The police, the prosecution, the courts, and the administration of corrections make up the
criminal justice system. All of these system components are meant to function in unison with one
another. The criminal justice system’s success will only be made feasible by these organs
working together harmoniously. The prosecution system, which is regarded as the most
important branch of the system, must carry out its duties without interference from outside
parties. The duty of impartiality rests perpetually on the prosecutor, who is regarded as the
minister of justice. The status, appointments, and function of prosecutors within the criminal
justice system will be the subject of an analytical focus in this research study. It will also
highlight the criticism of the prosecutor’s function and the difficulties they encounter. as they
carried out their tasks. The article ends with several insightful recommendations that will help
the criminal justice system—in general, and the prosecution system in particular—run smoothly.
Keywords: Criminal Justice System, Adversarial system, Police, Investigation, Trial and
coordination
INTRODUCTION:
The history of crime as a multifaceted socio-legal issue predates human civilization. The
necessity for criminal law has always been realised by men and women who have arranged
themselves into organised societies. Substantive and procedural laws are both included in
criminal law. Adjective or procedural law activates the legal system’s enforcement apparatus,
while substantive criminal law establishes the rights and obligations of the parties involved in a
case. The police, courts, and penal administration make up the three primary parts of the current
criminal law enforcement apparatus. The judges, prosecutors, and defence attorneys make up the
court itself. All of these elements must cooperate in order for the system to continue upholding
the rule of law in society.
The criminal justice system’s initial responders to an occurrence are the police, who use the law
and their professional judgment to gather relevant evidence. Once they have done so, the case is
moved to a court of law to proceed with the legal process. If some important evidence was
overlooked by the investigating officer, there’s a good chance it could eventually disappear (a
process known as progressive change), which might be disastrous or even result in the accused
person’s acquittal. Because of this, the investigating officer’s role in a criminal investigation is
crucial to building the case against the accused. Crimes are classified into two main categories
under the 1973 Code of Criminal Procedure: cognizable and non-cognizable acts.
In the event of a cognizable offence, the police are empowered to investigate the matter suo motu
and gather the evidence required to bring a successful prosecution against the offender, as per
Section 41 of the CrPC. The investigation becomes more challenging if the identity of the culprit
is unknown, necessitating that the police use their expertise and the cooperation of informants to
identify the criminal and his reason for committing the crime.
The prosecutor’s role is the next crucial one in the criminal justice system. Every organised
society has a sophisticated legal system in place to bring charges against members who violate
the established norms of the organisation. Common law nations, like India, have different
criminal justice systems than do civil law nations. But in both systems, the centre of attention is
this office. It is recognised as a focus of power since it has a great deal of authority. It serves as
the repository for the public’s power to initiate and end criminal investigations. 1
Public prosecutors, additional public prosecutors, special public prosecutors, and other
prosecutors are assigned to handle criminal proceedings and prosecutions in High Courts and
Sessions Courts, while assistant public prosecutors are designated to handle prosecutions in
Magistrate’s Courts, in accordance with Sections 24 and 25 of the Code of Criminal Procedure. 2
1 K. N. Chandrasekharan Pillai, “Public Prosecution in India” 50 JILI 629 (2008).
Research Methodology:
The researcher has used analytical and descriptive research methodology. The researcher has
made use of facts on information already available and has analyzed those facts to make a
comparative evaluation of the material. Analytical research involves secondary data from various
articles and journals.
Review of Literature:
- Goodrum, Sarah. 2013. “Bridging the Gap Between Prosecutors’ Cases and Victims’
Biographies in the Criminal Justice System Through Shared Emotions.” Law & Society
Review 38(2): 257–287. - Goodrum, S. (2016). Expecting an ally and getting a prosecutor. Voices from Criminal
Justice: Insider Perspectives, Outsider Experiences, 305. - Ansems, L. F., Van den Bos, K., & Mak, E. (2020). Speaking of justice: A qualitative
interview study on perceived procedural justice among defendants in Dutch criminal
cases. Law & Society Review, 54(3), 643-679. - Farley, E. J., Jensen, E., & Rempel, M. (2014). Improving courtroom communication: A
procedural justice experiment in Milwaukee. New York: Center for Court Innovation.
INDEPENDENCE OF PROSECUTION:
A prosecutor makes sure that the prosecution is handled fairly and represents the interests of the
state, not the police. Any criminal trial’s main goal is to examine the crime and determine
whether the accused is guilty or innocent. The prosecutor’s main duty is to support the court in
ascertaining the case’s veracity. Consequently, the prosecutor must do his duty in an impartial,
daring, and accountable manner. But these expectations have to be weighed against the criminal
justice system’s realities. To get the intended outcomes, the prosecutor must act independently at
every stage of the criminal process. Sushil Kumar Modi v. Union of India Regarding the
autonomous role of police, the Hon’ble Supreme Court of India cited the following statements
made by Lord Denning in R v. Metropolitan Police Commissioner.
It follows that the police must uphold the law independently of the administration. It is also
necessary for the prosecutor to carry out his duties impartially. As the Minister of Justice, the
prosecutor’s role is to support the State in the administration of justice. The foundation of the rule
of law is the prosecutor’s role’s independence. According to Avory J.’s accurate observation in
R v. Banks, “prosecutors are the gatekeepers in the criminal justice system.” The principle that
prosecutors are separate from the police and the courts has long since been established. In
addition to their obligations to one another, the police, courts, and prosecutors also have legal
responsibilities that set them apart from one another. The prosecutor does not give advice to the
police or oversee police investigations. The government must guarantee that prosecutors are free
from executive influence and are able to carry out their official tasks without hindrance.
The Hon’ble Supreme Court of India noted in Balwant Singh v. State of Bihar that even when it
comes to the Section 321 of the Code of Criminal Procedure, 1973, withdrawal of prosecution,
“it is the prosecutor alone’s statutory duty to apply his mind and decide about the withdrawal of
prosecution and this power is non-negotiable and cannot be bartered away in favour of those who
may be above him on the administrative side.”. Again, in Subhash Chander v. State, The
prosecutor alone, not any other governmental authority, determines whether to drop charges,
according to the Supreme Court. The prosecutor will only grant consent if, by withdrawing this
action, public justice in its broadest sense is enhanced rather than undermined. By doing this, he
functions as an extension of the court system rather than the executive branch. Even if his
decision to quit could jeopardise his ability to stay in office, he must make that decision on his
own. Nobody can force him to back out of a case. The Prosecutor answers to the Court and is an
official of the legal system.
ROLE OF PROSECUTION IN THE CRIMINAL JUSTICE SYSTEM:
To analyse the role of the prosecutor in the criminal justice system, it is worthwhile to mention
the work of Christmas Humphrey published in Criminal Law Review (1955) which has been
quoted in the 197th Law Commission of India Report on Public Prosecutors Appointments
(2006)
In Babu v. State of Kerala, the Kerala High Court made the following well-reasoned statement,
which the Law Commission of India cited in its 154th Report: “Prosecutors are the ministers of
Justice, whose job is none other than to assist the State in the administration of Justice.” They
don’t represent any one party. Their responsibility is to support the Court by presenting it with all
pertinent case materials. They are not there to witness the guilty parties avoid punishment
either.” One of the most important parts of the criminal justice system is the prosecution, and it
plays a vital role in the efficient running of the system. The establishment of criminal justice
serves as the means by which the executive. The state appoints the prosecutor, who is in charge
of pursuing cases on its behalf. The prosecutor should not be unduly concerned with the outcome
of the trial, even if it is his responsibility to see that a conviction is obtained. He is a neutral third
party selected by the court who is supposed to present the Court of Law with an accurate picture.
He must make sure the accused is not treated unfairly even though he is representing the State.
The prosecutor is a court officer with a duty to support the court even if they are executive
officers. The state, which is committed to the administration of justice rather than furthering the
interests of one side at the expense of another, is represented by the prosecutor.
ROLE OF PROSECUTOR IN PRE – TRIAL STAGE:
The terms “trial” and “criminal procedure” were not defined in the 1872 Code of Criminal
Procedure or in the 1882, 1898, or 1973 laws that followed. One must use the dictionary
definitions in order to determine the meaning of these idioms. A trial is defined as the decisions
made by the appropriate court about the topic at hand in any legal proceeding by Stroud’s
Judicial Dictionary. A trial, according to Wharton’s Law Lexicon, is a civil or criminal case that
is heard in front of a judge who has jurisdiction over it. Therefore, the meaning of the expression
“trial” must be determined by the specific context in which it is used, as it lacks a general
meaning.
A prosecutor’s involvement in the pre-trial phase is modest. At this point, the police have the
authority to make an arrest, carry out a search or searches, and document witness statements and
confessions. However, without the court’s previous approval, a police officer cannot look into an
offence that is not recognised. Investigations in India are carried out in accordance with the
guidelines of Chapter XII of the CrPC, 1973.The police officer must provide the court with a
final police report following the conclusion of the inquiry. The prosecutor’s responsibilities
during the pre-trial phase are as follows:
- He appears in the court and obtains an arrest warrant against the accused person;
- He obtains search warrant(s) from the court for searching the specific premises for
collecting evidence; - He obtains police custody remand for the custodial interrogation of the accused person
(Sec. 167); - If an accused person is not traceable, he initiates proceedings in the court for getting him
declared a proclaimed offender (Sec. 82) and, thereafter, for the confiscation of his
movable and immovable assets (Sec 83); and (5)He records his advice in the police file
regarding the viability/advisability of prosecution.
After the investigation is finished and a prima facie case is made against the accused, the
prosecutor’s office files a charge sheet with the court. At this stage, the prosecutor’s opinion is
sought about the establishment of a prima facie case. In order to enhance the calibre of the
investigation, the prosecutor’s suggestions and brief notes are frequently taken into account. The
decision to proceed with a case to trial rests with the police authorities, nevertheless. The District
Superintendent of Police has the last say in cases when the investigating officer (IO) and the
prosecutor cannot agree on whether to press charges.
ROLE OF PROSECUTOR DURING THE TRIAL STAGE:
The prosecutor represents the state in court in a way that neither the government nor the police
can match. The outcome of the trial is determined by the judge’s and the prosecutor’s impartial
roles. There are several phases to the actual trial, and the prosecutor is always a key player. The
case is turned over to the prosecuting officer once the charge sheet is submitted to the court. If a
prima facie case is established, the court, upon accepting jurisdiction over the case, proceeds to
file charges against the accused individual. The accused’s statement and the prosecution’s
evidence are then recorded by the court. The court eventually hears the last arguments from both
sides and renders a decision.
Furthermore, in accordance with Section 321 of the Code of Criminal Procedure, the prosecutor
may withdraw a case at any point during the trial. According to Section 321 “the grounds on
which the prosecutor may make the application or the consideration on which the court is to
grant its consent are not specified for the withdrawal from prosecution.” The prosecutor takes the
initiative, and the court’s only responsibility is to grant its approval rather than make any judicial
decisions. In Sheo Nandan Paswan v. State of Bihar , it was held that “the judicial function
implicit in the exercise of the judicial discretion for granting the consent would normally mean
that the court has to satisfy itself that the executive function of the prosecutor has not been
improperly exercised or that it is not an attempt to interfere the normal course of justice for
illegitimate reasons.”
In Subash Chander v. The State, the Supreme Court ruled that the prosecutor has exclusive
competence to dismiss prosecutions under Section 321. There is no executive authority that can
stop the prosecution. However, the prosecutor may also withdraw it with the court’s approval.
The requirement of the court’s consent under Section 321 for withdrawal serves as a restraint on
the authority’s use. The Supreme Court ruled that consent would only be granted if the
withdrawal serves to advance rather than undermine public justice in the broadest sense. The
prosecutor must use independent judgment and apply the rule of law. In doing so, he must
function as an arm of the judicial system rather than as an extension of the executive. The
decision to withdraw must be of the prosecutor, not of other authorities, even of those whose
displeasure may affect his job status.” Again, in Rahul Agarwal v. Rakesh Jain , “the permission
for withdrawal of the prosecution was granted on the ground that the case was pending for a long
time and the accused was not a habitual criminal. The case was posted for examination of the
accused and no inquiry was made as to why the case was pending. It was held that the order
permitting withdrawal of prosecution when prosecution evidence was about to be over at any
point in time, is not proper. It was also decided that the prosecution may only be allowed to
abandon its case if it served justice and had good cause. Therefore, it might be granted in a case
where the accused is likely to be found not guilty and a continuance of the case would only
severely bother him or her, or it might be granted to promote peace between the parties. It is
improper to use the discretion to allow prosecution to be withdrawn in order to suppress
prosecution at the request of parties who have been wronged. The court must take into account
all pertinent facts and determine whether withdrawing the case will further the interests of
justice, even in the event that the government orders the prosecutor to do so.
ROLE OF PROSECUTOR IN POST TRIAL STAGE:
After the completion of trial and pronouncement of judgment by the competent court, the
aggrieved party may go into appeal before the appellate court. On appeal to the higher court, the
prosecutor plays an important role. Section 374 of the Code of Criminal Procedure states that:
“Any person convicted on a trial held by a High Court in its extraordinary original criminal
jurisdiction may appeal to the Supreme Court; any person convicted on a trial held by a Sessions
Judge, an Additional Sessions Judge, or any other Court in which a sentence of imprisonment for
more than seven years has been passed against him or any other person convicted at the same
trial may appeal to the High Court; or if any person is convicted by the Metropolitan Magistrate
or Assistant Sessions Judge or Magistrate of the First class or the Second class may appeal to the
Court of Sessions.” In any event of conviction on trial held in a court other than the High Court,
the State Government may, by section 377 of the CrPC, direct the prosecutor to present an appeal
against the sentence on the grounds of its inadequacy to an upper court. In this scenario, the
prosecutor’s role is equally crucial. Once more, Section 378 of the CrPC states that the State
Government or the District Magistrate may, in any circumstance, order the prosecution to file an
appeal with a higher court.
CRITIQUE OF THE ROLE OF PROSECUTION IN THE CRIMINAL
JUSTICE SYSTEM:
The criminal justice administration’s prosecuting attorneys are not the government’s pawns. They
must do their duties in an impartial and fair manner. The state, not the federal government, must
be represented by the prosecutor. He needs to argue his client’s cause as skillfully and
successfully as he can. He must, however, operate in tandem with the other branches of the
criminal justice system in order to carry out his tasks. The majority of the stakeholders
(respondent groups for the empirical study) that the researcher questioned about their perceptions
of the coordination between the prosecution and police concluded that there was a lack of
cooperation between the different wings of the prosecution in general and police and prosecution
in particular.
The prosecution and investigation no doubt are the two different aspects of the criminal justice
system. The role of the police in the criminal justice system is important because he is the first
who reaches the scene of the occurrence and while applying the law, his professional expertise
collects material evidence based on which the case is sent to the court for legal trial. If the police
investigating officer ignores certain evidence which subsequently disappears or gets destroyed
then it may prove fatal to the case in hand. The police and the prosecution sometimes lack
coordination on investigative issues. Their acts are independent of each other as investigation
work is outside the court, whereas the role of the prosecutor is inside the court. It is also true that
they are interdependent, hence they should act in harmonizing the things in the delivery of
justice.
PROBLEMS OF THE PROSECUTORS IN THE CRIMINAL JUSTICE
SYSTEM:
Lack of Coordination between the Police and Prosecution:
The coordination among the various organs of the justice delivery system is critical to its success
worldwide. While the Prosecution and the Police must operate independently of one another,
they also need to support and enhance one another. The police, who have the authority to file a
report and launch an inquiry, fail to carry out their duties with the utmost vigilance.41 Any case’s
investigative component is essential to its outcome. When questioned about this during the
empirical study, prosecuting officers also mentioned that many police investigations are not
completed to the expected standard, which gives the defence attorneys a clear path to acquittal.
Overburdened Prosecution:
The subordinate courts have a great deal of ongoing trials. As Madam Lal Sharma correctly
stated, “it is unknown how many prosecutors there are in the nation.” However, experience has
shown that the number of prosecutors is insufficient to effectively manage the cases assigned to
them, and they are overworked. Establishing a standard for the quantity of cases assigned to a
prosecutor is challenging because it varies based on the case type. Furthermore, a public
prosecutor’s effectiveness is heavily influenced by the presiding officer’s performance as well as
other incidental variables. There is justification for expanding the number of criminal courts, but
there is also justification for increasing the number of prosecutors. As a norm, at least two
prosecutors of the appropriate level should be attached with each court.” However, in practice,
the situation is troublesome. During the fieldwork, it has been found at various stations one
prosecutor is posted at two places.
Lack of Proper Training:
Without receiving any institutional training, prosecutors who are crucial to the justice delivery
system are chosen on the open market and given cases. “They learn by experience, but that takes
time, and in the interim, the cases suffer,” notes Madan Lal Sharma. It is recommended that a
national training centre be established to provide the prosecutors with appropriate training. The
training programme may last up to a full year. It would be possible to set aside six months for
legal education, four months for a police station attachment, four months for a magistrate
attachment with experience, and the last four months for a public prosecutor attachment with
seniority and seasoned experience. Refresher courses could occasionally be added to the
suggested institutional training.”
Lack of Infrastructure:
Prosecutors must possess a solid legal understanding in order to effectively counter skilled
defence attorneys. It becomes essential to have a well-stocked library at the prosecutor’s office,
along with a digital legal database, in order to instill such knowledge. The absence of these law
books and online legal databases frequently causes obstacles to the prosecution officials’ ability
to carry out their duties effectively.
Executive and Political Influence:
The prosecutor is the court officer whose responsibility it is to support the court in enforcing the
law. Rather than the government or the police, he speaks for the state. He should play an
impartial role free from extraneous interference. The Jain Hawala case45 is a dazzling
illustration of how outside influence may affect detectives and prosecutors. In this instance, “the
bureaucrat-politician-criminal nexus had used all necessary means to thwart the Central Bureau
of Investigation’s investigation and prosecution of corruption cases.” The Court monitored the
cases’ progress, gave detailed instructions on the functioning of all the agencies involved, and
even warned the minister in charge not to interfere with the investigation or prosecution.
CONCLUSION:
A prosecuting attorney is usually portrayed as a Minister of Judicial in the concluding
statements, with the duty of guaranteeing the integrity and equity of the criminal justice system.
The goal of a criminal trial is not, at all costs, to prove a theory; rather, it is to investigate the
offence and determine the guilt or innocence of the accused. The prosecutor represents the State,
not the police or the executive branch, and he or she should carry out this duty in a fair, fearless,
and fully accountable manner.
A prosecution officer is usually portrayed as a Minister of Judicial in the concluding statements,
with the duty of guaranteeing the integrity and equity of the criminal justice system. A criminal
trial’s goal is to look into the offence and to gather evidence, not to prove a theory at any costs
prove the accused’s guilt or innocence. The prosecutor’s role is to represent the State, not the
police or the executive branch, and he should carry out this task in a fair, brave, and fully
accountable manner.
Nivedha K
CMR University School of Legal Studies