RICHIK DADHICH

1742
UG IV SEMESTER
CRIME AND PUNISHMENT II
END TERM EXAMINATION 2021
TOTAL PAGES – 13

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ANSWER 1

Section 2(u) of the Code of Criminal Procedure, 1973 defines a Public Prosecutor as any
person appointed under section 24, and includes any person acting under the directions of a
Public Prosecutor. Section 24 defines the appointment and qualification of Public Prosecutor.
The Central Government and the State Government are authorized to appoint prosecutors for
conduction prosecution and other criminal proceedings.

 Clarity Regarding the Nature of Office

Now, in order to develop a nuanced understanding of the issues and challenges in the public
prosecutorial system in India, we need to understand the nature of the office of the public
prosecutor. Various provisions in the CrPC, such as Sections 199(2), 225, 302, 308, 378, 301,
385(1) and 321 confer special power to the Public Prosecutor. Since the Public Prosecutors
are officers of the Court who assist the Courts in the process of dispensation of justice, there
is a ‘public’ element attached to the nature of their office.

In the case of Reyasat Ali Khan v. State of Bihar, the Court had explicitly stated that the
office of the Public Prosecutor is a public office and he must strike a fair balance between the
competing interests of convicting the guilty, protecting citizens' rights and freedoms and
protecting the public from criminals. Further, in Darya Singh v. State of Punjab, the Court
had observed that the duty of the prosecutor is to assist the Court in reaching a proper
conclusion in regard to the case which is brought before it for trial. This means that he cannot
merely act as a council for the accused and provide a one sided or biased picture. He has to be
fair to both sides in the presentation of the case.

Thus, it could be inferred that the public at large is affected by the manner in which the
Public Prosecutor performs his duties. If he fails to perform his duties properly then the
offenders who deserve punishment would be free from the clutches of law. On the other
hand, the Public Prosecutor could not conceal any facts which would benefit the accused as it
would lead to injustice. This notion of public accountability of the Public Prosecutor has been
affirmed by the Court in Laxman Rupchand Meghwani v. State of Gujarat.

 The Need for Fair and Unbiased Appointment of Public Prosecutor

Since the Prosecutors have duties to the State, to the public, to the Court and to the accused,
they have to be fair and objective while discharging their duties. As provided under Section
24, the appointment of Public Prosecutor must be done through preparation of a panel of

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names of persons, who, in the opinion of the District Magistrate after consultation with the
Sessions Judge, are fit to be appointed as Public Prosecutors or Additional Public Prosecutors
for the district. This fitness has to be seen in the context of the role and duties attached to the
position or the post in question.

In Centre for PIL and another v. Union of India, the Court stated that appointment keeping in
mind the need for the institutional integrity and to take into consideration what is good for the
institution and not what is good for the appointee. This interpretation, when read together
with the nature of the office of public prosecutor, implies that the person must be fit to
provide assistance to the Court and perform tasks vital for the public interest.

Similarly, in P.N.S. Prakash v. Secretary to Govt of A.P., the Court has held that institutional
integrity should be the primary consideration while submitting proposals for appointment to
the post of a Public Prosecutor. The touchstone of this integrity is the office of public interest.
Thus, the factors which the District Judge may take into consideration, before satisfying
himself that an eligible advocate is fit to be empanelled for being considered for appointment
as a Public Prosecutor would include the performance of the advocate at the bar, the volume
and quality of his practice, the manner in which he conducts himself in Court, his integrity, a
blemishless background, fairness of approach to cases presented by him before the Court,
remarks passed by High Court or Supreme Court in any judgment or order etc.

While dealing with the ‘consultation’ under Section 24, the Court has observed in State of
U.P v. Johri Mal that it must be based on certain principles. While the District Judge will
analyse the competence and merit from a legal perspective, the Magistrate will also analyse
the conduct and integrity from an administrative point of view.

Further, the Court has stated in Laxman Rupchand case that the State Government should not
act as a mere rubber stamp, otherwise, the very power of the appointment conferred on it
would be frustrated. The State is obliged to act fairly and take an appropriate decision as
regards the appointment of a particular person from the panel in public interest. In other
words, it must be insured that there exists no bias, favouritism or corruption in the
appointment.

Regarding this, the Law Commission’s 197th report also states that even though the
Proscecutor is appointed by the Government, they must function independent of executive
and political influence.

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  Issues Regarding Delegation

Section 2(u) provides that Public Prosecutor means any person appointed under Section 24
and includes any person acting under the directions of a Public Prosecutor. Since it includes
any person acting under the directions of a Public Prosecutor, there is a need to ensure that
such delegation of power is done cautiously and judiciously.

In the case of Varghese John v. State of Kerala, the Court gave a broad interpretation to the
definition and held that the legislature did not intend to impose any restriction on the
interpretation of Section 2(u). Thus, if the Public Prosecutor considers any person to be
competent, such a person can be required to do so and would qualify as a Public Prosecutor
under the Section. The Court went on to state that the trial so conducted by any such person
would not be open to challenge by anyone.

It must be noted that such a broad interpretation opens the way for arbitrary appointment of
public prosecutors. The interpretation is also in complete contrast with the strict eligibility
requirements including the ‘fitness for purpose’ as provided under Section 24 and
propounded by the Courts in previous case laws such as Laxman Rupchand, Rajendra Kumar
Jain v. State and various other cited previously.

This delegation of power in the absence of any guidelines are procedural requirements has a
potential of affecting the institutional integrity of the office of public prosecutor. It is high
time that this issue is addressed by the Courts as well as the Parliament, by the means of
guidelines or a legislative amendment.

ANSWER 2

The law relating to the process of compelling the production of things has been provided
under Chapter VII of the CrPC, which includes Sections 91 to 105. During the procedure of a
trial, it might become necessary to require a person to produce a document or thing which
may be in his possession or power and which may have a bearing on a case. This can be
secured either by a summons under Section 91, or a warrant under Section 93. We now need
to look into both of these measures separately. Section 145 to 149 also deals with summoning
the witnesses to produce a document or the thing.

Section 91 empowers the court or any officer-in-charge of a Police Station concerned, to

enforce and to ensure the production of any document or other things, necessary or desirable,

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for the purposes of any investigation, inquiry, trial or other proceeding under the Code, by
issuing a summons or a written order to those in possession of such material.

In the case of Gayatri Bais v State of MP, the Court observed that one of the essential
requirements for applicability of this section is that the production of the documents
concerned is desirable and necessary for the purposes of the trial. However, it is up to the
discretion of the Court to use the power when it deems to be necessary.

The section deals with documents forming the subject of a criminal offence, as also with
documents which are or can be used only as evidence in support of a prosecution. Here, the
thing called for must have some relation to, or connection with, the subject matter of the
investigation or inquiry, or throw some light on the proceedings, or supply some link in the
chain of evidence.

Another issue which arises with respect to this section is the conflict with the right against
self-incrimination, as enshrined under Article 20(3) of the Indian Constitution. For this, we
need to look into the nature and ambit of the right against self-incrimination, weather the
accused is covered under the definition of ‘person’ under Section 91, and weather the
production of all and any document would directly amount to being ‘a witness against
oneself’.

In the case of State of Bombay v. Kathi Kalu Oghad, it was observed that that immunity from
self-incrimination would not comprehend the mechanical process of producing documents in
court which may throw a light on any of the points in controversy subject to the condition
that such documents do not contain a statement of the accused based on his personal
knowledge. A similar stance has been taken by the Court in VS Kuttan v. Ramakrishsnan,
where the Court where it was held that summons 91(1) cannot be issued to a person accused
of an offence calling upon him to produce document or thing considered necessary or
desirable for the purpose of an investigation, inquiry, trial or other proceeding.

Sections 93, 94, 95 and 97 provide for searches under warrant from a Magistrate. Search and
seizure pursuant to a warrant under section 93 obtained during an investigation, is an integral
step in an investigation. Now, Section 93 of the Act must be read together with Section 91. It
provides that such a warrant may be issued where any Court has reason to believe that a
person to whom a summons order under section 91 or a requisition under sub-section (1) of
Section 92 has been addressed, will not produce the document or thing as required by such
summons.

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Further, Section 93(1)(c) comprehends a situation where a search warrant can be issued, as
the court is unaware not only of the person but even the place where the documents may be
found, and a general search is necessary. In other words, a search warrant under this section
can be issued only in three cases- Firstly, where the court has reason to believe that the
person summoned to produce a document or thing will not produce it. Secondly, where the
document or thing is not known to be in the possession of any person. Thirdly, where a
general inspection or search is necessary.

In the case of Harbans Singh v State of Punjab, the Court had held that where a Magistrate
issues a search warrant under section 93, it should state reasons. The issuance of search
warrant is a serious matter, a clear application of mind must be shown in the order granting
the search warrant. The Court is also required to record its reasons, which should indicate that
it has applied its mind before passing the order and for that it must see that there is sufficient
material before it which justify the drastic action.

It was held in VS Kuttan Pillai v Ramakrishnan that a search under Section 93(1)(c) of the
premises occupied by the accused, without the accused being compelled to be a party to such
search would not be violative of the constitutional guarantee enshrined in Article 20(3).
Neither the search nor the seizure are acts of the occupier of the searched premises. They are
acts of another to which he is obliged to submit and are, therefore, not his testimonial acts in
any sense. Since, the accused is not a party, he is not being forced to be a witness against
himself.

Section 95 and 96 have to be read together. Section 95 provides for any publication such as a
newspaper, book or document to be forfeited and the issue of search warrants for the same.
This can be done by the State Government if it believes that the publication might contain
any matter which is punishable under the Indian Penal Code. Section 96 pertains to the
provisions for setting aside of such a forfeiture under Section 96.

In Sri Baragur Ramachandrappa & Ors v. State Of Karnataka, the Court had observed that
Section 95 and Section 96 of the Code when read together are preventive in nature and are
designed to pre-empt any disturbance to public order. While it is true that a forfeiture of a
newspaper or book or a document is a serious encroachment on the right of a citizen, but if
forfeiture is called for in the public interest it must without a doubt have pre-eminence over
any individual interest. The Court went on to state that in the presence of an efficacious

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remedy under Section 96, a warrant under Section 95 would not be a violation of
Constitutional Rights under Article 19(1)(a).

This notion has also been affirmed in State of Maharashtra v. Sanghraj Damodar, where the
Court also stated that the provision has to be construed strictly and exercise of power under it
has to be in the manner and according to the procedure laid down therein. Further, the
Government must state the grounds on basis of which the opinion was formed.

Section 100 provides for persons in charge of closed place to allow search. It provides for the
right of free ingress in case of closed premises on demand and on production of the warrant
of search by the police officer and, secondly, it seeks to ensure that searches are conducted
fairly. In order to achieve that object the law makes it obligatory, first, that at least two
independent and respectable witnesses of the locality should be present. Only if no such
persons are available or willing to be witness to search, then two such persons of another
locality may attend and witness the search.

ANSWER 3

Section 406 of CrPC provides that if it is made to appear to the Supreme Court that it is
expedient for the ends of justice to make such an order, it may direct that any particular case
or appeal be transferred from one High Court to another High Court or from a criminal court
subordinate to one High Court to another criminal court of equal or superior jurisdiction
subordinate to another High Court. However, the jurisdiction under this section arises in the
interests of justice only on an application by the Attorney-General or of a party interested.

In the case of GX Francis v Banke Bihari Singh, it was held that bitterness of local communal
feeling and the tenseness of the atmosphere afford good grounds for transfer. This is because
of the absence of a calm and detached atmosphere required for a fair trial. The transfer could
also be done if there is a reasonable apprehension on the part of a party to a case that justice
will not be done. A case can be transferred to a neutral place, keeping in view the
apprehension of the parties to an area in which no allegations of undue influence against the
prosecution be made.

The Supreme Court went for an in-depth analysis of the nature of apprehension required
under Section 406 in the case of R Balakrishna Pillai v State of Kerala. Here, the mere fact
that a non-bailable warrant is issued against the accused was not held to be a sufficient
ground to raise apprehension that accused would not get justice from the Bench issuing the

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warrant. Hence the transfer appeal was denied. The Court further stated that in order to judge
the reasonableness of the apprehension, the state of mind of the person who entertains the
apprehension is relevant but in addition to this, the apprehension must appear to the court to
be a reasonable, genuine and justifiable. In addition to this, the power of transfer cannot be
exercised on hypersensitive grounds or mini-grievances, for the entire judicial system would
be wrecked.

In the recent case of Nahar Singh Yadav v UOI, the Court relied on various precedents and
laid five broad factors to be considered by the Supreme Court for exercising the power. These
are: i) when it appears that the state machinery that there is likelihood of miscarriage of
justice due to the lackadaisical attitude of the prosecution; (ii) when there is material to show
that the accused may influence the prosecution witnesses or cause physical harm to the
complainant; (iii) comparative inconvenience and hardships likely to be caused to the
accused, the complainant or the prosecution and the witnesses, (iv) a community surcharged
atmosphere, indicating some proof of inability of holding fair and impartial trial because of
the accusations made and the nature of the crime committed by the accused, and (v) existence
of some material from which it can be inferred that some persons are so hostile that they are
interfering or likely to interfere either directly or indirectly with the course of justice.

It must be noted that the Section does not vest in the Supreme Court the power to transfer a
case during investigation. In Ram Chander Singh Sagar v State of Tamil Nadu, it was held
that if the accused is directed to appear in a far-off court during investigation stage it is for
him to move that court for appropriate relief. In Sukhdev Singh Sodhi vs The Chief Justice
And Judges of The PEPSU High Court, the court held that the power of transferring of cases
with the Supreme Court does not extend to transfer of any contempt proceeding which is
pending before the High Court.

Further, in the landmark judgement of A.R. Antulay v. R. S. Nayak, the Court had observed
that Section 406 only provides for the Supreme Court’s power to transfer cases from on High
Court to another. The Supreme Court does not have jurisdiction to transfer cases to itself.
Only the parliament by law has the power to create or increase the jurisdiction and no other
Court superior or inferior has that power. Since the accused has the right not be separated or
treated differently, a direct transfer of the case to the Supreme Court would be a violation of
Article 14 and Article 21 of the Constitution.

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ANSWER 5

Section 303 of CrPC provides that any person accused of an offence before a Criminal Court,
or against whom proceedings are instituted, may be defended by a pleader of his choice. This
not only contemplates that the accused should be at liberty to be defended by a pleader at the
time the proceedings are actually going on, but also implies that he should have a reasonable
opportunity, if in custody of the police, of getting into communication with his legal adviser
for the purpose of his defence.

Further, Section 304 of CrPC provides for the legal aid to be provided to the accused at State
expenses in certain cases. This section enables the Sessions Court to assign a pleader for the
defence of the accused at the expense of the State provided he is unrepresented and the court
is satisfied that he has no sufficient means to engage a pleader. The selection of such pleader,
the facilities to be given to him by the court and his remuneration are to be governed by the
rules that may be framed by the High Court in this regard with the previous approval of the
State Government.

Now, in order to develop a complete understanding of relevance of the right to council, these
provisions have to be read along with the Constitutional provisions and case laws. The right
to counsel springs from Article 22 of the Constitution of India which provides that no person
who is arrested shall be detained in custody without being informed, as soon as may be, of
the grounds for such arrest nor shall he be denied the right to consult, and to be defended by,
a legal practitioner of his choice. In the case of Tika v State of UP, the Court had held that An
accused has a right to be defended by a counsel of his choice not only at the trial but at the
hearing of the appeal also by virtue of Article 22(1).

Article 39A provides for equal justice and free legal aid to the person who are economically
disable and have no means to get justice. This article promotes the justice by providing free
legal aid to the incapable person equally, there shall not be any discrimination on any basis.
Hence, Article 39A should be read with Article 14 which is granting of free legal aid on the
basis of equal opportunity to all the people even to the economically disabled. Hence, the
Courts in order to promote justice have added various elements to give legal aid to the
person.

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In M.H.Hoskot v. State of Maharashtra, the Supreme Court observed that generally provision
of free legal services is given to a person who is indigent or otherwise disabled from securing
legal assistance. In the spirit of the rule of law the State is required to provide free legal
service to the indigent person under Article 21. In Kishore Chandra v State of H.P, it was
observed that the right to legal assistance doesn't include any incompetency and the lawyer
should be competent and experienced to provide an effective defense.

Further, in Khatri v. State of Bihar, the Court held that the State is under a Constitutional
mandate to offer free legal aid to an indigent accused person, and stretch this Constitutional
obligation to provide legal aid not only when the trial commences but also when the accused
is produced before the Magistrate or also when he is remanded from time to time which
means he can get legal aid immediately after his arrest. In addition to this, the Court also
observed that The Magistrate or Sessions Judge must inform the accused when he puts in first
appearance before the court that he is entitled to free legal aid, if he is unable, a counsel to
defend him.

The Supreme Court in Suk Das v. Union Territory of Arunachal Pradesh, has gone a step
further and has categorically laid down that any failure to provide free legal assistance to an
indigent would render the trial vitiate or may set aside the conviction and sentence. The
Supreme Court has held that a conviction of an accused given in a trial in which the accused
was not provided legal aid would be set aside as being in violation of Article 21 of the
Constitution. Here, it was also clarified that the right to free legal aid is not dependent on the
question whether the accused applies for it or not. An accused having sufficient means cannot
claim for legal assistance of lawyer at the expenses of the State particularly when he has
already engaged a lawyer.

Apart from this, in order to comply with the guidelines for arrest laid down by the Court in
D.K.Basu vs. State of W.B., Section 41-D was inserted in CrPC. which provided that when
any person is arrested and interrogated by the police, he shall be entitled to meet an advocate
of his choice during interrogation, though not throughout interrogation.

Thus, the aforementioned case laws and provisions directly lead to the inference that the right
to be represented by a council is fundamentally important and has been considered as an
essential requirement for a fair trial. It has to be ensured that justice and fair trial are available
to the accused during all the stages of criminal proceedings. Further, this right must available
to the accused person when they are most vulnerable and lack of access to legal advice.

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ANSWER 6

The nature of the office of Public Prosecutor has been defined under Section 2(u) and Section
24 of the CrPC. Now, Section 321 provides that the Public Prosecutor or Assistant Public
Prosecutor in charge of a case may, with the consent of the Court, at any time before the
judgment is pronounced, withdraw from the prosecution of any person either generally or in
respect of any one or more of the offences for which he is tried. The proviso to the section
lays down that consent of the Central Government has to be obtained before a Public
Prosecutor or Assistant Public Prosecutor moves the court for withdrawal of the case,
whenever the offence falls within the categories mentioned in sub-clauses (i) to (iv) of the
proviso.

Section 321 is an enabling one and vests in the Public Prosecutor the discretion to apply to
the court for its consent to withdraw from the prosecution of any person. The consent, if
granted, has to be followed up by his discharge or acquittal, as the case may be. The section
gives no indication as to the grounds on which the Public Prosecutor may make the
application, or the considerations on which the court is to grant its consent. In granting the
consent the court must exercise a judicial discretion.

In Rajendra Kumar Jain v. State, it was held that the Public Prosecutor may withdraw from
the prosecution of a case not merely on the ground of paucity of evidence but also in order to
further the broad ends of public justice and such broad ends of public justice may well
include appropriate social, economic and political purposes. The Court also stated that it shall
be the duty of the Public Prosecutor to inform the Court and the Court must appraise itself of
the reasons which prompt the Public Prosecutor to withdraw from the prosecution.

While discussing the grounds for withdrawal from prosecution in Subhash Chander v. The
State, the Court observed that in certain circumstances, the government might consider a case
to be withdrawn on grounds of policy or reasons of public interest relevant to law and justice
in their larger connotation and request the Public Prosecutor to consider whether the case or
cases may not be withdrawn. Here, the Prosecutor will give due weight to the material placed,
the policy behind the recommendation and the responsible position of Government which, in
the last analysis, has to maintain public order and promote public justice. However, the
decision to withdraw must be his.

Further, in the case of Balwant Singh v. State of Bihar, the independent role of the Public
Prosecutor in making an application for withdrawal from a prosecution was emphasised. It

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was held that the statutory responsibility for deciding upon withdrawal vested in the Public
Prosecutor and the sole consideration which should guide the Public Prosecutor is the larger
factor of the administration of justice and neither political favour nor party pressure or the
like. Thus, the Prosecutor should not allow himself to be dictated to by his administrative
superiors to withdraw from the prosecution.

It must be noted that the prosecutor acts as a limb of the judicial process, and not as an
extension of the executive. He has to decide about withdrawal by himself, even where
displeasure may affect his continuance in office. None can compel him to withdraw a case.
The Law Commission, in its 197th Report, also emphasised on autonomy of the Public
Prosecutor while stating that the Government should ensure that public prosecutors are
independent of the executive, and are able to perform their professional duties and
responsibilities without interference or unjustified exposure to civil, penal or other liability.

In Bairam Muralidhar v State of AP, it was held that even though the Government may have
ordered, directed or asked a Public Prosecutor to withdraw from a prosecution, it is for the
Public Prosecutor to apply his mind to all the relevant material and, in good faith, to be
satisfied thereon that the public interest will be served by his withdrawal from the
prosecution. This notion has also been affirmed in Abdul Karim v. State of Karnataka, where
it was held that notwithstanding any Government pressure, the Prosecutor’s independent
satisfaction regarding the furtherance of public interest must be there.

Now, in order to act as a double check on the decision of the Public Prosecutor, it was held in
Bairam case that the Court must also be satisfied that the Public Prosecutor has applied his
mind independently thereto, that the Public Prosecutor, acting in good faith, is of the opinion
that his withdrawal from the prosecution is in the public interest, and that such withdrawal
will not stifle or thwart the process of law or cause manifest injustice. In other words, this
power is not an absolute power; it can be exercised only with the consent of the court. The
curb thus placed on the power is to ensure that it is not abused or exercised for improper
reasons. The court gives its consent in the exercise of its judicial discretion and before
granting consent, it must be satisfied that the grounds stated for the withdrawal are proper
grounds, grounds which, if true, would make the withdrawal in furtherance of the object of
the law.

To summarise, it could be said that no specific categories of grounds can be strictly drawn
where withdrawal of prosecution can be permitted. The paramount consideration is the

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interest of the administration of justice. The discretion to withdraw from the prosecution is
that of the Public Prosecutor and none else. While the Government may suggest to the Public
Prosecutor that he may withdraw from the prosecution but no one can compel him to do so.

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