STATUS AND ROLE OF ASSISTANT PUBLIC PROSECUTORS OF MANIPUR IN OBLIVION

R.S. Reisang, Senior Advocate.

The role of Public Prosecutor in a criminal justice system has been very aptly put in the following words : “The Prosecutor has a duty to the State, to the accused and to the court. The Prosecutor is at all times a minister of justice, though seldom so described. It is not the duty of the prosecuting counsel to secure a conviction, nor should any prosecutor even feel pride or satisfaction by the mere fact of success.” [Centre for Public Interest Litigation and others Vs. Union of India and others, reported in (2012) 3 SCC 117].

 Therefore, the Public Prosecutors enjoy a special status and a unique place in dispensing criminal justice system/administration by the criminal courts in India inasmuch as he is a holder of “public office’ and hold a “statutory post”. Needless to say that the police investigates the cases on their own and submits report (Charge Sheet) in the courts and on such reports and materials provided by the police, the Public Prosecutors are to conduct the trial in the court strictly in accordance with law. Thus, under adverse system and condition, the Public Prosecutors have to function and discharge their duties intrepidly and diligently. Be that as it may be, the Public Prosecutors being law officers of the court, it is imperative on their part to sacrosanctly uphold the office of the Public Prosecutor at all cost without any compromise and glitch.

 Independence of judiciary is the basic feature of the Constitution. It demands that a Judge who presides over the trial, the Public Prosecutor who presents the case on behalf of the State and the lawyer vis-à-vis amicus curiae who represents the accused must work together in harmony in the  public interest of justice uninfluenced by the personality of the accused or those managing the affairs of the State. They must ensure that their working does not lead to creation of conflict between justice and jurisprudence. A person whether he is a judicial officer or a Public Prosecutor or a lawyer defending the accused should always uphold the dignity of their high office with a full sense of responsibility and see that its value in no circumstance gets devalued. The public interest demands that the trial should be conducted in a fair manner and the administration of justice would be fair and independent.

“Law officers are one of the main wheels of the chariot driven by the Judges to attain the cherished goal of human being to secure justice against the wrong doers” as observed and aptly pointed out by the Hon’ble Supreme Court in the case of Vijay Shankar Misra Vs State of Uttar Pradesh, 1999 Cr.L.J 521 (SC).

 Prosecution in general is carried out in the name of the State for commission of an offence. In all those cases, wherein Police carries out an investigation or any authority of any department empowered to file Final Report and/or offence report respectively, the State is the Prosecutor. But, yet the Public Prosecutor does not represent the Police or any Department but he represents the State. He is an independent statutory authority of high regard and it stems from the statutory provisions envisaged under Section 24 Cr.P.C. In the Constitution Bench decision of the Hon’ble Supreme Court in Sheonandan Paswan Vs. State of Bihar & Ors., reported in (1987) 1 SCC 288, the Hon’ble Supreme Court has held that a Public Prosecutor is not a representative of any ordinary party to a controversy but of the sovereignty, that being the position, the Public Prosecutors are expected to perform independently apply their mind to the request of the investigating agency before submitting a report to the Court, they are not only required to prosecute the cases with detachment on one hand and yet with vigour on the other.

The Hon’ble Supreme Court has held in the case of Hitendra Vishnu Thakur Vs State of Maharashtra as reported in (1994) 4 SCC 602, that the Public Prosecutor does not represent the investigating agencies, but the State. He is not a part of the investigation agency but is an independent statutory authority. The role of Public Prosecutor normally commences after investigating agency presents the case in the Court on culmination of investigation. Involving the Public Prosecutor in investigation is injudicious as well as pernicious under the Indian law and he is not to be involved in investigation of cases.

In Kumari Shrilekha Vidyarthi Vs. State of U.P.  reported in AIR 1991 SC 537 at 547, the following observations have been made by the Hon’ble Supreme Court, “The function of the Public Prosecutor relates to a public purpose entrusting him with the responsibility of acting only in the interest of administration of justice which cannot be whittled down by assertion that their engagements is purely professional between a client and his lawyer with no public element attaching to it”

The Hon’ble Supreme Court in the case of Manu Sharma @ Sidhartha Vasihist vs State (NCT of Delhi) Jesica Lal Murder Case) AIR 2010 SC 2352 : (2010) 6 SCC 01, has observed that a Public Prosecutor has wider set of duties than to merely ensure that the accused is punished, the duties of ensuring fair play in the proceedings, all relevant facts are brought before the Court in order for determination of truth and justice for all the parties including the victims. It must be noted that these duties do not allow the prosecutor to be lax in any of his duties as against the accused.

In case of withdrawal from prosecution under Section 321 Cr.P.C. the Public Prosecutor cannot act like a post box or act on the dictates of the State Government. He has to act objectively as he is also an officer of the court as observed in the case of S.K.Shukla & Ors. Vs. State of U.P., reported in AIR 2006 SC 413.

 The Code permits the State to appoint Public Prosecutors as defined under Section 2(u) of the Code in order to assist the Court to arrive at a just and fair decision of the case. Thus, any person conducting prosecution on behalf of the Central Government or State Government will fall within the category of Public Prosecutor as defined under Section 2(u) of the Code.

The Public Prosecutor has got a very important role to play in administration of criminal justice system, his foremost duty is to prosecute a person and not to persecute a person. He must ensure that an accused is tried fairly and should consider views, legitimate interests and possible concerns of witnesses and victims, should refuse to use evidence obtained by wrongful means and must always serve and protect public interest. Public Prosecutor being not a mouthpiece of the investigating agency he should scrupulously avoid suppression of materials capable of establishing innocence of accused. Even though Public Prosecutors/Additional Public Prosecutors and Assistant Public Prosecutors are in full-time employment with Government and is subject to disciplinary control of the employer, but once he appears in the court for conducting a case on behalf of the prosecution, he is to be guided by the norms consistent with the interest of justice and in doing so he has to discharge his functions fairly, objectively and within the framework of legal provisions. His act must always remain to serve and protect the public interest and do justice to all.

A Public Prosecutor may or may not agree with the reasons given by the Investigating Officer but it is imperative on his part to discharge his duties fairly and fearlessly, his foremost duty is to assist the Court to unearth the truth. Thus, a heavy duty is cast upon the Public Prosecutors to ensue that rights of an accused are not infringed and he gets a fair chance to put forward his defence so as to ensure that a guilty does not go scot-free while an innocent is not punished. The Public Prosecutor must be fair in presenting the prosecution case and he must not suppress or keep back from the Court evidence relevant to the determination of the guilt or innocence of the accused. He must present a complete picture and must not be partial to the prosecution or to the accused see 1986 Cr.L.J 383 : Prabhu Dayal Vs. State (Delhi).

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 private counsel, if allowed a free hand to conduct prosecution he would focus on bringing the case to conviction even if it is not a fit case for conviction to be convicted. It is for this reason, Parliament have applied a bridle on him and subjected his role strictly to the instruction given by the Public Prosecutor. The role which a private counsel in such a situation can play is perhaps, comparable with that of a junior advocate conducting the case of his senior in a Court. The private counsel is to act on behalf of the Public Prosecutor albeit the fact that he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would become a combat between the private party and the accused which would render the legislative mandate in Section 225 of the Code a dead letter, see AIR (1999) 7 SCC 467.

 However, by way of amendment of section 372 Cr.P.C. w.e.f. 31-12-2009 a victim as defined under Section 2(wa) Cr.P.C. or his/her guardian or legal heir can engage a counsel to file an appeal against acquittal or file an appeal wherein inadequate sentence is imposed or awarded by the courts, earlier such right to file such appeals were reserved with the State but after addition of the new proviso to Section 372 Cr.P.C., now the right is also conferred upon the victim or his/her guardian or legal heir to file appeal in such cases.

Howsoever it may be, the role of the Public Prosecutors in the Indian criminal judicial system is indispensable in dispensation of justice, for without it, no prosecution of cases can take place. Section 225 Cr.P.C. clearly states that every trial before the Sessions Judge, the prosecution shall be conducted by a Public Prosecutor and Section 226 Cr.P.C. states that a Sessions case is to be opened and addressed by the Public Prosecutor. The Public Prosecutors are bestowed with various special powers by virtue of Sections 199(2), 301(1)(2), 302, 308, 377(2), 386 Cr.P.C. and by Section 321 Cr.P.C., it is only the Public Prosecutor who is empowered and entitled to pray for withdrawal of criminal cases being prosecuted by the State and none else.

CONCLUSION

In all the District Courts of Manipur, at present not a Single Asst. Public Prosecutors (APP) have been appointed on regular basis after promotion or retirement of the incumbents one after another for the last more than one decade. Despite availability of Recruitment Rules framed under Article 309 of  the Constitution for filling up the vacant posts of Additional Public Prosecutor and Asst. Public Prosecutor through open competition. The total sanctioned strength of A.P.Ps is 22 & 8 Addl. PPs, but not a single post has been appointed on regular basis. They are all appointed on contract basis on payment of consolidated pay of Rs. 22,200/- and Rs. 14,300/- per month respectively. The amount being paid to the Prosecutor is meager and not at all commensurate with general status of an advocate with the experience required in the legal profession. The Government of Manipur and the High Court of Manipur are interested only in appointing the Judicial Officers and neglecting to appoint Prosecutors on regular basis. In criminal proceedings when the accused appears or is brought before the court for trial, the Prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. And as such the criminal case cannot be proceeded without the role and function of the Public Prosecutor.

Therefore, it is hoped and trust that the very much genuine cause of the Public Prosecutors may perhaps, be taken care by the present Government with the appropriate authority. If, the appropriate authority comes forward to redress the long awaited expectations of the Public Prosecutors by filling the vacant posts on regular basis through Manipur Public Service Commission (open competition). The appointees will be much secured, comfortable to devote their time and energy, whole heartedly, and this will certainly bring the status and role of the Prosecutors as enumerated in the code and it will go smoothly in speedy dispensation of justice.



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