Introduction

The three new criminal laws introduced in the 'Amritkal' of Indian democracy have sparked
both, a sense of apprehension as well as preparedness in the legal community. It has sparked
debate among the legal and civil rights activists over certain “retrograde provisions” as well
as certain “ambiguous provisions”. This article examines the intricacies of the newly
introduced criminal procedural law and underscores the impact of the modifications
introduced under it.

The new laws bring forth the requisite changes coupled with the fusion of technology. The
measures include online FIR registration, statutory basis to Zero FIR, to prevent unnecessary
delays, courts are permitted a maximum of two adjournments. However certain provisions
like the mandatory registration of Zero FIRs, extension of period of police custody and
Preliminary Enquiry before registration of FIR's may at the implementation stage fall short of
the desired goals with which they are introduced. This article shall in depth analyse these
anomalies in law.

ROLE OF POLICE IN ADMINISTRATION OF JUSTICE:

The term police in general sense, associated with the maintainance of public order and the
protection of citizen from crime and other dangerous incidents which are unlawful. Police
constitutes the third most important pillar of criminal justice system while judiciary and
prosecution are other two important pillars. Police plays a crucial role in the investigation of
crime, and it is the police that first come in contact with witnesses, victims and accused. To
be more specific, police is the one which mainly identifies the accused and help the
prosecution to prove the guilt of accused in the criminal trials, this mainly happens with
investigation. As per the criminal law of India, the police is empowered to investigate
cognizable offences (Section 2(c), Code Of Criminal Procedure, 1973) without permission of
the Magistrate, and for the investigation of non-cognizable offences (Section 2(l) of the Code
of Criminal Procedure1973), police must first take permission from the Magistrate.
The process of criminal justice has the following major steps
1. Step 1 Registration of a First Information Report (FIR). The criminal justice process begins
with the registration of the first intelligence report. An FIR is a document created by the
police when they receive information about the execution of a recognizable crime.
2. Step 2 Police officers go to the crime scene and investigate facts of the case. Police
investigations mainly include: o Criminal investigations Witnesses and suspects
investigations o Name records of the accused o Conducting investigations Seizure of property
o Collection of fingerprints, footprints, and other scientific evidence Record reference and
entry Case Diaries, diaries, station diaries, etc. predetermined record of the investigations
conducted. o Arrest and detention
3. Defendant Interrogation After the step 3 of investigation is complete, the Office in Charge
of Police Department sends a report to the local Magistrate which is called as the charge sheet
when considered. The report sent by Investigator is in the form of a claim if there is sufficient
evidence to prosecute Defendant.
4. When sufficient evidence is not available to prosecute the defendant, such a report is
referred to as a final report and the same is taken for consideration. Step 4 claim, the court
will begin a trial of the case with recognition.
5. Charges to the accused are framed and after following the procedure, the prosecution must
definitely prove the defendant's allegations in the same context by stating full and proper
directions. At this stage , the accused is given ample opportunity to protect himself.
6. Step 6: A court convicted of a trial may declare one of the following Punishment to the
accused
a. Fine b. Property Forfeiture c. Simple Imprisonment d. Rigourous Imprisonment e. Life
Imprisonment f. Death Penalty Police Officer
● A police force is a constituted body of persons empowered by a state to enforce the law, to
protect people and property, and to prevent crime and civil disorder.
● The term is most commonly associated with police services of a sovereign state that are
authorized to exercise the police power of that state within a defined legal or territorial area
of responsibility.
● Law enforcement is only part of policing activity. Policing has included an array of
activities in different situations, but the predominant ones are concerned with the preservation
of order.
● Each state and union territory of India has its own separate police force. Article 246 of the
Constitution of India designates the police as a state subject, which means that the state
governments frame the rules and regulations that govern each police force. These rules and
regulations are contained in the police manuals of each state force.
● The head of the police force in each state is the Director General of Police (DGP), who is
responsible to the state government for the administration of the police force in each state,
and for advising the government on police matters. The DGP represents the highest rank in
the police hierarchy.
● The hierarchical structure of the police in India follows a vertical alignment consisting of
senior officers drawn, by and large, from The Indian Police Service (IPS) who do the
supervisory work, the "upper subordinates" who work generally at the police station level,
and the police constabulary who are delegated the patrolling, surveillance, guard duties, and
law and order work.
● According to the preamble of Police Act, 1861 “the police officer is an instrument for the
prevention and detection of crime. Police department plays an important role in maintaining
peace and order. They derive the power to investigate from Criminal Procedure Code.
ROLE OF POLICE IN ADMINSTRATION OF JUSTICE:
When any crime happens , there are so many steps which has been taken in the administration
of justice. Here, we are discussing about the role of police in the administration of justice, so
there are so many points and steps which is initiated by a police when any crime happens
such asregistration of FIR( First Information Report), making arrest of accused, conducting
investigation , medical examination of accused, preparation of charge sheet and so on

Mandatory Registration Of Zero FIR

The most problematic aspect of the mandatory registration of Zero FIR is ambiguity in the
provisions related to the procedure after the registration of the FIR. Now Zero FIR has been
given a statutory basis by including it in Section 173 which relates to registration of FIR in
cognizable cases.
Zero FIR had been introduced with the primary purpose to ensure that the victims can file
complaints regardless of jurisdiction, addressing a longstanding issue in crime reporting. It
was introduced to eliminate the common practices among the police officers where they
refused to register police complaints citing jurisdictional issues. Under this the police station
must necessarily register the FIR when approached by the complainant and then transfer it to
the police station having jurisdiction for investigation. The receiving police station must start
investigation based upon the FIR transferred to it.
The problem with the necessary registration of Zero FIR would be firstly, jurisdictional
manipulation wherein the complainant might deliberately file FIRs in distant location to
harass the accused and the issue with this would be that the Police station registering the FIR
can make arrests on the basis of that FIR, potentially infringing the fundamental rights of the
people. The officers even without having the jurisdiction over the matter could detain a
person in custody as the magistrate before whom the accused is being presented may decide
whether to grant the custody to the police irrespective of the jurisdiction as per section
187(2).
Secondly, the law is silent on the procedure to be followed after the registration of filing of
the Zero FIR, specifically the time taken to transfer the case to the police station of
appropriate jurisdiction. Silence on the time to be taken for the transfer of FIR is a procedural
anomaly which could be exploited by the police would lead to miscarriage of justice owing to
the delay in transfer of cases.
Extension Of Police Custody
Earlier under Sec 167, the maximum period of police custody was 15 days. If the
investigation could not be completed within 15 days, then the person would be sent in judicial
custody to provide safeguard against potential custodial violence. However, under the BNSS
Sec 187, the magistrate may authorise the detention of the person, beyond the period of
fifteen days to ninety days where the offense is punishable with death, imprisonment for life
or imprisonment for a term of not less than ten years or sixty days where the investigation
relates to any other offence, whichever may the case be.
The government argues that this is a necessary measure for through examination in complex
cases and shall not infringe upon the fundamental rights as the extension would require
judicial oversight and approval from the magistrate. The government argues that this measure
would aid in the investigative process.
Critics argue that not only it goes against the international pre-trial detention standards which
provides for minimal detention period but also violate several fundamental rights, particularly
the right against self-incrimination. It could also lead to rise in custodial crimes.
Preliminary Enquiry Before Registration Of FIRs
The new laws have brought in provisions which expand the powers of the police which may
raise potential concerns regarding the arbitrary and capricious use of powers by the law
enforcement agencies. It is ironical that the Bharatiya Nagarik Suraksha Sanghita claiming to
be citizen centric has raised concerns regarding the erosion of safeguards surrounding the
civil liberties of individuals. The major concern in this regard arises with the introduction of
Section 173(3) of BNSS.
The police on being intimated that a cognizable offence has taken place will now be allowed
a period of 14 days to conduct a preliminary enquiry before registering the FIR. The
concerned police officer if satisfied that a prima facie case exists to proceed under Section
173(3), will then proceed with further investigation. The period of 14 days for conduction of
preliminary enquiry provided in Section 173 (3) BNSS is a change from its corresponding
provision in CRPC. Section 154 of the CRPC dealt with the registration of FIRs on receipt of
information about the commission of cognizable offences.
The Supreme Court in Lalita Kumari v. Govt. of Uttar Pradesh held that it is mandatory for
the police to register an FIR on being informed about the commission of a cognizable
offence. Therefore, the period of 14 days for conduction of preliminary enquiry before
registration of FIRs as stated in Section 173(3) BNSS is in complete contradiction of the
above judgement.
The approach by the legislature is likely to reduce the no. of FIRs being registered but
inevitably raises concern about the misuse of discretion by the police. The move of the
legislature is being supported by some on the ground that it reduces the burden of frivolous
FIRs being registered. After investigation if it is found that the information received was false
then there is always an option to prosecute the complainant for filing a false FIR. Therefore,
the move of legislature seems unnecessary when there are other recourses available for
prosecuting complainants filing false FIR.
There are certain cognizable offences where there is a need for preliminary enquiry such as
matrimonial disputes, corruption cases, medical negligence cases, etc. The Supreme Court
has also expressed its view in support of preliminary enquiry being conducted in these
offences. These exceptions have been carved out by the judiciary to protect the rights of the
accused. It would be unfair in these cases to prosecute the accused only on the basis of
allegations by the complainant.
The other argument in support of preliminary enquiry is that mandatory registration of FIRs
will lead to arbitrary arrests which will violate Article 21. The registration of FIR and
subsequent arrest are two complete different concepts. It would not be correct to say that
registration of FIRs would lead to arrest. Furthermore, it seems relevant to mention Section
482 of BNSS which gives an accused the right to obtain anticipatory bail from the court to
avoid arrest in certain cases. There are legal remedies available against arbitrary arrests by the
law enforcement agencies.
However in past there have been cases from both the sides where the victim suffered due to
non-registration of valid FIRs and where the accused suffered due to registration of frivolous
FIRs. Therefore, a delicate balance had to be maintained between the societal interests and
individual interests. The court after weighing arguments from both the sides was of the view
that there already are sufficient safeguards available to individuals against registration of
false FIRs and held it mandatory for the police to register FIRs in case of cognizable
offences. Therefore, the implementation of Section 173(3) BNSS has to be seen in the light of
previous Supreme Court judgements which have minutely analysed the consequences of non-
registration of FIRs.
The laws are though a step in the right direction to break away from the colonial hangover
and provide a touch of Indianness to the laws. However, it is too early to decide upon the
effectiveness and the new set of complications that may arise out of the new laws. In order to
better assess the impact of these laws they must be implemented and studied for a period of at
least 10 to 12 months. The time shall decide whether the laws are a leap forward or a step
backward.

What are the new rules for police officers under the Bharatiya Nagarik Suraksha
Sanhita (BNSS)?
1. Zero FIR Registration: Police officers must register an FIR regardless of jurisdiction
issues under Section 173 of the BNSS. This ensures that no complaint is turned away
due to territorial concerns. If the incident occurred outside their jurisdiction, they are
required to transfer the FIR to the appropriate station.
2. Electronic Submission: FIRs can now be filed electronically through platforms like
the CCTNS portal, police websites, or official email addresses. This must be signed
by the complainant within three days to be officially recorded.
3. Mandatory Videography: Sections 185, 176, and 105 of the BNSS mandate
videography for searches, crime scenes, and seizures. This is to preserve evidence
integrity and support transparent proceedings. Officers are equipped with electronic
devices for this purpose, using apps like ‘eSakshya’ which tags and timestamps
images and videos.
4. Display of Arrest Information: Information about arrested individuals must be
displayed at police stations as per Section 37. This includes names, addresses, and
details of the alleged offences, enhancing transparency.
5. Restrictions on Arrests: Under Section 35(7), elderly or infirm individuals cannot be
arrested for offenses punishable by less than three years without permission from an
officer of Deputy Superintendent rank or higher.
 6. Timelines and Reporting: The medical report in a rape case must be submitted
within seven days. POCSO case investigations must finish in two months. Police must
update the informant or victim about investigation progress within 90 days.
7. Special Provisions for Electronic Evidence: There is a focus on maintaining a chain
of custody for electronic evidence to prevent tampering, emphasizing the role of cyber
experts in safeguarding digital data.
8. Defining a Terrorist Act: A new rule under Section 113 defines ‘terrorist acts’ and
assigns the duty to officers of SP rank or higher to decide on registering such cases,
considering several factors like the severity of the threat and the level of investigation
needed.

OTHER POWERS OF POLICE

Police seeks police custody under section 167 when investigation is not completed within 24
hours. Police custody is given maximum up to 15 days. This is called as police custody.)
● The magistrate may authorize the detention of the accused person otherwise than in the
custody of police beyond the period of 15 days, if he is satisfied that adequate grounds exist
but the detention should not exceed 90 days where the investigation relates to an offence
punishable with death, life imprisonment, or 10 years imprisonment and detention should also
not exceed 60 days in case of other offences.
● On the expiry of said period of 90 days or 60 days the accused shall be released on bail if
he is prepared to and does furnish bail.
● Police can release the accused when evidence is deficient as per section 169 CrPC.
● Police power to inquire and report on suicide is given in section 174
● Medical Examination of the victim of rape
● Search by Police Officer

CASE LAWS: FIR:

Ashok Kumar Todi v. Kishwar Jahan (2011), Court held in the case that registration of the
FIR should be treated as a condition precedent to the starting of the investigation.
State of U.P. v. Mukesh (2013) Court held in this case that FIR is an intimation regarding the
happening of an event. It is to be noted that only the main information received needs to be
mentioned in the regular diary. Also, this information shall not be considered the source of
every fact.
Tapinder Singh v. State of Punjab (1970) Court held that where the information is
anonymously given via telephonic message and it does not clarify a cognizable offence, then
it cannot be treated as an FIR.
INVESTIGATION:
Prabal Dogra v. Superintendent of Police, Gwalior and State of M.P (2018) HELD - the
High Court in the exercise of powers u/s 482 of CrPC cannot order or direct the police to
search for a particular point of view or in a particular direction. The Court also cannot
supervise the investigation by issuing directions as it pleases to do so. It further stated that
investigation exclusively comes under the domain of police and the sanctity of same should
be maintained.
However, in the case of T.T. Antony v. State of Kerala (2001) the Court stated that the police
should not overreach and transgress the power given to them. If done so, the High Court may
in the interest of justice under Section 482 of CrPC or under Article 226/ 227 of the Indian
Constitution prohibit the police from conducting further investigation to prevent the abuse of
power.
Manubhai Ratilal Patel Tr. Ushaben v. State of Gujarat (2013) In the case of Manubhai, it
was held that investigation exclusively comes under the domain of the police. Thus, it is the
police that has been empowered to perform the task of investigation before the commencing
of a criminal trial, thereby digging out the facts and circumstances of a criminal case.
Shantibhai J. Vaghela v. State of Gujrat (2013) It was held , that the police can exercise the
power of further investigation even after the filing of a charge sheet.
State of U.P v. Sant Prakash (1976) The Allahabad High Court held that investigation is
mainly conducted for the collection of evidence, and it must necessarily be conducted by the
police officer or any other person authorised by the Magistrate.
ARREST
Arnesh Kumar v. State of Bihar (2014) it was held that in cases where the offence is
punishable with less than 7 years, be it with a fine or without a fine, the police shall not
unnecessarily arrest the accused. The Court further stated that the Magistrate must not
authorize and order arrest or detention casually or mechanically. The same opinion was
reiterated by the Gujrat High Court in the case of Kamuben Somaji Bhavaji Thakore v. State
of Gujrat (2022)
Introduction
 Public Prosecutor plays a vital role in the administration of the Criminal Justice
System in India. The Police, the Prosecution, the Judiciary, and the Prison and
Correctional Services constitute the components of the Criminal Justice System.
 A Public Prosecutor represents the State in a criminal case as a crime is
considered to be an offense against the State.
 His role came into the picture after chargesheet is submitted by the police. He
presents the multiple aspects of the case during the trial and assists the Court in the
delivery of Justice.
 The United Nations Guidelines on the Role of the Prosecutors requires
Prosecutors to perform their duties fairly, impartially, and consistently, protecting
human dignity, upholding human rights and avoiding all political, social, religious,
cultural, sexual or any other kind of discrimination[1].
 In order to ensure the fairness and effectiveness of prosecution, prosecutors must
strive to cooperate with the police, the courts, the legal profession, public defenders
and other government agencies or institutions[2].
 Complying with these provisions, the Code of Criminal Procedure, 1973 mandates
the appointment of Public Prosecutors in the High Courts and District Courts.
Public Prosecutor and His Appointment
 A Public Prosecutor is a lawyer who acts for the government against someone
accused of a crime and prosecutes them in the Court.
 According to the Code of Criminal Procedure, 1973 (CrPC, 1973) “Public
Prosecutor” means any person appointed under Section 24, and includes any person
acting under the directions of a Public Prosecutor[3]. While, under Bhartiya Nagarik
Suraksha Samhita, 2023 (BNSS), he is a person appointed under Section 18 and
includes any person acting under his directions.
Categories of Public Prosecutor
Section 24 of CrPC (now, Section 18 of BNSS, 2023) provides three main categories of
Public Prosecutors:
A. Category I: Those who are attached to a particular High Court or district;
B. Category II: Assistant Public Prosecutors who are linked to a particular case or a class
of cases but in a specified jurisdiction;
C. Category III: Special Public Prosecutors appointed under Section 24(8) of the Code
[or Section 18(8), BNSS].
A. Appointment of Public Prosecutor under CrPC, 1973 (Category I)
Section 24 of the CrPC, 1973 (Section 18 of BNSS, 2023) mandates the appointment of a
Public Prosecutor or Additional Public Prosecutor for every High Court and District Court.
The provisions of this section can be explained in the following steps:
1. Who Appoints
Section 24(1) of CrPC provides that the Central Government and the State Government
appoint a Public Prosecutor and may appoint one or more Additional Public Prosecutors for
every High Court and they have to conduct prosecution, appeal or other proceeding in such
Court on behalf of the respective Government.
This provision is similar to Section 18(1) of BNSS. However, the BNSS includes a proviso
clause for NCT Delhi, according to which only Central Government shall appoint the Public
Prosecutor or Additional Public Prosecutors, after consultation with the High Court of Delhi.
The point to be noted here is that the power of the State Government to appoint a Public
Prosecutor or Additional Public Prosecutor would extend only for conducting prosecution,
appeal or other proceedings in the courts within that State (Jayendra Saraswathi Swamigal
v. State of Tamil Nadu)[4].
2. Panel of Names
To appoint a Public Prosecutor or Additional Public Prosecutors for every district,
the District Magistrate u/s 24(4) of CrPC (now, Section 18(4) of BNSS) shall prepare a
panel of names in consultation with the session judge.
The panel of names include the name of those who are in their opinion fit to be appointed as
Public Prosecutor or Additional Public Prosecutor. The State government shall appoint them
from these panel of names u/s 24(3) CrPC [similar to Section 18(3) BNSS].
Further, Section 24(5) CrPC [similar to Section 18(5), BNSS] puts an obligation on the
State that it can not appoint any person as the Public Prosecutor or Additional Public
Prosecutor unless his name is not in the list of panel of names prepared by the District
Magistrate.
3. Regular Cadre of Prosecuting Officers
Section 24(6) of the CrPC mandates that, if there exists a regular Cadre of Prosecuting
Officers in a State, the State Governments are obliged to appoint Public Prosecutors or
Additional Public Prosecutors only from amongst the persons constituting such cadres. The
same provision is also laid down by BNSS u/s 18(6).
If 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).
The expression “regular cadre of Prosecuting Officers”[5]as held by Supreme Court in the
case of A.K. Ahlawat v. State of Haryana[6], (2010) comprised a service with the Assistant
Public Prosecutor at the lowest level and Public Prosecutors at the top. Further the court in
the case of K.J. John, Asst. Public Prosecutor v. State of Kerala[7] held that in case a
regular cadre of Prosecuting Officers did not go up to the Public Prosecutor at the top, the
State Government cannot be considered as bound to appoint Public Prosecutor or Additional
Public Prosecutor only from among the persons constituting such cadre under the Code of
Criminal Procedure for conducting cases in the sessions court.
4. Experience
Section 24(7) of CrPC [similar to Section 18(7) of BNSS] laid down a mandatory provision
that the person has been in practice as an advocate for not less than seven years to be
appointed as an Additional Public Prosecutor or an Additional Public Prosecutor under sub-
section (1) or sub-section (2) or sub-section (3) or sub-section (6) of this Code.
In short, Public Prosecutor and Assistant Public Prosecutor is appointed by Centre and
State Government in High Court and in a district the Public Prosecutor or assistant
Public Prosecutor is appointed from the panel of names prepared by District Magistrate
in general.
B. Assistant Public Prosecutor (Category II)
Section 25 of CrPC [S.19 of BNSS] deals with the appointment of Assistant Public
Prosecutors in the district for prosecution in the courts of Magistrate. Section 25(1) of
CrPC states that the State Government shall appoint in every district one or more Assistant
Public Prosecutors for conducting prosecutions in the Courts of Magistrates.
Further, u/s 25(2) CrPC, no police officer shall be eligible to be appointed as an Additional
Public Prosecutor subject to the provision under sub-section (3). According to Section
25(3), where no Assistant {Public Prosecutor is available for the purpose of any particular
case, the District Magistrate may appoint any other person to be Assistant Public Prosecutor
in charge of that case:
Provided that a police officer shall not be so appointed –
(a) If he has taken any part in the investigation into the offence with respect to which the
accused is being prosecuted; or
(b) If he is below the rank of inspector.
C. Special Public Prosecutor
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 u/s 24(8) of CrPC[s.18(8) of BNSS].
It is to be noted that Supreme Court in the case of Poonamchand Jain v. State of M.P.
[8] held that the appointment of Special Public Prosecutor is not with reference to the High
Court or district, but is an appointment for a case or class of cases in any court. Without
disclosing a special reason, order appointing a Special Public Prosecutor is illegal.
Role of Public Prosecutor
The Public Prosecutor is an office of high regard and carries great responsibility. He has to
act objectively and not according to the dictates of the State Government (see: Captain
Amarinder Singh v. Prakash Singh Badal[9]). The role of the Public Prosecutor has been
emphasized in various judgments of the Supreme Court which has been discussed below:
1. Sole authority to conduct prosecution in a session Court
The Public Prosecutor has the sole authority to conduct prosecution in the Sessions Court.
While observing the role of the Prosecutor, Supreme Court in the case of Shiv Kumar v.
Hukam Chand[10] held that, from the scheme of the Code the legislative intention is
manifestly clear that prosecution in and Sessions Court cannot be conducted by anyone
other than Public Prosecutor. The court highlighted the importance and responsibility of
public prosecutors in conducting prosecutions fairly, ensuring they prioritize justice over
convictions.
2. Public Prosecutor does not represent the investigating agency
There have been claims that the Public Prosecutor acts as part of the investigating agency.
However, the Supreme Court, in Hitendra Vishnu Thakur v. State of Maharashtra[11],
determined that a Public Prosecutor is not a member of the investigating agency, but
rather an independent statutory authority.
The Public Prosecutor is required to independently evaluate the investigating agency’s
request before presenting a report to the court for an extension of the investigation period.
However, he is not simply a post office or forwarding agency. The Prosecutor may reject the
investigating officer’s rationale for requesting more time and may find that the investigation
has not advanced appropriately, or that there has been unnecessary, deliberate, or avoidable
delay in its completion
This distinction was further stressed upon in S.B. Shahane v State of Maharashtra[12]
where the apex court emphasized on the desirability of separation of prosecution agency from
the investigation agency.
3. During the Trial of a session case
The Public Prosecutor plays a crucial role during the trial of a sessions case. While the
Sessions Judge supervises the overall conduct of the trial, it is the Public Prosecutor who
determines which witnesses will are to be examined on behalf of the prosecution or which
will be dismissed, and which will be recalled for further examination. [Jayendra Saraswati
Swamigal alias Subramaniam vs State of Tamil Nadu [13]].
Taking a step further, the Court in Niranjan Gosai v. State of Jharkhand[14] observed that
under Section 225 CrPC, every trial before the Court of Session must be conducted by the
Public Prosecutor. Furthermore, regarding withdrawal of prosecution, the Public Prosecutor
in charge of the case must make the application for withdrawal as per Section 321 CrPC.
4. His duty is not to secure conviction or acquittal of the accused
The Public Prosecutor’s key duties include to present all evidences before the Court and also,
to ensure that all crucial witnesses appear in court. His objective is to assist the court in
delivering justice and not to secure the conviction or acquittal of an accused.
5. Maintenance of the rule of law lies in their hand
The Public Prosecutors while presenting the prosecution case have a duty to see that innocent
persons may not be convicted as well as an accused guilty of commission of a crime does not
go unpunished. Maintenance of law and order in the society and, thus, to some extent
maintenance of the rule of law which is the basic fibre for upholding the rule of democracy
lies in their hands [State of U.P. and Another v. Johri Mal][15].
6. Ensuring fairness in the proceeding
The duties of Public Prosecutor extend to ensuring fairness in the proceedings and also to
ensure all relevant facts and circumstances are brought to the notice of the Court for a just
determination of the truth so that due justice prevails [V.K Sasikala v. State Represented by
Superintendent of Police[16]; Sidhartha Vashisht Alias Manu Sharma v. State (NCT of
Delhi)[17]]. The role of Public Prosecutor in ensuring a fair trial is of paramount
importance [National Human Rights Commission v State of Gujarat and Others][18].

7. Ensure administration of justice

As reiterated in Babu vs. State of Kerala[19], a Public Prosecutor is essentially a minister of
justice whose role is to assist the State in administering justice, rather than representing any
particular party. The role of the Public Prosecutor in the criminal justice system has been very
aptly described in Centre for Public Interest Litigation v. Union of India[20], (2011) as:
“The Prosecutor has a duty to the State, to the accused and to the court. The prosecutor at all
times a minister of justice, though seldom so described. It is not the duty of the prosecuting
counsel to secure conviction, nor should any prosecutor even feel pride or satisfaction in the
mere fact of success.”[21]
The Supreme Court in Shrilekha Vidyarthi v. State of U.P.[22] emphasized that the role of a
Public Prosecutor is to serve the public interest and ensure the administration of justice. The
statutory provisions in the CrPC highlight that the Public Prosecutor holds a public office,
which goes beyond a mere professional engagement between a client and lawyer.
Therefore, a Public Prosecutor’s duties extend beyond ensuring the accused is punished. They
must ensure fair play in the proceedings, present all facts to the court, and seek truth and
justice for all parties, including the victims. These responsibilities do not permit the
prosecutor to be lax in any duties as against the accused [Sidhartha Vashisht Alias Manu
Sharma v. State (NCT of Delhi)[23]].
Appearance by Public Prosecutor
Section 301 of CrPC which is similar to Section 338 of BNSS deals with appearance by
Public Prosecutor. Section 301(1) provides that the Public Prosecutor or Assistant Public
Prosecutor in charge of a case may appear and plead without any written authority before any
Court in which that case is under inquiry, trial, or appeal.
Under Section 301(2) CrPC [s. 338 of BNSS], a private person can instruct his advocate to
prosecute any person in any court in any such case. The Public Prosecutor or Assistant Public
Prosecutor in charge of the case shall conduct the prosecution, and the advocate so instructed
shall act therein under their directions. With the permission of the Court, they can also submit
written arguments after the evidence is closed in the case.
Further, Section 302 CrPC [Section 339 BNSS] enables the Magistrate to permit any person
to conduct the prosecution (except a police officer below the rank of Inspector). This laxity is
not extended to any other courts. It is to be noted that Section 301 has wider application
than Section 302. While, the later applicability confined to Magistrate Courts, former extends
to all the courts of criminal jurisdiction.
When a privately engaged counsel assists the Public Prosecutor, their role is similar to
that of a junior advocate working under a senior in court. The private counsel acts on behalf
of the Public Prosecutor, even though they are hired by a private party. If the Public
Prosecutor’s role is reduced to mere supervision, the trial could become a battle between the
private party and the accused, undermining Section 225 of the Code (Shiv Kumar v. Hukam
Chand)[24]. This ruling addresses cases where private counsels, despite having the Public
Prosecutor’s consent, were not allowed to prosecute the accused.

CONCLUSION
“The office of a Public Prosecutor is a public one” and “the primacy given to the Public
Prosecutor under the Scheme of the Code (CrPC) has a social purpose” [Mukul Dalal v.
Union of India][25]. He is not appointed only to perform the function of prosecution on
behalf of the State, but he has a very important role in the administration of justice. He has to
work objectively with his own application of mind on case to case basis. His power and
function vested with the duty of appreciation of all the facts before the court so that justice
can be delivered. Thus, as a minister of justice, he is a means to secure justice. His office
aims to secure the rule of law in the country as it facilitates fairness in the proceedings.

ROLE OF DEFENCE COUNCIL IN ADMINSTRATION OF JUSTICE:

Every person arrested by the police has a right to defend himself with the help of a counsel. A
defence attorney is a lawyer representing the defendant in a criminal trial. Most defence
attorneys specialize in criminal defence, and some further narrow their practice to specific
types of criminal defence. A defence attorney can work as part of a large or small law firm, or
a private practice. Like all attorneys, a defence attorney is a highly educated professional and
a member of the state bar. A criminal defence lawyer is hired to defend both individuals and
corporations, called defendants in legal settings, who have been arrested as suspects for
unlawful activities. This type of lawyer may also be known as a defence attorney or simply as
a criminal lawyer. Criminal defence lawyers have a deep knowledge about the law and how
the court system works. They have attended law school, and usually have several years of
experience.
A criminal defence lawyer can either be hired by a defendant or appointed by the court if the
defendant cannot afford an attorney on his or her own Both the Constitution of India and the
Code of Criminal Procedure on the accused a right to consult and to be defended by a legal
practitioner of his choice. The accused’s right to have a lawyer of his choice is also a
constitutional right under Article 22. Section 303 provides that after initiating any proceeding
against the accused, the accused should be defended by a lawyer of his choice.
 On the other hand S.304 requires the court under certain circumstances to arrange lawyer for
his defence at the state’s expenses. Article 39-A also provides free legal aid, because as per
this directive principles this is the duty of the state to provide free legal aid.
The Supreme Court in case of SUKH DEV v. STATE OF ARUNACHAL PRADESH, held
that conviction of the accused in a trial in which he was not provided any defence lawyer
would be set aside as being violative of Article 21 of the constitution. Similarly, in D.K. Basu
v. State of W.B., certain guidelines have been given which has been included in the Crpc.
Section 41(A) to 41(D) has been inserted by the recommendation of Malimath Committee.
If a case advances to a trial, the most important goal of the defence attorney is to create a
reasonable doubt in the minds of the judges. This can be done in a variety of ways, from the
introduction of exculpatory evidence, to the discrediting of adverse witnesses. Information
given to a defence attorney by his client is generally confidential but when there is national
security interest at stake they would try to extract sensitive information from their clients and
to disclose them.
State of Madhya Pradesh v.Shobharam It was provided that any law that takes away the
right to defend is against the rights guaranteed in the constitution. This provision should be
construed in relation to Article 22 of the Constitution of India.

The defence counsel does not have to be objective, and his or her job is solely to safeguard
your interests. The defence counsel's job is to highlight all the information and circumstances
that are in your favour.
Before the trial proceedings
While the police are investigating a potential criminal case against you, the defence counsel
is entitled to be present during the police's interview with you.
The defence counsel may also ask the police to take investigative steps that he or she believes
are relevant to the case. This could include witness interviews or technical examinations –
fingerprints, DNA traces, telecom data, or video surveillance recordings. If the police find
these investigative steps irrelevant, the court will have to decide whether they should be
carried out.

As a general rule, the defence counsel is entitled to receive a copy of all material compiled by
the police for the criminal case. The defence counsel may show you the material, but you can
only have a copy if the police allow it.
During the trial proceedings
When the police have completed their investigation, the prosecution service will decide on
any further action in the case.
The prosecution service will bring formal charges if the prosecutor finds there is enough
evidence to have you convicted. When formal charges are brought, the case is sent to the
court along with an indictment listing the charges. This means that you are no longer
provisionally charged but now formally charged.
When formal charges are issued, it is the defence counsel's job to assist you during the actual
trial proceedings. This is where the defence counsel will be able to question you and the
witnesses in the case.
The defence counsel's job is to highlight all the information and circumstances in favour of
your not being guilty of the charge issued by the prosecution service.
Similarly, the defence counsel must highlight every aspect in favour of your being given a
lenient sentence if you are convicted.
After the trial proceedings
When a judgment has been delivered in a criminal case, the court and the defence counsel
will guide you as to your options for appeal. You can usually choose to have your case heard
in both the district court and the high court. You will need permission from the Appeals
Permission Board to appeal if you have been sentenced to less than 20 day penalties or a total
fixed penalty amount of less than DKK 3,000.

You or the prosecution service must file the appeal within 14 days after the judgment was
delivered. If you have been in custody during the proceedings, the court will decide whether
you should remain in custody.
CONCLUSION
The functionaries under the Code of Criminal Procedure are very essential for the
enforcement of various provisions of this Code. Each functionary has a different duty which
together regulates various provisions of this code. The public should be aware of the various
functions performed by these functionaries in order to approach them when there is an issue.
The Public should support these functionaries in every way possible to help them perform
their duties. Thus these authorities form an important part of the criminal proceedings.

Zahira Habibulla H. Shiekh V. State of Gujrat, 2004

★ Also known as BEST BAKERY CASE.
★ The night of March 1, 2002 witnessed the unruly burning of Best Bakery at Vadodara, one
of the many ghastly alleged retaliations to the Sabarmati Coach S-6 fire. Zahira, the
COMPONENTS COURTS LAW ENFORCEMENT ADJUDICATION DEFENCE
LAWYERS PROSECUTION CORRECTIONS AND PRISONS main eye-witness of the
gruesome incident, is the first appellant in the case of Zahira Habibullah Sheikh v. State of
Gujarat, which serves as the first grave condemnation of the possibly collapsing criminal
justice system in India by one of its own at the apex court.
★ The need to protect witnesses has been emphasised by the Supreme Court of India in
“Zahira Habibulla H. sheikh and Another v. State of Gujarat” 2004. While defining Fair
Trial, the Supreme Court observed that “If the witnesses get threatened or are forced to give
false evidence that also would not result in fair trial”.
★ In that case, according to the Appellant there was no fair trial and the entire effort during
trial and at all relevant times before also was to see that the accused persons got acquitted.
When the investigating agency helps the accused, the witnesses are threatened to depose
falsely and prosecutor acts in a manner as if he was defending the accused, and the Court was
acting merely as an onlooker and there is no fair trial at all, justice becomes the victim.
★ Firstly, the Supreme Court concretized its reprimand of the faulty, perfunctory, biased and
mala fide investigation, which was done ostensibly with the object of enabling the acquittal
of the accused persons, in the form of a direction to the DGP Gujarat to monitor the re-
investigation, if any, to be taken up with utmost sincerity. Deficiency in investigation, as was
the case in the present situation, has been essentially held to be a ground for re-investigation
in subsequent decisions.
★ Secondly, the Court also recognized that the Public Prosecutor failed to do the bare
minimum expected of him to fairly present the case of the prosecution. The unusual set of
factors (such as, the public prosecutor “…acting more as a defence counsel than one whose
duty was to present the truth before the Court…”were noted as sufficient to allow witnesses
and victims to have a say in the matter of such appointment. This has further been concretized
in the form of the Code of Criminal Procedure (Amendment) Act, 2008, which vests the
Court with the power to “permit a victim to engage an advocate of his choice to assist the
prosecution”.
★ Thirdly, the Supreme Court directed scathing remarks towards the conduct of the State
government, referred to as the “modern day Neros”Cases prior to this have strategically
evaded questions of State responsibility in acts of communal violence on the ground.
★ the Hon’ble Apex court observed that If a criminal court is to be an effective instrument in
dispensing justice, the presiding Judge must cease to be a spectator and a mere recording
machine by becoming a participant in the trial evincing intelligence, active interest and elicit
all relevant materials necessary for reaching the correct conclusion, to find out the truth, and
administer justice with fairness and impartiality both to the parties and to the community it
serves. The courts administering criminal justice cannot turn a blind eye to vexatious or
oppressive conduct that he occurred in relation to proceedings, even if a fair trial is still
possible, except at the risk of undermining the fair name and standing of the judges as
impartial and independent adjudicators.
★ The judgment critically invokes the inquisitorial role of Courts to be “circumspect in
evaluating the evidence”, actively participate in the evidence collecting process instead of
adopting an attitude of total aloofness and throwing hands in the air in despair. An acquittal
made out because of deliberately faulty investigation, evidence-gathering and prosecution
cannot be considered an acquittal in the eyes of law; “decency, decorum and judicial
discipline should never be made casualties by adopting such intemperate attitudes of judicial
obstinacy”.
 ★ An overarching goal of the criminal justice system was held to be to protect the eyes and
ears of justice, that is witnesses of the commission of an offence. Particularly, “if the witness
himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and
paralyzed, and it no longer can constitute a fair trial”.
★ In this particular case, the Supreme Court entitled the complainant with a choice in the
matter of selecting an independent Public Prosecutor during the retrial in the State of
Maharashtra and imposed a duty on the States of Maharashtra and Gujarat to provide
necessary protection to all witnesses during the course of the trial.
★ In this manner, Zahira Sheikh v. State of Gujarat,by enunciating principles critical to the
delivery of criminal justice in India, has had far-reaching implications for a progressive
victimology jurisprudence and provides hope for an eventual reworking of an impartial,
independent and competent criminal justice machinery in cases of communal violence
specifically and criminal offences generally.