Appointment of Public Prosecutors in India

The Appointment of Public Prosecutors in India: A Legal and Judicial Scrutiny

Introduction

The office of the Public Prosecutor (PP) is a cornerstone of the criminal justice system in India. Tasked with conducting prosecutions on behalf of the State, the Public Prosecutor plays a pivotal role in ensuring that justice is not only done but also seen to be done. The fairness, impartiality, and competence of the Public Prosecutor are crucial for upholding the rule of law and maintaining public confidence in the legal system. Consequently, the process of appointing Public Prosecutors, Additional Public Prosecutors, Special Public Prosecutors, and Assistant Public Prosecutors is governed by a specific statutory framework and has been subject to extensive judicial scrutiny. This article undertakes a comprehensive analysis of the legal provisions and judicial pronouncements concerning the appointment of Public Prosecutors in India, examining the eligibility criteria, procedural requirements, and the fundamental principles that underpin these appointments.

Statutory Framework for Appointment under the Code of Criminal Procedure, 1973

The primary legislation governing the appointment of prosecutors is the Code of Criminal Procedure, 1973 (CrPC). Sections 24, 25, and 25A of the CrPC lay down the detailed procedures and eligibility conditions.

Public Prosecutors and Additional Public Prosecutors (Section 24 CrPC)

Section 24 of the CrPC deals with the appointment of Public Prosecutors (PPs) and Additional Public Prosecutors (Addl. PPs).

  • For High Courts: Sub-section (1) empowers the Central Government or the State Government to appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for conducting any prosecution, appeal, or other proceeding on behalf of the Central or State Government, as the case may be, in the High Court. This appointment is to be made after consultation with the High Court.
  • For Districts: Sub-section (3) mandates that for every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district.
  • Panel System: Sub-section (4) requires the District Magistrate (DM) to prepare a panel of names of persons, in consultation with the Sessions Judge, who are, in their opinion, fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district. Sub-section (5) stipulates that no person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless their name appears on the panel prepared under sub-section (4). This consultation is not a mere formality but a substantive requirement (*State Of U.P And Another v. Johri Mal, 2004 SCC 4 714*). The State Government's power of appointment is contingent upon this panel (*The State Of Andhra Pradesh & Anr. v. Margadarsi Financiers, 2009*; *Reyasat Ali Khan v. The State Of Bihar, 1995 SCC ONLINE PAT 336*).
  • Cadre-based Appointments: Sub-section (6) provides an alternative: where a State has a regular Cadre of Prosecuting Officers, the State Government shall ordinarily appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre. However, if no suitable person is available in such cadre, appointments can be made from the panel prepared under sub-section (4). The interpretation of what constitutes a "regular cadre" has been a subject of judicial discussion (*Andhra Pradesh Assistant Public Prosecutors Association, Hyderabad v. Government Of Andhra Pradesh, 1989*; *Deepak Aggarwal v. Keshav Kaushik And Others, 2013*).
  • Eligibility: Sub-section (7) lays down the eligibility criterion: a person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-sections (1), (2), (3), or (6) only if they have been in practice as an advocate for not less than seven years (*The State Of Andhra Pradesh & Anr. v. Margadarsi Financiers, 2009*; *Deepak Aggarwal v. Keshav Kaushik And Others, 2013*).

Special Public Prosecutors (Section 24(8) CrPC)

Sub-section (8) of Section 24 allows the Central Government or the State Government to appoint, for the purposes of any case or class of cases, an advocate who has been in practice for not less than ten years as a Special Public Prosecutor (SPP). The appointment of an SPP is generally for specific, complex, or sensitive cases requiring particular expertise or attention (*Mukul Dalal And Others v. Union Of India And Others, 1988 SCC CRI 1 566*). The eligibility for an SPP is a minimum of ten years of practice as an advocate (*Deepak Aggarwal v. Keshav Kaushik And Others, 2013*).

Assistant Public Prosecutors (Section 25 CrPC)

Section 25 of the CrPC governs the appointment of Assistant Public Prosecutors (APPs) for conducting prosecutions in the Courts of Magistrates.

  • Sub-section (1) mandates the State Government to appoint in every district one or more Assistant Public Prosecutors.
  • Sub-section (1A) allows the Central Government to appoint APPs for conducting any case or class of cases in Magistrate courts (*S.M. Anantha Murugan Petitioner v. The Chairman, Bar Council Of India, New Delhi, 2015*).
  • Sub-section (2) explicitly states that, save as otherwise provided in sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor.
  • Sub-section (3) provides an exception: if no Assistant Public Prosecutor is available for a particular case, the District Magistrate may appoint any other person (including a police officer, provided they have not participated in the investigation and are not below the rank of Inspector) to be the Assistant Public Prosecutor in charge of that case (*Lt. Col. K.C Sud Petitioner v. S.C Gudimani, 1981*).

The post of Assistant Public Prosecutor has been held to be a civil post, distinct from that of a Public Prosecutor or Additional Public Prosecutor (*Deepak Aggarwal v. Keshav Kaushik And Others, 2013*, citing *Samarendra Das (2004) 2 SCC 274* and *Johri Mal (2004) 4 SCC 714*).

Directorate of Prosecution (Section 25A CrPC)

Section 25A, inserted by the Code of Criminal Procedure (Amendment) Act, 2005, provides for the establishment of a Directorate of Prosecution by the State Government, consisting of a Director of Prosecution and Deputy Directors of Prosecution. This Directorate is intended to exercise overall supervision and control over Prosecuting Officers in the State, thereby aiming to enhance the efficiency and independence of the prosecution machinery (*S.M. Anantha Murugan Petitioner v. The Chairman, Bar Council Of India, New Delhi, 2015*).

The Nature, Role, and Significance of the Public Prosecutor

The judiciary has consistently emphasized the unique and crucial role of the Public Prosecutor in the administration of criminal justice.

Judicial Scrutiny and Principles Governing Appointments

The appointment process for Public Prosecutors has been subject to rigorous judicial review, leading to the articulation of several key principles.

Adherence to Eligibility and Consultation Process

Courts have stressed the mandatory nature of the consultation process outlined in Section 24 CrPC. The consultation between the District Magistrate and the Sessions Judge for preparing the panel is not a mere formality but a substantive requirement aimed at ensuring that meritorious and suitable candidates are considered (*State Of U.P And Another v. Johri Mal, 2004 SCC 4 714*; *The State Of Andhra Pradesh & Anr. v. Margadarsi Financiers, 2009*). Appointments made without adhering to this panel system or bypassing the consultation process are liable to be quashed (*Reyasat Ali Khan v. The State Of Bihar, 1995 SCC ONLINE PAT 336*). The principles of ensuring integrity and suitability, as emphasized in judicial appointments (*N. Kannadasan v. Ajoy Khose And Others, 2009 SCC 7 1*), apply with analogous force to the appointment of Public Prosecutors who discharge vital public functions.

Non-Arbitrariness and Transparency: The Mandate of Article 14

The Supreme Court has unequivocally held that State action in appointing Public Prosecutors and other law officers must conform to the mandate of Article 14 of the Constitution, which prohibits arbitrariness. In *Kumari Shrilekha Vidyarthi And Others v. State Of U.P And Others (1991 SCC 1 212)*, the Court ruled that even contractual appointments by the State having a public element are subject to judicial review on grounds of arbitrariness. This principle was powerfully reiterated in *State Of Punjab And Another v. Brijeshwar Singh Chahal And Another (2016 SCC 6 1)*, where the Court mandated a fair, reasonable, non-discriminatory, and transparent selection process for law officers, including a realistic assessment of needs and, where appropriate, consultation with judicial authorities. Appointments should not be made for political patronage or to give undue advantage to a section of people, but must be based on merit and public interest (*Tarsem Kumar v. State Of Himachal Pradesh, 2022*, citing *Johri Mal*; *Reyasat Ali Khan v. The State Of Bihar, 1995 SCC ONLINE PAT 336*). Public Interest Litigations have also sought to enforce these principles (*Dinesh v. The Union Of India & Ors, 2016*).

Jurisdictional Limits in Prosecutorial Appointments

A significant issue clarified by the judiciary concerns the territorial jurisdiction for appointments. The Supreme Court, in cases like *K. Anbazhagan v. State Of Karnataka And Others (2015 SCC 6 158)* and *Jayendra Saraswati Swamigal Alias Subramaniam v. State Of Tamil Nadu (2008 SCC 10 180)*, has held that the power of a State Government to appoint a Public Prosecutor under Section 24 CrPC is limited to conducting prosecutions, appeals, or other proceedings in courts *within that State*. Thus, a State Government cannot appoint a Public Prosecutor to conduct a case in a court situated in another State, even if the case originated in the appointing State and was subsequently transferred. This principle has been consistently followed by High Courts as well (*The State Of Andhra Pradesh & Anr. v. Margadarsi Financiers, 2009*; *State v. Vikas Yadav & Anr, 2009*).

Scope of Judicial Review

While the appointment of Public Prosecutors is primarily an executive function, it is subject to judicial review. Courts can intervene if the appointment process is vitiated by arbitrariness, mala fides, or non-compliance with statutory provisions (*Kumari Shrilekha Vidyarthi And Others v. State Of U.P And Others, 1991 SCC 1 212*; *State Of U.P And Another v. Johri Mal, 2004 SCC 4 714*). However, the scope of judicial review is not unlimited. Courts generally do not sit in appeal over the choices made by the executive, nor do they substitute their own judgment for that of the appointing authority, unless the decision is demonstrably illegal, irrational, or procedurally improper. In *State Of U.P And Another v. Johri Mal (2004 SCC 4 714)*, the Supreme Court cautioned against judicial overreach, clarifying that High Courts cannot impose procedures like a collegium system for appointments if not mandated by statute.

Appointment of Special Public Prosecutors

The appointment of Special Public Prosecutors under Section 24(8) CrPC is intended for specific situations. While the State has discretion in such appointments, this discretion is not absolute. The rationale for appointing an SPP is often the complexity of the case or the need for specialized handling (*Mukul Dalal And Others v. Union Of India And Others, 1988 SCC CRI 1 566*). An accused person generally cannot claim a right to be prosecuted by a particular prosecutor or object to an SPP's appointment merely on the ground that an SPP has been appointed. However, the appointment can be challenged if it demonstrably prejudices the accused's right to a fair trial (*Vijay Valia v. State Of Maharashtra, 1986*), for instance, on grounds of clear bias or conflict of interest on the part of the SPP (*Mohammad Sartaj v. State Of M.P And Others, 2005 SCC ONLINE MP 162*).

The Public Prosecutor in Court: Conduct and Authority

Once appointed, the Public Prosecutor exercises significant authority in court proceedings.

  • Conduct of Prosecution: Section 301(1) CrPC provides that the Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial, or appeal. Section 225 CrPC mandates that in every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor. The Supreme Court has affirmed that only the Public Prosecutor is entitled to conduct the proceedings, and while a private person can instruct a pleader to assist the prosecution, such pleader shall act under the directions of the Public Prosecutor (*BIPIN KUMAR VERMA v. STATE OF JHARKHAND, 2022*, citing *Rekha Murarka v. State of W.B., (2020) 2 SCC 474*).
  • Other Functions: Public Prosecutors also present appeals on behalf of the State (Sections 377 and 378 CrPC) and have the power to withdraw from prosecution with the consent of the Court (Section 321 CrPC) (*Lt. Col. K.C Sud Petitioner v. S.C Gudimani, 1981*; *A. Mohambaram v. M.A Jayavelu And Others, 1968*).

Conclusion

The appointment of Public Prosecutors in India is a critical process governed by a detailed statutory framework under the Code of Criminal Procedure and shaped by significant judicial pronouncements. The consistent emphasis by the judiciary on adherence to eligibility criteria, meaningful consultation, transparency, non-arbitrariness (Article 14), and jurisdictional propriety underscores the importance attached to the integrity of this office. The Public Prosecutor, as an officer of the court and a representative of the State, bears the profound responsibility of ensuring that the pursuit of justice is fair, impartial, and effective. The legal framework and judicial oversight aim to ensure that individuals appointed to this vital role are competent, independent, and committed to upholding the rule of law, thereby strengthening the foundations of the criminal justice system in India. Continued vigilance and commitment to these principles are essential for maintaining public trust and ensuring the effective administration of criminal justice.

Key References and Statutes

Statutes:

  • The Code of Criminal Procedure, 1973 (especially Sections 2(u), 24, 25, 25A, 225, 301, 302, 321, 377, 378)
  • The Constitution of India (especially Article 14)

Key Case Law (Illustrative):