Private Counsel Assisting Prosecutor Cannot Cross-Examine Witnesses In Sessions Trial: MP High Court

The Madhya Pradesh High Court has ruled that a private complainant cannot seek an expanded role in a sessions trial merely because his complaint led to the registration of an FIR, holding that prosecution in such cases must remain under the control of the Public Prosecutor.

The Gwalior Bench of Justice G.S. Ahluwalia and Justice Pushpendra Yadav dismissed a criminal revision petition filed by Shivpuri councillor Vijay Sharma, who had sought permission to assist the prosecution in a corruption case linked to alleged irregularities in municipal works.

The case arose from a written representation submitted on July 21, 2025 by 21 elected councillors of the Municipal Council, Shivpuri, complaining about poor road conditions, alleged non-existent development works shown as completed in official records, and suspected misuse of municipal funds.

Acting on the complaint, the District Collector directed the Sub-Divisional Magistrate to conduct an inquiry. Following the inquiry report, an FIR was registered at Kotwali Police Station against a sub-engineer, an assistant engineer and a contractor under provisions of the Bharatiya Nyaya Sanhita and the Prevention of Corruption Act.

After the charge sheet was filed and the matter reached the stage of framing of charges before the Special Court under the Prevention of Corruption Act, Sharma moved an application under Section 338(2) of the Bharatiya Nagarik Suraksha Sanhita (Section 301 of CrPC) seeking permission to assist the prosecution. The trial court rejected the plea on February 10, 2026, observing that he did not fall within the category of a victim entitled to such participation.

Challenging that order before the High Court, advocate Abhay Jain, appearing for Sharma, argued that the petitioner was not an outsider to the proceedings because the criminal case had originated from his representation as an elected councillor. Jain contended that the matter involved alleged corruption and misuse of public funds affecting residents of Shivpuri and therefore the petitioner should have been allowed to participate in the prosecution. Reliance was placed on Supreme Court decisions in Puran v. Rambilas and R. Rathinam v. State.

Opposing the revision plea, Additional Advocate General Deependra Singh Kushwah argued that under the statutory framework, only the Public Prosecutor is authorised to conduct a sessions trial and the trial court had correctly rejected the application.

The High Court agreed with the State and examined Sections 248 and 338 of the BNSS (Section 225 and 301 CrPC), which deal with prosecution before a Sessions Court and the role of private counsel. The Bench observed that the law clearly entrusts the conduct of prosecution to the Public Prosecutor and limits the role of a privately engaged advocate.

“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,” the Court said.

The Bench further clarified that a private counsel cannot make oral submissions or cross-examine witnesses during trial proceedings. “The aforesaid provisions do not permit the counsel of private person to make oral arguments and cross-examine the witnesses,” the Court observed while holding that written submissions could only be filed after evidence is closed and with the court’s permission.

Rejecting the argument that Sharma should be treated as a victim because his complaint triggered the inquiry and FIR, the Court relied on the Supreme Court’s judgment in Rekha Murarka v. State of West Bengal. The High Court noted that even a victim’s counsel cannot claim unrestricted participation in a sessions trial beyond the limited statutory role recognised under criminal procedure law.

The Court also observed that the judgments cited by the petitioner dealt with cancellation of bail and were distinguishable on facts. Concluding that no interference was warranted in revisional jurisdiction, the Bench held that the petition lacked merit and dismissed the revision filed by the councillor.

Case Title: Vijay Sharma v. The State of Madhya Pradesh and Others

Date of Order: May 6, 2026

Bench: Justice G. S. Ahluwalia and Justice Pushpendra Yadav