Section 338 – Appearance by Public Prosecutors

Introduction

Section 338 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the appearance and role of Public Prosecutors and Assistant Public Prosecutors in criminal proceedings.

The provision allows the Public Prosecutor or Assistant Public Prosecutor in charge of a case to appear and plead before the Court without obtaining separate written authority. It also regulates the role of a private advocate when a private person engages an advocate to prosecute an accused.

The provision substantially corresponds to Section 301 of the Code of Criminal Procedure, 1973.

Meaning of Section 338

Section 338 recognises the primary role of the Public Prosecutor or Assistant Public Prosecutor in conducting a criminal prosecution.

A Public Prosecutor or Assistant Public Prosecutor who is in charge of a case does not need separate written authority to appear and plead before the Court where the case is under:

• inquiry;
• trial; or
• appeal.

Where a private person engages an advocate to prosecute an accused, that private advocate does not independently take over the prosecution. The prosecution remains under the control of the Public Prosecutor or Assistant Public Prosecutor in charge of the case.

Statutory Basis

Section 338 contains two sub-sections.

Section 338(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 the case is under inquiry, trial or appeal.

Section 338(2)

Where a private person instructs an advocate to prosecute a person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution.

The advocate instructed by the private person shall act under the directions of the Public Prosecutor or Assistant Public Prosecutor.

Such advocate may, with the permission of the Court, submit written arguments after the evidence has been closed.

Section 338(1): Appearance Without Written Authority

The first sub-section gives statutory recognition to the authority of the Public Prosecutor or Assistant Public Prosecutor to appear in a case.

No separate written authority is required when the prosecutor is in charge of the case.

The provision applies when the case is before the Court for:

• inquiry;
• trial; or
• appeal.

The prosecutor can therefore appear and plead by virtue of the office and responsibility attached to the prosecution.

Section 338(2): Role of Private Advocate

A private person may have a personal interest in the prosecution of an accused and may therefore instruct an advocate to appear in the case.

However, the private advocate does not become the person conducting the prosecution merely because a private individual has engaged them.

The statutory position is that:

• the Public Prosecutor or Assistant Public Prosecutor remains responsible for conducting the prosecution;
• the private advocate acts under the directions of the Public Prosecutor or Assistant Public Prosecutor; and
• the private advocate may submit written arguments after the evidence is closed only with the permission of the Court.

Role of Private Advocate

The provision therefore recognises a limited supporting role for an advocate engaged by a private person.

The private advocate may assist in the proceedings, but the control of the prosecution remains with the Public Prosecutor or Assistant Public Prosecutor in charge of the case.

This distinction is important because criminal prosecution is not treated as a purely private dispute between the complainant and accused.

Written Arguments

Section 338(2) specifically permits the privately instructed advocate to submit written arguments after the evidence has been closed.

However, this can be done only with the permission of the Court.

Therefore, the private advocate does not have an unrestricted statutory right to independently conduct the prosecution or submit written arguments without judicial permission.

Object and Purpose

The main objectives of Section 338 are:

• to clarify the authority of Public Prosecutors and Assistant Public Prosecutors;
• to ensure that criminal prosecutions remain under the control of the designated prosecutor;
• to regulate the participation of privately engaged advocates;
• to prevent conflicting directions in the conduct of a prosecution; and
• to permit private parties to assist the prosecution within the limits prescribed by law.

Important Distinction

Public Prosecutor and Private Advocate

The Public Prosecutor or Assistant Public Prosecutor is responsible for conducting the prosecution.

A private advocate engaged by a private person does not replace the Public Prosecutor. The private advocate acts under the directions of the Public Prosecutor or Assistant Public Prosecutor.

Appearance and Conduct of Prosecution

The right of a private advocate to appear or assist in a case should not be confused with the authority to independently conduct the prosecution.

Under Section 338(2), the Public Prosecutor or Assistant Public Prosecutor remains in charge of conducting the prosecution.

Written Arguments and Oral Conduct

The private advocate may submit written arguments after the evidence is closed, but only with the permission of the Court.

This is different from having independent control over the conduct of the prosecution.

Procedure under Section 338

The operation of Section 338 can be understood as follows:

1. A criminal case is under inquiry, trial or appeal.
2. The Public Prosecutor or Assistant Public Prosecutor in charge of the case may appear and plead without written authority.
3. If a private person engages an advocate to prosecute the accused, the Public Prosecutor or Assistant Public Prosecutor continues to conduct the prosecution.
4. The privately engaged advocate acts under the directions of the Public Prosecutor or Assistant Public Prosecutor.
5. After the evidence is closed, the private advocate may submit written arguments if the Court grants permission.

BNSS and CrPC

Section 338 BNSS substantially corresponds to Section 301 of the Code of Criminal Procedure, 1973.

The basic legal position has been retained. The provision continues to distinguish between the Public Prosecutor who conducts the prosecution and a private advocate who may assist under the prosecutor’s directions.

There is no major structural change in this provision from the corresponding CrPC framework.

Relationship with Other BNSS Provisions

Section 338 should be read with other provisions dealing with the conduct of prosecution.

In particular, Section 339 BNSS deals with permission to conduct prosecution and provides a separate framework for situations where a person other than the Public Prosecutor or Assistant Public Prosecutor seeks to conduct the prosecution.

Section 338 therefore primarily regulates the appearance of Public Prosecutors and the limited role of privately instructed advocates in a prosecution already being conducted by the Public Prosecutor or Assistant Public Prosecutor.

Example

Suppose a person is prosecuted for a criminal offence by the State. The Public Prosecutor is in charge of the case.

The victim or another private person may engage an advocate to assist with the prosecution. However, that advocate cannot take independent control of the prosecution. The Public Prosecutor continues to conduct the case, while the privately engaged advocate acts under the Public Prosecutor’s directions.

After the evidence is completed, the private advocate may submit written arguments if the Court permits it.

Topic at a Glance

• Section: 338, BNSS, 2023
• Subject: Appearance by Public Prosecutors
• Main authority: Public Prosecutor or Assistant Public Prosecutor in charge of the case
• Written authority: Not required for appearance and pleading
• Proceedings covered: Inquiry, trial and appeal
• Private advocate: May act under the directions of the Public Prosecutor or Assistant Public Prosecutor
• Written arguments: May be submitted by the private advocate with permission of the Court after evidence is closed
• Corresponding CrPC provision: Section 301, CrPC

Quick Revision

• Section 338 BNSS deals with the appearance of Public Prosecutors and Assistant Public Prosecutors.
• A Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without written authority.
• The provision applies to inquiry, trial and appeal.
• A private person may instruct an advocate to prosecute an accused.
• The private advocate does not independently conduct the prosecution.
• The prosecution remains under the control of the Public Prosecutor or Assistant Public Prosecutor.
• The private advocate acts under their directions.
• Written arguments may be submitted by the private advocate after the evidence is closed, but only with the permission of the Court.
• Section 338 substantially corresponds to Section 301 of the CrPC.

ALSO READ: Section 337 – Person once convicted or acquitted not to be tried for same offence

Conclusion

Section 338 BNSS preserves the central role of the Public Prosecutor or Assistant Public Prosecutor in conducting criminal prosecutions. At the same time, it permits a privately engaged advocate to assist the prosecution within defined limits. The provision therefore maintains prosecutorial control while allowing the participation of private parties in an appropriate manner.