Abstract
The author, a public prosecutor working in Tamil Nadu, shares her experiences and understanding of the criminal justice system in this chapter. The author examines the nuances of the system, as well as its successes and failures. She also discusses the role of a prosecutor in the criminal justice system as well the daily challenges that prosecutors face.
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India, being a common law country, follows the Roman model of the dispensation of criminal justice, or an adversarial system of jurisprudence. In this system, the accused is presumed to be innocent, and the burden of proof is placed on the prosecution to prove the accused guilty beyond reasonable doubt.
The key actors in the criminal justice system in India are the victim, accused, police, prosecutor, defence counsel, and the judge. As a prosecutor, I have had the chance to understand the nuances of the system, as well as its successes and failures. In this paper, I will discuss the role of a prosecutor in the criminal justice system, the challenges we face daily, and my observations on the Indian criminal justice system.
For a case to enter the criminal justice system, a complaint has to be lodged by the victim or complainant with the police and a first information report (FIR) has to be registered. The FIR is then drafted into a charge sheet against the accused (who 
196 is mentioned by the complainant in his/her complaint). Once the charge sheet is filed, it is the prosecutor who presents the case against the accused and represents the police.
The primary duty of the prosecutor is to make sure that the victim is indemnified and the charge against the accused is proved beyond reasonable doubt. The prosecutor does this by examining the victim and witnesses in the court and presenting evidence to the court.
The prosecutor has numerous duties with respect to witnesses, key amongst which is to ensure that all witnesses mentioned in the charge sheet are examined thoroughly and properly. In my experience, in the courts I have worked in, and based on the cases I have handled, even if a charge sheet for a crime is filed today, the case will come up for hearing only after three or four months. Given this time gap, there is a chance that the complainant will forget the minute details of the crime and the complaint. The duty of the prosecutor is to refresh the memory of the complainant using the complaint and the charge sheet. The prosecutor always calls the complainant as the first witness in the case to give testimony before the court.
At the time of writing this chapter, I worked as a public prosecutor at a District Munsif-cum-Judicial Magistrate Court in Thirumayam Taluk, Pudukkottai, Tamil Nadu. The court is presided over by a single judge who hears both civil and criminal cases.
There were between 700 and 800 criminal cases pending before the court. The average number of new criminal cases filed every month was 100–130. The average time a case spends in the court depends on the number of witnesses. The charge sheets of most cases contain nine or 10 witnesses, and once cases like these come up for trial, they are finished in three to four months. The total time taken for disposal on average is between eight and 10 months, from the filing of the charge sheet to the completion of the trial.
I deal with any criminal case which can be tried by a magistrate. These include cases of causing hurt, criminal intimidation, forgery, and cheating.
THE PROSECUTOR AND THE CRIMINAL JUSTICE SYSTEM
Other Actors
In my experience, barring a few exceptions, most of the other actors in the system, such as the law enforcement authorities, defence counsel, and judge, work very well with the prosecution to ensure cases proceed smoothly through the system. To ensure smooth functioning and cooperation, there is a significant onus on the prosecutor not to be biased, and not to condemn the accused outright.
I feel that the police are at the heart of the criminal justice system. They have multiple duties through 197 the course of a case and work closely with the prosecutor. Their key responsibilities are prompt delivery of the summons to witnesses and the recovery of weapons and property relevant to the case before the trial commences. It is very important to a prosecutor that both these tasks are carried out diligently so that the prosecutor can examine witnesses and present evidence in trial. In my opinion, if and when police are able to serve the summons in a timely manner (usually within 15 days) and produce witnesses in time for scheduled hearings, trials will conclude in a month. The judges usually consult with the police before they issue summons and set dates for witness examination. The judges understand the capacity of the police, given the shortage of police personnel.
Though the defence counsel is naturally opposed to the prosecutor in terms of duty, they too are keen on ensuring that the trial process goes smoothly and ends quickly. Their primary duty is to disprove the prosecution, and generally, they do not interact much with prosecutors. In my experience, many defence counsel are committed to the speedy disposal of cases. However, there are some defence counsel who are absent on purpose when the prosecution examines the witness, and later approach the court with a petition filed under Section 311 of the Code of Criminal Procedure (CrPC), 1973. A petition filed under Section 311 of the CrPC allows the defence to summon any person as a witness, or examine any person in attendance, or recall and re-examine any person already examined. This practice causes delays in the trial.
The most important duty of the judge in criminal cases is to decide the case purely on merits. Save a few, most judges work diligently, prudently, and perform their duties without bias. However, in the process of disposing of pending cases speedily, many a time, judges end up concentrating only on bringing cases put forth by the prosecution to judgment.
The presiding officer in a magistrate’s court is vested with enormous powers, yet he or she also shoulders an excessive burden. The presiding officer is expected to work mechanically, with no other resort, due to high-pressure expectations to dispose of a large number of cases every month. While delayed judgments are not ideal, neither are hurried judgments. In my opinion, the judiciary should be commended for its tireless work.
For the most part, I do not encounter too many challenges and my everyday work proceeds smoothly. The one problem I do face regularly is threats made by the accused, which results in the complainant turning hostile. It is common knowledge that the accused threaten and try to coerce victims. Often, I see cases that come up for trial where the victim testifies well before the court, but the case comes to a halt thereafter because the accused then threatens the victim, and when the victim comes forward for cross-examination, he or she turns hostile owing to fear. When we try to elicit any information about these threats during the witness examination, most witnesses refuse to testify.
Another difficulty prosecutors face is defence counsel asking for a compromise between the victim and accused midway through the trial. This makes the victim withdraw, and though they have testified earlier, they state that they do not want to continue with the trial. This usually happens 198 in cases which deal with the voluntary causing of hurt, under Sections 323 and 324 of the Indian Penal Code, 1860. We do try to fulfil our duty to explain to the victims that they should not compromise or withdraw, but many times, our efforts are in vain. Our hands are tied, and we are not able to take action for perjury, the reason being that the accused and the victim have compromised. At this point, all efforts made by a prosecutor to strengthen the prosecution’s case lose value.
The main systemic hurdle that I face as a prosecutor is the interruption in the flow of a case, and the time taken between hearings. Daily, between 10 and 15 cases are in trial, and each has between three and five witnesses. However, sometimes there is a gap of more than a month between each examination of a witness in a single case. I feel that a reduction of the time gap between the examination of witnesses to a week or 10 days, instead of a month, would improve the overall flow of the case. If judges were more firm during the examination of witnesses, the case is likely to proceed much more smoothly. This means that the judges should not allow the defence counsel to file petitions under Section 311 of the CrPC for the recalling of witnesses unless essential, and be more firm in disallowing adjournments.
I have spoken to judges and registrars about this particular hurdle, and while they agree in principle, they have stated that it is not possible to post the same case continuously since all cases need to be heard. In addition, they have stated that while hearing witnesses and cross-examination is very important, it is not their only duty.
Other than minor procedural hiccups that leads to some mental stress, I do not face any significant challenges on a daily basis. Most accused usually behave reasonably, and I have not encountered any specific challenges or faced any bias as a woman prosecutor.
I have seen several measures to ensure that cases in the criminal justice system are disposed of speedily. A reform I would like to highlight is in the subordinate courts in Tamil Nadu, where one in every five days is dedicated to working on and hearing cases pending for more than five years. Witnesses are brought in specifically for these cases, and this is resulting in disposal of long-pending cases. I feel that if this measure is practised a little more diligently, with the summons being served more efficiently and witnesses appearing before the courts on the scheduled dates, then overall pendency can be brought down significantly.
Tamil Nadu also has an effective Lok Adalat system which speedily disposes of cases such as matrimonial and land disputes. Legal aid has also proven to be effective in Tamil Nadu. Legal aid officers go to remote areas and educate people on how to resolve disputes, whom they can approach to resolve disputes, and which fora to file a case in. This creation of awareness helps people avoid taking the wrong path to resolve disputes, which further improves efficiency.
A positive trend in Tamil Nadu is that not many FIRs are being registered in police stations for petty offences. The police try to resolve some simple offences such as minor cases of hurt, public abuse, and disputes relating to money at the station through enquiry and with both parties present. This has, of course, a corollary that the police should not exercise excessive powers. However, when practised in a limited way, it can be very positive for the system.
If a trial proceeds quickly, the chances of witness tampering will reduce. A speedy trial also helps witnesses in providing solid and reliable evidence, makes it easier for the police to produce the witnesses at a stretch, and reduces the chances of the prosecution witnesses becoming vulnerable to manipulation. It is easier to conduct speedier trials in sessions courts, because there are fewer cases being tried, given that it is a superior court. Though it may be very difficult to adopt, the method of fixing dates of hearing in advance in the lower courts, where the amount of day-to-day work is greater, if put into practice, will make work easier for all actors in the system, while paving the way for clear and transparent disposal of cases.
Most of my suggestions to improve the system and overall efficiency of processes revolve around the police, who play a key role in the production of witnesses, since they deliver the summons. However, travel to remote regions, and unavailability of witnesses results in the failure of delivery of summons and appearance of witnesses. I do not blame the police, as they are extremely overburdened. The strength of the police force should be increased to allow them to work optimally. The ideal number of cases the police can work on in a week is about 10, as they have a significant amount of clerical work as well.
On Being a Prosecutor in the System
It is the treatment of the prosecutor that challenges the efficiency of the trial process and the criminal justice system. If the judge construes what the prosecutor presents properly and the court gives adequate support, trust, and credit to the prosecutor, the way the trial proceeds can be improved greatly.
Prosecutors can affect the timely disposal of the cases by doing their duty correctly and fairly. They should take special care to prepare the victim for evidence and cross-examination, and help refresh their memory. The prosecutor should mentally prepare the victim for the complete trial process and provide moral support. In addition, they should read all documentary evidence thoroughly and prepare notes on the same. If prosecutors do not get too personally involved with victims and complainants, educate victims, and examine witnesses in a quick and fair manner without taking anything to heart, then the trial process will go smoothly. By personal involvement, I mean becoming emotionally involved in the case, though it is difficult not to become emotionally involved with the victims and their plight.
The fact that I would have a daily opportunity to support the side of truth was what drove me to be a prosecutor. The main reason I chose to go down this path was to fulfil my dream to bring justice to the victims of crimes. My initial expectations have more than met the reality of my work. Standing up for victims was why I started this job and that is why I still do it.
My thoughts about the system are positive. I feel that the biggest positive of the criminal justice system in India is that it does not condemn a person with guilt at first sight. Despite the difficulties actors in the system face, they work diligently. There are processes in place to achieve true efficiency, they only require a little more clarity and proper application. Finally, I feel, for the criminal justice system to be truly effective, the most important thing is that everyone involved be true to their conscience.