Panchkula (Association for Judicial Reforms India ) : Judicial Reforms India : Independence Judiciary : Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985

Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia , their determination to establish conditions under which justice can be maintained to achieve international co-operation in promoting and encouraging respect for human rights and fundamental freedoms without any discrimination,

Whereas the Universal Declaration of Human Rights enshrines in particular the principles of equality before the law, of the presumption of innocence and of the right to a fair and public hearing by a competent, independent and impartial tribunal established by law,

Whereas the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights both guarantee the exercise of those rights, and in addition, the Covenant on Civil and Political Rights further guarantees the right to be tried without undue delay,

Whereas frequently there still exists a gap between the vision underlying those principles and the actual situation,

Whereas the organization and administration of justice in every country should be inspired by those principles, and efforts should be undertaken to translate them fully into reality,

Whereas rules concerning the exercise of judicial office should aim at enabling judges to act in accordance with those principles,

Whereas judges are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens,

Whereas the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, by its resolution 16, called upon the Committee on Crime Prevention and Control to include among its priorities the elaboration of guidelines relating to the independence of judges and the selection, professional training and status of judges and prosecutors,

Whereas it is, therefore, appropriate that consideration be first given to the role of judges in relation to the system of justice and to the importance of their selection, training and conduct,

The following basic principles, formulated to assist Member States in their task of securing and promoting the independence of the judiciary should be taken into account and respected by Governments within the framework of their national legislation and practice and be brought to the attention of judges, lawyers, members of the executive and the legislature and the public in general. The principles have been formulated principally with professional judges in mind, but they apply equally, as appropriate, to lay judges, where they exist.

Independence of the judiciary

1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.

4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.

5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.

6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.

7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.

Freedom of expression and association

8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.

9. Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence.

Qualifications, selection and training

10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.

Conditions of service and tenure

11. The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.

12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.

13. Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.

14. The assignment of cases to judges within the court to which they belong is an internal matter of judicial administration.

Professional secrecy and immunity

15. The judiciary shall be bound by professional secrecy with regard to their deliberations and to confidential information acquired in the course of their duties other than in public proceedings, and shall not be compelled to testify on such matters.

16. Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.

Discipline, suspension and removal

17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.

18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.

19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.

20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.

Panchkula (Association for Judicial Reforms India ) : Judicial Reforms India : Reforms in service of summons Delay in service of summons is a major hurdle in the speedy delivery of justice.

Certain amendments have already been made to the CPC to address this issue. In addition to the legislative changes, the National Mission had requested High Courts and State Governments to consider measures such as a one-time collection of process fee, clubbing of process fee with the court fee, and the use of Information Communication Technology (ICT) systems for service of process.

Speedy Summons Service

Several High Courts have responded positively to the suggestion on collection of one time process fee by stating that they have either implemented or are in the process of considering such measures. As regards the suggestion on adoption of ICT, it is noted that a majority of High Courts are yet to formalize and adopt ICT tools for the purpose of expediting process service.

Given that the efforts to make courts more ICT enabled have been ongoing for several years now, there is an urgent need for States and High Courts to act expeditiously on this issue.

Provisions relating to process service in civil cases are laid down in Section 27, 28,

29, 143 and Order V (Rules 9 to 30), Order XXVII (Rule 4), Order XXIX (Rule 2), Order XLVIII (Rules 1, 2 and 3), Order III (Rules 3, 5 and 6), Order XXVIII (Rule 3),Order XXX (Rule 3), and Order XLI (Rule 14) of the Code of Civil Procedure. Some of these provisions have been amended by Amendment Acts in 1999 and 2002 to tackle the problem of delays in court processes. The provisions that have undergone amendments are mentioned below:

Civil Procedure Code, 1908 as amended in 2002 for Speedy Summons Service 

  1. As per section 27, the summons may be served on such day not beyond thirty days from the date of the institution of suit.
  2. Order V Rule 1 which also deals with service of summons has been amended and states that no service of summons is necessary in case where the defendant has appeared at the time of presentation of the plaint and admitted the petitioners claim. Amendment has further added a proviso that the defendant has to file his written statement within thirty days from the date of service of summons and if the defendant fails to file the same within the prescribed period, the court may extend the time but not more than ninety

days for the reasons to be recorded in writing.

  1. Rule 9 Order V deals with delivery of summons by court. This Rule as amended in 2002, mandates delivery has to be either through proper officer or by post acknowledgment due or by speed post or through an approved courier, fax, email.
  2. Rule 9- A provides service could also be done by plaintiff by taking delivery of summons from the court and tendering the same to the defendant personally or by Fax, courier, email etc.
  3. Rule 9 Sub Rule 4 provides service of summons on a defendant residing outside the territorial jurisdiction of that court through any one of the courier services approved by it. An improvement over the 1999 Act insofar as the local court has now got power to approve the courier service, whereas earlier only the high courts had the power to do so. The decentralization would speed up the process of service.
  4. Order IX Rule 2 provides dismissal of suit where summons are not served in consequence of plaintiff’s failure to pay costs. Where on the day fixed for hearing it is found that on the failure of the plaintiff to file process fee or pay court fee or any other reason attributable to the plaintiff, service has not been affected on the defendant, the court may dismiss the suit.                                                                                                                      Criminal Procedure Code, 1973 for Speedy Summons Service 

Similarly, in criminal cases service of process is required for seeking production of the accused, witnesses or related parties whenever needed. If the accused is found guilty at the conclusion of the trial, he must be present in person to receive the sentence.

Also, his presence is necessary if imprisonment is to be enforced. For this reason, Chapter VI (Sections 61 to 90) of Code of Criminal Procedure (Cr.P.C) provides three ways for compelling the appearance of any person who is required to be present in the court: 1. Summons, 2. Warrant, and 3. Proclamation for person absconding While summons is an order of the court to the person to appear before it, warrant is an order of the court given to a third person (normally a police officer) to bring the person who is required to be present in the court.

It is at the discretion of the judicial officer to decide which method to be used in a particular situation, who is guided by the provisions of this code. The third method is used when the person has absconded or is in any other way avoiding arrest, in which case the court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publication of such proclamation.

The code broadly classifies all criminal cases into summons cases and warrant cases. However, when a summons is not productive in making a person appear before the court, the court may issue a warrant to a police officer or any other person to forcibly produce the required person before the court. When a request in appropriate format is made to the court for compelling the appearance for a person, the court either rejects the request or issues a summons.

  1. As per Section 61, every summons issued by a court under this code shall be in writing and in duplicate. It must be signed by the presiding officer of the court or by such other officer as the high court may, from time to time, by rule direct. It must also bear the seal of the court.

A person who is summoned is legally bound to appear before the court on the given date and time. Willful disobedience is liable to be punished under Section 174 of Indian Penal Code ( IPC). It is a ground for contempt of court.

  1. Section 204 of Cr.P.C empowers magistrate taking cognizance of an offence to issue a summons if there is sufficient ground for proceeding in a summons case. If it is a warrants case, he may issue a warrant or a summons as he thinks fit.
  2. The summons should contain adequate particulars such as the date, time, and place, of the offence charged. It should also contain the date, time, and 5 place where the summoned person is supposed to appear. The standard format of a summons is given in Form 1 of second schedule.
  3. Section 62 describes the procedure for serving a summons on a person as follows – (i) Every summons shall be served by a police officer, or subject to such rules as the state government may make in this behalf, by an officer of the court issuing it or other public servant. (ii) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the copies of the summons. (iii) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt thereof on the back of the other copy.
  4. Section 65 lays down the procedure for service of summons by way of affixation and Section 69 states that the service of summons on a witness can also be done by post in addition to other modes of service.
  5. However, Section 87 empowers a magistrate to issue a warrant even if the case is a summons case if he has reason to believe that the summons will be disobeyed. He must record his reasons for this action.
  6. Section 202 of Cr.P.C deals with postponement of issue of process. Many a times false complaints are filed against persons residing at far off places simply to harass them which also leads to clogging of frivolous litigation. In order to see that innocent persons are not harassed by unscrupulous persons, this section was amended in 2005 to make it obligatory upon the magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or any other person he thinks fit for finding out whether there is sufficient ground for proceeding against the accused.
  7. Section 105 provides for reciprocal arrangements to be made by Central Government with the foreign governments with regard to the service of summons / warrants/ judicial processes. Ministry of Home Affairs have issued 6 comprehensive guidelines for service of summons/notices/judicial process on the persons residing abroad.

Panchkula (Association for Judicial Reforms India ) : Judicial Reforms India : Indian Judiciary is facing procedural obstacles in deciding the cases and Parliament has tried to else these procedural obstacles by amending existing procedural laws.

The Proper implementation of procedural laws A series of provisions have been introduced in procedural laws to enable the expeditious disposal of criminal and civil cases.

Judicial Reforms India through include, amendment of Section 309, CrPC to discourage unnecessary adjournments, Criminal Law (Amendment) Act, 2013 says, “Section 309 – Power to postpone or adjourn proceedings. 1.In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded;
Provided that when the inquiry or trial relates to an offence under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code, the inquiry or trial shall, as far as possible be completed within a period of two months from the date of filing of the charge sheet.2. If the Court after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing:
Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.
Provided also that –

  1. no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;
  2. the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment;
  3. where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.

Explanations

  1. If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
  2. The terms on which an adjournment or postponement may be granted in include, in appropriate cases, the payment of costs by the prosecution or the accused.”

Further Judicial Reforms India  via amendment of Section 320, CrPC to rationalise the list of compoundable offences; insertion of a new Chapter XXIA on plea bargaining; insertion of Section 436A for release of undertrial prisoners who have undergone half of the maximum imprisonment; and amendments to Sections 161(3), 164 and 275 of CrPC to allow use of audio / video technology in criminal cases.

In case of civil trials, relevant amendments to the CPC include provisions to impose limit on the number of adjournments that may be granted to each party to three times and imposition of costs for adjournments;

The First Judicial Reforms  India which India needs is the Strict Compliance of Procedural Laws, these include, amendment of Section 309, CrPC to discourage unnecessary adjournments which says, “309. Power to postpone or adjourn proceedings.

(1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.

(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:

 Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing: 1 Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.]

Explanation 1.- If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand. Explanation 2.- The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused.”

Further   amendment of Section 320, CrPC to rationalise the list of compoundable offences; Also insertion of a new Chapter XXIA on plea bargaining; insertion of Section 436A for release of undertrial prisoners who have undergone half of the maximum imprisonment; This provision says,  “Insertion of new section 436A.- After section 436 of the principal Act, the following section shall be inserted, namely:-” 436A. Maximum period for which an undertrial prisoner can be detained.- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one- half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties: Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one- half of the said period or release him on bail instead of the personal bond with or without sureties: Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law. Explanation.- In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.”.

And amendments to Sections 161(3), 164 and 275 of CrPC to allow use of audio / video technology in criminal cases. In case of civil trials, relevant amendments to the CPC include provisions to impose limit on the number of adjournments that may be granted to each party to three times and imposition of costs for adjournments; allowing service of summons using email, fax, speed post, courier services or directly through the plaintiff; providing for dismissal of suit where summons are not served in consequence of plaintiffs’ failure to pay costs; and limiting the time limit for filing of written statement by the defendant.

New Delhi (Association for Judicial Reforms India ):Constitutionalism : Rule of Law : Compared with the extensive literature on transitions to democracy, a surprisingly small amount of systematic work has been done on transitions to a modern rule of law.

History reveals three separate types of transitions which one can learn from, while other paths might be possible:

(1) The shift from a customary, informal, and often highly pluralistic system of law to a unified modern one;

(2) How powerful elites come to accept legal constraints on their power;

(3) How countries successfully adapt foreign legal systems to their own purposes.

The shift from a customary or pluralistic system (or both) to a codified modern one is usually motivated, at base, by actors who view a single formal system as better serving their interests, particularly their economic interests in expanded trade and investment. Scale matters: at a certain point, the personal connections that characterize customary systems become inadequate to support transactions between strangers at great remove. However, the transition costs are high, and the customary rules are often preferred by the existing stakeholders.

Therefore, political power is critical in bringing about the transition. Formal law is usually applied first to nonelites (“rule by law”); the shift to “rule of law” occurs when the elites themselves accept the law’s limitations. Some have argued that constitutional constraints become self-reinforcing when power in the system is distributed evenly and elites realize that they have more to gain in the long term through constitutional rules.

What this theory does not explain, however, is why these same elites stick to these constraints when the power balance subsequently changes and one group is able to triumph over the others. Similarly, independent courts are always a threat to elite power; why do rulers come to tolerate them when they have the power to manipulate or eliminate them? This finding suggests that constitutionalism needs to be underpinned by a powerful normative framework that makes elites respect the law as such.

Subsequent respect for law depends heavily on the degree of independence maintained by legal institutions that persist even after their normative foundations have disappeared. Finally, as for the importation of foreign legal systems, perhaps the most important variable determining success is the degree to which indigenous elites remain in control of the process and can tailor it to their society’s own traditions.

Thus Japan experimented with a variety of European systems before settling on the German civil code and Bismarck constitution at the end of the 19th century. Later, in the 20th century, China, the Republic of Korea, and other Asian countries similarly adapted Western legal systems to their own purposes. In other countries and economies, such as Hong Kong SAR, China, India, and Singapore, the colonial power (Great Britain) stayed for a long time and was able to shape the local legal norms in its own image. Even so, India today practices a far higher degree of legal pluralism than does the United Kingdom itself as part of the process of local adaptation. Less successful were countries in Sub-Saharan Africa, where customary systems were undermined by colonial authorities but not replaced by well-institutionalized modern systems.

Much more research is needed on the question of legal transitions. It is clear that a fully modern legal system is not a precondition for rapid economic growth; legal systems themselves develop in tandem with modern economies.

It may be that the necessary point of transition from a customary to a formal legal system occurs later in this process than many Western observers have thought. But relatively little is known about the historical dynamics of that transition, and thus there is too little by way of theory to guide contemporary developing countries as they seek to implement a rule of law.

Source : WORLD DEVELOPMENT REPORT 2017

Evil legal systems or evil laws are disqualified as law in this view. The second category aligns with H. L. A. Hart and other legal positivists, who base their definition on the existence of a legal system that consists of substantive laws (primary rules) and laws governing how those rules are made (secondary rules), without regard for the justness of the law.

Under this approach, evil legal systems count as law, but customary law and international law, which lack centralized enforcement systems, are not considered fully legal. The third category is represented by anthropologists and sociologists such as Eugen Ehrlich and Bronislaw Malinowski, who focus on customary law or living law.

They reject the notion that law must consist of an organized legal system and instead recognize that the central rules by which individuals abide in social interactions count as law. Three key fault lines run across these conceptions of law: the first regarding the normative value of law, the second the systematic form of law, and the third the function of law.

Long before the Code of Hammurabi set the law for ancient Mesopotamia, people subjected themselves— sometimes by cooperative agreement, sometimes under threat of force—to rules that would enable social and economic activities to be ordered. As societies evolved from close-knit kinship groups to larger and more diverse communities with more complex activities, the need for more formal rules increased (Fukuyama 2010).

In modern states, law serves three critical governance roles. First, it is through law and legal institutions that states seek to order the behavior of individuals and organizations so economic and social policies are converted into outcomes. Second, law defines the structure of government by ordering power—that is, establishing and distributing authority and power among government actors and between the state and citizens.

And third, law also serves to order contestation by providing the substantive and procedural tools needed to promote accountability, resolve disputes peacefully, and change the rules.

Source: World Development Report 2017 Governance and the Law

An ideal Prosecutor must consider herself/himself as an agent of justice. In India, we have a public prosecutor who acts in accordance with the directions of the judge. Normally, the control of entire trial is in the hands of the trial judge. Investigation is the prerogative of the police. However, it is generally believed that traditional right of nulle prosequi is available to the prosecutor. The public prosecutor in India does not seem to be an advocate of the state in the sense that the prosecutor has to seek conviction at any cost. The prosecutor must be impartial, fair and truthful, not only as a public executive but also because the prosecutor belongs to the honourable profession of law, the ethics of which demand these qualities.

In India, the criminal justice system should function within the framework of the Indian Constitution. Succinctly speaking, the principles enunciated in the Constitution are as infra :

  1. Presumption of innocence: Accused presumed to be innocent 4. Deprivation of life / personal liberty only in accordance with procedure established by law (See Article 21 of the Indian Constitution)

2.Equality: The guarantee of equality before the law .

  1. Equal Protection: Equal protection of the laws .

Beyond all reasonable doubt: The guilt must be proved beyond all reasonable doubt

  1. Double jeopardy: Protection against double jeopardy

Non-retrospective punishment

  1. Prohibition of discrimination: Prohibition of discrimination imposed upon the State
  2. The right of the accused to remain silent
  3. Arrest/detention must be in accordance with law and judicial guidelines.
  4. Speedy trial.

Coming the Directorate of Prosecution is concerned, the objective behind establishing the Directorate of Prosecutions was to exercise close supervision and scrutiny of work relating to various prosecuting agencies at Sessions and Assistant Sessions levels except at the High Court level. The Directorate of Prosecutions in the State of Andhra Pradesh was created vide G.O.Ms.No. 323, Home (Courts-C), Department, dated: 26-5-1986 wherein all the Prosecuting Officers were brought under the supervisory control of the Director of Prosecutions. This Directorate is headed by a Director assisted by other subordinate rank officials and ministerial staff. The major functions are:

Assistant Public Prosecutors – Assistant Public Prosecutor Officers scrutinise charge sheets prepared by the investigating agency and submit discharge/ acquittal. They evaluate the evidence in each case and make their recommendations for filing revision petitions or appeals against impugned orders and judgments, as well as conduct cases in Courts of MetropolitanMagistrates

Additional Prosecutors – Additional Public Prosecutors conduct cases in Sessions Courts

Chief Prosecutors – Chief Prosecutors supervise the work of Assistant Public Prosecutors in the Courts of Metropolitan Magistrates

 

Public Prosecutor – Public Prosecutor is responsible for supervision of prosecution work conducted by Additional Public Prosecutors in the Sessions Courts

Director of Prosecution – The Director of Prosecution is the Head of Office. The Director of Prosecution looks after the Establishment and Accounts Branches and exercises overall control over officers of the Directorate

The Role Of The Prosecutor:

The role of the Prosecutor is not to single-mindedly seek a conviction regardless of the evidence but his/her fundamental duty is to ensure that justice is delivered . The Indian judiciary interpreted role, responsibilities and duties of prosecution as follows:

1) The ideal Public Prosecutor is not concerned with securing convictions, or with satisfying departments of the State Governments with which she/he has been in contact. He must consider herself/himself as an agent of justice. The Allahabad High Court had ruled that it is the duty of the Public Prosecutor to see that justice is vindicated and that he should not obtain an unrighteous conviction.

2) There should not be on part of a Public Prosecutor a seemly eagerness for, or grasping at a conviction” The purpose of a criminal trial being to determine the guilt or innocence of the accused person, the duty of a Public Prosecutor is not to represent any particular party, but the State. The prosecution of the accused persons has to be conducted with the utmost fairness. In undertaking the prosecution, the State is not actuated by any motives of revenge but seeks only to protect the community. There should not therefore be “a seemly eagerness for, or grasping at a conviction.

3) A Public Prosecutor should not by statement aggravate the case against the accused, or keep back a witness because her/his evidence may weaken the case for prosecution. The only aim of a Public Prosecutor should be to aid the court in discovering truth. A Public Prosecutor should avoid any proceedings likely to intimidate or unduly influence witnesses on either side.

4) A Public Prosecutor should place before the Court whatever evidence is in her/his possession .The duty of a public Prosecutor is not merely to secure the conviction of the accused at all costs but to place before the court whatever evidence is in the possession of the prosecution, whether it be in favour of or against the accused and to leave the court to decide upon all such evidence, whether the accused had or had not committed the offence with which he stood charged.31 It is as much the duty of the Prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice.

5). The duty of the Public Prosecutor is to represent the State and not the police. A Public Prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure, 1973. She/he is not a part of the investigating agency. She/he is an independent statutory authority. She/he is neither the post office of the investigating agency, nor its forwarding agency; but is charged with a statutory duty.

6). The purpose of a criminal trial is not to support at all cost a theory, but to investigate the offence and to determine the guilt or innocence of the accused and the duty of the Public Prosecutor is to represent not the police, but the State and her/his duty should be discharged by her/him fairly and fearlessly and with a full sense of responsibility that attaches to her/his position. There can be no manner of doubt that Parliament intended that Public Prosecutors should be free from the control of the police department.

7). A Public Prosecutor should discharge her/his duties fairly and fearlessly and with full sense of responsibility that attaches to her/his position The Patna High Court held that purpose of a criminal trial is not to support a given theory at all costs but to investigate the offence and to determine the fault or innocence of the accused and the duty of the Public Prosecutor is to represent not the police but the Crown and her/his duty should be discharged by her/him fairly and fearlessly and with full sense of responsibility that attaches to her/his position.

8). The Andhra Pradesh High Court had ruled that prosecution should not mean persecution and the Prosecutor should be scrupulously fair to the accused and should not strive for conviction in all these cases. It further stated that the courts should be zealous to see that the prosecution of an offender should not be given to a private party. The Court also said that if there is no one to control the situation when there was a possibility of things going wrong, it would amount to a legalised manner of causing vengeance.

9). A Public Prosecutor cannot appear on behalf of the accused .It is inconsistent with the ethics of legal profession and fair play in the administration of justice for the Public Prosecutor to appear on behalf of the accused.

10). No fair trial when the Prosecutor acts in a manner as if he was defending the accused, It is the Public Prosecutors duty to present the truth before the court. Fair trial means a trial before an impartial Judge, a fair Prosecutor and atmosphere of judicial calm. The Prosecutor who does not act fairly and acts more like a counsel for the defense is a liability to the fair judicial system.

11). The statutory responsibility for deciding upon withdrawal squarely vests unwavering with the Public Prosecutor and should be guided by the Criminal Procedure Code The statutory responsibility for deciding upon withdrawal squarely vests on the Public Prosecutor and is entirely within the discretion of the Public Prosecutor. It is non-negotiable and cannot be bartered away in favour of those who may be above her/him on the administrative side. The Criminal Procedure Code is the only master of the Public Prosecutor and he has to guide herself/himself with reference to Criminal Procedure Code only. So guided, the consideration which must weigh with her/him is, whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of the prosecution. The sole consideration for the Public Prosecutor when she/he decides a withdrawal from a prosecution is the larger factor of administration of justice, not political favours nor party pressures nor like concerns.

12). District Magistrate or the Superintendent of Police cannot order the Public Prosecutor to move for the withdrawal The District Magistrate or the Superintendent of Police cannot order the Public Prosecutor to move for the withdrawal, although it may be open to the District Magistrate to bring to the notice of the Public Prosecutor materials and suggest to her/him to consider whether the prosecution should be withdrawn or not. But, the District Magistrate cannot command and can only recommend.

13). If there is some issue that the defense could have raised, but has failed to do so, then that should be brought to the attention of the court by the Public Prosecutor The Supreme Court stated that the duty of the Public Prosecutor is to ensure that justice is done. It stated that if there is some issue that the defense could have raised, but has failed to do so, then that should be brought to the attention of the court by the Public Prosecutor. Hence, she/he functions as an officer of the court and not as the counsel of the State, with the intention of obtaining a conviction.The District Magistrate or the Superintendent of Police cannot order the Public Prosecutor to move for the withdrawal, although it may be open to the District Magistrate to bring to the notice of the Public Prosecutor materials and suggest to her/him to consider whether the prosecution should be withdrawn or not. But, the District Magistrate cannot command and can only recommend. The Supreme Court stated that the duty of the Public Prosecutor is to ensure that justice is done. It stated that if there is some issue that the defense could have raised, but has failed to do so, then that should be brought to the attention of the court by the Public Prosecutor. Hence, she/he functions as an officer of the court and not as the counsel of the State, with the intention of obtaining a conviction.

Section 24 of Cr.P.C deals with ‘ Public Prosecutors’:

Section 24 of the CrPC says as to appointment of public prosecutors in the High Courts and the district by the central government or state government. Sub-section 3 says down that for every district, the state government shall appoint a public prosecutor and may also appoint one or more additional public prosecutors for the district. Sub-section 4 requires the district magistrate to prepare a panel of names of persons considered fit for such appointment, in consultation with the sessions judge. Sub-section 5 explains an embargo against appointment of any person as the public prosecutor or additional public prosecutor in the district by the state government unless his name appears in the panel prepared under sub-section 4. Sub-section 6 provides for such appointment wherein a state has a local cadre of prosecuting officers, but if no suitable person is available in such cadre, then the appointment has to be made from the panel prepared under subsection 4. Subsection 4 says that a person shall be eligible for such appointment only after he has been in practice as an advocate for not less than seven years.

Section 25 deals with the appointment of an assistant public prosecutor in the district for conducting prosecution in the courts of magistrate. In the case of a public prosecutor also known as district government counsel (criminal) there can be no doubt about the statutory element attached to such appointment by virtue of this provision in the CrPC 1973.

 

In this context, section 321 of the CrPC is also relevant. As already mentioned, it permits withdrawal from prosecution by the public prosecutor or assistant public prosecutor in charge of a case with the consent of the court at any time before the judgment is pronounced. This power of the public prosecutor in charge of case is derived from the statute and must be exercised in the interest of the administration of justice. There can be no doubt that this function of the public prosecutor relates to a public purpose entrusting the officer with the responsibility of so acting only in the interest of administration of justice.

Judicial response of role of prosecutors:

Zahira Habibullah vs State of Gujarat, where the conduct of the ‘’ BEST BAKERY ‘’ case in the Hon’ble Gujrat High Court , involving the burning down of an establishment in Vadodara which caused the death of 14 persons, came up for consideration before the Hon’ble Supreme Court, leading to what Rajeeva Dhavan has described as ‘’ The severest indictment evr of the Jusitce and governance system any State’’. The Hon’ble Supreme Court ordered retrial of the matter in The Hon’ble High Court of Maharastra, and observed that in Gujarat, ‘’ The Public Prpsecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the Court’’.

In R K Jain’s case (AIR 1980 SC 1510), the Hon’ble Supreme Court held quoting Shamsher Singh v. State of Punjab [(1974) 2 SCC 831), as regards the meaning and content of executive powers tends to treat the public prosecutor¡¦s office as executive. But the conclusions of some courts create doubt as to its exact nature. To the suggestion that the public prosecutor should be impartial (a judicial quality), the Kerala High Court equated the public prosecutor with any other counsel and responded thus: Every counsel appearing in a case before the court is expected to be fair and truthful. He must of course, champion the cause of his client as efficiently and effectively as possible, but fairly truthfully. He is not expected to be impartial but only fair and truthful. [Aziz v. State of Kerala (1984) Cri. LJ 1060 (Ker)]

In Thakur Ram vs. State of Bihar AIR 1996 SC 911, the Hon’ble 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.

In Vineet Narain vs Union of India, when the court focused that the CBI failed to investigate properly offence involving high political dignitaries. The Hon’ble Court emphased the need to ensure that ‘’ there are no arbitrary restrictions to the initiation of Investigations or launching of prosecutions’’.

In Jitendra Kumar@ Ajju vs. State (NCT of Delhi) Crl. W.P. 216/99, Delhi High Court, it was observed that In the Criminal Justice System this role is performed by the Public Prosecutor on behalf of the State. The Public Prosecutor has been described as a Minister of Justice who plays a critical role in maintaining purity and impartiality in the field of administration of criminal justice.

In The Malimath Committee Report (2003), it is acknowledged that there is a crisis in the Indian Criminal Justice System. But its analysis of the crisis is disturbing. Rather than focusing on key issues that plague the Criminal Justice System, the Committee recommended changes that amounted to a complete departure from jurisprudential norms.

In R K Jain v. State (AIR 1980 SC 1510), the Supreme Court sketched out the contours of the public prosecutor¡¦s power for withdrawal of cases. In Shonandan Paswan v. State of Bihar [(1987) 1 SCC 288] and in Mohd. Mumtaz v. Nandini Satpathy [1987 Cri. L.J. 778 (SC)], the Supreme Court ruled that the public prosecutor can withdraw a prosecution at any stage and that the only limitation is the requirement of the consent of the court.

The Punjab & Haryana High Court in Krishan Singh Kundu v. State of Haryana [1989 Cri. LJ 1309 (P&H)] has ruled that the very idea of appointing a police officer to be in charge of a prosecution agency is abhorrent to the letter and spirit of sections 24 and 25 of the Code. In the same vein the ruling from the Supreme Court in SB Sahana v. State of Maharashtra [(1995) SCC (Cri) 787] found that irrespective of the executive or judicial nature of the office of the public prosecutor, it is certain that one expects impartiality and fairness from it in criminal prosecution. The Supreme Court in Mukul Dalal v. Union of India (1988 3 SCC 144) also categorically ruled that the office of the public prosecutor is a public one and the primacy given to the public prosecutor under the scheme of the court has a social purpose. But the malpractice of some public prosecutors has eroded this value and purpose.

Conclusion:

The commission of a criminal act is commonly regarded as an offence against the State which to be dealt with by the Criminal Justice machinery of the State Executive. Therefore, on thorough considerations of the above material, it is crystal clear that it is not the duty of Public Prosecutors to quest conviction at all cost. Nor, is their duty to act as an avenging angle for the victim. On the contrary, their fundamental duty is to ensure that justice is delivered and in pursuance of this they should lay before the court all relevant evidence including the evidence that favours the accused. Corollary to this is the duty of a Public Prosecutor to bring to attention of the Court, any issue that the defense could have raised, but has failed to do. But, in doing so, they cannot act as if they are defending the victim, nor can they appear on behalf of the accused. When the Prosecutor acts in a manner as if she/he was defending the accused, then there is no fair trial. A Public Prosecutor is an independent entity from police and police cannot order her/him to conduct prosecution in a particular way. Police, politicians or any other extraneous party cannot influence her/his actions, including her/his discretion to decide withdrawal of a case. The Public Prosecutor represents the State but not the police and can only be influenced by public interest. In pursuance of their duties, public prosecutors should not use improper methods calculated to produce wrongful convictions and she/he must discharge her/his functions in a scrupulously fair and honest way. A fortiori, a Public Prosecutor has the responsibility of a minister of justice and not simply that of an advocate.

Important Judgments to know about the functions of Prosecutors:

– R. v. Boucher, (1954) 110 CCC 263 (SCC)

– R. v. Boucher, (1954) 110 CCC 263 at p. 270.

– R. v. Puddick, (1865) 176 ER 622 at p. 663. See R. v. Thomas (No. 2), (1974) 1 NZLR 658 (CA)

– R. v. Roulston, (1976) 2 NZLR 644 at p. 654.

– R. v. Henderson, (1999) 44 OR (3d) 628 (CA); R. v. Arthur F., (1996) 30 OR (3d) 470; R. v. Vandenberghe, (1995) 96 CCC (3d) 371 (CA); R. v. Stinchcombe, (1992) 68 CCC (3d) 1 (SCC)

– R. v. F.S., (2000) 47 OR (3d) 349 (Ont. CA); R. v. Chambers, (1990) 59 CCC (3d) 321 (SCC); R. v. McDonald, (1958) 120 CCC 209.

– R. v. Regan, (2002) 1 SCR 297 (SCC);

– Per Anantanarayanan, C.J., in A. Mohambaram v. M.A. Jayavelu, 1970 Cri LJ 241 at p. 245

– Kashinath Dinka, (1871) 8 BHC (Cr C) 126, 153

– Anant Wasudeo Chandekar v. King-Emperor, AIR 1924 Nag 243 at p. 245

– Ghirrao v. Emperor, (1933) 34 Cri LJ 1009 (Oudh Chief Court)

– Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, (2003) 7 SCC 749 : 2003 SCC (Cri) 1918, at para 35

– Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602, at para 23

– Ram Ranjan Ray v. Emperor, (1915) 42 Cal 422 at p. 428; Jai Pal Singh Naresh v. State of U.P., 1976 Cri LJ 32 (All);

– Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087- 1976 Cri LJ 32 (All)

– Kunja Subudhi v. Emperor, (1929) 30 Cri LJ 675

– Medichetty Ramakistiah v. State of A.P., AIR 1959 AP 659

– Sunil Kumar Pal v. Phota Sk., (1984) 4 SCC 533 : 1985 SCC (Cri) 18

– Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999

– Balwant Singh v. State of Bihar, (1977) 4 SCC 448 : 1977 SCC (Cri) 633, at para 2

– Shiv Kumar v. Hukam Chand, (1999) 7 SCC 467 : 1999 SCC (Cri) 1277

– To know more please visit www.ebc-india.com/practicallawyer

– Sunil Kumar Pal v. Phota Sheikh [(1984) 4 SCC 533

-State of Tamil Nadu v. Ganesan, 1995 Cri. L.J 3849 (Mad) at 3851

-Babu v. State of Kerala (1984) Cri. LJ 499 (Ker) at 502

– R.Sorala vs T.S.Velu

Author of This Article:  Y.SRINIVASA RAO,

Source : ABC Live India