Prosecutor Is No Mouthpiece Of Police, Must Act Fearlessly: Madras High Court
The Madras High Court has said a public prosecutor is not a mouthpiece of the police and must act fearlessly, taking decisions on his own. A single bench of Justice G.R. Swaminathan made the observation while dismissing a writ petition filed by a practising lawyer against a prosecutor.
The petitioner had complained that the prosecutor did not discharge his duties properly. Specifically, the lawyer alleged that the prosecutor did not apply for cancellation of bail granted to an accused even though the Investigation Officer had made a written request. He also alleged that when the accused sought the return of his vehicle's RC book, the Additional Public Prosecutor did not oppose the request. The writ petition sought a direction to the Bar Council to initiate disciplinary action against the prosecutor.
Justice Swaminathan held that the prosecutor was not obliged to follow the Investigation Officer's advice. "Merely because the Investigation Officer recommends that a petition for cancellation of bail should be filed, the Prosecutor is not obliged to abide by that advice. He has to take an independent decision," the court said. Whether to mark a document or examine a witness, it added, are decisions for the prosecutor, not the police. "The call is his and his alone. A Prosecutor must function fearlessly."
The bench further said the Bar Council cannot be asked to start proceedings in such circumstances. Only if there is prima facie material showing an advocate is guilty of professional misconduct can the Bar Council be called upon to look into a complaint and take action. It noted that the prosecutor was not a mouthpiece of the police and that "the Police will not lord over the Prosecutor."
The court observed that if a presiding judge finds something seriously amiss in a prosecutor's conduct and records it in an order, that alone can give the Bar Council a cause of action to act. It also said a prosecutor is not concerned with any private dispute between the complainant and the accused; his only role is to establish the crime said to have been committed, and he must put up a fair fight, even disclosing any material that favours the accused.
Finding that the allegations did not amount to professional misconduct attracting the Bar Council's disciplinary jurisdiction, the bench found no ground to issue directions and dismissed the petition. Advocate K.T.K. Janakiram represented the petitioner, while Additional Government Pleader K.R. Shivashankari appeared for the respondent.
Source: Verdictum