Professional Documents
Culture Documents
ChapterIII
TRIAL
A trial is a search for truth. It is the task of the Public Prosecutor to reconstruct
past events concerning the offence that was committed and the circumstances that led
accused to commit the crime. He must bring out the facts and explain the law. Rules of
evidence, rules of fair trial are the legal variables that govern the trial process. The
character, competence and commitment of the counsel for State and the counsel for
defence are important factors that determine how well and how swiftly the truth search
can be completed. It is an entirely wholesome practice for trial to go on from day to day
from its inception to its finish. It will be in the interest of both the prosecution and the
The present chapter is in two parts. Part-I deals with the road blocks created by
various players in the quick dispensation of Justice and the methods to overcome them
are suggested. Part II deals with a few important aspects of trial and the legal bottlenecks
which really debilitate the prosecution. Questions are raised whether the scheme of law
in the search for truth is effective enough to meet the social needs and goals. It also deals
with some of the duties a Public Prosecutor has towards the other players in the system.
Part-I
Legally speaking, trial commences when the court hears both parties to the case
and reads out the charges to accused and seeks his response to the charges. Generally
49
Lt.Col.S.J.Chaudhary v. State (Delhi Administration) 1984 Cri.L.J. 340 (SC).
41
speaking Trial of a case commences when the case is posted for examination of
witnesses. While the Investigator seeks to discover the author of a crime and the manner
of its perpetration, the prosecutor aims at establishing the guilt of the person known to be
the offender as discovered in the investigation. It is the prosecutor who is responsible for
proper prosecution of the case. It is certainly the duty of the prosecutor to ensure prompt
trial and not to concede for too many adjournments, or to ask for adjournments himself
without a cause. He must keep in mind he work load of the court where he appears and
see enough number of witnesses produced in the court and ensure not to produce too
many witnesses who cannot be examined on given day50. If there is backlog and old
cases are pending, the prosecutor has to interact with court and police and see the cases
For a Prosecutor, the trial stage of a case is the most workintensive. He has to
indulge in case review, evaluation, assignment of various tasks, trial preparation, and
The most formidable enemy for the prosecutor in charge of a case to tender his
witnesses is his helplessness in the docket management of the court. Once the case for
trial is in the hands of the court, fixing schedule for commencement of trial is exclusively
in the hands of the court and the prosecutor has absolutely no control over it. Court
delay is a haunting devil for the system. Much of the delay in the system arises
legitimately due to fundamental lack of resources capable of processing the work load.
India is one of the countries with the lowest Judge - Citizen ratio in the world.
50
Order 575, Vol. II, The Andhra Pradesh Police Manual, 2002, The Director General of Police, Andhra
Pradesh, Hyderabad.
51
Order 8, Vol. II, The Andhra Pradesh Police Manual, 2002, The Director General of Police, Andhra
Pradesh, Hyderabad.
42
analysed the reasons for failure to improve management techniques The formal
collegial arrangement lacks centralised direction and control, provides minimal external
or internal sanctions against its members, and disperses power almost equally among the
peer group. With this organisational configuration it is not surprising to find many courts
efficient case processing. The limits to which the courts can absorb the basic features of
Given the relatively autonomous position of the Judge within the formal court
organisation, court delay sometimes takes place due to personal philosophy and work
ethic of an individual judge. His proclivity may be due to the immediate benefit of
reduced workload pressure at that time. Neither the prosecutor nor the defence lawyer is
the administrative control of the court. Sometimes, it is the lethargy and indifference of
him in promptly prosecuting the case that leads to several adjournments and may also
lead to drastic results. How it may happen can be seen now? One Mr. Ulfatia was
charged for an offence under Section.25 (a) of The Arms Act 1959. On several occasions
52
Joan E. Jacoby, The American Prosecutor : A search for identity, page 288, Lexington Books, 1980.
43
the trial of the case was adjourned at the request of the prosecutor for adducing
prosecution evidence. On a given day, four of the prosecution witnesses were present in
the court. Though everyone in the court was ready, the prosecutor in charge of the case
had not appeared before the court. The Magistrate deputed his staff to fetch the
prosecutor but they could not find him. Through other means the court sent information
to the prosecutor to come and produce the witnesses. All this proved in vain and the
prosecutor had not appeared. Then the trial court discharged the witnesses and acquitted
the accused. Then the state went in appeal challenging the order of the trial court. The
High Court did not approve the challenge of the State and held that mere presence of the
produced by the prosecutor in court, so that their statements of evidence may be recorded
by the court. It is not the intention of the legislature that a Court should step into the
shoes of the prosecutor and examine witnesses. When there is no one present for the
prosecution to produce evidence in support of the prosecution case, The Magistrate could
not have been expected to waste public time by waiting indefinitely day after day for the
Coming to the accused, they try to avoid the court taking up the case. They adopt
distinct methods for the purpose. If a case has many accused, they see that one of them
abstains from attending the court on the day, when the prosecution witnesses are present.
The Prosecutor cannot adduce evidence in the absence of the accused since Section 273
Cr.P.C., mandates fair trial rule of recording of evidence only in the presence of accused.
53
State v. Ulfatia 1972 Cri.L.J. 994 (Allahabad).
44
There are no exparte criminal proceedings in India. It may be that the court can cancel the
bail of that absentee accused54. However that course alone does not improve the situation
as available on that day. The court has to split up the case against the absentee accused
and proceeds against the rest of the accused present in the court55. During the progress of
trial56, similar tactics can be played by one more accused among the many and the same
procedure as mentioned above has to ensue. The fall out of fair trial principle of law is
that, concerning each of the separated cases, as and when the accused is arrested and
produced before the court, the prosecutor has to once again call all his witnesses and
adduce their evidence. This causes a great deal of discomfort for the witnesses. For this
and many more other reasons, many persons in India loath to come to be cited as
witnesses in criminal cases57. It is highly difficult for the prosecutor to convince his
witnesses to attend the court many a time to depose repeatedly the same facts.
Interestingly the defence counsel has no duties in this regard and his vakalat holds good
for the absentee accused. The whole Criminal Justice System sits as a lame duck. It is
high time for Indian law makers to introduce the concept of exparte criminal proceedings
enabling the prosecutor to proceed with the case and empowering the judge to deliver
Sometimes, when the court, the prosecutor and the prosecution witnesses and the
accused are all ready and willing to proceed with the case, the defence lawyer abstains
from attending the court. The reason for his absence may be personal or may be a usual
54
State of UP v. Shambhu Nath Singh 2001 (2) ALT (Crl) 88 at 93 (SC).
55
State of UP v. Shambhu Nath Singh 2001 (2) ALT (Crl) 88 at 93 (SC).
56
Rule 20. Criminal Rules of Practice and Circular Orders, 1990 in the State of A.P and similar rules in
vogue in the rest of the jurisdictions permit it.
57
For the observations see K. Srinivasa Rao vs. State of A.P, 2002 (3) L.S 360 (A.P).
45
boycott of the courts on some cause, called by the Bar Association or some times by the
bar councils or some general strike call given by a political party. The hitch is that the
of his choice under Article 22 (1) of the Constitution of India. Haste in proceeding with
the case in the absence of defence counsel violates the constitution. Court may tell the
accused to engage another lawyer but that is practically not a viable proposition since
defence bar acts in unison and another advocate may not readily accept the brief or even
if he takes the brief he requires a great deal of time to prepare for the case and defend the
accused. Therefore, the new advocate will simply tell the court his inability to participate
in the trial at that late hour and cross examine the prosecution witnesses. Moreover, in
many cases, the accused are poor in their financial resources and they may not be in a
Then there are instances where everyone is present including but the defence
lawyer but he seeks time to examine the prosecution witnesses on one ground or other.
This conduct on his part may repeat several times. The lawyer being an independent
prosecutor these authorities can do nothing. In an appropriate case, where the dereliction
is viewed as misconduct, at the most what a court can do is to refer that misconduct to the
disciplinary committee of the Bar Council of India 58. Even when the courts genuinely
felt that the progress of the case is impeded by the counsel, it has no better alternatives.
One instance of an interesting exercise of a trial court may be worth mentioning here.
When a lawyer was objected by the court from putting irrelevant questions, to the
58
N.G.Dastane v. Shrikant S.Shivde 2001, AIR SCW 1929.
46
witness, the lawyer grew wild and stated that he was not going to conduct the case.
Having found no option, the court withdrew the vakalat of the counsel and directed the
party to engage another counsel. When it was challenged, the High Court held that the
presiding officer of the court has no jurisdiction to withdraw the vakalat of the counsel
and he has no jurisdiction to give direction to the party to engage another counsel59. Such
instances legitimately rakes up the idea that when a case reaches the stage of trial in a
court, the court shall be made the central authority to pass all sorts of orders against the
defence lawyer, prosecutor, accused, witnesses for the legitimate progress of the case
which is always in the interest of justice. There are brow beating tactics of the advocate
that would also lead to unnecessary delays. The court shall administer its work in a
systematic manner. Each judge is assigned with minimum targets of disposal of certain
number of cases in every month. If a case is an old pending one, he has to give top
priority to it and clear it off soon. Vested interests do not like this. There are instances
where simply because the presiding judge of the court is insisting on the parties to get
ready in the matters, the lawyers move transfer applications before the superior court
seeking transfer of that case arguing that the Judges insistence for disposal of a case is an
act of bias60.
Then there is police. Instructions in the Police Manual indicate that the
investigating police officer shall punctually attend the court along with the case diary. It
is also noticed that one of the causes for delay in the progress of the trial in the court is
absence of Police Officers61. Regarding this the Supreme Court of India held that in
59
P.Mohana v. M.Chakradhara Chowdary, 2004 (1) APLJ.26 (SN) A.P.
60
Pasupala Fakruddin, Chittor v. Jamia Masque, B.Kotha Kota 2003 (2) L.S275 (AP).
61
Order 580, Vol. II, The Andhra Pradesh Police Manual, 2002, The Director General of Police, Andhra
Pradesh, Hyderabad.
47
every Sessions case, the Sessions Judge shall issue summons to the investigating officer,
if he failed to remain present at the time of trial of the case. The presence of
investigating officer at the time of trial is a must. It is his duty to keep the witnesses
present62. It is to be noticed that the Supreme Court is speaking about the presence of
investigating police officer but not about any other police officer. These principles are
very good. However, the practice and possibilities on ground are drastically different.
Normally in India a criminal case is ready to take trial nearly four of five years from the
time of offence. In its 142nd Report, Law Commission of India noted that in several cases
the time spent by the accused in jails before the commencement of trials exceeds the
maximum punishment which can be awarded to them even if they are found guilty of
offences charged against them. Thus by the time, the case comes up for trial, the officer
who investigated the case is invariably transferred to another police station or to another
is far away from the court where the trials of those cases, which he investigated, take
place. Many offences are partly investigated by one police officer and the completion of
the investigation is done by another police officer. Availability of either or both of them
think that for all those cases all those who investigated would have to be present in the
court and see that witnesses are promptly produced for trial. In fact, on his transfer from
that police station, he loses all administrative control over the process serving police men
of his erstwhile police station. His presence in the court remains an idle formality
that, except a constable attached to that court, no other police officer appears before any
62
Shailendra Kumar v. State of Bihar, 2002 (1) SRJ 353 (SC).
48
court to oversee the prompt prosecution of the case. This court constable is obviously not
the one who at any time participated in investigation of any of the cases that are
undergoing the trial process because he has come to that police station recently on
order. This court constable is also not the one who serves summons to the witnesses
because he spends his whole time in the court and someone else is deputed by his
superior to serve the summons. Thus the court constable knows nothing of the case, well
neigh its intricacies. The Public Prosecutor has no administrative or legal control over
the police. The Prosecutor belongs to a different department in the Government. The co-
operation from the police to him is solely dependent on the personal rapport he maintains
and the charisma he wields. Such characteristics of prosecutor yield only some
superficial results in discharge of his functions but not to the required level he needs and
deserves. Observations of the Supreme Court are that it has become more or less a
fashion to have a criminal case adjourned again and again. It is the game of unscrupulous
lawyers to get adjournments for one excuse or the other. The administration of Justice
suffers. In adjourning the case, without any valid cause, a court unwillingly becomes
party to miscarriage of justice63. The net result of the above analysed situations is delay.
Delay in criminal courts is a sure phenomenon and its recurrence is as sure as sun rises on
It is a somber reflection that many little Indians are forced into cellular servitude
for little offences because trials never conclude and bails is beyond their meagre means.
Social justice is the signature tune of our Constitution and the little man in peril of losing
63
Swaran Singh v. State of Punjab, 2001 SCC (Crl) 190 at 199.
49
his liberty is the consumer of Social Justice64. None can disagree on this aspect.
Immense literature sprang up on the need for speedy trial of cases. In India, one can find
court building without judges being posted to hold the court; Judges being appointed
overcrowded court building into two and thereby running two courts in the same
building. One also finds judge and the court building without adequate work force; the
work force, if provided, is raw, ad-hoc and never trained in the court work and they
spend much of the time with fingers crossed knowing nothing about their role in the
system. Fast Track Courts is a living example and stand as a testimony to it. Some of
the logistic problems are sought to be resolved by judicial dicta since Government,
though alive to the scenario, did nothing to remedy the malady. In Hussainara Khatoon65,
the Supreme Court felt it is its constitutional obligation to enforce the fundamental right
of the accused to speedy trial by issuing necessary directions to the State which may
include taking positive action, such as setting up new courts, building new court houses,
providing more staff and equipment to the courts appointment of additional judges and
Indian administration is known for not acting promptly. Even the judges when
engaged on the administrative side for empanelling the names for appointments as High
Court Judges similar laxity are visible. Similar situation prevails in the lower courts. For
many months lapsing into years the courts are kept vacant without filling up vacancies.
Prosecutors attached to those courts have no work to attend and their precious services
64
Moti Ram v. State of Madhya Pradesh, AIR 1978 SC 1594.
65
Hussainara Khatoon (IV) v. State of Bihar (1980) 1 SCC 98
50
are not used during that time. Retirements, deaths, promotions, deputation of prosecutors
leave many vacancies. Large number of vacancies unfilled for long time is a speed
breaker that halts progress of trials. Sharp condemnation of it came from Kerala High
Court66 where it said, Expeditious trial of a criminal case is an integral and essential part
of the fundamental right to life and liberty contained in Article 21 of the Constitution.
The State cannot stop or stay a criminal trial by refusing to appoint a prosecutor. The
code of criminal procedure also. The State is, therefore, wrong if it ever assumed that
absolute necessity. Just as abolition of all courts due to financial constrains cannot even
courts cannot be tolerated. The system of putting one prosecutor as in charge for more
than one court shall be stopped. Considering the heavy pendency in each of the criminal
courts a prosecutor shuttling from one court to another does scant justice to either court.
The functioning of the criminal courts cannot even temporarily be paralysed by the non-
Thus there is yawning gap between law on paper and its implementation in
reality. To copy the phrase of one of the great judges of India Sri.V. R. Krishna Iyyer-
66
P.M.Sunny v. State of Kerala, 1986 Crl.L.J.1517 (Kerala)
51
Prompt justice is the motto; but who is the beneficiary and who is the loser if
delay takes place. From the prosecutors perspective, every delay threatens the
evidentiary strength of the case, resulting in less confident witness, dimmed memories or
loss of evidence. The delay causes agony to witnesses and exhaustion to the victims. It
is not so to the accused in many cases and never so if he is a repeater. Defence waits
with a hope for weakening of the evidentiary strength of the Prosecutors case. Defence
waits to gain feelers for composition or plea bargaining. His belief is in the rule of
patience If you can outwait the other side, you can usually out negotiate them.
Constitution says it is the fundamental right of the accused to have a speedy trial. It also
says that such a fundamental right cannot be waived by the holder of the right or usurped
by the State. But the system made available made a foolery of it. Therefore call for
swift justice seems only a lip service and the accused enjoys the fundamental benefits of
violation of his fundamental right of speedy trial. This strikes a paradox, but is a truth. In
this maze of things the prosecutors control over the case is gradually lost and with it his
interest over the case and before the onset of indifference on him, he gets transferred
being a public servant, as usual after about three years of service in the court. Similar
things happen with the seat of the court, as every judge could spend no more than three
The grim picture gets clearer. The Police Officer, who visited the spot of offence,
saw the victims in blood and tears, worked hard and caught the accused is now
transferred before the trial commences. The judge who remanded the accused to judicial
custody, who recorded the statements of witnesses under section 164 Cr.P.C, dying
declarations of the victims is also transferred. The prosecutor who ably advised police, if
52
at all he was ever asked to by the police, who strongly opposed to release the accused on
bail, is also now transferred. Now new set of players have joined in the respective seats.
They know nothing of the human suffering and the villanity that is preserved in the
papers of case file. They work without any human emotions since they were not part of
the human drama that was unveiled before their arrival. However, these players try to
console themselves by saying that absence of emotions is part of their duty and an
indication of their neutrality. Alas, it is not justice for the victims; the system produces
victims of justice. This is the scenario for the Public Prosecutor before he makes his
opening speech in the court preceding introduction of witnesses. The famous Indian
tolerance assigns one reason for all this and for everything It is all the destiny written by
God. Persons loving it become philosophical, and person hating it becomes rebels.
Therefore discerning scholars have always written many a time that India is at cross
roads. One sure solution, the researcher believes, lies in shifting of many pre-trial
functions, decisions, and discretions from court and police and vesting them with Public
Prosecutor. His office shall be groomed to flourish. The belief in this is not misplaced,
since the prosecutor could work as quality controller for police work and thereby brings
up only valid cases to court and on the other hand by sharing some of the courts
responsibilities, he decreases the burden of the court to a great deal thereby enabling the
PartII
Outlines of Trial
Magistrate or Sessions Judge. These Judicial Officers sit single and decide questions of
fact as well as questions of law. These courts deal with adult offenders only. Cases of
53
juveniles are dealt with by Juvenile Justice Board consisting of one law Judge and two
lay Judges who are social workers. Every Public Prosecutor or Assistant Public
Prosecutor in charge of a case can appear and plead without any written authority before
any court where the case is pending. Section 301 (1) Cr.P.C, conferred such power to the
prosecutors.
The presiding judge conducts the trial. More elaborate procedure is provided in
offences of lesser gravity and complexity. For petty criminal cases further more abridged
and resources in rendering justice in every case. Broadly speaking the Public Prosecutor
does the following activities in the trial Opens the case, introduces witnesses and
examines them and cross examines the witnesses for defence, makes a summation
arguing his case. The Presiding Judge records the evidence on both sides. On the truth
of the case of prosecution, generally, judge indulges in decision making only after the
arguments of the defence counsel are concluded. The prosecutor has full liberty in
adducing evidence on his side, so also the defence counsel has on his side. But in
practice rarely defence counsel chooses to adduce evidence in defence. The role of the
trial judge is normally limited to see that irrelevant or inadmissible evidence is not
adduced by either side and to see that the witness is not bullied by the counsels. Decision
making on the truth of the guilt or innocence of the accused is arrived at by the judge
based only on what is recorded during trial including the documents exhibited through
presiding over the legal battle between the state and the citizen. Procedure prescribed is
54
more due process oriented. However, judge is entitled to call for any evidence which in
his opinion enables him to arrive at truth. Hearsay evidence is inadmissible. Accused
cannot be compelled to speak against himself. His silence does not normally ensue
discretion to take decisions on various aspects. The most significant aspect to be taken
note of is that the entire case diary of the case prepared by police is not evidence in the
eye of law. Prosecution cannot use the statements of witnesses made to police as pieces
of evidence. Prosecutor cannot question the accused except when the accused enters the
Trial and role of prosecutor vary from country to country. For instance, in other
than AngloAmerican models, the presiding judge examines the accused and takes the
evidence. The Public Prosecutor may ask the witnesses a few quotations after the judges
examination is finished, but the Prosecutor will be hesitant to ask additional questions for
fear of irritating the judge. So passive is the Public Prosecutor in Germany that some
have been observed reading novels while Judge is conducting the examination67. In
Argentina, the Magistrate questions the accused. Prosecutor and defence lawyer cannot
pose questions without judges authorisation. The prosecutors action at trial is not
China, after the police conclude their investigations they transfer the files to the
procuratorate for public prosecution. The procuratorate will review the case. If it decides
67
William F. McDonald, Ed, The Prosecutor p. 69, Sage Publications containing article of Jay A. Sigler
The prosecutor: A comparative Functional analysis.
68
From the Book Review by George. Thomas over the Book Criminal Procedure: A world wide study
by Craig M. Bradley Ed; Academic Press, 1999 The book review is published in the Journal of
Criminal Law and criminology, Vol. 91, No.3, pp. 791-882.
55
to prosecute, it initiates proceedings against the accused and transfers the case to the
court. The court forms a collegial panel, composed of Judges and peoples assessors, to
try the case. All of them can decide on question of fact as well as law. The crux lies here.
Before the trial, the panel holds meetings to discuss the case, to make a decision on the
nature of the offence as well as on the sentence. It is a normal practice in China that a
case is decided before trial. Those who try a case may not have the power to render a
verdict other than that decided before trial. The fundamental characteristic of Chinese
criminal trials is that through the pre-trial investigation, the judges decide on the facts and
on the law involved. The court must try the case only when there is no clear and
sufficient evidence to support the prosecution. However, after amendment in the year
1996 to the Criminal Procedure Law (CPL 1979), there is a change in the legal stance.
For the first time, the accused is presumed to be innocent till the case is proved before the
court. The courts invariably conduct trials and do not decide the case before trial. Now
in the court the prosecutor reads out the charge. Then the accused and victim make
statements to the crimes alleged. Then the Public Prosecutor may question the accused.
The judge can also question the witnesses and the accused. Judge is empowered to take
the role of inquisitor or arbitrator. There is no rule to guide him in making this choice.
This ambiguity makes the implementation of certain trial types extremely difficult. The
trial shall be completed within one month from the date on which the court received the
case file. Extension of time by half a month is legally possible. In the trial, the defence
counsel is mostly marginalised in the name of rigorous search for truth and for the
56
purpose of crime control. For the judicial inquisition, the only issue at stake is whether
Opening Speech
The Public Prosecutor shall open the case by briefly stating the nature of the
accusation made against the accused and the evidence on which he is going to
substantiate it. Section 226, Cr.P.C, in cases of trial before Sessions Court, Section 239
Cr.P.C., in cases of trial of warrant cases before Magistrate Court provide for it. In trial
of summons cases before Magistrate, the opening speech is to be made a little latter and
only when accused pleaded not guilty. Opening speech of prosecutor is to acquaint the
court and the defence counsel about the case to avoid any vagueness in the case and to
obliterate any elements of surprise. The defence counsel is entitled to reply. His reply
should confine to the case as agitated by the prosecutor and need not disclose his line of
defence.
In practice, the prosecutors do not make any opening speeches in most of the
cases. It is a rare occasion to see a court inviting the prosecutor to make an opening
statement. It is equally rare to see any prosecutor asserting his statutory obligation to
make an opening statement and raise a demur with the court. The reasons for it are not
far to seek. In the present system, the charge-sheet conclusions and sections of law
mentioned therein have no bearing on the court. The Magistrate is obliged under law to
take cognisance of offences for those penal provisions of which he thinks apt to the facts
mentioned in the case diary. Normally, for those penal sections only the court frames
69
Wang Chenguang and Zhang Xianchu Eds, Introduction to Chinese Law, pp. 146-165, Sweet &
Maxwell, Asia, 1997.
57
charges. Since the charge selection is not with the prosecutor, apathy creeps in and that
the accused and defence counsel have no accurate opinion on the case of prosecution to
assess its strength or weakness. This has a direct bearing on the defence. It leaves the
to plead not guilty. Therefore, he takes cautious approach and pleads not guilty resulting
in more cases for trial. As the prosecutor did not make opening statement, the defence
counsel does not make any statement. The fallout of it is that the prosecutor and the
presiding judge do not know whether the accused has any specific line of defence and
whether accused is admitting or disputing at least harmless facts. This situation compels
the prosecutor to adduce evidence on facts over which there may not be any dispute.
Thus this non-committal on part of prosecutor, defence, court contributed to the disuse of
the legal principles meant to facilitate all sides to have a good grasp over the case
enabling everyone to take informed decisions and reduce the length of the trial to the
disputed facts. Resultantly, there are more denial pleas and production of avoidable
The court frames charges and reads them out to the accused. The accused is
entitled to plead his version of the case or refuse to plead at all or can simply claim to be
tried. Section 230 Cr.P.C, for Sessions Cases and Section 242(1) Cr.P.C, for cases before
Magistrate provide for it. In all such cases, where accused refuses to plead, a Not guilty
plea is entered and the case will be set for prosecution evidence. However, if the accused
pleads guilty and it is entered, yet the case can be set for prosecution evidence by the
58
court. In fact in all serious offences, the courts are reluctant to act upon the guilty pleas
only with a view to err on right side. In summary trial cases, which mostly result in
imposition of fines, the normal practice is to accept the guilty plea and convict the
accused. Even in serious cases, if the court chooses to accept the guilty plea, it can
convict the accused as per Section 229 Cr.P.C in Sessions Cases, Section 241 Cr.P.C in
the court of Magistrates. The question that may arise is whether a Public Prosecutor can
request the court to set the case for evidence while the court is inclined to convict the
accused on the guilty plea. There is yet a case to be seen in India on this aspect. The
language employed in the code of criminal procedure does not appear to allow any such
privilege to the prosecutor. Strictly speaking, the plea tendered by the accused is
tendered to the court and not to the State and therefore prosecutors insistence has no
legal basis. It may be possible that when the State elects to lead evidence, the court may
Different jurisdictions dealt with guilty pleas in different ways. In Scotland, the
prosecutor has complete discretion to accept or reject the guilty plea and the premise is
that the crown is not bound to accept a plea and may insist upon the indictment
proceeding for trial. The High Court of Scotland admits that to be the settled position
and justified it on various grounds that the prosecutor may feel it necessary to bring out
the full enormity of the crime or to show the mitigating circumstances. It further stated
that when two or more persons are charged and the prosecutor may be unable, without
injury, to assign the proper degree of guilt to each of the accused or for any other reasons
deemed sufficient by the Public Prosecutor for declining a plea of guilty. It is not
necessary that the prosecutor should assign any reason, the right being one which the law
59
commits to his own judgement and discretion. However, the governing consideration in
Law governs the mundane affairs of its citizens. Law assumes that its commands
accordance with law. Hence, if the State accuses of its violation by a person, it is
asserting a fact against the assumed compliance on part of that person. Therefore, the
burden lies on the prosecution to prove its case and rebut the assumption standing in
favour of the citizen. If the case put forwarded by the State is unable to convince the
independent arbiter, the judge, its case fails and the assumption of legal obedience vested
with the citizen continues. Thus, in Indian Criminal Justice system there are two cardinal
rules, both of which are not directly written in black and white in any statute. However
they being so fundamental for the organised civilised society, they do not require to be
written specially, as they are certainly matters of common sense for every legal player in
proved before a competent court of law. Therefore, the satisfaction of his guilt by
the police and the Public Prosecutor are only to the extent of registering a case,
2) The burden of proving the guilt of the accused is always and all throughout the
trial is on the prosecution and the benchmark for it is to prove the guilt beyond
70
Strathern v. Sloan 1937 J.C.76 as quoted in Christopher Gane and Charles Stoddart, Criminal procedure
cases & materials, Pgs 48 - 50, 2nd Edition, 1998, W Green/Sweet & Maxwell.
60
reasonable doubt. In a democracy, as India is, people are the Kings and the State
through its officers serves them and therefore calls its officers public servants.
King does no wrong. But the King is subservient to law. The public servants, in
the name of the State when accuse the King of violating law, it is sheer common
sense, they shall prove it beyond reasonable doubt. Therefore, when reasonable
doubts remain about the probable complicity, the benefit shall go to the King and
Now it is easy to accept the onerous task thrusted on the Public Prosecutor in
proving a charge of crime levelled by him against the accused. He has to thus show to the
court that in fact an offence occurred and that the said offence was committed by the
accused in the dock and by none other. If he is unable to show either of them the case
fails. He could show to the court that both of them are real, but that could be done only
Production Evidence
Adducing evidence by prosecutor arises in those cases where the accused pleads
not guilty. The court fixes the date for the examination of witnesses. On that day, the
court records the evidence that is produced by the prosecutor71. The Public Prosecutor is
assisted by the police and also the court in producing the witnesses. Well before the date
for production of witnesses in the court, it is desirable for the prosecutor to physically see
his witnesses and interview them. The Supreme Court of India held that the prosecutor
can interview the witness before hand to know well in advance the stand which that
71
Sections. 230, 231, 242 Cr.P.C. 1973.
61
witness would be adopting when examined in the court72. It is necessary because during
the investigation phase of the case prosecutor had no control over the investigation and he
never saw the witnesses and never listened to what they say. Therefore, the police shall
produce the witnesses in advance before the prosecutor. The prosecutor shall speak to
them and prepare them for their evidence in the court. The witnesses may have several
psychological barriers and complexes including fear. They may be ignorant of court
proceedings and law. The prosecutor should instil confidence in them, refresh their
memory, instruct them as to how they should behave in court and answer questions that
may be put to him by the defence lawyer. However prosecutor should not tutor the
witnesses73. All this is so essential for a quality evidence to be recorded by the court. It
is amazing to note that neither the criminal procedure code nor the Indian Evidence Act
nor any other law prescribed any provisions for the prosecutor in this regard. The
instructions in the police manual have no statutory force and they are merely guidelines
for the police officers. Thus statutory law totally neglected to spell out the powers and
duties of prosecutor and his interaction with the witnesses. During this phase of the case,
the court cannot assist the prosecutor for his preparation of the case. It cannot direct any
witness to attend before the prosecutor before he attends in the court to give evidence.
The police manual employed language indicating that those instructions are given to
police to produce the witnesses before the prosecutor. They do not confer a
police and the police are not under his control under law and the prosecutor is no master
72
Hukum Singh v. State of Rajasthan 2000 (2) ALT (Crl) 203 (SC).
73
Order 575, Part-I, Vol. II, The Andhra Pradesh Police Manual, 2002, The Director General of Police,
Andhra Pradesh, Hyderabad.
62
for them. If the police fail to produce witnesses well in advance, the prosecutor could
only complain of it to the superior police officers and nothing more. All this led to
abandoning of interviews by the prosecutor in most of the cases. In practice, the general
situation available is that the police do not produce the witness before the prosecutor and
the prosecutor also does not ask the police to produce the witnesses. In private, police
say that when they take the witnesses to prosecutor, they are asked to bring the witness
directly to court. The grievance from the prosecutor is that despite his requests, police
did not bring the witness in advance to him and even in those odd cases when the witness
is produced that occurs just minutes before the commencement of court proceedings
leaving no time to prepare the witness. Prosecutors justify their lack of enthusiasm in
advance interviews with witnesses mainly on the ground that the State has not provided
any office what so ever to them to sit and talk to the witnesses. This is a stark reality that
is seen in most of the places in India. The prosecutor has no office room to work with. In
the absence of office building the alternative is the dwelling house of prosecutor. Many
prosecutors are reluctant to carry the criminal case witnesses to their residential houses
and convert his house into that of his office. In some of the places where some sort of
office for prosecutor is provided, it is invariably by the side of the local Bar Associations
office where all the lawyers including the defence lawyer and his client, the accused,
attend. One can imagine the embarrassment and discomfort the prosecutor and his
witnesses undergo in having dialogue between themselves to the gaze of accused and
defence lawyer. This entire scandalous situation resulted in disuse of norms related to
prosecutor speaking to his witnesses before tendering them for evidence in the court of
Prosecutors dealing with anti corruption cases and cases filed by the Central Bureau of
cases.
Thus, far it is seen what is happening and what is expected to happen for
prosecutor in having access to his own witnesses. Now the stage arises to produce the
witnesses in the court. The statutory norms are in sections 230, 231, 242, 254 Cr.P.C.
They refer to the obligation of the prosecutor to secure the presence of his witnesses and
produce them into court. While deciding the parameters of Section 242 Cr.P.C., it was
stated that a very great responsibility is cast upon the prosecution to bring its own
witnesses. If needed, it has to take the help of the court and obtain summons for the
witnesses. For this, the prosecutor has to move an application before the court and secure
an order for it. Without such application courts cannot be expected to keep on
In practice, rarely one sees a prosecutor moving any application before the court
for summoning witnesses. It is also very rare to see that the prosecution produces its
witness on its own. What really happens every day in every court is that the judge while
fixing the date for recording evidence also orders summons to the witnesses. Court
officers prepare the summons. Police personnel serve them on witnesses. Compelled by
the circumstances he experiences, the judge gives summons to many witnesses in many
cases being aware that the State police are very tardy in serving summons. The
prosecution thus produces a few witnesses in each of those cases. Thus the court records
evidence in part in each case and adjourns all the cases to some other date for the
74
State of Madhya Pradesh v. Kalyan 1987, CrlLJ 2009 (M.P. Gwalior Bench).
64
remaining witnesses in all those case. Thus the trial in each and every case before a
Magistrate is always in five or six instalments thereby lacking coherence. This spells on
enthusiasm for the prosecutor and the judge in the case file. This dubious approach dents
the quality of Justice also. The remedial methods suggested in certain judicial
pronouncements and the reports of the committees remained good sermons without much
use since they all assumed that the defects lie with the persons and not in the principles.
It is beyond pale of any doubt that the essential feature of criminal justice system
their lawyers and it proceeds by direct questioning and cross examination of witness.
The technique for ascertaining facts is confrontational in style. Prosecution and defence
prepare and present their respective versions to the court, and a decision is reached on the
basis of two alternative versions of fact and law. Court sits as an independent arbiter.
Concerning production of evidence the Supreme Court75 succinctly said that it is left to
prosecution and accused to establish their cases by adducing the best available evidence.
The court is not empowered under criminal procedure code to compel either the
prosecution or the defence to examine any particular witness on their side. Nonetheless,
if either of the parties withholds any evidence, the court can draw a presumption adverse
to that party. However, in order to find out the truth and render a just decision, Section
540 Cr.P.C., (now Section 311 Cr.P.C, 1973) empowers the court to summon and
examine any witness. This power must be used judiciously and not capriciously or
75
Mohanlal Shamji Soni v. Union of India, 1991 CrlLJ 1521.
65
arbitrarily because any improper or capricious exercise of the power may lead to
undesirable results. It is incumbent that due care should be taken by the court while
exercising the power under this Section and it should not be used for filling up the lacuna
left by the prosecution or by the defence or to the disadvantage of the accused or to cause
serious prejudice to the defence of the accused or to give an unfair advantage to the rival
side and further the additional evidence should not be received as a disguise for a retrial
Thus, the power of the court to examine any witness under Section 311 Cr.P.C
and pose any questions under Section 165 of the Indian Evidence Act is necessary
corollaries that are vested with any competent court in any system of law. The manner of
use of this power is hedged by what the Supreme Court of India stated as mentioned
above. Therefore the view held in certain quarters that it is the duty of the court to secure
evidence does not fit into the scheme of the things. Thus the statement of the Allahabad
High Court76 that there is a duty cast on the court to summon all the material witnesses
and examine all such witnesses on its own, if the prosecution fails to do so, shall not be
produce its witnesses in court and examine them. Only when its lethargy appears to lead
to unjust situations, the court steps in to remedy the situation. That the court has got the
power to summon does not and shall not relieve the prosecutor from producing its
witnesses. The duty of the prosecution to produce witnesses can never be substituted by
the guarded power of the court to fill the bill in the adversarial trial set up. Therefore, the
76
Govind Ram v. State of U.P. 1999 Crl.L.J.1955.
66
Public Prosecutor should produce the evidence. This is also very much clear from the
plain language used in Sections. 230, 231, 242, 254 Cr.P.C, that during trials it is the duty
Under the Code of Criminal Procedure, the Public Prosecutor is a lonely figure in
the criminal justice system. He had never seen the witness during the course of
investigation, most likely never has also seen before the trial, and never may also see the
witness if police do not fetch the witness to the court. Under his control, there is no
attends the court every day but in his presence, in several cases, prosecution evidence is
many and far many adjournments. There are instances where even after fourteen (14)
adjournments, the prosecutor could not tender the evidence of the Investigating officer77.
For Twelve (12) years prosecution did not produce any witness 78. Truth is recognised
when the Supreme Court said that the Public Prosecutor is like a warrior without
ammunition in the battle and as a result, remains as a wounded soldier by losing his
cases79.
Sections 24, 25, 225 Cr.P.C, use the word conduct meaning that the prosecutor
shall conduct the cases in the courts. This word conduct has been explained 80 to the
effect that it conveys the idea of leading and guiding. The person who conducts the
prosecution determines all important questions of policy involved in the course of the
trial and the attitude to be adopted by the prosecution towards material objections raised
77
Prabat Singh v. State of Rajasthan, I (1994) CCR p.101
78
State of Gujarat v. Kiritbhai Maganbhai Patel, 1993 (3) Crimes 286.
79
Hitendra Vishnu Thakur v. State of Maharastra, AIR 1994 SC 2623
80
Rama Kistaiah v. State of AP 1959 Crl.J.1404.
67
or demands made by the accused with respect to the evidence. Therefore, the law must
really enable the prosecutor to conduct the case in the court on behalf of the State. If the
prosecutor has exclusive control over a set of police personnel exclusively attached to his
office, he could see that summons are served on them well in advance and he could speak
to the witnesses well in advance and then produce them in the court and adduce their
evidence. Prosecutor must be empowered to summon witnesses and when the witness
disobeys the order, he must be empowered to coerce his presence by issuing a warrant of
arrest. Only in exceptional cases the courts intervention shall be sought. This change in
the procedure would save a lot of time of the court whose staff spends considerable time
in preparing summons in many cases, for many witnesses, many a times. Empowering
the prosecutor by law and providing machinery to the prosecutor to get his witnesses does
not violate any principles of fairness of trial. This proposed move would also enhance
the accountability of the prosecutor, which is at present nil for the State Public
Prosecutors in India.
In adversarial system of trial in the court, prosecutor represents the public interest
of State in punishing the offenders and indirectly vindicates the cause of the victim. The
defence counsel presents the stand of the presumed innocent citizen. In a way, partisan
advocacy on both sides is an inevitably essential aspect of the system. Defence lawyer is
guided by canon of legal ethics applicable to all private lawyers. In the case of Public
There is this equivocation he holds a public responsibility that imposes limits upon his
revenge, but seeks only to protect the community. There should not be any unseemly
68
the State to take up prosecutions is that no private person uses the legal apparatus to
wreak private vengeance on anyone. Therefore the prosecutor has the duty to allow his
witness to tell unvarnished tale of his own account. Prosecutor shall not frame his
questions in such a manner that the witness will give the evidence which only the
prosecutor wishes to elicit 82. However, through his witnesses he should bring out all
necessary facts to the record of the court. Prosecutor should also bring on record facts
completely even if some of the facts are favourable for the accused83.
While the Public Prosecutor is entitled to examine the witnesses in the seriatim he
likes, his methodology should be fair. He should not keep away the main witness till end
parts of the trial with a view a fill up the gaps left by the rest of the witnesses84. The
ultimate limit of his fairness can be seen in this way. If the prosecutor genuinely feels
that he will not be able to produce sufficient evidence, he could seek withdrawal from
prosecution85. At the same time, the Prosecutor, in an appropriate case, to prove the case
against some of the accused, could withdraw the prosecution against one of the accused
and use him as a witness against remaining accused in the interest of Justice 86. Thus
while assisting the administration of Justice in establishing the guilt of the accused, he
should use his powers fairly, without oppression and shall strive to protect the rights of
all the parties including the accused. Prosecutor must also to remember that his failings
81
Sri Sairam Sanath Kumar, Dr.V.Krishna Ananth, the prosecutional system in our Criminal Justice
Administration A close look, NULSAR Law Journal 2008, Vol. II, p.14, quoting 14th Report of Law
Commission, 1958.
82
Varkey Joseph v. State of Kerala, AIR 1993 SC 1892.
83
Badri v. State of Rajasthan, AIR.1976 SC 560.
84
Motilal v. King, AIR 1949 Cal 586.
85
Bansilal v. Chandan Lal, AIR 1976 SC 370.
86
Inre kandaswamy Gounder, AIR 1957 Mad 727.
69
at trial would lead to denial of Justice to the victim citizen who on his own cannot
approach the court when a case is handled by the prosecutor87. Therefore, he must be
ever vigilant in performing his functions. The prosecutor has a responsibility not to allow
the court to place reliance unwittingly upon a statement of witness which is untrue88.
Statements of Prosecutor
The Public Prosecutor in India can make certain significant statements in the court
about the case, about the witness, about the evidence given by a witness.
While opening the case on his side, if the prosecutor knew that some of the
witnesses cited on his side might not support the prosecution case, he is at liberty to make
a statement before the court about the fact. He can omit to examine them on his side.
The underlying principle for this power is that the prosecutor is expected to produce
evidence in support of the prosecution and not in derogation of the prosecution case 89.
Once prosecutor skips a witness for his side, the accused is entitled to examine that
Prosecutor can also make a statement in the court and skip to examine some of the
witnesses cited on his side with a view to avoid repetitive evidence on certain facts and
thereby save costs in calling the witness and save time of his own and that of the court,
prosecutor finds his testimony running contrary to his theory he could either question his
87
State of Gujuarat v. Yogendra Kumar b. Setalvad, 1993 (2) CCR 1046.
88
Emperor v. Naga Lu Thaung, AIR 1935 Rangoon 370.
89
Banti @ Guddu v. State of Madhya Pradesh, 2004 (1) ALD (Crl) 94 (SC).
90
Hukam Sing v. State of Rajasthan, 2000 (2) ALT (Crl) 203 (SC).
70
own witness by way of questions in the nature of cross examination after seeking
permission of the court as provided in Section 154 of the Indian Evidence Act, 1872 or
he can make a statement to the court at the end of the trial that he is not inclined to own
the evidence of that witness in spite of the fact that the said witness was examined on his
side. These powers are vested to overcome the evidence of certain witnesses who speak
These judgements are not known to have had much practical effect. It is very rare
that an Indian prosecutor makes any such statements to court. The number of hostile
witnesses whose evidence is recorded by courts everyday stands testimony to the little
use of the above principles by the Indian prosecutor. Prosecutors failure in this regard
can be viewed as an indicator to their total apathy to act honestly and courageously
before courts and their disregard to the costs involved in examining witnesses who would
not support prosecution case to the full knowledge of the prosecutor. However, the above
rulings are important as they indicate a promising approach for the prosecutors.
Controls
The propositions of law would disclose the conflicting demands and they
invariably exert pressures on the prosecutors. The principles speak about powers and
duties of prosecutor and thus allow him to exercise discretion. Where discretion is to be
exercised the holder of it is prone to use, misuse, and abuse it. In the matters of
discretion, the system expects consistency and accountability. To shape or guide the
supervisions.
91
State of Bihar v. Lalu Prasad @ Lalu Prasad Yadav, AIR 2002 SC 2432.
71
Judicial Supervision
Where the closure of evidence reported by prosecutor does not appear to be in the
interest of justice, the court is empowered to disregard it and call those witnesses and
examine them92. If the prosecutor fails to produce the witnesses for one reason or other,
the court may use all coercive methods to secure the attendance of the witnesses in
court93.
Sometimes on certain relevant facts the Public Prosecutors may concede in favour
of the accused and this concession may be due to lack of thorough knowledge on facts
and without proper instructions from his client. In such cases, courts will not accede to
the concessions on facts made by the prosecutor and decide the dispute on merits to
render justice. Where the available evidence recorded by court reveals involvement of
some more accused, the prosecutor has responsibility to file application under Section
319 Cr.P.C., and request the court to summon the additional accused to stand for trial. If
the prosecutor formally files the application and does not pursue it properly and abstains
from attending the court during inquiry of such applications, the courts will not succumb
to his slackness but will act upon such applications in the interest of justice 94. Executive
and political interferences may compel the prosecutor and for illegitimate reasons or
purposes he may apply to the court for withdrawal from prosecution. The courts may
find the plea as one against the broad ends of justice and would refuse to grant consent to
92
Shailendra Kumar v. State of Bihar, 2002 (1) ALD (Crl) (SC).
93
Public prosecutor, High Court of A.P v. Marikal Venkataiah, 1997 (1) ALD (Crl) 758 (AP).
94
Halima Beebee v. State of Orissa, 2001 (2) ALT (Crl) 18 (NRC) (Orissa).
95
Balwant Singh v. State of Bihar, AIR 1977 SC 2265.
72
Administrative Supervision
The Director of Prosecutions, the Deputy Director, and Joint Director are
competent to inspect the Offices of the prosecutors and issue necessary administrative
instructions and initiate appropriate administrative actions for effective discharge of the
and the prosecutors should meet together and have a review of pending cases and launch
Legal Supervision
The victim or the complainant of a crime is the individual who is most anxious to
see that justice is done. Therefore, they naturally monitor the acts and activities of
prosecutor in conducting cases. In all cases, which had proceeded on a police report, the
party who is treated as the aggrieved party is the State, which is the custodian of the
Social interests of the community at large. Therefore, it is for the State to take all the
steps necessary for brining the person who has acted against the Social interest of the
community to the book. In such public prosecutions, the victim normally remains as a
mere witness in the case for the prosecution. However, if in the main case or in the
interlocutory proceedings the prosecutor faulters or does not vigilantly discharge his
duties, the code of criminal procedure has not provided any opportunity to the victim to
assail the prosecution indifference or indiscretion. But the courts adopted innovative
approach and granted a foothold to the victim which works as a check against the
prosecutors and prosecution. In two areas, the private party is allowed to move the
96
Order 573 Vol .II, The Andhra Pradesh Police Manual, 2002, The Director General of Police, Andhra
Pradesh, Hyderabad.
97
Order 580 Vol. II, The Andhra Pradesh Police Manual, 2002, The Director General of Police, Andhra
Pradesh, Hyderabad.
73
higher courts in revision against the lower court orders. One area is where the main case
ends in acquittal or discharge of the accused and when an appeal is provided against such
order but the State refrained from filing an appeal. The other area is where the impugned
order is passed pending trial of the case, the inaction on the part of the prosecution in
carrying the matter further before the higher forum which would result in grave
miscarriage of Justice98.
Where there are real and possible apprehensions that the Public Prosecutor in
charge of a case may not discharge his duty impartially, the relatives of the deceased
victim are permitted to seek transfer of the case to another court in another district. In a
murder case where one of the accused is a Minister in the Government and hail from
Mahabubnagar District and the Public Prosecutor in that case related to a powerful leader
of that same political party. The apprehension is that witnesses for prosecution may not
be fairly dealt with. On the ground that Justice should not only be done but also appear
to be done, that case was transferred from Mahabubnagar to Hyderabad 99. If the
A person with a legitimate expectation does not have a right, but he has an interest in an
outcome, which he can reasonably hope for, and if he is unfairly denied that outcome, he
98
V. Ranganayaki v. V.J.Srinath, 2001 (1) ALD (Crl) 473 at 479 (AP).
99
Chidipirala Narayana Reddy v. State of A.P ,2002 (2) ALD (Crl) 670 (AP).
100
M.Balakrishna Reddy v. Principal Secretary to Government, Home Department, 1999 CrlLJ 3566 (AP).
101
Norman Doe and Noel Dias, Prosecutorial discretion and pretrial process: A comparison of
standards in International law and cannon law (2004) p.16 Srilankan JIL 235 at 254.
74
Thus it is seen that enough safeguards are available in the system as against the
Equality of Arms
Right from the time of arrest decision taken against the accused, the prosecution
owes a duty to inform the accused about the allegations levelled against him and about
the evidence available against him. On the other hand, the accused enjoys the privilege
of secrecy. Either at the time of applying for bail or at the time of hearing on charges in
the court or at the time of cross examining prosecution witnesses or when the court
explained him about the incriminating material evidence available on record under
section 313 Cr.P.C. the accused need not disclose his defence. He is entitled to spring a
surprise and produce evidence in defence. The prosecutor, the state, the court cannot
object it on the ground that the accused did not disclose his line of defence at any earlier
stages of the case. While the prosecutor has to prove the case against accused beyond all
reasonable doubt, the accused has only to prove the mere probability of truth of his
defence. Since the accused enjoys the constitutional right to silence under Article 20(3),
the prosecutor cannot question him at any stage of the case. However, the accused can
choose on his own to enter the witness box and depose as permitted by Section 315
Cr.P.C. In that event he is like any witness. Then the prosecutor can cross examine him.
The right of the accused not to depose in a court of law is such that on his failure to
depose in his own defence, the prosecutor is prohibited from making any comment on
him in this regard102. Even in those cases where the accused discloses his defence, he is
102
Proviso (b) sub Section (1) of Section 315 CrPC.
75
entitled to take even inconsistent pleas. Thus the Indian law puts the prosecutor
completely in dark concerning the defence of accused and the prosecutor can be taken by
surprise with the line of defence adopted by the accused at the fag end of the trial. The
evidence of defence on facts after being recorded by the court, the prosecutor is without
clue but he has to cross examine defence witnesses. While fair trial of a criminal case is
a fundamental rule, the fairness is expected to be afforded to the accused as well as to the
State and the society and the victim. Article 21 of the Constitution of India speaks about
procedure established by law. That procedure must be right, just and fair. If that
the defence of the accused appears at once arbitrary. It is pertinent to note that the
accused need not disclose his defence to the investigative police also. Thus police may
not have opportunity to verify the truth of the defence version before finalising their case.
In several cases, during the stage of defence evidence the accused puts forth a plea of
alibi and produces some clinching evidence. Had the prosecution been put to notice of it
in the earlier phases of the case, that aspect could have been verified and if found correct,
the case could not have come up to the stage of trial also as against that accused. On the
other hand, if it is only a false plea of alibi brought out by defence during the phase of
defence evidence, the prosecution is debarred from impeaching the credit of that witness
because of Section 153 of Indian Evidence Act, though that witness can be charged for
giving false evidence. All this boil down to the truth that in a way prosecution is not
fairly treated by the law. Thus in balancing the private interest of accused as against
public interest in the prosecution of the accused, the public interest is sacrificed without
103
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
76
justifiable reasons but arbitrarily. With the steady growth of professionalism in crime
and the increase in the number of acquittals of those guilty of crime, a plea to give the
prosecutor a chance to play fair is not unreasonable. Prohibition for prosecutor from
questioning the accused, and the privilege of the accused to keep secrecy of his line of
defence and bring a surprise at the fag end of the case appears to be excessive protections
the law offered to the accused. A country should have only such criminal law which it
can afford and put limits to the safeguards it affords to accused. Crippling the prosecution
could never be termed as fairness provided to accused. Since the public policy is to
punish the wrongdoer and set free the innocent, the prosecutor must be equipped with the
accompanying powers to realise the objectives of public policy. A theory of criminal law
must not only be normatively acceptable, it must also be relevant to the social situation.
The extent to which the law should permit the accused to exercise his right not to co-
operate with the legal system requires a fresh thinking. The Procedure meant to protect
the rights of the accused is understandable but sacrificing the defence of society is an
excessive desire to protect the freedom of accused and that is not understandable. The
common mans moral sensibilities scream at the present uncharitable shackles for the
prosecution. Sweet synthesis between the competing public and individual interest is the
After drawing largely from the English system, the Criminal Justice System in
India largely remained the same for several decades. Judicial and academic debates end
up minutely discussing the rights of accused alone. There is no much heat or light on the
prosecutors and prosecution trial principles. While the source system of British takes
large strides in making legal changes in tune with real societal demands, producing new
77
vistas of jurisprudence, the Indian legal academia is rather ostracising itself from the
views currently that are held all over the world. For instance, in the United Kingdom
there has come up Criminal Procedure and Investigations Act 1996. It replaced the pre-
existing common law rules. This new law introduced a system of defence disclosures.
On behalf of the accused, a written statement must be supplied by the defence to the
prosecution providing sufficient particulars of the defence. This is to identify the issues
in dispute at a very early stage in the criminal process. This scheme will not increase the
risk of miscarriage of justice. Clarity in issues well before the start of trial will not
prejudice the acquittal of the innocent. This method ensures the doctrine of Equality of
arms. More than four decades ago, the European Court of Human Rights upheld the
In England in 16th century, the criminal trial was relatively a spontaneous bicker
between accuser and accused. Such trials had a formless or wandering quality that
resembles ordinary discourse, a conversation of sorts, lacking the crisp division into
prosecution and defence case that we now expect. Weak prosecution case went untested
In this ancient and Holy land of India, the accused was required to pay his share
of the sum incurred in providing evidence, for his own conviction. Indian indigenous
104
X. v. FRG (No.1169/61), (1963) YB 520 at 524 as gathered from Richard and Jordans Ed. Criminal
Procedure and Investigation Act, 1996 at Pgs 6 to 11 Bristol, 1996.
105
John. H. Longbein, The origins of adversary criminal trial, Pages 258, 259 Oxford University Press,
2003.
78
system was slowly buried first by Mohammadan Jurisprudence and thereafter by British
Jurisprudence106.
social justice priority. State shall have absolute determination to create a system that
meets the needs of the society. Rebalancing the Criminal Justice System by introduction
of concept of defence disclosures would pave way for the better performance of the
Indian Public Prosecutors. It is unfortunate that the native law-makers have made law
The present principles of fair trial are lopsided and thereby they are not
analytically precise. Defence wins in legal argumentation since it need only to pick the
holes in the prosecution case and has no duty to put forth its own defence. Even the false
plea of defence cannot supplement the proof of case by prosecutor107. The prosecutor
cannot take advantage of the weakness of the defence 108. The time is ripe to conceive for
a proper method of finding facts and thereby arrive at truth in a criminal trial.
The immunities to the accused in a public trial are such that the trial judge can put
any question to the accused concerning any fact adduced by prosecutor through
prosecution witnesses but the accused can refuse to answer any such questions and his
refusal to answer does not render him liable for any punishment. Even if the accused
gives false answers unabashedly, he is immune from any punishment for perjury or any
106
B.L.Verma, Development of Indian Legal system, p.161, at preface, Deep & Deep Publication, New
Delhi, 1987.
107
Tanviber Pankaj Kumar Diretia v. State of Gujarat, 1997 (2) ALT (Crl) 411 (SC).
108
Bhagirath v. State of M.P. AIR 1976 SC 975.
79
Section.114 Illustration (h) of Indian Evidence Act has no application here. The judge
who is epitome of justice and the vigorous prosecutor of the Indian masses stand mute as
spectators for the courage of the accused adoring his unchaste and artificial rights, while
the accused giggles at the whole system. While the prosecution cannot rely on the
confession of accused made to Police, the accused is entitled to use such parts of that
confession which are favourable to him109. In this type of situation, it is not surprising
that the prosecutor may not have much to argue on the evidence he brought on record.
It appears really paradoxical that an accused has a right to deny prosecution case
and plead not guilty for the charge or he may admit the prosecution case and plead guilty.
He is competent to adopt either of the extremes but is not under a duty to disclose his
own defence. The entire exercise of plea bargaining will be unsuccessful until the
defence disclosure is made mandatory. At present, the defence disclosures made during
plea Bargaining cannot be used in trial if plea Bargain failed110. The doctrine of
The accused is protected in his defence by virtue of the fact that he is defended by
his lawyer appointed by him or engaged by the court under the Legal Aid Scheme. In
that context, it was found in England that when the accused refused to answer during
investigation and if he is permitted to put forth his explanation or defence to the charge in
the trial, the state had lost the opportunity to check its truth because of late disclosure. In
such cases, to keep the balance of fairness between prosecution and defence, the
109
Inre Rayappa Asari 1972 CrlLJ 1226 .
110
Sec.265-K CrPC.
111
In Alladice (1988) 87 Cr.APPR 380 drawn from Mr. Justice Sridhar, Karnataka High court, Criminal
Justice system Required Reforms, 43 JILI (2001) 155.
80
To sum up, it is during the trial phase the Public Prosecutor has the important task
of establishing truth beyond reasonable doubt. For quick progress of prosecution case
there shall be effective co-ordination between the police and the prosecutor. Various
hurdles are detected thwarting speedy trial. The purity of justice is spoiled by hostile
witnesses. The quality of justice is spoiled by under prepared witnesses. Absence of any
office and any legal assistants for the prosecutor are found to be the causes for his failure
to interact with the witnesses and that resulted in improper evidence of the witnesses.
There is no equality of arms between the defence and the prosecutor. For effective and
efficient functioning of prosecutor, law shall bring changes making it obligatory for the
defence to indicate its line of defence at the first hearing and as a counter measure for
absenteeism of the accused law shall provide for ex-parte criminal trials. These legal
measures would enable the Public Prosecutor to bring quality in prosecutions and make
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