ABSTRACT

A prosecutor is not considered to be representative of victim or accused and not even the
government but instead the prosecutor is considered to be a spokesperson who would act like an
agent for the people of the country. It is important to understand the actual role of the prosecutor
as prosecutor irrespective of which system he works under, has a purpose and that purpose is to
deliver proper justice. Though the purpose of every prosecutor is same in every country but the
process involved about who are appointed as prosecutors and how are they appointed as
prosecutors differs from country to country. Though their role as agent for the country remains
the same but yet the government’s interference, the judiciary of the each country and the
elocutionary makes the difference. It is important to understand the role of prosecuting agencies
in different countries especially in indian perceptive. This paper deals with the role as well as the
importance of the prosecutor in protecting the rights of the humans as well as the security and
well being of the society in India and US and also a comparative analysis of prosecuting agencies
in India and US.

Keywords- Prosecutor, Agencies, India, US and Comparative

INTRODUCTION
Before doing a comparative study of prosecuting agencies in India and US, it important to¹
understand the proper meaning of Prosecutor. The word prosecutor is often misjudged to be a
synonym of a word lawyer. But this is not the case as there is a difference between these two
words. Understanding the definition of these two terms in terms of legal sense, would give a
clarity regarding the difference between prosecutor and lawyer. According to the dictionary of
Merriam Webster, “a prosecutor institutes a proceeding or represents the state in a criminal
proceeding as defendant i.e., a government attorney.” But the meaning given by this dictionary
gives a definition which is basic but the mode of work differs from one country to another
country. The mode of work depends on which law they follow that is whether they follow a
system of adversarial or a system of inquisitorial. In some of the countries, the prosecutor’s role
can be seen in the whole process of investigation that means a prosecutor can get involved with
the investigation of police, collecting evidence and so on. While in some countries, a prosecutor
is not involved in the process of investigation. But checking of whether the rights of accused are
maintained or not is done. The paper while explaining who is a prosecutor and their role in India
and US, also compares the prosecuting agencies in India and US.

RESEARCH QUESTIONS

1. Whether the prosecutor and lawyer are same.

2. Whether role and appointment of prosecutor is same in India and US

RESEARCH OBJECTIVES

 To know whether the prosecutor and lawyer are same.

 To know whether role and appointment of prosecutor is same in India and US.

RESEARCH METHODOLOGY

The methodology used for the purpose of this research study on the topic “COMPARITIVE
STUDY OF PROSECUTING AGENCIES IN INDIA AND US”, is primarily descriptive and
analytical in nature. Adding on when speaking of the data collection, it is chiefly collected using
secondary data sources such as books, articles, journals, research papers, online databases and
other such sources have been taken into consideration for this study. Various discussions and
debates with teachers and friends with respect to the topic have been useful resource, directing a
clear vision for this research paper.

LITERATURE REVIEW

1. Varnika Singh has written an article on “Prosecuting agencies in India and US”. In the
article, the author has explained about the prosecuting agencies in India and US. This
paper has been a great insight to the researcher in understanding the concept.
PUBLIC PROSECUTOR

The agent of the state who has role to check whether a proper justice is provided in proper
manner or not to the common people and also has a helping hand in making judges do so is
known as a public prosecutor. The appointment of the prosecutor is done by the authority of the
government and that appointment can be done either at local, state or even at central level. The
division of this is different in different countries. The only job of the prosecutor is to check
whether the accused is provided with proper justice or not.

If the right to be heard is given to victim than the same right must be given to even accused as
even, he must be given a chance in order to prove his innocence as even under the Article 11 of
the human rights of the UN's declaration also it stated that a presumption of innocence is right
which is universal. According to the societal security’s jurisprudence, it considered that
whenever there is an institution of criminal case, it is also considered that a crime is instituted
against the state also. Thus, in this case, it also ensured by the prosecutor that whenever there is
trial on behalf of the state, a baffling of law is not taken place.

OHCHR stated some guidelines and these guidelines are been adopted by the UN Congress in
the year, 1970 on 9th of September on the occasion of the prevention of crime and the treatment
of offenders for the prosecutor’s role. Their roles are as follows:

1. “They shall dignify their position as they are appointed by the state.”
2. “They shall not delve into any such arbitrary or fraudulent practice that might harm the
interest of the case.”
3. “They shall be given protection i.e. personal safety if conditions demand so.”
4. “They shall have the right to take part in public discussions regarding legal matters
5. “They shall have the right to take part in public discussion of matters concerning the law
in order to promote and protect human rights for which they shall have freedom of
expression and association.”
6. “Investigation of crimes and supervision of execution of courts decision, checking the
fairness of investigation all falls under his duty.”
7. “They shall conduct impartial investigation.”
 8. “They shall work keeping public interest intact.”
9. “They shall keep matters confidential unless required.”
10. “Act in accordance with the Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power.”
11. “They shall refuse to use evidences which are recruited by unlawful methods such as
torture, inhuman means against the suspects.”
12. “They can also waive their prosecution rights on reasonable or conditional grounds.
(wherever it can be possible)”
13. “Some countries give discretionary power to their prosecutors in juvenile matters, so to
use them the nature and gravity of offence is to be seen. (They should try to avoid taking
strict actions in such matters)”
14. “They shall cooperate with all other bodies working on the case.”

Human rights commission has set these guidelines for the prosecutors with the intention that
both the victim as well as the accused who are involved in the case. This means that it is to
ensure that both the victim and the accused get a fair trial and with this the safety of the
public interest is also ensured.

PROSECUTOR AND LAWYER DIFFERENCE

It can be said that every person who is actually a prosecutor is also a lawyer but every person
who is a lawyer is not actually a prosecutor. Lawyers are those advocates who are licensed as
they can not just have their clients but also can do their work in any field of law. The prosecutor
can represent anyone. The one represented by the prosecutor can either be the victim or accused
and when the case is presented by the prosecutor, a tendency is there them to present the facts,
evidences as well as witnesses in the favor of that side of the case in which they representing for.
Their main focus is to deliver the justice to their client, they are representing. The state is the one
which appoints the prosecutor who on behalf of state acts as their representative in order to
ensure that a fair as well as reasonable trial happens.

The prosecutor has the duty to keep the rights as well as dignity of humans and unambiguous and
equality of in investigation and trial must be followed. The prosecutor also keeps in mind that he
or she cannot take anyone’s side and should work in a manner which allows them to provide
justice in an appropriate manner. When it comes to the criminal cases, he is an attorney of state.
If it is required, even civil suits can be taken up. If its lawyer, he has duty in which he has to
prove that side for which he is arguing. But in case of prosecutor, he just has the duty to find out
what is the truth in a legal manner and should also show the court same in order to avoid
arbitrary practices.

PROSECUTOR'S IMPORTANCE UNDER CRIMINAL SYSTEM

In order to ensure fair as well as equal justice, the prosecutor has to follow the 3 p's

 The criminals who do break the law must be prosecuted but by following the trial and
investigation which is fair.
 The crimes should not happen in the very first place, so they should be prevented and in
order to prevent that an awareness must be created by taking an active part in the public
discussions, exclusionary bodies must be advised and son.
 The people who are victims of crime must be protected and those victims can be an
individual or a society as a whole or it can even be a community and it must be ensured
that everyone rights are to be heard.

PROSECUTORS UNDER CRIMINAL SYSTEM IN INDIA

Under the criminal justice system of India, the police have the authority to investigate the case
and in order trial, judges are there. Though the lawyers have the involvement but still everything
that is to be done must be done under the magistrate’s supervision. From the stage of seeking
permission in order to arrest, to give reasons as why the arrest has taken place, to investigate and
conduct the trial, every thing must go through with the permission to the magistrate. Then
prosecutor comes in to the picture in India, where he or she is referred as the public prosecutor
and the definition of this is given under the section 24 of CrPC.

The state appoints him and hence known as the state’s appointee. He or she represents the state
in the proceedings of the criminal matter. When it comes to India, when there comes a need to
prosecute a particular case, a magistrate takes the decision that is to be raised based on that report
which was submitted by the police and than the appointment of prosecutor is taken place. The
appointment of prosecutor is taken place so that irrespective of the case, he or she acts as the
state’s representative in any criminal case.

Appointment:

Under the section 24 of the CrPC, the public prosecutor’s appointment is described. When it
comes to the High court, the appointment of the public prosecutor is done by the central or state
government and if it necessary or required, with the consultation of them, an additional public
prosecutor is also appointed who acts on behalf of them. The central government can also make
the appointment of the public prosecutor in the local bodies or district courts and this
appointment depends on the types of cases.

If it is necessary than in that case, the public prosecutor and the additional public prosecutor
whose appointment has taken place for a particular district can perform his duty of being a
prosecutor in the cases related to other districts also. The magistrate of district is consulted for
getting a proper panel in order to get suggestions for names for appointing the public prosecutor.
The names of the panel will be considered only if there is no list of prosecuting officers in the
cadre.

In order to be eligible for the post, a person must have 7 years of experience as an advocate and
10 years of experience as special public prosecutor. Appointment of assistant public prosecutor is
given under section 25.

PROSECUTOR’S ROLE
The major role of the prosecutor is to make sure that justice is delivered and his role is not to
convict or acquit anyone just to satisfy someone or someone’s motive. He has the duty to check
whether the procedure that was followed during arrest to trial, is followed as per the law or not.
He has the duty to check that fair hearing is regulated. That is done to make sure that no injustice
is happening. Both the rights of the victim as well as accused must be safeguarded.
THINGS PROSECUTOR MUST AVOID ARE AS FOLLOWS:

 “The accused must not be deprived of his rights”

 “To give fair trial which means both the parties are heard”
 “To conduct fair investigation”
 “To remove discriminatory practices”
 “To establish equality”
 “He is not appointed by the judiciary but is a statutory body appointed by the state and as
their representative its his duty to look into matters for the benefit of the society. They
can work along with the police department.”
 “He cannot appear on behalf of the accused. He can only demand for his rights to be
given to him that he's eligible for.”
 “As he has the complete discretion of withdrawal or continuance of any case given to him
under section 321 of the CrPc., he shall always see the public benefit for this purpose and
not for any mal-intentions. The same was stated by the supreme court in Mohammed
Mumtaz v Nandini Satpathy 1987 case that only the courts consent is needed to be taken.
As in India he has the complete discretion and not even the district magistrate or the SOP
can direct him but only suggest him by way of notice.”
 “Speedy trial.”
 “To keep intact the right to life and personal liberty as guaranteed under Article 21 of the
Constitution”
 “The state can specially order such appointment when such a case arises that largely
affects public interest. For example, in 2019 Arvind Kejriwal Chief Minister of Delhi
ordered the appointment of special public prosecutor for the infamous journalist Soumya
Vishwanaths murder case.”

Important cases:
In Thakur Ram vs. State of Bihar the supreme court held, “the motive of appointing a
prosecutor is to represent the victims right as crime agaist him/her is considered as crime against
society. Therefore, no person in their private interest to fullfill their private motives like
vengeance etc. can use this means.”
In Mukul Dalal v. UOI, the supreme court has stated, “in India the public prosecutor's office is a
public one which is important under for the court and the state to establish just for the social
purpose.”

In Radheshyam v. State of M.P. & others the court has stated, “ a special public prosecutor
can be appointed by the state whose remuneration shall also be paid by the state to maintain its
integrity. Thus, the government cannot appoint him/her directing to get remunerated by the
private party.”

Prosecutors in the U.S. Criminal Justice System:

The system is different in US as the US has its division into countries and state. There are 3143
countries in the list of 50 states and each state has it’s own prosecutor. It is a well known fact
that in US, there is a federal system and only at the central level, there is a system which is single
and prosecutors are appointed according to that. In US, from each general attorney’s office,
district attorney is appointed. But when it comes to the prosecutor’s appointment than the
process is different.

PROSECUTORS’S ROLE IN US CRIMINAL SYSTEM

 “He is the one who administers and ensures proper criminal justice.”
 
 “He has the discretionary power to charge any person of some offence or not. Which he
must function with utmost care. Although the police have the power to make arrest on
doubt but the charging capacity falls within the ambit of prosecutor. And no one can
question his/her decisions. One example of prosecutors misusing this power is
the Kemba Smith case where she was sentenced to 24.5 years imprisonment as charges
against her were framed to be included in various drug supplying activities, but instead it
was her husband who was a drug dealer and she was just an acquaintance to him. But in
exchange of her testimony, she was told that charges against her would be reduced but in
 the process of investigation her husband died and the prosecution made her plead guilty
leading to her conviction[6]. Therefore, to avoid such discrepancies we need the
prosecutors to use their charge framing power with utmost reasonableness.”
 
 “Thus, in the US criminal justice system usually prosecutors have an upper hand on what
the court will decide, which affects the fairness and justice.”
 
 “Also, prosecutors regulate the entire plea-bargaining system and statistics have shown
that almost in 90% of cases defendants plead guilty. Which usually used in a wrong
manner by prosecutors as they delve into over-charging practices so that the defendant
gets convinced to plead guilty for the lesser charges. As everyone wants to avoid the trial
process and is scared of the rigorous sentencing.”
 
 “They serve as quasi- judicial authority therefore they have to act with fairness as he/she
is the representative of the society and neither of the parties. He should not aim at
conviction rather should work to provide the best possible remedy. The same was stated
by the U.S. Supreme court in Berger v. United States.”
 
 “They carry out excessive investigation and collect evidence, main functions are filing
subpoenas, plea bargaining, charge framing and ensure rights to both victims and
accused.”

Important Case:
In People v Smith, the court stated, “either the prosecution proves guilty or not guilty,
sometimes the prosecution fails to prove the burden of proof then the defendant must be
allowed to go free. Here no forced scrutiny can be laid as there was no evidence provided
to prove the case.”

CONCLUSION
In India the appointment of public prosecutor takes place under section 24 of CrPC while in US
electorates appoint them. He or she Acts as the one who delivers Justice in India while in US,
his decisions have a huge impact on the case. In India, he has to make sure that the rights are
being violated and justice is delivered in a manner which is fair. He or she does not have direct
interference with the police investigation but whereas in US, professional is overpowering on the
police. In India, the judges are not influenced by the view of prosecutors and are in a position to
give their own decisions with their own discretion while in US, the case is different as though the
judges are the one who gives the judgement but yet they are greatly influenced by the view of the
prosecutor. In India, prosecutors can either be representatives of state or central and in US, each
state as well as country has its own prosecutor. Despite the differences, between these two
countries, the basic role of prosecutors is that the rights of the humans must ensured and there
should not be any sort of injustice. Their main purpose must be that the security of society must
be ensured.

REFERENCES

1. Legalserviceindia.com. 2022. Prosecutors in criminal justice system: A comparative

analysis between Indian, US and English criminal justice system. [online] Available at:
<https://www.legalserviceindia.com/legal/article-4448-prosecutors-in-criminal-justice-
system-a-comparative-analysis-between-indian-us-and-english-criminal-justice-
system.html> [Accessed 17 September 2022].