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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

defence that the trial proceeds from day to day 49.

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.

Concrete remedies are suggested for these maladies.

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

are expedited in the court51.

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

court appearance activities.

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

Besides it, many courts are incapable of employing fundamental management

improvement techniques leading to efficient case processing. Joan E. Jacoby rightly

analysed the reasons for failure to improve management techniques The formal

organisational structure is more properly classified as professional than bureaucratic. Its

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

incapable of employing fundamental management improvement techniques leading to

efficient case processing. The limits to which the courts can absorb the basic features of

a bureaucratic model while retaining a collegial relationship is clearly at issue, affecting

not only internal but also systemic efficiency52.

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

capable of counteracting the debilitating effects of delay.

Coming to the prosecutor, he is a public servant and is not subordinate to or under

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

witnesses in court does not amount to production of evidence. Witnesses had to be

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

prosecution agency to produce evidence though no one appeared on behalf of the

prosecution for producing witnesses53.

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

judgement on the absentee accused.

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

accused has a constitutionally guaranteed Fundamental Right to be defended by a lawyer

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

position to pay to a new counsel and secure his services.

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

professional from the supervisory administrative jurisdiction of the court or the

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

place or to another district. Sometimes, on promotion, he is transferred to a place which

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

is again to be predicated on the above same parameters of transfers. It is impractical to

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

fetching no corresponding benefit to the system. Besides this, it is common knowledge

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

transfer or that he is inefficient in the investigation of crimes or in maintaining law and

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

east every day.

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

without court buildings; Emergency arrangements are made partitioning an already

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

other measures calculated to ensure speedy trial.

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

appointment of a prosecutor is a compelling constitutional necessity, obligatory under the

code of criminal procedure also. The State is, therefore, wrong if it ever assumed that

there is no administrative necessity to make appointment of prosecutors. Financial

constraints cannot absolve the State of its constitutional obligation. If functioning of

criminal court is a necessity, the post of a prosecutor to conduct the prosecution is an

absolute necessity. Just as abolition of all courts due to financial constrains cannot even

be visualised, so also, the non-appointment of a prosecutor to conduct cases in criminal

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-

appointment of prosecutors. The State is bound to make appointments to the existing

vacancies without delay.

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-

the myth and the truth mock at each other.

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

years in a court and gets transferred.

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

judge to work quick and well in attaining the triumph of Justice.

PartII
Outlines of Trial

Normal composition of a criminal court is that it is presided over by a Judicial

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
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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

respect of serious types of offences. Less elaborate procedure is provided in respect of

offences of lesser gravity and complexity. For petty criminal cases further more abridged

procedure is provided. This classification of trials is to see equitable distribution of time

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

witnesses. The mode of trial is essentially adversarial. Court is a neutral arbiter in

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

adverse inference. Prosecutor is an independent authority. During trial phase, he holds

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

witness box in defence of his case.

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

characterised by an adversarial zeal, but rather as those of a neutral decision-maker68. In

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

the files can withstand scrutiny of the court69.

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

resulted in disuse of fine principle of opening speech. As a consequence of this lapse

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

accused in doubt. He is not in a position to take an informed decision to plead guilty or

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

evidence, eating up public time ad clogging up court cases.

Reading out the Charge

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

not object for that.

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

every case should be the public interest 70.

Presumption of Innocence & Burden of Proof

Law governs the mundane affairs of its citizens. Law assumes that its commands

are followed by everyone. Therefore, the conduct of every person is presumed to be in

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

the system. Those two cardinal principles are:

1) Every person accused of an offence is presumed to be innocent till his guilt is

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,

investigating it and launching prosecution only.

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

not to its serving constituents.

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

by adducing admissible and relevant evidence and by nothing else.

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

corresponding power on prosecutor to call the witnesses. He is solely dependent on

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

law. Definite compliance of prosecutorwitness interaction could be seen from Public


63

Prosecutors dealing with anti corruption cases and cases filed by the Central Bureau of

Investigation. Therefore, there is marked improvement in the quality of evidence in those

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

summoning witnesses on its own74.

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

the quality of the prosecution evidence. This unsophisticated method brings up no

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.

That is certainly incorrect.

It is beyond pale of any doubt that the essential feature of criminal justice system

is adversarial in nature in India. The presentation of evidence is by the parties through

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

or to change the nature of the case against either of the parties.

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

stretched too far.

The resultant position of the discussion is clear. It is for the prosecution to

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

of the prosecution to produce its witnesses and evidence.

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

machinery to fetch the witnesses. He is solely dependent on regular police. Prosecutor

attends the court every day but in his presence, in several cases, prosecution evidence is

closed by the Magistrates because of non-production of witnesses despite availing too

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

Prosecutor, he being a public servant, he is governed by rules of conduct of his service.

There is this equivocation he holds a public responsibility that imposes limits upon his

partisanship. In undertaking the prosecution, the State is not actuated by motive of

revenge, but seeks only to protect the community. There should not be any unseemly
68

eagerness for grasping a conviction81. The rationale behind imposing an obligation on

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

witness on his side, if he so wishes90.

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,

and expedite the case.

Sometimes after recording the evidence of a witness for prosecution, if the

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

one thing at the beginning and another at the end 91.

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

discretionary decisions of prosecutors, system provides judicial, administrative, legal

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

the withdrawal plea of the prosecutor95.

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

duties by the prosecutor96. The Superintendent of Police, Deputy Director of Prosecution

and the prosecutors should meet together and have a review of pending cases and launch

effective strategies in disposal of cases97.

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

prosecutor withdraws from prosecution third party can question it 100.

The underlying philosophy behind these rulings can be better described by

borrowing the statements of Srilankan scholar speaking about prosecutorial discretions

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

may have grounds for redress101.

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

irrelevant or indolent or prejudicial prosecutorial actions during trial. Subsequent to the

completion of prosecution evidence the phase of defence evidence comes.

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

procedure is arbitrary, fanciful or oppressive, it is violation of the Constitution103.

Prosecutor conducting prosecution against accused without having liberty to understand

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

need of the day.

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

doctrine of Equality of arms as a basic right to a fair trial104.

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

and failure to offer alibi evidence was treated as decisive 105.

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.

Crime impacts hardest on the poorest members of our society. Reducing it is a

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

that treats substantively correct out comes as relatively unimportant.

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

other offence as per Section.313(3) of Cr.P.C. The rule of adverse presumption in

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.
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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

estoppels has not been given a place in the criminal trials.

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

prosecutor is permitted to make adverse comment on the defence111.

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.
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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

him accountable to comply with speedy trial norms.

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