DUTIES OF PUBLIC PROSECUTOR TOWARDS ACCUSED… M.A.Rashid, Advocate, High Court of Kerala Introduction What is the most important right guaranteed under the Constitution of India to an accused in a criminal trial? It is a right to have a fair trial, which is a logical expansion of Article 21 of the Constitution of India. If the trial should be fair it’s conductor should be fair to both parties. A special feature of the administration of justice in the filed of criminal law in is that only a Public Prosecutor can prosecute the case against an accused. This is reflected in the mandate contained in section 225 of the Code of Criminal Procedure. There is no exception to this rule. Any private counsel engaged by the injured, or any advocate briefed by the relatives of the deceased however influenced they may be, is not entitled to conduct the prosecution in the sessions cases. This system is the glaring acknowledgment of the special status and position, which the office of Public Prosecutor is expected to wield in our legal system (Seethi Haji Vs State of Kerala 1986 KLT 1274). Public prosecutor is defined in section 2(u) of the Code as ‘any person appointed under section 24 and includes any person acting under the direction of the Public Prosecutor. Thus a special Public Prosecutor also would be a Public Prosecutor in respect of a particular case or a class of cases for which he is appointed. The powers conferred on Public Prosecutor are seemingly so wide and unfettered that parliament reposed confidence of great magnitude in the office of the Public Prosecutor. Thus special status and position as well as great powers have been conferred on the office of the Public Prosecutor. Every Public Prosecutor has reminded himself constantly of his enviable position of trust and responsibility. [(Abdul Khader Vs. Government of Kerala 1992 (2) KLT 948)] The very object of section 225 of the Code of Criminal Procedure which insists that the sessions cases should be conducted by the prosecutor is explained in Karthik Ram Vs Emperor (AIR 1937 Nag 123) wherein the court held that ‘the interest of the crown and the complainant are not always the same. Private parties often wish to serve their own private ends and the criminal proceedings are not primarily designed for that. It would be unfortunate to allow private passions and prejudices to creed into the conduct of a criminal trial, when it can be avoided. In Babu Vs State of Kerala (1984 KLT) 165 it is held that Public Prosecutors are really ministers of justice whose job is none other than assisting the state in the administration of justice. They are not representatives of any parties. Their job is to assist the court by placing before the court all the relevant materials. Though there is a plethora of judicial pronouncements of the apex court as well as of the various high courts the most elaborated one on the point is delivered by Thomas J. in Shiv Kumar Vs. Hukum Chand (1999 SCC (Cri) 1277). In the decision the court observed ‘it is as well for the protection of the accused persons in sessions trial (in India) that provision is made to have the cases against him prosecuted only by a Public Prosecutor and not by any counsel engaged by any private party. Fairness to the accused who faces prosecution is a raison d’etre of the legislative insistence on that score. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a sessions court cannot be conducted by anyone other than the Public Prosecutor. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused some how or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence brings it to the notice of the court or it comes to his knowledge. (Emphasis supplied) An early decision of a full bench of the Allahabad High Court in Queen-Empress Vs Durga had pinpointed the role of a Public Prosecutor as follows: - “it is duty of a Public Prosecutor to conduct the case for the crown fairly. His object should be, not to obtain an unrighteous conviction, but, as representing the crown, to see that justice is vindicated; and in exercising his discretion as to the witnesses whom he should or should not call, he should bear that in mind. In our opinion, a Public Prosecutor should not refuse to call or put into the witness box for cross-examination a truthful witness returned in the calendar as a witness for the crown, merely because the evidence of such witness might in some respects be favourable to the defence.” This remarkable observation was later followed by the Supreme Court in many of its judgments for deprecating the practice of giving up witnesses on the apprehension that they may turn hostile. In such a situation it is the duty of prosecutor to recourse to S 154 of Indian Evidence Act after calling him. High Court of Andhra Pradesh in Medichetty Ramakistiah V State of A.P. held that “A prosecution, to use a familiar phrase, ought not to be a persecution. The principle that the Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing any anxiety to secure a conviction is based upon high policy and as such courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the court to obtain its decision thereon and not to obtain a conviction by any means fair of foul.’ HISTORY In the early days, the Public Prosecutor was like any other counsel who would press for a verdict for his client. Over the years, the office was chiseled into a public office, J.L1.J Edwards in ‘Law Officers of the Crown’, has traced the growth of the office of the Public Prosecutor in . Prosecution of offences was left in the hands of private persons in that country, as noticed by Sir Fitz James Stephen in ‘History Criminal Law’. According to Sir Theobald Mathew, there was no Public Prosecutor in , in the true sense of the term. About the manner in which prosecution were conducted, Lord Chief Justice Campbell observed. “The Criminal Law is most shamefully prevented to serve private purposes.” The English pattern came to stay in . Today, it is beyond doubt that Public Prosecutor represents public interest, and that he acts as the minister of justice of the court. Kenny’s outline of criminal law gives a vivid picture of the office and its duties: “A prosecuting counsel stands in a position quite different from that of an advocate who represents the person accused or represents a plaintiff or defendant in a civil litigation. But the crown counsel is a representative of the State, ‘a minister of justice’; his function is to assist the jury in arriving at the truth. He must not urge any argument that does not carry within his own mind, or try to shut out any legal evidence that would be important to the interest of the accused. Law commission of India in it’s 14th report on judicial administration while dealing with the subject of prosecution agency made certain recommendations in Para 12 of Ch XXXV of Vol.11, relevant extracts were reproduced below- ‘It is obvious that by the very fact of that being members of the police force and the nature of duties they have to discharge like bringing a case to court, it is not possible for them to exhibit that degree of detachment which is necessary in a prosecutor. It is to be remembered that their promotion in the department depends upon the number of convictions they are able to obtain as prosecuting officers. We therefore suggest that as a first step towards improvement, the prosecuting agency should be completely separated from the police department. These recommendations of the law commission were accepted by the Central Government and the parliament by enacting the code of procedure 1973 (Parliament Act 8 of 1974)made the necessary provision in Section 24 and 25 of Cr.P.C. The office of the Public Prosecutor is a very responsible office, which is an integral part of the machinery of Administration of Justice. Even the British never thought of placing them under the control of the police department as that would have robbed the Public Prosecutors of their objectivity in the conduct of trial of the cases and would have tarnished the fair name of justice. To repeat the Law Commission in its XIV report had observed more than thirty years ago, as under: ‘The integrity of a person chosen to be in charge of prosecution does not need to be emphasized. 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 accused persons has to be conducted with the utmost fairness. In undertaking the prosecution, the State is not actuated by any motive of revenge but seeks only to protect the community’. That’s why the National Police Commission in its 4th report recommended certain minimum qualifications for the posts of public prosecutors. These recommendations of the Police Commission also go to show that if the prosecuting agency were placed under the control of a police officer, a situation could be seen as likely to curtail freedom, as it would go against the principle of impartialities. The police having an interest in seeking that their work in investigation and arrest move to a conviction and there may be a temptation to suppress evidence to this end. Excessive zeal on the part of a prosecutor may result in placing the life and liberty of some citizens who were before the courts in jeopardy. With this objective in view of in view that the recommendations of the law commission and the National Police Commission which are based on the wisdom, maturity and rich experience gained during years, intended to confer on the prosecutor an independent discretion. In Sarala Vs Velu (2000) SCC 459 the Supreme Court deprecated the practice of seeking sanction from the prosecutor before filing the charge sheet. DUTIES OF PROSECUTOR TOWARDS ACCUSED DURING TRIAL A. Examination of witnesses In Darya Singh Vs State of Punjab (AIR 1965 SC 328) it is held that the prosecutor must act fairly and honestly and must never allowed the devise of keeping back from the court eye witnesses only because their evidence is likely to go against the prosecution case. The duty of the prosecutor is to assist the court in reaching a proper conclusion in regard to the case, which is brought before the trial. In (Shivaji Bodade Vs State of Maharashtra 1973 SCC (Cri) 1033) Krishna Iyer J. speaking for a three judge bench had struck a note of caution while a Public Prosecutor to pick and choose witnesses, he should be fair to the court, truth and to the accused. The Supreme Court reiterated the same position in Dalbar Kaur Vs State of Punjab (1976 SCC (Cri) 527) and in Hukkum Singh Vs State of Rajasthan (2000 SCC (Cri) 201). B. Giving copies to the accused In (1974 KLT 148 State of Kerala Vs Raghavan) it is held that ‘Moreover, if the argument that the accused is not entitled to get copies of statements on which the prosecution does not seek to rely is accepted it would imply that the prosecution can, at its sweet will and pleasure pick and choose the statements of witnesses in respect of which the copies are to be, or are not to be, furnished to the accused to suit its convenience, thus eliminating all chances of the witnesses being confronted with their previous statements inconsistent with or contradictory to the case which the prosecution seeks to establish which could never be the intention of the legislature. If there is embellishment or contradictions in the statements given by the very same witnesses on different occasion, the veracity and trust worthiness of the witnesses have to be tested in cross examination with the aid of such materials to deny that would be to deny a just and fair trial to the accused. It should not certainly be the concern of the prosecution in such circumstances to deviate from or circumvent the relevant provisions incorporated in the code with view to ensure that the accused gets every opportunity to meet case brought against him. They are provisions based certain salutary principles of criminal jurisprudents to which, as the guardian of law, the court is found to adhere in its true spirits, even where the prosecution is tempted to keep the accused out of accesses to some of the documents which for his fair trial he is entitled to have. C. Not to suppress material facts As per the provisions of Cr.P.C. and Indian Evidence Act there is a total prohibition in using a statement recorded under section 161 of Cr.P.C. except for contradicting a witness. When a material fact which is capable of proving the defence case or capable of creating reasonable doubt in the prosecution case is stated by a witnesses in a statement recorded by the police, the accused or his agents cannot use it if the Public Prosecutor decided not to examine that witnesses. Though the accused can examine that witnesses as defence witnesses, if that witnesses omitted to state that material fact the accused could not contradict with that previous statement as held in Tahsildar Singh Vs State of Punjab Air 1959 SC 1012. Though in Vincent Vs State of Kerala 1993 (1) KLT 777 it is held that the trial judge can put questions to witnesses so as to help the court to discover or to obtain proper proof of relevant facts u/s. 165 of Evidence Act though it is hit by section 162 Cr.P.C. the supreme court in Dandhu Lakshmi Reddy Vs State of Andhra Pradesh 1999 (3) KLT SN 41 held that even the power under section 165 of the Evidence Act is controlled by section 162 of Cr.P.C. Hence it is the duty of the prosecutor to draw the attention of the court to such material facts in order to avoid unmerited convictions. D. Avoid leading Questions In 1960 KLJ 546 (Kesavan & another Vs State of Kerala) P.T. Raman Nair.J. it is held that ‘I might advert to the complaint for counsel for accused that when ever any of the so called eye witnesses gave an incomplete answer or an answer not to liking of the prosecutor, the prosecutor was allowed to elicit answers to his liking by the simple expedient of put in leading questions to the witnesses. The complaint I find is well founded, and I must take exceptions both the conduct of the Public Prosecutor in having put such questions and of the learned sessions judge in having allowed them. The position was reiterated by the supreme court in Varkey Joseph Vs State of Kerala (1993 (2) KLT 617) and it is further held that ‘it is generally the duty of the prosecutor to ask the witnesses to state the facts or to give his own account of the matter making him to speak as to what he has been. The prosecutor will not be allowed to frame his question in such a manner that the witnesses answering merely yes or no will give the evidence which the prosecutor wishes to elicit’. E. Avoid putting forth a new case different from the charge in surprise of the accused It is the duty of the prosecution to prove the prosecution story as alleged. It is not fair on the part of the prosecutor to create a prosecutor’s story. It must stand on its own legs as held in (AIR 1976 SC 975 Bhageerath Vs State of MP). It cannot take advantage of the weakness of the defence or make out a new case for the prosecution and convict the accused on that basis. It is also not fair on the part of the prosecution to rely on the admissions made by the counsel for the accused during the cross-examination. As held in 1982 KLT 605 it is no part of the duty of the Public Prosecutor to secure by unfair means or foul, conviction in any case. He has to safe guard public interest in prosecuting the case, public interest also demands that the trial should be conducted in a fair manner, needful of the rights granted to the accused under the laws of the country. The prosecutor while being fully aware of the duty to prosecute the case vigorously and also is prepared to respect and protect the accused. F. Section 308 of Cr.P.C. and the duty of the prosecutor As per sections 306 and 307 a magistrate or a trial judge, as the case may be have the power to grant pardon to an accused with a view to obtaining evidence in cases where the conviction of any accused is otherwise not possible. Though the prosecutor has no role with the process of granting pardon to an accused when a person accepted a pardon, either by wilfully concealed anything essential or by giving false evidence, or not complied with the condition on which the pardon was made he can be tried for the offence and also for the offence of giving false evidence only when the Public Prosecutor certifies that he violated the conditions. So the right to fair trial to an accused in these types of cases was totally controlled by the power of prosecutor. Even when an approver totally exculpate himself and exaggerate the case against the others the accused persons could not challenge the tendering of pardon unless the prosecutor certifies that approver violated the condition of pardon. Hence it is the duty of prosecutor to observe carefully the conduct of the approver and his statements with a view to make it sure that the accused persons also get fair trial. G. Role of prosecutor in withdrawal from prosecution. The full bench of the Kerala High Court in Deputy Accountant General Vs State of Kerala AIR 1970 KER 158(FB) held that by incorporating the section in the statute book the legislature gave a wide power to the public prosecutor to withdraw an accused from the prosecution. When the parliament conferred the wide discretion envisaged under section 321 of Code on a public prosecutor a special confidence has been reposed in his high office that the discretion would not be exercised unfairly or defeating the administration of the criminal justice. Hence the prosecutor should apply his mind independently and must be fair to the accused also.
Posted on: Wed, 12 Jun 2013 02:59:00 +0000
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