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Prosecutors in criminal justice system: A comparative analysis between Indian, US and English criminal justice system

Prosecutor is not the representative of the victim, not of the accused, even not of the government, but he/she is the spokesperson rather agent of the people of the country in its real sense.
In this paper we will deal with role of prosecutor and the whole concept as to why he/she is required.

We will focus more on the Indian perspective and try to compare it with the US and the English criminal justice system. As different countries follow different system some common law adversarial system and some civil law inquisitorial system so the working may also differ.

Prosecutors taken under any system, their sole purpose is to deliver justice but the involvement and the persons who are appointed or the manner of these appointments vary in various countries. They are the representative of each country's government or their states government still a difference resides as the interference of the government and the countries judiciary and elocutionary body may waver.

But this paper will give an insight on the role and importance of prosecutor for the protection of human rights and for the society's well-being and security. Also, the comparative analysis of these three countries will make us understand what are the perks as well as anomalies and why the justice delivery system differs in India from the US and the UK.

Many people consider the word Prosecutor synonymous to lawyer, but there's a big difference if we understand the legal definition which will give us clarity. According to Merriam Webster dictionary a prosecutor institutes a proceeding or represents the state in a criminal proceeding as defendant i.e. a government attorney.

The basic definition and work of prosecutor is this but the working differs from country to country as depends whether they follow common law adversarial system or inquisitorial system. In some countries the role of prosecutor pertains in whole of the investigation process i.e. getting involved with the police investigation, evidence collection etc. whereas in others there is no interference, but whether the rights of accused are kept intact or not is checked and everything works according to laid procedures.

Some countries even let prosecutor defend any civil actions on them as well. Thus, a Prosecutor can be called the advocate representing the government of that country in any criminal prosecution or even sometimes in civil matters.

Who is a Public Prosecutor?

he is referred to as the agent of the state and keeps a check that whether justice is provided in the right manner to the common people and helps the judges in doing so. He is appointed by the government authority may be at central level or at state level or even at local level. This division differs in various countries. But they only have the job to check the justice is not denied and properly provided to the accused as well. So as to suffice the Latin Rule of law �Audi alteram partem', no one should remain unheard.

If the victim has the right to be heard then even the accused shall be provided with the chance to prove his innocence as presumption of innocence is a universal right even mentioned under the UN's declaration of Human rights Article 11. The state considers whenever a criminal case is instituted then the crime is also against the state as per the jurisprudence of societal security thus the prosecutor ensures that law is not baffled with when the investigation and trial of a case occurs on behalf of the state.

There are some guidelines which are stated by the OHCHR which was adopted by the United nations congress on the Prevention of Crime and the treatment of offenders on 9th September 1970 for the role of Prosecutor. They have to work in order to keep intact human rights with the due process of law under the criminal justice system. Their roles are:
  1. They shall dignify their position as they are appointed by the state.
  2. They shall not delve into any such arbitrary or fraudulent practice that might harm the interest of the case.
  3. They shall be given protection i.e. personal safety if conditions demand so.
  4. They shall have the right to take part in public discussions regarding legal matters
  5. They shall have the right to take part in public discussion of matters concerning the law in order to promote and protect human rights for which they shall have freedom of expression and association.
  6. Investigation of crimes and supervision of execution of courts decision, checking the fairness of investigation all falls under his duty.
  7. They shall conduct impartial investigation.
  8. They shall work keeping public interest intact.
  9. They shall keep matters confidential unless required.
  10. Act in accordance with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.
  11. They shall refuse to use evidences which are recruited by unlawful methods such as torture, inhuman means against the suspects.
  12. They can also waive their prosecution rights on reasonable or conditional grounds. (wherever it can be possible)
  13. Some countries give discretionary power to their prosecutors in juvenile matters, so to use them the nature and gravity of offence is to be seen. (they should try to avoid taking strict actions in such matters)
  14. They shall cooperate with all other bodies working on the case.
Thus, these guidelines are set by the human rights commission for the prosecutors so that both the parties to the case get a fair trial and public interest is safeguarded as well.[1]

Difference Between Prosecutor and Lawyer!

Well one can say all Prosecutors are Lawyers and not all Lawyers are Prosecutors.
Lawyers are licensed advocates they can have clients and can work in any field of law. They can represent either the victim or accused and when they present their case, they have the tendency to present facts, evidences and witnesses in favour of their side of the case. They focus on delivering justice to their client. Whereas Prosecutors are appointed by the state and they are representatives on behalf of the government who ensures fair and reasonable trial.

His duty is to keep intact human rights and dignity and maintain equality and unambiguous investigation and trial. He cannot favour anyone side and shall work in order to provide justice in the right manner. He is a state attorney in criminal cases and if required can take up civil suits as well. A lawyer tries to prove his side of the case whereas a prosecutor's sole purpose is to find the truth in legal manner and provide the court with the same so that arbitrary practices can be avoided.

Importance of Prosecutor under Criminal Justice System:

To provide fair and equal justice. We have already seen the role of prosecutors so they are important in brief to suffice these 3 P's:
  • Prosecute criminals who break the law by way of fair investigation and trial
  • Prevent crimes from happening in the first place that is by creating awareness taking part in public discussions advising the executionary bodies etc.
  • Protect the victims of crime, can be an individual or the whole society or a community and to ensure everyone gets their right to be heard.

Prosecutors in Indian Criminal Justice System:

Under the Indian Criminal Justice System, the authority to investigate is with the police and for the trial round we have judges, lawyers also involved but everything is done under the supervision of magistrate. From seeking permission to arrest, to giving reason for the arrest, to investigating and conducting trial this everything is done by magistrate's permission. Then comes the role of prosecutor in India referred to as public prosecutor which is defined under section 24 of the Criminal Procedure Code which we will discuss later.

He is an appointee of the state and represents them in such criminal proceedings. In India when the need to prosecute a case arises the decision is taken by magistrate on the report submitted by police and then the prosecutor is appointed. The prosecutor is appointed to represent the government in any case or give state's representation in any criminal case.

Section 24 of the CrPc. describes about the appointment of such public prosecutor. In High court the public prosecutor is appointed by the central government or the state government with their consultation if required can also appoint an additional public prosecutor on behalf of them. Depending upon the types of cases and the scrutiny the central government can appoint public prosecutors in the district courts or local bodies for some case or class of cases.

The public prosecutor along with the additional public prosecutor who is appointed for a particular district can also get involved in other districts cases if required. This appointment is done in consultation with District Magistrate by way of preparing a proper panel to suggest names for the appointment. If there already exists a cadre of prosecuting officers the state shall choose a prosecutor from that if no suitable person is found then the panel names will be considered.

Most importantly the person must be practicing advocacy for at least 7 years then only he can be eligible for the post and for the post of special public prosecutor a minimum of 10 years' experience is required in practice as an advocate. Section 25 deals with appointment of an assistant public prosecutor.

Role of the Prosecutor:

The prosecutor's job is to deliver justice not to secure conviction or acquittal in order to satisfy anyone or any motive. His job is to see that whether in the whole procedure of arrest to investigation to trial, whether the law was followed or not. It is his job to provide means to regulate a fair hearing so that no injustice or unlawful activities take place. He should not seem eager but rather ensure both the victim and accused rights are safeguarded.

Therefore, the need to appoint a prosecutor arises to avoid the following:

  • The accused must not be deprived of his rights
  • To give fair trial i.e. both the parties are heard
  • To conduct fair investigation
  • To remove discriminatory practices
  • To establish equality
  • He is not appointed by the judiciary but is a statutory body appointed by the state and as their representative its his duty to look into matters for the benefit of the society. They can work along with the police department.
  • He cannot appear on behalf of the accused. He can only demand for his rights to be given to him that he's eligible for.
  •  As he has the complete discretion of withdrawal or continuance of any case given to him under section 321 of the CrPc., he shall always see the public benefit for this purpose and not for any mal-intentions. The same was stated by the supreme court in Mohammed Mumtaz v Nandini Satpathy 1987 case that only the courts consent is needed to be taken. As in India he has the complete discretion and not even the district magistrate or the SOP can direct him but only suggest him by way of notice.
  • Speedy trial.
  • To keep intact the right to life and personal liberty as guaranteed under Article 21 of the Constitution
  • The state can specially order such appointment when such a case arises that largely affects public interest. For example, in 2019 Arvind Kejriwal Chief Minister of Delhi ordered the appointment of special public prosecutor for the infamous �journalist Soumya Vishwanaths murder case'[2].

Important cases:
In Thakur Ram vs. State of Bihar[3] the supreme court held that the motive of appointing a prosecutor is to represent the victims right as crime agaist him/her is considered as crime against society. Therefore, no person in their private interest to fullfill their private motives like vengeance etc. can use this means.

In Mukul Dalal v. UOI[4] the supreme court has stated that in India the public prosecutor's office is a public one which is important under for the court and the state to establish just for the social purpose.

In Radheshyam v. State of M.P. & others[5] the court has stated that a special public prosecutor can be appointed by the state whose remuneration shall also be paid by the state to maintain its integrity. Thus, the government cannot appoint him/her directing to get remunerated by the private party.

Therefore, in India there is the directorate of prosecution wherein all the prosecutors were brought to supervise them. The director heads the office under whom other officers and ministerial staffs fall. But since not all states have established such system or are part of this system as it is not given recognition under CrPc. as a mandate so many prosecutors are side-lined or fall under top level police officers which affects their working. Defeating the whole purpose of providing justice.

Prosecutors in the U.S. Criminal Justice System:

As the U.S. is divided into state and counties so the system there is a bit different. For 50 states and about 3143 counties there they have their own prosecutor. As U.S. is a federal republic so only at the federal level, they have a unity i.e. form a single system and have prosecutors according to that. Unlike the manner they appoint district attorneys by the U.S. general attorney's office for each federal the district, the appointment of prosecutors is different.

It is not appointment at all it is done by way of election i.e. local elections. In United States the U.S. federal attorneys act as prosecutors but are elected to their office by the electorates. The Assistant United States Attorney also called a federal prosecutor is appointed by the federal government and they look into such public interest matters in criminal proceedings and even some civil suits.

The major duty is that they are largely involved in investigation procedure and keep check that rights of accused are protected by the law. That is, they are highly involved in the whole investigating the crime process and therefore enjoy the benefit of interrogating and interviewing the witnesses as well.

Role of the Prosecutor in the U.S. Criminal justice System:

  • He is the one who administers and ensures proper criminal justice.
  • He has the discretionary power to charge any person of some offence or not. Which he must function with utmost care. Although the police have the power to make arrest on doubt but the charging capacity falls within the ambit of prosecutor. And no one can question his/her decisions. One example of prosecutors misusing this power is the Kemba Smith case where she was sentenced to 24.5 years imprisonment as charges against her were framed to be included in various drug supplying activities, but instead it was her husband who was a drug dealer and she was just an acquaintance to him. But in exchange of her testimony she was told that charges against her would be reduced but in the process of investigation her husband died and the prosecution made her plead guilty leading to her conviction[6]. Therefore, to avoid such discrepancies we need the prosecutors to use their charge framing power with utmost reasonableness.
  • Thus, in the US criminal justice system usually prosecutors have an upper hand on what the court will decide, which affects the fairness and justice.
  • Also, prosecutors regulate the entire plea-bargaining system and statistics have shown that almost in 90% of cases defendants plead guilty. Which usually used in a wrong manner by prosecutors as they delve into over-charging practices so that the defendant gets convinced to plead guilty for the lesser charges. As everyone wants to avoid the trial process and is scared of the rigorous sentencing.
  • They serve as quasi- judicial authority therefore they have to act with fairness as he/she is the representative of the society and neither of the parties. He should not aim at conviction rather should work to provide the best possible remedy. The same was stated by the U.S. Supreme court in Berger v. United States.[7]
  • They carry out excessive investigation and collect evidence, main functions are filing subpoenas, plea bargaining, charge framing and ensure rights to both victims and accused.

A Drawback:
The discrimination between the black community and the white community is prevalent in the United States from a very long time. Recently we all have seen the outrage of the #blackslivesmatter case and seen the sensitivity of this issue over there. Therefore, with the wide range of powers that the prosecutor enjoys and as he has more overwhelming impact on the judiciary it has always been the practice to discriminate among the defendants on the basis of their race (colour).

Thus, it is seen that for example in a case where a white accused is charged of murder and a black accused is charged of second- degree murder, the prosecutors tend to take the white offender's case seriously ensuring justice to him. There are instances they misuse this power and use it arbitrarily. One such example is Central Park Joggers Case 1989, where 5 boys (all under the age of 18) were convicted on charge of rape and sexual assault it was years later of their conviction it was found out they never committed the crime.

But during the investigation process gross violation of accused rights specially as they were underage kids took place. And on the basis of false charges they were forced to plead guilty and therefore prosecuted for rigorous imprisonments. The key point was all of them were blacks and the reason they were convinced was because of the colour of their skin, and people thought worst from them[8]. So, this is one of the major drawbacks because of the vast powers given to a prosecutor in the US.

Important Case:
In People v Smith[9], the court stated that either the prosecution proves guilty or not guilty, sometimes the prosecution fails to prove the burden of proof then the defendant must be allowed to go free. Here no forced scrutiny can be laid as there was no evidence provided to prove the case.

Thus, in the US criminal justice system major outcome of the case is affected by the prosecutor and his way of conducting the whole investigation and trial process. Unlike in India where prosecutor is taken as a minister of justice who advices the court but the major power to give judgement is with the judges the prosecutor just ensures fair justice system.

Prosecutors in the English criminal Justice system:
In the UK the prosecutors fall under the Crown Prosecution system (CPS)[10] and are called crown prosecutors. The CPS was established in 1985 by the prosecution of offences act to operate in England and Wales separate from the European system. It is an independent body free from any interference by the police or the government. As the UK has three different jurisdictions to regulate such public prosecution one such under which prosecutors work to provide justice is the CPS.

It is not dependent on the other 2 bodies. Also, the UK does not have a penal code they work on statues, precedents and customs which are followed and therefore according to that on behalf of the crown the CPS works. They are required to follow the Code for Crown Prosecutors. They work to ensure equality and inclusion with 14 regional teams that deal with cases on a local basis and each one is headed by a Chief Crown Prosecutor.

They also work for 3 special division, the international justice and organised crime division, special crime and counter terrorism division and the fraud division team. They are responsible for the drawing up of criminal prosecution in the UK as a judicial agency.

One important feature of appointment is that both law and non-law professionals can apply to be a prosecutor and can practice as a solicitor or barrister irrespective of having a degree or not. But for person without law degree he must pass the common professional examination (CPO) or get a graduate diploma in law.

Role of Prosecutor under the CPS:
  • They decide as to which cases are needed to be prosecuted and which are not.
  • They carry out investigation and procure evidences for the same.
  • They decide the charge.
  • They can also advise the police in the process of investigation.
  • Being an independent body, they cannot be obstructed by any authority in this process.
  • They also present in the court the cases (like a lawyer) i.e. they can advise the counsel in cases.
  • They also ensure assistance to victim and protection of witness. That they are given their rights.
  • There decision on whether to charge or not to charge is based on a full code test, first part is to collect the evidences and whether these evidences are reliable and can be used in court or not. Once this is done the second stage is to see the public interest. After this only he/she can proceed with the case.


But time and again questions have been arising over the independency of the CPS. As many have suggested that the CPS is largely funded by the political bureaucrats and is highly influenced or in predisposition with the police. This is because of the lack of resources and funds which leads to incompatible procedure and ultimately making these prosecutors work for the police.
India US UK
Public prosecutor appointed under Section 24 of the Code of Criminal Procedure 1973 Prosecutors are federal attorney and are elected by the electorates. Prosecutors fall under the independent body i.e. Crown Prosecutor services.
Mainly acts as a Minister of justice. His decisions in framing charges and plea bargaining hugely impacts the outcome of case. They can investigate, prepare evidences and present the case in court of crown.
Ensures the rights are not violated and justice is given in a fair manner. Does not interfere with the police investigation. Ensures that both parties are heard and is much overpowering on the police and other authorities. It is an independent judicial agency that works to ensures public interest but due to lack of resources and funds are subjected to police.
Judges and Magistrates give decision. Judges are largely influenced by the prosecutor's view. The court of crown has the power but CPS is at times instigated by bureaucrats.
Representative of the central or state government. Each state and county have its own prosecutor. Represents the Crown.

Human rights are to be ensured in every system and that is the sole purpose of prosecutor. So that no arbitrariness, vagueness and injustice is done. In each country prosecutor is present but they have their own way of functioning and the major difference arises in the powers that are given to them. Each system has its drawbacks but if they keep the public interest satisfied and work for the true meaning of the prosecutor that was intended, the society can surely be made a safer place.

  1. For more information on the OHCHR guidelines for prosecutors and to refer the original document refer to this link -
  2. For information regarding such appointment made By CM Kejriwal refer to this link on the news -
  3. AIR 1996 SC 911
  4. 1988 3 SCC 144
  5. 1999 (2) MPLJ 703
  6. For more insight on Kemba Smith's case refer to this link -
  7. 295 U.S. 78, 88 (1935)
  8. For more information on the Central Park Joggers case which has also been changed into a series called �when they see us�, refer to this link -
  9. 185 Ill.2d 532, 545 (1999)
  10. To read more on the CPS visit their official website, refer to the link-
Written By Varnika Singh - (4th�year Law student UWSL Karnavati University)

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