Indian criminal procedure | Updated October 2026

Section 301 CrPC and Section 338 BNSS: Appearance by Public Prosecutors

Section 301 of the Code of Criminal Procedure, 1973 governed the appearance of Public Prosecutors and Assistant Public Prosecutors in criminal proceedings. Its corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 is Section 338, which governs this subject under the new criminal procedure law.

Current legal position: The BNSS came into force on 1 July 2024 and repealed the CrPC, subject to the savings and transitional provisions in Section 531 BNSS. For proceedings covered by those savings, the earlier CrPC provisions may remain relevant. The applicable law must be determined from the facts and procedural history of the case.

What does appearance by Public Prosecutors mean?

The provision authorises the Public Prosecutor or Assistant Public Prosecutor who is in charge of a case to appear and plead in the court dealing with that case without producing a separate written authority. It also regulates participation by an advocate engaged privately to assist the prosecution.

Section 301 CrPC: statutory provisions

Section 301(1) - Appearance without written authority

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.

Section 301(2) - Private pleader assisting prosecution

If in any such case any private person instructs a pleader 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 pleader 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.

Section 338 BNSS: corresponding current provision

Section 338 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is titled Appearance by Public Prosecutors. It preserves the essential scheme of former Section 301 CrPC.

Section 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.

Section 338(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.

In the corresponding new provision, the term advocate is used instead of the earlier expression pleader. The Public Prosecutor or Assistant Public Prosecutor in charge continues to conduct the prosecution.

Practical effect of these provisions

No separate written authorisation: The prosecutor in charge may appear and plead in the relevant inquiry, trial or appeal without a separate written authority under the provision.
Control of prosecution: Engagement of a private advocate does not displace the prosecutor in charge.
Role of private counsel: The privately instructed advocate acts under the prosecutor's directions.
Written arguments: After evidence closes, the privately instructed advocate may submit written arguments with the court's permission.

West Bengal state amendment to Section 301 CrPC

The original CrPC article also records the West Bengal amendment enacted through West Bengal Act 26 of 1990, Section 4. It substituted Section 301(1) with the following distinction:

(1)(a) The 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.

(1)(b) The 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 or trial.

Accordingly, the state amendment distinguished the courts and stages at which an Assistant Public Prosecutor could appear without written authority. Its present application must be considered alongside the repeal and savings provisions of the BNSS and any applicable state legislation or notifications.

Section 301 regulates the prosecutor's appearance and the supporting role of privately instructed counsel. Section 302 CrPC separately concerned permission by a Magistrate to conduct a prosecution. The corresponding BNSS provisions are Sections 338 and 339, respectively. These provisions address different procedural situations and should not be treated as interchangeable.

Frequently asked questions

Which BNSS section corresponds to Section 301 CrPC?

Section 338 BNSS, titled Appearance by Public Prosecutors.

Can a Public Prosecutor appear without written authority?

Yes. Section 338(1) BNSS permits the Public Prosecutor or Assistant Public Prosecutor in charge of a case to appear and plead without separate written authority in the specified proceedings.

Can a private advocate independently conduct a prosecution under Section 338?

Section 338(2) places conduct of the prosecution with the Public Prosecutor or Assistant Public Prosecutor in charge. A privately instructed advocate acts under that prosecutor's directions and may submit written arguments after evidence closes with the court's permission. Separate provisions governing permission to conduct prosecution must be considered where applicable.

Official legislation and references

This article provides general legal information. Consult the current statute, applicable state amendments and court orders before relying on a provision in a particular proceeding.