Section 302 CrPC: Permission to Conduct Prosecution
Section 302 of the Code of Criminal Procedure, 1973 empowers a Magistrate to allow a person, including a private complainant, to conduct a prosecution subject to statutory restrictions. The corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 is Section 339 BNSS.
Meaning and scope of Section 302 CrPC
The expression permission to conduct prosecution means judicial authorization for a person who is not otherwise entitled to conduct the prosecution to present the prosecution case before a Magistrate. Permission is discretionary, not automatic. The Magistrate considers whether allowing that person to prosecute is appropriate for the fair and orderly conduct of the case.
Section 302 CrPC: Statutory provision
302. Permission to conduct prosecution
(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:
Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so personally or by a pleader.
Section 339 BNSS: Present corresponding provision
Section 339 of the Bharatiya Nagarik Suraksha Sanhita, 2023 retains the substance of Section 302 CrPC. It empowers a Magistrate inquiring into or trying a case to permit a person to conduct the prosecution, subject to the same restrictions concerning police officers and the requirement of permission for persons other than the specified law officers and prosecutors.
Under Section 339(2) BNSS, a person conducting the prosecution may do so personally or through an advocate. The earlier Section 302(2) CrPC used the word pleader.
Read the official BNSS text on India Code and the Ministry of Home Affairs criminal laws portal.
Who can conduct a prosecution?
| Person | Position under Section 302 CrPC / 339 BNSS |
|---|---|
| Public Prosecutor or Assistant Public Prosecutor | May conduct prosecution without obtaining permission under this provision. |
| Advocate-General or Government Advocate | Expressly exempted from the requirement of permission. |
| Private complainant or other person | May conduct prosecution if the Magistrate grants permission. |
| Police officer below inspector rank | Cannot be permitted under this provision. |
| Police officer who investigated the offence | Cannot be permitted to conduct the prosecution in that case, regardless of rank. |
How is permission obtained?
A person seeking to conduct a prosecution may apply to the Magistrate dealing with the inquiry or trial, stating the applicant's connection with the case and why permission should be granted. The Court determines the request according to the facts, procedural law and interests of justice. Permission should not be treated as a right merely because the applicant is the complainant or victim.
Once permission is granted, the authorized person may conduct the prosecution personally or through an advocate, subject to the Magistrate's directions and applicable procedural safeguards. The accused retains the right to a fair trial and legal representation.
Difference between Section 301 and Section 302 CrPC
Section 301 CrPC concerns appearances by Public Prosecutors and the limited role of a privately instructed pleader acting under their directions. Section 302 CrPC specifically enables a Magistrate to permit another person to conduct the prosecution. Their corresponding BNSS provisions are Sections 338 and 339, respectively.
Frequently asked questions
Can a private complainant conduct a criminal prosecution?
Yes, a Magistrate may grant permission under Section 339 BNSS or, where applicable, Section 302 CrPC. The permission is not automatic.
Can an investigating police officer conduct the prosecution?
No. A police officer who took part in investigating the offence cannot be permitted to conduct the prosecution for that offence under these provisions.
What is the new BNSS section for Section 302 CrPC?
The corresponding provision is Section 339 BNSS, titled "Permission to conduct prosecution".
Official legal references
- India Code: Bharatiya Nagarik Suraksha Sanhita, 2023
- Bureau of Police Research and Development: New criminal laws
- Ministry of Home Affairs: Criminal procedure legislation
This article provides general legal information. For a particular proceeding, verify the applicable statute, savings provisions, judicial orders and current amendments.