Section 339 BNSS: Permission to Conduct Prosecution
Section 339 of the Bharatiya Nagarik Suraksha Sanhita, 2023 governs when a Magistrate may permit a person to conduct a prosecution. It also restricts which police officers may conduct the prosecution and allows an authorised prosecutor to act personally or through an advocate.
Section 339 BNSS - Statutory Provision
339. Permission to conduct prosecution.
(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:
Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so personally or by an advocate.
Meaning and Scope of Section 339 BNSS
Section 339 applies to an inquiry or trial before a Magistrate. Its central purpose is to regulate who may actually conduct the prosecution. The provision recognises the role of the regular prosecution machinery, while also allowing a Magistrate to grant permission to another person in an appropriate case.
- A Magistrate conducting an inquiry or trial has the power to permit a person to conduct the prosecution.
- The Advocate-General, Government Advocate, Public Prosecutor and Assistant Public Prosecutor do not require the permission contemplated for other persons under this section.
- A police officer below the rank of inspector cannot be permitted to conduct the prosecution under this provision.
- A police officer who participated in the investigation of the offence cannot be permitted to conduct the prosecution in that case.
- A person authorised to conduct the prosecution may act personally or through an advocate.
Who May Conduct the Prosecution?
The section distinguishes between recognised law officers or prosecutors and other persons. The Advocate-General, Government Advocate, Public Prosecutor and Assistant Public Prosecutor occupy a special statutory position. A private person or another eligible person may conduct the prosecution only when the Magistrate grants permission under Section 339.
Restriction Relating to Police Officers
The provision contains two important safeguards concerning police officers. First, a police officer below the rank of inspector is outside the class of persons whom the Magistrate may permit to conduct the prosecution under this section. Second, even an otherwise eligible police officer cannot conduct the prosecution if that officer took part in investigating the very offence for which the accused is being prosecuted.
This separation helps preserve the distinction between investigation and prosecution in the same criminal case.
Can a Private Person Conduct a Criminal Prosecution?
Yes, but not automatically. A private person does not acquire an unrestricted right to conduct the prosecution merely because that person is the complainant, victim or an interested party. Permission of the Magistrate is required under Section 339 unless the person falls within one of the specifically recognised prosecutorial offices mentioned in the section.
Practical point: An application seeking permission should identify the person proposed to conduct the prosecution, explain the person's connection with the case and place the request before the Magistrate hearing the matter. Whether permission should be granted is for the court to determine in the facts of the case.
Section 339 BNSS and Section 338 BNSS
Section 338 BNSS deals with appearance by Public Prosecutors, whereas Section 339 deals with permission to conduct the prosecution. Read together, the provisions distinguish the statutory role of the Public Prosecutor or Assistant Public Prosecutor from situations in which another person seeks permission to conduct the prosecution.
Section 339 BNSS and Section 302 CrPC
Section 339 BNSS substantially carries forward the subject previously dealt with in Section 302 of the Code of Criminal Procedure, 1973. The BNSS provision uses the term "advocate" in sub-section (2), while the earlier CrPC text used the term "pleader".
| Point | Section 339 BNSS | Section 302 CrPC |
|---|---|---|
| Subject | Permission to conduct prosecution | Permission to conduct prosecution |
| Court | Magistrate inquiring into or trying a case | Magistrate inquiring into or trying a case |
| Investigating police officer | Cannot conduct prosecution in the same offence | Cannot conduct prosecution in the same offence |
| Representation | Personally or by an advocate | Personally or by a pleader |
When Did the BNSS Come Into Force?
The Bharatiya Nagarik Suraksha Sanhita, 2023 is Act 46 of 2023. The Central Government appointed 1 July 2024 as the date on which the BNSS came into force, subject to the notified exception relating to the First Schedule entry concerning Section 106(2) of the Bharatiya Nyaya Sanhita, 2023.
Official Legal Resources
For the authoritative text and official publication of the law, readers may refer to the India Code - Bharatiya Nagarik Suraksha Sanhita, 2023 and the Ministry of Home Affairs - New Criminal Laws.