Code: Section 338 BNSS
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.
(2)
If in any such case any private person instructs his advocate to prosecute any person in any Court, then the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution. The privately instructed advocate shall act under the directions of the Public Prosecutor or Assistant Public Prosecutor and, with the Court’s permission, may submit written arguments after the evidence is closed in the case.
Explanation of Section 338 BNSS
Section 338 BNSS clarifies the roles and authority regarding the conduct of a prosecution in a criminal case. Key points include:
- Unrestricted Appearance:
The Public Prosecutor or Assistant Public Prosecutor in charge of a case may represent the State in court without needing any additional written authorization. This ensures that the prosecuting authority can act swiftly and effectively throughout the trial, inquiry, or appeal. - Private Instructions and Direction:
In instances where a private party (for example, a complainant or any interested person) instructs an advocate to prosecute, the section mandates that the case must be handled by the Public Prosecutor or Assistant Public Prosecutor. The privately instructed advocate will then work under the directions of the Public Prosecutor. This provision preserves the uniformity and accountability of prosecutions by ensuring that only authorized state representatives control the conduct of the case. - Submission of Written Arguments:
Even when the advocate is acting under the direction of the Public Prosecutor, the Court may permit the submission of written arguments after the evidence is closed. This allows for a more detailed presentation of legal points without disrupting the flow of testimony.
This section helps maintain the integrity and consistency of criminal prosecutions by ensuring that only those with proper authority (i.e., Public Prosecutors or their assistants) are in charge of presenting the case.
Illustrations
Example 1: Direct Prosecution by the State
In a high-profile corruption case:
- The Public Prosecutor, without needing any additional written authorization, appears in court and presents the case.
- This direct approach ensures that the prosecution is managed by a duly authorized officer from the beginning of the trial.
Example 2: Private Instruction Scenario
In a case where a private complainant initially hires an advocate:
- The advocate is directed by the complainant to prosecute a person.
- However, under Section 338, the Public Prosecutor (or Assistant Public Prosecutor) assumes control of the prosecution.
- The privately instructed advocate works under the Public Prosecutor’s guidance and may, with the Court’s permission, submit written arguments after the presentation of evidence is complete.
Common Questions and Answers on Section 338 BNSS
1. Who may appear and plead in a case without any written authority?
Answer: The Public Prosecutor or Assistant Public Prosecutor in charge of the case may appear and plead without needing any written authority.
2. What happens if a private person instructs an advocate to prosecute?
Answer: If a private person instructs an advocate, the Public Prosecutor or Assistant Public Prosecutor in charge must take over the prosecution. The advocate will act under their directions, and may submit written arguments after the evidence is closed, provided the Court permits it.
3. Why is it important that only authorized prosecutors handle the case?
Answer: This measure ensures uniformity and accountability in the conduct of prosecutions, preventing any potential conflicts or discrepancies that might arise if unauthorized individuals were allowed to prosecute independently.
4. Can an advocate acting under private instruction still present arguments?
Answer: Yes, but only under the directions of the Public Prosecutor or Assistant Public Prosecutor and only with the permission of the Court—typically after the evidence has been closed.
Conclusion
Section 338 BNSS reinforces the principle that the prosecution in criminal cases must be conducted by duly authorized state representatives. By mandating that the Public Prosecutor or Assistant Public Prosecutor take charge—even when a private party seeks to instruct an advocate—this provision helps preserve the integrity, consistency, and accountability of the criminal justice system.
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