Bharatiya Nagarik Suraksha Sanhita, 2023

Section 338 BNSS: Appearance by Public Prosecutors

Section 338 of the Bharatiya Nagarik Suraksha Sanhita, 2023 governs how a Public Prosecutor or Assistant Public Prosecutor may appear and plead in a criminal case and explains the limited role of a privately instructed advocate when the prosecution is being conducted by the State prosecutor.

Law in force: The BNSS came into force on 1 July 2024, subject to the commencement notification.

In short: A Public Prosecutor or Assistant Public Prosecutor who is in charge of the case does not need separate written authority to appear and plead. Where a private person engages an advocate to prosecute, that advocate ordinarily acts under the directions of the Public Prosecutor or Assistant Public Prosecutor and may submit written arguments after the evidence is closed only with the Court's permission.

Text of Section 338 BNSS

338. Appearance by Public Prosecutors.—(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.

Meaning and legal effect of Section 338

Section 338 establishes the primacy of the Public Prosecutor or Assistant Public Prosecutor in a prosecution that is under inquiry, trial or appeal. The prosecutor in charge represents the prosecution before the Court and may appear without filing a separate written authority for that case.

The provision also regulates participation by a private advocate. A complainant, victim or other private person may instruct an advocate, but Section 338(2) does not by itself place that advocate in control of the prosecution. The State prosecutor continues to conduct the prosecution, while the privately instructed advocate acts under the prosecutor's directions, subject to the Court's powers under the BNSS.

Who is a Public Prosecutor or Assistant Public Prosecutor?

BNSS Section 18 deals with appointment of Public Prosecutors and Additional Public Prosecutors for the High Courts, districts and specified cases. It also provides for Special Public Prosecutors in appropriate cases. BNSS Section 19 deals with Assistant Public Prosecutors for prosecutions in the Courts of Magistrates.

For Section 338, the important expression is the prosecutor in charge of the case. That prosecutor may appear and plead without separate written authority and ordinarily controls the conduct of the prosecution.

Role of a private advocate under Section 338(2)

A private person may instruct an advocate to prosecute.
The Public Prosecutor or Assistant Public Prosecutor in charge still conducts the prosecution.
The privately instructed advocate acts under the directions of the Public Prosecutor or Assistant Public Prosecutor.
After the evidence is closed, the private advocate may submit written arguments only with the permission of the Court.

Section 338 and Section 339 BNSS

Provision	Main subject	Practical effect
Section 338	Appearance by Public Prosecutors	The prosecutor in charge may appear without written authority. A privately instructed advocate ordinarily acts under the prosecutor's directions.
Section 339	Permission to conduct prosecution	A Magistrate may permit an eligible person to conduct the prosecution, subject to the conditions stated in Section 339.

Why Section 338 matters in criminal proceedings

The section separates assistance to the prosecution from control of the prosecution. This helps maintain the statutory responsibility of the Public Prosecutor or Assistant Public Prosecutor while allowing a private advocate to assist within the limits fixed by law and the Court.

In practice, any application by a privately engaged advocate should be considered together with Section 338, Section 339 and any other provision governing the particular stage of the case. The Court retains control over its proceedings, including permission to submit written arguments where Section 338(2) applies.

Related BNSS provisions

Official reference

For the authoritative statutory text, refer to the Bharatiya Nagarik Suraksha Sanhita, 2023 on India Code. The Ministry of Home Affairs also maintains an official New Criminal Laws page.

Disclaimer: This article is for general legal information. The application of Section 338 may depend on the facts of the case, the stage of proceedings and orders passed by the competent Court.