Public Prosecutors and the Directorate of Prosecution

The panel, sub-sections (4) and (5). The District Magistrate, in consultation with the Sessions Judge, prepares a panel of names of persons fit to be appointed Public Prosecutor or Additional Public Prosecutor for the district. And then the hard rule: no person may be appointed by the State Government unless his name appears on that panel. The panel is a real check, because it puts a serving judge into the process.

Where there is a cadre, sub-section (6). If a State has a regular Cadre of Prosecuting Officers, the State Government must appoint only from that cadre. The proviso allows it to go to the District Magistrate's panel instead where, in its opinion, no suitable person is available in the cadre. So a career prosecution service, where one exists, takes priority over political or ad hoc appointment.

Eligibility, sub-section (7). A person is eligible to be appointed a Public Prosecutor or Additional Public Prosecutor under sub-sections (1), (2), (3) or (6) only if he has been in practice as an advocate for not less than seven years.

Special Public Prosecutor, sub-section (8). For any case or class of cases, the Central or State Government may appoint as a Special Public Prosecutor a person who has been in practice as an advocate for not less than ten years. The proviso is worth marking: the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.

Counting the years, sub-section (9). Time spent as a Public Prosecutor, Additional Public Prosecutor, Assistant Public Prosecutor or other Prosecuting Officer, whether before or after the Sanhita commenced, counts as practice as an advocate for sub-sections (7) and (8).

Section 19: Assistant Public Prosecutors

Sub-section (1). The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates.

Sub-section (2). The Central Government may appoint one or more Assistant Public Prosecutors for any case or class of cases in the Courts of Magistrates.

Sub-section (3). Where no Assistant Public Prosecutor is available for a particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case, after giving fourteen days' notice to the State Government.

The proviso, and this is the part that carries a principle. No police officer is eligible to be appointed an Assistant Public Prosecutor if he has taken any part in the investigation of the offence being prosecuted, or if he is below the rank of Inspector.

The first limb is the important one, and it is the whole reason the prosecution is separated from the police. A man cannot investigate a case and then stand up in court as the officer of the court who is expected to be fair about the material he himself gathered.

Section 20: the Directorate of Prosecution

This section is where the Sanhita builds a structure the old Code only sketched.

Sub-section (1). The State Government may establish a Directorate of Prosecution in the State, consisting of a Director of Prosecution and as many Deputy Directors as it thinks fit; and a District Directorate of Prosecution in every district, with as many Deputy Directors and Assistant Directors as it thinks fit.

Sub-section (2), eligibility. A Director or Deputy Director of Prosecution must have been in practice as an advocate for not less than fifteen years, or be or have been a Sessions Judge. An Assistant Director must have been in practice for not less than seven years, or have been a Magistrate of the first class.

Sub-sections (3) and (4), the chain. The Directorate is headed by the Director, who functions under the administrative control of the Home Department of the State. Every Deputy Director and Assistant Director is subordinate to the Director, and every Assistant Director is subordinate to the Deputy Director.

Sub-sections (5) and (6), who reports to whom. Public Prosecutors, Additional Public Prosecutors and Special Public Prosecutors appointed by the State Government to conduct cases in the High Court are subordinate to the Director. Those appointed to conduct cases in the District Courts, and Assistant Public Prosecutors appointed under section 19(1), are subordinate to the Deputy Director or the Assistant Director.

Sub-sections (7) and (8), what the seniors actually do. This is new and it is unusually concrete for a procedural Code. The Director monitors cases where the offence is punishable with ten years or more, or life, or death, expedites the proceedings and gives an opinion on filing appeals. The Deputy Director examines and scrutinises police reports and monitors cases where the offence is punishable with seven years or more but less than ten, to ensure expeditious disposal.

So the Sanhita divides supervision by sentence bracket, and it makes the scrutiny of the charge sheet somebody's named duty rather than nobody's.

A worked example

A charge sheet is filed in Thane for an offence punishable with twelve years.

Who prosecutes it in the Sessions Court? The Public Prosecutor or an Additional Public Prosecutor for Thane district, appointed by the State Government under section 18(3). His name had to be on the panel the District Magistrate prepared in consultation with the Sessions Judge, unless Maharashtra was appointing from a regular cadre under section 18(6). He must have been in practice for at least seven years.

Who monitors it? The Director of Prosecution, because the punishment is ten years or more: section 20(7).

And if it had been punishable with eight years? The Deputy Director, under section 20(8), who would also have scrutinised the police report.

Now suppose the victim's family wants their own senior counsel. They cannot replace the Public Prosecutor. But if a Special Public Prosecutor is appointed under section 18(8), the proviso allows the Court to permit the victim to engage an advocate of his choice to assist the prosecution. The word is "assist", and the conduct of the case remains with the prosecution.

And suppose the Assistant Public Prosecutor is on leave when a Magistrate's case is called. The District Magistrate may appoint another person for that case under section 19(3), after fourteen days' notice to the State Government. He may not appoint the Sub-Inspector who investigated it: the proviso bars a police officer who took part in the investigation, and bars anyone below Inspector in any event.

Distinctions

What this does NOT mean

The Public Prosecutor is not the police's lawyer. He is an officer of the court appointed by the Government, and the bar in the proviso to section 19(3) on an investigating officer prosecuting the case he investigated is the clearest statement of that in the Sanhita.

The victim does not conduct the prosecution. The most the Sanhita allows is that, where a Special Public Prosecutor has been appointed under section 18(8), the Court may permit the victim's advocate to assist.

The panel under section 18(4) is not advisory. Section 18(5) makes it a condition: no appointment for a district may be made unless the name is on it.

And the Directorate is not a court. It is an administrative structure under the Home Department, and its monitoring duties do not let it direct a prosecutor on what to say in court.

Quick revision

• Section 18(1): Public Prosecutor for the High Court, appointed by the Central or State Government after consultation with the High Court.
• Section 18(3) to (5): one for every district; the District Magistrate, with the Sessions Judge, prepares the panel, and no appointment may be made off it.
• Section 18(6): where a regular cadre exists, appointment must come from the cadre unless no suitable person is available.
• Section 18(7) and (8): seven years' practice for a Public Prosecutor, ten for a Special Public Prosecutor; and the Court may permit the victim's advocate to assist.
• Section 19(1): Assistant Public Prosecutors for the Courts of Magistrates.
• Section 19(3) proviso: no police officer who took part in the investigation, and none below Inspector.
• Section 20(2): Director and Deputy Director need fifteen years' practice or Sessions Judge experience; Assistant Director seven years or first class Magistrate experience.
• Section 20(7) and (8): the Director monitors ten years and above, life and death; the Deputy Director scrutinises police reports and monitors seven years up to ten.

Test yourself

1. A person with six years at the Bar is proposed as Public Prosecutor for a district. Is he eligible? No. Section 18(7) requires not less than seven years in practice as an advocate. Time served as a Prosecuting Officer would count towards it under section 18(9), but six years is short either way.

2. Who prepares the panel for district appointments, and can the State Government go outside it? The District Magistrate prepares it in consultation with the Sessions Judge, section 18(4). Section 18(5) forbids appointment off the panel. The only route around it is section 18(6), which requires appointment from a regular cadre where one exists.

3. May the Sub-Inspector who investigated a case appear as Assistant Public Prosecutor in it? No, on two grounds under the proviso to section 19(3): he took part in the investigation, and he is below the rank of Inspector.

4. Which officer monitors a case where the offence carries life imprisonment? The Director of Prosecution, under section 20(7), which covers offences punishable with ten years or more, life or death.

5. Can a victim's family appoint their own prosecutor? No. But where a Special Public Prosecutor is appointed under section 18(8), the proviso permits the Court to allow the victim to engage an advocate of his choice to assist the prosecution.

6. Under whose administrative control does the Director of Prosecution function? The Home Department of the State, section 20(3).