Effect of legal opinion by Prosecutor General in administrative capacity.

It is prerogative of Investigating Officer to recommend the case for cancellation on any of the grounds mentioned in Rule 24.7 of Police Rules 1934 i.e., case false and frivolous owing to mistake of law or mistake of facts, matter of civil dispute, or noncognizable case. Case cancellation Report is identified in law as “final report” as per Rule 25.57 of Polic Rules 1934 and is regarded as report under section 173 of Cr.P.C. As per section 9 (4) of the Punjab Criminal Prosecution Service (Constitution, Function and Powers) Act, 2006 (the CPS Act 2006), such report shall be sent through Prosecutor.

As per Code of Conduct for prosecutors issued under section 17 of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act 2006, concerned prosecutor is required to apply evidential and public interest tests on report submitted under section 173 Cr.P.C. in order to evaluate the evidence and applicability of offences against the accused. As highlighted above case cancellation report is a report under section 173 Cr.P.C., therefore, such tests shall also be applied on it, but only when if the prosecutor does not concur with the police opinion so as to recommend the Court that sufficient material is available to proceed with the case. However, if the prosecutor is in agreement with case cancellation report, he is not obliged to apply evidential test or the public interest test because case assessment report is written to show the availability of evidence and applicability of offence against any or all the accused.

Similarly, while agreeing with the police opinion, Magistrate functions in administrative capacity and is not expected to give reasons for such agreement as mentioned in Rule 2, Chapter 11-D Volume-III of High Court Rules & Orders.

It is the official duty of Prosecutor General, Punjab to give legal opinion on criminal matters to any of the department of the government as mentioned in Government of the Punjab Rules of Business 2011. Rule 3 deals with allocation of business and as per sub-rule (3) the business of the Government shall be distributed amongst several Departments in the manner indicated in the Second Schedule which outlined the functions of Public Prosecution Department.

Para-3 above indicates that Public Prosecution Department shall advice to other administrative departments as a regulatory function for implementation of policy, on the subject, in cases relating to criminal litigation and Prosecutor General being head of service as per section 6 of the CPS Act 2006 as principal law officer is responsible to give such opinion on criminal matters on behalf of Public Prosecution Department. Thus, rendering an opinion by Prosecutor General is his regulatory function which opinion is not binding on any Court; however, pursuant to section 9 (7) of the CPS Act 2006 when any Prosecutor including Prosecutor General, Punjab submit his opinion in the form of assessment report to the Court concerned while applying the evidential and public interest tests, then as per section 9 (7) of the CPS Act 2006, the Magistrate or the Court shall give due consideration to such submission.

The words “due consideration to such submission” have strong connotation that Court cannot simply ignore it rather while disagreeing with such opinion, shall give the reasons. Thus, an administrative opinion or opinion in official capacity does not bind the Court to give reasons for disagreement rather it is regulated by the discretion of Court to consider or not to consider it; and in this case the Magistrate has thought it appropriate not to consider it which cannot be termed as an illegality.