Parties: Their duties & roles
Cause title – Informant or Complainant
Ganesha vs. Sharanappa and another – (2014)1 SCC (Cri) 8=(2014)1 SCC 87=2013(4) MLJ (Cri) 757 (SC)=2013(4) SCALE 59.
Final report – Whether the investigation can give findings in the final report?
We may only state that the Investigating Officer was required to submit report in terms of Section 173 of the Code and nothing more. He should not record a finding nor he can give clean chit which is a function and power of the Magistrate who will exercise the said power as provided in the Code [Hardeep Singh Vs State Of Punjab And Others – (2008) 14 Scale 142=(2009) 16 SCC 785=(2010) 2 SCC(Cri) 355].
What is the role of the public prosecutor? (section 24 to 25 a cr.p.c)
section 24. Public Prosecutors[1]. – (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.
(2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district or local area.
(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district :
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.
(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion, fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4).
(6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre :
Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4).
[Explanation. – For the purpose of this sub-section, –
(a) “regular Cadre of Prosecuting Officers” means a Cadre of Prosecuting Officers which includes therein the post of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post;
(b) “Prosecuting Officer” means a person by whatever name called, appointment to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.]
(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years.
(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.
[Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-Section.]
(9) For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.]
The role of the Public Prosecutor is inside the court, whereas investigation is outside the court. Normally the role of Public Prosecutor commences after investigating agency presents the case in the court on culmination of investigation. Its exception is that Public Prosecutor may have to deal with bail applications moved by the parties concerned at any stage. Involving the Public Prosecutor in investigation is unjudicious as well as pemicious in law. At any rate no investigation agency can be compelled to seek opinion of Public Prosecutor under the orders of court. Section 173(1) Cr.P.C casts an obligation for completing the investigation without unnecessary delay and S.173 (2) enjoins on the officer-in-charge of the police station to forward to the Magistrate a report in the form prescribed by the state government on completion of such investigation. The aforesaid power of the officer-in-charge of the police station is subjected only to the supervision of superior police officers in rank as envisaged in section 26 of the Code. There is no stage during which the Investigation officer legally obliged to take the opinion of a Public Prosecutor or any authority, except the aforesaid superior police officer in rank. Public Prosecutor is appointed, as indicated in section 24 of the Code for conducting any prosecution appeal or other proceedings in the court. He has also the power to withdraw any case from the prosecution with the consent of the court. Thus Public Prosecutor is to deal with a different field in the administration of justice and he is not involved in investigation. It is not in the scheme of the Code of supporting or sponsoring any combined operation between the Investigation Officer and the Public Prosecutor for filing the report in the court [“R. Sarala v. T. S. Velu” – AIR 2000 SUPREME COURT 1731].
Author’s note: Kindly note that the term ‘defence counsel’ or ‘counsel for the accused’ is absent under this Code, except under section 313(5) Cr.P.C., 1973.
Opinion of public prosecutor – Whether necessary to file final report:
As adverted to earlier, the Judicial Magistrate Court, Periyakulam has returned the final report in question on 18.03.2005 simply on the ground that opinion of the Assistant Public Prosecutor Grade II has not been filed along with the final report. The final report in question has been filed on 16.03.2005. In view of the decisions referred to supra, it is an axiomatic fact that an opinion of a Public Prosecutor or an Assistant Public Prosecutor for the purpose of filing a final report is totally unwarranted and the practice of filing such report is nothing but consuetudinary. Therefore, it is quite clear that the return made by the Judicial Magistrate Court, Periyakulam on 18.03.2005 is not legally correct [Vanniaraj Versus The State – 2009 (3) MLJ(Crl) 150=2009 (2) LW(Crl) 945].
Accused – Right to remain silent
Taking the first ground, it seems to us clear from the entire scheme of Chapter XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an inquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so [Chandra Deo Singh vs. Prakash Chandra Bose @ Chabi Bose & Anr – AIR 1963 SC 1430 followed in Sashi Jena & Ors vs. Khadal Swain & anr – AIR 2004 SC 1492=2004(2) SCALE 348 and in Pullikkadan Narayanan vs. Jayarajan and Anr – 1989 (1) MLJ(Crl) 4].
It may be true that till process is issued, the accused may not have the right to be heard [Iris Computers Ltd vs. Askari Infotech Pvt. Ltd and others – 2015 (14) SCC 399 followed in Vishnu Kumar Tiwari vs. State of U.P – 2019 (3) MWN (crl) 197 (SC)].
Police – Handcuff procedure
Supreme Court in its landmark decision[2] held that the Supreme Court declares, directs and lay down as a rule that handcuffs or other fetters shall not be forced on a prisoner – convicted or under trial – while lodged in a jail anywhere in the country or while transporting or in transit from one jail to another or from jail to Court and back. The police and the jail authorities, on their own, shall have no authority to direct the handcuffing of any inmate of a jail in the country or during transport from one jail to another or from jail to court and back. If the police or the jail authorities have well-grounded basis for drawing a strong inference that a particular prisoner is likely to jump jail or break out of the custody then the said prisoner be produced before the Magistrate concerned and a prayer for permission to handcuff the prisoner be made before the said Magistrate. Save in rare cases of concrete proof regarding proneness of the prisoner to violence, his tendency to escape, he being so dangerous/desperate and the finding that no other practical way of forbidding escape is available, the Magistrate may grant permission to handcuff the prisoner. Supreme Court now directed to the Magistrate that in all the cases where a person arrested by police, is produced before the Magistrate and remand – judicial or non-judicial – is given by the Magistrate the person concerned shall not be handcuffed unless special orders in that respect are obtained from the Magistrate at the time of the grant of the remand. When the police arrest a person in execution of a warrant of arrest obtained from a Magistrate, the person arrested shall not be handcuffed unless the police have also obtained orders from the Magistrate for the handcuffing of the person to be so arrested. Where a person is arrested by the police without warrant the police officer concerned may if he is satisfied, on the basis of the guidelines given by us in para above, that it is necessary to handcuff such a person, he may do so till the time he is taken to the police station and thereafter his production before the Magistrate. Further use of fetters thereafter can only be under the orders of the Magistrate as already indicated by us. Then further directs that all ranks of police and the prison authorities to meticulously obey the above mentioned directions. Any violation of any of the directions issued by us by rank of police in the country or members of the jail establishment shall be summarily punishable under the Contempt of Courts Act apart from other penal consequences under law.
In the view of the Supreme Court decisions, it transpires that unless the specific order from the court or the Superintendent of prison, the prisoners shall not be hand cuffed. There is no order produced by the prosecution for hand cuffing the prisoners[3].
Police – handcuff procedure during transit
In absence of any violence by the under trial prisoner Madras High Court has held that, I could see that no necessity on the part of the police to handcuff the petitioner while he was in transit between jail and the court. Even though, no malafide intention on the part of the police could be seen, it appears the police in order to play safe, has chosen to handcuff him, which they are not expected to continue it infuture. Also, Madras High court ruled with further specific condition that simply based on his previous convictions relating theft case or on more number of cases pending, he shall not be handcuffed[4].
What is the impact of quoting wrong provisions?
Supreme Court has held that only because a wrong provision was mentioned by the appellant, the same, in our opinion, by itself would not be a ground to hold that the application was not maintainable or that the order passed thereon would be a nullity. It is a well settled principle of law that mentioning of a wrong provision or non-mentioning of a provision does not invalidate an order if the court and/or statutory authority had the requisite jurisdiction therefore [“P. K. Palanisamy v. N. Arumugham” – 2009 AIR SCW 5385=2009 – 1 – L.W 75 (SC)].
Further study
Cr.P.C., 1973. Notes no.2: A General Introduction (with powers of police)
Cr.P.C., 1973. Notes no.3: General Provisions as to Inquiries and Trials – Part.1
Cr.P.C., 1973. Notes no.4: General Provisions as to Inquiries and Trials – Part.2 (Duty of judge)
[1] Cr.P.C., 1973 – CHAPTER II – Constitution Of Criminal Courts And Offices
[2] AIR 1996 SC 2193 – Citizen for Democracy vs. State of Assam
[3] State v. Gopal – (2012) 3 MLJ (Cri) 145 (Mad)
[4] S.Sugumar @ Workshop Kumar vs. Judicial Magistrate – 2007 (2) MWN (Cri)20 (Mad)
