Section 339 – Permission to Conduct Prosecution

Introduction

Section 339 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the circumstances in which a person other than a Public Prosecutor or Assistant Public Prosecutor may be permitted to conduct a prosecution before a Court.

The provision gives the Court discretion to permit any person to conduct the prosecution, subject to the statutory conditions. However, this provision should be distinguished from Section 338, under which the Public Prosecutor or Assistant Public Prosecutor in charge of a case conducts the prosecution while a privately engaged advocate may assist under their directions.

Section 339 substantially corresponds to Section 302 of the Code of Criminal Procedure, 1973.

Meaning of Section 339

Section 339 allows the Magistrate to permit a person other than a Public Prosecutor or Assistant Public Prosecutor to conduct the prosecution.

The permission is not automatic. It depends upon an order of the Magistrate.

The provision applies to proceedings before a Magistrate and therefore provides a mechanism through which a person interested in the prosecution may, with the Court’s permission, conduct the prosecution through a person authorised for that purpose.

Statutory Basis

Section 339 contains two sub-sections.

Section 339(1)

Any Magistrate conducting an inquiry or trial may permit the prosecution to be conducted by any person other than:

• a Police Officer below the rank of Inspector; or
• an officer who has taken part in the investigation into the offence.

The Magistrate may grant such permission either personally or through an advocate or other person.

Section 339(2)

Any person conducting the prosecution may do so personally or through an advocate or any other person.

Essential Elements

1. The Proceeding Must Be Before a Magistrate

Section 339 applies where a Magistrate is conducting:

• an inquiry; or
• a trial.

The provision therefore does not create a general power for every criminal Court to permit any person to conduct prosecution.

2. Permission of the Magistrate Is Necessary

A person cannot claim an automatic right to conduct the prosecution under Section 339.

The Magistrate must permit that person to conduct the prosecution.

The power is therefore discretionary.

3. Certain Persons Are Specifically Excluded

The Magistrate cannot permit:

• a Police Officer below the rank of Inspector; or
• an officer who has taken part in the investigation of the offence

to conduct the prosecution under this provision.

These restrictions are intended to maintain a degree of separation between investigation and prosecution.

4. Prosecution May Be Conducted Personally or Through Another Person

The person permitted to conduct the prosecution may conduct it personally or through:

• an advocate; or
• any other person.

Thus, Section 339 provides flexibility regarding the manner in which the prosecution is conducted after permission has been granted.

Powers of the Magistrate

The Magistrate has the power to decide whether another person should be permitted to conduct the prosecution.

While exercising this power, the Magistrate must remain within the statutory restrictions contained in Section 339.

The permission is therefore subject to judicial supervision.

Who Cannot Conduct Prosecution Under Section 339?

Two categories are expressly excluded.

Police Officer Below the Rank of Inspector

A Police Officer below the rank of Inspector cannot be permitted to conduct the prosecution under Section 339.

Officer Who Investigated the Offence

An officer who has taken part in the investigation of the offence cannot be permitted to conduct the prosecution under this provision.

This restriction prevents the same officer from being involved in both the investigation and prosecution in the manner prohibited by the provision.

Procedure under Section 339

The procedure can be understood as follows:

1. An inquiry or trial is being conducted by a Magistrate.
2. A person seeks permission to conduct the prosecution.
3. The Magistrate considers the request.
4. The Magistrate may permit the person to conduct the prosecution, subject to Section 339.
5. The permitted person may conduct the prosecution personally or through an advocate or other person.
6. A prohibited police officer or investigating officer cannot be permitted to conduct the prosecution under this section.

Difference Between Section 338 and Section 339

Section 338

Section 338 deals with a prosecution already being conducted by a Public Prosecutor or Assistant Public Prosecutor.

A privately engaged advocate may assist the Public Prosecutor or Assistant Public Prosecutor under their directions.

Section 339

Section 339 provides a separate mechanism through which a Magistrate may permit a person other than a Public Prosecutor or Assistant Public Prosecutor to conduct the prosecution.

Therefore, Section 339 is wider in its application to the person who may conduct the prosecution, but the permission of the Magistrate is essential.

Object and Purpose

Section 339 serves several procedural purposes:

• to give the Magistrate control over who conducts a prosecution;
• to permit suitable persons to conduct prosecution in appropriate cases;
• to prevent certain police officers from conducting prosecution;
• to maintain separation between investigation and prosecution; and
• to provide flexibility by allowing prosecution to be conducted personally or through an advocate or another person.

Important Distinction

Permission to Conduct Prosecution and Right to Assist

Permission under Section 339 to conduct a prosecution is different from merely assisting a Public Prosecutor under Section 338.

Under Section 338, the Public Prosecutor or Assistant Public Prosecutor remains in charge of the prosecution.

Under Section 339, the Magistrate may permit another person to conduct the prosecution itself, subject to the statutory restrictions.

Investigation and Prosecution

An officer who has taken part in the investigation of the offence cannot be permitted to conduct the prosecution under Section 339.

The provision therefore recognises the importance of maintaining a distinction between the investigative and prosecutorial functions.

BNSS and CrPC

Section 339 BNSS substantially corresponds to Section 302 of the Code of Criminal Procedure, 1973.

The basic framework has been retained. Under both provisions, a Magistrate conducting an inquiry or trial may permit a person other than the Public Prosecutor or Assistant Public Prosecutor to conduct the prosecution, subject to restrictions concerning certain police officers and investigating officers.

Relationship with BNS and BSA

Section 339 is a procedural provision under the BNSS.

The Bharatiya Nyaya Sanhita, 2023 (BNS) contains substantive criminal offences, while the Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs the law of evidence.

Section 339 concerns the authority to conduct a prosecution and does not itself determine whether particular evidence is admissible or whether a particular act constitutes an offence.

Example

Suppose a criminal trial is being conducted before a Magistrate. A person interested in the prosecution seeks permission to conduct the prosecution through an advocate.

The Magistrate may permit that person to conduct the prosecution under Section 339. The person may then conduct the prosecution personally or through the advocate.

However, the Magistrate cannot permit a police officer below the rank of Inspector or an officer who participated in the investigation of the offence to conduct the prosecution under this provision.

Topic at a Glance

• Section: 339, BNSS, 2023
• Subject: Permission to conduct prosecution
• Authority: Magistrate conducting an inquiry or trial
• Nature of power: Discretionary
• Who may be permitted: A person other than a Public Prosecutor or Assistant Public Prosecutor
• Mode: Personally, through an advocate or through another person
• Excluded: Police Officer below the rank of Inspector
• Also excluded: Officer who participated in the investigation of the offence
• Corresponding CrPC provision: Section 302, CrPC

Quick Revision

• Section 339 BNSS deals with permission to conduct prosecution.
• A Magistrate conducting an inquiry or trial may permit a person other than the Public Prosecutor or Assistant Public Prosecutor to conduct the prosecution.
• Permission must be granted by the Magistrate.
• The permitted person may conduct the prosecution personally or through an advocate or another person.
• A Police Officer below the rank of Inspector cannot be permitted to conduct the prosecution under this section.
• An officer who participated in the investigation of the offence cannot conduct the prosecution under this provision.
• Section 339 is distinct from Section 338, which deals with the role of Public Prosecutors and privately engaged advocates assisting them.
• Section 339 substantially corresponds to Section 302 of the CrPC.

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

Conclusion

Section 339 BNSS gives the Magistrate controlled discretion to permit a person other than the Public Prosecutor or Assistant Public Prosecutor to conduct a prosecution. At the same time, the provision prevents certain police and investigating officers from undertaking the prosecutorial role. It therefore provides flexibility in criminal proceedings while maintaining judicial control and a necessary distinction between investigation and prosecution.