Who Conducts the Prosecution Sections 338 and 339

Sections 338 and 339, BNSS 2023

Section 338(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.

Section 338(2). If in any such case any private person instructs an 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.

Section 339(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.

Section 339(2). Any person conducting the prosecution may do so personally or by an advocate.

📖 Dhariwal Industries Ltd. v. Kishore Wadhwani, (2016) 10 SCC 378

Facts: A private complainant sought to have his own advocate conduct the prosecution in a case instituted on a police report, and questions arose as to the scope of the permission a Magistrate may grant under the provision corresponding to section 339, and how it stands with the provision requiring the Public Prosecutor to conduct the prosecution.

Held: The Supreme Court explained how the two provisions work together. In a case instituted on a police report, the prosecution is to be conducted by the Public Prosecutor, and a privately instructed advocate acts under his directions and may, with the permission of the Court, submit written arguments after the evidence is closed. The permission contemplated by the other provision does not enable a Magistrate to hand over the conduct of a police-report case to a private advocate; that provision addresses a different situation, and is principally directed at cases in which there is no Public Prosecutor in charge. The Court held that the scheme is deliberate: the control of a criminal prosecution rests with a public officer whose duty is to place the whole of the material before the Court, and the private interest is accommodated by participation rather than control.

Ratio: In a case instituted on a police report the Public Prosecutor conducts the prosecution, and a privately instructed advocate acts under his directions, with written arguments after the evidence is closed by the Court’s permission.

📖 Rekha Murarka v. State of West Bengal, (2020) 2 SCC 474

Facts: A victim, having engaged an advocate under the proviso permitting a victim to engage an advocate of his choice to assist the prosecution, sought to have that advocate examine and cross-examine witnesses and address the Court orally. The question was the precise scope of the victim’s counsel’s role.

Held: The Supreme Court held that the victim’s counsel has a role that is assistive, not autonomous. He may assist the Public Prosecutor — by suggesting questions, by drawing attention to material, by furnishing written submissions — but he does not have an independent right to examine or cross-examine witnesses, or to make oral arguments, because the conduct of the prosecution remains with the Public Prosecutor. The Court held that the appropriate course where the victim’s counsel wishes to have a question put is to suggest it to the Public Prosecutor, and, if it is not put, to seek the permission of the Court; and that his substantive contribution is through written arguments with the Court’s permission. It reasoned that the Public Prosecutor is an officer of the Court with a duty to be fair to the accused, whereas victim’s counsel acts for a party with an interest in the outcome, and that giving the latter free rein would distort the character of the trial.

Ratio: The victim’s counsel assists the prosecution; he has no independent right to examine witnesses or address the Court orally. His contribution is through the Public Prosecutor, and through written arguments with the Court’s permission.

⚠ Why the investigating officer may not prosecute

The proviso to section 339(1) forbids a police officer who has taken part in the investigation from being permitted to conduct the prosecution of that case.

The reason is the same reason that runs through the whole of this area: the officer who built the case has an interest in its success, and cannot be expected to place before the Court the material that tells against it.

It is the counterpart, at the prosecution stage, of the rule in section 191 that the complainant shall not accompany the investigating officer on a search, and of the separation the Sanhita maintains throughout between the agency that investigates and the officer who prosecutes.

The position stated shortly

1. Section 338(1): the Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority. His authority comes from his office, not from a vakalatnama.

2. Section 338(2): where a private person instructs an advocate to prosecute, the Public Prosecutor shall conduct the prosecution, and that advocate acts under his directions.

3. The private advocate may, with the permission of the Court, submit written arguments after the evidence is closed. That is the extent of his independent participation.

4. Section 339(1): a Magistrate may permit the prosecution to be conducted by any person other than a police officer below the rank of inspector; and no one other than the Advocate General, Government Advocate, Public Prosecutor or Assistant Public Prosecutor may do so without permission.

5. The permission under section 339 does not enable a Magistrate to hand over the conduct of a police-report case to a private advocate: Dhariwal Industries.

6. No police officer who has taken part in the investigation may be permitted to conduct the prosecution of that case.

7. The proviso to section 18(8) permits the Court to allow a victim to engage an advocate to assist the prosecution.

8. The victim’s counsel assists: he has no independent right to examine or cross-examine witnesses or to address the Court orally, and his contribution is through the Public Prosecutor and through written arguments with the Court’s permission: Rekha Murarka.

9. The Public Prosecutor is an officer of the Court. His duty is to place the whole of the evidence before it, including what tells against his own case, and not to seek a conviction at any cost.

10. He alone may apply for withdrawal from prosecution under section 360 — and section 360 now requires the victim to be heard before the Court consents.