Law Commission of India

197th Report

on

Public Prosecutor’s Appointments

July, 2006
Justice LAW COMMISSION OF INDIA
M. JAGANNADHA RAO SHASTRI BHAWAN
Chairman NEW DELHI-110 001
TEL: 23384475
FAX: (001) 23073864, 23388870
E-mail: [Link]@[Link]

Residence:
1, JANPATH
NEW DELHI – 110 011
TEL: 23019465

[Link].6(3)/121/2006-LC(LS) July 31, 2006

Dear Shri Bharadwaj Ji,

Sub: 197th Report of the Law Commission on ‘Public Prosecutor’s

Appointments.

I have great pleasure in forwarding the 197th Report of the Law Commission on
‘Public Prosecutor’s Appointments’.

The Ministry of Home Affairs, in their file bearing No.12/33/2006-Judicial Cell

forwarded to the Law Commission of India on 29.5.2006 a letter of the Prime Minister’s
Office ID No.805/11/C/4/06-Pol dated 16.5.2006, seeking the views of the Law
Commission on three matters which read as follows:

“(i) Making of appointment of Public Prosecutors/ Additional Public Prosecutors

only from amongst persons constituting regular Cadre of Prosecuting Officers
– in terms of s. 24(6) of the Code of Criminal Procedure, 1908 (sic 1973), as
originally legislated by Parliament- may need to be legislatively restored to
override various State Amendments. Further, a time limit may need to be
prescribed by law to require creation of such cadres in a definite timeframe,
while simultaneously incorporating a ‘sunset clause’ in s. 24(4) of the Cr.P.C.
(ii) Requirement of consultation with Sessions Judge u/s. 24(4) may need be
resorted to override State Amendment(s).
(iii) Other institutional mechanism(s) and safeguard(s) in terms of eligibility
requirement, assessment of past performance, adequate tenure, etc. could be
considered to reduce the scope for arbitrariness in appointments.”

In this 197th Report, the Law Commission has made indepth study of the role of the
Police, the Prosecutor, the Executive and the Courts in the criminal justice process and

2
has gone into the question of the procedure for appointment of Public Prosecutors and has
given its recommendations. A draft Bill for substituting existing subsections (4) to (6) of
sec. 24 of the Code of Criminal Procedure, 1973 is also annexed to this Report.

Initially, the Commission, has gone into the role of the Public Prosecutors as stated in the
judgments of the Supreme Court and the earlier Reports of the Law Commission. The
Commission has stated that the Public Prosecutor has to be independent of the executive
and all external influences, also independent of the police and the investigation process.
He cannot advice the police in matters relating to investigation. He has duties to the
State, to the Court and to the accused. He has to discharge his duties objectively. He is
in the position of a minister of justice assisting the Court.

As regard the procedure for appointment of Public Prosecutors, Addl. Public Prosecutors
in the Sessions Court, the requirement in sec. 24(4) of the District Magistrate consulting
the Sessions Judge is salutary and it is unfortunate that some States have dispensed with
this procedure of consultation with the Sessions Judge.

The provisions of sec. 24(6) of the Code as enacted by Parliament states that once a
Regular Cadre of Prosecuting Officers is constituted in a State, all appointments to the
post of Public Prosecutor/Addl. Public Prosecutor “shall” be made only from the cadre.
Several States have made amendments substituting the word ‘shall’ by the word ‘may’ as
they felt that some of the posts of Public Prosecutor/Addl. Public Prosecutor must be
allowed to be filled from the Bar of the Sessions Court. The Law Commission in this
Report has stated that in as much as the Asst. Public Prosecutors who are in the Regular
Cadre have practised only in the Magistrates Courts which generally try offences where
punishment of imprisonment can only be upto seven years, it is necessary that Public
Prosecutor/Addl. Public Prosecutor’s posts in the Sessions Courts are filled also by
members of the Bar who practice in the Sessions Court, in as much as they have greater
experience in dealing with Sessions cases where punishment could be death or
imprisonment for life.

We have, therefore, suggested that the post of Public Prosecutor must always be
filled by a member of the Bar from a panel prepared by the District Magistrate in
consultation with the Sessions Judge, that 50% of the posts of Addl. Public Prosecutor in
a District must also be filled by the Bar from the panel prepared by the District Magistrate
under sec. 24(4) in consultation with the Session Judge and remaining 50% of the posts
of Addl. Public Prosecutor in a District must be filled from among Asst. Public
Prosecutors who are in the Regular Cadre of Prosecuting Officers.

We have also recommended an express provision to be inserted in sec. 24(4) that

the Session Judge must recommend names of lawyers who have personally conducted
substantial number of Sessions cases and who bear good character. If such a Central
amendment is brought, in case the State Amendments omit the provision of consultation

3
with the Sessions Judge and selection of members of the Bar with such experience and
good character, such a procedure will offend Art. 14.

Likewise, in regard to sec. 24(6), 50% of posts of Addl. Public Prosecutor, must
be filled by Asst. Public Prosecutors from a panel prepared by a State Level Committee
consisting of (a) a retired High Court Judge/sitting High Court Judge, nominated by the
Chief Justice of that High Court, (b) the Law Secretary in the State Government, (c) an
officer of the rank of Secretary of that State and (d) the Director of Prosecution. That
Committee must assess the merit, experience, previous record of performance of the Asst.
Public Prosecutors and it must be ensured that the persons selected bear good character.

We have also stated that within six months of the proposed amendment to the
Code, State Governments must constitute a Regular Cadre of Prosecuting Officers
consisting of 50% of posts of Addl. Public Prosecutors in a District and all the Asst.
Public Prosecutors in the State.

The above recommendations answer all the questions posed by the PMO in its
letter to the Home Ministry.

We, therefore, request you to kindly issue instructions for transmission of this
th
197 Report to the Home Ministry.

Yours sincerely,

(M. Jagannadha Rao)

Sri H.R. Bharadwaj

Union Minister for Law & Justice
Government of India
Shastri Bhawan
NEW DELHI.

4
 I N D E X

[Link]. Contents Page Nos.

Chapter I
1. The Reference by the Home Ministry
and the views of the PMO 3 to 6

2. Chapter II
Independent role of Public Prosecutor
in the criminal justice process 7 to 13

3. Chapter III
Government of India and States: Legislation
and procedure for appointment of Public
Prosecutors and Art. 14 14 to 20

4. Chapter IV
Recommendations of Law Commission on
the three suggestions of PMO 21 to 33

5. ANNEXURE
Draft Amendment to subsections (4) to (6)
of sec. 24 of Code of Criminal Procedure,
1973 in supersession of all amendments
including amendments by the Criminal
Procedure (Amendment) Act, 2005 34 to 36

5
 Chapter I

The Reference by the Home Ministry and the views of the PMO

As desired by the Prime Minister’s Office (hereinafter referred to as

PMO), the Ministry of Home Affairs has sought the views of the Law
Commission of India in regard to the suggestions made by the PMO
concerning the appointment of the Public Prosecutors under section 24 of
the Code of Criminal Procedure, 1973. The PMO referred initially to a
suggestion which had been made to it to the following effect:

“There 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 Government to
appoint public prosecutors should be got amended with immediate
effect. All 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 through PSCs after conducting thorough screening and
examination.”

The PMO then considered the above suggestion. It referred to section

24(3) of the CrPC, under which the State Govt. shall appoint a Public

6
Prosecutor for every district, and may also appoint one or more Addl. Public
Prosecutors and to section 24(4) under which the District Magistrate shall,
in consultation with the Sessions Judge, prepare a panel of persons, who
are, in his opinion, fit to be appointed as Public Prosecutor or Addl. Public
Prosecutor (hereinafter referred to as PP/Addl. PP) for the district. It then
referred to sec. 24(6) which states that the provisions of s. 24(4) shall not
apply where a Regular Cadre of Prosecuting Officers exists in a State and,
that, in such cases, the State Government shall appoint a PP/[Link] only
from among the persons constituting such Cadre.

The PMO has opined that the intention behind the provision of sec.
24(6) appears to be that there should be a Regular Cadre of Prosecuting
Officers, including Asstt. Public Prosecutors (hereinafter referred to as Asst.
PPs), who alone would be promoted to the rank of PPs or [Link] and the
earlier provision of appointment from the panel of practicing advocates
prepared by the District Magistrate in consultation with the Sessions Judge
would be discontinued once the Cadre of Prosecuting Officers came into
being.

The PMO further stated, “ However, s. 24(6) has been amended by a

number of State Amendments, making it optional for the State Government
to appoint persons from the Cadre of Prosecution Officers as PPs/ Addl.
PPs. Further, some States may not have created a regular Cadre of
Prosecuting Officers yet. The requirement of consultation with the Sessions
Judge while preparing the panel has also been done away through State
Amendments in some State(s).”

7
 In the above context, the PMO suggested that following measures
may be considered:

“(i) Making of appointment of Public Prosecutors/ Additional Public

Prosecutors only from amongst persons constituting regular Cadre
of Prosecuting Officers – in terms of s. 24(6) of the Code of
Criminal Procedure, 1908 (sic 1973), as originally legislated by
Parliament- may need to be legislatively restored to override
various State Amendments. Further, a time limit may need to be
prescribed by law to require creation of such cadres in a definite
timeframe, while simultaneously incorporating a ‘sunset clause’ in
s. 24(4) of the Cr.P.C.
(iv) Requirement of consultation with Sessions Judge u/s. 24(4) may
need be resorted to override State Amendment(s).
(v) Other institutional mechanism(s) and safeguard(s) in terms of
eligibility requirement, assessment of past performance, adequate
tenure, etc. could be considered to reduce the scope for
arbitrariness in appointments.”

The above suggestions of the PMO will be examined in detail in the

next chapters of this Report by the Law Commission.

It is also proposed to give a draft for amendments to sec. 24 of the

Code of Criminal Procedure, 1973 which, in the opinion of the Law
Commission, will result in a more efficient, transparent scheme concerning
appointment of Public Prosecutors and Addl. Public Prosecutors in a

8
District consistent with Art. 14 of the Constitution of India, and which will
not permit arbitrary exercise of power while appointing PPs/Addl PPs.

9
 Chapter II

Independent role of Public Prosecutor in the criminal justice process

The suggestions by the PMO have to be considered in the light of

several legal principles applicable to the criminal justice system and in the
context of the role that the Public Prosecutor is expected to play and the
need for independence, efficiency and accountability in his functioning.

Before we go into the role of the Public Prosecutor, first we must

recognize the independent role of the police during investigation and
bringing to book those who violate the law, as declared by the Supreme
Court of India.

Police to act on their own without outside influence:

In Union of India v. Sushil Kumar Modi: 1997 (4) SCC 770, the
Supreme Court quoted with approval the following words of Lord Denning
in R v. Metropolitan Police Commissioner: 1968 (1) All ER 763, as to the
independent role of police:

“I have no hesitation, however, in holding that, like every constable

in the land, he should be, and is independent of the executive. He is
not subject to the order of the Secretary of State….. I hold it to be the
duty of the Commissioner of Police, as it is of every Chief constable,
to enforce the law of the land. He must take steps so to post his men
that crimes may be detected; and that honest citizens may go about

10
 these affairs in peace. He must decide whether or not suspected
persons are to be prosecuted; and, if need be, bring the prosecution or
see that it is brought; but in all these things, be not the servant of
anyone, save the law itself. No Minister of the Crown can tell him
that he must, or must not keep observation on this place or that; or
that he must, or must not prosecute this man or that one. Nor can any
police authority tell him so. The responsibility for law enforcement
lies on him. He is answerable to the law and to the law alone.”

The Supreme Court, after quoting the above observations, observed:

“According 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 making the investigation and the
final steps in the investigation is taken only by the police and by no
other authority, see Abhinandan Jha v. Dinesh Mishra: (AIR 1968 SC
117). This must be borne in mind as also that the scope and purpose
of a proceeding like the present is to ensure a proper and faithful
performance of its duty by the police officer, by resort to the
prerogative writ of mandamus”

Thus, the police are expected to enforce the law, without any
influence from the Executive.

Public Prosecutor in the criminal justice system:

11
 It is worthwhile to go into the role of a Public Prosecutor in the
criminal justice system.

“The Prosecutor has a duty to the State, to the accused and to the
Court. The Prosecutor is at all times a minister of justice, though
seldom so described. It is not the duty of the prosecuting counsel to
secure a conviction, nor should any prosecutor even feel pride or
satisfaction in the mere fact of success. Still less should he boast of
the percentage of convictions secured over a period. The duty of the
prosecutor, as I see it, is to present to the tribunal a precisely
formulated case for the Crown against the accused, and to call
evidence in support of it. If a defence is raised incompatible with his
case, he will cross-examine dispassionately and with perfect fairness,
the evidence so called, and then address the tribunal in reply, if he has
the right, to suggest that his case is proved. It is not rebuff to his
prestige if he fails to convince the tribunal of the prisoner’s guilt.
His attitude should be so objective that he is, so far as humanly
possible, indifferent to the result. It may be argued that it is for the
tribunal alone, whether magistrate or jury, to decide guilt or
innocence” (Christmas Humphreys (1955 Criminal Law Review 739
(740-741)).

The Law Commission of India in its 154th Report on ‘Code of

Criminal Procedure, 1973’ (in chapter III, para 15) quoted Babu v. State of
Kerala : 1984 Cr LJ 499 (Ker H.C.) to the following effect:

12
 “Public Prosecutors are really Ministers of Justice whose job is none
other than assisting the State in the administration of justice. They
are not representatives of any party. Their job is to assist the Court
by placing before the Court all relevant aspects of the case. They are
not there to see the innocent sent to the gallows; they are also not
there to see the culprits escape conviction”

‘Public Prosecutor’ is defined in some countries as a “public 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
takes into account both the rights of the individual and the necessary
effectiveness of the criminal justice system”.

Prosecutors have duties to the State, to the public, to the Court and to
the accused and, therefore, they have to be fair and objective while
discharging their duties.

Public Prosecutor has to act independently from the Police:

The ‘independence’ of the prosecutor’s function stands at the heart of

the rule of law. Prosecutors are expected to behave impartially. (Report
of the Criminal Justice Review in Northern Ireland, 2000) Prosecutors are
gatekeepers to the criminal justice process as stated by Avory J in R v.
Banks 1916 (2) KB 621. The learned Judge stated that the prosecutor,

13
 “throughout a case ought not to struggle for the verdict against the
prisoner but… ought to bear themselves rather in the character of
minister of justice assisting the administration of justice”

It is now too well-settled that Prosecutors are independent of the

police and the Courts. While the police, the Courts and the prosecutors
have responsibilities to each other, each also has legal duties that separate
them from others. The prosecutor does not direct police investigations, nor
does he advise the police. Public Prosecutors are part of the judicial
process and are considered to be officers of the Court.

Public Prosecutor must act on his own independent of Executive influence:

The Government should ensure that public prosecutors are

independent of the executive, and are able to perform their professional
duties and responsibilities without interference or unjustified exposure to
civil, penal or other liability. However, the public prosecutor should
account periodically and publicly for his official activities as a whole.
Public prosecutors must be in a position to prosecute without influence or
obstruction by the executive or public officials for offences committed by
such persons, particularly corruption, misuse of power, violations of human
rights etc.

Even in regard to withdrawal of prosecutions under sec. 321 of the

Code of Criminal Procedure, 1973, the Supreme Court has pointed out in
Balvant Singh v. State of Bihar: AIR 1977 SC 2265 that it is the statutory
responsibility of the public prosecutor alone to apply his mind and decide

14
about withdrawal of prosecution and this power is non-negotiable and
cannot be bartered away in favour of those who may be above him on the
administrative side. In Subhash Chander v. State (AIR 1980 SC 423) the
Supreme Court stated that it is the public prosecutor alone and not any other
executive authority that decides withdrawal of prosecution. Consent will be
given by the Public Prosecutor only if public justice in the larger sense is
promoted rather than subverted by such withdrawal. In doing so, he acts as
a limb of the judicial process, and not as an extension of the executive. He
has to decide about withdrawal by himself, even where displeasure may
affect his continuance in office. None can compel him to withdraw a case.
The public prosecutor is an officer of the Court and is responsible to the
Court. These principles were reaffirmed by the Constitution Bench in the
second case going by the citation, Sheonandan Paswan v. State of Bihar:
AIR 1987 SC 877.

Public Prosecutor not to involve himself in investigation of the case:

The Public Prosecutor should not be involved in the investigation

process. As held by the Supreme Court in R. Sarala v. T.S. Velu: AIR 2000
SC 1731, “investigation and prosecution are two different facets in the
administration of criminal justice. The Role of the public prosecutor is
inside the Court, whereas the role of investigation is outside the Court.
Normally, the role of the public prosecutor commences after investigation
agency presents the case in the Court on the culmination of investigation.
Involving the public prosecutor in investigation is unjudicious as well as
pernicious in law….. The Investigation Officer cannot be directed to
consult the public prosecutor and submit a chargesheet in tune with the

15
opinion of the public prosecutor…. Public prosecutor is appointed for
conducting any prosecution, appeal or proceedings in the Court. He is an
officer of the Court. The public prosecutor is to deal with a different field
in the administration of justice and cannot be involved in investigation”.

Summary:

Therefore, the Public Prosecutor has to be independent of the

executive and all external influences, also independent of the police and the
investigation process. He cannot advice the police in the matters relating to
investigation. He is independent of Executive interference. He is
independent from the Court but has duties to the Court. He is in charge of
the trial, appeal and other processes in Court. He is, in fact, a limb of the
judicial process, officer of Court and a minister of justice assisting the
Court. He has duties not only to the State and to the public to bring
criminals to justice according to the rule of law but also duties to the
accused so that innocent persons are not convicted.

Therefore, any scheme of appointment of PPs/Addl. PPs, as well as

Asst. PPs, must result in the creation of an independent body of prosecuting
officers, free from the executive and all external influences, free from police
and must be able to enforce the rule of law without fear or favour, advance
public interest in punishing the guilty and protecting the innocent.

16
 Chapter III

Government of India and States: Legislation and procedure for

appointment of Public Prosecutors and Art. 14

We now come to the question of legislative power and its dimensions

and Art. 14 of the Constitution of India. Our proposals are intended to
provide a scheme of appointment of PPs/Addl PPs which will produce an
efficient and honest band of officers and that the scheme must be such as
would provide no scope for arbitrary appointments or outside interference at
the time of making appointments.

Legislative powers of Parliament and State Legislatures in regard to

appointment of Pubic Prosecutors:

The power to legislate on the process of appointment and promotion

of public prosecutors is governed by Item 2 of List III, Concurrent List of
the VII Schedule of the Constitution which deals with

“2. Criminal procedure, including all matters included in the

Code of Criminal Procedure at the commencement of the
Constitution”

At the time of commencement of the Constitution, the procedure for

appointment of Public Prosecutors was contained in sec. 492 of Code of
Criminal Procedure, 1898 and hence the subject falls under Item 2 of the
Concurrent List.

17
 Therefore, under Art. 246(2), it is open to the Parliament to legislate
on the subject of appointment of Public Prosecutors but it is also open to the
State Legislatures to amend Parliamentary legislation by following the
procedure in Art. 254(2) of the Constitution, by reserving the State
Amendment Bill for the assent of the President of India.

Law regarding appointment of Public Prosecutor will violate Art. 14 if it

permits arbitrary appointment without proper checks:

The provision in sec. 24(4) that the District Magistrate must consult
the Sessions Judge in the matter of preparation of a panel of lawyers for
appointment as Pubic Prosecutors or Addl. Public Prosecutors is an
essential check on arbitrary appointments. The Sessions Judge who has
knowledge of the caliber, experience and character of lawyers practising in
the Sessions Courts is well suited to suggest the best names of lawyers so
that the interests of prosecution, the interests of the accused are fully taken
care of. This being the logic behind the provision for consultation, any
amendment by the States deleting the check on arbitrary appointments of
Public Prosecutors, will be violative of Art. 14 of the Constitution.

The fundamental point - which has to be remembered – is that any

law made by the Centre or State Legislature in regard to appointment of
Public Prosecutors must conform to the principles governing administration
of criminal justice 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 judicial process’ and ‘an officer of Court’ as stated by the

18
Supreme Court (see Chapter II), any method of appointment which
sacrifices the quality of the prosecution or which enables State
Governments to make appointments at their choice without proper
screening, proper assessment of the qualifications, experience or integrity of
the individuals, be they the Public Prosecutors selected from the Bar or
appointed from among the Prosecuting Officers, will not stand the test of
non-arbitrariness under Art. 14 of the Constitution of India. The scheme
must provide for appointing Public Prosecutors who shall bear all the
qualities mentioned in Chapter II.

As pointed by the Supreme Court, Public Prosecutor’s functions are

inside the Criminal Courts. PPs/Addl PPs deal with the cases of highest
importance in the Sessions Courts which try persons accused of murder and
other serious offences. The Judiciary, - namely the Sessions Court and the
High Court - have a stake in the appointment of these officers. Inefficiency
or lack of integrity on the part of the Public Prosecutors not only affects
society but may also reflect sadly on the judicial system. That is why, in
the matter of appointment of these officers from the Bar as well as
appointments from the Cadre, there must be adequate safeguards precluding
arbitrary appointments by the Executive. Any scheme which permits
arbitrary appointments without checks will be in violation of Art. 14 of the
Constitution.

Earlier Reports of Law Commission: Procedure for appointment:

In the 14th Report of the Law Commission (1958), authored by Sri

M.C. Setalvad and other luminaries, it was stated (Chapter 34, para 12),

19
adverting to the then existing procedures of appointing Police Prosecutors
as Public Prosecutors as follows:

“12. Public Prosecutors and their functions: It is obvious that by the

very fact of their being members of the police force and the nature of
the duties they have to discharge in bringing a case in Court, it is not
possible for them to exhibit that degree of detachment which is
necessary in a prosecutor. It is to be remembered that a belief
prevails amongst the police officers that their promotion in the
Department depends upon the number of convictions they are able to
obtain as prosecuting officers. Finally, the only control or
supervision of the work of these prosecuting officers is that exercised
by the Departmental officials”

The remedial measures suggested were as follows (para 15):

“Suggested remedial measure: We therefore suggest that as a first

step towards improvement, the prosecuting agency should be
completely separated from the Police Department. In every district,
a separate Prosecution Department may be constituted and placed in
charge of an official who may be called a ‘Director of Public
Prosecutors’. The entire prosecution machinery in the District
should be under his control. In order to ensure that he is not
regarded as a part of the Police Department, he should be an
independent official directly responsible to the State Government.
The departments of the machinery of criminal justice, namely, the

20
 Investigation Department and the Prosecuting Department should
thus be completely separated from each other”

There have also been recommendations by the National Police

Commission in its 4th Report and also in the 154th Report of the Law
Commission (1996) that there should be a prosecution system under the
control of an independent Director of Prosecution.

Supreme Court in S.B. Shahane’s case (1995): Public Prosecutors must be

independent of the Police:

In S.B. Shahane v. State of Maharashtra 1995 Suppl. (3) SCC 37, the
Police Prosecutors functioning under the control of the IG of Police were
appointed as Asst. Public Prosecutors by a notification issued under sec. 25
of the Code of Criminal Procedure, 1973. The Supreme Court held that
such Asst. Public Prosecutors could not be allowed to function under the
control of the head of the Police Department. The State Government was
directed to constitute a separate cadre of Asst. Public Prosecutors by
creating a separate Prosecution Department. A Police Prosecutor, it was
held, was not eligible for being appointed as Asst. Public Prosecutor
because the Public Prosecutor must be independent of the Police.

Without a cadre of prosecuting officers in existence, appointment of Asst.

Public Prosecutors as PPs/Addl. PPs is not permissible:

In K.J. John Asst. Public Prosecutor v. State of Kerala, 1990 Crl. LJ

1777, (SC), the Supreme Court, while dealing with sec. 24(6) of the Code
held that there must be a cadre of officers consisting of Public Prosecutor,

21
Addl. Public Prosecutor, Asst. Public Prosecutor or other Prosecuting
Officers and unless such a cadre is available, prosecuting officers who are
not part of such a cadre cannot be appointed as PPs/Addl PPs under sec. 24
(6).

Police officer cannot be appointed as Director of Prosecution:

In Krishan Singh Kundu v. State of Haryana, 1989 Crl LJ 1309

(P&H), it was held that the action of the State Government in appointing a
police officer as Director of Prosecution i.e. in charge of the Prosecution
Agency of the State was wholly illegal and violative of the letter and spirit
of ss. 24, 25 of the Code and the appointment was quashed.

Summary:

Thus, the provisions of the Constitution of India enable the

Parliament and State Legislatures to legislate on the subject of appointment
of Public Prosecutors and Addl. Public Prosecutors, the State Legislatures
can amend the Central law, even when Parliament relegislates the law.
Police Prosecutors cannot be appointed as Public Prosecutors. Where a
Regular Cadre of Prosecuting Officers is not in existence, there is no scope
for appointing Asst. Public Prosecutors as Public Prosecutors/Addl. Public
Prosecutors under sec. 24(6).

Appointment procedure laid down in any legislation cannot give

arbitrary discretion to State Governments. There must be proper checks in
the matter of appointment of Public Prosecutors/Addl. Public Prosecutors in

22
the Sessions Court so that they can be efficient in their functioning,
objective and independent of the Police and the Executive. Any scheme of
appointments without proper checks will be violative of Art. 14 of the
Constitution of India.

If the central legislation expressly requires consultation with Sessions

Judge and that he should assess merit, experience and good character as a
necessary condition for appointment as Public Prosecutors under sec. 24(4),
then any State Amendment which deletes the provision relating to
consultation with the Sessions Judge and to the above qualities required of
the appointee, then such deletion by the State Legislature amounts giving a
licence for arbitrary appointments and will violate Art. 14. In such cases,
assent of the President to the State Amendment can be justifiably refused.

23
 Chapter IV

Recommendations of Law Commission on the three suggestions of PMO

(1) Making of appointment of Public Prosecutors/ Additional Public

Prosecutors only from amongst persons constituting regular
Cadre of Prosecuting Officers – in terms of s. 24(6) of the Code of
Criminal Procedure, 1908 (sic 1973), as originally legislated by
Parliament - may need to be legislatively restored to override
various State Amendments. Further, a time limit may need to be
prescribed by law to require creation of such cadres in a definite
timeframe, while simultaneously incorporating a ‘sunset clause’
in s. 24(4) of the Cr.P.C.

This suggestion No.1 can be split into two parts.

(a) Question is whether the State Legislatures can be precluded from

amending sec. 24(6) so as to disable the States from making amendments
permitting appointments as Public Prosecutors and Addl. Public Prosecutors
from outside the cadre of Asst. Public Prosecutors?

It is obvious that having regard to the fact that the subject of ‘criminal
procedure’ is in Entry No.2 of the Concurrent List (List III) of the VII
Schedule to the Constitution of India, State Amendments to the Central
enactment cannot be prevented. In view of Art. 254(2), the State
Amendments will prevail over Parliamentary legislation if the President
gives assent to the State Amendments. Even if any new amendments to sec.

24
24(6) are made by Parliament in mandatory language, it will not preclude
the State Legislatures from amending sec. 24(6) and making it discretionary
to appoint from outside the Regular Cadre of prosecuting officers and
seeking assent of the President of India for such further amendment.

But, this problem can be solved in a different way and providing a

scheme in the Central Act which will be in conformity with Art. 14 of the
Constitution of India and in that event, deviations by the States from that
scheme will be in violation of Art. 14. We are suggesting such a scheme,
consistent with Art. 14, in our discussion under suggestion (3).

(b) Whether the provisions of sec. 24(6) which permit only Asst. Public
Prosecutors in the Regular Cadre of Prosecuting Officers to be appointed as
PPs/Addl PPs are to be continued or have to be modified?

This part of the question requires a deeper consideration of issues

which have not received consideration in any previous Report of the Law
Commission.

The Law Commission has given its anxious and deep consideration to
the question whether invariably all the posts of Public Prosecutor and Addl.
Public Prosecutor must be filled from the cadre of Asst. Public Prosecutors.

In our view, the existing scheme of appointment referred to in sec. 24

(6) in the Central legislation which requires all these posts in the Sessions
Courts to be filled by Asst. Public Prosecutors from the cadre, where a
Regular Cadre of Public Prosecutors exists, requires some changes.

25
 Public Prosecutors/Addl. Public Prosecutors have to conduct trials in
the Sessions Courts in relation to serious offences which, under the Code,
which are triable only by the Sessions Courts. The Asst. Public
Prosecutors who have practised in the Magistrates Courts had no
opportunity to handle cases of that importance or magnitude. The nature of
offences triable by a Sessions Court, the procedure for trial and the nature of
the evidence are totally different. Normally, Magistrates can try only cases
where sentence does not exceed seven years, whereas in Sessions cases, the
sentence may be death or life imprisonment.

Therefore, the Public Prosecutors in the Sessions Courts, having

regard to the important duties and responsibilities cast on them must, in our
opinion, have the inputs of a fair combination of direct recruitment element
(from the Bar of the Sessions Court in consultation with the Sessions Judge)
and of appointment from the cadre of Asst. Public Prosecutors. Such a
combination is available in most of the services in the Central and State
governments and its virtues have never been questioned.

As stated above, Asst. Public Prosecutors might have worked in the

Courts of the Magistrates as stated in sec. 25 for longer period, but the
offences which they handled are not normally of the same magnitude or
seriousness as those triable by a Sessions Court. On the other hand,
lawyers with seven years or more experience who have practised in the
Sessions Courts and defended cases of murder or other serious offences
where punishment can be death or life imprisonment or imprisonment for
more than 7 years, are always available and it is in public interest to include
them for appointment to the posts of Public Prosecutor or Addl. Public

26
Prosecutor. In fact, it is absolutely necessary to appoint them to some of
these posts and make use of their vast experience in handling cases triable
by a Sessions Court. A provision which combines appointment of Asst.
Public Prosecutors who have been appearing for the prosecution for a large
number of years in the Magistrates Courts and of practitioners with
sufficient experience who have been appearing for the defence in Sessions
Courts, should make a very fine combination and serve public interest.
Some of these lawyers in the Sessions Courts might have indeed been
Public Prosecutors earlier in those Sessions Courts. The Sessions Court
must have the benefit of experience of persons from both sources. The
Public Prosecutors appointed from among Asst. Public Prosecutors can
benefit by interacting with the Public Prosecutors appointed from the Bar in
consultation with the Sessions Judge and vice-versa. The prosecution
process will get greater strength and efficiency on account of the varied but
different experience of the persons from the two sources. Of the efficacy
of this scheme and the good results that may flow from this scheme, the
Commission has no doubts whatsoever.

The Law Commission does not, therefore, favour an exclusive or

single source, namely, the source of Asst. Public Prosecutors who have, as
on date of appointment to the higher post, not handled any Sessions cases
where higher stakes are involved. It is not in the interests of the criminal
judicial system that all the Public Prosecutors and Addl. Public Prosecutors
must be manned only from the source of Asst. Public Prosecutors. Those
appointed from the cadre of Ast. Public Prosecutors will take considerable
time to gain experience in dealing with cases which come for trial before the
Sessions Court. It will not therefore be in the interests of the prosecution

27
or in public interest to exclude lawyers who have been handling Sessions
cases over a long period.

In fact, the State Legislatures, in the opinion of the Law Commission,

are fully justified in going for a combination of recruitment from both
sources, - recruitees from the Bar for 3 years each time and from among
Asst. Public Prosecutors. The view expressed in the first suggestion that all
posts of Public Prosecutors and Addl. Public Prosecutors must be filled only
by officers from the source of Asst. Public Prosecutors, wherever a cadre is
available, has obviously not taken the above aspects into consideration,
which from a practical point of view, is in the overall interests of the
prosecution and in public interest.

One 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. 24(4) from the panel of lawyers prepared by the District Magistrate in
consultation with the Sessions Judge. It will be in the interests of the
criminal justice process if the principal post in the district in this behalf,
namely, the post of Public Prosecutor is manned by an Advocate selected on
the recommendation of the Sessions Judge.

With a view to combine both sources, we are of the view that the
posts of Addl. Public Prosecutor must be available to the Bar and the Asst.
Public Prosecutors in the ratio of 50% : 50%.

But there is a caveat in regard to the procedure for appointment,

which we shall discuss under (3).

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(2) Whether requirement of consultation with Sessions Judge under
sec. 24(4) may need to be restored to override State Amendments?

There is no doubt that consultation process with the Sessions Judge

must be restored so far as sec. 24(4) is concerned.

We note that certain States have dispensed with consultation with the
Sessions Judge by amending sec. 24(4). We agree with the PMO that this
has to be prevented or put an end to.

But, as stated earlier, while reiteration by a fresh Parliamentary law

can be made, such reiteration cannot solve the problem in view of the
powers of State Legislatures unless we introduce some provisions which are
consistent with Art. 14 so that in case they are deleted by the States, such
deletions can be attacked as being in violation of Art. 14.

In order to preclude arbitrary State Amendments, we, therefore,

propose to bring in a higher constitutional principle to compel a fair,
transparent procedure of appointment to be followed. Once, such a
procedure is introduced into sec. 24 by Parliament, then whenever the States
do away with such a procedure, that will clearly attract Art. 14. States
cannot make a provision which is arbitrary and which permits them to
appoint Public Prosecutors or Addl. Public Prosecutors at their sweet will or
whomsoever they like or on political considerations.

29
 We shall explain this new scheme in detail when we come to
suggestion No.(3).

(3) Institutional mechanisms and safeguards like eligibility,

assessment of past performance, adequate tenure etc. should be
considered for preventing arbitrariness in appointments:

In the context of this suggestion, we shall refer to the new scheme

which we propose.

As stated earlier, the Public Prosecutors have their functions inside

the Court. They cannot be involved in the investigation process. If their
functions are in the Court and if, in fact, they are limbs in the judicial
administration and are officers of Court, the method of appointment must be
such as to achieve the objects of efficient assistance to the Court, bringing
the culprits to book and protecting the innocent. If there is a transparent
scheme covering the selection process of both the members of the Bar under
sec. 24(4) and the Asst. Public Prosecutors under sec. 24(6), then such a
scheme cannot be done away with by State legislations which will then
become vulnerable to attack under Art. 14.

The appointment of Asst. Public Prosecutors to the higher post, as

well as the appointment directly from the Bar for 3 years must always
satisfy basic requirements of knowledge, experience and integrity. As
stated earlier, the Sessions Judge has the advantage of knowing who is good
at the Bar in all these respects practising in the Sessions Courts.

30
 In the above background, the constitutional principles mentioned by
the Commission in Chapters II and III are of great relevance and will curtail
State Amendments which may permit arbitrary appointments. The Public
Prosecutor being part of the judicial process, being a limb in the judicial
administration, being an officer of the Court, we must have a procedure
which includes the safeguards like the consultation process for purposes of
sec. 24(4) and the appointment procedure for purposes of sec. 24(6) to
exclude arbitrary appointments or appointment of persons not competent or
not bearing good character.

Section 24(4):

We may reiterate that, so far as sec. 24(4) is concerned, the Public

Prosecutor’s selection and appointment at the level of the Districts and the
High Court cannot be left to the sweet will of the Government. Such a
procedure has the danger of persons without adequate experience of
conducting Sessions cases, or who lack in adequate knowledge of criminal
law being appointed. There is even the likelihood of some of such
appointees not maintaining the highest standards of conduct expected of a
Public Prosecutor. Thus, while consultation under sec. 24(4) with the
Sessions Judge cannot be dispensed with, we propose some extra provisions
in sec. 24(4) requiring that the Session Judge must give importance to
experience in Sessions cases, merit and integrity. If such a provision is
dispensed with by State Legislatures, obviously such amendments will
violate Art. 14. This is so far as the posts of Public Prosecutor and 50% of
posts of Addl. Public Prosecutor in the District are concerned.

31
Section 24(6):

Even in regard to those who are to be appointed under sec. 24(6) from
the posts of Asst. Public Prosecutors who are in the Regular Cadre, they
should not be appointed just on the basis of seniority or suitability unless
screened by a State Level Committee. In as much the cadre is State-wide, it
is desirable that a panel is prepared by a State Level Committee from among
the Asst. Public Prosecutors of the State for purposes of such appointment.
The State level Committee must, in our opinion, consist of

(a) a sitting or retired Judge of the High Court, nominated by the

Chief Justice of the High Court of the State,
(b) the Law Secretary of the State (or officer of equivalent post by
whatever name called),
(c) an officer of the State Govt. not below the rank of Secretary to
State Government,
(d) the Director of Prosecution, if any.

The Committee must expressly be required to assess the merit,

integrity, past record of performance etc. before empanelling the Asst.
Public Prosecutors for appointment to the 50% posts of Addl. Public
Prosecutors in the District.

One other important suggestion of ours, as stated earlier, is that the

Public Prosecutor in the Sessions Court must always be from the Bar and
there should be 50% : 50% ratio as between appointments made from

32
among the members of the Bar practising in the Sessions Court as submitted
by the District Magistrate under sec. 24(4) and those from the panel
prepared by the Committee, for manning the 50% posts of Addl. Public
Prosecutor in the District for purposes of sec. 24(6). The 50% from the
panel of Asst. Public Prosecutors prepared by the Committee will be eligible
only for the posts of Addl. Public Prosecutor and not for the post of Public
Prosecutor.

The Law Commission is, therefore, of the following opinion – in

respect of the three suggestions:

(i) that, having regard to the legislative competence of the State

Legislatures and Art. 254(2) of the Constitution of India, it is not
possible to prevent the State Legislatures from amending ss. 24(4)
and 24(6) of the Code of Criminal Procedure, 1973 and seeking
assent of the President for such amendment;
(ii) that the procedure of filling posts of Public Prosecutors and Addl.
Public Prosecutors in the Sessions Court (on contract basis for 3
years each time) under sec. 24(4) from among members of the Bar
who have had experience in conducting Sessions cases is more in
the interests of the prosecution system and in public interest. The
law must expressly provide that the Sessions Judge must give
weight to experience in conducting Sessions cases and to good
character while selecting members of the Bar.
(iii) that excluding members of the Bar who are experienced in
conducting Sessions cases and exclusively appointing Asst. Public
Prosecutors – who have been conducting prosecution in

33
 Magistrates’ Courts, in relation to less serious offences, to these
higher posts as now provided by sec. 24(6) is not a beneficial
scheme at all;
(iv) that a combination of appointments from (a) among Asst. Public
Prosecutors belonging to the cadre of prosecuting officers, with a
long period of service and (b) of direct recruitment on contract
basis from the Bar from among those who have conducted
Sessions cases, is necessary and will be a fair and efficient
prosecution system. The ratio between the two sources to the
posts of Addl. Public Prosecutor must be 50% to 50%;
(v) that the post of Public Prosecutor in the District must always be
manned by a member of the Bar who has been empanelled by the
District Magistrate in consultation with the Sessions Judge;
(vi) 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 interview by a
State level Committee consisting of a retired High Court Judge or
a sitting High Court Judge, nominated by the Chief Justice of the
High Court of the State and Secretary to State Government, the
Law Secretary and the Director of Prosecution;
(vii) that any amendment by the States which dispenses with the
safeguards of interview for appointments from the cadre or which
dispenses with consultation with the Sessions Judge in the matter
of selecting efficient persons from the Bar on contract basis will
amount to arbitrary exercise of power, and will be violative of Art.
14 of the Constitution of India. The fact that State Legislatures
can amend sec. 24(4) does not mean that they can introduce a

34
 procedure for making appointments arbitrarily from the Bar
without a proper selection process consisting of adequate checks
against arbitrariness. The Public Prosecutor being a person with
huge responsibilities in the criminal justice system, and he being
part of the judicial process, only if the methods of recruitment
suggested above are followed, it can ensure an effective system,
otherwise it will be violative of Art. 14;
(viii) that so far as appointees from the cadre are concerned, as stated
above, any recruitment through the State Public Service
Commission will lead to abnormal delays and the posts lying
vacant for long periods. Hence, it is advisable to have a State
Level Committee as suggested above.
(ix) that so far as fixing a time limit for constituting a Cadre of
Prosecuting Officers is concerned, namely, (a) the Asst. Public
Prosecutors in the State and (b) the 50% posts of Addl. Public
Prosecutors in each District, we propose to fix a period of six
months for the States to constitute such a regular Cadre. The six
months period will be counted from the date of commencement of
the proposed Criminal Procedure (Amendment) Act.

Before parting, we are also of the view that appointment of Pubic

Prosecutors and Addl. Public Prosecutors in the High Court under sec. 24(1)
by dispensing with consultation with the High Court is clearly violative of
Art. 14 as it not only permits arbitrary appointments but excludes the
consultation with the High Court in the matter of appointment of these
officers which is crucial.

35
 Just as the provision for consultation of the Chief Justice of a High
Court in the matter of appointment of Judges of the High Court is
mandatory, on the same analogy, sec. 24(1) is of highest importance, though
it is not a constitutional provision. Absence of consultation process with
the High Court will, in our opinion, clearly violate Art. 14 of the
Constitution.

We are also enclosing a Draft Bill for substitution of sec. 24(4) to (6)
by Parliament.

We recommend accordingly.

(Justice M. Jagannadha Rao)

Chairman

(R.L. Meena)
Vice-Chairman

(Dr. D.P. Sharma)

Member-Secretary

Dated: 31st July, 2006

36
 ANNEXURE

Draft Amendment to subsections (4) to (6) of sec. 24 of Code of Criminal

Procedure, 1973 in supersession of all amendments including amendments
by the Criminal Procedure (Amendment) Act, 2005:

Subsections (4) to (6) of sec. 24 of the Code of Criminal Procedure,

1973, shall be substituted by the following:

“(4) The District Magistrate shall, in consultation with the Sessions Judge,
prepare a panel of names of persons who are, in his opinion, fit to be
appointed as Pubic Prosecutor or Addl. Public Prosecutor
provided that the Sessions Judge shall recommend only such
names from among the advocates practising in the Sessions Court or
Addl. Sessions Courts, who have personally conducted substantial
number of Sessions cases and who bear good character.

(5) No person shall be appointed by the State Government as Public

Prosecutor and, subject to the provisions of subsection (6), as Addl.
Public Prosecutor for the District, unless his name appears in the
panel of names prepared by the District Magistrate under subsection
(4).

(6) Fifty percent of the posts of Addl. Public Prosecutor in a District shall
be filled out of the panel prepared under subsection (6B) from the
cadre referred to in subsection (6A) and the remaining fifty percent

37
 posts of Addl. Public Prosecutor in a District shall be filled out of the
panel prepared under subsection (4).
provided that, where in the opinion of Selection Committee
referred to in subsection (6B), no suitable person is available in the
cadre for the appointment to the post of Addl. Public Prosecutor, the
State Government may appoint any person on the post of Addl. Public
Prosecutor from the panel of names prepared by the District
Magistrate in subsection (4).

(6A) The State Governments shall, within six months from the date of
commencement of the Code of Criminal Procedure (Amendment)
Act, 2006, constitute a cadre of Regular Prosecuting Officers
consisting of fifty percent of posts of Addl. Public Prosecutor in each
District and the total number of posts of Asst. Public Prosecutors in
the State.

(6B)(1) For 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 (6), the State Government shall constitute a
State Level Committee consisting of

(a) a sitting Judge or a retired Judge of the High Court of the State,
nominated by the Chief Justice of the High Court of that State,
(b) an officer of the rank of Secretary to the State Government,
(c) the Secretary, Law Department of the State or the officer holding
equivalent post by whatever name called, and
(d) the Director of Prosecution, if any.

38
(2) The Committee shall, from time to time, prepare a panel of Asst.
Public Prosecutors from the Regular Cadre of Prosecuting Officers,
fit to be appointed as Addl. Public Prosecutor and for the purpose of
judging their fitness, assess their merit, experience, their previous
record of performance and ensure that they are persons bearing good
character.”

39