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.

Ten Clarifications On Non-Disclosure Agreement India And Its Sample Format

What is a non-disclosure agreement?

Known by various names such as confidentiality agreement (CA), confidentiality disclosure agreement (CDA), proprietary information agreement (PIA) and secrecy agreement (SA), a non disclosure agreement meaning is a legally binding contractual obligation between two or more parties containing information that the parties keep it confidential. A third party is not given access to the information present in a non-disclosure agreement. An NDA aims to create a confidential agreement whereby, both the parties mutually agree not to disclose information to a third party, which could also be a trade secret. NDAs play a major role in protecting private sensitive information as well as Intellectual Property rights by clearly outlining as to what information must be kept confidential and what must be made available to the world. An NDA is usually contracted between two entities, companies or individuals who consider doing business with each other and to understand the nature of the business carried out by each other. NDAs cannot be enforced if the contracted activities are felonies, just like all other contracts.

A few examples of a Non disclosure agreement are:-

1. Attorney-client privilege
2. Doctor-patient confidentiality
3. Priest-penitent privilege
4. Bank-client confidentiality

Types of Non Disclosure agreement

There are three kinds of non-disclosure agreements, namely unilateral, bilateral and multilateral.

1. Unilateral: In a unilateral non-disclosure agreement, there are two parties and one party anticipates the disclosure of certain information to the other party and protects that information from getting further disclosed. Example – Protection of a trade secret.
2. Bilateral: Unlike a unilateral non-disclosure agreement, bilateral non-disclosure agreement requires two parties to anticipate in disclosing information to each other that intends each to protect them from further disclosure. A bilateral NDA is also called mutual or two-way NDA.
3. Multilateral: As the name suggests, such an NDA requires three or more parties where at least one party anticipates disclosing some information to the other parties from further disclosure of the same. Hence, in such a kind of NDA, the parties usually have the scope of reviewing, deliberating and finally reaching a unanimous judgement.

The content of a Non-Disclosure Agreement

An NDA clearly defines who are the parties to the contract are. It is for the parties, (whether two, three or more) to decide what information must be kept confidential. In other words, the parties define the word ‘confidential.’ The way in which the recipient is ought to handle the confidential information, failing which will result in the breach of contract is also prescribed in an NDA. An NDA also mentions the disclosure period and the information not disclosed during the said period will not be deemed as confidential. Apart from these an NDA also defines the terms and conditions of the parties, the law and jurisdiction under which they are governed, no.of years the agreement is binding on them, if or not certain information can be disclosed to a third person with permission, etc.

 Non Disclosure Agreement in India

In India, a non-disclosure agreement is governed and protected by the legislation known as the Indian Contract Act,1872. It is mandatory for an NDA to be stamped to be legally enforceable in India. A penal action can also be initiated against an employee under Section 406 of the Indian Penal Code, 1860 for Criminal breach of trust if he/she engages in misusing and disclosing a secret information which was protected under an NDA. Further, civil proceedings are also maintainable under Section 63 of the copyright act, if the information protected under copyright act is stolen.

A Non Disclosure Agreement sample used in India

THIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is entered into on this 29th day of June, 2016 by and between XYZ, having its registered office at A-7 Second floor, Connaught Place, New Delhi-110028  ( the “Receiving Party”), and …………………………………………………………….(operating under the trade name “A B C”), having its office at …………………………………………………………………………, (the “Disclosing Party”).

The Receiving Party hereto desires to participate in discussions regarding providing financial assistance in the form of various products from time to time to small and medium enterprises introduced to it by the Disclosing Party (the “Transaction”).  During these discussions, the Disclosing Party may share certain confidential and proprietary information with the Receiving Party.  Therefore, in consideration of the mutual promises and covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

This includes —-

1. Definition of Confidential Information.
2. Disclosure of Confidential Information
3. Use of Confidential Information
4. Compelled Disclosure of Confidential Information.
5. Term.
6. Remedies.
7. Return of Confidential Information.
8. Notice of Breach.
9. No Binding Agreement for Transaction
10. Warranty.
11. Miscellaneous.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

DEF Ltd.,                                                                                    ABC.. Pvt. Ltd.                  

XYZ                                                     By                          _____

Vice President                                                           Name:

                                                                                Title: Director

Original blog is published at LEGODESK  please read the blog for more content and for legal help

                       

  • • • • 

                                                       

Legodesk is a legal practice management tool using which lawyers can manage their matters, win new clients and do their legal research all in one platform. Legodesk’s unique case management features helps to keep your legal practice organized and accessible everywhere.