Public Prosecutor & Legal Aid from Court

In India, we have a public prosecutor who acts in accordance with the directions of the judge. The control of trial is in the hands of the trial judge. Investigation is the prerogative of the police. Again, the withdrawal of the prosecution can also be done only with the permission of the court.

Being an officer of the court, the prosecutor is believed to represent the public interest and as such not to seek conviction of a party by hook or crook. The prosecutor is supposed to lead evidence for the benefit of the court, not conceal it to secure a conviction. It is also believed that in a case of withdrawal of prosecution, if the prosecutor makes an independent decision to withdraw a case then the court should accept this and permit withdrawal under section 321 of the Criminal Procedure Code (CrPC).

Section 24 of the CrPC provides for appointment of public prosecutors in the High Courts and the district by the central government or state government.

Subsection 3 lays down that for every district, the state government shall appoint a public prosecutor and may also appoint one or more additional public prosecutors for the district.

Subsection 4 requires the district magistrate to prepare a panel of names of persons considered fit for such appointment, in consultation with the sessions judge.

Subsection 5 contains an embargo against appointment of any person as the public prosecutor or additional public prosecutor in the district by the state government unless his name appears in the panel prepared under subsection 4.

Subsection 6 provides for such appointment wherein a state has a local cadre of prosecuting officers, but if no suitable person is available in such cadre, then the appointment has to be made from the panel prepared under subsection 4.

Subsection 4 says that a person shall be eligible for such appointment only after he has been in practice as an advocate for not less than seven years.

Section 25 deals with the appointment of an assistant public prosecutor in the district for conducting prosecution in the courts of magistrate. In a subsequent decision, however, the high court had to distinguish between a public prosecutor and a counsel for the private party thus:

Public prosecutors are really ministers of justice whose job is none other than assisting the state in the administration of justice. They are not representatives of any party. Their job is to assist the court by placing before the court all relevant aspects of the case. They are not there to use the innocents go to the gallows. They are also not there to see the culprits escape conviction.

Though the office of the public prosecutor seems to have the features of the executive, the judiciary does not appear to treat it so, because it does not approve of the appointment of police officers as public prosecutors.

Lawyers appointed by Court for Defendants

Legal aid is definite for those who can’t afford a lawyer because they are too poor.This right is according to the Constitution, which says that it is the duty of the State to provide legal aid. This means, that if the accused can’t afford to hire a lawyer then the court must provide one, at the expense of the State. Every person is entitled to appeal for legal aid.

In fact the right to get legal aid starts from the time the accused is arrested. If theperson is not aware of this right then it is the duty of the Magistrate to inform theperson about this. It is the duty of the police to inform the nearest ‘legal aid’committee also about the arrest of an accused seeking legal aid for the first time and this goes on whenever the person is brought in for questioning.

Any person can get legal aid, as long as they belong to one of the ten groups thatthe Supreme Court has laid out i.e. :- (Khatri II Vs. State of Bihar, (1981) 1SCC)

  1. A woman or child
  2. Poor, i.e. with an annual income of not more thanRs.50,000 for Supreme Courtcases and not more than Rs.25,000 for cases in other courts.
  3. Facing a charge that might result in imprisonment.
  4. A member of a scheduled caste or tribe
  5. A victim of trafficking in humans or beggar
  6. Disabled, in any way, including mentally disabled
  7. A victim of mass disaster, ethnic violence, caste violence, flood, drought,earthquake, industrial disaster etc.
  8. Is an industrial workman/woman
  9. Is in custody, including protective custody, and
  10. Is unable to engage a lawyer because of reasons such as poverty, is being heldin isolation where the person is unable to communicate etc.

NOTE:-There are certain exceptions, under which legal aid may be granted, such as in cases of great public importance declaration of your income which is also called an affidavit.

Know the law. Know your rights.

Adv Kiran T K

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