(2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be appointed as Assistant Public Prosecutor.
(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. However, 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.
Section 24 provides that the Assistant Public Prosecutor should also be a practising Advocate. But Section 25 of the Code does not provide so and, therefore, under certain circumstances even a police officer can be appointed as Assistant Public Prosecutor under Section 25 of the Code.
A police officer to the rank of Inspector or above may be appointed to act as Assistant Public Prosecutor in any case provided that he has not himself been the investigating officer in the offence for which the accused was being tried. Such Prosecutors shall be free fully from administrative and disciplinary control of the police department.
However, the practice of appointing police prosecutors as Assistant Public Prosecutors has been disapproved by the Supreme Court.
The appointment of a prosecutor is a compelling constitutional necessity obligatory under the Code. Financial constraints cannot absolve the State of its constitutional obligation.
Accused cannot demand that the prosecution should be conducted by a particular prosecutor only.
As Section 24 of the Code of Criminal Procedure does not speak about extension or renewal of the term of the person appointed as public prosecutor, the same procedure, as provided under sub-section (4) of Section 24 has to be followed.
The Public Prosecutor is the holder of a public office. He is not a part of the investigating agency. He is an independent statutory authority. As an advocate for the State, he may be ranked as a minister of justice equally with the judge.
The Public Prosecutor or the Additional Public Prosecutor cannot appear against the State in criminal matters. They cannot appear on behalf of the accused even in cases instituted by a private party.
The duty of a public prosecutor is to represent the administration of justice so that the testimony of all the available eyewitnesses should be before the Court. He must consider himself as an agent of justice.
The public prosecutor is the counsel for the Government for conducting prosecution on behalf of the Government. His duty as public prosecutor is not merely to secure the conviction of the accused at all costs but to place before the court whatever evidence is in his possession, whether it be in favour or against the accused and to leave court to decide upon all such evidences whether the accused had or had not committed the offence with which he stood charged. He has to be truthful and impartial. His duty to the Court should be fair, independent and unbiased.
The Public Prosecutor is an officer of the Court and he is bound to assist the Court with his fairly considered view and the court is entitled to have the benefit of the fair exercise of his function.
The duty of the prosecutor is to assist the Court in reaching a proper conclusion in regard to the case which is brought before it for trial. The public prosecutor shall not be partial either to the accused or the prosecution. It is not part of the prosecutor’s duty to obtain convictions by hook or by crook.
Similarly, the Assistant Public Prosecutors are appointed by the Government only for conducting prosecutions in the Courts and they are full time Government servants. They have no right to practise or take briefs to defend the accused in criminal cases.
No specific provision has been made in the Code of Criminal Procedure in respect of the conduct of prosecution in the Courts. According to the prevailing practice, in respect of cases initiated on police report, the prosecution is conducted by the Public Prosecutor or Assistant Public Prosecutor and in cases initiated on a private complaint, the State can appoint prosecutors if the cause has public interest. The Public Prosecutors have right to conduct prosecution and that in such a case no permission of court for conducting the prosecution would be necessary.