Prosecutor Not Mouthpiece Of Police; Must Function Fearlessly & Take Independent Decisions: Madras High Court

The High Court was considering a writ petition filed by a practising lawyer who had raised allegations against a Prosecutor.

The Single Bench of Justice G.R.Swaminathan held, “The fifth respondent was the prosecutor for a given period. He is no mouth piece of the Police. Merely because the Investigation Officer recommends that a petition for cancellation of bail should be filed, the Prosecutor is not obliged to abide by that advice. He has to take an independent decision. Whether to mark a document or not and whether to examine a witness or not are to be decided by the Prosecutor and not the Police. The call is his and his alone. A Prosecutor must function fearlessly.”

“These larger considerations impel us to throw out the petitioner’s complaint at the threshold stage even without ordering notice to the fifth respondent. The only concession that we can record is that in the event of any adverse remark over his conduct, the Prosecutor may have to face action at the hands of the Bar Council. But this remark must come through a judicial order”, it added.

Advocate K.T.K. Janakiram represented the Petitioner while Additional Government Pleader K.R. Shivashankari represented the Respondent.

Factual Background

The petitioner complained that the fifth respondent (Prosecutor) did not discharge his duties properly. The writ petition was filed to direct the Bar Council to initiate disciplinary action against the respondent Prosecutor. The Advocate alleged that the respondent prosecutor did not apply for cancellation of the bail granted to the accused even though the Investigation Officer made a written request. When the accused sought handing over of his vehicle’s RC book, the Additional Public Prosecutor did not oppose the said request.

Reasoning

The Bench stated, “We fail to understand as to how the Bar Council can be called upon to set the ball rolling in such circumstances. Only if there are prima facie materials to show that an Advocate is guilty of professional misconduct, the Bar Council can be called upon to look into the complaint and take action.”

Considering that the fifth respondent was the prosecutor for a given period and he was not a mouthpiece of the Police, the Bench stated, “The Police will not lord over the Prosecutor.” The Bench further held that if the Presiding Judge finds something seriously amiss in the Prosecutor’s conduct and says so in his order, that can and that alone can furnish the cause of action for the Bar Council to wield the whip.

“The Prosecutor is not concerned with the private dispute between the complainant and the accused. His only role is to establish the crime said to have been committed by the accused. Even in the course of discharging his duty, if the Prosecutor finds that there is any material favouring the accused, he has to disclose the same. He must put up a fair fight. Bhima hit Dhuriyodhana beneath the waist. That was an egregious breach of the rules of combat. But a Prosecutor should never do that”, it further held.

Concluding that the petitioner's allegations made against the fifth respondent did not fall within the ambit of professional misconduct so as to attract the disciplinary jurisdiction of the Bar Council, the Bench found no ground to issue any directions and dismissed the Petition.

Cause Title: R.A. Jaikumar v. The Home Secretary (Case No.: WP(MD) No. 29575 of 2026)

Appearance

Petitioner: Advocate K.T.K.Janakiram

Respondent: Additional Government Pleader K.R.Shivashankari, Standing Counsel K.R.Laxman

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