Withdraw Policy To Give Incentives To Prosecutors For Securing Death Penalty : Supreme Court To Madhya Pradesh

A Bench comprising Justices U.U. Lalit, S. Ravindra Bhat and Sudhangshu Dhulia noted that such incentives which have the potential to adversely influence the trial against the interest of the accused are in the teeth of the principles of fair trial.

"...One of the features of the matter was a policy which was averted in order dated 24.04.2022. Our attention was invited to some of the documents placed on record to submit that the State was seeking to incentivise securing of capital punishment on part of PPs and that would undermine the prosecutorial independence; prosecutorial discretion, fair trial and judicial independence as well…The order is reserved which shall be pronounced after reopening."

The Bench indicated that if the State files an affidavit withdrawing such policies before the date assigned for the order, it would dispose of the matter in view of such affidavit, otherwise it would proceed with passing an order on the merit of the case.

On 24.04.2022, as the Amicus Curiae, Mr. K. Parameshwar had apprised the Bench about the incentives, the Court directed Advocate, Ms. Rukmini Bobde appearing for the State to place the policy on record. On perusal of the affidavit it is evident that though the State does not directly extend monetary benefits to the PPs, it certainly grants incentives for securing, inter alia, death sentence. Certain activities are assigned weightage points and at the end of the month the one with the maximum point is conferred the title of 'Star performer'. Capital punishment and life sentence for certain offences have been assigned 1000 points. Moreover, one of the criterion to be adjudged as the Pride of Prosecution is exemplary work in securing capital punishment.

On Thursday, Mr. Parameshwar assailed the said policy to be unconstitutional on the grounds of prosecutorial independence; prosecutorial discretion; fair trial. He asserted that in an adversarial system, the policy compromises judicial independence and essentially undermines the court selected panel by influencing them. He reckoned that 'the ideal goal of the prosecution is fair trial, not conviction or sentencing'.

The Bench was informed that the Bombay High Court had struck down a State policy which stipulated 25% conviction as a criteria for promotion from the post of APP to that of PP as unconstitutional. Mr. Parameshwar submitted that the policy in question takes it up a notch higher by incentivising the outcome of sentencing.

"In Bombay 25% conviction was stipulated as a criteria for promotion from Assistant APP to PP. Bombay High Court struck that down saying that you cannot even have conviction as the level of assessment of a prosecutor. Even that was held to be unconstitutional as it did not go with the schmee of the criminal justice mechanism, this goes a step forward."

Justice Bhatt opined that it is similar to the system followed in the United States of America wherein the posts of the District and State Attorneys are elected posts and the rate of conviction and sentence has a direct bearing to the outcome of the election results."Like in America the DA is elected, so he goes and says I got so many capital sentences, so many people were convicted so elect me."

He noted that if outcomes of trials are incentivised, PPs who virtually drive prosecution are in a position to choose to suppress material to achieve the pre-decided outcome.

"So, the problem is that this point system affects the trial. He might suppress material to get conviction. This would prejudice the case of the accused on conviction as well, not only sentencing."

Mr. Parameshwar further submitted -

"They have a website, kindly see the kind of laurels is owed to department of prosecution - 'Fastest judicial judgment for capital punishment'"

Bemused, Justice Lalit recalled a matter wherein a man was convicted and sentenced to death after hearing the matter for only 19 days. Justice Bhat remarked that often the public and the media applaud speedy disposal of cases without being aware of the realities of the criminal justice system.

Advocate, Ms. Shreya Rastogi, appearing for Project 39A, NLU, Delhi drew the Bench's attention to the fact that the point system indicated in the MP State policy directly relates to ACR gradings, which has a bearing on the promotions of the PPs. Moreover, it was emphasised that the 2018 amendment to the policy introduced negative marking for acquittals -

magistrates court: - 5 points;

for session court: - 10 points and

PC and EoW Courts: - 20 points.

Justice Lalit enquired -

"Is there a similar policy for investigators?"

Advocate, Mr. Saurabh Mishra appearing for the State responded, "I'll have to seek instructions."

Justice Lalit remarked -

"Must be, the investigators cannot lag behind. We will grant you 7 days' time, put your house in order. Withdraw everything - all certificates, all recommendations."

Justice Bhat opined that given that PPs play a pivotal role in prosecution, such policies are a matter of grave concern.

"The basic problem is PPs are in charge of prosecution. He can ensure a certain outcome by withholding documents. That outcome is being incentivised. It is astonishing. If it is an acquittal it is by a Court not prosecution. He also gets negative marking."

Mr. Mishra requested the Bench to direct the Amicus to place on record the offending parts in teh policy so that the same can be reviewed.

"Let them place on record the offending parts. I should know what are the exact things."

Justice Lalit orally instructed Mr. Mishra, that if such a policy exists for investigators, he ought to advise the State Government to withdraw that as well.

"If there is any such policy even for investigating officers, please apply your mind and advise them to withdraw the policy straight away."

Justice Lalit stated -

"We are saying the entire thing is offensive, they do not have to give you a list…No incentive should be given to PP for getting certain outcomes from the Court. What you are telling the PPs is that come what may you must achieve conviction."

Case Title: In Re Framing Guidelines Regarding Potential Mitigating Circumstances To Be Considered While Imposing Death Penalty, Suo Motu Case No.1/2022