In September 2021, a division bench of the Kerala High Court was hearing an appeal against the conviction of a man who had allegedly murdered a taxi driver and robbed him of his vehicle. The court found that the prosecution had failed to establish even the existence of the vehicle. In another case, the prosecutor failed to prove that the girl child who had been raped for a year by a temple priest was a minor, which made the court acquit the man of charges under the Protection of Children from Sexual Offences Act, 2012 while sentencing him to life imprisonment under Section 376(1) of the Indian Penal Code.
Alarmed by the inability of the prosecutors to prove foundational evidence in criminal trials, the Kerala High Court registered a suo moto case to monitor the measures taken by the state government in appointing able and competent prosecutors in trial courts across Kerala.
This is not the first instance of prosecutorial incompetence to come under a court’s scanner. In a bid to avoid such lapses, the Supreme Court had in 2014 directed home department of every state government to conduct training programmes for prosecutors. Most states do follow this guideline, but acquittals due to prosecution’s failure of submitting relevant evidence continue to be a recurring theme in trial and appellate court judgments.
To address this issue, employing measures to appoint competent prosecutors and training them alone may not be enough. A prosecutor’s ability to take a case to its logical end is severely compromised as they play virtually no role at the pre-trial stage. Consequently, even a competent prosecutor is often not informed enough to conduct an effective prosecution.
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Prosecutors must play a prominent role at pre-trial stage
Pre-trial stage refers to the period before an accused is formally charged with an offence. This involves collecting evidence, recording witness statements and deciding whether the accused should be charged at the end of the investigation. The police conduct the entire investigation and present it in the form of a charge sheet before the magistrate. This chargesheet also includes the police’s decision on whether the accused should be prosecuted. The decision on sending the case for trial, however, rests with the magistrate. In this specified pre-trial procedure, the law contemplates no role for the prosecutor. Although a prosecutor does appear for the State in court at the pre-trial stage, in practice, they merely reiterate the police’s stance and do not independently examine the case.
Since the decision to prosecute rests solely with the police, a prosecutor has to proceed with the prosecution even if they believe the evidence collected by the police is not sufficient. This leads to a wastage of judicial time and resources as the court is often forced to try cases with insufficient investigation or fatal procedural lapses. To avoid this, prosecutors must at least play an advisory role during the investigation and guide the police in collecting relevant and important evidence. It is the prosecutor who has to conduct the prosecution and therefore they must have a say in gathering the material that will eventually be used in court. For example, a prosecutor may give timely advice on collecting sufficient evidence in a POCSO case to prove if the child is minor during the investigation itself so that this foundational aspect does not become a hindrance later on in the trial.
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Better coordination between investigators and prosecutors
Communication between the police and prosecutors is vital in ensuring efficient prosecution. Lack of coordination during investigation has been cited as a reason for procedural lapses and failure to collect relevant evidence. This, in turn, directly affects the quality of prosecution. To add to that, prosecutors in India are categorised on the basis of the court in which they conduct prosecution. A prosecutor is attached to a court and not to a case. This poses a significant challenge to achieving effective communication between police and prosecutors.
For example, once an accused is arrested for murder, they are presented before the magistrate to determine the issue of custody. The magistrate continues to monitor the case until the investigation is over. At this stage, the prosecution is represented by the assistant public prosecutor who practices in magisterial courts. Once the investigation is over and the magistrate forms an opinion that there is sufficient evidence to proceed with, the case is sent to the sessions court for trial. At this stage, the trial is conducted by the additional public prosecutor who practices in the sessions court. If an appeal is filed, the prosecution is conducted by a prosecutor appointed to represent the State in the high court.
Hence, when the investigation is underway, the prosecution is represented by a counsel who does not eventually conduct the trial in court. On the other hand, the prosecutor who does conduct the trial and has to prove the case against the accused by tendering sufficient evidence, plays no role when such evidence is collected during the investigation.
It is therefore necessary that prosecutors are kept in loop during the investigation and a channel is kept in place for effective interaction between the police and the prosecutors (both at the magisterial as well as the sessions courts). Reciprocally, the police should also play an active role during the trial in briefing the prosecutor about various aspects of the case.
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The way forward
The debate concerning prosecutors has largely revolved around separating the institution of the police and prosecutors. This jurisprudence was developed to ensure that the police does not have an undue influence on prosecution of cases and that the two institutions are not pigeon holed so as to adversely affect the course of justice. The time has now come to push the conversation forward towards a collaborative functioning and ensure that the criminal justice system not only has a competent but also a more involved prosecutor.
The author is a research fellow at Vidhi Centre for Legal Policy. He tweets @Thejigarparmar. Views are personal.
This is the third of a four-part series of opinion pieces on building a ‘Judiciary for the 21st Century’ with the Vidhi Centre for Legal Policy, ThePrint’s knowledge partner. Read the series here.
(Edited by Prashant)