By Poonam Bera, Army Institute of Law, Mohali.
“There existed unimpeachable evidence” and considering the seriousness of the offense if the conviction and sentence stayed, Jayalalitha may misuse the liberty, so he strongly opposed the suspension of sentence. But in the next hearing, the public prosecutor stated that “he has no objection for granting of conditional bail to convicts”. [i]
Now the act of the public prosecutor in Jayalalitha’s case consequently put the impartiality and independence of judicial system into question.
The concept of the independence of judiciary has been held as a part of basic structure of the constitution. To further reinforce this principle, judiciary and legislature formulated the office of “public prosecutor”, to provide a fair, impartial and effective prosecution by excluding elements of private vendetta or vengeance. Our legal system has made the public prosecutors the direct representative of the State.
“The public prosecutor has been described as a minister of justice who plays a critical role in maintaining purity and impartiality in the field of administration of criminal justice”[ii].
The Law commission of India in its 14th report on judicial administration, while dealing with the subject of prosecution agency, made the necessary provisions in Section 24 and 25 of Cr.P.C dealing with the appointment and functioning of the office of the Public Prosecutor.
JUDICIAL PRONOUNCEMENTS ON ROLE OF PUBLIC PROSECUTORS:
In case of Darya Singh and Ors. v. State of Punjab[iii] question put forth was that Is is the office of public prosecutor, a public office? While answering these questions in the affirmative, the Supreme Court stated that –
“The public prosecutor is the counsel for the government for conducting prosecution on behalf of the government. His duty as public prosecutor is not merely to secure the conviction of the accused at all costs but to place before the court whatever evidence is in his possession, whether it be in favour or against the accused. His duty to the court should be fair, independent and unbiased.”
In case of Shiv Kumar Vs Hokum Chand[iv] , Justice Thomas stated that-
“The public prosecutors are not representative of any private parties as they are representative of the state and the expected attitude of the public prosecutor while conducting prosecution must be couched in fairness.”
“The principle that the prosecutor should scrupulously fair to the accused and should present his case without evincing any anxiety to secure a conviction is based upon high policy to safeguard the integrity of courts”.
ROLE OF PUBLIC PROSECUTOR IN JAYALALITHA’S CASE:
Prosecution and punishment for the crime regarded as supreme responsibility of state as well as our legal system. Such prosecution is performed by a public prosecutor appointed by state on behalf of the state. But when the public prosecutors, one of the most important branch of our legal system, justice, acts on behalf of wrongdoers then the impartiality and purity of judiciary comes into question. Recently in Jayalalithaa’s case, the role of prosecutor was put through the wringer yet again, as the act of prosecutor was criticized for his “dubious stand” and acting for convicts.[vii]
The act of the prosecutor, Mr. Bhavani Singh, was itself dishonored by Justice Cunha saying that he merely read out the chief examination of the prosecution witnesses and summed up his arguments. To the contrary, the defence lawyer addressed arguments for more than 80 hours, elaborately dealing with every aspect of law. Also, Mr. Singh, the special prosecutor, was condemned for instantly changing his mind and agreeing for conditional bail of accused.
In March 2014, special Judge, Justice Cunha, imposed a fine of 60,000 on Mr. Singh for repeatedly delaying his final argument and seeking adjournments without justifiable reason.
This act of prosecutor has clearly questioned autonomy and independence of the prosecutor’s office. Role played by public prosecutor in Jayalalitha’s case once again has heated the debate over functioning of prosecutors as the performance of special public prosecutor in Jayalalitha’s case has seen apparent evidence of malfunction. The whole incident depicting that the prosecutors function as a shield to protect corrupt officials and accused, ignoring his responsibilities and duties as a public officer. This is not the only incident revealing the fault play of the prosecutors there are several cases in which the question of functionality of public prosecutors raised.
INSTANCES QUESTIONING THE FUNCTIONING OF PUBLIC PROSECUTORS:
Apart from the jaylalithaa’s incident there is a plethora of incidents in which questions were raised on functioning of prosecutors and through judicial pronouncements, judiciary has time and again reminiscing the prosecutors about the importance of this dignified post.
In case of Zahira Habibullah vs. State of Gujarat[viii] also called “Best Bakery Case”, Hon’ble High Court stated that-
“The public prosecutor appeared to have acted more as a defence counsel than one whose duty was to present the truth before the court”.
“Public prosecutor plays an important role in the prosecution of criminal cases and was not expected to adopt a casual approach in acceding to a plea for concession sought by an accused”.
As stated by Hon’ble Supreme Court of India while expressing “extreme displeasure” at the manner in which a public prosecutor consented to a plea of bail for an accused convicted of kidnapping and rape, to the Rajasthan government to commute his sentence.[ix]
These malfunctioning and Dereliction of duties, public prosecutors have taken judicial profession to the greatest nadir by tarnishing the image of legal profession. Their conduct has embarrassed the administration of judicial system. Though the reason for these malafide and unethical acts may be the influence of executive or political power operates in judicial system but a prosecutor must stand by his role as an agent of justice. A Prosecutor should not disregard the fact that he is acting as an integral part of judicial system and as a representative of the state, while performing his role as a prosecutor.
“Public prosecutor” as title itself implies “public interest” entrusted with the responsibility to protect the interest of public via assisting in the administration of justice but functioning of public prosecutors has revealed incapability to prosecute political and elite accused. The manner in which prosecutors discharge their duties, directly affects criminal legal system and the whole society as well.
In sum the need has crop up for legislative reforms to modified or check the accountability and functioning of public prosecutors. No specific provisions have prescribed in criminal procedural code in respect of the conduct and unlawful functioning. Now the functioning of prosecutors has necessitated policy reforms and strong penalty provisions for the misconduct of the prosecutors should be formulated. The administrative departments can play a dominant role for supervising the functioning of the public prosecutors. Further the establishment of inspection guidance divisions and offices of public prosecution reforms to check on illegal and inappropriate acts and to promote fair prosecution may help in achieving the norms of good governance.
[ii] Jitendra Kumar @ Ajju Vs State (NCT Of Delhi)
[iii] AIR 1965 SC 328
[iv] scc1999 (cri) 1277
[v] AIR 1959 AP 659,
[vi] Scc2000 Cri
[viii] [(2004) 4 SCC 158]
[ix]http://timesofindia.indiatimes.com/india/Public-prosecutors-should-not-act-casually-in-criminal-matter-SC/articleshow/44868358.cms IANS | Oct 18, 2014