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Role of Public Prosecutor in Magisterial Courts : by Rakesh Kumar Singh

The present paper is a humble attempt to understand as to what would be the meaning of the
expression public prosecutor appearing in fourth proviso appended to Section-437(1) CrPC. The
fourth proviso puts restrictions on bail power of a Magistrate and says that bail in some cases falling
within its ambit cannot be allowed unless the public prosecutor has been heard. All knows that in a
magisterial court, generally Assistant Public Prosecutors are in-charge of cases and therefore, an
interesting situation arises requiring a proper understanding of the term public prosecutor.

2.

The term public prosecutor is clearly defined in Section-2(u) of CrPC in following

manner:

2(u) public prosecutor means any person appointed under section 24,
and includes any person acting under the directions of a public
prosecutor.

3.

First part of the definition contemplates an advocate who is appointed under Section-24.

Whether such person after being appointed is working or not is virtually immaterial for this part of
the definition and therefore once appointed he will remain a public prosecutor unless removed from
the office in accordance with law. Now, Section-24 talks about area specific appointment or case
specific appointment. Such person becomes public prosecutor by appointment. The definition
contemplates another class of public prosecutor who are not treated as such on the basis of
appointment but on the basis of their activities. If a person acts under the directions of a public
prosecutor, such person himself shall be treated as public prosecutor while so acting.

4.

Difference is very clear. The appointee remains a public prosecutor (within the area or for

the case as the case may be) once he is so appointed, the other person does not become a public
prosecutor for all the time only by virtue of his once acting under the directions of a public
prosecutor. The former is clearly an area specific or case specific indication whereas the later is a
time specific indication.

5.

The provision aforesaid has used means and includes. A constitution bench of Hon'ble

Supreme Court in Hardeep Singh vs State of Punjab (2014) 2 SCR 1 has explained such
expression as under:
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The provision and the above-mentioned definitions clearly suggest that

it is an exhaustive definition. Wherever the words "means and include"
are used, it is an indication of the fact that the definition 'is a hard and
fast definition', and no other meaning can be assigned to the expression
that is put down in the definition. It indicates an exhaustive explanation
of the meaning which, for the purposes of the Act, must invariably be
attached to these words or expression.

6.

Similar thought has been expressed by the Hon'ble Supreme Court in several decisions,

some of them may be named as M/s. Mahalakshmi Oil Mills v. State of A.P., AIR 1989 SC 335;
Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer,
Labour Court, Chandigarh & Ors., (1990) 3 SCC 682; P. Kasilingam & Ors. v. P.S.G. College of
Technology & Ors., AIR 1995 SC 1395; Hamdard (Wakf) Laboratories v. Dy. Labour
Commissioner & Ors., AIR 2008 SC 968; and Ponds India Ltd. (merged with H.L. Limited) v.
Commissioner of Trade Tax, Lucknow, (2008) 8 SCC 369.

7.

Definition of public prosecutor says that it means any person appointed under Section-24

and includes any person acting under the directions of a public prosecutor. Having used means
and includes while defining the term, the Parliament has indicated that definition 'is a hard and
fast definition', and no other meaning can be assigned to the expression that is put down in the
definition and that the same is an exhaustive explanation of the meaning which, for the purposes of
the Act, must invariably be attached to the expression.

8.

First of all, we should consider the second part of the definition which talks about a person

who is acting under the direction of a public prosecutor. Now the requirements hereof is clear. There
must be a person who in a given circumstances does not act on his own volition but acts only under
the direction of another person and such other person should have a power to direct the first person.
Needless to say that the word acting appearing in the definition does not indicate the activities of
a person in administrative capacity, this clearly refers to the acts pertaining to the proceedings under
CrPC and in court.

9.

There is only one provision in the CrPC which talks about a person acting under the

directions of a public prosecutor and the section is 301 which reads as under:
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301. Appearance by Public Prosecutor.-(1) 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.

(2) If in any such case any private person instructs a pleader to prosecute
any person in any Court, the Public Prosecutor or Assistant Public
Prosecutor in charge of the case shall conduct the prosecution, and the
pleader so instructed shall act therein under the directions of the Public
Prosecutor or Assistant Public Prosecutor, and may,with the permission
of the Court, submit written arguments after the evidence is closed in the
case.

10.

Clearly, any private person can engage a pleader to prosecute a case but once the State puts a

public prosecutor as incharge of the case, such pleader losses his authority to prosecute and has to
act under the directions of a public prosecutor. Therefore, only this pleader, when he is so acting
under the direction of a public prosecutor, is to be regarded as himself falling within the ambit of
Section-2(u).

11.

Now comes the first part of the definition which indicates to persons appointed under

Section-24. This section reads as under:

24. Public Prosecutors.

(1) For every High Court, the Central Government or the State
Government shall, after consultation with the High Court, appoint a
Public Prosecutor and may also appoint one or more Additional Public
Prosecutor for conducting in such court, any prosecution, appeal or other
proceeding on behalf of the Central Government or State Government, as
the case may be.

(2) The Central Government may appoint one or more Public Prosecutors
for the purpose of conducting any case or class of cases in any district, or
local area.
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(3) For every districts the State Government shall appoint a Public
Prosecutor and may also appoint one or more Additional Public
Prosecutors for the district:

Provided that the Public Prosecutor or Additional Public Prosecutor

appointed for one district may be appointed also to be a Public
Prosecutor or an Additional Public Prosecutor, as the case may be, for
another district.

(4) The District Magistrate shall, in consultation with the Sessions Judge,
prepare, a panel of names of persons, who are, in his opinion fit to be
appointed as Public Prosecutor or Additional Public Prosecutors for the
district.

(5) No person shall be appointed by the State Government as the Public

Prosecutor or Additional Public Prosecutor for the district unless his
name appears in the panel of names prepared by the District Magistrate
under sub-section (4).

(6) Not withstanding anything contained in sub-section (5), where in a

State there exists a regular Cadre of Prosecuting Officers, the State
Government shall appoint a Public Prosecutor or an Additional Public
Prosecutor only from among the persons constituting, such Cadre:

Provided that where, 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).

Explanation - For the purpose of sub-section,

(a) regular Cadre of Prosecuting Officers means a Cadre of Prosecuting

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Officers which includes therein the post of a Public Prosecutor, by

whatever name called, and which provides for promotion of Assistant
Public Prosecutors, by whatever name called, to that post;

(b) Prosecuting Officer means a person, by whatever name called,

appointed to perform the functions of a Public Prosecutor, an Additional
Public Prosecutor or an Assistant Public Prosecutor under this Code.

(7) A person shall be eligible to be appointed as a public Prosecutor under

sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6),
only if he has been in practice as an advocate for not less than seven
years.

(8) 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:

Provided that the Court may permit the victim to engage an advocate of
his choice to assist the prosecution under this sub-section.

(9) For the purposes of sub-section (7) and sub-section (8), the period
during which a person has been in practice, is a pleader, or has rendered
(whether before or after the commencement of this Code) service as a
Public Prosecutor or as an Additional Public Prosecutor or Assistant
Public Prosecutor or other Prosecuting Officer, by whatever name called,
shall be deemed to be the period during which such person has been in
practice as an advocate.

12.

The provision talks about appointment of public prosecutor, additional public prosecutor and

special public prosecutor. Therefore, all these three categories of persons shall be treated as falling
within the ambit of first part of definition given in Section-2(u).

13.

The question however arises as to whether only because in a state there exists a regular

Role of Public Prosecutor in Magisterial Courts : by Rakesh Kumar Singh

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cadre of prosecuting officers, an Assistant Public Prosecutor should also be treated as falling within
the ambit of public prosecutor?

14.

Sub-section-4 talks about preparation of penal of names and sub-section-5 says that public

prosecutor shall be appointed from the penal so prepared. These are clearly instances of
appointment by selection. It is sub-section-6 which talks about prosecuting officers and says that if
regular cadre exists, the appointment shall only be from that cadre. The expression prosecuting
officer cannot be equated with the expression public prosecutor for a simple reason that the
former covers a larger class and has been defined in the explanation-(b) appended to Section-24(6)
whereas the later covers narrow class and has been defined in Section-2(u).

15.

Explanation-(a) appended to Section-24(6) further makes the position clear by saying that

cadre should include post of public prosecutor and should provide for promotion of Assistant Public
Prosecutor to that post; means clearly to the post of Public Prosecutor. Sub-section-6 therefore is an
instance of appointment by promotion.

16.

It would therefore be futile to argue that where regular cadre of prosecuting officers exists,

the Assistant PP should also be treated as a Public Prosecutor.

17.

Moreover, whereas the definition in Section-2(u) talks about a person appointed under

Section-24, an Assistant PP is appointed under Section-25 which reads as under:

25. 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.
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(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.

18.

What becomes immediately clear is that a person when appointed under Section-25 becomes

Assistant PP and thereby becomes a part of the prosecuting officer cadre but he cannot be treated as
appointed under Section-24. His source of appointment is Section-25. Once a person becomes
Assistant PP, in due course he may be promoted to the post of Public prosecutor but till then he
remains what he is i.e. Assistant PP and therefore cannot be equated with the Public Prosecutor
itself.

19.

Section-24(9) cannot be of any help. It talks about the method of calculating minimum

required practice experience for the post of Public Prosecutor or Special Public Prosecutor and
provides that even the service rendered as Assistant PP will be counted.

20.

The next issue is whether Assistant PP works under the supervision of a Public Prosecutor.

None of the provisions of CrPC says so. Wherever required, the provisions have indicated the
Assistant PP as incharge of the case and not as acting under the supervision of a Public Prosecutor.
The prosecuting department for their administrative convenience mayt make arrangement for
supervision by a public prosecutor, but the CrPC does not contemplate any such supervision. It
appears that even the administrative set up is some what on different line. Section-25A deals with
the establishment of directorate of prosecution and reads as under:

25A. Directorate of Prosecution.-

Directorate of Prosecution. (1) The State Government may establish a

Directorate of Prosecution consisting of a Director of Prosecution and as
many Deputy Directors of Prosecution as it thinks fit.
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(2) A person shall be eligible to be appointed as a Director of Prosecution

or a Deputy Director of Prosecution, only if he has been in practice as an
advocate for not less than ten years and such appointment shall be made
with the concurrence of the Chief Justice of the High Court.

(3) The Head of the Directorate of Prosecution shall be the Director of

Prosecution, who shall function under the administrative control of the
Head of the Home Department in the State.

(4) Every Deputy Director of Prosecution shall be subordinate to the

Director of Prosecution.

(5) Every Public Prosecutor, Additional Public Prosecutor and Special

Public Prosecutor appointed by the State Government under sub-section
(1), or as the case may be, sub-section (8), of section 24 to conduct cases
in the High Court shall be subordinate to the Director of Prosecution.

(6) Every Public Prosecutor, Additional Public Prosecutor and Special

Public Prosecutor appointed by the State Government under sub-section
(3), or as the case may be, sub-section (8), of section 24 to conduct in
District Courts and every Assistant Public Prosecutor appointed under
sub-section (1) of section 25 shall be subordinate to the Deputy Director
of Prosecution.

(7) The powers and functions of the Director of Prosecution and the
Deputy Directors of Prosecution and the areas for which each of the
Deputy Directors of Prosecution have been appointed shall be such as the
State Government may, by notification, specify.

(8) The provisions of the section shall not apply to the Advocate General
for the State while performing the functions of a Public Prosecutor.

21.

A bare glance at the above provision shows that Public Prosecutor and Assistant PP in the

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district both are subordinate to deputy director of prosecution. It nowhere says that Assistant PP is
subordinate to Public Prosecutor or is under his supervision. It might be the situation that in a state,
some public prosecutors on administrative side are also designated as Deputy Director or in
converse situation, deputy directors are also assigned the job of public prosecutor. But even such
arrangement cannot bring Assistant PP under the control or supervision of a Public Prosecutor, he
will remain subordinate only to the deputy director i.e. the statutory post and not to the person. Even
further, the subordination contemplated under Section-25A does not envisage a subordination in
discharge of any functions in the court. It only indicates administrative subordination and nothing
else.

22.

Therefore, it cannot be said that Assistant PP works under the supervision of a Public

Prosecutor. Even otherwise, acting independently under the supervision of a Public Prosecutor does
not satisfy the meaning of expression any person acting under the directions of a public
prosecutor as given in Section-2(u) while defining the term public prosecutor. Therefore,
Assistant PP cannot be equated with public prosecutor.

23.

Someone might say that Section-265B(3) CrPC which relates to plea bargaining also uses

the term public prosecutor but in Magisterial courts, only APPs are appearing and therefore they
should be treated as included in the term for all purposes. The provision reads as under:

265B (3) After receiving the application under sub-section (1), the Court
shall issue notice to the Public Prosecutor or the complainant of the case,
as the case may be, and to the accused to appear on the date fixed for the
case.

24.

The aforesaid assumption appears to have some substance. Though, the provision has used

an expression public prosecutor but it is of normal experience that plea bargaining is done mostly
in magisterial courts where Assistant PPs are available and they are participating in the process.
This will give an impression that wherever the term public prosecutor is used in reference to a
magisterial court, the term will include Assistant PP. The impression however melts into
insignificance once we proceed further in Chapter-21A which inter alia contains the aforesaid
provision. An explanation has been added after Section-265J and reads as under:

Explanation. For the purposes of this Chapter, the expression Public

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Prosecutor has the meaning assigned to it under clause (u) of section 2

and includes an Assistant Public Prosecutor appointed under section 25.

25.

It is the Legislature itself which has given extended meaning to the term public prosecutor

for the purpose of plae bargaining and specifically included Assistant PPs. This shows two things.
First, the Legislature when wanted to include Assistant PP in the term public prosecutor said so
specifically and therefore, we should not bring the Assistant PP in the term if not included by the
legislature. There was no prohibition for the Legislature in providing similar explanation in other
provisions related to Magisterial court where the term public prosecutor has been used. The
Legislature chosen not to do so. It may also be of some significance that aforesaid explanation (and
entire Chapter-21A) was brought in the statue book through an amendment notified in the year 2006
and fourth proviso to Section-437 (presently in question in this paper) was also brought through an
amendment notified in the year 2006 itself. Secondly, any assumption that in magisterial courts plea
bargaining is done by Assistant PP and therefore Public Prosecutor includes Assistant PP cannot be
of any help for other provisions.

26.

The aforesaid will also assist in explaining why we cannot adopt a definition contrary to

Section-2(u) even in the light of the expression unless the context otherwise requires mentioned
in the Section-2 itself.

27.

We have seen that plea bargaining is mostly conducted in the magisterial courts and the term

used is public prosecutor. When the legislature was enacting the plea bargaining provisions and
restricted it to offences punishable upto 7 years, it was clearly aware that most of those offences are
triable by Magisterial court. Plea bargaining is part of trial procedure and in Magisterial courts,
Assistant PPs are incharge of the case. The context therefore would have clearly required that the
term public prosecutor for those plea-bargaining cases should be contextually read to include
Assistant PP by giving full effect to the expression unless the context otherwise requires. But the
Legislature itself has chosen to say that for the purpose of plea bargaining, Assistant PP will be
included. If we read this choice of legislature alongwith the fact that the definition of public
prosecutor is a hard and fast one (with the use of means and includes as discussed earlier) and no
other meaning can be assigned to it, it will become immediately clear that the expression unless
the context otherwise requires cannot be of any help while deciding the term public prosecutor
in fourth proviso to Section-437.

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28.

Moreover, Section-437 does not provide any special context which requires that a Public

prosecutor should not appear in Magisterial Court or for that matter, there is no provision in the
entire CrPC saying that a Public prosecutor should not or cannot appear in Magisterial Court.

29.

Now, we have to see the context in which the fourth proviso to Section-437 came into

existence. Section-437(1) reads as under:

437. When bail may be taken in case of non bailable offence.-

(1) When any person accused of, or suspected of, the commission of any
non-bailable offence is arrested or detained without warrant by an officer
in charge of a police station or appears or is brought before a court other
than the High Court or Court of Session, he may be released on bail, but-

(i) Such person shall not be so released if there appear reasonable

grounds for believing that he has been guilty of an offence punishable
with death or imprisonment for life;

(ii) Such person shall not be so released if such offence is a cognizable

offence and he had been previously convicted of an offence punishable
with death, imprisonment for life or imprisonment for seven years or
more, or he had been previously convicted on two or more occasions of a
cognizable offence punishable with imprisonment for three years or more
but not less than seven years:

Provided that the court may direct that a person referred to in clause (i) or
clause (ii) be released on bail if such person is under the age of sixteen
years or is a woman or is sick or infirm:

Provided further that the court may also direct that a person referred to in
clause (ii) be released on bail if it is satisfied that it is just and proper so
to do for any other special reason:

Provided also that the mere fact that an accused person may be required
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for being identified by witnesses during investigation shall not be

sufficient ground for refusing to grant bail if he is otherwise entitled to be
released on bail and gives an undertaking that the shall comply with such
directions as may be given by the court:

Provided also that no person shall, if the offence allege to have been
committed by him is punishable with death, imprisonment for life, or
imprisonment for seven years or more be released on bail by the Court
under this subsection without giving an opportunity of hearing to the
Public Prosecutor.

30.

Following points are very clear from the provision aforesaid:

1.

Though normally in a case of death or life imprisonment, a Magistrate has no

power to grant bail but the same is subject to the fact that there must be a
reasonable basis to presume so, otherwise, Magistrate even in such cases can
grant bail;

2.

Even in death and life imprisonment cases where reasonable basis is

available, a Magistrate can grant bail to woman, sick or infirm;

3.

There may be several offences having more than 7 years punishment and
triable by a court of sessions and there is no legal bar in such cases for grant
of bail by magistrate though he may be required to be more cautious;

4.

There may be several serious offences involving more than 7 years

punishment but triable by Magistrate and magistrate may grant bail.

31.

All the aforesaid situations are serious situations. The fourth proviso in such circumstances

came to be enacted to provide opportunity to the state to oppose the bail through public prosecutor.
The Legislature appears to have thought that for such serious situations, a more experienced person
should be deputed to oppose the bail application in the court of magistrates. If this is the contextual
situation, we cannot not even imagine that the context is such that we are required to deviate from
the definition given in Section-2(u) which is even otherwise a hard and fast definition giving no
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room for any other meaning as discussed earlier.

32.

A similar provision is also available in Section-436A which talks about releasing a person on

bail who has been in custody for half of the maximum punishment. The provision pertains to right
to liberty and therefore its seriousness can be contemplated when it provides that even in such
cases, court for special reasons deny to grant bail but after hearing the public prosecutor. The
concerned proviso to Section-436A reads as under:

Provided that the Court may, after hearing the Public Prosecutor and for
reasons to be recorded by it in writing, order the continued detention of
such person for a period longer than one-half of the said period or release
him on bail instead of the personal bond with or without sureties:

33.

What is interesting is that Section-436A applies to every court including a Magisterial court

but the term used is public prosecutor. Denial of liberty to such an accused who has been in
custody for half the maximum punishment is a very serious business. Therefore, the Legislature
appears to have entrusted the task on more experienced person i.e. public prosecutor. Even this
provision was enacted at the same time when fourth proviso to Section-437 was enacted.

34.

It would not be out of significance to note Section-439 CrPC which deals with the power of

Sessions court to grant bail. A proviso is available in this section in following manner:

Provided that the High Court or the Court of Session shall, before
granting bail to a person who is accused of an offence which is triable
exclusively by the Court of Session or which, though not so triable is
punishable with imprisonment for life, give notice of the application for
bail to the Public Prosecutor unless it is, for reasons to he recorded in
writing, of opinion that it is not practicable to give such notice.

35.

It specifically provides that public prosecutor should be heard for certain offences i.e.:

1.

All offences triable exclusively by a court of sessions. This will definitely

include several offences which are punishable with more than 7 years falling
under item No.-3 mentioned in Paragraph-30 while dealing with the offences

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in which Magistrate can grant bail;

2.

Other offences punishable with imprisonment for life. This will definitely
include several situations falling under item No.-1 & 2 mentioned in
Paragraph-30 while dealing with the offences in which Magistrate can grant
bail.

36.

Take a situation where a magisterial court is dealing with any of the offences mentioned at

item No.-1, 2, 3 as aforesaid. And also a court of sessions dealing with the same offence under the
proviso appended to Section-439. There cannot be any doubt that fourth proviso in Section-437 and
the proviso in Section-439 are related to seriousness of situation. For the same offence, when a
court of sessions deals with the bail application, it has to hear a public prosecutor (who normally
is a more experienced person) before granting bail but the Magistrate in the similar situation will
hear Assistant PP if we accept the proposition that the context of Section-437 requires a different
meaning to be given to the term public prosecutor contrary to Section-2(u). This will create
discrimination and can neither be appreciated nor be accepted. We should bear in mind that CrPC
does not in normal circumstances contemplate opportunity for hearing on the part of state in any
bail matter whether filed before a court of sessions or a court of magistrate. Only the proviso
available in Section-436A, 437, 439, 389 provides a right to oppose the bail and all these provisions
talks about public prosecutor in one tone.

37.

In the end result, there is no escape from the conclusion that the expression public

prosecutor envisaged in fourth proviso to Section-437(1) CrPC does not contemplate Assistant PP
and the State should contemplate a mechanism wherein the prosecution department should always
send an additional PP (who is regarded as public prosecutor on the basis of his appointment under
Section-24) whenever the occasion arises for hearing on a bail application in any Magisterial court
for an offence punishable with imprisonment of 7 years or more to satisfy the condition of fourth
proviso to Section-437(1).

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