The criminal justice system rests on three pillars – investigation, prosecution, and adjudication. If investigation is about uncovering facts, and adjudication is about delivering justice, prosecution acts as the bridge between the two.

Prosecutors carry the responsibility of presenting the case of the State against the accused, ensuring that the guilty are punished while the innocent are protected.

In India, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has replaced the colonial-era Code of Criminal Procedure (CrPC), introducing several reforms to streamline criminal procedure.

Among its many provisions, BNSS devotes special attention to the role of prosecution. It clearly defines the appointment, powers, duties, and functions of prosecutors, assistant prosecutors, and the Directorate of Prosecution.

Who is a Public Prosecutor?

Under Section 2(v) of BNSS, a Public Prosecutor means any person appointed under Section 18, and includes anyone acting under their directions. In essence, a Public Prosecutor (PP) is a law officer appointed by the State or Central Government to conduct criminal cases on behalf of the government.

They are not advocates for individual victims, nor are they private lawyers hired for a fee. Their role is wider and nobler – they represent the State and, by extension, society, in ensuring justice.

Appointment of Prosecutors

BNSS lays down a clear system for appointment:

• At the High Court level: The Central or State Government, in consultation with the High Court, appoints Public Prosecutors and Additional Public Prosecutors.
• At the District level: The State Government appoints Public Prosecutors and Additional Public Prosecutors. The District Magistrate, in consultation with the Sessions Judge, prepares a panel of eligible advocates. Only names from this panel can be appointed.
• Special Public Prosecutors: For special cases, the Government may appoint a senior advocate (with at least 10 years’ practice). Importantly, the victim of a crime can also engage their own advocate to assist the prosecution with the court’s permission.

Eligibility criteria ensure competence: a PP or Additional PP must have at least 7 years’ practice as an advocate, while a Special PP must have at least 10 years.

Assistant Public Prosecutors (APPs)

For cases before Magistrates, BNSS (Section 19) requires that every district has one or more Assistant Public Prosecutors. These APPs are the backbone of day-to-day criminal prosecution in trial courts.

Some important rules include:

• If no APP is available for a case, the District Magistrate may appoint another person temporarily, but only after notifying the State Government.
• A police officer who took part in the investigation of a case cannot be appointed APP for that case.
• A police officer below the rank of Inspector is barred from being an APP altogether.

This separation of roles is crucial to avoid bias. The investigator and prosecutor must remain distinct – one collects evidence, the other tests and presents it before court.

Directorate of Prosecution

One of the major reforms under BNSS is the structured Directorate of Prosecution (Section 20).

• State Level: Headed by a Director of Prosecution, supported by Deputy Directors.
• District Level: District Directorates with Assistant Directors of Prosecution.

Eligibility:

• Director/Deputy Director: At least 15 years’ practice as an advocate or a Sessions Judge.
• Assistant Director: At least 7 years’ practice or experience as a Magistrate.

Functions:

Director of Prosecution:

• Monitors cases involving severe punishments (10 years, life, or death).
• Ensures timely progress.
• Advises government on filing appeals.

Deputy Director:

• Examines police reports.
• Monitors cases punishable between 7–10 years.

Assistant Director:

• Oversees cases punishable with less than 7 years.

This tiered system ensures that cases are supervised according to their gravity. It also improves accountability, since every prosecutor in High Courts and District Courts is made subordinate to this hierarchy.

Duties of Prosecutors

Prosecution is not merely about “securing conviction.” BNSS indirectly emphasizes fairness and justice. The duties of prosecutors can be summarised as follows:

1. Represent the State: Act on behalf of the Government, not as private parties. Their client is the “public interest.”
2. Scrutinise police reports: Prosecutors check the sufficiency of evidence before filing charges. They can suggest further investigation if needed.
3. Present evidence fairly: They must not suppress facts that favour the accused. Their duty is to assist the court in arriving at the truth.
4. Assist victims: While the State leads prosecution, victims have the right to be heard. Prosecutors must ensure victims’ voices are not lost.
5. Advise on appeals: Higher-level prosecutors (Director and Deputies) give opinions on whether the State should appeal against acquittals or inadequate sentences.
6. Speedy trial: By monitoring proceedings and avoiding unnecessary delays, prosecutors help in timely delivery of justice.
7. Ethical conduct: They must maintain independence, resist political pressure, and uphold constitutional values.

Powers of Prosecutors

BNSS grants prosecutors significant powers, balanced with responsibility:

• Right of Audience (Section 338): A PP or APP may appear and plead before any court without needing written authority.
• Conduct of Trials: All Sessions trials (serious offences) must be conducted by a PP. They open the case, examine witnesses, cross-examine defence, and present arguments.
• Direction over private counsel: If a victim or complainant hires a lawyer, that lawyer can only act under the directions of the PP. This prevents parallel prosecutions and ensures consistency.
• Withdrawal from Prosecution (Section 360): With the court’s consent, a prosecutor may withdraw charges, if justified.
• Appeals and Opinions: Prosecutors advise the government on whether to file appeals, ensuring that weak or frivolous appeals are avoided.

Checks and Balances

To prevent misuse, BNSS provides checks:

• Eligibility criteria ensure only experienced advocates serve as prosecutors.
• No role overlap: Investigating police officers cannot act as prosecutors in the same case.
• Court’s Permission: Withdrawal from prosecution or allowing private advocates to assist requires judicial approval.
• Hierarchy: Directorates of Prosecution monitor and supervise cases to maintain accountability.

Importance of Prosecution in Justice Delivery

The success of criminal justice depends not just on strong laws or vigilant police, but on effective prosecution. A weak prosecution can let criminals walk free despite strong evidence. Conversely, an overzealous or biased prosecution can ruin innocent lives.

BNSS attempts to professionalise and modernise prosecution by:

• Creating a clear chain of command.
• Separating investigation from prosecution.
• Allowing victims a participatory role.
• Mandating case monitoring based on severity.

This marks a significant step forward from the colonial CrPC, where prosecution was often loosely organised.

Challenges Ahead

While the law is robust on paper, its success depends on implementation:

• Adequate training and resources for prosecutors.
• Independence from political influence.
• Reducing workload by appointing sufficient numbers of APPs.
• Ensuring coordination between police and prosecution without compromising neutrality.

If these challenges are addressed, BNSS could transform prosecution into a truly effective arm of justice.

Verdict

The functions, duties, and powers of prosecution under BNSS, 2023 reflect a conscious effort to professionalise criminal trials in India.

Prosecutors are not meant to be mere lawyers arguing for conviction, but guardians of justice who present evidence fairly, protect victims’ interests, and ensure that trials move efficiently.

By establishing the Directorate of Prosecution, laying down clear eligibility rules, and balancing powers with responsibilities, BNSS strengthens the prosecutorial system.

Ultimately, a strong and independent prosecution is indispensable for restoring public faith in the justice system, and BNSS takes a decisive step in that direction.

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