Private Counsel Assisting Prosecution In Criminal Trial Can't Make Oral Arguments Or Conduct Cross Examination: MP High Court

The Madhya Pradesh High Court has held that the counsel of a private person assisting the public prosecutor is permitted to submit written arguments but is restricted from making oral arguments or cross-examining the witnesses.

The division bench of Justice GS Ahluwalia and Justice Pushpendra Yadav observed;

"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".

A revision petition was filed challenging the order of February 10, 2026, challenging the order of the Special Court (Prevention of Corruption Act) wherein the petition under Section 338(2) was rejected.

For Context, Section 338 BNSS empowers the public prosecutor and assitant public prosecutor to appear and plead in any court without requiring written authority.

Sub clause 2 states that in cases where counsel for a private person is instructed to prosecute, the Public Prosecutor will be incharge of the case and the private counsel would act under the directions of the Public Prosecutor or Assitant Public Prosecutor.

Per the facts, 21 councillors of the Municipal Council of Shivpuri made a written representation to the District Collector regarding the conditions of roads, non-existence of work shown as complete in government records and suspected irregularities in the use of municipal funds.

Subsequently, the Sub Divisional Magistrate was directed to conduct an inquiry, and later an FIR was registered against Jitendra Parihar (Sub-Engineer), Satish Nigam (Assistant Engineer) and Arpit Sharma (Contractor of M/s. Shivam Construction) for cheating in delivery of property (Section 318), criminal breach of trust by public servant (Section 316), criminal conspiracy (Section 61) and forgery (Section 336) along with provisions of Prevention of corruption Act.

During the framing of charges, the petitioner thus filed an application to assist the prosecution, but the same was rejected by the impugned order.

The counsel for the petitioner argued that the Trial Court erred in rejecting the application simply because he does not fall within the category of a victim and thereby disentitled him from assisting the prosecution, even when it was his complaint that led to the inquiry and registration of FIR.

The counsel for the State argued that only the Public Prosecutor can conduct a Sessions Trial and therefore the petitioner's application was rightly rejected.

The court held, "Plain reading of these provisions leave no iota of doubt that 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 bench noted that the right to prosecute an individual is restricted and is subject to the control of the public prosecutor.

The bench noted that Section 248 of BNSS mandates that the prosecution be conducted by a public prosecutor and therefore, under Section 338(2), permission can be given to a private person only for submitting written arguments after evidence is closed.

The bench further held that the provisions do not permit counsel of a private person to make oral arguments or conduct cross-examination of witnesses. He can only file written arguments, that too upon instructions of the Public Prosecution, with permission of the court, but only after the closing arguments.

Therefore, the court dismissed the revision.

Case Title: Vijay Sharma v State of Madhya Pradesh, CRR-1874-2026

For Petitioner: Advocate Abhay Jain

For State: Additional Advocate General Deependra Singh Kushwa

Click here to read/download the Order