Section 338 BNSS: Appearance by Public Prosecutors (Formerly Section 301 CrPC)

Section 338 of Bharatiya Nagarik Suraksha Sanhita, 2023: Appearance by Public Prosecutors

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

(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 that case is under inquiry, trial or appeal.

(2) If in any such case any private person instructs his advocate to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the advocate so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Inquiry Sec 2(1)(g) Investigation Sec 2(1)(h) Victim Sec 2(1)(w)

Legal Commentary & Landmark Judgments: Section 338

Section 338 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 301 of the CrPC, 1973) delineates the role and primacy of Public Prosecutors and Assistant Public Prosecutors in conducting criminal prosecutions.

Inherent Right of Appearance: The Public Prosecutor or Assistant Public Prosecutor in charge of a criminal case may appear and plead without any written authority before any Court in which that case is under inquiry, trial, or appeal.
Private Counsel's Subordinate Role: If any private person instructs an advocate to prosecute, such advocate shall act therein under the directions of the Public Prosecutor.
Submission of Written Arguments: The private advocate may, with permission of the Court, submit written arguments after the evidence is closed.

Key Landmark Precedents:

Shiv Kumar v. Hukam Chand, (1999) 7 SCC 467: The Supreme Court authoritatively held that a Public Prosecutor is an independent minister of justice, not an agent of the complainant; a private counsel cannot hijack the prosecution or examine witnesses without PP direction.
Sundar Singh v. State of Rajasthan, (1988) SCC (Cri) 554: Reaffirmed that the overarching control of the trial remains exclusively with the Public Prosecutor to maintain fairness and impartiality.

Courtroom Practice & Strategic Litigation Guidance:

If a private complainant's lawyer attempts to conduct cross-examination or take over oral arguments in a Sessions case, object under Section 338 and insist that the Public Prosecutor must steer the proceedings.