Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Public Prosecutor Appointment Role Duties and Independence
Public Prosecutor: Appointment, Role and Duties, Assistant Public Prosecutor, Directorate of Prosecution under Section 20, and the Independence of the Office
This topic takes the prosecution machinery of the Bharatiya Nagarik Suraksha Sanhita, 2023 in four parts: the appointment and qualifications of the Public Prosecutor under section 18, the office of the Assistant Public Prosecutor under section 19 and how it differs, the Directorate of Prosecution under section 20, and the independence of the office. The four are connected. The manner of appointment, the separation from the police hierarchy and the institutional structure are what make independence real rather than aspirational, and independence is what makes the office worth having.
The proposition that governs all four is that the prosecutor is an officer of the court. He is engaged not to obtain a conviction but to place the whole of the material before the court, including the material that tells against the prosecution. A prosecutor who suppresses material favourable to the accused fails in his duty whatever the outcome of the trial, and the structural provisions examined here exist to make that duty performable.
1. Appointment of the Public Prosecutor: Section 18
1.1 The four routes of appointment
Provision | Office | Appointing authority | Procedure |
|---|---|---|---|
Section 18(1) | Public Prosecutor and Additional Public Prosecutors for the High Court | The Central Government or the State Government | After consultation with the High Court |
Section 18(2) and (3) | Public Prosecutor and Additional Public Prosecutors for a district | The State Government | The District Magistrate, in consultation with the Sessions Judge, prepares a panel of names, and the appointment is made from that panel |
Section 18(5) | Where the State has a regular cadre of prosecuting officers | The State Government | From among the persons constituting that cadre; resort to the panel only where no suitable person is available in the cadre |
Section 18(6) | Public Prosecutor or Additional Public Prosecutor for a case or class of cases | The Central Government | Direct appointment for the purpose |
Section 18(8) | Special Public Prosecutor | The Central or State Government | For any case or class of cases. A proviso permits the court to allow the victim to engage an advocate of his choice to assist the prosecution |
The consultation requirements are the first structural safeguard. For the High Court the consultation is with the High Court itself; for a district the panel is prepared by the District Magistrate in consultation with the Sessions Judge. In each case a judicial authority participates in the process, and in neither case is the appointment at the unfettered will of the executive.
1.2 Eligibility
- Public Prosecutor and Additional Public Prosecutor. Not less than seven years in practice as an advocate, under section 18(7).
- Special Public Prosecutor. Not less than ten years in practice as an advocate, under section 18(8).
- Deemed practice. The period during which a person has rendered service, whether before or after the commencement of the Sanhita, as a Public Prosecutor, Additional Public Prosecutor, Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, is deemed to be practice as an advocate. A career prosecutor therefore accumulates the qualifying period through service and is not shut out by never having practised at the Bar.
- “Prosecuting Officer”. Section 18 defines the expression to include a person appointed to perform the functions of a Public Prosecutor, Special Public Prosecutor, Additional Public Prosecutor or Assistant Public Prosecutor, which is what makes the deeming provision work across the whole service.
📖 State of U.P. v. Johri Mal, (2004) 4 SCC 714 Facts: The renewal of the appointments of District Government Counsel, who conduct cases for the State in the districts, was refused, and the question was the nature of such an appointment, whether the appointee has a right to renewal, and how far the decision is open to judicial review. Held: The Supreme Court held that the office of a law officer conducting cases for the State is a public office and not a private employment, and that the appointment is professional in character. It carries no right to renewal, but the decision whether to renew must be taken on relevant considerations bearing on the professional fitness of the incumbent and the requirements of the office, and not on extraneous ones. Judicial review lies, though it is confined to the decision-making process and does not extend to substituting the court’s view of professional merit for that of the appointing authority. Ratio: A prosecutorial appointment is a public office held for a public purpose. The appointing authority has a discretion, but it is a discretion to be exercised on professional considerations, and an appointment or a refusal made on extraneous grounds is open to challenge. |
2. The Assistant Public Prosecutor: Section 19
The Assistant Public Prosecutor is the officer who conducts prosecutions in the courts of Magistrates, which is where the great majority of criminal cases are tried. The office is separately constituted by section 19 and is not a junior grade of the Public Prosecutor.
Section 19, BNSS 2023: the scheme (1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates. (2) The Central Government may appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the Courts of Magistrates. (3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case, after giving fourteen days’ notice to the State Government. Provided that no police officer shall be so appointed — (a) if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or (b) if he is below the rank of Inspector. |
2.1 Four features of the section
- The appointment is mandatory. Sub-section (1) says the State Government “shall” appoint in every district. There is no discretion whether to have Assistant Public Prosecutors, only how many.
- The forum is fixed. The Assistant Public Prosecutor conducts prosecutions in the courts of Magistrates. The Court of Session is the Public Prosecutor’s forum.
- The emergency appointment is a stopgap, and is controlled. The District Magistrate may appoint a person for a particular case where no Assistant Public Prosecutor is available, but must give fourteen days’ notice to the State Government. The appointment is case-specific and temporary, and the notice requirement prevents the power being used to build a parallel cadre.
- The bar on police officers is absolute in its two limbs. An officer who took any part in the investigation of the offence cannot be appointed at all, however senior; and an officer below the rank of Inspector cannot be appointed even if he took no part in the investigation.
⚠ Why the two limbs of the bar are different The first limb protects the independence of the prosecution from the investigation. An officer who investigated has formed a view of the case and has an institutional interest in its outcome, and cannot discharge the duty to place the whole of the material before the court, including what tells against the prosecution. The second limb is about competence and standing rather than independence. It fixes a minimum rank for the person who conducts a prosecution, so that the emergency power in sub-section (3) does not result in the case being conducted by a junior officer with neither the training nor the authority for it. |
3. Public Prosecutor and Assistant Public Prosecutor Compared
Figure 1: The two offices compared
Two points about the comparison are easily missed. The first is that both are “Public Prosecutors” for many purposes of the Sanhita, because section 2(1)(v) defines the expression to include any person acting under the directions of a Public Prosecutor. Provisions that speak of the Public Prosecutor therefore commonly apply to the Assistant Public Prosecutor conducting the case.
The second is that section 360, on withdrawal from prosecution, expressly names both: the Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the court, withdraw from the prosecution. The power is attached to being in charge of the case and not to the rank of the officer.
4. The Directorate of Prosecution: Section 20
Figure 2: Section 20 sub-section by sub-section
4.1 What section 20 changed
Section 25A of the Code of Criminal Procedure, inserted in 2005, was a single permissive provision: a State Government may establish a Directorate of Prosecution consisting of a Director and as many Deputy Directors as it thinks fit. It said nothing about district-level organisation, allocated no functions, and prescribed no qualifications beyond a bare requirement of practice.
Section 20 prescribes a structure at two levels, fixes qualifications for each office, places every district prosecutor in a line of subordination to the Directorate, and allocates monitoring responsibility by the gravity of the offence. It converts a permissive provision into an institutional design, and it is the most substantial change the Sanhita made to the prosecution machinery.
4.2 Structure and qualifications
Level | Composition | Provision |
|---|---|---|
State Directorate of Prosecution | A Director of Prosecution, and as many Deputy Directors of Prosecution as the State Government thinks fit | Section 20(1) |
District Directorate of Prosecution | In every district, as many Deputy Directors and Assistant Directors of Prosecution as the State Government thinks fit | Section 20(2) |
Qualifications | Prescribed for each office, expressed as a minimum period of practice as an advocate or prior judicial service, with the concurrence of the Chief Justice of the High Court where the section so requires | Section 20(3) to (5) |
Subordination | Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor conducting cases in District Courts, and every Assistant Public Prosecutor, is subordinate to the Deputy Director or the Assistant Director of Prosecution | Section 20(6) |
4.3 The allocation of monitoring
Officer | Cases | Function | Provision |
|---|---|---|---|
Director of Prosecution | Offences punishable with ten years or more, imprisonment for life, or death | To monitor such cases, to expedite the proceedings, and to give an opinion on the filing of appeals | Section 20(7) |
Deputy Director of Prosecution | Offences punishable with seven years or more but less than ten | To examine and scrutinise the police report, and to monitor such cases for their expeditious disposal | Section 20(8) |
Assistant Director of Prosecution | Offences punishable with less than seven years | To monitor such cases | Section 20(9) |
All three | Any proceeding | Notwithstanding the allocation, each has the power to deal with and is responsible for all proceedings under the Sanhita | Section 20(10) |
Three features of this scheme repay attention. The allocation is made by the punishment the substantive law prescribes, so the Bharatiya Nyaya Sanhita again drives the procedural machinery. The Deputy Director’s function is not merely to monitor but to examine and scrutinise the police report, which interposes an independent professional assessment between the investigation and the court. And section 20(10) prevents the allocation from hardening into a jurisdictional limit, so that a file cannot fall between tiers.
5. The Role and Duties of the Public Prosecutor
Stage | Function | Provision |
|---|---|---|
Investigation | The Deputy Director examines and scrutinises the police report; the prosecutor appears on applications for remand | Sections 20(8) and 187 |
Bail | Notice must be given to the Public Prosecutor before bail is granted in the offences specified, and he is entitled to oppose | Sections 480 and 483 |
Opening the case | In a Sessions trial the prosecutor opens the case by describing the charge and stating the evidence by which he proposes to prove the guilt of the accused | Section 248 |
Appearance | The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority | Section 338(1) |
Control of private counsel | A pleader instructed by a private person acts under the directions of the Public Prosecutor and may, with the permission of the court, submit written arguments after the evidence is closed | Section 338(2) |
Conduct of the prosecution | No person other than the Public Prosecutor or Assistant Public Prosecutor may conduct a prosecution without the permission of the court | Section 339 |
Tender of pardon | The prosecutor’s view is material to the exercise of the power to tender a pardon to an accomplice | Section 343 |
Compounding | Where the permission of the court is required to compound an offence, the prosecutor is heard | Section 359 |
Withdrawal | The prosecutor in charge may, with the consent of the court, withdraw from the prosecution at any time before judgment | Section 360 |
Appeals | The Director of Prosecution gives an opinion on the filing of appeals; the prosecutor conducts the appeal for the State | Section 20(7) |
6. The Independence of the Office
Figure 3: The three independences and the provisions that secure each
📖 Mukul Dalal v. Union of India, (1988) 3 SCC 144 Facts: The question concerned the manner in which the office of Public Prosecutor was being filled and the extent to which the institution could be treated as one at the disposal of the executive, in a context in which the machinery of prosecution was said to be operated for purposes other than the administration of justice. Held: The Supreme Court held that the office of the Public Prosecutor is a public one, and that the institution has an important role in the administration of justice which cannot be subordinated to the convenience of the executive. The prosecutor is not a part of the investigating agency and is not the mouthpiece of the Government; he is charged with a public duty and must exercise an independent judgment in the discharge of it. The Court deprecated arrangements under which the prosecuting machinery is treated as being at the disposal of those who control the executive. Ratio: The office of Public Prosecutor is a public office with a public duty attached to it. Its independence is not a courtesy extended by the executive but a condition of the office itself. |
6.1 The three independences
- From the police. The prosecutor is not the investigating agency’s advocate. The bar in the proviso to section 19(3) keeps the investigating officer out of the office; section 20(8) requires the police report to be examined and scrutinised rather than merely acted on; and section 20(6) places prosecutors in a chain of command that does not pass through the police.
- From the Government. The office is a public office and not private employment, and an appointment or a decision taken on extraneous considerations is open to challenge. In the exercise of a statutory discretion, most clearly the discretion to withdraw under section 360, the prosecutor must apply his own mind; he may take the Government’s view into account, and ordinarily will, but a decision taken because he was told to take it is not a decision under the section at all.
- From the complainant and the victim. Section 339 reserves the conduct of a prosecution to the prosecutor; section 338(2) makes a privately instructed pleader act under his directions; and the proviso to section 18(8) permits the victim’s advocate to assist the prosecution, not to conduct it. The victim’s participation in the Sanhita is real and has been enlarged, but it is participation in a prosecution that remains the State’s.
6.2 The duty that follows from independence
The independence exists for a purpose, and the purpose is the duty. The prosecutor is an officer of the court. He is bound to bring to the notice of the court all the material in his possession, including material that assists the accused; to disclose to the defence what the law requires to be disclosed; to refrain from pressing a case he knows to be unfounded; and to assist the court in arriving at the truth rather than in arriving at a conviction. Fairness in the conduct of a prosecution is not a concession to the accused but a component of the fair trial that Article 21 requires, and it is owed to the court.
7. Key Takeaways
The position stated shortly 1. A Public Prosecutor is a person appointed under section 18, and includes any person acting under his directions: section 2(1)(v). 2. For the High Court the appointment is made after consultation with the High Court; for a district, from a panel prepared by the District Magistrate in consultation with the Sessions Judge, or from a regular cadre where one exists. 3. Seven years’ practice qualifies a Public Prosecutor or Additional Public Prosecutor; ten years qualifies a Special Public Prosecutor; service as a prosecuting officer counts as practice. 4. A prosecutorial appointment is a public office held for a public purpose, and the discretion to appoint or renew is to be exercised on professional considerations: Johri Mal. 5. Section 19 requires the State Government to appoint Assistant Public Prosecutors in every district for the courts of Magistrates. The District Magistrate may make an emergency case-specific appointment after fourteen days’ notice to the State Government. 6. A police officer cannot be an Assistant Public Prosecutor if he took any part in the investigation, or if he is below the rank of Inspector. 7. Section 20 establishes a State Directorate and a District Directorate of Prosecution, prescribes qualifications, makes district prosecutors subordinate to the Deputy or Assistant Director, and allocates monitoring by punishment: ten years and above to the Director, seven to under ten to the Deputy Director, under seven to the Assistant Director, with section 20(10) preserving the power of each over all proceedings. 8. The office is independent of the police, of the Government and of the complainant, and the independence is a condition of the office rather than a concession: Mukul Dalal. 9. The prosecutor is an officer of the court, bound to place the whole of the material before it, including what tells against the prosecution. |
8. Frequently Asked Questions
What is the difference between a Public Prosecutor and an Assistant Public Prosecutor?
The Public Prosecutor is appointed under section 18 and conducts cases in the Court of Session and, where so appointed, in the High Court. The Assistant Public Prosecutor is appointed under section 19 and conducts prosecutions in the courts of Magistrates. Both are subordinate to the Deputy or Assistant Director of Prosecution, and both may apply to withdraw from a prosecution under section 360.
Who appoints an Assistant Public Prosecutor?
The State Government must appoint one or more in every district under section 19(1). The Central Government may appoint one for a particular case or class of cases, and the District Magistrate may make an emergency appointment for a particular case where none is available, after giving fourteen days’ notice to the State Government.
Can a police officer be appointed an Assistant Public Prosecutor?
Not if he has taken any part in the investigation into the offence, and not if he is below the rank of Inspector. The first limb protects the independence of the prosecution from the investigation; the second fixes a minimum rank.
What is the Directorate of Prosecution under section 20?
A State-level Directorate headed by a Director of Prosecution with Deputy Directors, and a District Directorate in every district with Deputy and Assistant Directors. District prosecutors are subordinate to it, and monitoring is allocated by the punishment prescribed for the offence.
Is the Public Prosecutor independent of the Government?
In the exercise of his statutory discretion, yes. The office is a public office and not private employment, and in a matter such as withdrawal under section 360 the prosecutor must apply his own mind and reach his own satisfaction. He may take the Government’s view into account but may not act as its mouthpiece.
What is the duty of a Public Prosecutor at trial?
To conduct the prosecution fairly as an officer of the court: to place all the material before the court including that which assists the accused, to refrain from pressing an unfounded case, and to assist the court in arriving at the truth rather than in securing a conviction.
Related Topics
- Trial of Offences under the BNS and Other Laws: Sections 4 and 5
- Hierarchy of Criminal Courts under the BNSS, 2023
- Police Report under the BNSS, 2023: Section 193
- Withdrawal from Prosecution: Section 360, BNSS
- The Victim under the BNSS, 2023
- Trial before a Court of Session: Chapter XIX, BNSS