The Code of Criminal Procedure (CrPc) is a procedural law that was enforced on April 1, 1974. Further, it is noteworthy that this procedural law is not wholly procedural or adjective in nature. The law of criminal procedure code is meant to be complementary to substantive criminal law. It has been devised to create the necessary machinery for the detention of crime, arrest of criminals, collection of evidence, recording and framing of charges, determination of the guilt or innocence of the person, and the imposition of suitable punishment on the guilty person. Besides, the code also deals with the prevention of offenses (Section 106- 124, and 144-153), maintenance of wives, children, and parents; [Section 125-28] and public nuisances. [Section. 133-43] and diverse functionaries. to elaborate on the functionaries, there are copious functionaries under the Code of Criminal Procedure,1973 who accommodate to regulate the various provisions of the code. The functionaries are necessary for the proper functioning of the code. The different functionaries mentioned under the code are
1) the police; 2) the prosecutors; 3) defense counsels; 4) Magistrates, and judges of higher courts; 5) the prison authorities and Correctional Services Personnel.
The powers and the functions of these functionaries are mentioned in the code.
The author will endeavour to explain two of these functionaries i.e., the Prosecutor and the Defence Counsel.
PROSECUTOR AND DEFENCE COUNSEL: CONCEPTS UNDER CrPC, 1973
A crime is a wrong not only against an individual but is also against the society. And thereby the state, which represents the collective of people, participates in the criminal trial of an accused, specifically if the crime is cognizable. Public Prosecutor or Assistant Public Prosecutor is the person appointed by the state counsel for such trials. As per section 2(u), Public Prosecutor means any person appointed under Section 24 and also includes any person acting under the directions of the public prosecutor.
The main function of the Public Prosecutor is to dispense justice and to safeguard the public purpose entrusted with him. The Public Prosecutor is an esteemed officer of the State Government that is appointed according to the provisions of this code. Further, The Public Prosecutor is a self-governing statutory authority and is not a part of any investigating agency. However, it is obligatory to appoint a Public Prosecutor in all cases when the prosecution is abreast of the State. The Court cannot provide any speculations like shortage of funds to appoint a Public Prosecutor.
Further, it is noteworthy that the Advocate-General cannot become a Public Prosecutor unless he is appointed under Section 24. The nexus between the Public Prosecutor and the Government is the same as that of a counsel and a client. The Public Prosecutor shall never be biased to either the accused or prosecution. Furthermore, there are various classes of Public Prosecutors. To name some:
1. Public Prosecutors appointed by the State Government and the Central Government;
2. Additional Public Prosecutors appointed by the State Government;
3. Special Public Prosecutors appointed by the Central Government;
4. Special Public Prosecutors appointed by the State Government.
PUBLIC PROSECUTORS AND ADDITIONAL PUBLIC PROSECUTORS FOR HIGH COURT
Section 24(1) of the Code of Criminal Procedure empowers the Central Government or State Government to appoint a Public Prosecutor for every High Court. Besides this, they can also appoint one or more than one Additional Public Prosecutors. Moreover, the appropriate Government can also appoint the Public Prosecutors after proper consultation with the High Court. A person would be eligible to be appointed as a Public Prosecutor if he is practicing as an Advocate for not less than seven years.
PUBLIC PROSECUTORS AND ADDITIONAL PUBLIC PROSECUTORS FOR DISTRICTS
Section 24 provides various rules concerning the appointment of Public Prosecutors and Additional Public Prosecutors for districts. The Central Government can designate one or more Public Prosecutors for conducting cases in any district or local area. Similarly, the State Government can also appoint one or more Additional Public Prosecutors for the district. The Public Prosecutor or Additional Public Prosecutor appointed for a district can also be appointed for another district in certain cases. The District Magistrate will serve a panel of names of persons that are eligible to be appointed as a Public Prosecutor or Additional Public Prosecutor. And this list is framed after consulting the Sessions Judge. It is noteworthy that the State Government cannot appoint any other person as the Public Prosecutor or Additional Public Prosecutor another than the persons presented in the panel of names.
ASSISTANT PUBLIC PROSECUTORS
Section 25 of the Code of Criminal Procedure administers the appointment of Assistant Public Prosecutors. The State Government has to appoint one or more Assistant Public Prosecutors for handling prosecutions in different districts. Further, the Assistant Public Prosecutors have no right to practice as advocates or shield/defend the accused in criminal cases. Their only work is to handle prosecutions on behalf of the State. Moreover, if there is no availability a police officer who is not lesser the rank of Inspector and who has not taken part in the investigation of offense can also be appointed as Assistant Public Prosecutor. Besides this, the Assistant Public Prosecutors are regarded as full-time Government servants.
To illustrate more, in a prominent case namely, KANNAPPAN VS. ABBAS, the Madras High Court held that the permission conferred by a Magistrate permitting the accused to appear for the accused was without jurisdiction. Essentially the Public Prosecutor is not competent to act as a defense counsel indeed in a private criminal complaint against police officers.
POWERS AND FUNCTIONS UNDER CR. P.C
1. According to the Section 301 of the Code, a Public Prosecutor or Assistant Public Prosecutor has the authorization to appear and plead before any court in any case entrusted to him.
2. According to the Section 321 of the Code, he can veto from the prosecution against any person with the proper consent of the court.
According to the standard set by CrPC, Public Prosecutors administer the proceedings in Session Courts and the High Courts and Assistant Public Prosecutors are appointed for conducting the same in Magistrates’ Courts. And as per prevailing practice, in respect of cases inaugurated on police reports, the prosecution is administered by the APP and in cases initiated on a private complaint, the prosecution is either handled by the complainant himself or by his duly authorized counsel.
A public prosecutor is mainly concerned with handling the prosecution on behalf of the state. Moreover, his goal is not only to produce a conviction but to help the court to reach a just decision. He also obliges as the state counsel in criminal appeals, revisions, and such matters in the Session Courts and High Court. Notably, he does not appear on behalf of the accused.
Furthermore, the role of the prosecutors under Cr. P.C was elaborately described by the apex court in the prominent case namely, Md. Mumtaz v. Nandini Satpathy, (1987) 1 SCC 288.
In this case, the court observed that “a public prosecutor should be personally indifferent to the result of the case. His duty should consist of placing all the available evidence to aid the court in discovering the truth” Therefore, it can be concluded that in the machinery of justice, a Public Prosecutor has to play a very accountable role; “his impartial conduct is equivalent to the impartiality of the court itself.”
According to Section 303, “any person accused of an offense before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice”.
Unlike the different functionaries under the Code, such as the police and the prosecutors, the advocates and pleaders engaged in the task of defending the accused persons are not in the regular employment of the State, and mostly, they receive the required remuneration for their services from the accused persons itself. Notwithstanding, they are also the officers of the court and are quite necessary if a fair trial is to be given to an accused person. Our adopted adversary system of a criminal trial assumes that the State using its investigative sources and employing a competent prosecutor would prosecute the accused, who, in turn, will engage equally competent defense counsel to challenge the evidence of the prosecution. Hence, both the Constitution of India and the Code confer on the accused person a right to consult and to be backed by a legal practitioner of his choice.
However, this right to counsel would be no of no value if the accused due to his poverty or impoverished conditions has no means to engage a counsel for his defense. The indigent accused endure the risk of denial of a fair trial when he does not have equitable access to the legal services that are available to the opposite side. To a considerable extent, the Code has ventured to find a solution to this problem. Section 304 provides that where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the court that the accused has not sufficient means to engage a pleader, the court shall assign a pleader for his defense at the expense of the State; and the section further empowers the State Government to extend the application of the above provision in relation to any class of trials before other courts in the State.
Further, the Supreme Court within a process of constitutionalizing has held that the fundamental right to live implicitly compels the State to make provisions for grant of free legal services to an accused who is incapable to engage a lawyer on account of reasons such as poverty, indigence or incommunicado situation. The only qualification in this matter would be that the offense commanded against the accused is such that on conviction it would lead to a sentence of imprisonment and is of such nature that the circumstances of the case and the needs of social justice demand that he should be given free legal representation.
Remarkably, at present, there are various schemes under which an indigent accused can avail legal aid. The Legal Services Authorities Act, 1987 also renders legal aid to the needy.
The functionaries under the Code of Criminal Procedure are very crucial for the enforcement of various provisions of this Code. Each functionary has a different duty that collectively regulates various provisions of this code. The public should be cognizant of the various functions performed by these functionaries so that an approach can be made towards them when an issue arises. The Public should sustain these functionaries in every way expedient to help them perform their duties. the two functionaries aforementioned area also very much crucial. Thus, these authorities form an influential part of the criminal proceedings.
- R.V. Kelkar’s CRIMINAL PROCEDURE, 5TH EDITION