I came across a strange provision in the Code of Criminal Procedure, 1973. Part of Section 25, which concerns the appointment of Assistant Public Prosecutors (APPs), reads as follows:
…(2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor.
(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case: Provided that a police officer shall not be so appointed—
(a) if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or
(b) if he is below the rank of Inspector.
Yes, the appointment of a police official as an APP is an exception rather than the rule and yes, an officer involved in a case is not eligible to be a prosecutor as well. Even then, it seems stretching the bounds of propriety to have a provision such as this.
So many questions come to mind about this provision. How is it consistent with the principle of separation of powers? Can it be said with a high degree of certainty that an individual will not be conflicted between her loyalty to the police force to which she belongs and the responsibility she has been entrusted with as an APP? Is there such a lack of qualified advocates who can be appointed as APPs that this provision needs to exist? How often has this been utilised over the years?
On the last question, it would be a relief to know if, like several legal provisions, this one is seldom applied in practice. But even if it is never used, we need to take a long hard look at the continued existence of such language in the statute.