The Madhya Pradesh High Court has explained that, as per Sections 248 and 338 of the BNSS, the counsel of a private person can’t make oral arguments and cross-examine the witnesses. The High Court clarified that the counsel can only file written arguments under the instructions of the Public Prosecutor with the permission of the Court, but only after the closing of the evidence in the case.

The High Court was considering a revision petition filed under Sections 438 read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), challenging the order passed by the Special Court (Prevention of Corruption Act) rejecting an application filed by the petitioner under Section 338(2) of BNSS.

The Division Bench of Justice G. S. Ahluwalia and Justice Pushpendra Yadav referred to Sections 248 and 338 of the BNSS and stated, “In the considered opinion of this Court, the aforesaid provisions do not permit the counsel of private person to make oral arguments and crossexamine the witnesses. He can only file written arguments under the instructions of Public Prosecutor with the permission of the Court but only after closing of the evidence in the case.”

Advocate Abhay Jain represented the Petitioner, while Additional Advocate General Deependra Singh Kushwah represented the Respondent.

Factual Background

The case dates back to the year 2021, when 21 elected councilors of the Municipal Council, Shivpuri, made a written representation to the District Collector, Shivpuri, regarding the condition of roads, non-existence of work as shown completed in the official records and suspected irregularities in the use of municipal funds. On receiving the said representation, the District Collector directed the Sub-Divisional Magistrate, Sub-Division, Shivpuri, to conduct a detailed inquiry. After conducting the enquiry, the SDM submitted an enquiry report to the District Collector on 25-07-2025.

In pursuance of the said enquiry report, under the direction of the District Collector, Shivpuri, an FIR was registered for the offence punishable under Sections 318(4), 316(5), 61(2), 337, 338, 336(3), 340(2) of BNS and Sections 8 & 12 of the Prevention of Corruption Act, 1988. After completion of the investigation, a charge sheet was filed under Sections 318(4), 316(5), 61(2), 338, 336(3), 340(2) of BNS and Sections 13(1)(A), 8 of the Prevention of Corruption Act. At the time of framing the charge, the petitioner filed an application under Section 338 of BNSS to assist the prosecution. The said application was rejected by the impugned order, leading to the filing of the revision petition.

Reasoning

Referring to Sections 248 and 338 of the BNSS, the Bench explained that a Public Prosecutor is entrusted with the responsibility of conducting a prosecution case, and the role of the counsel for the private person is only to the extent of submitting a written argument after the evidence is closed in the case under the instructions of the Public Prosecutor with permission of the Court.

“The right of a private individual to patriciate in the prosecution of a sessions trial is restricted and the prosecution is subject to the control of the Public Prosecutor. Section 248 mandates that prosecution be conducted by the Public Prosecutor and in view of Section 338 (2) of BNSS permission can be given to the private person to the extent of submitting written arguments after the evidence is closed in the case”, it added.

Considering that the petitioner had filed an application under Section 338(2) at the stage of framing of charge, the Bench did not find any illegality in the order passed by the Court below. Thus, finding the petition to be meritless, the Bench dismissed the Revision.

Cause Title: Vijay Sharma v. The State of Madhya Pradesh and Others (Neutral Citation: 2026:MPHC-GWL:14962)

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Madhya Pradesh High CourtJustice G. S. AhluwaliaJustice Pushpendra Yadav

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.