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The Role and Function of Prosecution in Criminal Justice by Madan Lal

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The Role and Function of Prosecution in Criminal Justice by Madan Lal 107TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS THE ROLE AND FUNCTION OF PROSECUTION IN CRIMINAL JUSTICE Madan Lal Sharma* I. INTRODUCTION criminal matters. The states can also enact laws on local and special subjects. Thus, India is a Union of States and is under the constitutional scheme, the basic governed by a written constitution which criminal laws, i.e., the Indian Penal Code, came into force on 26 November 1949. the Code of Criminal Procedure and the India consists of 25 states and 7 Union Indian Evidence Act have been enacted by Territories. Due to its colonial heritage, the Indian Parliament. The Indian Police India follows the Anglo-Saxon common law Act has also been enacted by the Indian justice system. Article 246 of the Parliament. The states have also enacted Constitution provides for three lists which laws on several local and special subjects. are enumerated in 7th Schedule of the Some states in India have also enacted Constitution. List-1 is the Union List their own Police Acts. The Indian Police which enumerates the subjects on which Act, 1861, however, is the basic statutory the Parliament of India has exclusive law governing the constitution and power to make the laws. List-2 is the State organisation of police forces in the states. List which enumerates the subjects on Article 14 of the Constitution provides which the legislature of a state has the for equality before law. Article 21 power to make laws. The third list is the guarantees protection of life and personal Concurrent List which enumerates liberty. Article 20 provides protection subjects on which both the Indian against double jeopardy. No person can be Parliament and the Legislatures of the prosecuted and punished for the same state can enact laws, but if there is any offence more than once. Article 39-A conflict or inconsistency between the laws mandates the states to secure equal justice made by the Indian Parliament and the for all. It also provides for free legal aid in legislature of any state, the law enacted respect of indigent persons. Article 50 is by the Union Parliament will have over- important as it provides for the separation riding effect. Importantly, the “Public of the judiciary from the executive in the Order” and the “Police” are enumerated in public services of states. Entries 1 and 2 respectively of the State List, meaning thereby that all matters II. DISTRICT—THE BASIC UNIT OF relating to the organisation, structure and ADMINISTRATION regulation of the police force fall within the ambit of the states. However, the ‘Criminal In each state, there are a number of Laws’and the ‘Criminal Procedure’ are districts. The District is governed by a enumerated in List-3, i.e., the Concurrent triumvirate consisting of the District List. Both the Indian Parliament and state Magistrate, the District Superintendent of legislatures have the powers to make Police and the District and Sessions Judge. substantive and procedural laws in The District Magistrate is the chief executive officer of the district and he belongs to the Administrative Service. The * Joint Director, Central Bureau of Investigation, police in the district functions under his India. general direction and control. The District 185 RESOURCE MATERIAL SERIES No. 53 Superintendent of Police is the head of the Directorate, etc. They investigate cases police force in a district. He is responsible falling within their jurisdictions and for the prevention and detection of crime prosecute them in the courts of law. and the maintenance of law and order, Thus, India has both the state police subject to such directions as may be issued investigating agencies and a central by the District Magistrate. In practical investigating agencies as mentioned above. terms, the District Magistrate has no role CBI, however, is the primary investigating in criminal investigations. The District and agency of the central government. Sessions Judge is the head of the judiciary in a district. He belongs to the higher state B. The Courts judicial service. The entire magistracy in The cases instituted by the state police the district functions under his control and and the Central Investigating Agency are supervision. adjudicated by the courts. We have a four- tier structure of courts in India. At the III. CRIMINAL JUSTICE SYSTEM bottom level is the Court of Judicial Magistrates. It is competent to try offences The criminal justice system has four punishable with imprisonment of three important components in India, namely, years or less. Above it is the Court of Chief the Investigating Agency (Police), the Judicial Magistrates, which tries offences Judiciary, the Prosecution Wing and the punishable with less than 7 years. At the Prison and Correctional Services. A brief district level, there is the Court of District mention of their structure and their roles and Sessions Judge, which tries offences is made here below: punishable with imprisonment of more than 7 years. In fact, the Code specifically A. Investigating Agency enumerates offences which are exclusively The police forces are raised by the state triable by the Court of Sessions. under the Indian Police Act, 1861. The The highest court in a state is the High basic duty of the police forces is to register Court. It is an appellate court and hears cases, investigate them as per the appeals against the orders of conviction or procedure laid down in the Code of acquittal passed by the lower courts, apart Criminal Procedure (to be referred to as from having writ jurisdiction. It is also a the Code hereinafter) and to send them up court of record. The law laid down by the for trial. In addition to the State Police High Court is binding on all the courts Forces, the Government of India has subordinate to it in a state. constituted a central investigating agency At the apex, there is the Supreme Court called the Central Bureau of Investigation of India. It is the highest court in the (CBI) under the special enactment called country. All appeals against the orders of the Delhi Special Police Establishment Act, the High Courts in criminal, civil and other 1946. It has concurrent jurisdiction in the matters come to the Supreme Court. This matters of investigation in the Union Court, however, is selective in its approach Territories. It can take up the investigation in taking up cases. The law laid down by of cases falling within the jurisdiction of the Supreme Court is binding on all the the states only with the prior consent of courts in the country. the state governments concerned. There are certain other specialised investigating C. Prosecution Wing agencies constituted by the central It is the duty of the state to prosecute government, in various departments, cases in the courts of law. The state namely, the Customs Department, the governments have constituted cadres of Income Tax Department, the Enforcement 186 107TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS public prosecutors to prosecute cases at They appear in the Courts of Magistrates. various levels in the subordinate courts and The Director of Prosecutions is responsible the High Court. I will revert to the subject for the prosecution of cases in the later when I discuss the structure and Magisterial Courts. functioning of the prosecution wings in the In Sessions Courts, the cases are states and the central governments. prosecuted by Public Prosecutors. The District Magistrate prepares a panel of D. Prisons and Correctional suitable lawyers in consultation with the Services Sessions Judge to be appointed as public This is the fourth important element in prosecutors. The state government the criminal justice system. The prisons appoints public prosecutors out of the panel in India are under the control of the state prepared by the District Magistrate and governments and so are the correctional the Sessions Judge. It is important to services. mention that public prosecutors who prosecute cases in the Sessions Courts do IV. CONSTITUTION AND not fall under the jurisdiction and control STRUCTURE OF PROSECUTION of the Director of Prosecutions. WING The state government also appoints public prosecutors in the High Court. The As stated above, the police is a state appointments are made in consultation subject in our constitutional scheme. The with the High Court as per section 24 of primary investigative unit is the police the Code. station in India. After due investigation, The most senior law officer in a state is charge-sheets are filed in the courts the Advocate General who is a concerned as per the provisions of the Code. constitutional authority. He is appointed The cases are prosecuted by the public by the governor of a state under Article 165. prosecutors appointed by the state He has the authority to address any court governments. in the state. Prior to the enactment of the Criminal Under section 24 of the Cr.P.C., the Procedure Code of 1973, public prosecutors central government may also appoint one were attached to the police department and or more public prosecutors in the High they were responsible to the District Court or in the district courts for the Superintendent of Police. However, after purpose of conducting any case or class of the new Code of Criminal Procedure came cases in any district or local area. The most into force in 1973, the prosecution wing has senior law officer of the Government of been totally detached from the police India is the Attorney General for India, who department. The prosecution wing in a is a presidential appointee under Article state is now headed by an officer designated 76. He has the authority to address any as the Director of Prosecutions. In some of court in the country. the states, he is a senior police officer and The Assistant Public Prosecutors, in others, he is a judicial officer of the rank Grade-I and Grade-II, are appointed by a of District and Sessions Judge.
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