Appoint prosecutors on merit, not on political leanings: Supreme Court

The Supreme Court has said that state governments should appoint additional government pleaders (AGPs) and additional public prosecutors (APPs) in their respective high courts solely on merit and not on political beliefs of a candidate.

 

In a judgment delivered on January 29 this year, Justices J B Pardiwala and R Mahadevan said state governments must ascertain the ability of a person, how proficient the person is in law, the overall background and integrity before appointing him either as AGP or APP.

 

“The public prosecutor must be a person of high merit, fair and objective, because upon him depends to a large extent the administration of criminal justice. The office of the public prosecutor is a public office and the incumbent has to discharge statutory duties. The person appointed as public prosecutor must, therefore, be one who is not only able and efficient, but also enjoys a reputation and prestige which satisfy his appointment as a public prosecutor,” the apex court said in its judgment.

 

 

The apex court’s remarks in the judgment came while hearing a plea against a decision of the Punjab and Haryana High Court.

 

The high court had, while exercising its revisional jurisdiction, overturned the acquittal of three people who had been charged and convicted of murder.

 

“Revisional jurisdiction cannot be a channel to convert an order of acquittal into one of conviction. This is ultra vires the statutory powers of revision. Coupled with the fact that the convict was not afforded due opportunity of being heard, the principles of natural justice also appear to have been violated,” said Shiv Sapra, partner at law firm Kochhar & Co.

 

In its judgment, the apex court, also rapped the public prosecutor of the HC for failing to discharge his duty by not correcting the court and apprising it of the lack of reversal powers under revisional jurisdiction.

 

“A public prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the facts of the case. If an accused is entitled to any legitimate benefit during trial, the public prosecutor should not scuttle/conceal it,” the apex court noted in its judgment.

 

This is, however, not the first time observations have been made regarding public prosecutors.

 

The Supreme Court had, while referring to the 154th Law Commission Report in the matter of Harendra Rai vs State of Bihar, said that “prosecutors are the 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 also not there to see the culprits escape conviction,” the Supreme Court had then said.

 

Criticism of public prosecutors for acting as agents of the government rather than as independent ministers of justice has also been a recurring theme in Supreme Court judgments, said Tushar Kumar, an advocate practicing in the apex court.

 

“In S.B. Shahane vs. State of Maharashtra (1995), the apex court highlighted the duty of a public prosecutor to be impartial and to present the case fairly, ensuring that justice is done rather than merely securing a conviction,” he said.

 

“There is no higher principle for the guidance of the court than the one that no act of courts should harm a litigant and it is the bounden duty of the courts to see that if a person is harmed by a mistake of the court he should be restored to the position he would have occupied, but for that mistake,” the apex court said in its January 29 judgment.