Muneeb Rashid Malik
The Jammu & Kashmir Reorganisation Act, 2019 (Act No. 34 of 2019), came into effect on 31st October, 2019, although, the Jammu & Kashmir Reorganisation Bill, 2019, was passed by the Rajya Sabha on 5thAugust, 2019, and by the Lok Sabha on 6th August, 2019, followed by its Presidential assent on 9th August, 2019. The Act, fundamentally, bifurcated the erstwhile State of Jammu and Kashmir into the Union Territories of Jammu & Kashmir and Ladakh. The Act was passed after the revocation of the Jammu & Kashmir’s special status via the Constitution (Application to Jammu & Kashmir) Order, 2019.The Act has reduced the number of States in India to 28 and increased the number of Union Territories to 8, thus, the First Schedule of the Constitution has also been amended. The Jammu & Kashmir Reorganisation Act, 2019, has 14 Parts, 103 Sections, and 5 Schedules.
The Jammu & Kashmir Reorganisation Act, 2019 has repealed 164 Laws of the erstwhile State of Jammu & Kashmir and 106 Central Laws (Fifth Schedule) are applicable to the Union Territories of Jammu & Kashmir and Ladakh, also, 166 State Laws will continue to be applicable. Laws such as the Code of Civil Procedure, India Penal Code, the Indian Evidence Act, and numerous other laws are now applicable to the Union Territories of Jammu & Kashmir and Ladakh.
The Code of Criminal Procedure, 1973, is now applicable to the Union Territory of Jammu & Kashmir. As per the Jammu and Kashmir Reorganization (Adaptation of Central Laws) Order, 2020, read with the Code of Criminal Procedure, 1973, the Government of the Union Territory of Jammu and Kashmir shall establish a Directorate of Prosecution consisting of a Director General of Prosecution and such other officers, as may be provided in rules to be framed by the said Government and the Post of Director General of Prosecution and all other officers, constituting the prosecution cadre, shall be filled in accordance with the rules to be framed by the said Government.
The Government of Jammu & Kashmir, on 30th October, 2019, accorded sanction to the establishment of Directorate of Prosecution, headed by a Director General (Prosecution) and creation of a separate Prosecution Service, to be known as the Jammu & Kashmir Prosecution Service. Sanction was also accorded to engagement of the Retired Officers, of and above the rank of Senior Prosecuting Officers by police formations with the prior approval of the Home Department, to meet any severe manpower deficit, wherever felt necessary, initially for a period of six months. The Government Order stated that the officers of the existing Prosecution Wing have been appearing in the Courts for conducting criminal cases and have gained valuable experience, therefore, their services are sought to be utilized, in accordance with the provisions of the Code of Criminal Procedure, 1973, as Public Prosecutors, Additional Public Prosecutors, and Assistant Public Prosecutors. It also enunciated that the severance of prosecution from police being sine qua non to achieve prosecutorial independence, apart from being a statutory obligation of the Government, warrants cessation of the present status of the members of the existing Prosecution Wing of the Police, notwithstanding their initial appointment under the Police Rules, 1960, so as to make them eligible for being part of the prosecution service. The Government Order also enunciated that a Directorate of Prosecution with a separate prosecution service, is a crucial element of reforms of the Criminal Justice System, implementation whereof is being closely monitored by the Ministry of Home Affairs, Government of India.
In the case of S.B. Shahane V. State of Maharashtra, 1995 Supp (3) SCC 37, the Supreme Court observed that the remedial measures suggested by the Law Commission of India for conducting prosecutions by prosecutors fairly and impartially have to be appreciated and implemented. Firstly, it was suggested that the Police Department shall not continue as the prosecuting agency as the practice prevailed. Secondly, the prosecuting agency must have its own Prosecution Department separate and distinct from the Police Department, of which it was a part. Thirdly, the Prosecutors of Prosecution Departments must have their own heads who can exercise administrative and disciplinary control over them being directly responsible to the Government concerned. It was ultimately, suggested in unequivocal terms that the machinery of criminal justice though comprised of Investigation Department and the Prosecuting Department, there should be complete separation between them. The object of such separation suggested is obviously to see that the officers of the Police Department who will have investigated the cases to be prosecuted in courts shall have no manner of control or influence over the prosecutors who conduct the cases in courts based on the investigations made by the Police Department.In the case of Jitendera Kumar V. State (NCT of Delhi),1999 SCC OnLine Del 910, the High Court of Delhi observed that a Public Prosecutor is an officer of the court and is required and expected to assist the court to unravel the truth in a given case. In performance of his duty, he can prosecute the accused but he cannot assume the role of a persecutor. It is no part of his duty to secure conviction at all costs. In discharge of his duty, the Public Prosecutor is expected to act fairly and impartially and must be conscious of the rights of the accused. He is not only required to conduct prosecution case to the best of his ability but at the same time he is expected to respect and protect the rights of the accused.
A Public Prosecutor represents the State in whose name the prosecution is conducted and he does not represent the Police. The purpose of a criminal trial is to investigate the offence and to determine the guilt or the innocence of the accused and it is the duty of a Public Prosecutor to aid the court in discovering the truth of the case. Therefore, he is expected to discharge his duties fairly, fearlessly, and with full sense of responsibility.The duty of the prosecutor in a criminal trial is not merely to secure conviction but to place before the court whatever evidence is possessed by the prosecutor, whether it be in favour of or against the accused, and to leave the court to decide upon all such evidence, whether the accused was or was not guilty of the offence alleged. There should not be on the part of the prosecutor any unseemly eagerness for or grasping at conviction. It is no part of the prosecutor’s duty to obtain convictions by hook or by crook. The prosecutor plays a very important role in the administration of justice. The last thing he would desire is to secure a wrongful conviction or even to secure a conviction in a doubtful case. A Public Prosecutor should be personally indifferent to the result of the case. His duty should consist only in placing all the available evidence irrespective of the fact whether it goes against the accused or helps him, before the court, in order to aid the court in discovering the truth. In the machinery of justice, a Public Prosecutor has to play a very important and responsible role. The impartiality of his conduct is as vital as the impartiality of the court itself.
The establishment of Directorate of Prosecution and Jammu and Kashmir Prosecution Service are valuable steps to strengthen the Criminal Justice System in the Union Territory of Jammu & Kashmir. The Directorate of Prosecution, as an independent department, will be accountable for prosecution of criminal cases investigated by the police. The Directorate of Prosecution will be performing numerous and important functions like advising the police on cases for possible prosecution, reviewing cases and evidences submitted by the Police, framing and filing of charges in the Court, preparation of the Cases, presentation of the cases in the Court, exercising close supervision and scrutiny of the works of Prosecutors, etc.The establishment of an independent prosecution cadrewill bring about synergy in the Criminal Justice System as the Public Prosecutors are really 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 not there to use the innocents to go the gallows. They are also not there to see the culprits escape conviction.Every inquiry or trial of the proceedings shall be held as expeditiously as possible and minimum adjournment or orders of postpone are to be given. As Public Prosecutors play an important role during trial of the case, they should also facilitate the court for speedy trial of the case without unwarranted adjournments in order to maintain the purity and impartiality of the criminal justice system and to make it profusely robust.
(The author is a student of law.)
feedbackexcelsior@gmail.com
Follow our WhatsApp channel