The Author, Jamshed Ansari is Assistant Public Prosecutor, GNCT of Delhi, presently posted at Police Training College, Jharoda Kalan, New Delhi.
Introduction:
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 position of Prosecutor is of trust. He is part of the criminal justice system and an independent officer of the Court. The Prosecutor is at all times a minister of justice, though seldom so described. His function is to assist the Court in arriving at the truth.
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[1] to the following effect:
"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."
The Delhi Prosecutors are given tasks of scrutiny of challans of Delhi Police. After in depth examination of the charge-sheets, the prosecuting officer concerned raises points of objections for consideration by the Investigating Officer and, if necessary, he directs the IO to investigate further in the matter. After compliance of objections raised by the prosecutors, charge-sheets/challans are filed in the Court for trial.
It is not in the scheme of the Code of Criminal Procedure, 1973 for supporting or sponsoring any joint operation between the Investigating Officer and the Public Prosecutor for filing the report in the Court. Hence, the practice of scrutiny of challans by the Prosecutors is contrary to the scheme of the Code and is also against the mandate of Articles 14 and 21 of the Constitution of India and the law laid down by Hon’ble Supreme Court of India in several judgments particularly in R. Sarala v. T.S. Velu and Ors.[2] and M.C. Mehta v. Union of India and Ors.[3]
Recently, as per directions of MHA/GOI, the Delhi Police vide order dated 23.04.2020 has decided to set up a separate Directorate of Prosecution for Delhi Police which will render legal assistance to the Investigating Officers during investigation of important criminal cases in Delhi. This is a welcome step towards shifting of work of scrutiny of challans from Prosecution Branch to legal cell of Delhi Police.
In pre-1973 era:
Prosecutors were a part and parcel of the police department. Prosecutors were responsible to the District Superintendent of Police. They scrutinized police papers and advised the police on legal issues before filing them in court. The prosecutors used to keep a close watch on the proceedings of a case, inform the jurisdictional police to produce the witnesses on the day of the trial, refresh the memory of witnesses with reference to their police statements and examine them at length.
In the year 1974:
On coming into force of the Code of Criminal Procedure, 1973, the prosecution machinery was brought under separate department and detached from the police control. Under the present scheme of the Cr.P.C., 1973, the prosecution machinery has been completely separated from the investigating machinery and the prosecuting officers are supposed to be independent from the police.
In 1996: Law Commission of India 154th Report on Cr.P.C., 1973
The Commission noted that very often there arise complicated cases which require legal assistance even during the stage of the investigation. But the public prosecutor has, however, neither the power to interfere in the investigation nor can he call for the police papers and scrutinise them or otherwise examine the available evidence before a report is actually filed. This is anomalous because though he is responsible for the conduct of the prosecution in Court, he has no opportunity of controlling or shaping the material on which the case is to be founded and presented before the Court. The Law Commission, after making an in- depth study about the prosecuting system made several suggestions. One firm suggestion was that “the prosecuting agency should be completely separated from the police department… In order to ensure that he is not regarded as part of the police department, he should be an independent official.
R. Sarala v. T.S. Velu: AIR 2000 SC 1731:
As held by the Hon’ble Supreme Court, “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 charge-sheet in tune with the 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. It is not in the scheme of the Code for supporting or sponsoring any combined operation between the investigating officer and the Public Prosecutor for filing the report in the court.”
In 2006: Law Commission of India 197th Report on Public Prosecutor’s Appointments:
The Commission noted that the Public Prosecutor should not be involved in the investigation process. 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.
M.C. Mehta v. Union of India AIR 2007 SC 1087 (Taj Corridor Scam Case):
The principles of law laid down in R. Sarala case (supra) stands approved by Hon’ble Supreme Court in its later pronouncement reported as M.C. Mehta Vs Union of India[4] (Taj Corridor Scam Case) and directed that the formation of the opinion, whether or not there is a case to place the accused on trial, should be that of the officer in charge of the police station and none else. There is no stage during which the investigating officer is legally obliged to take the opinion of a Public Prosecutor or any authority, except the superior police officer in the rank as envisaged in Section 36 of the Code. In this Case also the Hon’ble Supreme Court deprecated the practice of taking opinion from prosecutors.
State of Gujrat v. Kishanbhai etc. (2014) 5 SCC 108
The Division Bench of the Hon’ble Supreme Court directed that on the completion of the investigation in a criminal case, the prosecuting agency should apply its independent mind, and require all shortcomings to be rectified, if necessary, by requiring further investigation. It should also be ensured, that the evidence gathered during investigation is truly and faithfully utilized by confirming that all relevant witnesses and materials for proving the charges are conscientiously presented during the trial of a case.
Whether direction given in Kishanbhai case is per incuriam:
At this juncture we may examine as to in what circumstances a decision can be considered to have been rendered per incuriam. In Halsburry's Laws of England (4th Edition) Vol. 26:
“A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction while covered the case before it, in which case it must decide which case to follow or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force...”
The Hon’ble Supreme in the matter of Union of India v. Raghubir Singh[5], held that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges., and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. Judicial discipline demands that a decision of the Division Bench of this Court should be followed by another Bench of two Judges.
Lord Godard, C.J. in Huddersfield Police Authority v Watson[6] observed that where a case or statute had not been brought to the Court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam.
It is pertinent to note that the pronouncement given by Hon’ble Supreme Court in R. Sarala case which was, later on, approved in Taj Corridor Case. Both these cases were decided by the Division Bench of Supreme Court. As far as directions given by the Hon’ble Supreme Court in Kishanbhai case is concerned, this case was also decided by the Division Bench of the Hon’ble Supreme Court but after the decisions of R. Sarla case and Taj Corridor case, hence, is per incuriam, sub silentio and not laying down law correctly.
Forwarding of charge-sheets/challans to the Prosecution Branch for scrutiny:
As per the Standing Order No. 259 issued by the Commissioner of Police on 06.10.1978 r/w Standing Order no. 344 of 2008, after the completion of investigation in criminal cases, all challans are forwarded by the ACP to the Prosecution Branch for scrutiny along with the certificate of SHO that he has himself checked the investigation and there are no defects. The said charge-sheets are marked to the prosecuting officers of concerned police station for the scrutiny. After in depth examination of the charge-sheets, the prosecuting officer concerned raises points of objections for consideration by the Investigating Officer and, if necessary, he directs the IO to investigate further in the matter.
As per the order of Home Department (GNCT of Delhi) dated 30.12.1997, all the challans to be forwarded to the Prosecution Branch for scrutiny should be done so well in time and definitely at least 15 days before lapse of the period provided by section 167 of Cr.P.C. No challan should be received for scrutiny by the Prosecution Branch if it is brought later than the 15 days time period unless the challan is forwarded by the DCP of the area. It shall be the responsibility of the Chief Prosecutor to ensure that no challan is received from the police station after the above-mentioned time period.
The scrutiny of challan by the Prosecution Branch shall in all circumstances be completed within 10 days of the receipt of the challan in the Branch. After compliance of the objections raised by the Prosecution Branch, the charge-sheets/challans are filed in the Courts for trial. This way the prosecutors are involved in the investigation process.
Representations moved by Delhi Prosecutors’ Welfare Association (DPWA) against the practice of challan scrutiny by Prosecutors:
A representation dated 07.10.2014 was moved by Delhi Prosecutors’ Welfare Association (DPWA) under the Presidentship of Sh. Gaurav Singh, Addl. P.P. to the Delhi Government for shifting the work of Challan checking/Scrutiny of Police Challans from Prosecuting Officers to Legal Cell of Delhi Police as the scrutiny of challan is not the work of the Prosecutors and that the main work of Prosecutors to conduct prosecution in the Courts suffers due to the extra work of challan checking.
On 15.01.2015, another representation was sent to the Hon’ble Lieutenant Governor (GNCT of Delhi) for withdrawal of work of scrutiny of Police Charge-sheets (challans) from Prosecution Branch failing which the DPWA would be constrained to file petition before Delhi Court for the same.
Stand of Home Department (GNCT of Delhi) on scrutiny of Chargesheets by Prosecutors:
In the year 2012, on a proposal regarding appointment of legal advisors for Delhi Police and withdrawal of work of scrutiny of chargesheets from Prosecution Branch, the Hon’ble Lieutenant Governor was pleased to agree that Delhi Police should have its separate legal cell of its own for the scrutiny of challans/charge-sheets and in the interim, the Delhi Police may appoint District-wise legal advisors on contractual basis and that till such time, the APPs/Addl. PPs attached with the police stations should undertake the scrutiny of challans/charge-sheets.
The Addl. Secretary (Home) has filed an affidavit in the year 2013 in Delhi High Court in WP (Crl.) no. 1549 of 2009 that work relating to challan checking will gradually be shifted from prosecuting officers to the legal cell of Delhi Police.
Stand of Delhi Police on scrutiny of Chargesheets by Prosecutors:
The Commissioner of Police vide his letter dated 14.09.2012 to the Hon’ble Lt. Governor requested that to ensure all aspects of the investigations meet judicial scrutiny, expert legal opinion and legal advice from the very beginning, it is advisable to have Legal Advisors who can render expert legal opinion on enquiries, vetting of legal proposals and case investigations.
The decision of the Hon’ble Lt. Governor for a separate legal cell of Delhi Police was conveyed to the Commissioner of Police vide Home Department letter dated 21.11.2012 and requested to send a consolidated proposal for the same.
In order to improve the quality of investigation and to secure optimum number of convictions, the Delhi Police vide letter dated 19.02.2015 have sent a proposal for creation of 56 posts of Deputy Legal Advisors (54 for each Sub-Division, 1 for Crime Unit and 1 for Special Branch) and 181 posts of Asstt. Legal Advisors for all Police Stations. The proposal is under examination of Home Department.
As per directions of MHA/GOI, the Delhi Police vide order dated 23.04.2020 has decided to set up a separate Directorate of Prosecution for Delhi Police which will function under the supervision of Special Commissioner of Police- Legal Cell under the direction of Commissioner of Police, Delhi. The directorate will render legal assistance to the Investigating Officers during investigation of important criminal cases in Delhi. In addition to this, one more proposal regarding empanelment of 20 advocates for legal assistance to IOs was prepared and got approved by CP/Delhi for which selection process is to be initiated. However, due to prevailing Covid-19 outbreak and in the interim arrangement, 18 advocates have been selected who will render legal advice to Investigating Officers during investigation of criminal cases.
The nomenclature used by Delhi Police i.e. “Directorate of Prosecution of Delhi Police” would be confusing with the already established department i.e. “Directorate of Prosecution of GNCT of Delhi”. Delhi Police should replace this name with some other name to maintain the rule of law.
Conclusion:
In the scheme of law as provided under Cr.P.C. at no stage the prosecution is authorized or required to scrutinize the material before the same is put before the Court. There is no dispute that the Investigating Officer can of his own initiative seek legal advice from any source including the prosecution department. However, the same should be before formation of opinion by the in-charge of the police station and not thereafter. The combined operation between the investigating officer and the Public Prosecutor is not permissible under the law. Moreover, the fair investigation in criminal cases is the backbone of criminal justice in any society. The right to fair investigation is a fundamental right of an accused under Article 20 & 21 of the Constitution of India as declared by Hon’ble Supreme Court in Babubhai v. State of Gujarat[7]. Thus, the practice of scrutiny of challans by Prosecutors is illegal and against the scheme of the Code of Criminal Procedure, 1973 as declared by the Hon’ble Supreme Court in R. Sarala and M.C. Mehta cases (supra). Therefore, work relating to challan checking should immediately be shifted from prosecuting officers to the legal cell of Delhi Police.
References:
[1] 1984 Cr LJ 499 (Ker H.C.)
