“Law without justice is a wound without a cure.”-William Scott Downey. In India, the Anglo-Saxon system based on the adversarial trial method is followed and its basic premise is that even if a thousand guilty persons escape punishment, no one innocent should be punished and every man is presumed to be innocent until he is proved guilty. The prosecution has to prove their case beyond reasonable doubt which gives the benefit of doubt to the accused. It is therefore incumbent upon the prosecution to prepare foolproof cases that can stand judicial scrutiny. The article is a detailed analysis of the role of Public Prosecutors in the Indian Criminal Justice System.
According to the NCRB reports, in 2019, there was an increase of 1.6% in cognizable crimes as compared to 2018 while crime against women and cybercrimes increased by 7.3% and 63.5%, respectively yet the conviction rate stood at 41.9% for murder and 27.8% for rape cases. According to the National Crime Records Bureau Reports, 1,56,327 rape cases were on trial in 2018 out of which, a trial was completed in 17,313 cases, resulting in conviction in only 4,708 cases. There was an acquittal in 11,133 rape cases and discharge in 1,472 cases. These figures are based on the assumption that in many rape or assault cases, the victims do not approach the police to seek legal remedy. The Supreme Court expressed concern over the low conviction rate and observed that 90% of rape cases end in acquittal. Causes for such low conviction rates range from a poor police investigation, shortage of investigating officers, pressure from politicians, the hostility of witnesses and complainants, and corruption to a slow judicial system.
Role of a Public Prosecutor in the Criminal Justice System in India
A public prosecutor is an important factor in the criminal justice system. If the prosecution machinery is inefficient, the investigation of a criminal case will be rendered fruitless. Public prosecutors conduct the prosecution of the accused on behalf of the state in a criminal trial and the decision of the courts depends on the skill of the public prosecutors to a great extent. A research-oriented and sincere prosecutor can contribute and act as an agent of the state to represent the interest of common people in the criminal justice system in India. They serve the basic principle of ‘Rule of Law’ i.e. audi alteram partem (i.e.. no person shall be condemned unheard).
Section 2(u) of the Cr.P.C. defines Public Prosecutor as “A person who is appointed under Section 24 of CrPC and it also includes any person who is acting under the directions of Public Prosecutor”. Further, in the case of Babu v. State of Kerala, the Court observed that Public Prosecutors are ministers of justice who are duty-bound to assist the judge in the administration of justice. The United Nations guidelines on the role of prosecutors require prosecutors to perform their duties fairly, protecting human dignity, upholding human rights and avoiding all political, social, and any other kind of discrimination.
Reasons for the Low Conviction Rate in Criminal Cases
One of the important causes for the low conviction rate in criminal cases is the poor performance of the prosecutors. The burden of proof shifts on the prosecution to prove the guilt of a person who committed an offence against the state. In practice, the accused engages a highly competent lawyer, while the prosecution is often represented by persons of lower competence, resulting in creating reasonable doubt in the mind of the court. A lawyer-activist, rightly opined that “the hearing pattern in most courts change when petitions of the rich and powerful come up. Senior advocates who appear for them get special attention”. In such a scenario, the chances of getting justice depend on the ability of the client to pay fees to his advocate. While the inability to meet this cost diminishes the possibility of getting justice. Also, the prosecutors who deal with the cases at the district level are of low calibre and less driven due to the regular and fixed salary given to them monthly.
The prosecutions are not being conducted effectively and efficiently as the required number of prosecuting officers have not been appointed. Due to the heavy workload, prosecutors cannot give proper attention to any case resulting in poor presentation and adverse effects on the quality of prosecution. While there is a lack of coordination between the prosecution and police which results in inefficient prosecution and delayed trial as they are not prepared for the trial and fail to examine the witnesses professionally, there is also political pressure which leads to unfair and impartial prosecution. In the case of Zahira Habibullah v. State of Gujarat, also known as the ‘Best Bakery’ case, the Supreme Court observed that “Public Prosecutors acted more as the defence rather than focusing on presenting the truth before Court. A public prosecutor cannot act on the dictates of the state government. He has to act objectively as he is also an officer of the court”.
- In the case of Hitendra Vishnu Thakur v. State of Maharashtra, the Supreme Court stated that a public prosecutor is an important officer of the state government appointed under the Code of Criminal Procedure. He is not a part of the investigating agency and rather is an independent statutory authority. The success of a trial depends mainly on effective prosecution, which is possible only through well qualified, trained, fair and dedicated prosecutors. The integrity and impartiality of the public prosecutor are essential in the administration of justice. Efforts must be made to improve the quality of management of prosecution to secure, a fair, just and expeditious conclusion of the trial.
- In the case of S.B. Shahane v. State of Maharashtra, the Supreme Court held that the prosecution agency is autonomous having a regular cadre of prosecuting officers. There are often complaints that the public prosecutors in lower courts do not prepare cases carefully and that the quality of prosecution is poor. Therefore, there should be careful selection and appointment of prosecutors who can closely coordinate with the investigation.
- The Supreme court in the case of Amrinder Singh v. Prakash Singh Badal held that the public prosecutor cannot act on dictates of the State Government and has to act objectively as he is also an officer to the court. A prosecutor, although representing the state, has been made immune from the orders of the state.
- In the case of Prabhu Dayal Gupta v. State of NCT Delhi, the High Court held that “the prosecutor has to be fair in the presentation of the prosecution case. He must not suppress or keep back from the court evidence relevant to the determination of the guilt or innocence of the accused. He must present a complete picture and not a one-sided picture; he has to be fair to both sides in the presentation of the case”.
- In the case of State of Bihar v. Ram Naresh Pandey, it was held that the public prosecutor in a large sense was the officer of the court and under a duty to assist the court in the fair administration of justice. The prosecutor plays a crucial role in the administration of justice. The public prosecutor is under a duty not merely to seek convictions but to act impartially and place before the court the evidence to enable the court to decide on the accused person’s innocence.
- In the case of Shrilekha Vidyarthi v. State of Uttar Pradesh, it was ruled that the office of the prosecutors is a public office of much importance and the present system of appointment of the office of public prosecutors followed by political parties should be done away with.
Analysis of the Problem
These circumstances lessen the confidence of the public toward the law. The conviction rate of the state is a mirror of the efficient functioning of the prosecution system. Fear of punishment works as the most effective deterrence for the people inclined to commit a crime. Due to a large number of acquittals in criminal cases, the fear of law is declining in our society. People have lost confidence in the capacity of the law enforcement machinery to punish the offenders. It is generally accepted that with money and muscle power, one can go scot-free even after committing murder and other heinous crimes, the failure of the system to convict offenders has caused a colossal imprint in its credibility in the eyes of the public.
Suggestions and Recommendations to Curb the Problem of Low Conviction
Coordination between police and prosecutor is necessary for the proper prosecution of cases otherwise there may be a delay in trial and it may be fatal to the prosecution as some witnesses may lose all interest in prosecution and suffer from memory loss. Abuse of the court process by filing an unnecessary motion for the review of court orders and unnecessary adjournment should be opposed by the prosecutor. Adequate public prosecutors should be appointed in a court to reduce the excessive workload of a prosecutor and court. The prosecutor and the defence counsel usually resist till the end of a case in favour of their party, which is quite natural, but to achieve the object of justice, they should cooperate and work together, instead of being rigid. National training seminars can be given by experts to prosecutors to determine the new issues and problems and improve research or advocacy techniques. Checks and balances on prosecutors should be kept by an investigating committee in the court.
The accused is normally represented by a competent lawyer of his choice, resulting in acquittal as an equally competent lawyer is not there to represent the prosecution. Public prosecutors must have a duty towards the court as well as the public and if the prosecutor is biased, it threatens the entire administration of the country. For proper functioning of the criminal justice system, it is pertinent to strengthen the prosecution otherwise an important limb of the judicial process stands paralyzed, the rule of law will merely be an illusory war of words or soothing legal opium, nothing else. Prosecutors are the officers of the court and the prosecutor must assist the court in the search for truth, which is the main objective of the criminal justice system.
 The conviction rate for rape only 27.2% even as country celebrates justice in Nirbhaya case The Economic Times, Jan 09, 2020.
 Under 30 per cent conviction rate in rape cases in India, says NCRB data, THE INDIAN EXPRESS (Oct 3, 2020) https://www.newindianexpress.com/nation/2020/oct/03/under-30-per-centconviction-rate-in-rape-cases-in-india-says-ncrb-data-2205090.html (Last visited on April 22, 2021).
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BY ADITI CHOPRA | AMITY LAW SCHOOL, DELHI