law commission report no. 197- public prosecutor¢s appointments, 2006

8/18/2019 Law Commission Report No. 197- Public Prosecutor¢s Appointments, 2006

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Law Commission of India

197th Report

on

Public Prosecutor’s Appointments

July !""#

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Justice LA$ C%&&I''I%( %) I(*IA

&+ JA,A((A*-A RA% '-A'.RI /-A$A( Chairman (0$ *0L-I11" ""1 .0L2 !3345576 )A2 8""1 !3"734#5 !334447" 0mail2 ch+lc:sb+nic+in

Residence2 1 JA(PA.- (0$ *0L-I ; 11" "11 .0L2 !3"195#6

)+(o+#83

'ub2 197th Report of the Law Commission on >Public Prosecutor’sAppointments+

I ha?e @reat pleasure in forwardin@ the 197 th Report of the Law Commission on>Public Prosecutor’s Appointments’+

.he &inistry of -ome Affairs in their file bearin@ (o+1!%ffice I* (o+4"6


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has @one into the uestion of the procedure for appointment of Public Prosecutors and has@i?en its recommendations+ A draft /ill for substitutin@ eEistin@ subsections 85 to 8# of sec+ !5 of the Code of Criminal Procedure 1973 is also anneEed to this Report+

Initially the Commission has @one into the role of the Public Prosecutors as stated in the =ud@ments of the 'upreme Court and the earlier Reports of the Law Commission+ .heCommission has stated that the Public Prosecutor has to be independent of the eEecuti?eand all eEternal influences also independent of the police and the in?esti@ation process+-e cannot ad?ice the police in matters relatin@ to in?esti@ation+ -e has duties to the'tate to the Court and to the accused+ -e has to dischar@e his duties ob=ecti?ely+ -e isin the position of a minister of =ustice assistin@ the Court+

As re@ard the procedure for appointment of Public Prosecutors Addl+ Public Prosecutorsin the 'essions Court the reuirement in sec+ !585 of the *istrict &a@istrate consultin@the 'essions Jud@e is salutary and it is unfortunate that some 'tates ha?e dispensed withthis procedure of consultation with the 'essions Jud@e+

.he pro?isions of sec+ !58# of the Code as enacted by Parliament states that once aRe@ular Cadre of Prosecutin@ %fficers is constituted in a 'tate all appointments to the post of Public Prosecutorshall’ by the word >may’ asthey felt that some of the posts of Public Prosecutor


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with the 'essions Jud@e and selection of members of the /ar with such eEperience and@ood character such a procedure will offend Art+ 15+

Liewise in re@ard to sec+ !58# 6"F of posts of Addl+ Public Prosecutor must be filled by Asst+ Public Prosecutors from a panel prepared by a 'tate Le?el Committee

consistin@ of 8a a retired -i@h Court Jud@e


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I ( * 0

'+(o+ Contents Pa@e (os+

Chapter I1+ .he Reference by the -ome &inistry

and the ?iews of the P&% 3 to #

!+ Chapter IIIndependent role of Public Prosecutor in the criminal =ustice process 7 to 13

3+ Chapter III,o?ernment of India and 'tates2 Le@islationand procedure for appointment of Public

Prosecutors and Art+ 15 15 to !"

5+ Chapter IRecommendations of Law Commission onthe three su@@estions of P&% !1 to 33

6+ A((0HR0*raft Amendment to subsections 85 to 8#

of sec+ !5 of Code of Criminal Procedure1973 in supersession of all amendmentsincludin@ amendments by the CriminalProcedure 8Amendment Act !""6 35 to 3#

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Chapter I

.he Reference by the -ome &inistry and the ?iews of the P&%

As desired by the Prime &inister’s %ffice 8hereinafter referred to as

P&% the &inistry of -ome Affairs has sou@ht the ?iews of the Law

Commission of India in re@ard to the su@@estions made by the P&%

concernin@ the appointment of the Public Prosecutors under section !5 of

the Code of Criminal Procedure 1973+ .he P&% referred initially to a

su@@estion which had been made to it to the followin@ effect2

BThere is a need to fix responsibility on Directorate of

Prosecution. The criminal trial should always be conducted by

Police/ CBI prosecutors only but not by State Public Prosecutors.

There is a problem of accountability in contractual public

prosecutors appointed on political recommendations in a State.

The section in CrPC which empowers the State Goernment to

appoint public prosecutors should be !ot amended with immediate

effect. "ll police prosecutors/public prosecutors/senior public

prosecutors should either be allowed to conduct the trial or if

public prosecutors are to be selected in states they should be

selected throu!h PSCs after conductin! thorou!h screenin! and

examination.#

.he P&% then considered the abo?e su@@estion+ It referred to section

!583 of the CrPC under which the 'tate ,o?t+ shall appoint a Public

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Prosecutor for e?ery district and may also appoint one or more Addl+ Public

Prosecutors and to section !585 under which the *istrict &a@istrate shall

in consultation with the 'essions Jud@e prepare a panel of persons who

are in his opinion fit to be appointed as Public Prosecutor or Addl+ Public

Prosecutor 8hereinafter referred to as PP


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In the abo?e conteEt the P&% su@@ested that followin@ measures

may be considered2

B8i &ain@ of appointment of Public Prosecutors< Additional Public

Prosecutors only from amon@st persons constitutin@ re@ular Cadre

of Prosecutin@ %fficers ; in terms of s+ !58# of the Code of

Criminal Procedure 19"4 8sic 1973 as ori@inally le@islated by

Parliament may need to be le@islati?ely restored to o?erride

?arious 'tate Amendments+ )urther a time limit may need to be

prescribed by law to reuire creation of such cadres in a definite

timeframe while simultaneously incorporatin@ a >sunset clause’ in

s+ !585 of the Cr+P+C+

8i? Reuirement of consultation with 'essions Jud@e u


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*istrict consistent with Art+ 15 of the Constitution of India and which will

not permit arbitrary eEercise of power while appointin@ PPs


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Chapter II

Independent role of Public Prosecutor in the criminal =ustice process

.he su@@estions by the P&% ha?e to be considered in the li@ht of

se?eral le@al principles applicable to the criminal =ustice system and in the

conteEt of the role that the Public Prosecutor is eEpected to play and the

need for independence efficiency and accountability in his functionin@+

/efore we @o into the role of the Public Prosecutor first we must

reco@niKe the independent role of the police durin@ in?esti@ation and

brin@in@ to boo those who ?iolate the law as declared by the 'upreme

Court of India+

Police to act on their own without outside influence2

In Hnion of India ?+ 'ushil umar &odi2 1997 85 'CC 77" the

'upreme Court uoted with appro?al the followin@ words of Lord *ennin@

in R ?+ &etropolitan Police Commissioner2 19#4 81 All 0R 7#3 as to the

independent role of police2

BI ha?e no hesitation howe?er in holdin@ that lie e?ery constable

in the land he should be and is independent of the eEecuti?e+ -e is

not sub=ect to the order of the 'ecretary of 'tateM++ I hold it to be the

duty of the Commissioner of Police as it is of e?ery Chief constable

to enforce the law of the land+ -e must tae steps so to post his men

that crimes may be detectedN and that honest citiKens may @o about

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these affairs in peace+ -e must decide whether or not suspected

persons are to be prosecutedN and if need be brin@ the prosecution or

see that it is brou@htN but in all these thin@s be not the ser?ant of

anyone sa?e the law itself+ (o &inister of the Crown can tell him

that he must or must not eep obser?ation on this place or thatN or

that he must or must not prosecute this man or that one+ (or can any

police authority tell him so+ .he responsibility for law enforcement

lies on him+ -e is answerable to the law and to the law alone+D

.he 'upreme Court after uotin@ the abo?e obser?ations obser?ed2

BAccordin@ to the Code of Criminal Procedure 1973 the formation

of the opinion as to whether or not there is a case to place the accused

for trial is that of the police officer main@ the in?esti@ation and the

final steps in the in?esti@ation is taen only by the police and by no

other authority see Abhinandan Jha ?+ *inesh &ishra2 8AIR 19#4 'C

117+ .his must be borne in mind as also that the scope and purpose

of a proceedin@ lie the present is to ensure a proper and faithful

performance of its duty by the police officer by resort to the

prero@ati?e writ of mandamusD

.hus the police are eEpected to enforce the law without any

influence from the 0Eecuti?e+

Public Prosecutor in the criminal =ustice system2

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It is worthwhile to @o into the role of a Public Prosecutor in the

criminal =ustice system+

B.he Prosecutor has a duty to the 'tate to the accused and to the

Court+ .he Prosecutor is at all times a minister of =ustice thou@h

seldom so described+ It is not the duty of the prosecutin@ counsel to

secure a con?iction nor should any prosecutor e?en feel pride or

satisfaction in the mere fact of success+ 'till less should he boast of

the percenta@e of con?ictions secured o?er a period+ .he duty of the

prosecutor as I see it is to present to the tribunal a precisely

formulated case for the Crown a@ainst the accused and to call

e?idence in support of it+ If a defence is raised incompatible with his

case he will crosseEamine dispassionately and with perfect fairness

the e?idence so called and then address the tribunal in reply if he has

the ri@ht to su@@est that his case is pro?ed+ It is not rebuff to his

presti@e if he fails to con?ince the tribunal of the prisoner’s @uilt+

-is attitude should be so ob=ecti?e that he is so far as humanly

possible indifferent to the result+ It may be ar@ued that it is for the

tribunal alone whether ma@istrate or =ury to decide @uilt or

innocenceD 8Christmas -umphreys 81966 Criminal Law Re?iew 739

875"751+

.he Law Commission of India in its 165th Report on >Code of

Criminal Procedure 1973’ 8in chapter III para 16 uoted /abu ?+ 'tate of

erala 2 1945 Cr LJ 599 8er -+C+ to the followin@ effect2

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BPublic Prosecutors are really &inisters of Justice whose =ob is none

other than assistin@ the 'tate in the administration of =ustice+ .hey

are not representati?es of any party+ .heir =ob is to assist the Court

by placin@ before the Court all rele?ant aspects of the case+ .hey are

not there to see the innocent sent to the @allowsN they are also not

there to see the culprits escape con?ictionD

>Public Prosecutor’ is defined in some countries as a Bpublic authority

who on behalf of society and in the public interest ensures the application

of the law where the breach of the law carries a criminal sanction and who

taes into account both the ri@hts of the indi?idual and the necessary

effecti?eness of the criminal =ustice systemD+

Prosecutors ha?e duties to the 'tate to the public to the Court and to

the accused and therefore they ha?e to be fair and ob=ecti?e while

dischar@in@ their duties+

Public Prosecutor has to act independently from the Police2

.he >independence’ of the prosecutor’s function stands at the heart of

the rule of law+ Prosecutors are eEpected to beha?e impartially+ 8Report

of the Criminal Justice Re?iew in (orthern Ireland !""" Prosecutors are

@ateeepers to the criminal =ustice process as stated by A?ory J in R ?+

/ans 191# 8! / #!1+ .he learned Jud@e stated that the prosecutor

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Bthrou@hout a case ou@ht not to stru@@le for the ?erdict a@ainst the

prisoner butM ou@ht to bear themsel?es rather in the character of

minister of =ustice assistin@ the administration of =usticeD

It is now too wellsettled that Prosecutors are independent of the

police and the Courts+ $hile the police the Courts and the prosecutors

ha?e responsibilities to each other each also has le@al duties that separate

them from others+ .he prosecutor does not direct police in?esti@ations nor

does he ad?ise the police+ Public Prosecutors are part of the =udicial

process and are considered to be officers of the Court+

Public Prosecutor must act on his own independent of 0Eecuti?e influence2

.he ,o?ernment should ensure that public prosecutors are

independent of the eEecuti?e and are able to perform their professional

duties and responsibilities without interference or un=ustified eEposure to

ci?il penal or other liability+ -owe?er the public prosecutor should

account periodically and publicly for his official acti?ities as a whole+

Public prosecutors must be in a position to prosecute without influence or

obstruction by the eEecuti?e or public officials for offences committed by

such persons particularly corruption misuse of power ?iolations of human

ri@hts etc+

0?en in re@ard to withdrawal of prosecutions under sec+ 3!1 of the

Code of Criminal Procedure 1973 the 'upreme Court has pointed out in

/al?ant 'in@h ?+ 'tate of /ihar2 AIR 1977 'C !!#6 that it is the statutory

responsibility of the public prosecutor alone to apply his mind and decide

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about withdrawal of prosecution and this power is nonne@otiable and

cannot be bartered away in fa?our of those who may be abo?e him on the

administrati?e side+ In 'ubhash Chander ?+ 'tate 8AIR 194" 'C 5!3 the

'upreme Court stated that it is the public prosecutor alone and not any other

eEecuti?e authority that decides withdrawal of prosecution+ Consent will be

@i?en by the Public Prosecutor only if public =ustice in the lar@er sense is

promoted rather than sub?erted by such withdrawal+ In doin@ so he acts as

a limb of the =udicial process and not as an eEtension of the eEecuti?e+ -e

has to decide about withdrawal by himself e?en where displeasure may

affect his continuance in office+ (one can compel him to withdraw a case+

.he public prosecutor is an officer of the Court and is responsible to the

Court+ .hese principles were reaffirmed by the Constitution /ench in the

second case @oin@ by the citation 'heonandan Paswan ?+ 'tate of /ihar2

AIR 1947 'C 477+

Public Prosecutor not to in?ol?e himself in in?esti@ation of the case2

.he Public Prosecutor should not be in?ol?ed in the in?esti@ation

process+ As held by the 'upreme Court in R+ 'arala ?+ .+'+ elu2 AIR !"""

'C 1731 Bin?esti@ation and prosecution are two different facets in the

administration of criminal =ustice+ .he Role of the public prosecutor is

inside the Court whereas the role of in?esti@ation is outside the Court+

(ormally the role of the public prosecutor commences after in?esti@ation

a@ency presents the case in the Court on the culmination of in?esti@ation+

In?ol?in@ the public prosecutor in in?esti@ation is un=udicious as well as

pernicious in lawM++ .he In?esti@ation %fficer cannot be directed to

consult the public prosecutor and submit a char@esheet in tune with the

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opinion of the public prosecutorM+ Public prosecutor is appointed for

conductin@ any prosecution appeal or proceedin@s in the Court+ -e is an

officer of the Court+ .he public prosecutor is to deal with a different field

in the administration of =ustice and cannot be in?ol?ed in in?esti@ationD+

'ummary2

.herefore the Public Prosecutor has to be independent of the

eEecuti?e and all eEternal influences also independent of the police and the

in?esti@ation process+ -e cannot ad?ice the police in the matters relatin@ to

in?esti@ation+ -e is independent of 0Eecuti?e interference+ -e is

independent from the Court but has duties to the Court+ -e is in char@e of

the trial appeal and other processes in Court+ -e is in fact a limb of the

=udicial process officer of Court and a minister of =ustice assistin@ the

Court+ -e has duties not only to the 'tate and to the public to brin@

criminals to =ustice accordin@ to the rule of law but also duties to the

accused so that innocent persons are not con?icted+

.herefore any scheme of appointment of PPs


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Chapter III

,o?ernment of India and 'tates2 Le@islation and procedure for

appointment of Public Prosecutors and Art+ 15

$e now come to the uestion of le@islati?e power and its dimensions

and Art+ 15 of the Constitution of India+ %ur proposals are intended to

pro?ide a scheme of appointment of PPs


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.herefore under Art+ !5#8! it is open to the Parliament to le@islate

on the sub=ect of appointment of Public Prosecutors but it is also open to the

'tate Le@islatures to amend Parliamentary le@islation by followin@ the

procedure in Art+ !658! of the Constitution by reser?in@ the 'tate

Amendment /ill for the assent of the President of India+

Law re@ardin@ appointment of Public Prosecutor will ?iolate Art+ 15 if it permits arbitrary appointment without proper checs2

.he pro?ision in sec+ !585 that the *istrict &a@istrate must consult

the 'essions Jud@e in the matter of preparation of a panel of lawyers for

appointment as Pubic Prosecutors or Addl+ Public Prosecutors is an

essential chec on arbitrary appointments+ .he 'essions Jud@e who has

nowled@e of the caliber eEperience and character of lawyers practisin@ in

the 'essions Courts is well suited to su@@est the best names of lawyers so

that the interests of prosecution the interests of the accused are fully taencare of+ .his bein@ the lo@ic behind the pro?ision for consultation any

amendment by the 'tates deletin@ the chec on arbitrary appointments of

Public Prosecutors will be ?iolati?e of Art+ 15 of the Constitution+

.he fundamental point which has to be remembered ; is that any

law made by the Centre or 'tate Le@islature in re@ard to appointment of

Public Prosecutors must conform to the principles @o?ernin@ administration

of criminal =ustice in which the public prosecutor has an independent and

special role as stated in Chapter II + In as much as the Public Prosecutor is

a >limb of the =udicial process’ and >an officer of Court’ as stated by the

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'upreme Court 8see Chapter II any method of appointment which

sacrifices the uality of the prosecution or which enables 'tate

,o?ernments to mae appointments at their choice without proper

screenin@ proper assessment of the ualifications eEperience or inte@rity of

the indi?iduals be they the Public Prosecutors selected from the /ar or

appointed from amon@ the Prosecutin@ %fficers will not stand the test of

nonarbitrariness under Art+ 15 of the Constitution of India+ .he scheme

must pro?ide for appointin@ Public Prosecutors who shall bear all the

ualities mentioned in Chapter II+

As pointed by the 'upreme Court Public Prosecutor’s functions are

inside the Criminal Courts+ PPs


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ad?ertin@ to the then eEistin@ procedures of appointin@ Police Prosecutors

as Public Prosecutors as follows2

B1!+ Public Prosecutors and their functions2 It is ob?ious that by the

?ery fact of their bein@ members of the police force and the nature of

the duties they ha?e to dischar@e in brin@in@ a case in Court it is not

possible for them to eEhibit that de@ree of detachment which is

necessary in a prosecutor+ It is to be remembered that a belief

pre?ails amon@st the police officers that their promotion in the

*epartment depends upon the number of con?ictions they are able to

obtain as prosecutin@ officers+ )inally the only control or

super?ision of the wor of these prosecutin@ officers is that eEercised

by the *epartmental officialsD

.he remedial measures su@@ested were as follows 8para 162

B'u@@ested remedial measure2 $e therefore su@@est that as a first

step towards impro?ement the prosecutin@ a@ency should be

completely separated from the Police *epartment+ In e?ery district

a separate Prosecution *epartment may be constituted and placed in

char@e of an official who may be called a >*irector of Public

Prosecutors’+ .he entire prosecution machinery in the *istrict

should be under his control+ In order to ensure that he is not

re@arded as a part of the Police *epartment he should be an

independent official directly responsible to the 'tate ,o?ernment+

.he departments of the machinery of criminal =ustice namely the

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In?esti@ation *epartment and the Prosecutin@ *epartment should

thus be completely separated from each otherD

.here ha?e also been recommendations by the (ational Police

Commission in its 5th Report and also in the 165th Report of the Law

Commission 8199# that there should be a prosecution system under the

control of an independent *irector of Prosecution+

'upreme Court in '+/+ 'hahane’s case 819962 Public Prosecutors must beindependent of the Police2

In '+/+ 'hahane ?+ 'tate of &aharashtra 1996 'uppl+ 83 'CC 37 the

Police Prosecutors functionin@ under the control of the I, of Police were

appointed as Asst+ Public Prosecutors by a notification issued under sec+ !6

of the Code of Criminal Procedure 1973+ .he 'upreme Court held that

such Asst+ Public Prosecutors could not be allowed to function under the

control of the head of the Police *epartment+ .he 'tate ,o?ernment wasdirected to constitute a separate cadre of Asst+ Public Prosecutors by

creatin@ a separate Prosecution *epartment+ A Police Prosecutor it was

held was not eli@ible for bein@ appointed as Asst+ Public Prosecutor

because the Public Prosecutor must be independent of the Police+

$ithout a cadre of prosecutin@ officers in eEistence appointment of Asst+

Public Prosecutors as PPs


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Addl+ Public Prosecutor Asst+ Public Prosecutor or other Prosecutin@

%fficers and unless such a cadre is a?ailable prosecutin@ officers who are

not part of such a cadre cannot be appointed as PPs


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the 'essions Court so that they can be efficient in their functionin@

ob=ecti?e and independent of the Police and the 0Eecuti?e+ Any scheme of

appointments without proper checs will be ?iolati?e of Art+ 15 of the

Constitution of India+

If the central le@islation eEpressly reuires consultation with 'essions

Jud@e and that he should assess merit eEperience and @ood character as a

necessary condition for appointment as Public Prosecutors under sec+ !585

then any 'tate Amendment which deletes the pro?ision relatin@ to

consultation with the 'essions Jud@e and to the abo?e ualities reuired of

the appointee then such deletion by the 'tate Le@islature amounts @i?in@ a

licence for arbitrary appointments and will ?iolate Art+ 15+ In such cases

assent of the President to the 'tate Amendment can be =ustifiably refused+

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Chapter I

Recommendations of Law Commission on the three su@@estions of P&%

81 Making of appointment of Public Prosecutors/ Additional Public

Prosecutors only from amongst persons constituting regular

Cadre of Prosecuting fficers ! in terms of s. 2"#$% of the Code of

Criminal Procedure, &'() #sic &'*+%, as originally legislated by

Parliament may need to be legislati-ely restored to o-erride

-arious tate Amendments. urther, a time limit may need to be

prescribed by la0 to re1uire creation of such cadres in a definite

timeframe, 0hile simultaneously incorporating a sunset clause3

in s. 2"#"% of the Cr.P.C.

.his su@@estion (o+1 can be split into two parts+

8a Ouestion is whether the 'tate Le@islatures can be precluded from

amendin@ sec+ !58# so as to disable the 'tates from main@ amendments

permittin@ appointments as Public Prosecutors and Addl+ Public Prosecutors

from outside the cadre of Asst+ Public Prosecutors

It is ob?ious that ha?in@ re@ard to the fact that the sub=ect of >criminal

procedure’ is in 0ntry (o+! of the Concurrent List 8List III of the II'chedule to the Constitution of India 'tate Amendments to the Central

enactment cannot be pre?ented+ In ?iew of Art+ !658! the 'tate

Amendments will pre?ail o?er Parliamentary le@islation if the President

@i?es assent to the 'tate Amendments+ 0?en if any new amendments to sec+

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!58# are made by Parliament in mandatory lan@ua@e it will not preclude

the 'tate Le@islatures from amendin@ sec+ !58# and main@ it discretionary

to appoint from outside the Re@ular Cadre of prosecutin@ officers and

seein@ assent of the President of India for such further amendment+

/ut this problem can be sol?ed in a different way and pro?idin@ a

scheme in the Central Act which will be in conformity with Art+ 15 of the

Constitution of India and in that e?ent de?iations by the 'tates from that

scheme will be in ?iolation of Art+ 15+ $e are su@@estin@ such a scheme

consistent with Art+ 15 in our discussion under su@@estion 83+

8b $hether the pro?isions of sec+ !58# which permit only Asst+ PublicProsecutors in the Re@ular Cadre of Prosecutin@ %fficers to be appointed asPPs


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Public Prosecutors


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Prosecutor+ In fact it is absolutely necessary to appoint them to some of

these posts and mae use of their ?ast eEperience in handlin@ cases triable

by a 'essions Court+ A pro?ision which combines appointment of Asst+

Public Prosecutors who ha?e been appearin@ for the prosecution for a lar@e

number of years in the &a@istrates Courts and of practitioners with

sufficient eEperience who ha?e been appearin@ for the defence in 'essions

Courts should mae a ?ery fine combination and ser?e public interest+

'ome of these lawyers in the 'essions Courts mi@ht ha?e indeed been

Public Prosecutors earlier in those 'essions Courts+ .he 'essions Court

must ha?e the benefit of eEperience of persons from both sources+ .he

Public Prosecutors appointed from amon@ Asst+ Public Prosecutors can

benefit by interactin@ with the Public Prosecutors appointed from the /ar in

consultation with the 'essions Jud@e and ?ice?ersa+ .he prosecution

process will @et @reater stren@th and efficiency on account of the ?aried but

different eEperience of the persons from the two sources+ %f the efficacy

of this scheme and the @ood results that may flow from this scheme the

Commission has no doubts whatsoe?er+

.he Law Commission does not therefore fa?our an eEclusi?e or

sin@le source namely the source of Asst+ Public Prosecutors who ha?e as

on date of appointment to the hi@her post not handled any 'essions cases

where hi@her staes are in?ol?ed+ It is not in the interests of the criminal

=udicial system that all the Public Prosecutors and Addl+ Public Prosecutors

must be manned only from the source of Asst+ Public Prosecutors+ .hose

appointed from the cadre of Ast+ Public Prosecutors will tae considerable

time to @ain eEperience in dealin@ with cases which come for trial before the

'essions Court+ It will not therefore be in the interests of the prosecution

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or in public interest to eEclude lawyers who ha?e been handlin@ 'essions

cases o?er a lon@ period+

In fact the 'tate Le@islatures in the opinion of the Law Commission

are fully =ustified in @oin@ for a combination of recruitment from both

sources recruitees from the /ar for 3 years each time and from amon@

Asst+ Public Prosecutors+ .he ?iew eEpressed in the first su@@estion that all

posts of Public Prosecutors and Addl+ Public Prosecutors must be filled only

by officers from the source of Asst+ Public Prosecutors where?er a cadre is

a?ailable has ob?iously not taen the abo?e aspects into consideration

which from a practical point of ?iew is in the o?erall interests of the

prosecution and in public interest+

%ne other important recommendation of ours is that the post of Public

Prosecutor in the district must be filled only by the person selected under

sec+ !585 from the panel of lawyers prepared by the *istrict &a@istrate in

consultation with the 'essions Jud@e+ It will be in the interests of the

criminal =ustice process if the principal post in the district in this behalf

namely the post of Public Prosecutor is manned by an Ad?ocate selected on

the recommendation of the 'essions Jud@e+

$ith a ?iew to combine both sources we are of the ?iew that the

posts of Addl+ Public Prosecutor must be a?ailable to the /ar and the Asst+

Public Prosecutors in the ratio of 6"F 2 6"F+

/ut there is a ca?eat in re@ard to the procedure for appointment

which we shall discuss under 83+

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8! 4hether re1uirement of consultation 0ith essions 5udge under

sec. 2"#"% may need to be restored to o-erride tate Amendments6

.here is no doubt that consultation process with the 'essions Jud@e

must be restored so far as sec+ !585 is concerned+

$e note that certain 'tates ha?e dispensed with consultation with the

'essions Jud@e by amendin@ sec+ !585+ $e a@ree with the P&% that this

has to be pre?ented or put an end to+

/ut as stated earlier while reiteration by a fresh Parliamentary law

can be made such reiteration cannot sol?e the problem in ?iew of the

powers of 'tate Le@islatures unless we introduce some pro?isions which are

consistent with Art+ 15 so that in case they are deleted by the 'tates such

deletions can be attaced as bein@ in ?iolation of Art+ 15+

In order to preclude arbitrary 'tate Amendments we therefore

propose to brin@ in a hi@her constitutional principle to compel a fair

transparent procedure of appointment to be followed+ %nce such a

procedure is introduced into sec+ !5 by Parliament then whene?er the 'tates

do away with such a procedure that will clearly attract Art+ 15+ 'tates

cannot mae a pro?ision which is arbitrary and which permits them to

appoint Public Prosecutors or Addl+ Public Prosecutors at their sweet will or

whomsoe?er they lie or on political considerations+

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$e shall eEplain this new scheme in detail when we come to

su@@estion (o+83+

83 7nstitutional mechanisms and safeguards like eligibility,

assessment of past performance, ade1uate tenure etc. should be

considered for pre-enting arbitrariness in appointments8

In the conteEt of this su@@estion we shall refer to the new scheme

which we propose+

As stated earlier the Public Prosecutors ha?e their functions inside

the Court+ .hey cannot be in?ol?ed in the in?esti@ation process+ If their

functions are in the Court and if in fact they are limbs in the =udicial

administration and are officers of Court the method of appointment must be

such as to achie?e the ob=ects of efficient assistance to the Court brin@in@

the culprits to boo and protectin@ the innocent+ If there is a transparent

scheme co?erin@ the selection process of both the members of the /ar under

sec+ !585 and the Asst+ Public Prosecutors under sec+ !58# then such a

scheme cannot be done away with by 'tate le@islations which will then

become ?ulnerable to attac under Art+ 15+

.he appointment of Asst+ Public Prosecutors to the hi@her post as

well as the appointment directly from the /ar for 3 years must always

satisfy basic reuirements of nowled@e eEperience and inte@rity+ As

stated earlier the 'essions Jud@e has the ad?anta@e of nowin@ who is @ood

at the /ar in all these respects practisin@ in the 'essions Courts+

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In the abo?e bac@round the constitutional principles mentioned by

the Commission in Chapters II and III are of @reat rele?ance and will curtail

'tate Amendments which may permit arbitrary appointments+ .he Public

Prosecutor bein@ part of the =udicial process bein@ a limb in the =udicial

administration bein@ an officer of the Court we must ha?e a procedure

which includes the safe@uards lie the consultation process for purposes of

sec+ !585 and the appointment procedure for purposes of sec+ !58# to

eEclude arbitrary appointments or appointment of persons not competent or

not bearin@ @ood character+

'ection !5852

$e may reiterate that so far as sec+ !585 is concerned the Public

Prosecutor’s selection and appointment at the le?el of the *istricts and the

-i@h Court cannot be left to the sweet will of the ,o?ernment+ 'uch a

procedure has the dan@er of persons without adeuate eEperience of

conductin@ 'essions cases or who lac in adeuate nowled@e of criminal

law bein@ appointed+ .here is e?en the lielihood of some of such

appointees not maintainin@ the hi@hest standards of conduct eEpected of a

Public Prosecutor+ .hus while consultation under sec+ !585 with the

'essions Jud@e cannot be dispensed with we propose some eEtra pro?isions

in sec+ !585 reuirin@ that the 'ession Jud@e must @i?e importance to

eEperience in 'essions cases merit and inte@rity+ If such a pro?ision is

dispensed with by 'tate Le@islatures ob?iously such amendments will

?iolate Art+ 15+ .his is so far as the posts of Public Prosecutor and 6"F of

posts of Addl+ Public Prosecutor in the *istrict are concerned+

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'ection !58#2

0?en in re@ard to those who are to be appointed under sec+ !58# from

the posts of Asst+ Public Prosecutors who are in the Re@ular Cadre they

should not be appointed =ust on the basis of seniority or suitability unless

screened by a 'tate Le?el Committee+ In as much the cadre is 'tatewide it

is desirable that a panel is prepared by a 'tate Le?el Committee from amon@

the Asst+ Public Prosecutors of the 'tate for purposes of such appointment+

.he 'tate le?el Committee must in our opinion consist of

8a a sittin@ or retired Jud@e of the -i@h Court nominated by the

Chief Justice of the -i@h Court of the 'tate

8b the Law 'ecretary of the 'tate 8or officer of eui?alent post by

whate?er name called

8c an officer of the 'tate ,o?t+ not below the ran of 'ecretary to

'tate ,o?ernment

8d the *irector of Prosecution if any+

.he Committee must eEpressly be reuired to assess the merit

inte@rity past record of performance etc+ before empanellin@ the Asst+

Public Prosecutors for appointment to the 6"F posts of Addl+ Public

Prosecutors in the *istrict+

%ne other important su@@estion of ours as stated earlier is that the

Public Prosecutor in the 'essions Court must always be from the /ar and

there should be 6"F 2 6"F ratio as between appointments made from

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amon@ the members of the /ar practisin@ in the 'essions Court as submitted

by the *istrict &a@istrate under sec+ !585 and those from the panel

prepared by the Committee for mannin@ the 6"F posts of Addl+ Public

Prosecutor in the *istrict for purposes of sec+ !58#+ .he 6"F from the

panel of Asst+ Public Prosecutors prepared by the Committee will be eli@ible

only for the posts of Addl+ Public Prosecutor and not for the post of Public

Prosecutor+

.he Law Commission is therefore of the followin@ opinion ; in

respect of the three su@@estions2

8i that ha?in@ re@ard to the le@islati?e competence of the 'tate

Le@islatures and Art+ !658! of the Constitution of India it is not

possible to pre?ent the 'tate Le@islatures from amendin@ ss+ !585

and !58# of the Code of Criminal Procedure 1973 and seein@

assent of the President for such amendmentN

8ii that the procedure of fillin@ posts of Public Prosecutors and Addl+

Public Prosecutors in the 'essions Court 8on contract basis for 3

years each time under sec+ !585 from amon@ members of the /ar

who ha?e had eEperience in conductin@ 'essions cases is more in

the interests of the prosecution system and in public interest+ .he

law must eEpressly pro?ide that the 'essions Jud@e must @i?e

wei@ht to eEperience in conductin@ 'essions cases and to @ood

character while selectin@ members of the /ar+

8iii that eEcludin@ members of the /ar who are eEperienced in

conductin@ 'essions cases and eEclusi?ely appointin@ Asst+ Public

Prosecutors ; who ha?e been conductin@ prosecution in

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&a@istrates’ Courts in relation to less serious offences to these

hi@her posts as now pro?ided by sec+ !58# is not a beneficial

scheme at allN

8i? that a combination of appointments from 8a amon@ Asst+ Public

Prosecutors belon@in@ to the cadre of prosecutin@ officers with a

lon@ period of ser?ice and 8b of direct recruitment on contract

basis from the /ar from amon@ those who ha?e conducted

'essions cases is necessary and will be a fair and efficient

prosecution system+ .he ratio between the two sources to the

posts of Addl+ Public Prosecutor must be 6"F to 6"FN

8? that the post of Public Prosecutor in the *istrict must always be

manned by a member of the /ar who has been empanelled by the

*istrict &a@istrate in consultation with the 'essions Jud@eN

8?i that it must be ensured that those Asst+ Public Prosecutors

empanelled for appointment to the posts of Addl+ Public

Prosecutors are properly screened by way of an inter?iew by a

'tate le?el Committee consistin@ of a retired -i@h Court Jud@e or

a sittin@ -i@h Court Jud@e nominated by the Chief Justice of the

-i@h Court of the 'tate and 'ecretary to 'tate ,o?ernment the

Law 'ecretary and the *irector of ProsecutionN

8?ii that any amendment by the 'tates which dispenses with the

safe@uards of inter?iew for appointments from the cadre or which

dispenses with consultation with the 'essions Jud@e in the matter

of selectin@ efficient persons from the /ar on contract basis will

amount to arbitrary eEercise of power and will be ?iolati?e of Art+

15 of the Constitution of India+ .he fact that 'tate Le@islatures

can amend sec+ !585 does not mean that they can introduce a

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procedure for main@ appointments arbitrarily from the /ar

without a proper selection process consistin@ of adeuate checs

a@ainst arbitrariness+ .he Public Prosecutor bein@ a person with

hu@e responsibilities in the criminal =ustice system and he bein@

part of the =udicial process only if the methods of recruitment

su@@ested abo?e are followed it can ensure an effecti?e system

otherwise it will be ?iolati?e of Art+ 15N

8?iii that so far as appointees from the cadre are concerned as stated

abo?e any recruitment throu@h the 'tate Public 'er?ice

Commission will lead to abnormal delays and the posts lyin@

?acant for lon@ periods+ -ence it is ad?isable to ha?e a 'tate

Le?el Committee as su@@ested abo?e+

8iE that so far as fiEin@ a time limit for constitutin@ a Cadre of

Prosecutin@ %fficers is concerned namely 8a the Asst+ Public

Prosecutors in the 'tate and 8b the 6"F posts of Addl+ Public

Prosecutors in each *istrict we propose to fiE a period of siE

months for the 'tates to constitute such a re@ular Cadre+ .he siE

months period will be counted from the date of commencement of

the proposed Criminal Procedure 8Amendment Act+

/efore partin@ we are also of the ?iew that appointment of Pubic

Prosecutors and Addl+ Public Prosecutors in the -i@h Court under sec+ !581

by dispensin@ with consultation with the -i@h Court is clearly ?iolati?e of

Art+ 15 as it not only permits arbitrary appointments but eEcludes the

consultation with the -i@h Court in the matter of appointment of these

officers which is crucial+

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Just as the pro?ision for consultation of the Chief Justice of a -i@h

Court in the matter of appointment of Jud@es of the -i@h Court is

mandatory on the same analo@y sec+ !581 is of hi@hest importance thou@h

it is not a constitutional pro?ision+ Absence of consultation process with

the -i@h Court will in our opinion clearly ?iolate Art+ 15 of the

Constitution+

$e are also enclosin@ a *raft /ill for substitution of sec+ !585 to 8#

by Parliament+

$e recommend accordin@ly+

8Justice &+ Ja@annadha RaoChairman

8R+L+ &eenaiceChairman

8*r+ *+P+ 'harma&ember'ecretary

*ated2 31st July !""#

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A((0HR0

*raft Amendment to subsections 85 to 8# of sec+ !5 of Code of Criminal

Procedure 1973 in supersession of all amendments includin@ amendments

by the Criminal Procedure 8Amendment Act !""62

'ubsections 85 to 8# of sec+ !5 of the Code of Criminal Procedure

1973 shall be substituted by the followin@2

B85 .he *istrict &a@istrate shall in consultation with the 'essions Jud@e

prepare a panel of names of persons who are in his opinion fit to be

appointed as Pubic Prosecutor or Addl+ Public Prosecutor

pro?ided that the 'essions Jud@e shall recommend only such

names from amon@ the ad?ocates practisin@ in the 'essions Court or

Addl+ 'essions Courts who ha?e personally conducted substantial

number of 'essions cases and who bear @ood character+

86 (o person shall be appointed by the 'tate ,o?ernment as Public

Prosecutor and sub=ect to the pro?isions of subsection 8# as Addl+

Public Prosecutor for the *istrict unless his name appears in the

panel of names prepared by the *istrict &a@istrate under subsection

85+

8# )ifty percent of the posts of Addl+ Public Prosecutor in a *istrict shall

be filled out of the panel prepared under subsection 8#/ from the

cadre referred to in subsection 8#A and the remainin@ fifty percent

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posts of Addl+ Public Prosecutor in a *istrict shall be filled out of the

panel prepared under subsection 85+

pro?ided that where in the opinion of 'election Committee

referred to in subsection 8#/ no suitable person is a?ailable in the

cadre for the appointment to the post of Addl+ Public Prosecutor the

'tate ,o?ernment may appoint any person on the post of Addl+ Public

Prosecutor from the panel of names prepared by the *istrict

&a@istrate in subsection 85+

8#A .he 'tate ,o?ernments shall within siE months from the date of

commencement of the Code of Criminal Procedure 8Amendment

Act !""# constitute a cadre of Re@ular Prosecutin@ %fficers

consistin@ of fifty percent of posts of Addl+ Public Prosecutor in each

*istrict and the total number of posts of Asst+ Public Prosecutors in

the 'tate+

8#/81 )or the purpose of selection of Asst+ Public Prosecutors to be

appointed to fifty percent of the posts of Addl+ Public Prosecutor

referred to in subsection 8# the 'tate ,o?ernment shall constitute a

'tate Le?el Committee consistin@ of

8a a sittin@ Jud@e or a retired Jud@e of the -i@h Court of the 'tate

nominated by the Chief Justice of the -i@h Court of that 'tate

8ban officer of the ran of 'ecretary to the 'tate ,o?ernment

8c the 'ecretary Law *epartment of the 'tate or the officer holdin@

eui?alent post by whate?er name called and

8dthe *irector of Prosecution if any+

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8! .he Committee shall from time to time prepare a panel of Asst+

Public Prosecutors from the Re@ular Cadre of Prosecutin@ %fficers

fit to be appointed as Addl+ Public Prosecutor and for the purpose of

=ud@in@ their fitness assess their merit eEperience their pre?ious

record of performance and ensure that they are persons bearin@ @ood

character+D

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law commission report no. 197- public prosecutor¢s appointments, 2006

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