Section 18 BNSS 2023: Public Prosecutors
Section 18 of the Bharatiya Nagarik Suraksha Sanhita, 2023 governs the appointment and eligibility of Public Prosecutors, Additional Public Prosecutors and Special Public Prosecutors for High Courts, districts, local areas and particular cases or classes of cases.
| Provision | Section 18, Bharatiya Nagarik Suraksha Sanhita, 2023 |
|---|---|
| Chapter | Chapter II - Constitution of Criminal Courts and Offices |
| Main subject | Public Prosecutors, Additional Public Prosecutors and Special Public Prosecutors |
| High Court appointment | Central Government or State Government, after consultation with the High Court |
| District appointment | State Government |
| Minimum practice for Public Prosecutor or Additional Public Prosecutor | Not less than seven years as an advocate, subject to the deeming rule in sub-section (9) |
| Minimum practice for Special Public Prosecutor | Not less than ten years as an advocate, subject to the deeming rule in sub-section (9) |
| BNSS commencement | 1 July 2024 |
Text of Section 18 BNSS
18. (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or the State Government, as the case may be:
Provided that for National Capital Territory of Delhi, the Central Government shall, after consultation with the High Court of Delhi, appoint the Public Prosecutor or Additional Public Prosecutors for the purposes of this sub-section.
(2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case in any district or local area.
(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.
(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4).
(6) Notwithstanding anything in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre:
Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment, that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4).
Explanation. For the purposes of this sub-section,
(a) "regular Cadre of Prosecuting Officers" means a Cadre of Prosecuting Officers which includes therein the post of Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post;
(b) "Prosecuting Officer" means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, Special Public Prosecutor, Additional Public Prosecutor or Assistant Public Prosecutor under this Sanhita.
(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years.
(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor:
Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.
(9) For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice as an advocate, or has rendered (whether before or after the commencement of this Sanhita) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.
Meaning and scope of Section 18
Section 18 creates the statutory framework for appointment of prosecutors who represent the Central Government or State Government in criminal prosecutions, appeals and other proceedings. It deals separately with appointments for High Courts, districts and local areas, and also provides a special mechanism for appointment of Special Public Prosecutors in particular cases or classes of cases.
The term Public Prosecutor is defined in Section 2 of the BNSS to mean a person appointed under Section 18 and includes a person acting under the directions of a Public Prosecutor. Accordingly, Section 18 is the principal appointment provision for Public Prosecutors under the Sanhita.
High Court Public Prosecutors under Section 18(1)
For every High Court, the Central Government or the State Government must appoint a Public Prosecutor after consultation with the High Court. One or more Additional Public Prosecutors may also be appointed. Their statutory function under this sub-section is to conduct prosecutions, appeals or other proceedings in the High Court on behalf of the appropriate Government.
For the National Capital Territory of Delhi, the proviso specifically assigns the appointment function to the Central Government after consultation with the High Court of Delhi.
Public Prosecutors for districts under Sections 18(3) to 18(6)
Every district must have a Public Prosecutor appointed by the State Government. The State Government may also appoint one or more Additional Public Prosecutors. A prosecutor appointed for one district may also be appointed for another district.
Ordinarily, the District Magistrate, in consultation with the Sessions Judge, prepares a panel of persons considered fit for appointment. Under sub-section (5), a district Public Prosecutor or Additional Public Prosecutor cannot ordinarily be appointed unless the person's name appears in that panel.
Sub-section (6) creates a non-obstante rule for States having a regular Cadre of Prosecuting Officers. In such a State, appointment must ordinarily be made from that cadre. If the State Government considers that no suitable person is available in the cadre, it may appoint a person from the panel prepared under sub-section (4).
Eligibility under Section 18(7)
A person is eligible for appointment as a Public Prosecutor or Additional Public Prosecutor under the specified sub-sections only if the person has been in practice as an advocate for not less than seven years. Sub-section (9) expands the manner in which this qualifying period is calculated by treating specified prosecutorial service as practice as an advocate.
Special Public Prosecutor under Section 18(8)
The Central Government or the State Government may appoint a Special Public Prosecutor for a particular case or class of cases. The person must have been in practice as an advocate for not less than ten years, subject to the deeming provision in sub-section (9).
The proviso to sub-section (8) also permits the Court to allow the victim to engage an advocate of the victim's choice to assist the prosecution.
Important definitions in Section 18
- Regular Cadre of Prosecuting Officers: A prosecuting cadre that includes the post of Public Prosecutor, by whatever name called, and provides for promotion of Assistant Public Prosecutors to that post.
- Prosecuting Officer: A person, by whatever name called, appointed to perform the functions of a Public Prosecutor, Special Public Prosecutor, Additional Public Prosecutor or Assistant Public Prosecutor under the BNSS.
- Public Prosecutor: Under Section 2 of the BNSS, a person appointed under Section 18, including a person acting under the directions of a Public Prosecutor.
Practical structure of Section 18
| High Court | Central Government or State Government appoints after consultation with the High Court. |
|---|---|
| District | State Government appoints; panel procedure applies unless the regular prosecuting cadre rule governs. |
| District or local area case | Central Government may appoint one or more Public Prosecutors. |
| Special case or class of cases | Central Government or State Government may appoint a Special Public Prosecutor with the prescribed experience. |
Relationship with Sections 19 and 20 BNSS
Section 18 deals with Public Prosecutors, Additional Public Prosecutors and Special Public Prosecutors. Section 19 BNSS deals with Assistant Public Prosecutors, while Section 20 BNSS deals with the Directorate of Prosecution. These provisions collectively form the principal prosecutorial framework in Chapter II of the BNSS.
BNSS commencement and legal status
The Bharatiya Nagarik Suraksha Sanhita, 2023 is Act No. 46 of 2023. It received assent on 25 December 2023. The Central Government appointed 1 July 2024 as the date on which the Sanhita came into force, subject to the exception specified in the commencement notification in relation to the entry concerning Section 106(2) of the Bharatiya Nyaya Sanhita, 2023 in the First Schedule.
Official resources
For authoritative statutory material, see India Code - Bharatiya Nagarik Suraksha Sanhita, 2023, India Code - BNSS PDF, and Ministry of Home Affairs - New Criminal Laws.
Frequently asked questions
Who appoints a Public Prosecutor for a High Court under Section 18 BNSS?
The Central Government or the State Government appoints the Public Prosecutor after consultation with the High Court.
Who prepares the panel for district Public Prosecutors?
The District Magistrate prepares the panel in consultation with the Sessions Judge.
What is the minimum experience required for appointment as a Public Prosecutor?
Section 18(7) requires not less than seven years of practice as an advocate, subject to the deeming rule in Section 18(9).
What is the minimum experience required for a Special Public Prosecutor?
Section 18(8) requires not less than ten years of practice as an advocate, again subject to Section 18(9).
Can a victim engage an advocate to assist the prosecution?
Yes. Under the proviso to Section 18(8), the Court may permit the victim to engage an advocate of the victim's choice to assist the prosecution.