Legal Aid - How To Seek Justice
Rape is recognized as a crime committed against the State; therefore the State or District Government appoint a lawyer to the Survivor to represent her case. Such lawyers are known as Public Prosecutors.
Q 1. How is a lawyer appointed to fight the survivor’s case :
Once the case is registered by the police, they forward it to the concerned Court, where the case gets filed.
Given such offences are considered a state crime, the State or District Government that the survivor belongs to, appoints a Public Prosecutor to represent her case.
Survivor’s do not need to pay the lawyer any fee to fight their case.
The respective State or District Government covers such expenses.
Q 2. How is a Public Prosecutor appointed :
- For every High Court, the Central or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting any prosecution, appeal or other proceedings on its behalf.
- More than one Public Prosecutor may be appointed per case should the need for it arise.
- Same applies to District Courts as well.
- The person shall be eligible to be a Public Prosecutor only after he has been in practice as an advocate for not less than 7 years.
Q 3. Can the plaintiff (survivor) request for a Private Advocate instead of a Public Prosecutor to fight her case :
- If the Plaintiff is not satisfied with the State-appointed lawyer, she could request the Court for permission to hire a Private Advocate.
- The latter may be appointed only with the Court's consent.
- The private advocate cannot conduct the prosecution and can only assist the Public Prosecutor with guidance and written arguments.
Q 4. Provisions to change the appointed Public Prosecutor to an alternate one :
Incase the Plaintiff feels that the Public Prosecutor appointed to her is not fighting her case with competence or fairness, she may petition for a change in representation through the following ways -
- Filing a complaint to the Law and Judiciary Department of the concerned State. Example - Law and Judiciary Department, Government of Maharashtra.
- Filing an application of the grievance or making a submission before the concerned court itself.
- A copy of the complaint may also be addressed to The Ministry of Law and Justice which exercises overall superintendence and control over the functioning of a Public Prosecutor.
- One can initiate legal action against the Public Prosecutor under Sec. 2(C) of the Contempt of Court Act, 1971 if the facts and events support the plaintiff's case.
Q 5. Are there any provisions to withdraw a case :
Section 321 of the CrPC deals with the - Withdrawal from prosecution -
The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw the case -
- if it is made before a charge has been framed, the accused shall be discharged in respect of such offence.
- if it is made after a charge has been framed, he shall be acquitted.
- This power of the public prosecutor in charge of case is derived from the statute and must be exercised in the interest of the administration of justice.
Q 6. Provision in the event that the Plaintiff is a Foreign National :
- The law does not differentiate based on nationality. A woman of foreign nationality also gets assigned a Public Prosecutor and goes through the same procedural measures.
- Victim's Consulate or High Commission may help in the registration of case and future follow up.
Due to recent amendments, the inquiry or trial relating to an offence under Sections 376, 376A, 376B, 376C and 376D of the Indian Penal Code, must, as far as possible, be completed within a period of 2 months from the date of filing of the charge sheet.
The inquiry into and trial of a rape shall be conducted in camera by a woman Judge or Magistrate as far as possible.
The victim has to appear in court for cases relating to rape as well as all other offences listed. She is treated as the prime witness and her statement before court is of paramount importance to penalize the accused.
The presiding Judge may, if she thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or to remain in the room or building used by the court.
The trial must be conducted by an appointed Public Prosecutor in a Court of Session, which will commence with an opening case for prosecution. This is followed by framing of charges, which is - based upon the record and all the evidence presented by the Police to the Magistrate at the time of case registration.
If the accused pleads guilty, the Judge shall record the plea and with discretion convict the perpetrator accordingly. However, if the accused refuses to plead guilty, or does not plead, or claims to be tried, or is not convicted under Section 229, the Judge shall fix a date for the examination of witnesses and may on the application of the prosecution, compel the attendance of any witness or the production of any document or other things that may serve as evidence.
On the said fixed date, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution and shall also ensure cross-examination of any witness to be deferred until any other witness or witnesses have been examined. She may even recall any witness for further cross examination, if need be.
After the examination of witnesses for the defence is complete, the prosecutor shall sum up his case with arguments to which the accused or his pleader is entitled to reply. The prosecutor, with the permission of the Judge, must make his submissions with regard to the law and its points.
After hearing all the arguments and point of law and on the basis of all the evidence, the Judge shall give a judgment in the case – which shall be followed by an acquittal or a conviction according to law.
- It shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with the previous permission of the Court.
Provided that, the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.