If the criminal case has been instituted as a private complaint case (i.e., not through police), then the complainant can definitely appoint his own lawyer to conduct prosecution.
However, if a case is under trial on the basis of a police investigation, then the appointment of a private lawyer by the complainant is governed by the provisions of Section 301 of the Criminal Procedure Code:
“301. Appearance by Public Prosecutors.—(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.
(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.”
Therefore, in a police case, if the complainant appoints his private lawyer, then such private lawyer has to work only under the directions of the public prosecutor, etc., who is officially appointed.
Of course, if it is some very sensitive / important case, the complainant may request the government for appointment of some experienced lawyer as a special public prosecutor. But, it is up to the government to accept or deny such request. And, if such person is appointed as special public prosecutor by the government, then he shall be deemed to be the public prosecutor; however, the complainant may not be in a position to instruct him about the manner in which the prosecution can be conducted.
Collection of evidence is not done by prosecutor; he is basically required to conduct the prosecution in the court. Collection of evidence is done by police.
The prosecutor can file petition / application in the absence of the accused, but usually copy of such application is given to the accused and the accused (or his lawyer) is also heard before the court passes any order. The dates for hearing are fixed by court, and it may do so on the suggestion of lawyers of both sides.
Public prosecutor does not act on the instructions of the de facto complainant. He has his own independent authority under law.
Accused can request the court to provide copy of the appointment of the public prosecutor, and generally it would be provided. Usually, there is a general order of the appointment of a public prosecutor, and he may not need any special authority in a particular case, as mentioned in Section 301 Cr.P.C., as reproduced above. But, if some special public prosecutor has been appointed by the government in an individual specific case, then there would be a special order for that case (or group of cases).
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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