Public Prosecutor Meaning and Functions

INTRODUCTION

Public prosecutors are appointed in almost all the common law countries as an agent of the Attorney General to represent the interest of general people in the criminal justice system. They serve as a foundation of the Rule of Law’s principle that everyone should have an opportunity of being heard (audi alteram partem). The prosecutors are duty-bound to act in a way that strikes the right balance between the competing interests of conviction of guilty, protection of citizen’s rights and freedoms and protection of the public from crimes.

DEFINITION OF PUBLIC PROSECUTOR

Public Prosecutor has been defined in the Code of Criminal Procedure under Section 2 (u) as under:-

“Public prosecutor meaning is a person appointed under Section 24; it further includes any person acting under the directions of a Public Prosecutor.”

In India, the Prosecutors act on the directions of the Judge. Being an officer of the court, the Prosecutor is required to act in public interest and not seeking conviction by hook or crook. In Babu v. State of Kerala[1], it was stated that Public Prosecutors are the ministers of justice whose job is to assist the state to administer justice.

When Section 2(u) is read with Section 24, the following hierarchy can be traced:-

Public Prosecutor appointed by the Central Government->Public Prosecutor appointed by the State Government->Additional Public Prosecutor appointed by the State->Special Public Prosecutor appointed by the Central Government->Special Public Prosecutor appointed by the State Government.

Here, it is pertinent to note that according to the pattern prescribed by Criminal Procedure Code, the Public Prosecutors (including Additional Public Prosecutors) are required to conduct criminal proceedings in the Sessions and the High Court, while the Assistant Public Prosecutors are required to conduct proceedings on the behalf of the Magistrate’s court.

RATIONALE BEHIND THE ESTABLISHMENT OF THE OFFICE OF PUBLIC PROSECUTOR

The rationale behind the appointment of Public Prosecution is that crimes committed by an individual or a group are deemed to have been committed against society. Hence it is the duty of the state to bring justice to the people or group affected by the crime. In India, the Criminal Justice system is required to function within the boundaries of the Indian Constitution, which means the Public Prosecutor needs to follow the following principles:-

1. Presumption of innocence, until proven guilty beyond a reasonable doubt,
2. Right to life and personal liberty, until deprived by a procedure established by law[2],
3. Equality before the law[3],
4. Protection against double jeopardy[4],
5. Protection against ex-post-facto law[5],
6. Protection against self- incrimination[6],

What is The Role of Public Prosecutor

The Directorate of Prosecution is established with the objective of exercising supervision and scrutiny over all the prosecuting agencies. It is headed by a Director who is assisted by various subordinate rank officers and ministerial staff. The role of Public Prosecutor is the following in the investigation process:-

1. Appearing in the Court and obtaining an arrest warrant,
2. Obtaining search warrants to search specified premises,
3. Obtaining Police custody remand for custodial interrogation of the accused[7],
4. Initiating proceeding for declaring a non-traceable accused a proclaimed offender[8],
5. Recording his advice in the Police file regarding the advisability of the prosecution.

PUBLIC PROSECUTOR Functions ACCORDING TO POST

Assistant Public Prosecutor: They scrutinize the charge sheets prepared by the investigating agencies and submit the discharge/ acquittal. They are further in charge of evaluating the evidence and filing revision petitions as well as conducting cases in the Court of Metropolitan Magistrates.

Additional Prosecutor: They conduct cases in the Sessions Court.

Chief Prosecutor: They supervise the work of Assistant Public Prosecutor in the Metropolitan Magistrate’s Court.

Public Prosecutor: They supervise the work of Additional Public Prosecutor in the Sessions Court.

ROLE OF THE PUBLIC PROSECUTOR DURING TRIALS

1. Speedy trial: The Public Prosecutor being an officer of the Court can play the role of ensuring a speedy trial, which forms an essential part of the Right to Life enshrined under Article 21. The Prosecutors are responsible for ensuring that all the essential witnesses are called and none of the witnesses are left non-examined, further making sure that all the required documents are produced before the court in time while ensuring that no uncalled for the delay is caused to the proceeding.
2. Sentencing: After the accused is proven guilty, the defense counsel and the Public Prosecutor are called upon to decide the quantum of the punishment. At this stage, the Public Prosecutor is required to exercise his discretion of arguing for an adequate punishment while keeping in view the gravity of the offence, the facts and the circumstances of the case. It is very important at this stage that the Prosecutor help the Court arrive at a judicious decision.

PRESENT STATE OF PUBLIC PROSECUTORS IN INDIA

The office of the Public Prosecutors in India suffers from various incompetencies due to rigid and various unnecessary formalities. Most of the offices have inadequate staff and infrastructure

SUGGESTIONS TO IMPROVE THE POSITION OF PROSECUTORS

1. The foremost problem is lack of quality law education in most of the Law Colleges in India.
2. Further, the earnings are very low as compared to the ones that can be earned in open markets. The only way to remedy this situation is by improving the salary structure.
3. A national-level institute needs to be set up to impart proper training upon the aspiring candidates.

CONCLUSION

In the final analysis, a Public Prosecutor is an officer of the Court assisting in just and equitable impartation of justice. He is required to be fair to the opposite party while trying to act for the good of society. The guiding principle of any Prosecutor should be justice, equity, and a good conscience and not just the letter of law.

[1] (1984 KLT) 165

[2] Article 21 of the Indian Constitution.

[3] Article 14 of the Indian Constitution.

[4] Article 20 (2) of the Indian Constitution.

[5] Article 20 (1) of the Indian Constitution.

[6] Article 20 (3) of the Indian Constitution.

[7] Section 167 of Cr. P.C.

[8] Section 82 of Cr.P.C.

Section 415 of the Indian Penal Code

Cheating is that offense which is understood even by a layman. Often people use the term ‘cheating’ whereby they mean something to be deceitful or fraudulent. Cheating is considered as a wrong act when done, even in some of the trivial issues. Section 415 of IPC (India Penal Code), 1860 defines ‘Cheating’ and this article would be discussing the legal definition and legal aspect of the offense of cheating.

Section 415 – Cheating

Cheating is defined under Chapter XVII which deals with ‘Offences against Property‘ under Section 415 as follows-

Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any proper­ty to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.[1]

From the above-mentioned definition, some of the basic elements of cheating are as follows-

Fraudulently  

The act should either be fraudulent or dishonest to be termed as under the offense of cheating. The term ‘fraudulently’ is defined under Section 25 of the IPC.

“A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.”[2]

Acting dishonestly

The intention of the wrongdoer in every criminal offense is of great importance. Therefore, in cheating, also the person who commits the offense should act dishonestly. The term ‘dishonesty’ is defined under Section 24 of the IPC.

“Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”.[3]

Property

Section 415 comes under Chapter XVII, which makes the offense of Cheating that is committed against property.

Deceive

The accused must deceive the person in such a way that he is induced to deliver any property or gives consent to the accused to retain a property that he posses. Also, it is very important to note down here that the deception should be with a dishonest or fraudulent intention.[4]

All the elements of cheating specified under Section 415 should be connected to each other in order to make an offense of cheating.

As per the Supreme Court very clearly held that the crux of the offense of cheating is the intention of the person who induces the victim of his representation. The nature of the transaction is irrelevant, which would become decisive in discerning whether there was the commission of an offense or not.[5]

The Supreme Court in a case held that in order to convict a person under the offense of cheating there should be the pre-existing fraudulent or dishonest intention of the accused from the beginning whereas in case of breach of contract the dishonest intention is generally not present at the beginning of the agreement. [6]

Punishment of Cheating

Cheating is punishable under section 417, and the punishment for cheating is imprisonment up to 1 year or fine or both. [7]Imprisonment depends upon the cheating and quantum of the act. If the act is grave, imprisonment and fine, both can be awarded. Whereas, when the act committed is not grave imprisonment is generally not imposed.

Difference between Cheating and Fraud

The offense of cheating and fraud are almost similar, and therefore, sometimes there is confusion between the two. It is very important to know the differences between the two.

1. The offense of Cheating is mentioned under section 415-420 of the Indian Penal Code, 1860, whereas, fraud is mentioned under 421-424 of the Indian Penal Code, 1860.
2. Usually, cheating is committed to obtaining some advantage from a person. Fraud is committed to gain an advantage by another’s loss.
3. Fraud basically is confined to contract cases, but cheating has a wide ambit.

Conclusion

The offense of Cheating, which is very common, includes two main elements, that is deception and inducement. Sometimes cheating is confused with fraud or other civil or criminal offense, but it differs from all of them in one way or the other. Therefore, the conceptual understanding of the offense of cheating becomes very important. Apart from section 415, another section related to cheating are also important.

[1] Indian Penal Code, 1860, s. 415.

[2] Indian Penal Code,1860, s. 25.

[3] Indian Penal Code, 1860, s. 24.

[4] A. Pareed Pillai v State (1973) SC 326.

[5] Rajesh Bajaj v. NCT of Delhi and Ors. (1999) SC 1216.

[6] S.W. Palanitkar V. State of Bihar 2001(10) TMI 1150.

[7] Indian Penal Code, s. 417.

Section 499 IPC – Criminal Defamation

Criminal defamation, as defined in section 499 IPC, is one of the most controversial provisions under the Indian Penal Code, 1860. Time and again, we see defamations news popping up on our televisions and newspapers. Defamation is civil wrong under the tort law as well as a criminal offense under the IPC. We all are well aware that the right to speech is a fundamental right under the Constitution; therefore, the offense of defamation is debated on this issue. But the Supreme Court has held in several cases that the offense of defamation under Section 499 does not violate Article 19 of the Constitution.

“Freedom of speech and expression is not absolute. The concept of social interest has to be kept in mind when considering the reasonableness of a restriction”. [1]

What is Defamation?

Section 499 says that whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.

Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation.

Explanation 4.—No imputation is said to harm a person’s reputa­tion, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or a state generally considered as disgrace­ful. [2]

Therefore from the above provision, it is evident that defamation is done not only through words spoken but also written. It may be done by signs or visible representation that is directed towards a particular person to cause harm to a person’s reputation. There are four exceptions provided under the provision.

Explanation of Criminal Defamation

Right to speech and expression is one of the important Fundamental rights; therefore, when it is made, limited necessary points need to be considered. Defamation is made an offense under the criminal law, and certain explanations are attached to it to make the understanding clear.

1. Deceased person- usually no defamation is caused to a person who is dead, but, it may amount to defamation if the statement to act done to defame that person causes harm or is derogatory to his family or any of his family members.
2. Corporate body- Although it was controversial as to whether the corporate body can file a defamation suit. The SC strike out the balance between Art. 19 and the right of corporate bodies to file criminal defamation case for alleged damage to reputation.[3]
3. Indirect statement- Sometimes, even an ironically passed statement may also amount to defamation.
4. Lowering intellectual- if a statement is passed by a person to lower the person reputation, then it would be defamatory.

Defamation in English Law

Defamation in English law is classified under two categories-

1. Libel- representation made in some permanent form. For eg.- publication in a newspaper or any other writing form.
2. Slander-statement made in some transcient form. For eg.- by spoken words.

In India, there is no such classification of the offense of defamation. The Madras and Bombay High court has also held that there is no need to make such classification under the Indian criminal law.[4]

Exceptions of Defamation

1. Justification of truth- Law, will not guide a person or favor a person to receive compensation for something true. In a case, the defendant published a defamatory statement against, but the statements were true, so it was not considered as an offense.[5]
2. Fair comment- making fair comments in the public interest is not defamation.
3. Privilege- Giving special status to certain persons protects them from the offense under section 499. These privileges are absolute as well as qualified.

Conclusion

Defamation is one of the most controversial offense. Right to Speech is a fundamental right guaranteed under our Constitution, but the right is not absolute, and it is restricted. The offense of defamation is a form of this restriction made on the Fundamental Right. A person cannot speak or publish any derogatory remarks for any other person.

[1] Subramanian Swamy v. Union of India, Ministry of Law &ors. (2014) SC 184.

[2] Indian Penal Code, 1860, s. 499.

[3] Priya Pillai v. Union of India & Anr. (2015) SC 132.

[4] Hirabai Jehangir v. Dinshawdulji (1927) Bom 22.

[5] Radheshayam Tiwari v. Eknath (1895) Bom 285.

Ten Difficult Things About Voluntary Causing Hurt : Provision And Punishment

With all the progress we have made as a nation, there is also a big number of crimes happening around us in recent days. And women and children are becoming more part to such kind of crimes, and hence it is essential to be aware of the offenses or wrong which are known as voluntarily causing hurt to someone or anyone and the punishment prescribed for it in the  Indian Penal Code, 1860.

Section 323 of IPC

Section 323 is an essential part mentioned under the chapter 16th of the Indian Penal Code, 1860, titled “Offenses related to the Affecting Human Body.” Section 323 basically deals with the punishment clause for voluntary causing hurt. But before going further first, we need to understand the meaning of some technical terms, like “Hurt (defined under section 319)”, “Grievous Hurt (defined under section 320)”,  “Voluntary causing Hurt (defined under section 321)” and “Voluntary causing Grievous Hurt (which is defined under section 322)”. So basically the present article only has a relation with Section 323 read with section 321, which defines what actually “voluntary causing Hurt” mean. Though we have to discuss only the provision related to section 323, we also need to understand under this, that there is segregation of some technical terms which mentioned above and it is essential to discuss under this.

“Hurt (which is defined under section 319) ” meaning simply that any person who causes bodily pain, disease or infirmity to any other person and if the same does happen where knowledge plays an essential role is to be understood within the meaning of “Voluntary causing Hurt (under section 321)”

“Grievous Hurt (which is defined under section 320)” is to be understood as an extended form of Hurt. Under this, there are some different kind of hurt only, which is designated as “grievous” in nature. They are,

Emasculation,

Permanent privation of the sight of any of the Eye or Ear or Permanent disfigured the face or head,

Privation of any member or joint or permanent impairing of the powers of any joint,

Fracture or Dislocation of bone or tooth

or any other type of Hurt which may endanger life or which the sufferer causes severely bodily pain up to 20 days or more or may not be able to follow their ordinary pursuits.

So basically, there are eight important types of hurt which are grievous in nature and on another aspect where knowledge gets involves in any of the hurt which is grievous in nature may amount to be “voluntary causing Grievous Hurt (under section 322).

Read Also: Key differences between IPC and CrPC

Section 323 Of Indian Penal Code 

The definition of the provision “voluntary causing hurt” defined under section 321 and their punishment clause in section 323 of the penal code 1862.  Section 321 states that if a person with pure intention is causing Hurt to any other person. And there exists a piece of knowledge that their action may likely cause hurt to another is “Voluntary Causing Hurt.”

Section 323 defines the punishment for the wrong defines under section 321, states that whoever does the same shall be punished with the 1-year imprisonment or fine of 1000 rs.  or both. Also, if a person without any intention has a knowledge that particular action may likely to cause hurt or gives to another person a “voluntary causing hurt” on the grave and sudden provocation (defined under section 334), then, he or she shall be not prosecuted under section 323, there should be applied some facts for exemption under section 323, as follows:-

1. Firstly, there was no sudden or grave provocation exist,
2. Secondly, the offender had the intention of causing hurt;
3. Thirdly, the offender had clear knowledge that his conduct will cause hurt to the other people
4. Lastly, the offender caused any bodily hurt.

So if any of the facts may going to apply, the accused punishment shifted from section 323 to section 334, and under this, the accused shall be punished with the imprisonment for a maximum of 1 month or a fine which exceed up to 500 or with both.

The offense under section 323 of the Indian Penal Code, 1862 is Non- cognizable, Bailable and Triable by any Magistrate Also, Compounded by the person to whom the hurt is caused.

Voluntarily causing hurt by dangerous weapons

 Section 324 of the Indian Penal Code further clarifies the repercussions of “voluntarily causing hurt using any dangerous weapon or instruments” such as shooting, stabbing, or cutting or any other tool which is likely to cause death and the accused has the knowledge of the same, are much severe. Some examples- fire, heated substance, poison, an explosive substance, or any substance which might be dangerous to the human body in the form of consumption.

Punishment– up to 3 years or fine or Both

Voluntarily causing hurt to extort property or to do an illegal act forcefully 

Section 327 of the Indian Penal Code, deals with the offense of “voluntarily causing hurt with the motive or intention to extort the property from the sufferer or any other person” interested in the victim. This may also include constraining the sufferer or any other person interested in the victim to make them do act illegally directly has relation to the commission of the offense.  The said offense is categorized under the meaning of “grave” in nature.

Punishment: – up to 10 years only or with the fine.

Voluntarily causing hurt to deter public servant from their duty

Section 332 of the India Penal Code defines that Any person, who deliberately causes hurt to any public servant in discharge of his duty or causing hurt with the intention of deterring him from discharging his duty is not acceptable by law and amount to some punishment.

Punishment: – up to 3 years only or with the fine.

Voluntarily causing hurt in committing robbery

Robbery (defined under section 390 of the penal code) is considered as a serious crime, and that is why Section 394 of the Indian Penal Code deals with such kind of cases where the voluntary hurt was caused during the conduction (include attempt also) of the crime of robbery. The offender or any person (involvement is necessary, directly or indirectly) jointly responsible for such offense of robbery,

Punishment: – Lifetime Imprisonment or Rigorous Imprisonment up to 10 years, sometimes fine may be included along with the punishment.

10 Secrets You Will Not Want To Know About Taking A Home Loan

Aspiring to own a house? Need a home loan for the same? Well, it’s not easy to get a home loan, especially for the middleman. There are various factors and aspects that need to be considered before availing a home loan.

Everyone must be aware of the United States Housing bubble that took place around 2005-06. In this, there was a rise in subprime lending by the banks and the people in anticipation that the house prices will rise, borrowed the loan in huge numbers. But then as the interest rates began to rise and the house prices to fall, there arose a situation of Default. Thus the economy suffered a lot.

As earlier said, in India, the current banking system is very well organized and getting a personal loan is not that easy.

The various pre-planning to be done for availing a home loan are enumerated below:-

1) Eligibility Criteria

The best way to calculate loan eligibility is by calculating EMI. Banks limit the installment at 40-50% of borrowers Salary*(Basic+DA). For repayment of a loan, various factors are judged by financial institutions. Age is one of them. Also if the person availing loan has a large number of dependents, then the chances of getting the loan would be against him. Other factors include a spouse’s income, job stability, and qualification. Moreover if one has another loan pending, the eligibility goes down even further.

2) Types of loan

There are basically two types of home loan interest:-

• Fixed Rate of interest

In this, the interest rate is fixed and it remains constant for say 10-15 years or for the entire loan tenure.

• Floating Rate of Interest

In this type of loan, the interest rate is linked to the lender’s benchmark rate. If there is a change in the benchmark rate, the interest rate also changes proportionately. From April 2016 onwards all the home loans taken are based on MCLR (marginal cost of a fund – based lending rate) benchmark rate. However, HFC’s (housing finance companies) continue on the PLR (Prime lending rate) model.

So, now if you plan to take a home loan, see the MCLR and the spread to know the home loan rate. Spread is the rate one has to pay over the MCLR rate. So according to this SBI did cut the MCLR rate from 8.9% to 8%. People thought that SBI decreased the rates. But actually, SBI did not pass on this entire reduction of 90bps to customers. Instead, the spread (margin on top of MCLR). Thus home loans feel by around 50bps. And so now it will be in the range of 8.6-9.1 % depending upon the ticket size and type of loan.

3) Home Loan Amount

Most lenders/financial institutions provide a housing loan ranging from 75-90% of the cost of the property depending upon the loan value. If there is a co-applicant (adult child, parent or spouse), then his/her income is also considered to increase the loan amount.

4) Cost of the home loan

All the costs such as interest payments, processing fees, administrative charges, prepayment penalties, etc. should be perfectly analyzed. Also, it must be seen that the lenders/ financial institutions do not apply any hidden charges. As per the regulatory norm, the fees and charges should be fairly disclosed on the site.

5) Tenure

Longer the tenure of the loan, lesser is the EMI burden. Home loans can be sanctioned for a maximum period of 30 years, subject to customer’s eligibility.

6) Tax Benefits

Many of the people may not know about the tax implications and tax benefits they are availed with. It’s really very necessary to know about this. For instance Principal amount that one payment can be claimed to the maximum of Rs 1, 50,000 under section 80C of Income Tax Act. The interest paid up to Rs 2, 00,000 or actual amount repaid can be claimed as the deduction.

Read Also: How Section 80ee Of Income Tax Act Can Help You

7) Documentation

While you need to submit your KYC documents and credit/income documents along with the home loan application to avail the home loan approval, you need to submit the property documents in original to get your home loan disbursement.

8) Home Loan first or loan first

I bet many of us might not know that one can pre-approve the home loan even before one has selected the house. Pre-approval helps you fix the exact budget and helps and helps your home search focused.

9) Insurance Cover

Do the best possible research to find out the best possible home loan insurance available to cover the loan amount.

10) Default

One must be regular in paying EMI’s. If you miss more than 3 installments, then according to the SARFAESI Act, lenders have the power to take action against default directly without the intervention of courts.

Conclusion

Do not hastily rush into getting the home loan based on any one factor. Analyze all the factors properly. Consult 2-3 banks or housing finance companies and decide accordingly.