Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
The Public Prosecutor under the BNSS 2023
The Public Prosecutor under the BNSS, 2023: Sections 18, 19 and 20, the Directorate of Prosecution, Independence and Withdrawal from Prosecution
A criminal prosecution in India is conducted by the State, and the officer through whom the State conducts it is the Public Prosecutor. He is not the lawyer of the police, nor of the complainant, nor of the victim. He is an officer of the court charged with placing the whole of the material before it, and the independence of that office is one of the structural safeguards of a fair trial. Sections 18 to 20 of the Bharatiya Nagarik Suraksha Sanhita, 2023 govern his appointment, his qualifications and, for the first time in detailed terms, the institution to which he belongs.
The most significant change made by the Sanhita is in section 20. Section 25A of the Code of Criminal Procedure, inserted in 2005, merely permitted a State to establish a Directorate of Prosecution. Section 20 prescribes its structure, the qualifications for each office, the subordination of prosecutors to it, and a division of monitoring responsibility by the gravity of the offence. It converts a permissive provision into an institutional design.
1. Who is a Public Prosecutor
Section 2(1)(v), BNSS 2023 “Public Prosecutor” means any person appointed under section 18, and includes any person acting under the directions of a Public Prosecutor. |
The definition has two limbs and both matter. The first confines the office to appointment under section 18, so a person conducting a prosecution without such an appointment is not a Public Prosecutor whatever his function. The second extends the expression to a person acting under the directions of a Public Prosecutor, which is what permits an Additional or Assistant Public Prosecutor, and an advocate engaged by the victim under the proviso to section 18(8), to act in the prosecution without themselves holding the principal office.
2. Appointment and Qualifications
Figure 1: The prosecution machinery and the allocation of monitoring
Office | Provision | Appointed by | Manner of appointment |
|---|---|---|---|
Public Prosecutor and Additional Public Prosecutor for the High Court | Section 18(1) | The Central Government or the State Government | After consultation with the High Court |
Public Prosecutor for a district, and Additional Public Prosecutors | Section 18(3) | The State Government | From a panel of names prepared by the District Magistrate in consultation with the Sessions Judge, where there is no regular cadre of prosecuting officers |
Where a regular cadre exists | Section 18(5) | The State Government | From among the persons constituting that cadre; resort to the panel only where no suitable person is available |
Public Prosecutor or Additional Public Prosecutor for a case or class of cases | Section 18(6) | The Central Government | For the purposes of any case or class of cases |
Special Public Prosecutor | Section 18(8) | The Central or State Government | For any case or class of cases. A proviso permits the court to allow the victim to engage an advocate of his choice to assist the prosecution |
Assistant Public Prosecutor | Section 19(1) | The State Government | For conducting prosecutions in the courts of Magistrates in every district |
Assistant Public Prosecutor for a particular case | Section 19(2) and (3) | The Central Government, or the District Magistrate in an emergency | Where no Assistant Public Prosecutor is available, the District Magistrate may appoint another person for that case, after giving fourteen days’ notice to the State Government |
2.1 Eligibility
- Public Prosecutor and Additional Public Prosecutor. Not less than seven years in practice as an advocate: section 18(7).
- Special Public Prosecutor. Not less than ten years in practice as an advocate: section 18(8).
- Deemed practice. The period during which a person has rendered service, before or after the commencement of the Sanhita, as a Public Prosecutor, Additional Public Prosecutor, Assistant Public Prosecutor or other Prosecuting Officer is deemed to be practice as an advocate. A career prosecutor therefore accumulates the qualifying period through service rather than through the bar alone.
- The bar on police officers. Under the proviso to section 19(3), a police officer is not eligible to be appointed as an Assistant Public Prosecutor if he has taken any part in the investigation of the offence, or if he is below the rank of Inspector.
⚠Why the police officer is barred The bar is the clearest statutory expression of the separation between investigation and prosecution. The officer who investigated has formed a view of the case and has an institutional interest in its outcome, and a person in that position cannot discharge the prosecutor’s duty to place the whole of the material before the court, including the material that tells against the prosecution. The same logic underlies the Directorate of Prosecution in section 20, which places prosecutors in a line of authority separate from the police hierarchy, and the requirement in section 20(8) that the Deputy Director examine and scrutinise the police report rather than simply act on it. |
3. The Directorate of Prosecution: Section 20
Section 20 empowers the State Government to establish a Directorate of Prosecution at the State level, headed by a Director of Prosecution and consisting of as many Deputy Directors as it thinks fit, and a District Directorate of Prosecution in every district consisting of Deputy Directors and Assistant Directors. The number of officers at each level is left to the State Government.
Qualifications are prescribed for each office. The section requires a minimum period of practice as an advocate or prior judicial service for the Director and the Deputy Directors, and a shorter period for Assistant Directors, and requires the appointment to be made with the concurrence of the Chief Justice of the High Court where the section so provides. The precise figures are set out in the section and in the State rules made under it.
3.1 Subordination
Section 20(6) provides that every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government to conduct cases in District Courts, and every Assistant Public Prosecutor appointed under section 19(1), shall be subordinate to the Deputy Director of Prosecution or the Assistant Director of Prosecution. The provision creates a prosecutorial chain of command that does not pass through the police.
3.2 Monitoring by the gravity of the offence
Officer | Provision | Cases monitored | Function |
|---|---|---|---|
Director of Prosecution | Section 20(7) | Offences punishable with ten years or more, imprisonment for life, or death | To monitor such cases, to expedite the proceedings, and to give an opinion on the filing of appeals |
Deputy Director of Prosecution | Section 20(8) | Offences punishable with seven years or more but less than ten | To examine and scrutinise the police report and to monitor such cases for expeditious disposal |
Assistant Director of Prosecution | Section 20(9) | Offences punishable with less than seven years | To monitor such cases |
All three | Section 20(10) | Any proceeding | Notwithstanding the allocation above, each has the power to deal with and is responsible for all proceedings under the Sanhita |
State Government | Section 20(11) | — | May specify by notification the other powers and functions and the areas allotted to each Deputy or Assistant Director |
Three features of this scheme deserve notice. The allocation is by the punishment the substantive law prescribes, so the Bharatiya Nyaya Sanhita again drives the procedural machinery. The function of the Deputy Director is not merely to monitor but to examine and scrutinise the police report, which places an independent professional filter between the investigation and the court. And section 20(10) prevents the allocation from becoming a jurisdictional limit: any of the three may deal with any proceeding.
4. The Prosecutor’s Functions Through the Case
Figure 2: The Public Prosecutor at each stage
4.1 Appearance and the conduct of the prosecution
Section 338 provides that 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. Sub-section (2) permits any private person to instruct a pleader to prosecute, but that pleader acts under the directions of the Public Prosecutor, and may with the permission of the court submit written arguments after the evidence is closed.
Section 339 provides that any person conducting a prosecution, other than the Public Prosecutor or Assistant Public Prosecutor, may do so only with the permission of the court, and that no person other than an advocate shall be entitled to do so without such permission.
đź“– Shiv Kumar v. Hukam Chand, (1999) 7 SCC 467 Facts: In a Sessions trial a private counsel engaged by the complainant sought to conduct the prosecution, with the Public Prosecutor taking a subordinate part. The question was whether a private counsel may conduct the prosecution in a case instituted on a police report, and what the role of a counsel engaged by the complainant is. Held: The Supreme Court held that in a Sessions trial instituted on a police report the prosecution must be conducted by the Public Prosecutor, and a private counsel cannot be permitted to conduct it. A counsel engaged by a private party may assist the Public Prosecutor, acting under his directions, and may with the permission of the court submit written arguments after the close of evidence, but he cannot take charge of the prosecution. The Court described the Public Prosecutor as an officer of the court, whose duty is not to secure a conviction at all events but to place before the court all the material, including that which favours the accused, so that the truth may emerge. Ratio: The Public Prosecutor conducts the prosecution and a private counsel assists. The office is independent of the complainant and of the police, and its duty is to the court and to the fair presentation of the case, not to conviction. |
The Sanhita has added a qualification that fits the same pattern. The proviso to section 18(8) permits the court to allow the victim to engage an advocate of his choice to assist the prosecution. The advocate assists; he does not conduct. The victim’s participation in the prosecution is real but subordinate, and the reasoning in Shiv Kumar explains why it must be so.
4.2 Withdrawal from prosecution: section 360
Section 360, BNSS 2023 The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and upon such withdrawal he shall be discharged if it is made before a charge has been framed, and acquitted if it is made after a charge has been framed or where no charge is required. The section further provides that the Court shall, before according consent, give an opportunity to the victim to be heard. |
📖 Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288 Facts: An application to withdraw from the prosecution of a former Chief Minister in a corruption case was allowed by the Magistrate. The withdrawal was challenged on the ground that the Public Prosecutor had acted at the behest of the Government without applying his own mind, and that the court had given consent mechanically. Held: The Supreme Court held that the Public Prosecutor must apply his own mind to the material and be satisfied that withdrawal will serve the broader ends of justice, and that he may take into account the view of the Government but cannot act as its mouthpiece. The function of the court in giving or withholding consent is supervisory: it must satisfy itself that the application is made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law. The court does not sit in appeal over the Prosecutor’s conclusion, but it does not act as a rubber stamp either. Ratio: Withdrawal requires two independent minds to be applied: that of the Public Prosecutor, who must be satisfied on the material, and that of the court, which exercises a supervisory jurisdiction before consenting. |
The Sanhita adds a third element to that structure. Before according consent the court must give the victim an opportunity of being heard. The victim does not acquire a veto, and the decision remains the court’s, but a prosecution can no longer be withdrawn without the person injured by the offence being heard on it.
4.3 Other functions
- Opening the case. In a Sessions trial the prosecutor opens the case under section 248 by describing the charge and stating the evidence by which he proposes to prove the guilt of the accused.
- Bail. Under sections 480 and 483 notice must be given to the Public Prosecutor before bail is granted in the offences the Sanhita specifies, and he is entitled to oppose.
- Remand. The prosecutor appears on applications under section 187 for the authorisation of detention.
- Tender of pardon. Section 343 permits a tender of pardon to an accomplice, and the prosecutor’s view is material to the exercise of the power.
- Compounding. Section 359 requires the permission of the court for the compounding of the offences it specifies, and the prosecutor is heard.
- Appeals. Under section 20(7) the Director of Prosecution gives an opinion on the filing of appeals, and the prosecutor conducts the appeal on behalf of the State.
5. The Prosecutor’s Independence
Three propositions define the office, and they are consistent across the case law and now across the text of the Sanhita.
- The Public Prosecutor is an officer of the court. His duty is to present the case fairly and fully, including the material that tells against the prosecution, and not to obtain a conviction at any cost. A prosecutor who suppresses material favourable to the accused fails in his duty whatever the outcome of the trial.
- He is independent of the police. He is not the investigating agency’s advocate. Section 20(8) requires the Deputy Director to examine and scrutinise the police report; section 19(3) bars the investigating officer from acting as Assistant Public Prosecutor; and section 20(6) places prosecutors in a chain of command separate from the police.
- He is independent of the Government in the exercise of his statutory discretion. He may take the Government’s view into account, and in the case of a withdrawal he ordinarily will, but he must apply his own mind and reach his own satisfaction, and a decision taken because he was told to take it is not a decision under section 360 at all.
6. Key Takeaways
The position stated shortly 1. A Public Prosecutor is a person appointed under section 18, and includes any person acting under his directions: section 2(1)(v). 2. Public Prosecutors for the High Court are appointed after consultation with the High Court; for a district, from a panel prepared by the District Magistrate in consultation with the Sessions Judge, or from a regular cadre where one exists. 3. Seven years’ practice qualifies a person as Public Prosecutor or Additional Public Prosecutor; ten years qualifies a Special Public Prosecutor. Service as a prosecuting officer counts as practice. 4. A police officer who took part in the investigation, or who is below the rank of Inspector, cannot be appointed an Assistant Public Prosecutor. 5. Section 20 establishes a Directorate of Prosecution at State level and a District Directorate, prescribes qualifications, and makes district prosecutors subordinate to the Deputy or Assistant Director. 6. Monitoring is allocated by punishment: the Director for ten years or more, life or death; the Deputy Director for seven to under ten, who also examines and scrutinises the police report; the Assistant Director for less than seven. 7. In a case instituted on a police report the prosecution must be conducted by the Public Prosecutor; a private counsel, and an advocate engaged by the victim under the proviso to section 18(8), may only assist: Shiv Kumar. 8. Withdrawal under section 360 requires the Prosecutor’s own satisfaction and the court’s consent, exercised supervisorily: Sheonandan Paswan. The Sanhita adds that the victim must be heard before consent is given. 9. The Public Prosecutor is an officer of the court, independent of the police and independent of the Government in the exercise of his statutory discretion. |
7. Frequently Asked Questions
Who appoints the Public Prosecutor under the BNSS?
For the High Court, the Central or State Government after consultation with the High Court, under section 18(1). For a district, the State Government under section 18(3), from a panel prepared by the District Magistrate in consultation with the Sessions Judge, or from a regular cadre of prosecuting officers where one exists.
What qualification is required to be a Public Prosecutor?
Not less than seven years in practice as an advocate under section 18(7), and not less than ten years for a Special Public Prosecutor under section 18(8). Service as a Public Prosecutor, Additional or Assistant Public Prosecutor or other prosecuting officer is deemed to be practice.
Can a police officer be an Assistant Public Prosecutor?
Not if he has taken any part in the investigation of the offence, and not if he is below the rank of Inspector. The bar is in the proviso to section 19(3) and reflects the separation between investigation and prosecution.
What is the Directorate of Prosecution?
An institution established under section 20, comprising a State Directorate headed by a Director of Prosecution with Deputy Directors, and a District Directorate in every district with Deputy and Assistant Directors. District prosecutors are subordinate to it, and monitoring responsibility is allocated by the gravity of the offence.
Can the victim’s lawyer conduct the prosecution?
No. Under the proviso to section 18(8) the court may permit the victim to engage an advocate to assist the prosecution, and under section 338(2) a pleader instructed by a private person acts under the directions of the Public Prosecutor. The prosecution itself is conducted by the Public Prosecutor.
Can a prosecution be withdrawn?
Yes, under section 360, by the Public Prosecutor or Assistant Public Prosecutor in charge of the case, with the consent of the court, at any time before judgment. The Prosecutor must apply his own mind, the court exercises a supervisory jurisdiction before consenting, and the victim must be given an opportunity of being heard.
Related Topics
- Police Report under the BNSS, 2023: Section 193
- Electronic Communication under the BNSS, 2023
- Constitution of Criminal Courts and Offices: Sections 6 to 20, BNSS
- Withdrawal from Prosecution: Section 360, BNSS
- The Victim under the BNSS, 2023
- Trial before a Court of Session: Chapter XIX, BNSS