Public Prosecutor’s Power Over Police Investigation [Column]

There is no denying the fact that most of us tend to get anxious at the sight of the police.  That uneasy feeling is owing to our experience with them at one time or another in the past.  We relish the usage of words such as fundamental rights, liberty, etc in our constitution but in reality, they seldom come in handy even when an ordinary traffic constable stops us. The paradox is we turn to them for protection but inward crave protection from them.  So, naturally, it is a matter of great curiosity to know who are all the authorities that can question them.  However, with due apologies, that is not the subject of this blog. 

The subject is the misconception, although logically sound , nevertheless a misconception, some of us have in relation to the power of the Public Prosecutor over the police.  The misconception is that the Public Prosecutor does have some say during the investigation.  It is logical because it is they who argue in the court which will ultimately lead to either conviction or acquittal. The police have to act within the boundaries of the law and who can be in a better position than the public prosecutor to tell them the law.  

So, the question is how much power the Public Prosecutor has over the police.  The answer is zero. 

To quote the apex court in R. Sarala vs T.S. Velu [AIR 2000 SC 1731] :

“Investigation and prosecution are two different facets in the administration of criminal justice. The role of Public Prosecutor is inside the court, whereas investigation is outside the court.”

 There is no stage during which the investigating officer is legally obliged to take the opinion of a Public Prosecutor ……”

The facts of this case are very interesting.  The high court directs the police to seek the opinion of the Public Prosecutor and then file the charge sheet.  The apex court not only states that the police are under no obligation to seek the opinion of the Public Prosecutor but even the High Court does not have the power to issue such directions. 

The Supreme Court in  Abhinanadan Jha vs. Dinesh Mishra [AIR 1968 SC 117] observed:

“We have already pointed out that the investigation, under the Code, takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge- sheet, or a final report is dependent on the nature of the opinion, so formed. The formation of the said opinion, by the police, as pointed out earlier, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority.”

In the above case, the Apex Court asserts that even a magistrate does not have the power to direct the police to file a charge sheet when the police decide to file a final report under section 169 CrPC (no reasonable ground of suspicion).  

Therefore it is unambiguous that the police investigation power is independent and untrammeled by any authorities including the Public Prosecutor. However, the police may seek the opinion of the Public Prosecutor and have discretion on whether to accept it or not. 


This is a guest column by Mr. Arun Kumar A, Final Year LLB. Views are personal.

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