Role of Prosecution and Litigation Officers in the Justice delivery system of Punjab
1. Brief History:-
In the state of Punjab before 1974, there used to be two wings of the prosecution Agency. The work of the Prosecution of criminal cases in the courts subordinate to the courts of Sessions Judge stood assigned to the Police Prosecutors who were Police Officers upto level of PDSPs and were directly under the administrative control of the Superintendent of Police at the District level and the I.G. at the State Level. The second wing of the Prosecution Agency was incharge of the Prosecution work at Sessions Court level where Assistant District Attorneys and District Attorneys used to conduct criminal cases as APP/PP. These officers were not under the control of Police but under the control of the State Government through the District Magistrate. However, with effect from 1st April, 1974, the State Government after changing the nomenclature merged both the wings of the prosecution Agency and placed the unified-wing under the control of the Director of Prosecution.
The State of Haryana once posted I.G. as Director Prosecution which was challenged in the Hon’ble Punjab and Haryana High Court in Krishan Singh Kundu Vs. State of Haryana- 1989 Criminal Law Journal, 1309. The Hon’ble High Court in this case declared that the appointment if I.G. as Director Prosecution is a retrograde step to place even those Prosecutors belonging to the Prosecution Agency of the State under the control of Police Officer who during the British time had not been kept under the control of Police. The Hon’ble High Court further held that the mischief which was intended to be rectified by the parliament has in fact been perpetuated by the State despite a clear mandate by the Parliament based on the wisdom and experience of the Law Commission of India and appointment of Police Officer as Director Prosecution was declared wholly illegal and Violate of the very letter and spirit of Section 24 and 25 of the Code of Criminal Procedure. The Hon’ble High Court further directed the State of Haryana to fill the post of Director prosecution only by appointing a Senior Officer from the cadre of Prosecutors having sufficient experience of actually working as Public Prosecutor.
The hon’ble Supreme Court in SB Shahana and other Vs. State of Maharashtra and another , AIR 1995 SC 1628 directed the State of Maharashtra to constitute a separate cadre of Assistant Public Prosecutors by creating a separate Department by making the head of the Prosecution Department Directly responsible and answerable to the State Governments for their Descipline . The Court also directed to free such Prosecutors fully from the administrative and disciplinary control of the Police Department.
In Vineet Narain Vs. Union of India- 1998 Crl. Law Journal Page 1208, the hon’ble Supreme Court of india Directed the Union of India to create a separate impartial Directorate of prosecution to control Public Prosecutors of CBI, Revenue and Enforcement Directorates.
The Hon’ble Allahabad High Court in Jai Singh Naresh Vs. State of UP 1976 Crl Law Journal page 32, held as under:-
“Section 25(1) was enacted by the Parliament to ensure independence of Prosecution Agency from the Police Department and it was for that reason that a Police Officer was Declared ineligible for appointment as a Public Prosecutor. The Hon’ble High Court further directed that PP should be free from the control of Police Department. If the Assistant PPs are placed under the administrative and disciplinary control of the Supdt . of the Police who is the principal Police Officer at the district level, the legislative purpose would be defeated.
2. Rules relating to the appointment, promotion and general conditions of service of prosecution and Litigation Department Officers:-
Appointment , promotion and general conditions of service of Directoer, Prosecution and Litigation and Additional Secy. To Punjab, Additional director, Prosecutiona and Litigation and Joint Secy. To Govt., Punjab, Joint Directors, Prosecution and litigation, District Attorneys and Deputy District Attorneys are governed under the Punjab Prosecution and Litigation (Group ‘A’) Service Rules,2002.
Service conditions of Assistant District Attorneys are governed under Assistant district Attorneys Grade-II (Class III) Service Rules, 1989.
3. Duties and powers of District Attorneys, Deputy District atttorneys and assistant District Attorneys.
All the law officers of the Prosecution and Litigation Department in the rank of district Attorneys and Deputy District Attorneys are declared Public Prosecutors/Additional public rosecutors respectively U/S 24 of Cr.P.C. to conduct criminal cases in courts of Sessions Judges Assistant District Attorneys are declared Assistant PP U/S 25 of Cr.P.C. to conduct prosecution in the courts of Judicial magistrates. Assistant DAs having 7 years’ experience including practice at bar are also declared Additional Public Prosecutors.
The Punjab Govt. in the Department of Home Affairs & justice vide notification no. 7640-3JJ/75, dated 16-6-1975 ahs designated director prosecution & Litigation , Asst. Legal remenberabce & Under Secy. To Govt. Punjab, all DAs, ADAs, Grade-1 (now designated as Deputy DA) and Asstt. DA grade-II (now designated as ADAs) as Law officers for te purpose of the rules framed under clause(d) of sub section (1) of section 24 of the Advocates Act 1961 and it has further been certified that under the terms of their appointments they are required to act and plead in courts on behalf of the Punjab State.
All the Law Officers are responsible for the efficient & Effective conduct of cases on behalf of State of Punjab. In the district, DA is the overall incharge of prosecution. He supervises the working of all law officers posted in a District. As and when orders/judgements are pronounced, it is the duty of each Law Officer attached to a particular court to immediately apply to procure a copy of the same ,as required by para 20.1 and 20.2 of the Punjab Law Department manual, examine it and offer his comments to his superior whether the judgement/decision is required to be agitated in appeal/revision or not.
So far as Criminal Cases are concerned . Law officers send their comments to DA who in cognizable and non-bailable cases decided by Judicial Magistrates seeks permission from DM if the case is found for filling appeal are send to the Director Prosecution & Litigation & Addl. Secy. to Punjab Govt. through the DM whereas cases not found fit for appeal/revision are directly sent to him. The Director Prosecution and Litigation examines the desirability of filling appeals /revisions. Cases which are found not fit for appeal/revision are referred to the home Department for taking final decision in the matter Cases which are found fit for filing appeal/revision are sent to the Government through the Advocate General, Punjab.
Before presentation under section 173 Cr.P.C. in the Courts of competent jurisdiction, charge sheet (challan) is legally scrutinized by the law officers to ensure efficient prosecution of the case. At the time of scrutiny of charge sheet, the Assistant PP makes it sure that witnesses are according to the list entered in the charge sheet; that the police file is complete and that no papers belonging to it are attached with the charge sheet , and that no omissions or defects in the investigation remain un-rectified and unexplained. He ascertains whether each and every material document has been appended with the charge sheet and a competent official has been shown as a witness to prove the relevant documents attached with the charge sheet. He ensures that copies for the accused re ready and complete to be delivered U/S 207 Cr.P.C when challan is presented in court.
In civil cases after the examination of judgments by the Law officers, District Attorney refers it to the Director Prosecution & Litigation & Addl. Secy. to Govt. Punjab with his comments . After final scrutiny by the director prosecution and Litigation, advice is conveyed to the Administrative departments as to whether the cases are fit for filing appeal/revision etc. or not.
It is duty of every officer to ensure that no case is lost because of improper presentation/conduct of case during the trial or hearing. During examination of judgements by the superior officers, if it is found that any case has been lost or the accused has been acquitted because of any lapse on the part of a Law Officer, suitable action is recommended to the Government.
4. Role of Public Prosecutor:-
Section 225 Cr.PC prescribes that every trial before a sessions court prosecution shall be conducted by the Public prosecutor. When the accused is brought before the Sessions Court, the prosecutor opens his case by describing the charge. Here he should press framing charge only for the offense for which there may be sufficient evidence on record to prove guilt of the accused. He need not describe and press for the change which is not made out in circumstances of the case. This would result in a short trial. It is for the prosecutor to ensure that summons are obtained in time by the concerned official from the court and are served well before time. He should give up all the unnecessary PWs on the first date fixed for the trial so that unnecessary summoning of those witnesses could be avoided. He must make sure that the case property pertaining to the criminal trial and PWs are produced by the police at the time of hearing of the trial. He should also point out to the trial Judge which of the witnesses should be summoned first. In this manner, PP plays a significant role for speedy trial of the case.
PP is an officer of the court who assists the true in the administration of justice, his primary duty is to present true facts before the court. PP is such a person who is neither interested in the complainant nor against the accused in any way and while discharging his sacred duty, as such , he presents before the court all the true facts for the just decision of the case although these may be against the complainant which on the other hand would never be done by the counsel engaged by the complainant. A private counsel generally acts as persecutor and not as prosecutor in the real sense. Only coloured version of the case is expected from a private counsel who accepts the brief for the handsome consideration from the complainant. He is supposed to turn every stone for making success of the case of his client by fair or foul means and such an approach is against the spirit of administration of justice. Highlighting the role of PP the Hon’ble SC in Shiv Kumar Vs. Hukam Chand 1994(4) RCR 190 while depicting the basic impartial soul of the criminal jurisprudence in our country has observed, ”it is well for the prosecution of the accused person in Sessions trial (in India) that provision is made to have the case against him prosecuted only bu a PP and not by the counsel engaged by the aggrieved private party. Fairness to the accused who faces prosecution is the arisen d’etre of the legislature intent on that score.
Withdrawl from prosecution:-
Section 321 Cr.PC enables the PP or the APP to withdraw from the prosecution of any person either generally or in respect of any one or more of the offenses for which he tried. For doing so, consent of the Court is necessary. The proviso to the section lays down that consent of the Central Govt. has to be obtained before a PP or APP moves the court for the withdrawl of te case, whenever the offense relates to a matter to which the executive power of the Union extends or was investigated by the Special Police Establichment or involves misappropriation, Destruction or damage to Central Property or is committed by a central Govt. servant.
Section 321 Cr.PC gives no indication as to the grounds on which the PP may make an application for withdrawl. He has to make out some grounds which would show that prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution. In Subhash Chander Vs. State(Chandigarh administration) AIR 1980 SC 423, it was held that the broader considerations of public peace larger, considerations of public justice and even deeper considerations of promotion of long-lasting security in a locality, of order in a disorderly situation or harmony in a faction’s milieu or halting a false and vexatious prosecution in a court, may persuade the Executive pro bono public to sacrifice a pending case for a wider benefit, although the power must be sparingly exercised and the statutory agency to be satisfied is the PP, nor the DM or Minister. The concurrence of the court is necessary . the subsequent discovery of a hoax behind the prosecution or false basis for the criminal proceeding may well be a relevantground for withdrawl. Invested by the statute with a discretion to withdraw or not to withdraw, it is for the PP to apply an independent mind and exercise his discretion. In doing so, he acts as a limb of the Judicative process, not as an extension of the executive. The decision to with draw must be of the PP, not of other authorities, even of those where displeasure may affect his continuance in office. The Hon’ble SC in Balwant Singh Vs. State of Bihar AIR 1977 SC 2265 has observed that the statutory responsibility for deciding upon withdrawl squarely vests in the PP. It is non-negotiable and cannot be part red away in favor of those who may be above him on the administrative side. The Criminal procedure Code is the only master of the PP and he has to guide himself with reference to the Code only. So, guided, the consideration which must weigh with him, is, whether the broader cause of public justice will be advanced or retarded by the withdrawl or continuance of the prosecution. It is not proper for a District Magistrate to bring to the notice of PP materials and suggest to him to consider whether the prosecution should be withdrawn or not. He cannot command where he can only commend or not to withdraw. If he comes to the conclusion, on the materials passed on to him, that the case deserves to be withdrawn, he may in that in that behalf.
In Rahul Aggarwal Vs. Rakesh Jain and another 2005 Criminal Law Journal 963, it was held that permission to withdraw from prosecution can be granted only in interest of justice and for valid reasons. It may thus be granted in case which is likely to end in acquittal and continuance of case is only causing severe harassment to accused – Or to bring about harmony between parties. Discretion should not be exercised to stifle prosecution at instance of aggrieved parties. Even if Government directs PP to withdraw prosecution, Court must consider all relevant circumstances and find out whether withdrawal would advance cause of justice.
For withdrawal from prosecution, Government of Punjab has issued two instructions dated 17-3-1976 and 1-1-2008 which should be kept in mind by the Public Prosecutor before making an application for withdrawal of a case.
Role of Public Prosecutor as defined by International Guidelines and International & National Jurisprudence
In Indian criminal justice system, the role of a Public Prosecutor, though of immense importance, has always been shrouded in controversy. Allegations varying from corruption to deliberate withholding of important witnesses have been flung at them. One of the main reasons for such controversial image of Public Prosecutors is the fact that there is much confusion about their duties and responsibilities. Police, the accused and the victim all have totally different and conflicting beliefs about what role a Public Prosecutor is supposed to play. For example, according to police, the main duty of a Public Prosecutor is to get the accused convicted. According to the accused, the main role of the Public Prosecutor is to make available to the accused any legitimate benefit that he is entitled during the trial even if the defense counsel has overlooked it. According to the victim, a Public Prosecutor is her/his “avenging angel” and will get her/him justice at any cost. Looking at these varying and totally at variance interpretations, it is not difficult to reach the conclusion that one of the biggest obstacles in way of efficient performance of the Indian prosecuting machinery is confusion clouding the minds of Public Prosecutors themselves regarding what role they are supposed to play.
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