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The article ‘A Comparative Study: Role of Prosecutor in Investigation (India v. France)’ by Adv. Lekshmi will give an insight into the role of the Prosecutor in society. The prosecution is a sine qua non of every modern criminal justice system to exist in any democratic country, where adversarial or inquisitorial in its modus operandi. A public prosecutor is appointed by the state and conducts the prosecution on behalf of the state.
The main function is to ensure that case is clearly presented before the court. Here we can say he acts as a narrator of the incident before the Court. An effective comparison between India and France has been made in order to highlight the loopholes and merits in their criminal justice system.
Introduction to Role of Prosecutor in an investigation: India
In India’s criminal justice system, there is a division of powers. Prosecutors in India are free of investigative and judicial functions. The prosecutor does not participate in the inquiry and does not provide any assistance to the police. As a result, a prosecutor’s role in the pre-trial phase is minimal.
Today’s investigative officers, for some reason, seek legal counsel from prosecutors. If we go back in time, both the police and the prosecutor were part of the police department until 1973. During that time, the prosecutor was in charge of the investigation. They are now, however, fully immune to investigation. All criminal action commenced by a complaint or information shall be prosecuted under the direction and the control of the prosecutor.
In Kunja Subidhui and Anr v. Emperor, it was determined that the public prosecutor’s responsibility is not only to secure the accused’s conviction at all costs but also to provide to the court whatever evidence the prosecution has.
The Supreme Court concluded in Hitendre Vishnu Thakur v. State of Maharashtra that there can be no dispute that the parliament intended for public prosecutors to be independent of the police department.
In Shakila Abdul Gafar Khan v. Vasant Raghunath Dhobale,
“A public prosecutor is an important officer of the state government and is chosen by the state under the criminal procedure code,” the Supreme Court said he isn’t a member of the investigation team. He is a statutory authority that is independent of the government.
As can be seen from the explanation above, the prosecutor’s position in an inquiry is relatively limited. They are regarded as separate authorities.
In Pre-trial the role of the prosecutor includes:
- Obtaining an arrest warrant directed to one or more police officers under section 70 of the code of criminal procedure;
- Obtaining a search warrant to search premises for the collection of evidence and documents crucial to the investigation under section 93 of the code of criminal procedure;
- The prosecutor also serves as an advisor to the police in advising them on the feasibility of pursuing a case;
- Obtaining the accused’s custody for interrogation pursuant to section 167 of the Code of Criminal Procedure;
- Starting court proceedings under section 82 of the code of criminal procedure to declare an accused a proclaimed offender if he is not traceable;
- Starting court proceedings for the attachment of an absconding accused’s property after the issue of a proclamation under section 83 of the code of criminal procedure;
The Supreme Court said in Hitendra Vishnu Thakur v. State of Maharashtra said,
“The Public Prosecutor is an important officer of the State Government who is appointed by the State under the Code of Criminal Procedure,”. He isn’t a member of the investigation team. He is a statutory authority that is independent of the government.
In Jai Pal Singh Naresh et al. v. State of U.P, the Allahbad supreme court held that
“There is often no manner of doubt that the Parliament intended that Public Prosecutors should be free from the control of the local department .”
Various courts have held that the prosecution and therefore the police are completely different and separate agencies and neither should control the opposite.
The very aim of making Prosecutors outside the police set-up was to make sure their independence and this might not be achieved if the police retained such an impact upon Prosecutors. Yet both the functionaries need to have coordination between them. But that’s solely hooked into the private rapport a Prosecutor maintains with the police and therefore the charisma he yields. Such characteristics of a Prosecutor yield just some superficial leads to discharge of his functions but to not the specified level that he needs and deserves.
Upon completion of evidence, if the investigating officer involves a conclusion that there’s a clear cause, a blotter is filed within the court through Prosecutors. The Prosecutor’s opinion is additionally taken under consideration while conclusively deciding whether a clear case exists or not. However, it’s the police’s discretion to send or not send the case for trial. The Prosecutor should personally verify the witnesses and also their proposed Statements well before the court begins an examination of the witnesses.
The Supreme Court addressed the relationship between the investigation, prosecution, and the executive in Vineet Narrain v. Union of India, also known as the Jain Hawala case. In this case, the bureaucrat-politician-criminal nexus used every means possible to obstruct the investigation and prosecution. The Central Bureau of Investigation was in charge of the corruption investigations. The Court kept an eye on the progress of these cases and issued detailed instructions on how the various agencies involved should operate; it even warned the minister in charge not to interfere with the investigation and prosecution.
Role of Prosecutor in an investigation: France
Prosecutors are a vital part of the French criminal justice system. In French, the Code of Criminal Procedure of 1958 is known as the Code d’Instruction Criminelle. The term “exercise de l’action publique” refers to public prosecution. The term “public prosecution” refers to all acts of a procedure whose primary goal is to bring a matter before the courts. Following the filing of the case, the next step is to pursue the case through effective prosecution until the final verdict of the courts. In France, the prosecutor’s office is known as the Ministero Public or Parquet.
The Prosecution body is structured in a hierarchical manner. Procureurs de la Republique and substututs du Procureur are the titles given to members of the prosecution body.
The French criminal justice system, like that of India, has a sacred historical background. Prior to 1958, the State delegated its powers as State representatives to employees working with the courts in their judicial functions. State employees were tasked with investigating the crime, gathering evidence, executing sentences, and so on. Legal knowledge by State employees was not a criterion at the time. With the passage of time, it was felt that someone legally sound and capable of representing the interests of victims in law courts on behalf of the State should be appointed. Prosecutors’ posts were created in France as a result of this.
While investigating the role of prosecutors in France, as previously discussed, simple criminal cases were investigated by prosecutors. In France, the prosecutor is known as the procureur. In France, the prosecutor is in charge of reviewing the evidence and deciding whether or not to pursue a prosecution. The procureur oversees police investigations. The prosecutor is also a part of the magistrate, and as a magistrate, the prosecutor plays a more neutral role than a simple prosecutor. The authority includes the ability to direct police investigations, supervise accused detention, and protect accused rights.
The procurer, like the investigating judge, performs both investigative and judicial duties. The concept of the magistrate justifies the prosecutor playing a larger role than the defense lawyer. Furthermore, the prosecutor is a member of the public ministry. That is, the prosecutor is part of a centralized hierarchy that is led by a government minister, the minister of justice. This is intended to ensure the prosecutor’s democratic accountability. This hierarchical control imposes constraints on the prosecutor’s ability to work effectively and on the use of procureur discretion.
The French Prosecutors play a dominant role in France, not only in the actual trial but also in the pre-trial phase. The French Prosecutors always have the status of Judges, and they are as good as Judges when it comes to carrying out the functions of the Ministry of Justice. While carrying out their duties, French prosecutors are assisted by investigating magistrates, police officers, crime victims, and other public servants. Under the Criminal Procedure Code, it is mandatory to assist the Prosecutors. In France, the inquisitorial or continental model of justice is used, which requires the prosecutor to prove the case in law courts. The Prosecutor is known as Procureurs de la Republican.
They deal with many responsibilities in France. According to Article 31 of the French Code of Criminal Procedure from 1958, Public Prosecutors have a public obligation to request that the law be enforced. In all topics and in all instances, the Public Prosecutors are allowed to interpret and enforce the law and people’s individual liberty.
As a result, in criminal cases, French law gives prosecutors the power not only to commence criminal proceedings but also to prosecute exclusively in law courts. The State Counsel conducts prosecutions and demands that the law is followed in the French Criminal Justice system. The Ministry of Justice appoints the prosecutor. The National Public Competition Examinations are used to recruit them. Only recent law graduates are eligible to take the exam. As a result, those Prosecutors are hired solely on merit, without regard for political considerations.
The District Prosecutor wields all judicial and police powers as defined in Chapter III of the Code of Criminal Procedure of France, i.e. “Powers of Investigating Judge.” The French Prosecutor has the authority to conduct his own investigation. He can question witnesses, for example. If a suspect is apprehended while committing the crime or shortly after, the prosecutor has the authority to undertake on-the-spot searches and seizures (French CPP, arts. 54, 56).
In the most serious criminal cases, the prosecutor is entitled to undertake investigations. Prosecutors in France lead investigations with the assistance of police officers assigned to the task. When the Magistrates take cognizance of a matter, the Magistrate, not the Prosecutors, is in charge of the investigation. However, most of the time, it is the Prosecutors’ decision to lead an inquiry.
Thus, the prerogatives of the French prosecutor are not confined to the drafting of charges, but also include the periodic investigation of cases. The case’s outcome is determined by the prosecutor’s position in France. It leads to the determination of the case’s final conclusion, as well as the rights of the defendant.
Prosecutors in France are civil servants. They are regarded as legal instruments. The Prosecutors in France uphold and interpret French Criminal Law. In France, Public Action is enforced by French Prosecutors, who can legally ask the courts to enforce the legislation. One of the ways of public action is the imposition of a punishment. The French Prosecutors can instruct the police to launch a preliminary police investigation.
As soon as judicial police officers become aware of a criminal or misdemeanour, they are required to immediately notify the Prosecutors. Even reporting to the prosecutor of tiny offences committed by police officers of which the police officer is aware is mandatory. The judicial police officers are obligated to give him the investigation reports detailing the actions done in relation to the specific offence. In France, Customs personnel have a responsibility to help Public Prosecutors. When the District Prosecutor requests police officers’ aid, the police officers must provide it as soon as possible.
A judicial police officer may tell the District Prosecutor of the likelihood of committing a crime at the outset of the arrest and detention. The individual who has been arrested cannot be held for more than twenty-four hours. Only with the written permission of the District Prosecutor may the custody be extended for a further period of up to twenty-four hours. He has the option of making this authorization conditional on the detainee’s past appearance in front of him. On his orders, everyone against whom evidence is gathered faces being prosecuted, having their police custody terminated, or being released free. (Articles 63)
Upon request, any person detained by the police may be examined by a medical doctor appointed by the District Prosecutor or a judicial police officer. If his police custody is extended, he may request a second medical examination. (Articles 63 )
District Prosecutors may also order all judicial police officers to continue their operations. (Article 68)
The District Prosecutor or the investigating Judge may continue his investigations in the jurisdiction of the courts next to the location where he conducts his duties in order to conduct a fair investigation. The Judicial Police must first notify the District Prosecutor of his intended court location. He documents the reasons for his journey in his official record. (Articles 69)
Role of Prosecutor in the investigation: India v. France
Arrest, investigation, custody of the accused, directives for additional investigation, and evidence collection are all part of the pre-trial stage of every case. The Code of Criminal Procedure outlines how and when police, prosecutors, and judges should use these powers.
The investigation and judicial roles of the Indian Prosecutors are separate. The Prosecutors are not involved in the case inquiry. As a result, in India, a prosecutor plays very little role in the pre-trial phase. Prosecutors used to play a major role in the pre-trial phase prior to 1973 when both the police and the prosecutors were members of the same police department. Prosecutors, on the other hand, are now completely barred from conducting investigations.
When a First Information Report indicating the commission of a cognizable offence is registered in a police station in India, the criminal law is activated. The role of the prosecutor begins when the police record a statement under section 161 of the Code of Criminal Procedure, 1973. The collection of evidence is the responsibility of police personnel, and the Prosecutor is not involved in this process.
The mode and procedure of committing an accused to detention are outlined in the Code of Criminal Procedure of 1973. Prosecutors in India request the accused’s custody before the trial begins. Following the Prosecutor’s arguments, the Judge makes a custody determination. In India, prosecutors do not make custody decisions. The Prosecutor’s only option is to request detention from the appropriate courts. In addition, the Supreme Court of India as well as the High Courts of the relevant States have determined the authority of prosecutors seeking police custody in a number of cases.
Prosecutors, on the other hand, play a dominant and powerful role in the investigation of the case in France. They have a close working relationship with the police. The police use the guidelines to handle the prosecution cases, and as a result, the Prosecutors in France are able to improve the victim’s case. In the Republic of France, the Prosecutors have a wide variety of powers. Prosecutors in France have all of the rights that police officers in India have, and they accomplish their tasks and perform their roles either directly or indirectly. Prosecutors are chiefs of police departments. The whole police apparatus in France is directed and supervised by prosecutors.
When a private party of the police approaches the Prosecutors and asks for permission to continue the investigation, the criminal law in France is activated. Those Prosecutors, particularly in cases involving less serious Delits, have the option of bringing the case before the court or not. The cops gather the whole dossier of evidence as directed by the prosecutor. Prosecutors collect only relevant and admissible data during the pre-trial period. The accused must be taken into custody in order to establish his or her guilt and obtain additional information regarding the offence.
Prosecutors in France have the right to decide on the duration and kind of custody, which is a very important power. The CCP specifies when the prosecutor can employ his or her prerogatives in relation to the custody of the accused.
Human rights must be protected in any society, and the prosecutor’s main role is to do so. So that there is no arbitrariness, ambiguity, or injustice. Each country has a prosecutor, but they each operate in their unique fashion, with the main distinction being the powers granted to them.
Each system has flaws, but if they serve the public good and operate for the actual meaning of the prosecutor as intended, society will undoubtedly become a safer place. As gatekeepers of the legal system, public prosecutors play a critical role in criminal repression. The prosecutorial initiative has the potential to reduce crime. At both a local and global level, the size of criminal tendencies is increasing. Prosecutors must be acknowledged and protected in order to preserve all types of people’s rights, including social, economic, political, and family rights.
- Committee on Reforms of Criminal Justice System, Available Here
- Robert Vouin, The Role of Prosecutor in French Criminal Trials, Available Here
- Law Commission of India (14th Report on Reform of Judicial Administration 1958), Available Here
- Non-Adversarial Justice- The French Experience, Available Here
- Madan Lal Sharma, The Role and Function of Prosecution in Criminal Justice, Available Here