Guest Post: Structure and Functioning of Prosecutors

(I am delighted to present what will hopefully be a series of posts by Mr. Divyang Thakur. Mr. Thakur has been working as a Public Prosecutor for three years in Delhi, and was practising law across trial courts in Delhi before that. The views expressed here are entirely personal.)

Previously, I introduced you to the role of prosecutors in the Indian criminal justice system. This post takes the conversation forward, and it offers my take on the structure of Prosecution Departments and the reality of a prosecutor’s everyday work in the trial court. Please note that I can only speak from the vantage point of my experience working in the National Capital Territory of Delhi, and it may well be that some of what I say is inapplicable for other parts of the country. 

The Department of Prosecutions 

The structure of prosecution departments underwent dramatic change with amendments in 2005 to the Criminal Procedure Code 1973 (Cr.P.C.). As a result of these changes, each State has today a hierarchy of lawyers which broadly goes like this: 

Director of Prosecution → Chief Prosecutor → Public Prosecutor / Additional Public Prosecutor / Assistant Public Prosecutor. 

However, unlike, say, a law firm or a corporation, this hierarchy exists mostly for administrative purposes. Thus, a Chief Prosecutor cannot direct an Assistant Public Prosecutor to prosecute a case in any particular manner. For instance, he cannot direct the Assistant Public Prosecutor to file an application for leading additional witnesses (Section 311 Cr.P.C.). In this hierarchy, only Public Prosecutors need to be trained and licensed lawyers, and it is not uncommon for State Governments to appoint non-lawyers to senior posts in the Prosecution Department. 

My experience is of someone who has worked at the lowest level of this latter, and these officers are the ones going to court. The main work in trial courts is conducted by Assistant Public Prosecutors (APP) and Public Prosecutors (PP). The only difference between them is that while an APP prosecutes cases in the Courts of Metropolitan Magistrates (for the sake of convenience any reference to the Metropolitan Magistrate includes Judicial Magistrate First Class), a PP prosecutes cases in the Court of Sessions — the latter court takes up more serious crimes only, while the former is the court where all kinds of cases take place. But while a PP can appear and prosecute cases in the Court of the Metropolitan Magistrate, the APP cannot appear before a Court of Session, not even as a substitute. Note, though, that not all prosecutors are given the charge of a specific Court; many are appointed to give legal advice on a variety of issues and do not appear in court at all. 

Before moving on, a mention must be made of the “Naib Court”. This name is used for an official, generally a Constable rank Police Officer, who works as a Subordinate to assist prosecutors in Court. Assistance here means everything that a junior advocate might be expected to do for his senior – handing him the files, briefing him on the witnesses etc. 

The Setting in which Prosecutors Work 

Lack of adequate physical infrastructure has been a problem that has plagued the work of prosecutors for decades. Today, even in the NCT of Delhi, some prosecutors are working without the following essentials: (1) A proper workspace (called a “chamber” in legal parlance); (2) A library, let alone a well-stocked one; (3) Stationery. 

Thankfully, in recent years due to the intervention of the Hon’ble Delhi High Court, several welcome steps have been taken in the right direction within the NCT of Delhi, and hopefully, these problems will soon go the way of the dinosaur. Even as I write this, steps are being taken to provide a decent sitting and working space as well as a decently stocked library. I, for one, can say that proper research tools, case law databases, laptop and internet are being provided to prosecutors free of cost. However, it is my understanding that Delhi is the exception instead of being the norm in this regard. 

We keep hearing about states failing to hire judges to deal with cases, but surprisingly little mention is made of the poor facilities for prosecutors, as if they are irrelevant to this conversation. Such notions are incorrect and extremely unfortunate, because in our system of justice we need prosecutors to prove a case, and by not providing them the basic tools is equal to an expectation that they can do so with one hand tied behind their back. The next time you read about low conviction rates or about the poor quality of prosecution work in India, do take a moment to think about this. 

The Prosecutor’s Work in a Trial Court 

In my previous post, I had argued that a prosecutor is not a “Sarkaari Vakil” in the actual sense of the word, because he is an officer of the court and not sworn to defend the government’s interests. That goes to how the prosecutor must discharge his duties. But what are these duties? These are, mostly, similar to the kinds of duties any lawyer would have towards a client in a civil or criminal case. 

A reasonably reliable guide to identifying the different tasks of a prosecutor is looking at the daily list of business for a court, which we call a “Cause-List”. The Cause-List for a Metropolitan Magistrate’s Court will have at least around thirty items on any day, which are divided into different heads. A prosecutor will be involved in all of the cases filed by the State, which is roughly around 90% of the List. Now, this Cause-List is only reflective of work to be done in the pre-lunch session of the day. In most courts, a second Cause-List is prepared for the work to be done post-lunch, which also requires prosecutors as it involves things such as bail hearings and applications for release of property. 

So, on a single day, what all does a prosecutor need to take care of? 

• Miscellaneous Appearance: This involves cases that do not fit into any of the other headings. Usually, cases that are at the stage of cognizance, or have been listed for any compliance with procedural requirements are posted here. 
• Bail: Cases deciding whether or not a person, arrested and currently in custody, should be released. 
• Charge: Cases deciding whether a case should proceed to a trial and recording of evidence or not. 
• Prosecution Evidence / Defence Evidence: Recording of evidence in a trial. 
• Final Arguments: The stage after all evidence is recorded, where parties convince a court to give a verdict in their favour. 
• Judgment and Sentencing: The verdict of acquittal or conviction. If a person is convicted, then a separate hearing takes place to decide the appropriate punishment 
• Work After Lunch: Senior Prosecutors often joke that this is when the real work of a prosecutor begins. After lunch, prosecutors start scrutinising the chargesheets that the police are proposing to file and holding discussions with the concerned Investigating Police Officer. Other than that, the Prosecutor has to prepare reports of the cases in which the accused has been acquitted / convicted / discharged, or cognizance has been declined and make the decision of whether to appeal or not, and prepare the necessary memorandum of appeals / revision etc. 

Unfortunately, beyond the difficulties posed by inadequate physical infrastructure, human error etc., the context in which prosecutors operate also makes it very difficult for them to discharge their duties. Why? Out of the many different tasks identified above, around 80% of the prosecutors’ time is invested in recording of evidence (see also, this). Naturally, this results in a lack of time to discharge other duties and affects the quality of the work done. But what makes things worse is the inefficiency surrounding the process of recording evidence, which means that even though prosecutors invest 80% of their time towards this, the output is far from satisfactory. To understand why, let us spend some time understanding the process of recording evidence in Indian criminal courts. 

During investigation, the police records statements of persons to prove different facts. Several years later, these persons are summoned as witnesses at trial. On an average day, in any Court, around 15-20 witnesses will be summoned for different cases. Many are lay persons and have probably never entered a courtroom before and are in unfamiliar surroundings. Since prior interaction with witnesses is not permitted in our system, it means that these persons remain disconnected from the case for years and suddenly, one day, are served with a summons to appear. They come to court, apprehensive and suspicious of their surroundings, no longer vividly remembering what happened and what they had said earlier. A harried Naib Court shows them what the police had earlier recorded as being their statement, often in an indecipherable Hindi scrawl, and commands them to be prepared with their statement. 

Then comes the actual recording of evidence, which is not done in the Legal Drama style (be it Indian or Western). The Cr.P.C. requires that the Judge records evidence, which makes for a system where lawyers ask questions, witnesses reply, and then the Judge dictates this exchange for the stenographer to record (either as a narrative or in the style of a Q&A). Now, having seen the Cause-List, we know that judges and prosecutors have a lot of other work to do, and they must do it quickly because of the countless edicts to conduct Speedy Trials. This means that evidence is recorded at the same time as other tasks are happening, with the court managing other tasks while prosecutors take charge of the evidence recording. Thus, witnesses are placed in the hands of the same officials they are suspicious of, which makes for a real ham-fisted setting. As a result, even though 80% of a prosecutor’s time goes into recording evidence, the quality of output is much below-par. 

Besides affecting the quality of evidence, this balancing-act where courts end up recording evidence while doing other work also affects the effort that prosecutors can invest in the other work being done in court. Concerned with recording evidence and freeing the witness, which is a reasonable goal, the prosecutor cannot engage with the arguments of an accused to make an effective rebuttal and assist the court. The fact that our system places an irrational amount of importance on oral arguments as opposed to written briefs worsens this problem. 

All this brings us to our present reality, in which prosecutors end up shouldering much of the burden to process cases, but thoughts about their welfare are still seemingly irrelevant to conversations about improving the health of our criminal justice system.

Conclusion and Next Post 

In this post, I have raised many issues that prosecutors face in trial courts and how the context in which they operate affects the discharge of their duties. Flowing from this, the next post will be dedicated to address one issue which I think lies at the heart of many others, and can make or break the criminal justice system of this country and by implication our Constitution: Who should decide whether to prosecute or not prosecute a case? 

We know that the police decides to file the chargesheet. But in the next post, I will argue that it is the prosecution department which must be entrusted with this task and have the last word in filing the chargesheet. I will further argue that in fact it is essential that the prosecutor is involved in the investigation prior to the final preparation of the chargesheet, and propose that it is high time that our country decided on standards to be met before deciding to arraign a person as an accused. The recent experience in Prashant Kanojia’s case reflects the seriousness of the problem facing us. If a person can be arrested and remanded to custody in such a manner, then something fundamentally broken, and we must fix it.

(PS: I would like to thank Abhinav for his edits and inputs on this post)

Protest Petitions in Criminal Trial

The Criminal Procedure Code 1973 [Cr.P.C.] was amended in 2009 to introduce certain statutory rights for victims of crime. This included the introduction of a Victim's Compensation Scheme [Section 357-A Cr.P.C.] and conferring a right upon victims to appeal against judgments [By way of inserting a Proviso to Section 372 Cr.P.C.]. During my first few months of practising, though, I found that the judiciary had played an equally important role towards increasing the role of the victim. For instance, although the Cr.P.C. does not strictly envisage hearing victims while considering grant of bail, many courts allowed them an opportunity to be heard at this stage. This post focuses on another such judicial creation - the Protest Petition.

What is a Protest Petition
Simply put, a Protest Petition is a representation made by the victim/informant to the court during or after completion of investigation by the police. Today it is most commonly filed after the police file a Closure Report or B-Report under Section 173 Cr.P.C. (what was earlier commonly understood as the Final Report) wherein the police concludes the allegations are not made out against an accused. The Protest Petition, then, is an opportunity granted to the victim/complainant to raise objections against these conclusions, before the Magistrate decides to apply her judicial mind to the Final Report.

The Protest Petition through History
It was extremely fascinating to trace the development of this concept through time. I daresay I have completed this task though, and am still trudging through the decisions. For instance, while the High Courts of Patna and Calcutta had extensively dealt with the legal niceties surrounding Protest Petitions before independence, the first reported judgment from Delhi does not come before 1990 in most databases! Unfortunately, I have not yet come across any discussion of how this was a unique method by judges to ensure some measure of ensuring victims-rights, at a time when such concepts were alien to the criminal process across most parts of the world.

Another interesting facet was how the High Courts seem to have considered Protest Petitions as any representations protesting against police investigations. The term predominantly used in Calcutta was Naraji, which loosely translates to dissatisfaction. Naturally this extended to petitions filed by both accused persons and complainants/victims, although the latter far outnumber the former. Further, the Protest Petition by an accused seems to have only been filed during the investigation, whereas those by complainants were filed during as well as after conclusion of investigations.

Lastly, the consideration of Protest Petitions and acceptance of Final Reports by the police also raised important issues concerning the nature of this exercise: whether it was an executive or a judicial function. If the task was considered an executive function, this meant there was limited scope for review of such an order in revision proceedings. This is purely of historical interest now, since the present Cr.P.C. makes a clear separation between the executive and judicial functions of the magistracy. It was not always so, and there were several reports before 1973 which considered how this separation could take place (the 37th Law Commission Report discusses this to some extent).

Filing a Protest Petition
Many interesting procedural issues arose by allowing this intervention by complainants. I list some below:

• If the Magistrate has a Closure Report and a Protest Petition, can the latter be considered only if the Final Report is accepted?
• Does the Protest Petition have to be a 'Complaint' to take cognizance? 
• Must the Complainant be examined on oath under Section 200 Cr.P.C. after taking cognizance on a Protest Petition?
• If the Magistrate takes cognizance on a Protest Petition when there is a Closure Report, would the case be tried as a complaint case or one based on a police report?
• If the Magistrate has a Protest Petition and Closure Report, can the Magistrate send the police back for further investigation to file a fresh report?
• If the Magistrate is rejecting the Closure Report and accepting the Protest Petition, should the case be transferred before another Magistrate for trial?

Some of these questions can be answered with a degree of certainty. On the first question, there is no prohibition on considering the Protest Petition before accepting the Closure Report. The magistrate may well look at the protest petition beforehand and take cognizance on the Closure Report itself. The magistrate is also empowered to direct a further investigation under Section 156(3) Cr.P.C. after receiving a protest petition. Similarly, it is settled that if the magistrate does decide to take cognizance on the Protest Petition, it must satisfy ingredients of a 'Complaint' under Section 2(d) of the Cr.P.C., and then the complainant must be examined on oath before issuing summons.  

For the others, there remains some doubt though, and this comes with a cost since these questions have important consequences. For example, a complaint case allows for arguing discharge after cross-examining witnesses and such cases can be dismissed for non-appearance of the complainant. This is not so when cases are proceeded on the police report. Furthermore, if the magistrate rejects the findings in the Closure Report and takes cognizance, or direct further investigation only to take cognizance thereafter, would it not affect the appearance of justice if the trial proceeded before the same court? After all, it is not entirely unreasonable to suppose that the court has already arrived at some conclusions about the case in such situations despite the limited application of mind required at this initial stage of the criminal process. The latter is becoming increasingly pressing, though, with it becoming routine for certain courts to re-send closure reports for further investigation to gather more material and play the role of a prosecutor.

Conclusion

The Protest Petition is a crucial piece of judicial innovation much ahead of the times in giving victims a say in the criminal process. Its existence, and development, across the country over the last century directly questions notions that the role of the victim was negligible in India. Its presence today raises important questions regarding the separation between the spheres of investigation and trial. It would be insightful to compare this with other colonial jurisdictions to discern exactly how unique this practice was to India. Today, this predominantly area-specific judicial practice has attained national status. It would certainly help if the federal legislature codified the Protest Petition and made it a part of the Cr.P.C. to address the lingering ambiguities that have arisen during this transformative process. 

Complaints, Chargesheets, and Taking Cognizance

Section 190(1) of the Cr.P.C. 1973 outlines three ways in which a Magistrate may take cognizance of offences: (a) on the basis of a Complaint of facts disclosing an offence, (b) on the basis of a Police Report of such facts, and (c) on information from any other person or his own knowledge, that such an offence has been committed. In some cases however, a Special Act may restrict the manner in which cognizance of offences may be taken by the Magistrate. Consider, for instance, Section 13(3) of the Official Secrets Act, 1923 says: no court shall take cognizance of any offence under this Act except upon complaint made by order of, or under authority from, the appropriate government or some officer duly empowered by the appropriate government in this behalf [emphasis supplied].

While these provisions were anomalous earlier, today with a host of special criminal statutes we find such provisions quite common. It is, therefore, not only interesting but also important to discuss some problems surrounding this area. 

How to Treat Special Complaints 

Ordinarily, one imagines the Complaint as being filed by a private person, who does not have the abundant investigative resources of the State to support him. The Police Report, on the other hand, is the product of these resources at the State's disposal. So where a statute requires an authorised officer to file a complaint, we cannot be blamed for thinking that this is more akin to a Police Report than a Complaint. But these are technical terms: 'Complaint' and 'Police Report' are defined under Section 2(d) and 2(r) of the Code respectively. Therefore the canons of statutory interpretation demand that we interpret the text literally rather than second-guess the meaning behind the text.

How we treat Special Complaints of the kind mentioned in Section 13(3) of the Official Secrets Act is not a mere academic inquiry. There are several consequences unique to cases instituted upon a Complaint and Police Report. For instance:

• Filing of a Police Report under Section 173, Cr.P.C. allows for further investigation under Section 173(8), which is not present for Complaints. Nor can there be supplementary charge-sheets.
• Only in cases instituted upon a Police Report does an Accused have the judicially protected right to supply of documents under Section 207, Cr.P.C.
• The procedure for trial in Warrant Cases instituted upon a Police Report differs from those instituted upon a Complaint.
• The Maharashtra Control of Organised Crimes Act 1999 [MCOCA] punishes 'continuing unlawful activity' which is defined as any activity prohibited by law in respect of which one or more charge-sheets have been filed.

Therefore, the treatment of Special Complaints as falling within the definition of a 'Complaint' or 'Police Report' has potentially significant consequences. Beyond the issues highlighted above, another issue involves taking cognizance. What provision would be invoked while taking cognizance of Special Complaints: Section 190(1)(a) or (b)? Or would Section 190 be invoked at all? 

Judicial Interpretation

The judiciary's treatment of these issues makes my academic excitement feel like dead rubber. With due regard to the canon of literal interpretation, courts have held that a Special Complaint is exactly that, a Complaint. Lets revisit the issues highlighted above before we move to cognizance.

• In S. Nagrajan v. State [Crl. Rev. Petition No. 321/2004, decided on 15.03.2013] the Delhi High Court held that no further investigation akin to Section 173(8) was possible for a Special Complaint under the erstwhile Prevention of Food Adulteration Act, 1954. 
• Similarly, in Ajit Narain Haksar v. State of Karnataka [ILR 2002 Kar 2175], the Karnataka High Court held there could be no supplementary complaints under the Central Excise & Salt Act 1944 akin to supplementary charge-sheets. [Importantly though, the Jharkhand High Court arrived at the opposite conclusion for the Prevention of Money Laundering Act. See, Narendra Mohan Singh v. Directorate of Encforcement, Crl. M.P. No. 2863/13, decided on 22.03.2014]. 
• In State of Maharashtra v. Ajay Jagdish Pande [Crl. Appeal No. 722/12, decided on 25.0.2014], the Bombay High Court held that a Special Complaint for offences under the Environment Protection Act 1988 could not be a 'Charge-sheet' for the definition of 'continuing unlawful activity' under the MCOCA.

Problems with cognizance came in a rather more direct fashion. Courts were provided with a Police Report where the statute specifically provided for cognizance to be taken on a Complaint by an authorised officer. Two problems emerged: (a) would such taking of cognizance be illegal, and (b) would it vitiate proceedings. 

Unsurprisingly, the Delhi High Court in Aniruddha Bahal v. CBI [210 (2014) DLT 292], relying upon the decision of the Supreme Court in Jeewan Kumar Raut v. CBI [AIR 2009 SC 2763], held that cognizance of offences on a Police Report is illegal where the statute expressly mandated it to be on a complaint. The Court was specifically concerned with offences under the Official Secrets Act. Interestingly though, the Court seems to go further and answer point (b) in the affirmative. 

Is this proper? Sections 460 and 461 of the Cr.P.C. detail circumstances which are irregularities and illegalities. Erroneous taking of cognizance under Section 190 is covered by Section 460 clause (d), thus preventing proceedings from being set aside merely on this ground. However, cognizance is not being taken under Section 190 for any of those Special Complaints. It is being taken under the particular provisions of the concerned special statute, and that procedure should override the general procedure in accordance with Section 4(2) of the Cr.P.C.

Conclusion

In 1967, the Law Commission of India in its 37th Report on the Code of Criminal Procedure 1898 [the official cover page has a typo] observed there was confusion regarding the definition of complaints and taking cognizance. It suggested an amendments may be made to Section 190(1)(b) of the Old Code to "cover specifically reports under other sections of the Code or under other laws". Section 190(1)(b) of the Old Code is identical to the current Section, which means the Commission considered including reports under other laws closer to a Police Report than a Complaint. 

A concrete suggestion for an amendment never emerged as the project was abandoned, but this gives some insight into the confusion prevailing in the area. Forty years later we see the Supreme Court come to the opposite conclusion in Jeewan Kumar Raut. Though most decisions indicate the term Complaint' must exclude a 'Police Report', contrary voices do exist and may yet lead to another intervention by the Apex Court. However, what may prove more important is the consequence of a finding that cognizance was illegally taken. The decision in Aniruddha Bahal does not discuss the aspect of Section 460, which leaves it open for the law to head in a different course. Expect more clarity over the course of this year, as that decision gets exposed across different settings.