Bharatiya Nagarik Suraksha Sanhita, 2023
Section 338
Appearance by Public Prosecutors
(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, 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.
Why this exists
Criminal prosecution in India is conducted by the State on behalf of society as a whole, not just the individual victim. This provision, from Section 301 of the old CrPC, preserves that public character by ensuring the state-appointed Public Prosecutor always stays in overall control, even when a private complainant brings in additional legal help.
Common misconceptions
- Myth: A private lawyer hired by the victim can run the prosecution independently.
Fact: Such a lawyer must act under the Public Prosecutor's direction, not on their own, though they can submit written arguments with the court's permission after evidence closes.