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.

Key differences between IPC and CrPC

As citizens of India, it is important to be well versed with the laws of our country, more so, when it comes to society at large. The criminal laws impact not just individuals but the entire society. The Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC) are two of the most important legislation governing crimes in India. Besides these, the Indian Evidence Act, 1872 is the third legislation under criminal law in India.

The Indian Penal Code (IPC)

The Indian Penal Code is the official criminal code of India, which was drafted way back in 1860. It’s objective is to provide a general penal code for the country. It has 511 sections across 23 chapters, providing the list of crimes along with their definitions and punishments. The IPC has been amended several times and is now supplemented by other Acts. Its jurisdiction extends to the whole of India except the State of Jammu and Kashmir.

Here is the detailed overview of the important provisions of the CrPC –

• Chapter 1 – Introduction (Section 1 – 5)
• Chapter 2 – General Explanations (Section 6 – 52A)
• Chapter 3 – Of punishments (Section 53 -75)
• Chapter 4 – General Exceptions (Section 76 – 106)
• Chapter 5 – Of Abetment (Section 107 – 120)
• Chapter 5A – Of Criminal Conspiracy (Section 120A and 120B)
• Chapter 6 – Of offenses against the State (Section 121 – 130)
• Chapter 7 – Of offences relating to the army, navy and air force (Section 131 – 140)
• Chapter 8 – Of offences against the public tranquillity (Section 141 – 160)
• Chapter 9A – Of offences relating to elections (Section 171A – Section 171I)
• Chapter 10 – Of contempts of the lawful authority of public servants (Section 172 – 190)
• Chapter 11 – Of false evidence and offences against public justice (Section 191 – 229)
• Chapter 12 – Of offences relating to coin and government stamps (Section 230 – 263A)
• Chapter 13 – Of offences relating To weights and measures (Section 264 – 267)
• Chapter 14 – Of Offences Affecting The Public Health, Safety, Convenience, Decency And Morals (Section 268 – 294A)
• Chapter 15 – Of Offences Relating To Religion (Section 295 – 298)
• Chapter 16 – Of Offences Affecting The Human Body (Section 299 – 377)
• Chapter 17 – Of Offences Against Property (Section 378 – 462)
• Chapter 18 – Of Offences Relating To Documents And To Property Marks (Section 463 – 489E)
• Chapter 19 – Of The Criminal Breach Of Contracts Of Service (Section 490 – 492)
• Chapter 20 – Of Offences Relating To Marriage (Section 493 – 498)
• Chapter 20A – Of Cruelty By Husband Or Relatives Of Husband (Section 498A)
• Chapter 21 – Of Defamation (Section 499 – 502)
• Chapter 22 – Of Criminal Intimidation, Insult And Annoyance (Section 503 – 510)
• Chapter 23 – Of Attempts To Commit Offences (Section 511)

The Code of Criminal Procedure (CrPC) –

The Code of Criminal Procedure is the main legislation on the procedure for the regulation of criminal law in India. The CrPC details the procedure for the investigation of the crime, presenting criminals before the court of law, collection of evidence, determination of guilt or innocence of the accused, imposition of penalties or punishments etc. It further lays down the hierarchy of the courts competent to try criminal lawsuits. In descending order it is the High Court at the top followed by Sessions Court, First Class Judicial Magistrate, Second Class Judicial Magistrate and Executive Magistrate. There is a limit affixed for sentences which these courts can pass against the accused. The Supreme Court is the apex court, and it has the ultimate power. The code was enacted in 1973. At present, the CrPC contains 484 sections cut across 37 chapters. It also has two schedules and 56 forms.

Here is the detailed overview of the important provisions of the CrPC –

• Chapter 1 – Preliminary (Section 1 – 5)
• Chapter 2 – Constitution of Criminal Courts and Offices (Section 6 – 25)
• Chapter 3 – Power of Courts (Section 26 – 35)
• Chapter 4 – Powers of Superior Officers of Police (Section 36 – 40)
• Chapter 5 – Arrest of Persons (Section 41 – 60)
• Chapter 6 – Processes to compel Appearance (Section 61 – 90)
• Chapter 13 – Jurisdiction of the Criminal Courts in inquiries and trials (Section 177 – 189)
• Chapter 14 – Conditions requisite for initiation of proceeding (Section 190 – 199)
• Chapter 15 – Complaints to Magistrates (Section 200 – 203)
• Chapter 16 – Commencement of proceedings before magistrates (Section 204 – 210)
• Chapter 17 – The Charge (Section 211 – 224)
• Chapter 18 – Trail before a court of session (Section 225 -237)
• Chapter 19 – Trial of warrant-cases by magistrates (Section 238 – 250)
• Chapter 20 – Trial of summons-cases by magistrates (Section 251 – 259)
• Chapter 21 – Summary Trials (Section 260 – 265)
• Chapter 22 – Attendance of persons confined or detained in prisons (Section 266 – 271)
• Chapter 23 – Evidence in inquiries and trials (Section 272 – 299)
• Chapter 24 – General provisions as to inquiries and trials (Section 300 – 327)
• Chapter 25 – Provisions as to accused persons of unsound mind (Section 328 – 339)
• Chapter 26 – Provisions as to offences affecting the administration of justice ( Section 340 – 352)
• Chapter 27 – The Judgement (Section 353 – 365)
• Chapter 28 – Submission of death sentences for confirmation (Section 366 – 371)
• Chapter 29 – Appeals (Section 372 – 394)
• Chapter 30 – Reference and Revision (Section 395 – 405)
• Chapter 31 – Transfer of criminal cases (Section 406 – 412)
• Chapter 32 – Execution, Suspension, Remission and Commutation of Sentences (Section 413 – 435)
• Chapter 33 – Provisions as to bail and bonds (Section 436 – 450)
• Chapter 34 – Disposal of Property (Section 451 – 459)
• Chapter 35 – Irregular Proceedings (Section 460 – 466)
• Chapter 36 – Limitation for taking cognizance of certain offences (Section 467 – 473)
• Chapter 37 – Miscellaneous (Section 474 – 484)

Major Difference between IPC and CrPC –

1.  The IPC provides a substantive list of all crimes and lays down the punishment for each one of them. For example, Section 378 defines Theft as “Whoever, intending to take dishonestly any moveable property out of the possession of any person without that per­son’s consent, moves that property in order to such taking, is said to commit theft.” The punishment for the offence of theft is spelt out under Section 379 in the following words, “Whoever commits theft shall be pun­ished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” On the other hand, CrPC is a procedural law, and it lays down the ways or methods to be followed in a criminal case. So if a person is charged with ‘theft’, it is the CrPC which provides further details as to how the investigation would be carried out, how evidence will be collected etc. So CrPC concerns itself with the procedural aspect of the crime.
2. The primary purpose of IPC is to provide a general penal code for India which prescribes punishments to wrong-doers. The primary goal of CrPC is to consolidate the criminal law in the country.
3. The Indian Penal Code is a substantive law whereas, the Code of Criminal Procedure is procedural law.

CONCLUSION –

The Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act are the three primary legislation governing criminal law in India. They continue to play an important role in the court of law for the effective administration of justice. Besides, there are other legislations such as the Prohibition of Child Trafficking Act, the Juvenile Justice Act, which supplement the three main legislation. Both the IPC and the CrPC are pan-India in nature and extend to the whole of the State. Jammu and Kashmir are beyond their jurisdiction. IPC is the only substantive law here, and the Indian Evidence Act and the CrPC are the procedural laws.

Most Effective Ways To Overcome Breach Of Contract's Problem

Remedies for Breach of Contract

When one of the parties to the contract makes a breach of contract, then the other party has the following remedies available for Breach of Contract-

a) Damages

b) Quantum Meruit

c) Specific Performance

d) Injunction

e) Rescind the contract and refuse further performance of the same.

Read Also: Contract of Indemnity

• Damages

The remedy by way of getting damages is perhaps the most common remedy available to the injured party. This entitles the injured party to recover compensation for the loss caused or suffered by him due to the breach of contract, from the party who caused the same.

Section 73 of the Indian Contract Act, 1872 makes provisions in this regard. It talks about the right of an injured party to recover compensation for the loss suffered by him due to the breach of contract. The Section has 18 illustrations to elaborate the section further.

In action for breach for a contract, there are usually two kinds of problems –

• Firstly, the loss suffered by the plaintiff needs to be determined, whether it is a proximate consequence of the breach of contract by the defendant or not. The defendant shall only be liable for the proximate consequences of the breach of contract. He will not be liable for damages which are remotely connected with the breach of contract. This is known as “Remoteness of Damages.”
• Secondly, if it is deciphered that particular damage is in proximate result to the breach of contract, then how much compensation is to be paid by the defendant to the plaintiff, for the same?

This question was answered in the case of Hadley v. Baxendale where it was held that damages which as may fairly and reasonably be considered arsing to the usual course of things from such breach could be recovered. Secondly, damages which as may reasonably be supposed to have been in the contemplation of both the parties at the time they made the contract.

• Quantum Meruit

The expression “quantum meruit” means “as much as earned.” In other words, it means reasonable remuneration. The general rule is that when a party to a contract has not fully performed what the contract stipulates, he cannot sue for the same. But when there is one party who hasn’t performed part of his contract and is prevented by the other party from further completion, he may bring an action on a quantum meruit, for the amount of work he has done. This claim arises when one party has abandoned the contractor accepts the work done by another under a void contract.

• Specific Performance

This refers to the actual carrying out of the task by the parties as stipulated in the contract. Where a party fails to perform the contractual obligations, the Court may at its discretion order the defendant to perform his undertaking according to the terms stated in the contract. A decree for specific performance of a contract may be granted along with damages or in place of damages.

Specific performance is not granted when –

a) where monetary compensation is an adequate remedy;

b) where the court cannot supervise the execution of the contract;

c) where the contract is for some personal service;

d) where one of the parties to the contract is a minor.

The law which governs the specific performance of a contract is the Specific Relief Act, 1963.

• Injunction

An injunction refers to an order of a court restraining a person from doing an act. It is a way to secure the specific performance of a negative term of the contract, where the court may give an issue an order to the defendant restraining him from doing something that he promised not to do.  Injunctions can be prohibitory or mandatory; and temporary or perpetual.

• Rescission of Contract

When a party to a contract has committed a breach of contract, the injured party may put a contract to an end, i.e. rescind it, and he will be absolved from all the obligations under the contract. Section 65 says that when a party treats the contract to an end, then he makes himself liable to restore any benefits which he has received under the contract to the party from whom such benefits were received originally. Section 75 says that if a party to a contract rightfully rescinds the contract, then he is entitled to receive compensation for damage which he has sustained through non-fulfillment of the contract by the other party.

Read Also: Frustration of Contract

CONCLUSION

No one should get benefit from others unjustly. A remedy must be provided to the injured as quickly as possible. This is just not in morality but also in contractual obligations. The Indian Contract Act, 1872 is the primary legislation governing contractual relations in India clearly mentions five distinct grounds for awarding remedies to the injured party. This helps the parties to freely enter into contracts without any risk of getting cheated or bluffed from the other side. The essence of law is justice and remedy to the affected party is a way to provide justice. Therefore, damages, specific performance, injunction, rescission, and quantum meruit are the five remedies which the court grants in contractual relations.

Learn The Truth About Overview To Indian Contract Act 1872 In The Next 60 Seconds

The Law of Contract is a very important part of the mercantile or commercial law in India. It mostly affects people from trade and commerce and industry.

Introduction To Indian Contract Act, 1872

The Indian Contract Act, 1872 is the law which governs contracts in India. It entered into force in the year 1872. It is enforceable in all the states except the State of Jammu and Kashmir. It determines the situations in which the promises made by the parties to a contract shall be legally binding on them.

Provisions

• General Principles of Law and Contract  —– Section 1 – 75
• Contracts relating to the Sale of Goods ——– Section 76 to 129
• Special Contracts ——- Section 125 to 238
• Contracts relating to Partnership —— Section 239 to 266

Previously, the Indian Contract Act, 1872 contained provisions relating to Sale of Goods (Movable Property) and Partnership. But now these two provisions have been removed from the Act and are placed in two separate acts known as the Sale of Goods Act, 1930 and the Indian Partnership Act, 1932. So at present, the Indian Contract Act includes the General Principles of Contract and Special Contracts only.

The Rights are available under the Indian Contract Act –

There are two kinds of rights, one is Right in rem, and the other is Right in personam.

The Indian Contract Act, 1872 provides right in personam to the parties who have bound their promises in a contract. Thus, the parties in such a situation can only enforce their contractual rights against each other only and not against the world at large.

Example – X and Y enter into a contract for delivering ten books on a specified date. If Y fails to deliver the same to X, then X can sue only Y and not anybody else. The rest of the world is concerned with this contract.

Read Also: Validity of Stamp Papers

Definition of a Contract –

Section 2(h) of the Indian Contract Act defines the term contract as “an agreement enforceable by law is a contract.” So, a contract is an agreement plus legal enforceability.

Important Terminologies –

• Agreement – Section 2(e) defines agreement. An agreement results when two minds meet upon a common purpose. They agree to the same thing in the same sense. Section 2(e) defines the term agreement as “every promise and every set of promise, forming the consideration for each other.” An agreement only happens when there is an offer by one party and acceptance by the other party. Therefore, offer + acceptance = agreement.
• Offer – Section 2(a) defines the term offer or proposal as, “When one party signifies to another his willingness to do or to abstain from doing anything, to obtain the assent of that other to such act or abstinence, he is said to propose.” Offer is the first step for agreeing. An offer can be made to a person or the public at large, known as general offers.
• Acceptance – When the person to whom the offer is made signifies his assent for the same, then the offer is said to be accepted. Section 2(b) defines the same.
• Promise –  Offer + Acceptance = Promise. So, when the offer is accepted, it becomes a promise. Section 2(b) defines the same.
• Consideration – Consideration refers to getting “something in return.” In India, consideration can be past, present or future. A contract without consideration is void. The consideration must be lawful and real, and it need not be adequate.
• Free Consent – A contract can only be made when there is free consent between the parties. A contract without free consent is voidable, and a contract without consent is void. A contract has to be free of coercion, undue influence, fraud, misrepresentation or mistake.
• Contract of Indemnity – A contract of indemnity is a contract wherein, one party promises to protect the other party from causing loss to him by the conduct of the promisor himself, or by the conduct of any other person.
• Bailment –  Bailment refers to transactions whereby one person delivers goods to the other for some purpose based upon a contract that they are when the purpose is accomplished to be returned or otherwise disposed of according to the directions of the person delivering them.

Read Also: Non-Compete Clause in Employment Agreement

Classification of Contracts –

Contracts can be classified into three broad branches –

1. Based on Enforceability –

•  Contract
• Voidable agreement
• Void Agreement
• Agreement
• Illegal agreement
• Voidable contract

2. Based on formation –

• Express contract
• Tacit contract
• Implied/Quasi contract

3. Based on performance –

• Executed contract
• Executory contract  —- a) Unilateral contract             b) Bilateral contract

Remedies for Breach of Contract –

In case of a breach of contract, the injured party has the option to –

• Rescind the contract and refuse further performance of the same
• Sue for damages
• Sue for specific performance
• Sue for an injunction
• Sue on quantum meruit

CONCLUSION –

Every man in his day to day life makes contracts. Man’s contract making ability increases with increasing trade, commerce and industry in modern society. The conferment and protection of the law enable people to strike the best bargain for the contract making purpose. People are permitted to regulate and define their relations in the best possible manner they choose. In India, these general principles are statutorily presented in the Indian Contract Act, 1872. This helps contracts to function legitimately and also provide remedies to the ones affected by it. Therefore, the Indian Contract Act, 1872, is undoubtedly one of the most important statutes in India.