Bharatiya Nagarik Suraksha Sanhita (BNSS) – Section 338
Code: Section 338 (1) & (2) of the Bharatiya Nagarik Suraksha Sanhita (BNSS)
Explanation:
This section deals with the conduct of prosecution in criminal cases and the role of the Public Prosecutor and private advocates. It lays down the following rules:
- Public Prosecutor’s Authority: The Public Prosecutor or Assistant Public Prosecutor in charge of a case has the authority to appear and plead before any Court without needing any written authorization. This applies to cases at the inquiry, trial, or appeal stages.
- Private Advocate’s Role: If a private person instructs their advocate to prosecute someone in a case, the Public Prosecutor or Assistant Public Prosecutor remains in charge of the prosecution. The private advocate acts under the directions of the Public Prosecutor and can only submit written arguments with the Court’s permission after the evidence is closed.
Illustration:
Imagine a case where Mr. X is accused of theft. A private lawyer is hired by the victim to prosecute Mr. X. While the private lawyer can assist and present arguments, the Public Prosecutor will ultimately be in charge of the prosecution and direct the course of the case. The private lawyer can only make written arguments after the evidence is closed with the Court’s permission.
Common Questions and Answers:
- Q: Can a private lawyer independently prosecute a case without any involvement from the Public Prosecutor?
A: No. The Public Prosecutor is always in charge of the prosecution, even if a private lawyer is also involved. The private lawyer acts under the directions of the Public Prosecutor. - Q: Can a private lawyer present oral arguments during the trial?
A: While they can assist in the presentation of evidence and arguments, the Public Prosecutor has the primary role in presenting oral arguments during the trial. - Q: What happens if the private lawyer and the Public Prosecutor have different strategies?
A: The Public Prosecutor has the final say in the conduct of the prosecution. The private lawyer must follow the directions of the Public Prosecutor.
