Advocates Assisting Public Prosecutors: Statutory Framework, Jurisprudence, and Emerging Trends in India

Advocates Assisting Public Prosecutors: Statutory Framework, Jurisprudence, and Emerging Trends in India

Introduction

The Code of Criminal Procedure, 1973 (CrPC) recognises a limited yet significant space for private advocates to participate in criminal prosecutions that are, by constitutional design, the prerogative of the State acting through Public Prosecutors (PPs). The interface between public prosecution and private assistance raises complex questions: How far may a complainant’s or victim’s advocate go without usurping the PP’s role? What safeguards exist to protect the accused’s right to a fair trial? Recent case-law—including Dhariwal Industries[1], Rekha Murarka[2] and Shiv Kumar[3]—illustrates both the evolution and the continuing tension within this domain. This article critically analyses the statutory architecture (ss. 24, 25, 301, 302, 225 CrPC), the leading judicial pronouncements, and the policy considerations that shape the contours of an advocate’s assistance to the Public Prosecutor in India.

Statutory Framework

Public Prosecutors and the Primacy of the State

Sections 24–25 CrPC create a hierarchical prosecutorial service that is institutionally independent of the police. The Supreme Court in S.B. Shahane[4] mandated the establishment of a separate prosecution cadre, reinforcing prosecutorial autonomy from investigative agencies. Section 225 CrPC constitutionally cements the PP’s exclusive conduct of trials before a Court of Session, thereby privileging the public interest and the accused’s fair-trial guarantee above private motivations.

Private Participation: Sections 301 and 302 CrPC

  • Section 301(2): Any “private person” may instruct a pleader who shall act under the directions of the PP and may submit written arguments with the court’s permission.
  • Section 302: Confers a discretionary power on Magistrates to permit any person (other than certain categories of police officers) to conduct the prosecution. This is an exception to the general rule and is unavailable in Sessions Courts.

The dichotomy indicates legislative intent: mere assistance in all courts under s. 301, but conduct of prosecution—subject to judicial control—in Magistrates’ courts under s. 302.

Jurisprudential Development

Early Caution: Shiv Kumar v. Hukam Chand (1999)

In a seminal ruling, the Court held that a privately engaged counsel cannot independently conduct a Sessions trial even if the PP consents; to do so would undermine the fairness of the process and risk partisan prosecution[3]. Section 225’s mandate was treated as absolute.

Refinement of the 301/302 Divide: Dhariwal Industries (2016)

The Court clarified that s. 301 applies in all criminal courts while s. 302 is confined to Magistrate courts. Unless the complainant secures an order under s. 302, her counsel’s role remains subordinate to the PP[1]. Importantly, the Court preserved the complainant’s right to seek enhanced participation but insisted on procedural propriety.

Victim-Centric Amendment and its Judicial Appraisal

The 2009 Proviso to s. 24(8) permits the victim to engage an advocate “to assist the prosecution”. In Rekha Murarka (2019) the Supreme Court emphasised that “assist” cannot be read as “conduct”; oral arguments and cross-examination remain within the PP’s domain unless the statute or the court enlarges the role[2]. High Courts have echoed this stance, e.g., SMT Anusha[5], declining requests where no concrete prejudice by the PP was shown.

Sessions Transfers and Ensuring PP Independence

Landmark transfer cases—K. Anbazhagan v. Superintendent of Police (2003)[6] and K. Anbazhagan v. State of Karnataka (2015)[7]—demonstrate judicial willingness to restructure prosecutorial arrangements (including appointment of an independent PP) where apprehension of bias exists. Although not directly about private advocates, these decisions underscore the Court’s commitment to prosecutorial neutrality, a factor also relevant when assessing private participation.

High Court Revisions and Quashing Proceedings

In J.K. International (2001) the Court held that a complainant retains locus to be heard in quashing proceedings, reaffirming the participatory rights of private parties at the appellate/revisional stage, albeit still under s. 301 constraints during trial[8].

Key Themes and Doctrinal Analysis

1. Fair Trial and Prosecutorial Impartiality

Indian jurisprudence consistently portrays the PP as a “Minister of Justice” rather than a partisan advocate. Proximity between a victim’s counsel and the aims of retribution risks eclipsing the neutral posture expected of the PP. Cases such as Deepak Aggarwal v. Keshav Kaushik reaffirm that even PPs themselves are counted as “advocates” for professional-experience purposes, highlighting the professional expectations imposed on them[9].

2. Victim’s Rights versus Accused’s Safeguards

Post-2009 jurisprudence walks a tightrope: recognising the victim’s dignitary interest in criminal proceedings (a constitutional reading of Articles 14 & 21) while shielding the accused from overzealous private prosecutions. High Court interventions—Lokesh Singh[10] advocating broader oral-argument rights and Bipin Kumar Verma[11] reaffirming the limits—attest to the unsettled nature of this balance.

3. Magistrate’s Gatekeeping under Section 302

Section 302 serves as a safety-valve, empowering Magistrates to delegate conduct of prosecution where warranted by special circumstances (e.g., complexity, PP’s incompetence). Jurisprudence insists on a reasoned order articulating why such delegation is in the interests of justice. Absence of reasons has led to reversals, as seen in M.K. Balan[12].

4. Written Arguments, Oral Arguments, and Examination of Witnesses

  • Under s. 301(2) the private pleader may submit written arguments only with leave of court.
  • Cross-examination or oral arguments by the private pleader without s. 302 permission violate s. 225 (Sessions) or s. 301 (other courts), potentially vitiating the trial (Sandela Damodar[13]).

5. Ethical and Administrative Considerations

Judicial dicta in Zahira Sheikh (2004) and Johri Mal (2004) emphasise competence and independence in PP appointments. Where a victim-funded “Special PP” is appointed, courts scrutinise the arrangement to avert perceived bias (G. Daniel[14]). Transparency in remuneration and continuing court oversight are emergent best practices.

Comparative Insights and Policy Recommendations

  1. Codify Clear Guidelines: The Law Commission may consider explicating factors guiding s. 302 permissions (e.g., nature of offence, victim vulnerability, PP workload).
  2. Mandatory Disclosure: Any private funding of Special PPs should be disclosed on record with an affidavit of independence, echoing the G. Daniel concern.
  3. Capacity-building for PPs: State governments must invest in specialised training and ensure manageable caseloads to minimise the need for private assistance.
  4. Judicial Monitoring: Trial courts ought to record periodic satisfaction that the PP remains in effective control where private counsel are present.

Conclusion

The Indian criminal process delicately calibrates the participation of private advocates in prosecutions. While statutory gateways (ss. 301–302) and constitutional jurisprudence permit assistance—and, in limited circumstances, conduct—of prosecutions by private counsel, the overarching leitmotif remains the preservation of impartial justice. Supreme Court jurisprudence, from Shiv Kumar through Rekha Murarka, steadfastly guards the PP’s primacy, yet acknowledges victim and complainant concerns by allowing measured participation. The future trajectory will likely see courts refining the procedural safeguards that enable meaningful victim involvement without compromising the fairness owed to the accused or the public character of criminal justice.

Footnotes

  1. Dhariwal Industries Ltd. v. Kishore Wadhwani, (2016) SCC OnLine SC 935.
  2. Rekha Murarka v. State of West Bengal, (2019) SCC OnLine SC 1495.
  3. Shiv Kumar v. Hukam Chand, (1999) 7 SCC 467.
  4. S.B. Shahane v. State of Maharashtra, (1995) SCC (Cri) 787.
  5. SMT Anusha v. State of Karnataka, 2017 SCC OnLine Kar 3787.
  6. K. Anbazhagan v. Superintendent of Police, (2004) 3 SCC 767.
  7. K. Anbazhagan v. State of Karnataka, (2015) 6 SCC 158.
  8. J.K. International v. State (Govt. of NCT of Delhi), (2001) 3 SCC 462.
  9. Deepak Aggarwal v. Keshav Kaushik, (2013) 5 SCC 277.
  10. Lokesh Singh v. State of U.P., 2013 SCC OnLine All 219.
  11. Bipin Kumar Verma v. State of Jharkhand, 2022 SCC OnLine Jhar 212.
  12. M.K. Balan v. State, 1990 SCC OnLine Ker 155.
  13. Sandela Damodar v. State of A.P., 1997 SCC OnLine AP 427.
  14. G. Daniel v. State of A.P., 2003 SCC OnLine AP 319.