissible under law. An accused facing charge of murder may be sentenced to death
or imprisonment for life and consequently his case should be handled by a competent person and
not by a novice or one who has no professional expertise. A duty is cast upon the Judges before
whom such indigent accused are facing trial for serious offence and who are not able to engage
a counsel, to appoint competent persons for their defence. It is needless to emphasis that a Judge
is not a prosecutor and his duty is to discern the truth so that he is able to arrive at a correct
conclusion. A defence lawyer plays an important role in bringing out the truth before the Court
by cross-examining the witnesses and placing relevant materials or evidence. The absence of
proper cross-examination may at times result in miscarriage of justice and the Court has to
guard against such an eventuality. ”

Probable Questions

1. Define Public Prosecutor and discuss his role.

2. “Public Prosecutor plays a vital role in criminal trail”. Comment
3. Explain the relevance of defence counsel in a criminal trail.
4. Discuss the objective of free Legal Aid to indigent persons.
5. Explain the nature and scope of section 303 and section 304 of CRPC.