ROLE OF ASSISTANT PUBLIC PROSECUTOR

Introduction

An Assistant Public Prosecutor is considered as the agent of the state to represent

the interest of common people in the criminal justice system.

An Assistant Public Prosecutor assists to the basic principle of natural justice i.e.

Audi Alteram Partem which means no person should be left unheard. Therefore, a
Prosecutor is not just a representative body of the state, but at the same time, he is also a
representative of a constitutional body functioning in a criminal justice system and he
secures fundamental rights of each individual guaranteed under Article 14-21 of the
Constitution of India.

Section 2 (u) of Cr.P.C defines, “Public Prosecutor” as any person appointed

under section 24, and includes any person acting under the directions of a Public
Prosecutor. Section 265-J - Explanation. —For the purposes of this Chapter, the
expression “Public Prosecutor” has the meaning assigned to it under clause (u) of section
2 and includes an Assistant Public Prosecutor appointed under section 25.

According to Section 25, of the Criminal Procedure Code, the assistant public
prosecutors are the prosecutors in the courts of magistrates. Their jurisdiction is limited to
Judicial Magistrate First Class, Judicial Magistrate Second Class, Metropolitan
Magistrate Courts and the Chief Judicial Magistrate Courts. Any person having
knowledge of law other than a police officer/investigating officer is appointed through
competitive examination through its respective State Public Service Commission.

Role of the Assistant Public Prosecutor in the investigating process

 To make an appearance in the Court for obtaining an arrest warrant

 To obtain search warrants for conducting a search in specified premises

 To obtain police custody remand for interrogation (including custodial

interrogation) of the accused

 To initiate a proceeding for the declaration of the non-traceable offender as the

proclaimed offender

 To record the evidence of accused in the police report regarding the advisability of
the prosecutions

Role of Assistant Public Prosecutors at the time of trial

 Section 301- Appearance by Public Prosecutors. The Assistant Public

Prosecutor in charge of a case may appear and plead without any written authority
before any Court in which that case is under inquiry, trial or appeal. If in any such
 case, any private person instructs a pleader to prosecute any person in any Court,
the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall
conduct the prosecution, and the pleader so instructed shall act therein under the
directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with
the permission of the Court, submit written arguments after the evidence is closed
in the case.

 Section 242 - Evidence for prosecution. In a warrant case exclusively tried by a

Magistrate, the Prosecutor can file an application to the Magistrate, to summon
any witness to appear or to produce any document and produce evidence in
support of the prosecution.

 Section 217- Recall of witnesses when charge altered. Whenever a charge is

altered or added to by the Court after the commencement of the trial, the
prosecutor shall be allowed to recall or re-summon, and examine with reference to
such alteration or addition, any witness who may have been examined.

 Section 224 – Withdrawal of remaining charges on conviction on one of

several charges. When a charge containing more heads than one is framed against
the same person, and when a conviction has been had on one or more of them, the
complainant, or the officer conducting the prosecution, may, with the consent of
the Court, withdraw the remaining charge or charges, or the Court of its own
accord may stay the inquiry into, or trial of, such charge or charges and such
withdrawal shall have the effect of an acquittal on such charge or charges, unless
the conviction be set aside, in which case the said Court (subject to the order of the
Court setting aside the conviction) may proceed with the inquiry into, or trial of,
the charge or charges so withdrawn.

 Section 313 (1) (a) - Power to examine the accused. The Prosecutor may help
the court in preparing relevant questions which are to be put to the accused by the
Court, in every inquiry or trial, for the purpose of enabling the accused personally
to explain any circumstances appearing in the evidence against him at any stage of
the case.

 Section 321 – permits the Public Prosecutor or Assistant Public Prosecutor to

withdraw from the case or prosecution with the permission of the court at any time
before the judgement is pronounced. The power of the prosecutor is derived from
the statute itself and they must act in the interest of the administration of justice.

 Sentencing- when the accused is proven guilty, then the defence counsel and the
Public Prosecutor further argue to decide the quantum of punishment. At this
stage, the Assistant Public Prosecutor may argue for the adequate punishment
 keeping in mind the facts, circumstances of case and gravity of the offence. It
helps the judge to arrive at a judicious decision.

 To conduct a speedy trial- Right to a speedy trial is a fundamental right and it is

impliedly given in Article 21 of Constitution of India which states “Right to life
and Personal Liberty”. The prosecutors have a responsibility to call all the
witnesses whose evidence is essential to decide the case. To cross-examine the
witness and to see that no witness if left unexamined. To produce all the necessary
documents.

Other Important Roles

 Section 265 B & 265C – Plea Bargaining In a case instituted on a police

report, the Court shall issue notice to the Public Prosecutor, the police officer
who has investigated the case, the accused and the victim of the case to
participate in the meeting to work out a satisfactory disposition of the case. All
the parties in the meeting shall participate voluntarily and freely.

 Section 308 - Trial of person not complying with conditions of pardon. If a

Prosecutor certifies that in his opinion such person who has accepted a tender
of pardon u/s. 306 0r 307 has either by wilfully concealing anything essential or
by giving false evidence, not complied with the condition on which the tender
was made, such person may be tried for the offence in respect of which the
pardon was so tendered or for any other offence of which he appears to have
been guilty in connection with the same matter, and also for the offence of
giving false evidence.

 The Assistant Public Prosecutor cannot aggravate the facts of the case or deny
to examine the witness whose evidence may weaken the case. The main aim
must be to discover the truth.

 He represents the State, not police. He is an Officer of State and is appointed

by State Government. He is not a part of any investigating agencies but an
independent authority. He is charged with statutory duties.

 Superintendent of police or Judicial Magistrate cannot compel an Assistant

Public Prosecutor to withdraw the case.

 If there is an issue which is raised by defence counsel and failed, it should be

brought out in the notice of the court by Assistant Public Prosecutor.

 To ensure that justice is done.

In the case of Jitendra Kumar @Ajju vs State (NCT OF Delhi)

The High Court of Delhi stated that “the Public Prosecutor acts on the behalf of
the state. They are the ministers of justice who play a pivot role in the administration of
criminal justice”.

In the case of Kunja Subidhi and Anr vs Emperor,

The duty of the Public Prosecutor is to place before the court all the relevant
evidence whether it is in favour or against the accused and to leave upon the court to
decide the matter.

In the case of Sandeep Kumar Bafna vs State of Maharashtra & Anr,

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.”

Conclusion

The Assistant Public Prosecutor must be impartial, fair and honest. He must act on
the directions of the judge. He should not defend the accused. It is against the fair play of
administration of justice or against the legal profession. Likewise, he should not believe
in the conviction of accused by hook or crook.