Private counsel assisting prosecution can't argue or cross-examine during criminal trial: MP High Court

The Madhya Pradesh High Court recently clarified the limited role of private advocates who may be engaged to assist the prosecution during criminal trials under the Bharatiya Nagarik Suraksha Sanhita (BNSS) [Vijay Sharma v Sate of Madhya Pradesh & Ors.],

A Division Bench of Justice GS Ahluwalia and Justice Pushpendra Yadav noted the private advocates cannot present oral arguments or cross-examine witnesses during sessions trials.

The Court held that prosecution in sessions trials remains under the exclusive control of the Public Prosecutor, with private counsel permitted only to submit written arguments after the close of evidence.

Interpreting Sections 248 and 338(2) of the BNSS, which govern the role of the Public Prosecutor and the restricted role of private counsel who are permitted to assist in prosecution, the Court held,

"The aforesaid provisions do not permit the counsel of private person to make oral arguments and cross examine 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."

The Court was dealing with a petition filed by a Shivpuri councillor challenging the rejection of his plea to assist the prosecution in a corruption case concerning alleged irregularities in municipal road works.

The councillor had argued that as an elected representative whose complaint triggered the inquiry and first information report (FIR), he should be allowed to assist the prosecution through private counsel.

The trial court, however, had rejected his application under Section 338(2) of the BNSS, prompting him to approach the High Court.

Upholding the trial court’s order, the High Court on May 6, emphasised the statutory scheme governing criminal trials and the primacy of the Public Prosecutor.

"A Public Prosecutor is entrusted with the responsibility of conducting prosecution case and role of the counsel for the private person is only to the extent of submitting written argument after the evidence is closed in the case under the instructions of Public Prosecutor with permission of 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," noted the Court.

Notably, the Court also found that the councillor's application had been filed prematurely at the stage of framing of charges, whereas the law permits limited assistance by private counsel in criminal trials only after the conclusion of evidence.

It rejected the argument that the councillor should be treated as a “victim” due to his role in initiating the complaint. The Court relied on the Supreme Court’s ruling in Rekha Murarka v. State of West Bengal (2019) to reiterate that even a victim’s counsel cannot claim an expanded role beyond what the statute permits.

Having found no errors in the trial court’s decision, the High Court dismissed the revision petition.

Advocate Abhay Jain appeared for the councillor (petitioner).

Additional Advocate General Deependra Singh Kushwa appeared for the State.

[Read Order]