Assistant Public Prosecutors
(1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates.
(1A) The Central Government may appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the Courts of Magistrates.
(2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor.
(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the 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. |
STATE AMENDMENTS
ORISSA
■ Sub-section (2)
The following proviso shall be inserted namely :—
“Provided that nothing in this sub-section shall be construed to prohibit the State Government from exercising its control over Assistant Public Prosecutor through Police Officers.” – Vide Act No. 6 of 1995.
UTTAR PRADESH
■ Sub-section (2)
Insert following proviso :
“Provided that nothing in this sub-section shall be construed to prohibit the State Government from exercising its control over Assistant Public Prosecutor through police officers.”—Vide Uttar Pradesh Act No. 16 of 1976.
WEST BENGAL
■ Sub-section (3)
For sub-section (3), substitute the following :
“(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, any advocate may be appointed to be the Assistant Public Prosecutor in charge of that case, —
| (a) | where the case is before the Court of the Judicial Magistrate in any area in a sub-division, wherein the headquarters of the District Magistrate are situated, by the District Magistrate; or | |
| (b) | where the case is before the Court of the Judicial Magistrate in any area in a sub-division, other than the sub-division referred to in clause (a), wherein the headquarters of the Sub-divisional Magistrate are situated, by the Sub-divisional Magistrate; or | |
| (c) | where the case is before the Court of the Judicial Magistrate in any area, other than the area referred to in clauses (a) and (b), by a local officer (other than a police officer) specially authorised by the District Magistrate in this behalf. |
Explanation : For the purposes of this sub-section,—
| (i) | “advocate” shall have the same meaning as in the Advocates Act, 1961 (5 of 1961); | |
| (ii) | “local officer” shall mean an officer of the State Government in any area, other than the area referred to in clauses (a) and (b).”—Vide Act No. 17 of 1985. |
COMMENTS
Assistant Public Prosecutor cannot be subjected to administrative control of Police department – The mandate of sub-section (3) of section 25 implies that the State Government or the Central Government which appoints Assistant Public Prosecutors for the purpose of conducting prosecutions in Magistrates’ Courts in District, must put them in an independent cadre and create a separate independent Prosecution Department, having its own heirarchy of officers made directly responsible to the concerned Government.
Their separation from the police officers of the Police Department and freeing them from the administrative or disciplinary control of officers of the Police Department are the inevitable consequential actions required to be taken by the State Government which appoints such Assistant Public Prosecutors, inasmuch as, taking of such actions are statutory obligations impliedly imposed upon it under sub-section (3) thereof—S.B. Shahane v. State of Maharashtra AIR 1995 SC 1628.
Assistant Public Prosecutors independent of police – Section 25 creates new office of Assistant Public Prosecutors for Courts of Magistrates. Formerly there used to be police prosecutors. Sub-section (2) bars the appointment of police officers to this post. The object is frustrated if the officers are placed directly under the control of the Superintendent of Police, even though the State Government may retain the ultimate control over the public prosecutor by removing or dismissing him. The proviso, read with sub-section (3), makes it clear that, in exceptional circumstances, the District Magistrate may appoint a police officer, who may not have taken part in the investigation of the offence for conducting a particular criminal case in the Court of a Magistrate. Section 25 makes the legislative intent clear that the prosecuting agency should be free from the police department which is generally entrusted with the task of maintenance of law and order and prevention and investigation of crimes – Jai Pal Singh Naresh v. State of UP 1976 Cr. LJ 32.