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Prosecution – Defence

July 4, 2021


A proceeding either by way of indictment or information, in the criminal courts, in order to put an offender upon his trial. The term “prosecution” would include institution or commencement of a criminal proceeding. It may include also an inquiry or investigation. In its wider sense, prosecution means a proceeding by way of indictment or information and is not necessarily confined to prosecution for an offence. The term “prosecution has been instituted” would not mean when charge-sheet has been filed and cognizance has been taken. It must be given its ordinary meaning, CBI v. Sashi Balasubramanian(2006) 13 SCC 252: (2007) 3 SCC (Cri) 337. 
(Of course, the word “Prosecution” also means,  in relation to a course of study, includes promotion from one part or stage of the course of study to another part or stage of the course of study, Section 12A(c), University Grants Commission Act, 1956).


Popularly, a justification, protection or guard; in law, a denial by the defendant of the truth or validity of the plaintiff’s compliant. In Civil matters, a defence (which is always in writing or printed) is either (1) by statement of defence, which may be a denial of the plaintiff’s right or may be an allegation of a set-off or counterclaim by the defendant which will cover wholly or in part the claim of the plaintiff; or (2) by demurrer, which seeks to defeat the plaintiff’s claim by showing that the facts alleged on his behalf do not show any cause of action to which effect can be given by the Court as against the defendants so demurring.

Prosecution, civil suit, legal proceeding — The word “prosecution” means a criminal action before the court of law for the purpose of determining “guilt” or “innocence” of a person charged with a crime. “Civil suit” refers to a civil action instituted before a court of law for realisation of a right vested in a party by law. The phrase “legal proceeding” connotes a term which means the proceedings in a court of justice to get a remedy which the law permits to the person aggrieved. It includes any formal steps or measures employed therein. It is not synonymous with the “judicial proceedings”, Army Headquarters v. CBI(2012) 6 SCC 228.

Prosecuting Officer:—

Prosecuting Offucer means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code, Section 24, Explanation (b), Criminal Procedure Code, 1973.

Public Prosecutor:—

Public Prosecutor is a functionary of the State appointed to assist the court in the conduct of a trial, the object of which is basically to find the truth and to punish the accused if he is found guilty according to the known norms of law and procedure. It is no part of his obligation to secure conviction of an accused, in any event or at all costs. His task is to represent the State’s point of view on the basis of the material which could be legitimately brought before the Court at the trial. A Public Prosecutor has no client or constituency apart from the State and the State is not a party like any other party. He is not paid by an individual who may be aggrieved or by the accused who is on trial. He therefore, does not have the disability of a dual personality, which is true of an ordinary advocate, Ajay Kumar v. State, ILR (1985) 2 Del 40. The Public Prosecutor has a very important role to play in the administration of justice and particularly, in criminal justice system. He has at all times to ensure that an accused is tried fairly. He should consider the views, legitimate interests and possible concern of witnesses and victims. He is supposed to refuse to use evidence reasonably believed to have been obtained through recourse to unlawful methods. His acts should always serve and protect the public interest. The State being a prosecutor, the Public Prosecutor carries a primary position. He is not a mouthpiece of the investigating agency, Deepak Aggarwal v. Keshav Kaushik(2013) 5 SCC 277: (2013) 2 SCC (L&S) 88: (2013) 2 SCC (Cri) 978: (2013) 3 SCC (Civ) 26. Public Prosecutor means, any person appointed by the Central Government or State Government under Section 24 for every High Court in consultation with the High Court, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be and includes any person acting under the directions of a Public Prosecutor, Section 2 (u), Criminal Procedure Code, 1973 

Lacuna in prosecution case:—

A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage “to err is human” is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a court cannot fill up. (Para 7). Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better. (Para 8), Rajendra Prasadv. Narcotic Cell(1999) 6 SCC 110: 1999 SCC (Cri) 1062: AIR 1999 SC 2292: 1999 Cri LJ 3529.

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