India Quest-for-Prosecutorial-Independence

1
2 Quest for Prosecutorial Independence

Chitrakshi Jain was a Senior Resident The authors would like to sincerely thank
Fellow at the Vidhi Centre for Legal Policy Mr. Renjith Thomas, Assistant Professor,
working in the JALDI (Justice, Access and National Law University, Jodhpur for
Lowering Delays in India) initiative. reviewing the report and his support. The
authors are grateful to Adv. Ramesh Siroya,
Aditya Ranjan is a Research Fellow at the
Additional Public Prosecutor, Mumbai and
Vidhi Centre for Legal Policy working in the
Adv. Divyang Thakur, Public Prosecutor,
JALDI (Justice, Access and Lowering Delays
Delhi for sharing their expertise and
in India) initiative.
providing valuable inputs to the report.
Jigar Parmar was a Research Fellow at the
The authors are grateful to Devyani
Vidhi Centre for Legal Policy working in the
Srivastava, Commonwealth Human Rights
JALDI (Justice, Access and Lowering Delays
Initiative, Leah Verghese, DAKSH and
in India) initiative.
Karan Tripathi for their extensive feedback
Errors, if any, in the report are the authors’ which have immensely contributed in the
alone. making of this report.
The authors would also like to thank Maladi
Pranay, Member, NALSAR Kautilya Society
and Debarshi Chakraborty, Member, NLUO
Kautilya Society for their research and
assistance during this study. The authors
are also grateful to Keertana Venkatesh,
Vidhi Saxena, Yajat Bansal, Anmol Mathur,
Kamya Vishwanath, Charmi Mehta, Varini
G and Mansi Gupta, interns at Vidhi, for
their assistance during this study.
February 2022
3
About the Authors .......................................................................................................................... 3
Introduction..................................................................................................................................... 6
Development of the prosecution system in India ......................................................................... 8
Unravelling the scheme for the appointments of Public Prosecutors ...................................... 16
A. Structure of the Prosecution System ................................................................................. 16
B. Significance of jurisdictional limitations ............................................................................. 18
C. Adequacy of checks in the process of appointments......................................................... 19
D. Distinguishing the appointments of Special Public Prosecutors ........................................ 21
E. Extensive state control over appointment and functioning of prosecutors ......................... 24
F. Challenges in establishing a prosecutorial cadre .............................................................. 25
The criminal trial process and the public prosecutor ................................................................ 27
Role of a prosecutor as prescribed by the Code ...................................................................... 27
Evaluating prosecutorial discretion in the criminal trial process ............................................. 30
A. Investigation stage ............................................................................................................ 30
B. Charging ........................................................................................................................... 32
C. Withdrawal from Prosecution ............................................................................................ 34
The need for prosecutorial accountability .................................................................................... 38
Recommendations ........................................................................................................................ 39
Conclusion .................................................................................................................................... 41
Annexure I ..................................................................................................................................... 43
Prosecutorial functioning in commonwealth jurisdictions ............................................................. 43
Annexure II .................................................................................................................................... 49
Number of Cases Withdrawn from the Prosecution – IPC Crimes............................................ 49
Annexure III ................................................................................................................................... 50
Number of Cases under IPC sent to trial, disposed of and withdrawn from the prosecution ..... 50
5
The office of the prosecutor rarely makes being carried out by prosecutors in different
headlines in India. It is a fairly understudied states. The task of studying the role and
office. The most infamous indictment of the function of prosecution assumes a greater
functioning of a prosecutor came from the Best importance in an environment where the state
Bakery case, where the court remarked that the is accused of compromising the integrity of the
prosecutor had served as a defence counsel, criminal justice system and criminalising the
failing in his role miserably. Often political seemingly unwanted conduct of its citizens. In
appointments of prosecutors in cases involving this context, the report seeks to continue the
public functionaries, misuse of public funds conversation on prosecutorial reforms where
catch momentary attention in the press. Given the independence enjoyed by the office is
their less than glamorous stature, a sustained studied in detail and structural factors that
meaningful inquiry into their functioning is hard impinge on its autonomy are identified.2
to come by.
The present report seeks to explore the above-
This is further complicated by the variety of mentioned themes through the judicial
laws and practices that govern their decisions of the Supreme Court and various
functioning. Criminal procedure is a concurrent High Courts which have a bearing on the
subject and as a consequence, amendments relationship between the prosecutors and the
made by states to the Central Code of Criminal executive. The report also uses data published
Procedure and rules made under Article 309 of by the National Crime Records Bureau to
the Indian Constitution apply to the provide empirical evidence with regard to
prosecutors functioning in different states. The executive interference in their functioning.
prosecutors are also divided into different
This report attempts to study the procuracy in
categories as per their area of operation. The
India and explore:
nodal department coordinating prosecuting
agencies also varies across states. Often the Firstly, the dominant themes in the way the law
Directorate of Prosecution answers to the related to office of prosecution has evolved in
home department or the law department of the India;
state.
Secondly, the scheme provided in the Code of
More often than not, in the same state, the Criminal Procedure, 1973 (“the Code”) with
‘cadre prosecutors’ are administered by the regard to their appointments and general
Directorate of Prosecution, while the ‘tenure functioning; while the prosecution system in
prosecutors’ are administered by home India includes Directors and Deputy Directors
department or law department as the case may of Prosecution as well, this report covers
be.1 In some states regular cadre prosecutors prosecutors appointed under sections 24 and
are promoted to the post of Director, in a few it 25 of the Code;
is held by a judicial officer, and in yet others the
post is held by a senior police officer. Thirdly, the report seeks to examine the
discretion that prosecutors enjoy at different
These divergences make the subject of stages of a criminal trial and critically studies
prosecution a difficult one to study. In the the issues with regard to the role of the
judicial pronouncements which have extolled prosecutor at the investigation stage, the
the importance of an independent prosecutor, charging stage and the prerogative of the
little attention has been paid to the litigation prosecutor to withdraw prosecution.
1
Public Prosecution in India: An Argument for Autonomy, Aman Trust, (April. 2005), http://www.amanpanchayat.org/Files/Reports/public-
prosecution.pdf.
2
ibid

The report is written with the understanding research questions interrogate the influence of
that an independent office of prosecution is state practices on the independence of
necessarily linked to a well-functioning, due procuracy in India.
process based criminal justice system. The
7
The office of the prosecutor has been described practice, prosecution continued to be
as a ‘latecomer’ in common law jurisdictions.3 predominantly carried out by police officers.
The development of the prosecution system Gradually, different states developed their own
into its own institution has been a slow and prosecuting agencies and recruited advocates
gradual process. In medieval India, the criminal from the bar who along with police officers
trial was a private affair. In case of any were entrusted with the function of
wrongdoing, when a person approaches the prosecuting criminal trials.7 As of 1958, in most
Kotwal (Police) with a complaint, the Kotwal of the states, prosecution in the Magisterial
was entrusted with the function to conduct the Courts was conducted by police officers
investigation upon the charge against the themselves or through advocates recruited
accused. In case the Kotwal found evidence from the bar and styled as “Police Prosecutors”.
against the person, the complainant was guided These advocates conducted prosecution under
to take the matter to a Qazi (judicial officer).4 the control of the police.8
Under the British Raj, initially the British Madras and Andhra Pradesh were exceptions in
administration in India enacted separate this regard as they established a regular cadre
legislations to regulate procedures in different of whole-time prosecutors which was
courts.5 Before 1882, there were at least three responsible for conducting prosecution in the
such legislations regulating the procedure of Magisterial Courts.9 Further, in these states,
criminal courts in British India – Criminal prosecutors worked under the supervision of
Procedure Code, 1872 which was in force in the the District Magistrate to further isolate
Mufassils, the High Courts Act, 1875, which prosecution from police influence. However,
was in force in Lahore and Allahabad, and the even then prosecutors occupied a subordinate
Presidency Magistrates Act, 1877 which was in position under the District Magistrate and their
force in the presidency towns of Madras, functions remained restricted.10 Prosecutors
Bombay and Calcutta.6 were rarely consulted at crucial stages of
investigation and gathering relevant
This position was changed with the enactment
evidence. 11
of the Indian Criminal Procedure Code, 1882
(“the 1882 Code”). The Act consolidated the The lack of independence and responsibility for
provisions under other acts and provided a prosecutors resulted in their insignificant role
uniform procedure for criminal trials in in crucial prosecutorial functions such as
presidency towns as well as the Mufassil areas. initiating the prosecution, gathering relevant
Section 492 of the 1882 Code provided for the evidence and withdrawing the case. These
appointment of prosecutors and established a significant functions were performed by police
statutory office of prosecution. However, in officers who often lacked the knowledge of
3
John H Langbein, 'The Origins of Public Prosecution at Common Law' (1973) 17 Am J Legal Hist 313
4
Wahed Husain, ‘Administration of Justice in Muslim Rule in India” (1934) Univ of Calcutta 67
5
See Criminal Procedure Supreme Court Act 1852; High Court Criminal Procedure Act 1865
6
Law Commission of India, The Code of Criminal Procedure 1889, (Law Com No 37, 1967) para 25
7
Law Commission of India, Reform of Judicial Administration, (Law Com No 14, 1958) para 35.5
8
ibid
9
ibid
10
ibid para 35.13
11
ibid

evidentiary and procedural laws. The 14th Law prosecution from the police. This separation has
Commission report, while recognising the continued to be the dominant theme in
issues with merged investigation and prosecutorial reforms in India. The timeline
prosecuting agencies, and with prosecution below outlines the trajectory of conversation
being controlled by the police, urged the on prosecutorial reforms:
government to separate the office of
9
1861 Code of Criminal Procedure, 1861
The Act codified criminal procedure in India and provided statutory recognition to
prosecutors for conducting trials.12 The Act also established a hybrid model of prosecution,
similar to that prevalent in England,13 where private prosecution was allowed in Magisterial
Courts14 and prosecutors were appointed to prosecute serious offences in Sessions Courts.
The 1882 Code was the first legislation that defined a ‘Public Prosecutor’15 and provided a
procedure for their appointment.16 The legislation also fleshed out the role and powers of a
prosecutor. It empowered prosecutors to file appeals in acquittal cases on the direction of
the local government,17 and provided them discretion to withdraw cases.18
Though the 1882 Code sought to establish a separate prosecutorial office, it did not separate
prosecution from the police and left room for police prosecution to continue. Section 492
enabled the District Magistrate to appoint a police officer, not below the rank of Assistant
District Superintendent, as a prosecutor. The Act also allowed a private person to conduct
prosecution subject to the Magistrate’s permission.19 However, if a prosecutor is appointed
in a case, the private pleader was expected to work under their directions.20
The 1898 Code retained the structure established under the 1882 Code for the
appointment and functions of prosecutors. Additionally, the 1898 Code empowered police
officers conducting prosecution before a Magistrate to withdraw cases. It also introduced a
bar on police officers from conducting prosecution if they were a part of the investigation
into the offence.21
1958 Law Commission of India - 14th Report on Reform of Judicial Administration, 1958
The report analysed the prosecutorial machinery established under the 1898 Code and
highlighted the absence of a uniform prosecuting organisation in India. The report also
criticised the practice of police prosecution and noted that police officers lack the degree of
detachment necessary for prosecuting cases and often adopt a one-sided approach focussed
on securing conviction.22
The report recommended separating the prosecuting agency from the police department.23
It further recommended the appointment of a Director of Prosecution to head the
prosecution department in each district who was to exercise control over a cadre of
12
Code of Criminal Procedure 1861, s 233
13
Yue Ma, 'Exploring the Origins of Public Prosecution' (2008) 18 Int'l Crim Just Rev 190, 193
14
Code of Criminal Procedure 1861, ss 44 and 438
15
Code of Criminal Procedure 1882, s 4 (m)
16
ibid s 492
17
ibid s 417
18
ibid s 494
19
ibid s 495
20
ibid s 493
21
Code of Criminal Procedure, 1898, s 495
22
Law Commission of India, ‘Report on Reform of Judicial Administration’ (Law Com No 14, 1958) para 35.11
23
ibid para 35.13.

prosecutors to conduct criminal trials.24 The report also suggested improvement in the
conditions of service, pay scales and training for the prosecutors.25
1969 Law Commission of India - 41st Report on The Code of Criminal Procedure, 1898
The report highlighted the lack of qualification requirements for the appointment of
prosecutors.26 The report also found that the state governments did not give serious
consideration to the 14th Law Commission Report’s recommendations, especially regarding
the appointment of an independent Director of Public Prosecution in each district.27
The report recommended a requirement of at least seven years of practice as an advocate

for the appointment of a Public Prosecutor (“PP”) as well as an Additional Public Prosecutor
(“Addl. PP”). For the appointment of Special Public Prosecutor (“SPP”), the report
recommended a minimum practice requirement of 10 years.28 Further, the report reiterated
the recommendation for the appointment of the Director of Public Prosecution in each
district. The report also suggested that prosecutors should be given the function of
scrutinising chargesheets and should be empowered to send the case back for further
investigation where investigation of the offence lacked relevant evidence.29
The Code addressed the shortcomings of the 1898 Code and laid down a detailed procedure
for the appointment of PPs, Addl. PPs, Assistant Public Prosecutors (“Asst. PP”) and SPPs.30
The Code also mandated that the central and state governments should consult with the
High Court and the state governments should consult the Sessions Judge for the
appointment of prosecuting officers in the High Court and the District Court, respectively.31
The Code introduced eligibility criteria for these appointments as prescribed by 41st Law
Commission Report and mandated that in states where a regular cadre of prosecuting
officers exists, the appointment of PPs and Addl. PPs should only be from the persons
constituting such cadre.32 The Code also explicitly provided that a police officer shall not be
eligible to be appointed as an Asst. PP. However, it permitted the District Magistrate to
appoint a police officer to conduct prosecution if no Asst. PP was available.33
1995 SB Shahane v State of Maharashtra34
In this case, the Supreme Court held that Asst. PPs appointed under section 25 should be
independent of the police department. It observed that the provision for appointment of a
police officer to conduct prosecution was only to be resorted in unavoidable contingencies
or due to the regular prosecutor’s unavailability. The court went on to direct the state of
Maharashtra to create a separate cadre and department for Asst. PPs free from the
administrative and disciplinary control of the police.
1996 Law Commission of India - 154th Report on the Code of Criminal Procedure, 1973
24
ibid para 35.14.
25
ibid para 35.15.
26
Law Commission of India, ‘Report on the Code of Criminal Procedure 1898’ (Law Com No 41, 1969) para 38.3
27
ibid para 18.25
28
ibid para 38.3
29
ibid para 18.26
30
Code of Criminal Procedure 1973, ss 24, 25.
31
ibid s 24(4).
32
ibid s 24(6).
33
ibid s 25.
34
SB Shahane v State of Maharashtra 1996 Suppl (3) SCC 37
11
The 154th report recommended establishing a Directorate of Prosecution for every state.
This Directorate was to be headed by a Director with Deputy Directors assisting her at the
regional level.35 It also recommended that prosecutors in District Courts and Magisterial
Courts should be subordinate to the Deputy Director.
The report recommended that the investigating agency must work in close coordination
with the Directorate of Prosecution.36 It further recommended the appointment of
sufficient women prosecutors for effectively prosecuting offences such as sexual assault and
rape.37
Addressing the cases where prosecutors appear for the accused in the same case and
thereby creating a conflict of interest, the report recommended that in such cases the court
should be given the discretion to permit a person other than the prosecutor to conduct the
trial. Such appointments shall be made in accordance with section 24 (8).38
2003 Committee on Reforms of the Criminal Justice System
The committee recommended that an IPS officer of the rank of Director General should be
appointed as the Director of Prosecution of the state.39 According to the committee, this
would aid in better coordination between the police and prosecutors, the lack of which was
the reason behind poor investigation and the fall in conviction rates.40
The committee further proposed that Asst. PPs should mandatorily be appointed through
competitive examinations. The committee suggested an alternative process for the
appointment of PPs and Addl. PPs. It suggested that only 50% of the vacancies under these
posts should be filled by promotion of Asst. PPs and the remaining 50% should be appointed
from the panel prepared by the District Magistrate in consultation with the Sessions Judge
for a period of three years.41
2005 Code of Criminal Procedure (Amendment) Act, 2005
The amendment act was introduced to strengthen the provisions related to prosecution and
related machinery. The amendment inserted an explanation to section 24(6) clarifying that
a ‘regular cadre of prosecuting officers’ shall mean a cadre which includes the post of a PP
and provides for promotion of an Asst. PP to the post of a PP.
The amendment also introduced section 25A of the Code providing statutory backing to the
Directorate of Prosecution. Under the amendment, the state governments were given the
power to appoint the Director and the Deputy Directors of Prosecution. The provision also
mandates that such appointments shall be made with the concurrence of the Chief Justice
of the relevant High Court.
35
Law Commission of India, ‘Report on the Code of Criminal Procedure, 1973’ (Law Com No 154, 1996) para 12
36
Ibid para 9
37
ibid para 13
38
ibid para 14
39
Dr Justice VS Malimath and others, ‘Committee of Reforms of the Criminal Justice System’ (Government of India, 2003) para 8.52, 8.55
<https://www.mha.gov.in/sites/default/files/criminal_justice_system.pdf > accessed 19 June 2021
40
ibid para 8.2
41
Ibid para 8.56

2006 Law Commission of India – 197th Report on Public Prosecutor’s Appointment
The report found that several states have enacted amendments to override the mandate for
consultation with the Sessions Judge for appointment of PPs in the district and with the High
Court for the appointment of PPs in the High Court respectively.42 The report observed that
such amendments have enabled state governments to make appointments without proper
screening and assessment which in turn violates Article 14 of the Constitution. 43
The report suggested restoring this mandate for consultation with Sessions Judge and the
High Court.44 Further, the report suggested the insertion of a provision in section 24(4)
requiring the Sessions Judge to give importance to experience in sessions cases, merit and
integrity when making such appointments.
The report also observed that the appointment of Asst. PPs should not be entirely based on
seniority. As an alternative, the report recommended the establishment of a state-level
committee consisting of a retired High Court judge, the law secretary of state, officer of the
state government not below the rank of secretary and the Director of Public Prosecution (if
any).45 The committee must assess merit, integrity, past record of performance before
promoting an Asst. PP. The report further suggested that the Addl. PPs should be appointed
both from the Bar and from the cadre of Asst. PPs in a ratio of 50:50.46
42
Law Commission of India, ‘Public Prosecutor’s Appointment’ (Law Com No 197, 2006) p 19
43
ibid p 31.
44
ibid.
45
ibid pp 26 to 28
46
ibid.
13
The development of the law has so far focussed materialised in the states and how the
on separating the investigating agencies from conversation needs to renew its focus towards
the prosecuting agencies. We shall now distancing the prosecution from the state
examine how the changes introduced to executive.
consolidate a prosecutorial cadre have not
15
This section explores the scheme of section clarifies the legal position on issues
appointment of PPs, Addl. PPs, Asst. PPs and related to appointment of different categories
SPPs to analyse the ways in which the of prosecutors and also discusses the manner in
concurrent jurisdiction, i.e., both the central and which state institutional practices have a
state legislature having the authority to bearing on the independent functioning of
legislate on criminal procedure impacts the prosecutors.
functioning of the office of prosecution. The
The 2005 Amendment to the Code sought to The ‘regular cadre’ consists of PPs, Addl. PPs,
create a more organised prosecutorial agency in Asst. PPs appointed for District Courts with
every state. Under the newly introduced promotional avenues for Asst. PPs. These
section 25A of the 1973 Code, the home prosecutors are subordinate to the Deputy
department of the state government has the Director. The SPPs appointed for District
administrative control over the Director of Courts are subordinate to the Deputy Director
Prosecution, although in practice there is as well. The Deputy Director is the supervisory
considerable variance in the nodal department authority even if a cadre is not constituted and
exercising control over prosecution. The the appointments are made under section 24 (4)
Director is the head of the Directorate. The by the state government from the panel
Deputy Directors and the PPs, Addl. PPs and prepared by the District Magistrate in
SPPs appointed for conducting prosecution in consultation with the Sessions Judge.
High Courts are subordinate to the Director.
These posts exist outside the ‘regular cadre’
system contemplated under section 24 (6).
Figure 1. Structure of the Prosecution System as under section 25A of the Code
Director of
Prosecution
Additional
Deputy Public Special Public
Public
Director of Prosecutors Prosecutors
Prosecutors
Prosecution (High Court) (High Court)
(High Court)
Additional
Public Assistant Public Special Public
Public
Prosecutors Prosecutors Prosecutors
Prosecutors
(District Court) (District Court) (District Court)
(District Court)

The eligibility and appointment of PPs, Addl. prosecution by controlling the appointments of
PPs, SPPs and Asst. PPs continue to be prosecutors and their reluctance to establish a
governed by the law existing since the Code of prosecutorial cadre in the states.
Criminal Procedure (Amendment) Act, 1978.
The table below captures the overall structure
The following section studies the attempts of and the categories of PPs contemplated under
state governments to digress from this scheme the revised 1973 Code post the 1978 and 2005
outlined in the code and extend their Amendments as provided in sections 24, 25,
interference in the functioning of the office of 25A of the Code:
Director of 10 years of Supervision of Home State Government

Prosecution practice as the Deputy Department with concurrence of
an Director and the of the State the Chief Justice of
advocate prosecutors in relevant High Court
the High Court
Deputy 10 years of Supervision of Director of State Government
Director of practice as prosecutors at Prosecution with concurrence of
Prosecution an the District the Chief Justice of
advocate Court and relevant High Court
magistrate level
PPs, Addl. Minimum 7 Conduct Director of State Government
PPs in High years of Appeals, appear Prosecution and Central
Courts practice as in Bail and Government after
an Anticipatory consultation with
advocate Bail High Court
applications,
applications
under Section
482 for
quashing,
transfer
applications etc.
PPs, Addl. Minimum 7 Conduct Deputy The Central
PPs in years of prosecution and Director of Government and
District practice as appear in Prosecution State Government.
Courts an related matters
advocate in District Appointment by
Courts State Governments
must be from the
regular cadre of
prosecutors and in
the absence of a
regular cadre, from
amongst the panel
prepared by the
District Magistrate
after consultation
with the Sessions
Judge
17
Assistant No Conduct Deputy State Government
PPs in eligibility prosecution and Director of and Central
Magisterial prescribed appear in Prosecution Government
Courts related matters
in Magisterial
courts
SPPs 10 years of Conduct cases Director of Central and State
practice as or class of cases Prosecution Governments
an for which the for SPPs in
advocate SPP is High Courts
specifically
appointed or Deputy
required to be Director of
appointed under Prosecution
special statutes for SPPs in
District
Courts
Section 24 provides for different categories of Nadu, the late Ms. Jayalalitha. Notably, the case
public prosecutors; the central government and was transferred from the state of Tamil Nadu to
the state governments are empowered to Karnataka as there were serious apprehensions
appoint PPs and Addl. PPs for every High Court with regard to the conduct of a fair trial in Tamil
after consultation with the High Court. The Nadu, specifically concerning the functioning of
central government and the state governments the investigation and prosecution machinery.
are also authorised to appoint a PP and Addl. PP
A division bench of the Supreme Court
for every district.47 State governments,
comprising Lokur and Banumathi JJs. disagreed
however, can appoint only those persons whose
while considering whether an SPP appointed in
name appear in a panel prepared by the District
the trial of the case against Ms. Jayalalitha in a
Magistrate in consultation with the Sessions
special court in Bengaluru was also empowered
Judge unless there exists a ‘regular cadre’ of
to represent the prosecution at the High
prosecutors in the state, in which case the PP
Court.49 As per the Code, a PP appointed for the
and the Addl. PP have to be appointed from
High Court under section 24(1) cannot appear
such a regular cadre. A ‘regular cadre’ means a
before a District Court and similarly a PP
cadre which provides for the promotion of an
appointed under section 24(3) for the District
Asst. PP to the post of a PP.48 Under section 25,
Court cannot represent the prosecution before
the central government and the state
the High Court.50
governments were granted the power to
appoint Asst. PP for conducting prosecution in J. Lokur while evaluating the scheme in section
Magisterial Courts. 24 remarked that the power to appoint an SPP
is a much wider power given to both tiers of the
The importance of the demarcations provided
government, for the appointment is not to be
in the Code can be better understood by a
made with reference to the area of operation i.e.
difference of opinion, which arose in a very
the High Court or a District Court, rather it is an
political case involving corruption allegations
appointment for a case in any court or a class of
against the former Chief Minister of Tamil
47
Code of Criminal Procedure 1973, ss 24 (2) and 24 (3)
48
Code of Criminal Procedure 1973, ss 24 (4) and 24 (6)
49
K. Anbazhagan v State of Karnataka (2015) 6 SCC 86
50
ibid p 120 para 71

cases in any court or courts.51 In his judgment, Given the divided opinion the case was referred
J. Lokur clarified that the jurisdictional limits to a larger bench which concurred with the
placed on PPs under the scheme of the Code interpretation given by J. Lokur. The court held
would apply to SPPs appointed under section that the section 24, 25, 25A and 301 have to be
24(8) as well. appreciated in a schematic context. It deemed
the appointment of the SPP to be restricted to
J. Banumathi argued that the word ‘any court’
the specific case and that too in the specific
appearing in section 301 was critical and while
court. The court held that the scheme of the
the role of PPs under subsections (1) to (3) of
Code clearly demarcates and
section 24 was confined to the area of operation
compartmentalises the prosecution based on
of the PP so appointed, a similar limit is not
their area of operation. 53
attracted to the SPPs appointed under
subsection (8) of section 24. 52
Unquestionably the power to appoint fashion. It was held that an effective way of
prosecutors resides with the executive. The ensuring the engagement of competent lawyers
power to appoint prosecutors for the High was consultation with the district judge.55
Court and the District Courts belongs to both
In Harpal Singh Chauhan, the appellants were
the central government and the state
working as PPs in the District of Moradabad,
governments. This power to appoint
U.P.56 The District Judge had recommended
prosecutors in the High Court and District
their extension but the District Magistrate,
Courts, however, is not absolute as the process
after receiving recommendation of the District
requires consultation with the judiciary. This is
Judge, did not recommend those names saying
supposed to act as a check on the executive
that on an inquiry at his level, their reputation,
power. Understandably, the executive in some
professional work, behaviour and conduct was
states have attempted to circumvent the
not found in accordance with public interest.
consultation requirements by amending the
The state government rejected the extension. It
provision of section 24 as they apply to the
was found that the procedure prescribed under
state.
section 24 was not followed by the District
In 1979, while deciding on a special leave Magistrate and the records could not show that
petition filed by an aggrieved government any panel as required by section 24(4) was
pleader who had monopolised representation prepared by the District Magistrate in
in land related litigation in the State of Bihar, consultation with the District and Sessions
the Supreme Court recognised the importance Judge. The Supreme Court held that there was
of consulting the judiciary in making such patent infringement of the statutory provisions
appointments.54 It was the opinion of the court and that there was no effective or real
that the state needs to find the most competent consultation between the Sessions Judge and
lawyers and not act in a politically partisan the District Magistrate.57
51
ibid p 120, 121 para 74
52
ibid para 159
53
ibid p 178 para 28
54
Mundrika Prasad Singh v State of Bihar (1979) 4 SCC 701
55
ibid p 706 para 14
56
Harpal Singh Chauhan v State of U.P. (1993) 3 SCC 552
57
ibid para 18 and 19
19
Most notably the State of UP has amended the words “consultation with sessions judge” and
Code to remove the requirement of discerned the roles the Magistrate and the
consultation with the High Court for District Judge have to play in evaluating the
appointment of PPs for the High Court and also candidates.
removed subsections (4), (5) and (6) of section
The courts appear to have relentlessly stressed
24 of the Code.58 The Supreme Court in State of
on the importance of consultation with the
UP v Johri Mal59 reviewed the state action
judiciary as a check on the executive power of
acknowledging that it was concerned with the
the state, often importing the meaning of
decision-making process rather than the merit
consultations in the judges cases.62 It is
of the decision itself. The court held that if the
important that the Sessions Judge or the High
procedures laid down in the Code were
Court be involved in the process of
followed or a reasonably fair procedure was
appointment for the courts are better placed to
adopted by the government, the court would
evaluate the competence and conduct of
hesitate to interfere with the government’s
advocates inside the courtroom. However,
decision. The court held that the State should
consultation with the judiciary cannot
give primacy to the opinion of the District Judge
substitute for an objective standard to ensure
in making such appointments to appear
selection of competent prosecutors.
reasonable and fair.
The fitness of the PP to handle trials is an
It was also held that the deletion of subsection
important aspect of her competence. In Laxman
4, 5 and 6 of section 24 from the Code as it
Rupchand Meghvani v. State of Gujarat,63 the
applied to the state of UP was devoid of any
Gujarat High Court adjudicated the challenge to
rationale, it directed that the state government
the appointment of a PP, Adv. Raghubir Pandya,
should consult the court despite the express
on the grounds of fitness and suitability. The
deletion of the provision.60
allegation that the advocate is unfit and
In Neelima Sadanand Vartak v. State of unsuitable for the position stemmed from the
Maharashtra,61 while reviewing relevant Supreme Court judgment in the Best Bakery
decisions of the Supreme Court which dealt Case64 in which the court criticised the manner
with the functions to be performed by the in which the trial was conducted by Adv.
District Magistrate under section 24(4) of the Pandya. In their judgment, the Gujarat High
Code regarding the appointment of PPs and Court stressed the process of choosing the
Addl. PPs for districts, the Bombay High Court fittest person from the panel prepared by the
held that these are statutory functions and are District Magistrate in consultation with
to be performed in consultation with the Sessions Judge. The court held that in case such
District Judge, who has primacy because the exercise is not undertaken by the Government,
post to be filled is that of a prosecutor in the the power for appointment of PP is frustrated.
District Judge's Court. The court
However, in absence of an objective evaluation
unambiguously stated that an effective
of fitness, the mere consideration of fitness by
consultation with the District Judge is essential,
the government might not ensure the
and this function could not be discharged by the
competence of the prosecutors. Therefore, the
Law Secretary or the Advocate General. This
entire process of selection of public
judgment particularly examined the impact of
prosecution, along with the selection criteria,
the amended section 24 (4) which deleted the
requires serious attention.
58
Code of Criminal Procedure (Uttar Pradesh Amendment) Act 1991, s 2
59
State of UP v Johri Mal (2004) 4 SCC 714, 732
60
ibid p 747 para 7
61
(2005) 4 Mah LJ 326
62
State of UP v Johri Mal (2004) 4 SCC 714
63
(2016)2GLR1671
64
Zahira Habibulla H Sheikh v. State of Gujarat 2004 (4) SCC 158

As is clear from the reading of the scheme, SPPs is not defined in the Code, they are deemed to
which are appointed under subsection (8) of fall under the definition of a PP provided in
section 24 are to be distinguished from other section 2(u). Two important questions arise
categories of prosecutors. While the term SPP with regard to the appointment of SPPs:
The said provision for appointment of SPPs has section cannot be applied to appointments of
been subjected to legal challenge on the ground SPPs. The central or the state government is
of excessive delegation of power.65 The “fully empowered to appoint any one with the
provision is seen as an exception to the scheme requisite qualification as a Special Public
of section 24; it has been argued that it does not Prosecutor”.69 An interpretation imposing the
adequately guide the executive as to when they requirements of section 24 (4) and (5) in
should use this discretionary power.66 appointing SPPs under section 24 (8) would
amount to “putting and adding words to the
It has also been argued that a government is not
provision and legislation”.70 There is consensus
justified in appointing SPPs without following
regarding the special status of this office and it
the procedure given in subsections 4 and 5 of
is understood “that when a case or class of
section 24, i.e., choosing the names from the
cases, in the opinion of the Government
panel prepared by the District Magistrate and
requires special attention and therefore there is
adequately consulting the District Judge in
a need for a Special Public Prosecutor is itself
making such decisions. This interpretation
sufficient enough to fall in a class of its own
chooses to read the scheme of section 24 as a
distancing with the other offices…. Merely
whole rather than reading subsection (8) in
because the procedure is not contemplated, it
isolation.67 This understanding is preferred by
cannot be said that the procedure applicable to
judges who find merit in the argument that the
the other office can be brought in and
government’s power to appoint is discretionary
applied”.71
and believe that directing the government to
consult with the District Judge is a way to infuse It is clear that the power to appoint SPPs is a
reasonableness to the decision. wider power, to be used sparingly. The practice
of appointing SPPs however demonstrates that
This interpretation of the Code has been held to
this power is very widely used by state
be invalid. The well settled position of law on
governments, especially in cases which attract
this aspect is that section 24(8) is a special
public attention.
provision68 and the procedure for appointment
prescribed under subsections (4) and (5) of the
65
Vijay Valia v State of Maharashtra 1987 Mah LJ 49, 52 para 2
66
ibid
67
Paramjit Singh Sadana v State of AP 2008 (1) ALD (Cri) 712
68
Jayendra Saraswathy Swamigal (II) v. State of T.N. (2005) 8 SCC 771
69
Shankar Sinha v State of Bihar (1994) 1 PLJR 516, 517 para 3
70
State of AP v Margadarsi Financiers (2009) 2 ALD (Cri) 300, 312 para 18
71
ibid p 312 para 19
21
The usage of the word ‘special’ adjacent to or heinousness of a crime should also not have a
public prosecutor distinguishes this category bearing on such a decision.77
from the regular appointments. The question
In Poonamchand Jain v State of MP, Madhya
with regard to whether an SPP can be appointed
Pradesh High Court touches upon some
at the initiation of the complainant has received
important ramifications of the decision to
judicial attention. There could be three
appoint SPPs,
categories of SPPs: (1) those appointed at the
instance of the state and paid by the state; (2) “It is to be borne in mind that a Special
those appointed at the instance of the Public Prosecutor is not to be
complainant but paid for by the state and (3) appointed on mere asking on behalf of
those appointed at the instance of the the complainant. It is to be kept in mind
complainant and also paid by her.72 that when there is appointment of a
Special Public Prosecutor there is
Some judgements have tried to include the
ouster (sic) of the public prosecutor
complainant in the criminal trial process by
who is appointed in accordance with
allowing her greater say in appointment of
the provision of the Code.”78
SPPs. Others have attempted to demonstrate
that interests of private parties may interfere The court’s opinion also emphasised that the
with the interest of the state in conducting duly appointed prosecutor should not be
criminal proceedings.73 In Mukul Dalal v Union dislodged from his duties for specious reasons
of India, a three-judge bench of the Supreme and only extraordinary circumstances should
Court has held that requests for appointment of necessitate that. While there is no doubt that
SPPs should be properly examined by the the state has the authority to appoint SPPs it
Remembrancer, for cases instituted on private should do so by “ascribing reasons and
complaints often have a bearing on public objectively assessing the facts and
causes. The court further held that requests for circumstances”.
making payments raised by private parties
should also be scrutinised and suggested that These judicial decisions agree on the state led
the legal affairs rules of the states be prosecution design of our criminal process and
accordingly modified.74 indicate that applications made by private
parties be properly scrutinised. Similarly,
Rights of private complainants in a trial are instead of approaching courts with a plea for
however a less important question than appointing an SPP, aggrieved parties may also
determining what circumstances necessitate seek to privately prosecute the accused.
the appointment of SPPs by the state itself.75 Recently, a division bench of the Supreme Court
The Supreme Court has unambiguously held had the occasion to deal with the issue related
that the SPP cannot be appointed at the mere to the role of a victim’s counsel during
asking of the complainant and such an prosecution.79 In this regard, section 301 (2) of
appointment should rightfully be made only the Code envisages a limited role for a pleader
when public interest demands it.76 The severity instructed by a private person. Such a pleader is
72
Vijay Valia (n 57) 55 [10]
73
PG Narayanankutty v State of Kerala. 1982 CriLJ 2085
74
Mukul Dalal v Union of India (1988) 3 SCC 144 [8] [9]
75
For an analysis centering victims’ rights in this context see, Anupama Sharma. ‘Public Prosecutors, Victims and the Expectation Gap: An
Analysis of Indian Jurisdiction’ (2017) 13 Socio-Legal Rev. 87
76
Madho Singh v State of Rajasthan 2002 CriLJ 1694
77
Abdul Kadir v State of Kerala 1993 1 CCR 346
78
Poonamchand Jain v State of MP (2001) SCC OnLine MP 27
79
Rekha Murarka v State of West Bengal 2019 SCC Online SC 1495

required to act under the directions of the influencing the trial through the conduct of the
prosecutor and can only submit written prosecutors. This is more commonly seen in
arguments after the evidence is closed. The cases which attract more public scrutiny than
proviso to section 24 (8) further provides that a others. To take the case of Delhi, the
court may permit the victim to engage an distribution of legislative and executive power
advocate to assist the prosecution. Interpreting in the Union Territory makes such
sections 301 (2) and the proviso to section 24 appointments even more political. Recently, a
(8), the Supreme Court noted that these plea was filed in the Delhi High Court
provisions do not allow a victim’s counsel to challenging the appointment of SPPs for
make oral arguments or examine witnesses for conducting cases pertaining to the riots which
that would be constituting a parallel took place in February, 2020.81 The petitioners
prosecution proceeding by itself. To ensure the allege that the SPPs so appointed have been
consistency of the proceedings, the court held recommended by the Delhi police; this violates
that if the victim’s counsel feels that a certain the principle of separation of powers where the
aspect has gone unaddressed in the prosecution is required to question the role of
examination of the witnesses or the arguments the investigating agencies. The elected
advanced by the prosecutor, they may route government in Delhi and the Lt. Governor have
any questions or points through the PP. In case been in conflict regarding the appointments of
the prosecutor does not take such suggestions SPPs in many politically sensitive cases such as
under consideration, the victim’s counsel may the riots and more recently the farmers’
route the questions or arguments through the protests.82
judge. The Supreme Court has interpreted the
While the situation in Delhi is unique, the
Code in a manner that accords primacy to the
politicisation of appointments of SPPs is not a
prosecutor for conducting trials with a
new phenomenon, the executive routinely
restricted role contemplated for the victim’s
interferes in the criminal administration of
counsel.
justice by choosing prosecutors of their choice
While the courts have reviewed the decisions of and influencing the narrative presented to the
the state governments to appoint SPPs; it court. The scheme of the Code grants wide
remains a discretionary executive power. While unfettered discretion to the state governments
importing the requirement of preparation of a in appointments of SPPs. When matters which
panel and consultation with the judge to involve public functionaries or public causes
appointments made under 24(8) would rightly reach the courts the manner in which this
be judicial overreach, there is a need to limit the discretion is exercised is laid bare.
discretionary power given to state
It is important to note that besides the SPP
governments considering how freely it has been
appointed under section 24(8) of the Code,
exercised without any regard to the directives
there are SPPs that are appointed under special
of the court. It has been argued that statutes. For example, section 14 of the
appointments of SPPs are only justified in cases Scheduled Castes and Scheduled Tribes
where there is a considerable conflict of (Prevention of Atrocities) Act, 1989 establishes
interest, such as when the prosecutor has Special Courts for trial of offences against the
represented the accused before or is known to members belonging to Scheduled Castes and
the judicial officer or the investigating officer.80 Tribes. section 15 of the Act allows for
appointment of a Public Prosecutor for the
Increasingly, governments are using it to oust purposes of conducting cases in the special
regular prosecutors and ensure that they are
80
Mr Divyang Thakur, ‘The Vexed Issue of the Appointment of Special Public Prosecutors’ (The Proof of Guilt, 7 August 2020)
<https://theproofofguilt.blogspot.com/2020/08/guest-post-vexed-issue-of-appointment.html> accessed 24 August 2021
81
Karan Tripathi, ‘Plea in Delhi HC Challenges Appointment of 11 Special Public Prosecutors for Riots Case’ (LiveLaw, 21 October 2020)
<https://www.livelaw.in/news-updates/plea-in-delhi-hc-challenges-appointment-of-special-public-prosecutors-for-riots-cases-164802>
accessed 24 August 2021
82
Mallica Joshi, ‘To argue red fort vandalism cases: Delhi Cabinet rejects panel of lawyers suggested by police’
<https://indianexpress.com/article/cities/delhi/to-argue-red-fort-vandalism-cases-delhi-cabinet-rejects-panel-of-lawyers-suggested-by-
police-7408560/> accessed 24 August 2021
23
courts. Rule 4 of the SC/ST (PoA) Rules 1995 It appears that the SPPs appointed under
prescribes the procedure of such appointments. special statutes are comparable to PPs in the
Similarly, section 28 of the POCSO Act, allows sessions court and not to the SPPs appointed
for designation of courts as special courts to try under section 24(8) of the Act for those
offences under the Act. Section 32 of the same appointments are restricted to a case or a class
Act allows for appointment of SPPs to conduct of cases and cease to exist once the case is ove
cases only under the provisions of the Act.
The power to legislate on the process of cadre and mandatory consultation with the
appointment and promotion of prosecutors is judiciary, the executive effectively grants itself
governed by Item 2 of List III (Concurrent List) unchecked and unbridled power to appoint PPs.
in Schedule VII of the Constitution. The state Though the Constitution permits amendments
legislatures are also empowered to amend the by states to parliamentary legislation, total
provisions related to appointment of control exercised by the executive over PP
prosecutors by following the procedure in appointments not only goes against the spirit of
Article 254(2) of the Constitution. a number of judicial decisions but also violates
the principle of separation of powers.
States such as Bihar, Madhya Pradesh,
Rajasthan, Tamil Nadu and West Bengal have State government rules and resolutions also
made it optional to appoint prosecutors have a bearing on the everyday functioning of
through the regular cadre envisaged under prosecutors and their service conditions.
section 24 (6).83 Karnataka, on the other hand,
In 2015, the Maharashtra State Public
has removed the requirement of consultation
Prosecutors’ Association sought the quashing
with the High Court for appointment of PP and
of the Govt. Resolution dated October,12, 2015
Addl. PPs.84 States such as Maharashtra, Uttar
which imposed a condition of securing 25%
Pradesh, the Union Territories of Jammu and
convictions in cases handled by Asst. PPs to be
Kashmir and Ladakh have not only made it
eligible for promotions.87 The state argued that
optional to constitute a regular cadre but have
the conviction rate in the state of Maharashtra
also done away with the consultation mandate
is low, so the government felt compelled to take
under section 24 (1) and 24 (2).85 Additionally,
such a decision with the aim of improving the
Uttar Pradesh has altogether omitted sub-
conviction rate. The Bombay High Court held
sections 4, 5 and 6 of section 24 from the Code
that the state government cannot fix a
removing not only the cadre system but also the
benchmark for the prosecutors to secure
requirement of preparation of a panel by the
convictions to get promotions and allowed the
District Magistrate in consultation with the
petition.
Sessions Judge.86 In the absence of a regular
83
Code of Criminal Procedure (Bihar Amendment) Act 1983; Code of Criminal Procedure (Madhya Pradesh Amendment) Act 1995; Code of
Criminal Procedure (Maharashtra Amendment) Act 1995; Code of Criminal Procedure (Rajasthan Amendment) Act 1981; Code of Criminal
Procedure (Tamil Nadu Amendment) Act 1980; Code of Criminal Procedure (Uttar Pradesh Amendment) Act 1991; Code of Criminal
Procedure (West Bengal Amendment) Act 1990.
84
Code of Criminal Procedure (Karnataka Amendment) Act 1982, s 2.
85
Code of Criminal Procedure (Maharashtra Amendment) Act 1981, s 2; Code of Criminal Procedure (Uttar Pradesh Amendment) Act 1991,
s 2; The Jammu and Kashmir Reorganization (Adaptation of Central Laws) Order 2020; Union Territory of Ladakh Reorganisation
(Adaptation of Central Laws) Order, 2020
86
Code of Criminal Procedure (Uttar Pradesh Amendment) Act 1991, s 2
87
Maharashtra State Public Prosecutors Association v State of Maharashtra WP 8117/2017(High Court of Judicature at Bombay, Bench at
Aurangabad, August 24, 2018); See Nitish Kashyap, ‘Breaking: Bombay HC Quashes Government Resolution Making it Mandatory for
Assistant Public Prosecutors to Secure 25% Conviction for a promotion’ (LiveLaw, 23 November 2018) <https://www.livelaw.in/breaking-
bombay-hc-quashes-government-resolution-making-it-mandatory-for-assistant-public-prosecutors-to-secure-25-conviction-for-a-
promotion-read-judgment/> accessed 24 August 2021

Similarly, the Directorate of Prosecution in governments are confusing the aims of the
Madhya Pradesh has an incentive scheme for criminal justice system with securing
prosecutors which allocates units to different convictions and are attempting to influence the
categories of cases and awards points for outcomes of cases by incentivising prosecutors
securing convictions.88 It is clear that the state to secure convictions
The most litigious site of the conflict has been cadre preferred by the Supreme Court resulted
with regard to section 24(6) of the scheme in a situation where the object has still not been
which asks for appointment of the regular cadre realised.90
consisting of Asst. PPs to the posts of PP. This
The amendments to the Code in 2005 sought to
subsection was legislated to ensure that Asst.
establish the Directorate of Prosecution in each
PPs who have been selected through open
state with a key function to exercise control
public examinations are duly represented as
over the prosecutorial cadre., However, in
PPs and Addl. PPs at the district level. Most
effect it can be observed the administrative
state governments have amended the provision
control of the Directorate is not uniform across
to make this requirement optional.
the states and is often limited to the cadre of
The 1978 amendment to the Code sought to Asst. PP, which works at the Magisterial Courts.
introduce a prosecutorial cadre constituted by In many states, the category of PPs and Addl.
state governments. However, it did not define a PPs which are appointed under section 24(3)
‘cadre’ or provide any clarification on the are not under the administrative control of the
structure. This led to confusion over the Directorate.
promotion of Asst. PPs as PPs and Addl. PPs in
These developments have been challenged at
District Courts and the issue finally reached the
the High Courts,91 however, there are few
Supreme Court. The Supreme Court in the KJ
instances where repugnancy has been alleged
John judgment held that a ‘regular cadre’
by the petitioners. The Maharashtra State
comprised a service with Asst. PP at the lowest
Public Prosecutors Association approached the
level and PP at the top.89 When it did not go up
High Court challenging the validity of
to the PP at the top, the State was not bound to
amendments made by the state government in
appoint Asst. PP as PP or Addl. PP. The court
2014 as being repugnant to the Code under
held that the basic intention of the legislature
Article 254(2) of the Constitution.92 Recently,
was to appoint PPs and Addl. PPs from
Kerala Assistant Public Prosecutors
advocates having at least 7 years of practice,
Association has challenged the amendments
and state government was within its powers to
and rules made by state governments which
keep the posts of PP as tenure posts and not to
violate the scheme given in sections 24, 25 and
regularise them. The Code was amended in
25A of the Code at the Supreme Court.93
1978 with the specific objective of “maintaining
a regular cadre of prosecuting officers”. The The tenured class of PPs and Addl. PPs is very
dilution of provision through state amendments entrenched in the criminal justice system of
combined with the interpretation of regular respective states and state governments are
88
Saurav Datta, ‘Madhya Pradesh Scheme Incentivising Public Prosecutors Can Endanger Justice’ (The Wire, 2 November 2018)
<https://thewire.in/law/madhya-pradesh-incentive-public-prosecutors-justice> accessed 25 August 2021
89
ibid
90
See Smriti Parsheera, ‘Reforms of prosecution in the Indian criminal justice system’ (The Leap Blog, 7 May 2015)
<https://blog.theleapjournal.org/2015/05/reforms-of-prosecution-in-indian.html> accessed 24 August 2021
91
Andhra Pradesh Assistant Public Prosecutors Association v Government of Andhra Pradesh (1990) 1 AP LJ 197
92
Maharashtra State Public Prosecutors Association v State of Maharashtra 2017 (6) MhLJ 499
93
‘Paper Book’ (Rameez Jabbar v Union of India) <https://www.livelaw.in/pdf_upload/pdf_upload-366193.pdf> accessed 24 August 2021
25
finding it difficult to consolidate the The discussion on the working of the scheme
prosecutorial cadre. The tenured prosecutors demonstrates that the state governments have
routinely litigate their claims with regard to been gradually widening their discretion
extension and continuity at the High Courts, through amendments or through continuing
with the courts having to reiterate that they do older rules and resolutions of the states that
not have such rights, unless a fault is found in violate the scheme of the Code. This has
the manner of promotions or appointments and
hampered the development of the prosecution
that their appointment is merely a “professional
system. Additionally, states have introduced
engagement”.94 This judicial understanding has
undergone a change as well, where earlier given practices such as promotions being conditional
the public nature of the office and the public on conviction rates which skew the aims of the
functions that are discharged by the office the criminal justice system. State governments
claims were considered rightful.95 view low acquittal rates as a failure of the state
prosecution machinery. These developments
The other lesser discussed aspect of the
indicate that strategic engagement with
inability of state governments in consolidating a
legislators, to inform their understanding of a
cadre is the question of representation. Given
criminal justice system which emphasises the
that these appointments are contractual in
nature and not civil posts, demands for importance of due process is urgently needed.
reservations to Scheduled Castes and
Scheduled Tribes are not tenable.96
94
State of UP v Johri Mal (2004) 4 SCC 714; State of UP v Ajay Kumar Sharma (2016) 15 SCC 289
95
Kumari Shrilekha Vidyarthi v State of UP (1991) 1 SCC 212
96
Govindrao Namdeorao Shirsat v State of Maharashtra (2001) 4 LLN 178; State of Uttar Pradesh v. Uttar Pradesh State Law Officers
Association (1994) 2 SCC 204

This section maps the prosecutorial role, A prosecutor performs a wide range of
functions and duties from practices followed in functions and appears in criminal proceedings
courts as well as those specifically captured in on behalf of the state. Sections 301 and 302 of
the Code. It also focusses on a prosecutor’s role the Code permit prosecutors to appear and
as it has evolved through judicial decisions. plead without any written authority of any
court or any permission to conduct prosecution.
Investigation
Warrant for arrest and Obtains orders of warrants whenever No

other searches necessary from the Magistrate
Remand Obtains police custody of accused on No

production under section 167
Absconding accused Declaration of accused as proclaimed No

offender (section 82) and confiscation of
his assets (section 83)
Final Report Submission of final report under sections No

169 or 170 r/w section 173
Cognizance and
Committal
Committal proceedings Assist the Magisterial court on questions No

of cognizance (section 190) and committal
to sessions court (section 209)
Prosecution for A prosecutor may make a complaint in Yes

Defamation (section writing for direct cognizance by Sessions
199) Court when defamation is alleged to have
been committed against the President,
Vice President, Governor etc.
27
Bail
Release of undertrial A prosecutor should be heard before an Yes

prisoners (section 436A) order for continued detention or release of
an undertrial prisoner is passes
Bail Application under Oppose bail application to the best of her No

section 437 before a ability depending on facts and
Magistrate circumstances of the case within the
purview of law
Bail Application under Oppose the bail application. Yes

section 439 before
Sessions Court and High Mandatory notice of the application has to
Court be given to prosecutor
Anticipatory Bail A prosecutor should be given a reasonable Yes

Application under opportunity of being finally heard when
section 438 interim bail is granted. A prosecutor may
also make an application for ensuring the
presence of the applicant at the time of
final hearing.
Withdrawal (section Power to PP and Asst. PP to withdraw Yes

321) cases from prosecution in respect of
offences
Transfer (sections 407 Notice of transfer applications filed before Yes

and 408) High Court and Sessions Court should be
given to the PP.
Trial
Trial of warrant cases, Asst. PPs to conduct trials in Courts of Yes

summons cases and Magistrates unless there is some
Summary Trials unavoidable contingency or is unavailable.
Trial before Sessions Trial to be conducted by PP. Under section Yes

Court 226, PP is required to open the case by
describing the charge and stating the
proposed evidence.
Trial of pardoned person The PP is empowered to certify that a Yes

(section 308) person has failed to comply with the
conditions of pardon leading to the trial of
the person for the offence in respect of
which the pardon was tendered.

Appeal
Appeal by Government PP has the power to present an appeal Yes

against sentence against a sentence on the grounds of
(section 377) inadequacy on directions from the
relevant government
Appeal against acquittal PP has the power to present an appeal Yes

(section 378) against an acquittal on directions from the
appropriate authority/government
Powers of Appellate Appellate court is required to hear the PP, Yes

Court (section 386) if she appears in appeals under sections
377 and 378
29
The office of prosecution in India is excluded “supplementary filter”.98 The other extremes
from interfering at the stage of investigation or are countries like South Korea where
even assisting the investigating agencies in prosecutors monopolise pretrial stages of the
preparing the chargesheets or final reports as criminal process, no other actor independently
the case may be. This position is not shared in screens the decisions made by the
other jurisdictions where the pre-trial prosecution.99
discretion given to prosecution is immense.
Taking into account the laws in other It is argued in the following portion of the
jurisdictions, the discretion to conclude a case chapter that the Indian criminal justice system
at the stage of the investigation is shared gives relatively little discretion to the
between the police and the prosecutors with prosecutor. To arrive at this conclusion we
the police often sending the case to the study the,
prosecutor’s office for review. Many criminal A. investigation stage where the police is
justice systems give the police legal or de facto legally authorised to form an opinion
discretion to end cases that have the effect of regarding the prospect of trial;
reducing the workload of the prosecution B. the charging stage where ideally the
service for the more discretion the police have, prosecutor should independently assist
correspondingly lesser is the prosecution’s the court regarding the report filed by
workload.97 the police, however, ultimately the
court is tasked with the charging
Comparative studies on prosecutorial decision and;
discretion have found that in the English and the C. lastly the decision to withdraw from
USA’s criminal justice systems, the police prosecution where the consent of the
discontinue cases acting as gatekeepers and the court is necessary to execute the
public prosecution service acts as a prerogative of the prosecutor.
In India, the discretion to conclude a case at the As per the law, the officer in charge of the police
completion of investigation is given to the station conducting the investigation is
police authorities. The police are empowered to empowered to form an opinion on whether or
decide whether or not the case should be not a case should go to trial. While the Code
pursued in a trial. does not use the words final report or
chargesheet, the police manual reveals that the
97
DH Choe, ‘Discretion at the pre-trial stage: A comparative study’ (2014) 1 European Journal on Criminal Policy and Research 20 101 102
98
ibid 116
99
90% of the cases are concluded as results of prosecutorial decision making. See ibid 117

report by the police filed under section 169 of Magistrate is not obliged to accept the final
the Code outlining insufficiency of evidence is report. The Code however does not empower a
referred to as ‘final report’; the filing of such a Magistrate to direct the police to submit a
report indicates that the police does not think chargesheet if they have filed a final report
that the accused can be justifiably sent to under section 169; she can take other suitable
trial.100 A report under section 170 of the Code action but cannot impinge upon the police’s
is referred to as the chargesheet and indicates jurisdiction.104
the police’s preference for placing the accused
on trial.101 It is important to highlight that the The Supreme Court in a two-judge bench
average chargesheeting rate of the police is decision has stated clearly that the police are
67.2 where states like Andhra Pradesh, Gujarat, equipped to form an opinion as to whether a
Himachal Pradesh, Kerala, Madhya Pradesh, final report or a chargesheet should be
Odisha, Tamil Nadu, Telangana and West submitted in a particular case and forming an
Bengal have a chargesheeting rate >80.102 opinion about whether the evidence collected
justifies that the accused go to trial. The court
The decision to proceed with the trial rests with has regarded the formation of this opinion as
the Magistrate, if she agrees with the final the final stage in investigation and
report, she can close the proceedings and if she unambiguously suggested that this function has
is unconvinced by the final report, she can direct to be performed solely by the police and no
the police to investigate further.103 The other authority.105
In R Sarala v TS Velu, an order given by a single the PP. It stated collaboration between the
judge of the Madras High Court, where he investigating officer and the PP for filing of the
ordered the investigating officer to place the report was against the scheme of the Code.107
chargesheet before the PP and suitably amend
the chargesheet after seeking the opinion of the In 2014 while deciding a criminal appeal where
PP was challenged before the Supreme Court. a two-judge bench of the Supreme Court held
The court determined that the question was not the lapses in investigation and prosecution
whether an investigating officer, on his own responsible for the acquittal of a rape accused,
volition, can consult the prosecutor- for the the court directed that “on the completion of
investigating officer is free to do so; the court the investigation in a criminal case, the
questioned the High Court’s authority to direct prosecuting agency should apply its
an investigating officer to do the same.106 The independent mind and require all shortcomings
court held that the High Court had committed to be rectified, if necessary, by requiring further
an illegality in directing the withdrawal of the investigation”.108 It further directed that a
final report and fresh submission of the Standing Committee of senior officers of police
chargesheet after incorporating the opinion of and prosecution department be formed in every
100
101
ibid s 170
102
National Crime Records Bureau, ‘Crime in India 2019’ (2020) 1017 <https://ncrb.gov.in/sites/default/files/CII2019-Volume-3.pdf>
accessed 24 August 2021
103
ibid s 156(3)
104
Abhinandan Ja v Dinesh Mishra (1967) 3 SCR 668 [20]; Kishore Kumar Gyanchandani v GD Mehrotra AIR 2002 SC 483
105
ibid
106
R. Sarala v TS Velu AIR 2000 SC 1731 para 8
107
Ibid para 19, 11, 10 and 12
108
State of Gujarat v Kishanbhai (2014) 2 SCC (Cri) 457 para 21
31
state to examine the orders of acquittals and police challan and even includes a proforma for
furnish reasons for the failure of the conducting such a scrutiny for different
prosecution.109 categories of offences.114 It provides a
procedure for scrutiny and endorses ‘samanvay’
As a consequence of this decision, the i.e. coordination between the investigating
Chandigarh Directorate of Prosecution have agency and the prosecuting agency.
issued office orders mandating challan
(chargesheet) checking by prosecutors.110 The The courts on a few occasions have also
police department or the investigating agencies recognised the usefulness of this practice; the
do need the expertise of a prosecutor at the Delhi High Court issued an order in 2018
investigation stage to advise them regarding mandating the scrutiny of chargesheets by
the quality of evidence being collected. It is for prosecutors, however it later withdrew its
this reason that concerns regarding lack of order.115 Similarly, the Punjab and Haryana
coordination between the police and the High Court directed that the final report must
prosecution surface in conversations on reflect the opinion of the prosecuting agency
criminal justice reform.111 that the suggested offence has been
committed.116 Recently the Delhi Prosecutors
There are a few states which incorporate this Welfare Association has petitioned the Delhi
practice. The prosecutors in Delhi have been High Court to transfer the work of scrutinising
scrutinising the chargesheets prepared by the the chargesheets to the legal division of the
local police.112 In 2018, a prosecutor had police department. The petition states that this
written to the Deputy Commissioner of the practice, which commenced in 1978 by a
Delhi Police, that the objections raised by him to Standing Order of the Delhi Police and got
the charges were not considered by the Delhi sanctioned by the Government of National
police and it filed the document despite the Capital Territory of Delhi in 1997, in fact goes
opinion of the prosecutor which advised against against the scheme of the Code.117 The petition
it.113 The Asst. PP said these actions of the Delhi has been referred to a division bench of the
Police violated the judgment of the Supreme High Court by Justice Pratibha Singh. The
Court in State of Gujarat v. Kishanbhai. The petition suggests that scrutinising chargesheets
Himachal Pradesh manual too incorporates is what they consider to be “additional work”
scrutiny of and they have not been compensated for their
work.
109
Ibid para 22
110
Dy. Superintendent of Police (Hqrs.), ‘Miscellaneous Directions’ (No 1389, 26 February 2020)
<http://chandigarhpolice.gov.in/pdf/Notification%20Circular/Miscellaneous%20Directions.pdf> accessed 24 August 2021
111
Madan Lal Sharma, ‘Role and Function of Prosecution in Criminal Justice’ (1997) Resource Material Series No. 53, 107th International
Training Course Participants’ Papers, United Nations Asia and Far East Institute 187
112
Directorate of Prosecution, Govt of NCT of Delhi, ‘Manual 1’ s 7
<http://web.delhi.gov.in/wps/wcm/connect/d77c03004c6b0f39b40cf658f7255897/Manual_1_Dec2019.PDF?MOD=AJPERES&lmod=-
191329353&CACHEID=d77c03004c6b0f39b40cf658f7255897> accessed 24 August 2021
113
Abhishek Angad, ‘Chargesheets being filed without propoer scrutiny, police told’ Indian Express (December 13, 2018)
<https://indianexpress.com/article/cities/delhi/chargesheets-being-filed-without-proper-scrutiny-police-told-5491083/> accessed 24
August 2021
114
Directorate of Prosecution Himachal Pradesh, ‘Prosecution Manual’ (Government of Himachal Pradesh, January 2008)
<https://himachal.nic.in/WriteReadData/l892s/173_l892s/3-11934501.pdf> accessed 24 August 2021
115
Court on its Own Motion v. State [Writ Petition (Criminal) 1352/2015, order dated 05.04.2018]
116
Tarsem Singh v State of Punjab CR MM 303-2013 (Punjab and Haryana High Court, Order dated September, 16, 2019)
117
Shreya Agarwal, ‘Delhi HC DB To Hear Plea Seeking To Transfer Work Of Chargesheet Scrutiny From Prosecutors To Legal Division Of
Police’ (Livelaw, 16 February 2021) <https://www.livelaw.in/news-updates/delhi-high-court-delhi-police-transfer-chargesheet-scrutiny-
public-prosecutors-169913?infinitescroll=1> accessed 24 August 2021

Instituting a legal division within the police supervision of the police. It would be prudent to
department to advise them on preparation of continue or introduce, as the case may be,
chargesheets might seem like a viable solution, prosecutorial oversight at the investigation
however, it would resemble the old system stage, in the form of scrutiny of chargesheets.
where the prosecutors worked under the
Many criminal justice systems allow allows the prosecution to introduce the case to
prosecutors to make the decision regarding the the judge and form her first impressions about
nature of the charge. This decision is critical in the merits of the case.123
assessing the status of the prosecution service
in a criminal justice system.118 Prosecution It is important to understand the purpose of the
service in such jurisdictions performs the sections 227 and 228 to appreciate the role of
function of lowering the caseload of the the prosecutor at this stage. Under sections 227
courts.119 Regarding decisions to not charge the and 228, the court is expected to evaluate the
accused, the evidentiary sufficiency and the material and documents on record, distil the
public interest tests are applied. The facts, and form an opinion regarding the
prosecutors are also allowed to not charge the ingredients which should constitute the alleged
accused and dismiss the case while offence. While the court is empowered to be the
simultaneously attaching conditions on the neutral arbiter and not accept the prosecution's
accused.120 In the USA, the prosecutor’s version unquestioningly, the prosecutor too is
discretion to charge has invited significant expected to ensure the accuracy of the charge
criticism. The criticism is levelled against the that is framed.
opaque functioning of their office and the lack
The prosecutor should inquire about the
of public accountability and for compounding
contents of the chargesheets filed by the
the racial disparities in the criminal justice
investigating agency and if the necessary
system.121
ingredients which constitute the offence are
In the Indian context, the court is empowered to not found in the chargesheet, assist and alert
frame the charges albeit the prosecutors play a the court regarding the deficiencies of the
limited role in influencing the opinion of the document. The Madhya Pradesh High Court
court. Section 226 of the Code corresponds to while deciding a criminal revision petition
section 286 of the 1898 Code.122 The changes challenging the accuracy of charges framed by
incorporate the abolition of the jury, however, the trial court remarked that,
the function of the prosecutor with regard to
opening the case remains the same. Section 226
118
Choe (n 86)
119
Ibid 107
120
ibid
121
Davis, Angela J., ‘The American prosecutor: Independence, power, and the threat of tyranny.’ (2000) 86 Iowa L. Rev. 393.
122
“(1) In a case triable by jury, when the jurors have been chosen or, in any other case, when the Judge is ready to hear the case, the prosecutor
shall open his case by reading from the Indian Penal Code or other law the description of the offence charged, and stating shortly by what
evidence he expects to prove the guilt of the accused.
(2) The prosecutor shall then examine his witnesses."
123
"Opening case for prosecution-
When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, 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."
33
"The Prosecutor cannot take the stand The court goes on to allow the petition and
that his case is whatever has been stated acknowledges that the court was to apply its
in the charge sheet filed by the police. mind independently on whether a prima facie
Instead, the mandate of section 226 is case was made against the accused. The court
that the Prosecutor would have to lead held that instead of taking a stand in the case,
the Trial Court through the evidence on the prosecutor should help the court in
record on the basis of which the establishing whether the evidence collected
Prosecutor seeks to establish the guilt of warranted framing of charges against the
the accused and thereby assist the Court accused.
in forming its opinion based on evidence
on record with regard to framing of
charges against the accused."124
The power to withdraw prosecution in a are above them on the administrative side.129
criminal case under section 321 of the Code is Further, before providing consent to the
one of the salient functions of prosecutors. It withdrawal of prosecution, the court shall be
empowers the PP and Asst. PP in charge of a satisfied that the prosecutor is exercising her
case to withdraw the prosecution, with the functions independently and that it is not an
consent of the court, against any person or attempt to interfere with the normal course of
generally in respect to any one or more charges justice for any illegitimate purpose.130
for which they are tried.
However, amendments by state governments
The Code entrusts the prosecutor with this and rules enacted by them have curtailed this
executive power to be exercised in furtherance prerogative. The UP government through a
of the object of law125 and to promote public state amendment has made it obligatory for the
justice in the larger sense – social, economic and PP or the Asst. PP to withdraw a criminal case
political.126 While exercising this power, the only after obtaining the written permission of
the state government.131 It is important to note
prosecutor should act as ‘an officer of the
that various other states have such rules in the
court’127 and independently assess whether a
Legal Affairs manual or their equivalent which
case for withdrawal of the prosecution is made mandate that sanction be obtained from the
out.128 It is the prosecutor’s responsibility to government or the District Magistrate to move
apply independent mind and decide upon the the application to withdraw from
withdrawal of prosecution. This responsibility prosecution.132 The Himachal Manual includes
cannot be betrayed in the favour of those who the District Magistrate and the state home
124
Ramnaresh v State of Madhya Pradesh 2016 SCC OnLine MP 838 para 20
125
MN Sankarayaraynan Nair v PV Balakrishnan (1972) 1 SCC 318
126
Rajendra Kumar Jain v State (1980) 3 SCC 435
127
Faqir Singh v Emperor AIR 1938 PC 266; SK Shukla v State of UP (2006) 1 SCC 314
128
Subhash Chander v State AIR 1980 SC 423
129
Balvant Singh v State of Bihar AIR 1977 SC 2265
130
State of Bihar v Ram Naresh Pandey AIR 1957 SC 389
131
Code of Criminal Procedure (Uttar Pradesh Amendment) Act 1991; Ranjana Agnihotri v Union of India 2013 (11) ADJ 22
132
Office of the District Government Pleader and Public Prosecutor, Yavatmal, ‘Information published under Section 4 of the Right of
Information Act, 2005’
<https://www.maharashtra.gov.in/Site/Upload/RTI/Marathi/Mahitiadhikar_DGPNPP_Office_Yavatmal_17itmes.pdf> accessed 25 August
2021; Madhya Pradesh Law and Legislative Affairs, ‘Department Manual’ s 24
<http://www.law.mp.gov.in/sites/default/files/documents/law-dept-manual-english-copy.pdf> accessed 24 August 2021

department into the decision of withdrawing This has resulted in the minimal use of this
from prosecution; it states that while statutory power to withdraw criminal cases. A provision
power to withdraw vests with the prosecutor, originally intended to promote administration
such a withdrawal suggests a fatal weakening of of justice and weed out weaker cases has been
the case, or change in circumstances which sparsely used in our legal system; between
were not present at the time of filing of the 2013 and 2019, less than 0.25 percent of the
challan.133 It is clear that while statutorily the cases sent to trial under IPC have been
decision vests with the prosecutor of a case, in withdrawn by the prosecution. In this period of
practice this power cannot be freely discharged five years, in 19 out of 36 states and union
by the prosecutor given the bureaucratic territories, less than 35 cases under IPC were
sanctions she has to obtain from state withdrawn by the prosecution
functionaries.
The ecosystem under which prosecutors during the protests against Emergency, the
operate, as such, would make one question how Supreme Court held that the mere fact that the
independently prosecutors can make this withdrawal is initiated by the government will
decision. The state governments hold the right not vitiate the application of the PP.137 The
to suggest the withdrawal of cases where it Supreme Court further held that in such a
thinks that such an action will promote situation the court should satisfy itself that the
administration of justice, though, the right to PP was convinced with the reasons for the
withdraw rests with the prosecuting officer.134 withdrawal. In Sheonandan Paswan v State of
However, the administrative control of the Bihar,138 a constitutional bench of the Supreme
governments over prosecuting officers and the Court decided the question regarding the role
general lack of independence makes it difficult of the judge while granting consent for
for a prosecutor to apply her independent mind withdrawal of prosecution. The court held that
and/or protest a direction by the government to while granting consent the court should not
withdraw prosecution.135 Moreover, in several review the grounds of withdrawing the
instances, the governments have overstepped prosecution but must only make sure that the
the contours of this right and directed the PP has made the application in good faith and
prosecuting officers to withdraw cases in not to stifle the process of law.139
furtherance of their political purposes.136
It is important to note that political parties of all
This political abuse compelled the judiciary to persuasions encroach upon the prosecutors’
further clarify the provisions for the withdrawal power to withdraw criminal cases. Recently
of prosecution under section 321 of the Code. while deciding on a case involving withdrawal of
Over the years, the Supreme Court arrived at criminal cases against members of the
certain principles to guide the exercise of this legislative assembly, the Supreme Court
provision. In Rajendra Kumar Jain v Union of synthesised a set of principles that should be
India, addressing the issue of the withdrawal of observed with regard to exercise of power
prosecution against George Fernandes, in a
case regarding the destruction of property
133
134
135
Aditya Ranjan, ‘Politics in prosecution: Withdrawing of cases for votes undermines the criminal justice system’ (The Firstpost, 19 March
2021) <https://www.firstpost.com/india/politics-in-prosecution-withdrawing-of-cases-for-votes-undermines-the-criminal-justice-system-
9438241.html> accessed 19 August 2021
136
See Bairam Muralidhar v State of Andhra Pradesh (2014) 10 SCC 380
137
138
Sheonandan Paswan v State of Bihar (1987) 1 SCC 288
139
ibid.
35
under section 321.140 The court held amongst satisfied that withdrawal of prosecution is
other things, that “while the mere fact that the necessary for good and relevant reasons” and
initiative has come from the Government will “in deciding whether to grant its consent to a
not vitiate an application for withdrawal, the withdrawal, the court exercises a judicial
court must make an effort to elicit the reasons function but it has been described to be
for withdrawal so as to ensure that the PP was supervisory in nature”.
As mentioned earlier, in general, the provision including Aam Aadmi Party in 2013 Delhi
for withdrawal of cases, given in the Code to elections,143 Jharkhand Mukti Morcha in 2019
eliminate unnecessary trials and trials that may Jharkhand elections,144 Indian National
harm public justice, is seldom utilised by Congress in 2019 Madhya Pradesh elections145
prosecutors. The burdensome procedure and and 2019 Odisha elections146 and Dravida
sanctions required for the withdrawal Munnetra Kazhagam in 2020 Tamil Nadu
disincentivise prosecutors from utilising the elections have included the withdrawal of
benefits of the provision. It appears from politically significant cases as one of their key
reading the numbers on withdrawals that the electoral promises. Further, even the party in
prosecutors do not get to use their prerogative, power has often abused this function to
rather the political executive often indirectly withdraw politically sensitive cases and seek re-
use this provision to serve their own ends. election.147 While such promises attract
support for the political party, it weakens the
In recent years, across many states, the criminal justice system by making it a tool for
executive has misused this provision to gain electoral politics.
political support and allies during elections.141
At many instances, political parties have even The number of yearly disposals of criminal cases
made electoral promises to withdraw under IPC, published by the National Crime
prosecution against political supporters to gain Records Bureau, highlights two key trends
support and votes in the election.142 The regarding the withdrawal of prosecution under
inclusion of such promises in election section 321 of the Code. Firstly, the provision
manifestos has become a common occurrence. for withdrawal of prosecution is seldom used in
In recent years, several political parties, many states, as 19 out of 36 states and union
140
State of Kerala v K Ajith Crl Appeal No 697 of 2021 (Supreme Court of India)
141
Deep Gazmer, ‘Bengal to withdraw 70 criminal cases against Bimal Gurung’ (The Times of India, 21 February 2021)
<https://timesofindia.indiatimes.com/city/kolkata/bengal-to-withdraw-70-criminal-cases-against-gurung/articleshow/81131565.cms>
accessed 19 August 2021; Shaju Philip, ‘Kerala government decides to withdraw Sabarimala, anti-CAA protest cases’ (The Indian Express, 25
February 2021) <https://indianexpress.com/article/india/kerala-government-decides-to-withdraw-sabarimala-anti-caa-protest-cases-
7203600/> accessed 19 August 2021
142
Press Trust of India, ‘Dilip Ghosh says BJP will withdraw false cases against workers of all parties after coming to power’ (Firstpost, 30
October 2020) <https://www.firstpost.com/politics/dilip-ghosh-says-bjp-will-withdraw-false-cases-against-workers-of-all-parties-after-
coming-to-power-8964961.html> accessed 18 August 2021
143
Aam Aadmi Party, ‘Delhi Election Manifesto 2013’ (2013) <http://media2.intoday.in/indiatoday/aap_manifesto.pdf> accessed 24 August
2021
144
Purnima S Tripathi, ‘Jharkhand: Discord in the ruling front’ The Frontline (31 January 2020)
<https://frontline.thehindu.com/politics/article30536375.ece#!> accessed 24 August 2021
145
Suchandana Gupta, ‘Madhya Pradesh cabinet approves withdrawal of criminal cases against farmers and Congress workers’ The Times of
India (17 January 2019)
<http://timesofindia.indiatimes.com/articleshow/67577074.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
> accessed 22 September 2021
146
Debabrata Mohapatra, ‘Congress woos farmers, women, youth in Odisha manifesto’ The Times of India (7 April 2019)
>accessed 22 September 2021
147
Aarefa Johari, ‘‘It’s a poll gimmick’: Gujarat farmers, Patidars rubbish BJP’s offer to withdraw cases against them’ (Scroll.in, 22 October
2017) <https://scroll.in/article/854837/its-a-poll-gimmick-gujarat-farmers-patidars-rubbish-bjps-offer-to-withdraw-cases-against-them>
accessed 22 September 2021.

territories recorded less than 35 withdrawals of Between 2015 and 2019, in the states where
cases filed under IPC between 2015 and 2019. more than 35 cases under IPC were withdrawn
Secondly, in states where this provision was in this period, there were 14 instances of
transition of power from one political party or
used to withdraw a significant number of cases,
coalition to the other.148 Among these 14
the year-wise distribution of the withdrawal of instances, 10 (71%) corresponded with the
prosecution points at the increased withdrawal higher withdrawal of cases than the average
of cases during election years, particularly number of cases withdrawn in the years with no
when elections result in a change in the political change of power. Further, in 7 instances, the
party in power. number of cases withdrawn in the year of
change in government constitute more than 45
per cent of the total number of cases withdrawn
in the state between 2015 and 2019.
Figure 2. Withdrawal of IPC cases from prosecution under section 321 of the Code
Withdrawals in the year of change in the government Withdrawal in rest of the years between 2015-19
DELHI 264 146

TRIPURA 25 28
RAJASTHAN 111 240
MAHARASHTRA 868 7454
MADHYA PRADESH 1322 1201
KERALA 55 344
KARNATAKA 2018 42 204
KARNATAKA 2019 148 98
JHARKHAND 158 24
JAMMU & KASHMIR 416 35
HIMACHAL PRADESH 226 629
CHHATTISGARH 44 32
A S S A M0 584
ANDHRA PRADESH 57 342
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
The analysis also shows that other factors such elections were scheduled in the state. During
as panchayat elections have a significant impact that year, the state government faced public
on the withdrawal of cases. For instance, in anger over the criminal cases filed against
Odisha, all 92 withdrawals between 2015 and ineligible beneficiaries under the National Food
2019 occurred in 2016, when the panchayat Security Act, 2013. To address this
148
The transition of power considered for this analysis includes: Andhra Pradesh – formation of Yuvajana Sramika Rythu Congress Party
(YSRCP) led government in 2019; Assam – formation of Bharatiya Janta Party (BJP) led coalition government in 2016; Chhattisgarh –
formation of Indian National Congress (INC) led government in 2018; Himachal Pradesh – formation of BJP led government in 2017; Jammu
and Kashmir – imposition of President’s rule in the state in 2018; Jharkhand – formation of Jharkhand Mukti Morcha (JMM) led coalition
government in 2019; Karnataka – formation of INC and Janda Dal (Secular) led coalition government in 2018 and formation of BJP led
coalition government in 2019; Kerala – formation of Left Democratic Front coalition government in 2016; Madhya Pradesh – formation of
INC led coalition government in 2018; Maharashtra – formation of INC, Nationalist Congress Party and Shiv Sena led coalition government
in 2019; Rajasthan – formation of INC led government in 2018; Tripura – formation of BJP led government in 2018; Delhi – formation of
Aam Aadmi Party led government in 2015.
37
discontentment before the local body elections, where this function is employed is often related
the state government directed the prosecution to political motives. These numbers warrant a
to withdraw the cases against those accused to deeper analysis of the nature of cases
be ineligible beneficiaries.149 withdrawn and the process of their withdrawal
to provide a better understanding of the extent
The increase in the number of withdrawn cases of political interference in the executive powers
around the election season is a concerning of prosecutors and the role of the judiciary in
trend. While the power to withdraw cases is checking this misuse of the criminal justice
sparsely used by the prosecution, the instances system.
Various judicial decisions and Law Commission jurisdictions has been set out in Annexure I to
Reports have repeatedly stressed the necessity this report.
of an independent and autonomous
prosecutorial machinery. This has been Given that the subject lies in the concurrent list
hindered as a result of excessive interference and the existence of different categories of
by the executive in the appointment of prosecutors, a uniform standard to ensure
prosecutors and with her discretion to prosecutorial accountability may not be
withdraw cases. Moreover, the law does not possible in India. However, it ought to be
bestow any role upon the prosecutor at the pre- ensured that any additional power granted to
trial stage of a case which she is eventually the prosecutor must be accompanied by
expected to prove in court. A more involved and sufficient checks.
informed prosecutor can immensely aid the The performance of a prosecutor in court is
creaking criminal justice system. another concern. Recently the Kerala High
Any measure taken for establishing an Court took exception to the inability of
autonomous procuracy with wider discretions prosecutors to prove the most basic aspects of
must also include an appropriate mechanism for a case such as proving the minority of a child in
accountability. In commonwealth countries POCSO cases and instituted a suo moto case to
such as England & Wales, Australia and Canada take appropriate measures against the
where the prosecutor has greater involvement appointment of incompetent prosecutors.150
and decision-making powers, the office of the This has been the issue across states and is not
prosecutor is made accountable directly to the an isolated incident. Multiple judicial decisions
Parliament. Additionally, England & Wales as have lamented the lack of competent
well as Australia have constituted dedicated prosecutors. Therefore, there is also an urgent
bodies to annually audit the performance of the need to start a conversation about setting
procuracy while Canada has a self-imposed minimum standards of performance for all
code of conduct for all its prosecutors. A more types of prosecutors while conducting trials in
detailed discussion on the prosecutorial court.
functioning in select commonwealth
149
Sujit Kumar Bisoyi, ‘Odisha govt to withdraw criminal cases against ineligible NFSA beneficiaries’ The Times of India (6 August 2016)
> accessed 22 September 2021
150
Hannah M. Varghese, ‘Abject Incompetence of Prosecution: Kerala High Court Initiates Suo Motu Case To Probe Appointment Of
Prosecutors’, LiveLaw, (23 September 2021) <https://www.livelaw.in/news-updates/kerala-high-suo-motu-cognizance-on-incompetence-
of-prosecutors-182322> accessed 31 December 2021

This report is an attempt to further this to some of the key areas for reforms in the
discourse on prosecutorial reform and highlight structure and functioning of the office of public
the need for independence of prosecution from prosecution. A summary of these
the state executive. The report calls attention recommendations is provided below.
While the Code provides for the consultation comprehensive process to evaluate the
with the judiciary in the appointment of candidates based on objective criteria of
prosecutors, mere consultation cannot competence and fitness to ensure that the best
substitute an objective standard to ensure the advocates are appointed as the prosecutors.
selection of competent and fit candidates to (For detailed analysis, refer to p 19)
handle criminal trials. There should be a
Section 24(8) of the Code offers wide discretion oust regular prosecutors and influence the trial
to the state governments to appoint SPPs to a through the conduct of the prosecutors. Such
case or a class of cases. The Code does the executive interference in criminal trials harms
provide any guidance for the executive the criminal justice system. To prevent such
regarding the process of appointment of SPPs interference, appropriate laws and rules must
or the circumstances under which such special be framed to guide the application of this
power should be used. In absence of such discretionary power by the executive. (For
guidance, often governments have used this detailed analysis, refer to p 21)
provision in cases that attract public scrutiny to
In recent years, the judiciary has emphasised prosecution and investigative agency. This
the expansion of the role of the prosecution practice should be encouraged in other states
agency in scrutinising the investigation and the and appropriate laws and rules should be
chargesheet filed by the investigative introduced to support the expansion of the
agencies.151 As a result of this, a few states, prosecutorial function. (For detailed analysis,
including Delhi152 and Himachal Pradesh153 refer to p 30)
have incorporated this practice of prosecutorial
oversight in the investigation, in the form of
scrutiny of the police chargesheets. Such
practice supports police investigation and
establishes better coordination between the
151
State of Gujarat v Kishanbhai (2014) 2 SCC (Cri) 457 para 21
152
Directorate of Prosecution, Govt of NCT of Delhi, ‘Manual 1’ 7
<http://web.delhi.gov.in/wps/wcm/connect/d77c03004c6b0f39b40cf658f7255897/Manual_1_Dec2019.PDF?MOD=AJPERES&lmod=-
191329353&CACHEID=d77c03004c6b0f39b40cf658f7255897> accessed 24 August 2021
153
39
The power to withdraw cases from prosecution own accord. Therefore, it is crucial that the
is often misused by the state executive for prosecutor is empowered to resist any attempts
political and electoral purposes. While the of executive interference in her functions.
prosecutor enjoys discretionary power under Further, courts should perform an active role to
section 321 of the Code to withdraw cases from prevent the political abuse of this provision.
prosecution with the consent of the court, this (For detailed analysis, refer to p 34)
power is seldom used by the prosecutor on her
While establishing an independent the state. Alternatively, prosecutorial

prosecutorial agency, it is important that sound accountability may be directed towards the
accountability measures are incorporated into legislature through the presentation of annual
the system. Such prosecutorial accountability reports on the performance of prosecution
may be achieved through a dedicated body before the state legislative assembly. (For
entrusted with the function to conduct audits detailed analysis, refer to p 38)
and evaluations of the office of prosecution in

The conversation on prosecutorial reforms in the development of a prosecutorial cadre in
India has emphasised upon its institutional states, given the entrenchment of tenured
separation from the police. Much has been prosecutors in the criminal justice ecosystem.
achieved in this aspect with development of a
robust prosecution system in the states with Another arena where the political influence is
different categories of prosecutors working fairly visible is the manner in which criminal
with the tiered judiciary. Many judicial cases are withdrawn from prosecution.
decisions acknowledge the importance of Withdrawal from prosecution allows for
independence in the functioning of the office, weaker cases to fall out of the system, however
however most of these observations are made in practice negligible numbers of cases are
with regard to the way the prosecutor withdrawn in India. The power is mostly
discharges her official responsibilities. The usurped by state governments to manipulate
report attempts to evaluate the institutional the criminal justice system and use it as a site for
arrangements under which the office functions electoral politics.
and examines whether it impinges on the
These practices of the state governments
independence enjoyed by the office.
combined with the relatively limited discretion
The report attempts to shift the conversation prosecutors in India enjoy in the investigation
towards the executive interference in the stage and the early stage of a criminal trial
functioning of the prosecution through the makes them vulnerable to executive
extended involvement in appointments as interference. While independence from the
prescribed by the Code. The report finds that investigating agencies has been secured,
the state governments have encroached independence from the state executive is
further by amending the Code to remove the equally important for optimal functioning of the
checks on executive power in the matter of office of public prosecution. It is important to
appointments and through the set of rules and shift the narrative on prosecutorial reforms to
instructions made by the state governments these structural factors that affect their
that are intrinsically tied to the functioning of everyday functioning in courts.
prosecutors. Some states have also attempted
The institutional arrangements that they
to orient the prosecutors towards securing
operate within have a significant influence on
more convictions through executive
the discharge of their responsibilities inside the
instructions. This has resulted in an ecosystem
courtroom. The judiciary has in the past made
where the independence of prosecutors has
passing references to the need to ensure
been compromised.
prosecutorial autonomy. However, for this to
While the PPs in many states are fairly translate into reality, laws and rules involving
organised, they have attempted to negotiate their appointments and functioning would
with the state by making claims in the necessarily have to be amended. It is evident
respective High Courts and the Supreme Court. that the strongest push towards prosecutorial
However, these attempts have also thwarted reforms needs to come from state legislatures.
41
The importance of an independent prosecutor provisions for accountability have been
has been recognised across commonwealth expressly stated through dedicated legislation.
jurisdictions. In countries such as England, The aim of such legislations is to establish an
Australia, Canada and South Africa, the independent agency with appropriate checks in
appointment process, structure of the place to ensure minimal executive interference.
prosecutorial agency, duties and functions, and
In England & Wales, the Crown Prosecution agency established under the Prosecution of
Services (“CPS”) is the public prosecution Offences Act, 1985.
154
The CPS consists of the Director of Public The administrative responsibilities rest with the
Prosecution as the head, Chief Crown ‘CPS Board’ which provides strategic leadership
Prosecutors for areas within England & Wales and is collectively responsible for its
as divided by the Director, and Crown organisational objectives. It manages the CPS
Prosecutors. The Director is appointed by the as a body corporate with a CEO and Non-
Attorney General (“AG”) and the Crown executive Board Members that meet at least 8
Prosecutors are appointed by the Director. The times a year. It plays a key role in ensuring that
minimum qualification is 10 years of practice to the CPS is equipped to provide professional,
be appointed as a Director and a general legal efficient and high-quality service. As a result,
qualification to be appointed as Crown the Director is free to focus on actual
Prosecutors. The Director also has the power to prosecutorial and the administrative
appoint lawyers who are not a part of CPS to management is the CPS Board’s responsibility.
conduct prosecution.155
The legislation contains an exhaustive list of • deciding which cases should be

functions and responsibilities for the CPS as a prosecuted (this is based on a twin test,
whole as well as for the office bearers. which includes determining whether
there is ‘enough evidence to provide a
The CPS’s duties and functions include156: realistic prospect of conviction’ and if
there is, then ‘whether a prosecution is
in public interest’);
154
Prosecution of Offences Act 1985, ss 1 and 2 <https://www.legislation.gov.uk/ukpga/1985/23 > accessed 9 July 2021
155
Prosecution of Offences Act 1985, s 5 <https://www.legislation.gov.uk/ukpga/1985/23 > accessed 9 July 2021
156
‘About CPS’ (Crown Prosecution Service, England and Wales) <https://www.cps.gov.uk/about-cps> accessed 13 July 2021
43
• determining the appropriate charges in • preparing cases and presenting them at
more serious or complex cases, and court; and
advising the police during the early • providing information, assistance and
stages of investigations; support to victims and prosecution
witnesses.
Though the AG has the power of Between Law Officers and the DPP’157 which
superintendence over the CPS, there is limited seeks to ensure that prosecution related
scope of AG’s interference in actual decisions remain with the Director without any
prosecutorial work. This relationship is interference from the AG.
specifically set out in a ‘Framework Agreement
Financial: The Director and the CPS Board Prosecution Service (“HMCPSI”). The HMCPSI
determine the CPS’s approach on corporate and is empowered to inspect the CPS’s operations
financial matters. The CPS publishes an annual and submit annual reports to the AG who in
report of its activities together with its audited turn, submits the report before the Parliament
accounts after the end of each financial year.
The Comptroller & Auditor General audits the The HMCPSI’s annual report studies the
CPS’s annual accounts. handling of various categories of crime by the
CPS, provides annual data on prosecution,
Prosecutorial actions: Under the CPS examines the casework of the CPS and gives
Inspectorate Act, 2000, the AG appoints Her specific recommendations for improvement.158
Majesty’s Chief Inspector of the Crown
In Australia, there are separate prosecutorial Director of Public Prosecutions Act, 1983,
agencies at the federal and state level. The prosecutes offences against federal law and the
Commonwealth Directorate of Public state agencies prosecute offences against state
Prosecutions (“CDPP”), established under the laws.159
The CDPP consists of a Director, Associate Governor-General and require a minimum

Director and members of staff (which includes experience of 5 years as legal practitioner.160
other legal practitioners). The Director and the They can be appointed for a maximum of 7
Associate Director are appointed by the
157
Attorney General’s Office and CPS, Framework Agreement Between Law Officers and the DPP, (18 December
2020)<https://www.cps.gov.uk/sites/default/files/documents/publications/Framework_agreement_between_the_Law_Officers_and_the_Di
rector_of_Public_Prosecutions__CPS.pdf> accessed 13 July 2021
158
HM Chief Inspector of the Crown Prosecution Service, Annual Report 2019-20, (July 2020)
<https://www.justiceinspectorates.gov.uk/hmcpsi/wp-content/uploads/sites/3/2021/04/2020-11-03-Annual-Report-2019-20-
accessible.pdf> accessed 13 July 2021
159
‘How we differ from State DPPs’ (Commonwealth Director of Public Prosecutions, Australia) <https://www.cdpp.gov.au/prosecution-
process/how-we-differ-state-dpps> accessed 13 July 2021
160
Director of Public Prosecutions Act 1983, ss 18 and 19

years. The Director may also employ legal aspect of the CDPP such as people,
consultants on contract basis. communication, governance, risk, audit,
support services, library, finance, property, ICT,
The CDPP also consists of a Chief Corporate and digital transformation.161
Officer who looks after the administrative
Apart from conducting prosecution, the CDPP investigative powers on its own, the decision
assists in assessing evidence, drafting charges whether or not to prosecute rests with the
and providing legal advice and assistance to prosecutor. Similar to England & Wales, the
investigators.162 The CDPP is involved at all prosecution policy involves assessing a case on
stages of the prosecution process including bail, two criteria: presence of sufficient evidence
summary matters, committals, trials and and public interest.164
appeals.163 Though the CDPP does not have any
While the CDPP is part of the AG’s portfolio, it the AG, these guidelines and directions are
operates independently of both the AG and the required to be tabled before the Parliament and
political process.165 While the Director is published in the official gazette.166
subject to the directions and guidelines given by
In Australia, the Public Governance, under this law which provides for the following
Performance and Accountability Act, 2013 accountability mechanism-
seeks to establish a performance framework
across Commonwealth entities, create Financial: The Director has to prepare and
accountability for the use and management of publish a corporate plan and prepare budget
public resources by them, measure and assess estimates.168 The Director is also required to
their performance, and prepare annual maintain records169, measure and assess its
performance statements for the entity.167 The performance170 and prepare annual
CDPP is considered a ‘commonwealth entity’ performance statements . The Director has to
171
maintain financial accounts172, prepare annual
161
Commonwealth Directorate of Public Prosecutions, Annual Report 2019-20, (25 September 2020) pg. 16
<https://www.cdpp.gov.au/sites/default/files/Annual%20Report%202019-20.pdf> accessed 13 July 2021
162
‘Prosecution Process’ (Commonwealth Director of Public Prosecutions, Australia) <https://www.cdpp.gov.au/prosecution-process>
accessed 13 July 2021
163
‘Prosecution Process’ (Commonwealth Director of Public Prosecutions, Australia) <https://www.cdpp.gov.au/prosecution-process>
accessed 13 July 2021
164
‘Prosecution Policy’ (Commonwealth Director of Public Prosecutions, Australia) <https://www.cdpp.gov.au/prosecution-
process/prosecution-policy> accessed 13 July 2021
165
Commonwealth Directorate of Public Prosecutions, Annual Report 2019-20, (25 September 2020) pg. 6
<https://www.cdpp.gov.au/sites/default/files/Annual%20Report%202019-20.pdf > accessed 13 July 2021
166
Director of Public Prosecutions Act 1983, s 8
167
Public Governance, Performance and Accountability Act 2013, ss 5 and 6
168
Public Governance, Performance and Accountability Act 2013, ss 35 and 36
169
Public Governance, Performance and Accountability Act 2013, s 37
170
171
172
45
financial statements173. The Auditor General before the Parliament.175 This Annual Report
then examines it and prepares an audit explains the current organisational structure,
report.174 assesses prosecutors’ performance based on
set parameters, and publishes crime-wise data
Prosecutorial actions: The CDPP is required to on prosecution and results of internal audits.
publish Annual Reports which are presented
In Canada, as in Australia, there are separate of Canada (“PPSC”), established under the
prosecution agencies at the federal and Director of Public Prosecutions Act, 2006,
provincial level. The Public Prosecution Service conducts federal prosecutions.
The PPSC consists of a Director176, Deputy Deputy Directors are appointed by the
Directors177, employed178 as well as non- Governor General on recommendation of the
employed179 federal prosecutors. AG. This recommendation is made after
consultation with a separate selection
The Director is appointed by the Governor committee also consisting of the Director. The
General on recommendation of the AG. Before practice criterion is the same as that of the
making the recommendation, the AG Director.
establishes a selection committee and submits
10 names for consideration. From the given 10 The PPSC also consists of other non-legal staff
names, the committee recommends 3 names. such as the executive secretariat, internal audit
The AG chooses one candidate who is further and evaluation, finance & acquisitions and
recommended to the Governor General after corporate services which looks after the
approval by a parliamentary committee. The administrative part of the PPSC.180
Director must have 10 years of practice and has
a tenure of 7 years with a prohibition on
reappointment.
The key functions of the PPSC include: 181 relating to prosecutions and on
particular investigations that may lead
• Initiating and conducting federal to prosecutions; The PPSC does not
prosecutions; have authority to direct investigations
• Advise law enforcement agencies or but it responds to requests for
investigative bodies on general matters
173
174
175
176
Director of Public Prosecutions Act, 2006, s 3
177
Director of Public Prosecutions Act, 2006, s 6(1)
178
Director of Public Prosecutions Act, 2006, s 7 (1)
179
Director of Public Prosecutions Act, 2006, s 7 (2)
180
Public Prosecution Service of Canada, Annual Report 2019-20, (29 June 2020) pg. 7 <https://www.ppsc-sppc.gc.ca/eng/pub/ar-
ra/2019_2020/ar20-ra20.pdf> accessed 13 July 2021
181
‘Our Mandate’ (Public Prosecution Service of Canada) <https://www.ppsc-sppc.gc.ca/eng/bas/index.html> accessed 13 July 2021

prosecution-related advice from - Is there a reasonable prospect of
investigators;182 conviction?
• Deciding if a prosecution should - Is it in the public interest?183
proceed by applying the following test
The PPSC is a politically neutral and the power to issue directives provided they are
independent agency. The AG does not interfere in writing and published in the Canadian
in any prosecutorial decision. The consent of AG gazette.184
is required only in select matters and the AG has
The prosecutors are required to adhere to a PPSC ranging from information on prosecution
PPSC Code of Conduct185. The DPP must of particular types of offences, its current
provide an annual report to the AG which is to organisational structure, financial statements,
be then laid before the Parliament.186 These prosecution data and training facilities
reports cover the entire functioning of the provided to prosecutors.
In South Africa, the Constitution187 provides for (“NPA”). Accordingly, NPA was established by
establishing a National Prosecuting Authority the National Prosecuting Authority Act, 1998.
There is a single prosecuting authority for the The President appoints the ND.191 The Deputy
entire country.188 It consists of: (a) National ND and Directors are appointed by President
Director (“ND”); (b) Deputy National Directors; after consultation with the relevant minister
(c) Directors; (d) Deputy Directors; and (e) and the ND.192 The Minister has the power to
Prosecutors.189 Apart from that, there are appoint Deputy Directors after consultation
prosecuting authorities at every High Court with the ND.193 Prosecutors are appointed by
headed by either a Director or a Deputy the ND.194
Director.190
182
‘Areas of Prosecution’ (Public Prosecution Service of Canada) <https://www.ppsc-sppc.gc.ca/eng/bas/index.html> accessed 13 July 2021
183
Public Prosecution Service of Canada, Annual Report 2019-20, (29 June 2020) pg. 22 <https://www.ppsc-sppc.gc.ca/eng/pub/ar-
ra/2019_2020/ar20-ra20.pdf> accessed 13 July 2021
184
Director of Public Prosecutions Act 2006, s 10 (1)
185
PPSC Code of Conduct (Public Prosecution Service of Canada) <https://www.ppsc-sppc.gc.ca/eng/bas/cc.html> accessed 13 July 2021
186
Director of Public Prosecutions Act 2006, s 16
187
Constitution of South Africa, s 179
188
National Prosecuting Authority Act 1998, s 2
189
190
191
192
National Prosecuting Authority Act 1998, s 11 and 13
193
194
47
A South African citizen with legal qualifications The term of office of the ND is a one-time term
and integrity is eligible to be appointed to any of of 10 years with compulsory retirement at the
the posts.195 No experience criterion is age of 65. Similarly, the retirement age for
prescribed for any of these posts. Deputy ND is also 65 years.196
The primary responsibility of the NPA is to proceedings.197 The legislation also describes
institute and conduct criminal proceedings on the powers and duties of each office bearer in
behalf of the state, carry out any necessary and detail.
incidental functions, and to discontinue criminal
The NPA Act prohibits interference from the the NPA. The prosecution policy is determined
executive in prosecution matters. However, the by the ND only after the concurrence of the
cabinet minister exercises final authority over Minister.
198
The NPA is accountable to the parliament. The Minister of Justice who is obligated to table it
ND is required to submit an annual report to the before the Parliament.
There has been certain controversy National Assembly and could not go through. It
surrounding the appointments of the ND in has been argued that such an amendment
South Africa. There have been allegations of would go against the South African
political interference in the NPA and constitutional principles that prosecution of
politicisation of appointments.199 To this end, a crimes is an executive function and does not
bill was tabled in the South African Parliament come within the functions of the judicial
which made the appointment of ND by the branch.200 This is in contrast with the Indian
President subject to approval of the National SC’s decisions which declare prosecutors as a
Assembly and removal of minister’s part of the judicial limb and not as an extension
superintendence. However, it was defeated in of the executive.
195
196
197
198
199
‘Political interference blamed for NPA’s woes’ (SABC News, 26 June 2014)
<https://web.archive.org/web/20140709044447/http://www.sabc.co.za/news/a/081043004481c774bf86ff3bfe17c0b1/Political-
interference-blamed-for-NPA%E2%80%99s-woes-20142606> accessed 13 July 2021
200
Mtende Mhango, ‘Don’t touch independence of NPA’ (IOL, 13 July 2014) <https://www.iol.co.za/sundayindependent/dont-touch-
independence-of-npa-1718836#.U8uVDuOSyyg> accessed 13 July 2021

(The highlighted cells indicate the year of legislative assembly election in the state/union territory)
Andhra Pradesh 57 156 83 45 58

Arunachal Pradesh 0 0 0 0 1
Assam 0 584 0 0 0
Bihar 0 0 0 1 0
Chhattisgarh 11 44 21 0 0
Goa 3 1 1 0 0
Gujarat 238 253 4768 27 62
Haryana 0 0 0 0 0
Himachal Pradesh 262 312 266 7 8
Jammu & Kashmir 18 416 16 1 0
Jharkhand 158 0 0 3 21
Karnataka 148 42 29 25 2
Kerala 85 128 83 55 48
Madhya Pradesh 11 1322 985 10 195
Maharashtra 868 666 3825 562 2401
Manipur 0 0 0 0 0
Meghalaya 0 1 0 0 1
Mizoram 0 0 0 0 0
Nagaland 0 0 0 0 14
Odisha 0 0 0 92 0
Punjab 0 0 0 0 0
Rajasthan 51 111 5 35 149
Sikkim 0 0 1 0 0
Tamil Nadu 400 1474 3442 0 0
Telangana 0 0 391 0 425
Tripura 22 25 0 6 0
Uttar Pradesh 3 0 5 4 21
Uttarakhand 0 0 0 2 2
West Bengal 0 0 0 0 0
A&N Islands 0 0 0 0 0
Chandigarh 0 0 0 0 0
D&N Haveli 0 0 0 0 0
Daman & Diu 0 0 0 0 0
Delhi 44 11 83 8 264
Lakshadweep 0 0 0 0 0
Puducherry 0 0 0 0 0
49
2019 2018
State/UT Cases Sent Cases Disposed Cases With- Cases Sent Cases Cases With-
for Trial of by Courts drawn From for Trial Disposed of drawn From
during the Prosecution during the by Courts Prosecution
year year
Andhra 92829 88881 57 113272 111476 156
Pradesh
Arunachal 958 142 0 1351 461 0
Pradesh
Assam 56473 24811 0 53081 37589 584
Bihar 125128 24707 0 139374 17698 0
Chhattisgarh 47743 47692 11 47527 49607 44
Goa 1938 1410 3 2300 1396 1
Gujarat 122444 85324 238 131072 76123 253
Haryana 46221 37368 0 48959 42388 0
Himachal 12476 6135 262 11312 5870 312
Pradesh
Jammu & 17864 16223 18 16982 16988 416
Kashmir
Jharkhand 23293 15992 158 26517 14732 0
Karnataka 90750 81483 148 104567 73219 42
Kerala 164765 170765 85 180575 171681 128
Madhya 202369 179284 11 204651 170574 1322
Pradesh
Maharashtra 225691 147492 868 202076 148882 666
Manipur 333 202 0 401 146 0
Meghalaya 2268 3704 0 818 557 1
Mizoram 1447 1176 0 1498 755 0
Nagaland 628 422 0 699 449 0
Odisha 76165 16235 0 66758 21227 0
Punjab 25258 19338 0 24816 21249 0
Rajasthan 107528 84312 51 89050 78463 111
Sikkim 287 90 0 305 219 0
Tamil Nadu 129565 109028 400 151041 142412 1474
Telangana 96847 79463 0 86665 84081 0
Tripura 3152 3041 22 3001 2439 25
Uttar Pradesh 244298 91692 3 222803 94886 0
Uttarakhand 7403 5637 0 7881 2729 0
West Bengal 141950 29652 0 141180 29652 0
TOTAL 2068071 1371701 2335 2080532 1417948 5535
STATES
A&N Islands 411 342 0 625 307 0
Chandigarh 1556 1307 0 1762 1270 0

D&N Haveli 196 526 0 228 688 0
Daman & Diu 175 125 0 241 138 0
Delhi 50866 29747 44 52587 25297 11
Lakshadweep 11 0 0 34 0 0
Puducherry 2638 773 0 2701 932 0
TOTAL UTs 55853 32820 44 58178 28632 11
TOTAL ALL 2123924 1404521 2379 2138710 1446580 5546
INDIA
51
2017 2016
State/UT Cases Sent Cases Disposed Cases With- Cases Sent Cases Cases With-
for Trial of by Courts drawn From for Trial Disposed of drawn From
during the Prosecution during the by Courts Prosecution
year year
Andhra
Pradesh 111278 129702 83 86306 90652 45
Arunachal
Pradesh 1365 275 0 1657 1006 0
Assam 42233 16799 0 45586 24707 0
Bihar 141098 63557 0 130005 41879 1
Chhattisgarh 46513 46270 21 46148 46610 0
Goa 2512 1762 1 1582 1375 0
Gujarat 116960 80189 4768 128836 66718 27
Haryana 46069 49587 0 45766 40787 0
Himachal
Pradesh 9656 6823 266 10537 7587 7
Jammu &
Kashmir 17499 15446 16 16515 14220 1
Jharkhand 21982 13931 0 24560 16847 3
Karnataka 125439 96337 29 105572 88357 25
Kerala 234603 176139 83 247657 190683 55
Madhya
Pradesh 227859 185603 985 221817 177072 10
Maharashtra 181681 133561 3825 187788 111573 562
Manipur 770 231 0 899 136 0
Meghalaya 1377 508 0 1834 1437 0
Mizoram 1845 1616 0 2144 1691 0
Nagaland 682 699 0 848 744 0
Odisha 69182 20430 0 67578 37813 92
Punjab 23538 21863 0 21752 23254 0
Rajasthan 89026 86984 5 94245 78002 35
Sikkim 444 240 1 586 326 0
Tamil Nadu 144907 146933 3442 139971 127253 0
Telangana 92677 110040 391 83319 67625 0
Tripura 2718 2753 0 2965 3359 6
Uttar Pradesh 188491 83750 5 173382 76033 4
Uttarakhand 7987 2168 0 5682 3548 2
West Bengal 138642 29200 0 146641 37278 0
TOTAL
STATES 2089033 1523396 13921 2042178 1378572 875
A&N Islands 640 560 0 582 527 0
Chandigarh 1853 1579 0 1697 1942 0
D&N Haveli 202 402 0 233 196 0
Daman & Diu 203 215 0 236 139 0
Delhi 52075 27634 83 46680 21491 8
Lakshadweep 4 0 0 31 41 0
Puducherry 3501 2269 0 3359 1082 0
TOTAL UTs 58478 32659 83 52818 25418 8
TOTAL ALL
INDIA 2147511 1556055 14004 2094996 1403990 883

2015
State/UT Cases Sent Cases Disposed Cases With-

for Trial of by Courts drawn From
during the Prosecution
year
Andhra
Pradesh 91857 96899 58
Arunachal
Pradesh 1973 433 1
Assam 48612 29790 0
Bihar 109158 45702 0
Chhattisgarh 44477 43654 0
Goa 2619 1577 0
Gujarat 105833 64527 62
Haryana 44175 37997 0
Himachal
Pradesh 11275 7951 8
Jammu &
Kashmir 18973 18240 0
Jharkhand 27175 25414 21
Karnataka 97631 81181 2
Kerala 244145 194343 48
Madhya
Pradesh 223867 206747 195
Maharashtra 174492 126806 2401
Manipur 460 89 0
Meghalaya 1892 1030 1
Mizoram 2056 2015 0
Nagaland 762 783 14
Odisha 69197 39362 0
Punjab 23457 25810 0
Rajasthan 99640 93228 149
Sikkim 397 257 0
Tamil Nadu 159284 119086 0
Telangana 87171 74308 425
Tripura 3289 2716 0
Uttar Pradesh 147631 89085 21
Uttarakhand 5411 6848 2
West Bengal 160214 34634 0
TOTAL
STATES 2007123 1470512 3408
A&N Islands 566 396 0
Chandigarh 1997 3138 0
D&N Haveli 174 141 0
Daman & Diu 165 154 0
Delhi 44079 21090 20
Lakshadweep 36 49 0
Puducherry 2576 1037 0
TOTAL UTs 49593 26005 20
TOTAL ALL
INDIA 2056716 1496517 3428
53
www.vidhilegalpolicy.in
Vidhi Centre for Legal Policy

D-359, Defence Colony
New Delhi – 110024
011-43102767/43831699
jaldi@vidhilegalpolicy.in
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1

2 Quest for Prosecutorial Independence

6 Quest for Prosecutorial Independence

8 Quest for Prosecutorial Independence

1882 Code of Criminal Procedure, 1882

1898 Code of Criminal Procedure, 1898

10 Quest for Prosecutorial Independence

The report recommended a requirement of at least seven years of practice as an advocate

1973 Code of Criminal Procedure, 1973

1995 SB Shahane v State of Maharashtra34

2003 Committee on Reforms of the Criminal Justice System

2005 Code of Criminal Procedure (Amendment) Act, 2005

12 Quest for Prosecutorial Independence

16 Quest for Prosecutorial Independence

Director of 10 years of Supervision of Home State Government

18 Quest for Prosecutorial Independence

20 Quest for Prosecutorial Independence

22 Quest for Prosecutorial Independence

24 Quest for Prosecutorial Independence

26 Quest for Prosecutorial Independence

Warrant for arrest and Obtains orders of warrants whenever No

Remand Obtains police custody of accused on No

Absconding accused Declaration of accused as proclaimed No

Final Report Submission of final report under sections No

Committal proceedings Assist the Magisterial court on questions No

Prosecution for A prosecutor may make a complaint in Yes

Release of undertrial A prosecutor should be heard before an Yes

Bail Application under Oppose bail application to the best of her No

Bail Application under Oppose the bail application. Yes

Anticipatory Bail A prosecutor should be given a reasonable Yes

Withdrawal (section Power to PP and Asst. PP to withdraw Yes

Transfer (sections 407 Notice of transfer applications filed before Yes

Trial of warrant cases, Asst. PPs to conduct trials in Courts of Yes

Trial before Sessions Trial to be conducted by PP. Under section Yes

Trial of pardoned person The PP is empowered to certify that a Yes

28 Quest for Prosecutorial Independence

Appeal by Government PP has the power to present an appeal Yes

Appeal against acquittal PP has the power to present an appeal Yes

Powers of Appellate Appellate court is required to hear the PP, Yes

30 Quest for Prosecutorial Independence

32 Quest for Prosecutorial Independence

34 Quest for Prosecutorial Independence

36 Quest for Prosecutorial Independence

DELHI 264 146

38 Quest for Prosecutorial Independence

While establishing an independent the state. Alternatively, prosecutorial

40 Quest for Prosecutorial Independence

The legislation contains an exhaustive list of • deciding which cases should be

The CDPP consists of a Director, Associate Governor-General and require a minimum

44 Quest for Prosecutorial Independence

maintain financial accounts172, prepare annual

46 Quest for Prosecutorial Independence

48 Quest for Prosecutorial Independence

Andhra Pradesh 57 156 83 45 58

50 Quest for Prosecutorial Independence

52 Quest for Prosecutorial Independence

State/UT Cases Sent Cases Disposed Cases With-

Vidhi Centre for Legal Policy

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