Section 18 – Bharatiya Nagarik Suraksha Sanhita(BNSS) – Public Prosecutors

Public Prosecutors:

Code:

18. (1) For every High Court, the Central Government or the State Government shall,

after consultation with the High Court, appoint a Public Prosecutor and may also appoint

one or more Additional Public Prosecutors, for conducting in such Court, any prosecution,

appeal or other proceeding on behalf of the Central Government or the State Government,

as the case may be:

Provided that for National Capital Territory of Delhi, the Central Government shall,

after consultation with the High Court of Delhi, appoint the Public Prosecutor or Additional

Public Prosecutors for the purposes of this sub-section.

(2) The Central Government may appoint one or more Public Prosecutors for the

purpose of conducting any case in any district or local area.

(3) For every district, the State Government shall appoint a Public Prosecutor and may

also appoint one or more Additional Public Prosecutors for the district:

Provided that the Public Prosecutor or Additional Public Prosecutor appointed for

one district may be appointed also to be a Public Prosecutor or an Additional Public

Prosecutor, as the case may be, for another district.

(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a

panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors

or Additional Public Prosecutors for the district.

(5) No person shall be appointed by the State Government as the Public Prosecutor or

Additional Public Prosecutor for the district unless his name appears in the panel of names

prepared by the District Magistrate under sub-section (4).

(6) Notwithstanding anything in sub-section (5), where in a State there exists a

regular Cadre of Prosecuting Officers, the State Government shall appoint a Public

Prosecutor or an Additional Public Prosecutor only from among the persons constituting

such Cadre:

Provided that where, in the opinion of the State Government, no suitable person is

available in such Cadre for such appointment, that Government may appoint a person as

Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of

names prepared by the District Magistrate under sub-section (4).

Explanation.—For the purposes of this sub-section,—

(a) “regular Cadre of Prosecuting Officers” means a Cadre of Prosecuting Officers

which includes therein the post of Public Prosecutor, by whatever name called, and

which provides for promotion of Assistant Public Prosecutors, by whatever name

called, to that post;

(b) “Prosecuting Officer” means a person, by whatever name called, appointed

to perform the functions of a Public Prosecutor, Special Public Prosecutor, Additional

Public Prosecutor or Assistant Public Prosecutor under this Sanhita.

(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional

Public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6),

only if he has been in practice as an advocate for not less than seven years.

(8) The Central Government or the State Government may appoint, for the purposes

of any case or class of cases, a person who has been in practice as an advocate for not less

than ten years as a Special Public Prosecutor:

Provided that the Court may permit the victim to engage an advocate of his choice to

assist the prosecution under this sub-section.

(9) For the purposes of sub-section (7) and sub-section (8), the period during which

a person has been in practice as an advocate, or has rendered (whether before or after the

commencement of this Sanhita) service as a Public Prosecutor or as an Additional Public

Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name

called, shall be deemed to be the period during which such person has been in practice as

an advocate.

Explanation of the Section

This section lays down the guidelines for the appointment of Public Prosecutors at various levels:

1. High Court Appointments (Sub-section 1):
   • The Central Government or the State Government is responsible for appointing Public Prosecutors for every High Court after consulting with the respective High Court.
   • For the National Capital Territory of Delhi, the Central Government is responsible for appointing these officials in consultation with the High Court of Delhi.
2. District and Local Area Appointments (Sub-sections 2 & 3):
   • The Central Government can appoint one or more Public Prosecutors for any district or local area.
   • The State Government appoints Public Prosecutors for each district, with the provision for appointing Additional Public Prosecutors. A Public Prosecutor or Additional Public Prosecutor can be assigned to more than one district.
3. District Magistrate’s Role (Sub-sections 4 & 5):
   • The District Magistrate, in consultation with the Sessions Judge, is tasked with preparing a list of potential candidates for the role of Public Prosecutors or Additional Public Prosecutors in the district.
   • State Governments must appoint from this panel.
4. Regular Cadre of Prosecuting Officers (Sub-sections 6 & 7):
   • In states with a regular cadre of Prosecuting Officers, appointments should be made from within that cadre. If no suitable candidate is found, the State Government can appoint someone from the prepared panel.
   • Only those who have practiced law for at least seven years are eligible for these positions.
5. Special Public Prosecutors (Sub-section 8):
   • For specific cases or classes of cases, a Special Public Prosecutor can be appointed if the person has been practicing law for at least ten years.
   • The victim may also engage an advocate of their choice to assist in the prosecution.
6. Eligibility and Experience (Sub-section 9):
   • The period spent as an advocate, or in the role of a Prosecuting Officer (such as a Public Prosecutor or Assistant Public Prosecutor), counts towards the minimum experience required to be eligible for these roles.

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Illustration

Example 1: Appointment of Public Prosecutor

The State Government of Maharashtra, after consulting the Bombay High Court, appoints a Public Prosecutor for the Mumbai District Court. The District Magistrate, in consultation with the Sessions Judge, prepares a list of eligible candidates and submits it to the State Government. The State Government appoints a candidate from this list.

Example 2: Special Public Prosecutor Appointment

In a high-profile criminal case in Delhi, the Central Government appoints a Special Public Prosecutor with more than ten years of experience to handle the prosecution. The victim is allowed to engage their own lawyer to assist in the prosecution.

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Common Questions and Answers on Appointment of Public Prosecutors

1. Can a Public Prosecutor be appointed for multiple districts?

• Answer: Yes, a Public Prosecutor or Additional Public Prosecutor appointed for one district can be appointed to serve multiple districts.

2. What is the minimum experience required for a Public Prosecutor?

• Answer: A Public Prosecutor must have at least seven years of practice as an advocate. For Special Public Prosecutors, the requirement is ten years of practice.

3. How are the candidates for the role of Public Prosecutor selected?

• Answer: The District Magistrate, in consultation with the Sessions Judge, prepares a panel of eligible candidates for the appointment of Public Prosecutors or Additional Public Prosecutors. The State Government makes the final appointment from this list.

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Conclusion

Section 18 outlines a comprehensive process for the appointment of Public Prosecutors and Special Public Prosecutors at different levels, ensuring that individuals with adequate experience and qualifications are appointed to represent the Central or State Government in criminal cases. It also allows flexibility in cases requiring special appointments for particular cases or jurisdictions.