The Role of the Prosecutor in India’s Criminal Justice System

When a crime is committed, the police investigate and collect evidence – but who takes that evidence into a courtroom and argues the State’s case? That responsibility falls squarely on the public prosecutor. In India’s criminal justice system, the prosecutor is not simply a lawyer fighting to win; they are an officer of the court whose ultimate duty is to assist in the discovery of truth. Understanding this role is essential for anyone studying criminal law, because the prosecution stage is where evidence transforms into legal argument, and where the fate of the accused – and the integrity of justice – is decided.

What is prosecution and why does the state do it? 🔗

A crime is treated as a wrong not just against the individual victim, but against society at large. This is why the State, and not the victim, takes on the responsibility of prosecution. As the Supreme Court observed in State of Bihar v. P.P. Sharma, the State is the custodian of the social interests of the community, and it is for the State to bring those who act against those interests to book.

The rationale is straightforward: if individuals were left to prosecute those who wronged them, the legal system could easily become a vehicle for private vengeance. By entrusting prosecution to the State, the law ensures that criminal proceedings are driven by the public interest – not personal grudges or financial capacity. This principle was reinforced in Vineet Narain v. Union of India, where the Supreme Court emphasized that there must be no arbitrary barriers to the launching of legitimate prosecutions.

Who is a public prosecutor? 🔗

The public prosecutor (PP) is a law officer appointed by the State or Central Government to conduct criminal cases on behalf of the government in court. Under Section 2(v) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) – which has replaced the Code of Criminal Procedure (CrPC) – a public prosecutor means any person appointed under Section 18 of the BNSS, and includes anyone acting under their directions.

Courts have consistently described the public prosecutor as a “Minister of Justice” – an officer whose duty is not to secure convictions at any cost, but to place all relevant evidence before the court fairly, whether it strengthens or weakens the case against the accused. The Delhi High Court has stated that public prosecutors play a pivotal role in the administration of criminal justice and act on behalf of the state with impartiality as their defining hallmark.

How are public prosecutors appointed? 🔗

The appointment framework is structured and merit-linked. Section 18 of the BNSS, 2023 (previously Section 24 of the CrPC) mandates appointment of a public prosecutor and additional public prosecutors for every High Court and District Court. The key appointment categories are:

• Public Prosecutor and Additional Public Prosecutor (High Court): Appointed by the Central or State Government after consultation with the High Court. The candidate must have at least seven years of practice as an advocate.
• Public Prosecutor (District Court): Appointed by the State Government from a panel prepared by the District Magistrate in consultation with the Sessions Judge. Preference is given to those from the regular cadre of prosecuting officers.
• Special Public Prosecutor: Appointed by the Central or State Government for a specific case or class of cases. The candidate must have at least ten years of practice as an advocate.
• Assistant Public Prosecutor (APP): Appointed under Section 19 of the BNSS to handle prosecutions in Magistrate courts. Crucially, a police officer who investigated a case cannot be appointed as APP for that same case – maintaining a clear separation between the investigator and the prosecutor.

One important safeguard: the State Government cannot appoint a person as public prosecutor who does not meet the prescribed qualifications, even if no suitable candidate is found in the regular cadre; in that case, it must turn to the panel prepared by the District Magistrate.

The prosecutor’s role in the adversarial system 🔗

India follows the adversarial system of criminal trial, inherited from the British common law tradition. Under this model, the prosecution and the defence present their respective cases before a neutral judge who acts as an impartial umpire. The prosecutor does not investigate the crime – that is the police’s domain. Instead, the prosecutor takes the charge sheet (police report) filed at the end of investigation and decides how to present the evidence in court.

A foundational principle of this system is the presumption of innocence – every accused is presumed innocent until proven guilty beyond reasonable doubt. This places the entire burden of proof on the prosecution. As noted in judicial commentary on criminal procedure, there is a meaningful legal distance between an accused who “may have committed the offence” and one who “must have committed the offence” – and it is the prosecutor’s job to bridge that gap with solid evidence, not speculation.

Core functions of the public prosecutor 🔗

Presenting the state’s case 🔗

The primary function of the public prosecutor is to present the case against the accused before the court. This involves examining witnesses, tendering documentary and forensic evidence, and making legal submissions. The prosecutor must call all witnesses whose testimony is essential to deciding the case – they cannot selectively present only favourable evidence. As established by case law, the prosecutor cannot aggravate the facts of the case or refuse to examine a witness simply because that witness’s evidence may weaken the prosecution’s position.

Cross-examining defence witnesses 🔗

After the accused or defence witnesses testify, the public prosecutor has the right to cross-examine them. This is a critical tool for testing the reliability and consistency of defence evidence. Effective cross-examination can expose contradictions, challenge credibility, and bring out facts that the defence may have omitted.

Power to withdraw from prosecution 🔗

One of the most significant discretionary powers of the prosecutor is the power to withdraw from a prosecution. Under Section 360 of the BNSS (previously Section 321 of the CrPC), the public prosecutor or assistant public prosecutor in charge of a case can withdraw from prosecution at any stage before the judgment, with the consent of the court. The Supreme Court, in Sheonandan Paswan v. State of Bihar, clarified that this power can be exercised not only due to insufficient evidence but on any other relevant grounds that serve the interests of justice – and the court’s consent is the only check on this power.

Ensuring a fair trial 🔗

The public prosecutor represents the State – but does not represent the police. Their duty is not to secure a conviction at all costs but to ensure that the truth is placed before the court. This means the prosecutor must act independently of the investigating agency and must not suppress evidence that could benefit the accused. The Supreme Court underscored this in the Best Bakery Case (Zahira Habibullah Sheikh v. State of Gujarat), where it was found that the public prosecutors in that case had acted more like defence counsel than as officers seeking truth – a stark illustration of what happens when prosecutorial duty is abdicated.

The Directorate of Prosecution under BNSS, 2023 🔗

One of the notable structural reforms under the BNSS, 2023 is the codification and strengthening of the Directorate of Prosecution under Section 20. Every state is now required to have a Directorate of Prosecution functioning under the administrative control of the State Home Department. The hierarchy is tiered by the severity of offences:

• Director of Prosecution: Monitors cases involving punishments of ten years or more, life imprisonment, or the death penalty; advises the government on filing appeals.
• Deputy Director of Prosecution: Scrutinises police reports and monitors cases involving punishments between seven and ten years.
• Assistant Director of Prosecution: Oversees cases with punishments of less than seven years.

To qualify as Director or Deputy Director, a person must have practiced as an advocate for at least 15 years or must be, or have been, a Sessions Judge. The Supreme Court recently upheld this framework in Subeesh P.S. v. Union of India, dismissing a challenge that claimed placing the Directorate under the Home Department violated fair trial guarantees. The Court held that eligibility criteria for former judicial officers to serve as Directors of Prosecution did not violate the separation of powers, clarifying that no one can simultaneously hold the roles of judge and prosecutor.

Prosecutorial discretion and its limits 🔗

The public prosecutor holds broad discretionary powers – from deciding how to present evidence, to choosing which witnesses to examine, to deciding whether to withdraw from a case. However, this discretion is not unchecked. It must always be exercised in the interest of the administration of justice, not to please the executive, the police, or political actors.

The Malimath Committee Report (2003) acknowledged a crisis in India’s criminal justice system, and a persistent challenge is that public prosecutors, appointed under Section 18 of the BNSS, hold their positions subject to executive discretion. This creates a structural tension: the prosecutor is an officer of the court expected to act independently, yet is appointed and paid by the executive. Academic analysis of prosecutorial challenges points to political influence, heavy caseloads, inadequate training in forensic and technology-related crimes, and the problem of hostile witnesses as factors that undermine effective prosecution in India.

The separation between the investigator and the prosecutor is also a vital safeguard. After the CrPC, 1973 came into force, the prosecution wing was formally detached from the police department – a reform that BNSS, 2023 reinforces. The logic is clear: one collects evidence, the other tests and presents it. Allowing the same officer to investigate and prosecute would fundamentally compromise the neutrality of the trial.

The prosecutor’s position in the broader criminal trial 🔗

It is worth noting that at the pre-trial stage, the public prosecutor’s role is relatively limited – the police conduct the investigation independently. The prosecutor’s role expands significantly once the charge sheet is filed and the matter proceeds to trial. At that stage, the prosecutor takes ownership of the case, frames the legal arguments, presents oral and documentary evidence, examines witnesses, and addresses the court on points of law.

Private parties – the victim or complainant – do not have an automatic right to conduct prosecution independently. Under Section 302 of the CrPC (and analogous provisions under BNSS), a Magistrate may grant permission to a complainant to conduct the prosecution independently. However, as the Supreme Court noted in Shiv Kumar v. Hukam Chand, the presence of a private lawyer must not undermine the fairness and impartiality that is the defining characteristic of a proper prosecution.

Challenges facing public prosecutors in India 🔗

Despite their critical importance, public prosecutors in India operate under significant systemic constraints. Key challenges include heavy workloads that affect the quality of case preparation, insufficient resources and infrastructure, inadequate training in technology-related and cybercrime matters, and vulnerability to political and executive pressure given the nature of their appointments. The issue of hostile witnesses is particularly acute – when witnesses turn hostile due to threats or coercion, the prosecutor’s ability to prove guilt beyond reasonable doubt is severely hampered, yet India still lacks a comprehensive witness protection law.

These challenges do not diminish the centrality of the prosecutor’s role – they highlight why reforms to strengthen prosecutorial independence, increase training, and ensure adequate staffing are critical to making India’s criminal justice system function as it should.

What do you think? Given that public prosecutors are appointed by the executive government, do you think India’s current legal framework does enough to protect their independence and impartiality? And considering the heavy caseloads and lack of forensic training highlighted above, should India move towards a specialised prosecutorial service – similar to dedicated cadres in other public services – to professionalise criminal prosecution?

References

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