Exploring the Powers and Responsibilities of Public Prosecutors in India

When a crime is committed, most people think about the police who investigate it and the judge who delivers the verdict. But there is a crucial figure standing between those two roles – the Public Prosecutor. In India’s criminal justice system, the Public Prosecutor is not simply the State’s advocate trying to win at any cost. They are an officer of the court, a minister of justice, and a guardian of fair process. Understanding their powers and responsibilities helps reveal why the prosecution function is treated as one of the most sensitive positions in the entire legal machinery.

Who is a public prosecutor? 🔗

Section 2(1)(u) of the Code of Criminal Procedure, 1973 (CrPC) defines a Public Prosecutor as any person appointed under Section 24 of the CrPC, and includes any person acting under the directions of a Public Prosecutor. In simpler terms, they are public officers appointed by the State Government to represent the State in criminal proceedings before Sessions Courts and High Courts.

The appointment framework is laid out under Section 24 of the CrPC. For High Courts, the Central or State Government appoints Public Prosecutors and Additional Public Prosecutors. For district-level courts, the State Government prepares a panel – in consultation with the Sessions Judge and the District Magistrate – of persons eligible for appointment. A person must have practised as an advocate for at least seven years to be eligible for appointment as a Public Prosecutor or Additional Public Prosecutor at the district level. Assistant Public Prosecutors, appointed under Section 25, handle prosecutions before Magistrates’ Courts.

A critical structural point: the Public Prosecutor is an independent entity entirely separate from the police. They represent the State – not the investigating agency. This separation is deliberate. Police performance is often measured by the number of convictions they secure, which can create a bias toward securing guilty verdicts at any cost. The Public Prosecutor, by contrast, must act with objectivity and in the interest of justice, not in the interest of the police’s case.

The primary duty: conducting prosecution 🔗

The most visible function of a Public Prosecutor is conducting trials on behalf of the State in Sessions Courts and High Courts. In cases triable exclusively by a Court of Sessions, only a Public Prosecutor can conduct the prosecution – a private counsel engaged by the complainant can only assist under the Public Prosecutor’s guidance and cannot independently lead prosecution evidence.

But conducting prosecution does not mean pursuing a conviction at all costs. The Supreme Court has consistently held that the purpose of a criminal trial is to determine the truth about guilt or innocence. A Public Prosecutor must therefore present all available evidence to the court – even evidence that may benefit the accused – rather than selectively building a one-sided case. As the Supreme Court observed in Shiv Nandan Paswan v. State of Bihar, the Public Prosecutor is not a persecutor but a representative of the sovereign, obligated to govern impartially and ensure justice is done in a criminal prosecution.

Duties at trial 🔗

During the trial, the Public Prosecutor’s duties include examining and cross-examining witnesses, producing all necessary documents, and ensuring no material witness goes unexamined. Importantly, they cannot suppress or withhold evidence that weakens their case if that evidence is relevant to the truth. The Public Prosecutor also has a duty to conduct a speedy trial – the right to a speedy trial is a fundamental right under Article 21 of the Constitution, and prosecutors are expected to actively advance the pace of proceedings rather than allow cases to drag on indefinitely.

There is also a less-discussed duty that illustrates just how impartial the role demands: a Public Prosecutor is required to bring to the court’s attention any issue that the defence could have raised but failed to. This is a remarkable obligation – it means the prosecutor must, in effect, safeguard the integrity of the trial even when doing so might complicate their own case.

Power to advise the police 🔗

While the Public Prosecutor has no powers of investigation – and must not get involved in investigative functions – they do play an advisory role in relation to law enforcement. Prosecutors are consulted on matters such as whether sufficient evidence exists to proceed with a charge, the legal strength of a chargesheet, or whether particular procedural steps have been followed correctly.

However, the police cannot order a Public Prosecutor to conduct prosecution in any particular way, and any attempt by police, politicians, or other external parties to influence the prosecutor’s decisions is legally impermissible. This independence is the cornerstone of the entire prosecution function. In practice, while coordination between police and prosecution is necessary and encouraged, that coordination must not compromise the prosecutor’s independent professional judgment.

Prosecutors may also assist law enforcement in obtaining arrest warrants and search warrants from courts – a function that places them at the interface between investigation and the judicial process without formally being part of the investigation themselves.

The power to withdraw from prosecution: Section 321 CrPC 🔗

One of the most significant and, at times, controversial powers of the Public Prosecutor is the authority to withdraw from a prosecution. Section 321 of the CrPC empowers the Public Prosecutor or Assistant Public Prosecutor in charge of a case to withdraw from the prosecution of any person, at any time before judgment is pronounced, with the consent of the court.

The legal consequences of withdrawal depend on the stage at which it takes place. If withdrawal happens before a charge is framed, the accused is discharged. If it occurs after charges have been framed, the accused is acquitted in respect of those offences. Where the case involves matters within the executive power of the Union, or was investigated by the Delhi Special Police Establishment (CBI), the Public Prosecutor must first obtain the Central Government’s permission before moving the court for consent to withdraw.

The prosecutor must apply an independent mind 🔗

The power under Section 321 is not a blank check. The Supreme Court has laid down clear principles governing how this power must be exercised. The essential condition for any withdrawal is that it must serve the interest of the administration of justice. The Public Prosecutor must independently assess the materials on record and form a personal, considered opinion – they cannot simply act as a post office for government instructions.

In the landmark case of Rajender Kumar Jain v. State (AIR 1980 SC 1510), the Supreme Court held that the Public Prosecutor may withdraw from prosecution not merely on grounds of insufficient evidence, but also on other relevant grounds including broader public interest, public order, or changed social, economic, and political circumstances. However, this was not a license for political manipulation – the Court simultaneously established that the prosecutor’s decision must pass the standard of a reasonable person acting in good faith.

The opposite end of that spectrum is illustrated by Abdul Karim v. State of Karnataka, where the Supreme Court refused to allow withdrawal from prosecution against notorious criminals, reaffirming that courts are not passive bystanders – they retain the authority to refuse consent when the reasoning behind the withdrawal appears perverse to the interests of public justice. Courts scrutinise the grounds carefully, especially when the withdrawal is sought for extraneous reasons.

The political pressure problem 🔗

Section 321 has, in practice, become one of the most contested provisions in criminal procedure because Public Prosecutors appointed under Section 24 hold their positions subject to the discretion of the executive. This creates a structural tension: the same government that appoints and can remove the prosecutor is also the government that may benefit from the withdrawal of certain prosecutions. In most states, appointments are largely political, which raises serious questions about prosecutorial independence in high-profile cases.

The Supreme Court addressed this directly in Sheonandan Paswan v. State of Bihar, where the withdrawal of prosecution against a sitting Chief Minister was set aside because the Court found it was influenced by political considerations rather than legitimate grounds. The decision reinforced that while the Public Prosecutor shares an agent-principal relationship with the State Government, an order from the government is not legally binding – the prosecutor must still exercise personal judgment and act with integrity.

Ethical standards and the “minister of justice” standard 🔗

Indian courts have repeatedly described the Public Prosecutor as a minister of justice – a term that encapsulates the ethical standard expected of the role. The Delhi High Court in Jitendra Kumar v. State (NCT of Delhi) held that Public Prosecutors play a pivotal role in maintaining purity and impartiality in the administration of criminal justice.

This means that prosecutors must never use improper methods calculated to produce wrongful convictions. They must discharge their functions in a scrupulously fair and honest manner. The Public Prosecutor is not the executive, nor a political instrument – they are invested by statute with discretion, and in exercising that discretion they act as a limb of the judicative process, not as an extension of the ruling party of the day.

The ethical obligations of a Public Prosecutor can be summarised across four relationships: duty to the court (to assist in arriving at the truth), duty to the State (to represent it faithfully), duty to the accused (to ensure fair trial), and duty to the public (to serve the broader interest of justice). These are not abstract ideals – courts have enforced them through judicial scrutiny and have overturned prosecutorial actions where these standards were violated.

The Bharatiya Nagarik Suraksha Sanhita, 2023 and what changes 🔗

The CrPC has been replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which came into force on 1 July 2024. The BNSS retains the core framework for Public Prosecutors – appointment provisions, the duty to represent the State, and the power to withdraw from prosecution remain structurally intact. Students and practitioners should note that while section numbers have changed, the legal principles discussed here – drawn from decades of Supreme Court jurisprudence – continue to govern how the prosecution function is understood and evaluated by courts.

Why this role matters in the larger picture 🔗

The Public Prosecutor sits at a uniquely difficult intersection. They must be vigorous enough to hold the guilty to account, fair enough to protect the innocent from wrongful conviction, and independent enough to resist pressure from those who appointed them. The fact that a Public Prosecutor is expected to present evidence that benefits the accused – and to point out defences the defence lawyer missed – shows that the role is designed not to “win” trials but to ensure that justice, in its fullest sense, is served.

In a system where criminal prosecutions can destroy lives and reputations, the standards imposed on Public Prosecutors are not bureaucratic formalities. They are safeguards – for the accused, for victims, and for the rule of law itself.

What do you think? Given that Public Prosecutors are appointed by the executive government and can be removed at its discretion, do you think India’s current framework adequately protects their independence from political interference? And considering their duty to present evidence that may benefit the accused, where exactly does the line fall between acting as the State’s representative and acting as an officer of the court?

References

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