ALIGARH MUSLIM UNIVERSITY

MALAPPURAM CENTRE, KERALA

Cr.P.C
Tutorial
Topic- Public Prosecutor and Defence Counsel-
Choice of accused- S.24, 25, 303 & 304

Submitted to Submitted by

Mr.Alinihas V. Kunjali Singh

Assistant Professor GK7931
Department of law 18BALLB34
Content TABLE TS Page No. Page
No.
Introduction 03

Public Prosecutors 04

Public Prosecutors for high courts 05

Public Prosecutors for the districts 05

Assistant Public Prosecutors 06

Role of Public Prosecutors 06

Duties of Public Prosecutors 07

Choice of the accused and Defence 08

Counsel- Section 303 and 304

Right to have legal aid 10

Objective of free legal aid 11

Conclusion 11
 INTRODUCTION

Criminal Procedure Code, 1974 has been devised to create the necessary machinery for the
detention of crime, arrest of criminals, collection of evidence, recording and framing of charges,
determination of the guilt or innocence of the person, and the imposition of suitable punishment
on the guilty person.

There are copious functionaries under the Code of Criminal Procedure,1973 who accommodate to
regulate the various provisions of the code. The functionaries are necessary for the proper
functioning of the code. The different functionaries mentioned under the code are:

1) POLICE
2) THE PUBLIC PROSECUTORS
3) THE DEFENCE COUNCELS
4) THE JUDICIAL MAGISTRATES

Here we will only discuss the roles and function of public prosecutors and choice of accused and
defence counsels.

PUBLIC PROSECUTORS

A crime may be wrong not only against a private but is additionally against the society. It is
because of this reason that the state, which represents the collective of people, participates in the
criminal trial of an accused, especially if the crime is of cognizable nature. Therefore such cases
are prosecuted by the public prosecutors appointed by the state governments. Public Prosecutor or
Assistant prosecutor is the state counsel for such trials. As per section 2(u), the prosecutor means
a person appointed under Section 24 and includes a person acting under the directions of the
general public prosecutor.

Prior to the enactment of the Criminal Procedure Code of 1973, public prosecutors were attached
to the police department and they were responsible to the District Superintendent of Police.
However, after the new Code of Criminal Procedure came into force in 1973, the prosecution wing
has been totally detached from the police department. The prosecution wing in a state is now
headed by an officer designated as the Director of Prosecutions. In some of the states, he is a senior
police officer and in others, he is a judicial officer of the rank of District and Sessions Judge. He
is assisted by a number of Additional Directors, Deputy Directors and Assistant Directors, etc.

PUBLIC PROSECUTORS AND ADDITIONAL PUBLIC

PROSECUTORS FOR “HIGH COURTS”

In this connection following points may be noted.:

(a) A person shall be eligible to be appointed in High Court as Public Prosecutor if he has been
in practice as an advocate for not less than seven years; [S. 14(7)] however, it has been
clarified by Section 24(9) that the period during which a person has been in practice as a
pleader, or has rendered (whether before or after the commencement of the Code) service
as any prosecuting officer, by whatever name called, shall be deemed to be the period
during which such person has been in practice as an advocate.
(b) The appointing authority can make the appointment only after consultation with the High
Court. [S. 24(1) ]
(c) The Central Government shall appoint a Public Prosecutor and may also appoint one or
more Additional Public Prosecutors for conducting in a High Court any prosecution, appeal
or other proceeding on behalf of the Central Government. [S. 24(1)].
(d) Similarly, the State Government shall appoint a Public Prosecutor and may also appoint
one or more Additional Public Prosecutors for conducting in a High Court any prosecution,
appeal, etc., on behalf of the State Government. [S. 24(1)]
(e) The Central Government or the State Government may appoint, for the purposes of any
case or class of cases, an advocate who has been in practice for not less than 10 years as a
Special Public Prosecutor; [S. 24(8)] the clarification regarding the period given in sub-
para.(a) above is applicable here also.
(f) The appointment of a Public Prosecutor, as envisaged under Section 24(1) CrPC, in the
High Court is different from the appointment of a Public Prosecutor for the District Courts
 and therefore, the notification appointing Public Prosecutor in District Court did not enable
the Public Prosecutor to represent State in appeal.

PUBLIC PROSECUTORS AND ADDITIONAL PUBLIC

PROSECUTORS FOR “THE DISTRICTS”

(a) A person shall be eligible to be appointed as a Public Prosecutor or Additional Public

Prosecutors if he has been in practice as an advocate for not less than seven years; [S. 24(7)] the
explanation regarding the period given in para. 3.6(a) above is applicable here also.

(b) 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 the Public Prosecutor or Additional Public
Prosecutors; [S. 24(4)] and no person shall be appointed as the Public Prosecutor or Additional
Public Prosecutor for the district unless his name appears on such panel; [S. 24(5)] however, 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." But if, in the opinion of the State Government, no suitable person is available in such
cadre for such appointment then the government may appoint a Public Prosecutor or an Additional
Public Prosecutor from the panel of names prepared by the District Magistrate as mentioned above.
[S. 24(6)]

(c) Consistent with the above rules, the State Government shall appoint a Public Prosecutor and
may also appoint one or more Additional Public Prosecutors for the district; [S. 14(3)] further it is
possible 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.

(d) The Central Government or the State Government may appoint for the purposes of any case or
class of cases, an advocate who has been in practice for not less than 10 years as a Special Public
Prosecutor [S. 24(8)]. The explanation regarding the period given in para. 3.6(4) above is
applicable here also.
Nothing in Sections 24(8) and 24(9) restricts the power of the State Government to appoint Special
Public Prosecutors in public interest. It can also refuse to appoint a Special Public Prosecutor in a
particular case for sufficient reasons." It may appoint a Special Public Prosecutor in a case and
insist that he be paid by the victim or his dependents.

ASSISTANT PUBLIC PROSECUTORS

Section 25 makes provisions prescribing eligibility qualifications for being appointed as Assistant
Public Prosecutor as well as provisions for the appointment of such prosecutors for conducting
prosecutions in the Magistrates’ Courts. The section read as follows:

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

(1-A) 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 appointed

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

(b) if he is below the rank of Inspector.

Although it is not expressly provided in the section that the Assistant Public Prosecutors should
be legally qualified, it is hoped that the present trend of appointing, as far as possible, qualified
legal practitioners as Assistant Public Prosecutors will be maintained in all States and that the
provisions made in sub-section (3) above will be resorted to less and less in future years.
 THE ROLE OF PROSECUTORS
Investigations in India are conducted as per provisions of Chapter XII of the Code. Cases are
registered under section 154 of the Code. A police officer is competent to investigate only
cognizable offences. Non cognizable offences cannot be investigated by the police without
obtaining prior orders from the courts. A police officer can examine witnesses under section 161.
However, the statements are not to be signed by the witnesses. Confessions of accused persons
and statements of witnesses are recorded under section 164 of the Code. A police officer has the
power to conduct searches in emergent situations without a warrant from the court under section
165. A police officer is competent to arrest an accused suspected to be involved in a cognizable
offence without an order from the court in circumstances specified in section 41 of the Code. He
is required to maintain a day to day account of the investigation conducted by him under section
172. After completion of investigation, a police officer is required to submit a final report to the
court under section 173. If a prima facie case is made out, this final report is filed in the shape of
a charge-sheet. The accused has, thereafter, to face trial. If no cogent evidence comes on record, a
closure report is filed in the Court.

The public prosecutor plays the following role at the investigation stage:

(1) He appears in the court and obtains arrest warrant against the accused;

(2) He obtains search warrants from the court for searching specific premises for collecting
evidence;

(3) He obtains police custody remand for custodial interrogation of the accused (section 167);

(4) If an accused is not traceable, he Initiates proceedings in the court for Getting him declared a
proclaimed Offender (section 82) and, thereafter, For the confiscation of his movable And
immovable assets (section 83); And

(5) He records his advice in the police file Regarding the viability/advisability of Prosecution.
 DUTIES OF PUBLIC PROSECUTORS

Public prosecution is an important component of the public justice system.Prosecution of an

offender is the duty of the executive which is carried out through the institution of the Public
Prosecutor.

The public prosecutor is appointed by the State, and he conducts prosecution on behalf of the State.
While it is the responsibility of the public prosecutor to see that the trial results in conviction, he
need not be overwhelmingly concerned with the outcome of the trial. He is an officer of the court
and is required to present a truthful picture before the court.

Even though he appears on behalf of theState, it is equally his duty to see that theaccused does not
suffer in an unfair and unethical manner. The public prosecutor though an executive officer, is an
officer of The court and is duty bound to render assistance to the court. The public prosecutor
represents the State and the State is committed to the administration of justice as against advancing
the interest of one party at the cost of the other. He has to be truthful and impartial so that even
the accused persons receive justice.

The public prosecutor plays a dominant role in the withdrawal of a case from prosecution. He
should withdraw from prosecution in rare cases lest the confidence of public in the efficacy of the
administration of justice be shaken.

Cases:

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.

CHOICE OF THE ACCUSED AND THE DEFENCE COUNSEL-

SECTION 303 AND 304
The basic principle of natural justice says that nobody should be condemned unheard. This is
ensured by requiring the Magistrate to record the statement of the accused person under Section
303 of the Criminal Procedure Code and this is the first instance where the accused gets a chance
to talk for himself and defend himself before the trial commences.

However, an accused person is a layman and is not well versed with the technicalities of law and
rhetoric of the lawyers. Considering this, Section 303 of the code vests upon the accused the “right
to be defended by a pleader of his choice” who is known as the defense counsel. Providing free
legal aid and appointing a defense counsel for indigent accused has been pressed by the apex court
repeatedly in Khatri (2) v. State of Bihar and Suk Das v. UT of Arunachal Pradesh.

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.

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.

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.”.

CONCLUSION
The functionaries under the Code of Criminal Procedure are very essential for the enforcement of
varied provisions of this Code. Each functionary has a different duty and different powers which
together regulate various provisions of this code. Public prosecution is an important component of
the public justice system. Prosecution of an offender is the duty of the executive which is carried
out through the institution of the Public Prosecutor. Also The right guaranteed under the Section
303 and 304 is indispensable as it guarantees a fair trial.

Therefore varied functions performed by these functionaries are to maintain law and order in the
society. The Public should support these functionaries in every way possible to assist them to
perform their duties. Thus, these authorities form an important part of the criminal proceedings.