Section 338 BNSS: Appearance by Public Prosecutors

Bharatiya Nagarik Suraksha Sanhita, 2023

Section 338 BNSS at a Glance

Section 338 BNSS deals with appearance by Public Prosecutors. It replaced Section 301 CrPC on 1 July 2024.

Was CrPC

Section 301 →

Section 338 BNSS Bare Act Text

(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.

Source: Section 338, Bharatiya Nagarik Suraksha Sanhita, 2023

Section 338 BNSS in Simple Words

Section 338 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with appearance by Public Prosecutors.

Under Section 338(1) BNSS, 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.

Under Section 338(2) BNSS, if 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 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.

When Section 338 BNSS Applies

  • Under Section 338(1) BNSS, 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.
  • Under Section 338(2) BNSS, 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.
  • Under Section 338(2) BNSS, the advocate so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor.
  • Under Section 338(2) BNSS, the advocate so instructed may, with the permission of the Court, submit written arguments after the evidence is closed in the case.

Example of Section 338 BNSS

Meera is the Assistant Public Prosecutor in charge of a case in which Vikram is on trial before a Court. Under Section 338(1) BNSS, Meera may appear and plead before the Court without any written authority. Rajesh, a private person, instructs his advocate, Arjun, to prosecute Vikram in that Court. Under Section 338(2) BNSS, Meera shall conduct the prosecution and Arjun shall act therein under the directions of Meera. After the evidence is closed in the case, Arjun may, with the permission of the Court, submit written arguments.

When Section 338 BNSS Does Not Apply

  • Section 338(1) BNSS speaks of the Public Prosecutor or Assistant Public Prosecutor in charge of a case. It does not deal with an advocate who appears for the accused.
  • Section 338(2) BNSS speaks of a private person who instructs his advocate to prosecute any person. It does not deal with an advocate instructed to defend any person.

Section 338 BNSS in the CrPC (Previous Law)

Section 338 BNSS replaced Section 301 CrPC from 1 July 2024.

From 1 July 2024, Section 338 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced Section 301 of the Code of Criminal Procedure, 1973, with the same heading. Section 338(1) BNSS is in the same words as Section 301(1) CrPC. Section 338(2) BNSS reads his advocate where Section 301(2) CrPC read a pleader, and the advocate so instructed where Section 301(2) CrPC read the pleader so instructed.

Each sub-section below names its own source.

FAQs on Section 338 BNSS

Does a Public Prosecutor or Assistant Public Prosecutor need written authority to appear in Court under Section 338 BNSS?▼

Under Section 338(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, 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.

Who conducts the prosecution when a private person instructs his advocate under Section 338 BNSS?▼

Under Section 338(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, 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.

When may an advocate instructed by a private person submit written arguments under Section 338 BNSS?▼

Under Section 338(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, the advocate so instructed may, with the permission of the Court, submit written arguments after the evidence is closed in the case.

What changed from Section 301 CrPC to Section 338 BNSS from 1 July 2024?▼

From 1 July 2024, Section 338 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced Section 301 of the Code of Criminal Procedure, 1973. The heading is the same and the text is the same, except that Section 338(2) BNSS reads his advocate where Section 301(2) CrPC read a pleader, and the advocate so instructed where Section 301(2) CrPC read the pleader so instructed.

Section 338 BNSS: Sub-sections Explained

Section 338(1) BNSS: Appearance by Public Prosecutors

▶

Bare Act Text

(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.

Previous Law

CrPC 301 → Section 338(1) BNSS

Section 338(2) BNSS: Appearance by Public Prosecutors

▶

Bare Act Text

(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.

Previous Law

CrPC 301(2) → Section 338(2) BNSS

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Sources: Bare Act Text, Bharatiya Nagarik Suraksha Sanhita, 2023 · Last updated: 21 Oct 2026 ·