Prosecution of Judges and public servants
Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with prosecution of Judges and public servants. When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall The Act came into force on 01 Jul 2024.
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)—
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted:
Provided further that such Government shall take a decision within a period of one hundred and twenty days from the date of the receipt of the request for sanction and in case it fails to do so, the sanction shall be deemed to have been accorded by such Government:
Provided also that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 64, section 65, section 66, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77, section 78, section 79, section 143, section 199 or section 200 of the Bharatiya Nyaya Sanhita, 2023.
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.
(4) Notwithstanding anything contained in sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(5) The Central Government or the State Government, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
Section 218, The Bharatiya Nagarik Suraksha Sanhita, 2023 (Act 46 of 2023).
Replaces a provision of the Code of Criminal Procedure
CRPC 197 Prosecution of Judges and public servants Text carried over almost unchanged 95%
Measured by comparing the text of the two provisions, not taken from an official correspondence table — there is no machine-readable one. See both texts side by side before relying on it.
Both regimes are live. The repealed enactment still governs what happened while it was in force. We never redirect one to the other.
Cross-references
Extracted from the operative text of the enactments themselves. Every destination below exists in our corpus.
This section refers to
- Bharatiya Nyaya Sanhita s. 200 Punishment for non-treatment of victim
- s. 64 Summons how served
- s. 65 Service of summons on corporate bodies, firms, and societies
- s. 66 Service when persons summoned cannot be found
- s. 68 Service on Government servant
- s. 69 Service of summons outside local limits
- s. 70 Proof of service in such cases and when serving officer not present
- s. 71 Service of summons on witness
- s. 74 Warrants to whom directed
- s. 75 Warrant may be directed to any person
- s. 76 Warrant directed to police officer
- s. 77 Notification of substance of warrant
- s. 78 Person arrested to be brought before Court without delay
- s. 79 Where warrant may be executed
- s. 143 Security for unexpired period of bond
- s. 199 Offence triable where act is done or consequence ensues
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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D. Devaraja v. Owais Sabeer Hussain
Decided under Code of Criminal Procedure 197, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
Judgement of Main Case order-10.pdf 2020-06-18 (not same-date order-9 ROP). Banumathi/Indira Banerjee, Crl A 458/2020. CrPC 197 sanction is required where the alleged police excess has a reasonable nexus with official duty ('colour of office'); a private complaint of investigation-stage torture against a police officer without sanction is not maintainable and is quashed. Map CrPC 197 and successor BNSS 218.
On this section: Successor of CrPC 197 (mapping.csv near-identical). Colour-of-office sanction teaching carries to BNSS 218.
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State of Maharashtra vs Ashok
Decided under Code of Criminal Procedure 197, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
A Special Court under MCOCA may take cognizance of an offence on a private complaint, but such power is controlled by and must be exercised in compliance with Section 23(2) of MCOCA, which mandates that no Special Court shall take cognizance of any offence under the Act without the previous sanction of a Police Officer not below the rank of Additional Director General of Police. Section 9(1) and Section 23(2) of MCOCA must be read harmoniously and together, not in isolation. The provisions of Section 25 of MCOCA, which give overriding effect to MCOCA over the Criminal Procedure Code, preclude the Special Judge from invoking Section 156(3) Cr.P.C. to conduct independent inquiry on a private complaint and take cognizance without compliance with Section 23. Private complaints must follow the procedure outlined in Section 23 of MCOCA: forward to officer under Section 23(1)(a) for inquiry by police officer under Section 23(1)(b), and only thereafter take cognizance upon obtaining sanction under Section 23(2).
On this section: Requirement for sanction to prosecute public servants. Compared with Section 23(2) MCOCA sanction requirement to establish similar protective intent and necessity for harmonious reading of special statutes with general law.
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The State of Kerala vs K. Ajith
Decided under Code of Criminal Procedure 197, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
Elected representatives cannot claim immunity from criminal law on grounds of parliamentary privilege. Acts of destruction of public property committed by MLAs during protest inside the legislative assembly are not protected under Article 194 of the Constitution as they do not constitute essential legislative functions or proceedings of the House. The Public Prosecutor's power to withdraw prosecution under Section 321 CrPC must be exercised in furtherance of broad ends of public justice, and the court's supervisory function requires it to ensure that the application is made in good faith and does not suffer from improprieties or illegalities that would cause manifest injustice. Prior sanction of the Speaker is not required for prosecution of MLAs for offences committed within the assembly except where specifically mandated by statute such as Section 19 of the Prevention of Corruption Act. The gravity of offence involving destruction of public property and its impact on public life must be considered when determining whether withdrawal of prosecution subserves administration of justice.
On this section: Sanction requirement for prosecution of public servants; held not applicable to MLAs as they are not removable by government sanction
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Nisha Priya Bhatia vs Union of India . Cabinet Secretary
Decided under Code of Criminal Procedure 197, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
Rule 135 of R&AW (Recruitment, Cadre and Services) Rules, 1975 is constitutionally valid as: (1) it derives authority from Article 309 (conditions of service) not Article 311 (penal actions); (2) compulsory retirement is non-penal administrative action not involving loss of accrued benefits, stigma, or punishment; (3) expressions 'exposure' and 'security' are sufficiently clear in context of intelligence organization and not vague; (4) no prior inquiry or natural justice principles mandated by Rule or by Article 311 as these apply only to penal actions; (5) preliminary inquiry, though advisable, not required; (6) where Rule 135 ingredients satisfied at highest decision-making level after deliberations, invocation is legal and lawful; (7) 'may' in Rule 135 Subrule (2) must be read as 'shall' for granting pension benefits; (8) pension calculated from notional superannuation date reflecting non-punitive character; (9) Rule operates as special provision taking precedence over general provisions like FR 56(j) under lex specialis doctrine.
On this section: Requires sanction to prosecute public servants for acts done in official capacity; Court upheld refusal of sanction for private respondents in criminal appeal
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Punjab State Warehousing CORP vs Bhushan Chander
Decided under Code of Criminal Procedure 197, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
Protection under Section 197 CrPC is not available to employees of Government companies or public undertakings (even when such undertakings are 'State' within Article 12 of Constitution) for prosecution of offences. Furthermore, offences of criminal breach of trust (Section 409), forgery (Sections 467, 468, 471) and cheating (Section 420) committed by a public servant cannot reasonably be claimed to be done in discharge of official duty; rather, the official position merely provides the opportunity for commission. Sanction under Section 197 CrPC is required only when there is a reasonable connection between the criminal act and the discharge of official duty, or when the act can be done under colour of office. Acts directly and reasonably disconnected from official duty do not attract Section 197 protection.
On this section: Prosecution of public servants - central provision in dispute; requires sanction for prosecution of public servants removable only by Government for offences committed in discharge of official duty; extensive interpretation provided that protection does not extend to Government company/undertaking employees
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Internl. Adv. Res. Cen. for P. M. & N. M. vs Nimra Cerglass (p) Ltd.
Decided under Code of Criminal Procedure 197, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
For an offence of cheating to be constituted under Section 420 IPC, the essential ingredients are: (i) making of a false representation; (ii) knowledge by the accused that representation is false; (iii) making the representation in order to deceive; and (iv) mens rea of dishonest inducement. Critically, the dishonest intention must exist at the time of making the inducement, not from subsequent failure to perform. A mere breach of contract, even if causing substantial financial loss, cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is demonstrated at the beginning of the transaction. When a technology transfer agreement explicitly provides for experimental development with contingency provisions for performance guarantee tests and liquidated damages, parties have contemplated possibility of failure to achieve specifications, negating the inference of dishonest intention at inception.
On this section: Sanction requirement for prosecution of government employees - Court noted that appellants No. 2 and 3, being government employees acting in official capacity, required prior sanction before criminal prosecution which was not obtained
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Sushila Devi vs State of Rajasthan
Decided under Code of Criminal Procedure 197, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
Once a charge-sheet is filed after completion of investigation by the investigating agency in the competent court, the process of monitoring by the Supreme Court for the purpose of ensuring the investigating agency's proper performance comes to an end. Thereafter, all matters relating to the trial of the accused, including matters falling within the scope of Section 173(8) of the Code of Criminal Procedure, shall be dealt with exclusively by the competent trial court. The Supreme Court shall not continue to monitor the trial phase, as the Constitution envisages an independent and impartial tribunal (the trial court) for dispute resolution, and judicial monitoring of the trial would constitute an improper interference with the trial court's inherent jurisdiction and discretionary authority. The remedy for any error committed by the trial court lies in appeal or judicial review, not in continued Supreme Court intervention.
On this section: Sanction requirement for prosecution of public servants - discussed regarding authority to determine when sanction is necessary
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Ajoy Acharya vs State Bureau of Investigation against
Decided under Code of Criminal Procedure 197, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
When a public servant holds multiple offices and is accused of abuse of one office, sanction for prosecution is mandatory only from the authority competent to remove him from that specific office which he is alleged to have misused. If the public servant has relinquished the office allegedly abused before charge sheet is filed, no sanction is required at all, despite his continuing to hold other public offices. The requirement of sanction serves to prevent frivolous prosecutions of the specific office abused; once that office is relinquished, the protection becomes inapplicable. To require sanction from authorities controlling other unrelated offices held simultaneously would pervert the legislative intent and convert the sanction requirement into a rogue's charter enabling evasion of prosecution.
On this section: Procedural requirement for sanction before prosecution of public servants; Court interpreted in conjunction with Section 6 of PC Act
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M. Gopalakrishnan vs State by Addl. S. P. Cbi, Bs&fc Bangalore
Decided under Code of Criminal Procedure 197, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
A public servant accused of offences like cheating and criminal conspiracy does not qualify for the protection of Section 197 CrPC sanction requirement merely because of his official position. The sanction requirement applies only when: (1) the accused is a public servant removable only by or with sanction of Government, AND (2) the offence was committed while acting or purporting to act in discharge of official duties. For offences like cheating and criminal conspiracy, official status provides only an opportunity for commission, not an integral element of the offence. The question of whether sanction is required can be deferred and decided during or after trial. In the case of a nationalised bank chairman, the Reserve Bank of India (not the Central Government) has removal authority under the Banking Regulation Act, 1949, which prevails over the Nationalised Banks Scheme, 1970.
On this section: Requirement of sanction for prosecution of public servants. The Court examined whether this section applies to the appellant as a public servant removable only by the Government.
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Choudhury Parveen Sultana vs State of West Bengal
Decided under Code of Criminal Procedure 197, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
The protection afforded to public servants under Section 197 Code of Criminal Procedure does not extend to acts constituting criminal misuse or abuse of their official authority. Acts such as threatening, intimidating, and attempting to extort a complainant to withdraw a criminal complaint are not part of an investigating officer's official duties, regardless of whether they occur during the course of an investigation. Therefore, a public servant accused of such criminal misconduct is not entitled to Section 197 CrPC protection, and a Magistrate may take cognizance of offences against such public servant without prior government sanction. Each case must be examined in its own factual circumstances to determine whether the alleged acts constitute performance of official duties or represent misuse and abuse of authority.
On this section: Core provision protecting public servants from prosecution for acts done in discharge of official duties. Court held that this protection does not extend to criminal misuse or abuse of authority, even if committed during the course of official duties.
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Chandan Kumar Basu vs State of Bihar
Decided under Code of Criminal Procedure 197, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
When a public servant is prosecuted for offences such as criminal breach of trust, cheating, and forgery under Sections 406, 409, 420, 467, 468, 471 IPC, such acts cannot be considered as committed in the discharge of official duties. The official position merely provides an opportunity for commission of such offences. Consequently, sanction under Section 197 Code of Criminal Procedure is not required for prosecution of public servants for such offences, even if they fall within the definition of 'public servant'. However, the question of sanction requirement can be raised at any stage of proceedings after cognizance has been taken and may have to be determined progressively at different stages of the trial as evidence emerges.
On this section: Requirement for sanction before prosecution of public servants; Court analyzed three mandatory requirements: (a) accused is public servant, (b) removable only by/with sanction, (c) acts committed in discharge of official duty
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Chandan Kumar Basu vs State of Bihar
Decided under Code of Criminal Procedure 197, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
The requirement of sanction under Section 197 CrPC for prosecution of a public servant is not a jurisdictional prerequisite to be mechanically decided at the stage of cognizance based solely on allegations in the complaint. Rather, the question of whether all three mandatory conditions (public servant status, removability with government sanction, and nexus with official duty) are satisfied can be determined at different stages of the proceeding as evidence unfolds during investigation and trial. Specifically, regarding crimes under Sections 406, 409, 420 (fraud, cheating, criminal breach of trust), such acts cannot form any part of official duty, and official status merely provides opportunity; therefore, sanction is generally not required. However, the trial court retains the liberty to revisit and decide all issues of sanction in light of facts that emerge during trial.
On this section: Primary statute governing sanction requirement for prosecution of public servants. Court held that three mandatory requirements must be established: (1) accused is a public servant, (2) removable only with government sanction, (3) acts committed in discharge of official duties. Court distinguished between when sanction is necessary based on nature of alleged offence.
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Chandan Kumar Basu vs State of Bihar
Decided under Code of Criminal Procedure 197, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
A person accused of criminal offences involving breach of trust, forgery, and fraud cannot claim exemption from prosecution merely on the ground of being a public servant, as such acts cannot constitute discharge of official duty. However, the question of whether sanction under Section 197 CrPC is required can be determined at any stage of criminal proceedings, and should not be conclusively decided at the cognizance stage if evidence regarding the public servant status, removability condition, and official duty nexus is not fully established. The trial court should retain flexibility to revisit this question as evidence unfolds during the proceedings.
On this section: Central statutory provision requiring sanction for prosecution of public servants; establishes three mandatory conditions; allows determination at different stages of proceedings
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L. Deben Singh vs Central Bureau of Investigation (CBI)
Decided under Code of Criminal Procedure 197, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
A cognizance order taken without prosecution sanction under Section 197 CrPC for an offence allegedly committed by a public servant in discharge of official duty is void ab initio and non-existent in law from its very inception. Consequently, when such void cognizance is set aside and the case is remanded for de novo committal process with proper compliance of legal requirements including obtaining prosecution sanction, the subsequent cognizance taken by the Sessions Judge after committal does not constitute double cognizance but is the first valid cognizance in the eyes of law. Therefore, the Sessions Judge's cognizance order dated 18.10.2019 is legally valid and does not violate the principle that cognizance can be taken only once.
On this section: Mandatory requirement that no court shall take cognizance against any public servant for any offence committed during discharge of official duty without previous sanction from competent authority. The court held that this is a mandatory provision and cognizance without sanction is void ab initio.
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L. Deben Singh vs Central Bureau of Investigation (CBI)
Decided under Code of Criminal Procedure 197, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
A cognizance order taken by a court against a public servant for an offence allegedly committed during discharge of official duty without prior prosecution sanction under Section 197 CrPC is void ab initio and non-existent in the eye of law from its very inception. Consequently, when such void cognizance is set aside and the case is remanded for de novo committal process after obtaining the mandatory prosecution sanction, the subsequent cognizance taken by the competent court after proper committal does not constitute double cognizance but is the first and only valid cognizance. The principle that cognizance can be taken only once applies within the framework of valid legal proceedings, and a void cognizance order is not counted as a valid cognizance for this purpose.
On this section: Mandatory requirement of prosecution sanction before taking cognizance against public servant for offence committed during discharge of official duty. Court held that absence of sanction makes cognizance void ab initio.
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Bhera Ram Choudhary vs State of Rajasthan
Court's Decision & Legal Precedent
When an accused is charged with bailable offences, the accused possesses a statutory right to bail under Section 478 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 436 of the Criminal Procedure Code). The judicial officer has no discretion in such cases and must grant bail upon the accused offering surety or bail. The arrest of an accused in bailable offences must be justified by compelling reasons beyond mere suspicion, in accordance with the guidelines laid down in Arnesh Kumar v. State of Bihar and Joginder Kumar v. State of U.P. When the essential ingredients of the alleged offences are absent from the FIR, and the arrest is unlawful and made with malice, the High Court possesses the inherent power under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 to quash the FIR and all consequential proceedings. Furthermore, when a person is unlawfully arrested and detained with malicious intent, causing violation of fundamental rights and irreparable injury to dignity, career, and mental well-being, the person is entitled to monetary compensation as a measure of restorative justice, and such compensation should be paid personally by the individuals responsible for the wrongful action rather than by the State.
On this section: The Court noted that Section 218 BNSS (corresponding to Section 197 CrPC) provides limited protection for actions taken during lawful exercise of duty. However, this protection does not extend to situations where employees act with malice, dishonesty, or exceed the scope of their authority.
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Judgments citing this section
These may be obiter dicta or a precedent, for you to study. These are the judgments where this section is quoted.
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… The inevitable result is that the lead appeal and the connected appeal ought to fail. - 29. Mr. Raju, sensing the Court's mind, requested for liberty being granted to seek sanction under Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which has introduced the concept of deemed sanction. - 30. In view of the provisions of Section 531 of the BNSS, the Cr. PC stands repealed; yet, pending proceedings are to be continued under the 14 repealed law. We, therefore, decline Mr. Raju's prayer. …
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… The inevitable result is that the lead appeal and the connected appeal ought to fail. - 29. Mr. Raju, sensing the Court's mind, requested for liberty being granted to seek sanction under Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which has introduced the concept of deemed sanction. - 30. In view of the provisions of Section 531 of the BNSS, the Cr. PC stands repealed; yet, pending proceedings are to be continued under the 14 repealed law. We, therefore, decline Mr. Raju's prayer. …
Questions about Section 218
What have the courts held on Section 218 of the Bharatiya Nagarik Suraksha Sanhita?
D. Devaraja v. Owais Sabeer Hussain (18 Jun 2020) is the leading judgment on this section among those set out below, though it was decided under CRPC 197, which this section replaced -- the court never mentioned this Act: Successor of CrPC 197 (mapping.csv near-identical). Colour-of-office sanction teaching carries to BNSS 218. Another 15 judgments on this section are set out below, 13 of them from the Supreme Court. They run from 2009 to 2024.
How do I find court cases under Section 218 of the Bharatiya Nagarik Suraksha Sanhita?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: BNSS 218, section 218 BNSS, section 218 of the Bharatiya Nagarik Suraksha Sanhita. People searching for it also type bnss 218(3) and bnss 218(1). Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 16 reported judgments on this section are set out on this page, beginning with D. Devaraja v. Owais Sabeer Hussain (18 Jun 2020).
What should I read with Section 218 of the Bharatiya Nagarik Suraksha Sanhita, and has it changed?
Its own text turns on Bharatiya Nyaya Sanhita 200 (Punishment for non-treatment of victim), section 64 (Summons how served), section 65 (Service of summons on corporate bodies, firms, and societies), section 66 (Service when persons summoned cannot be found), and on 12 further provisions, so none of them can safely be read on its own. 2 other provisions in this corpus refer back to it. It carries forward CrPC 197 (Prosecution of Judges and public servants), so the judgments decided under that provision are the case law on this one.
When did Section 218 of the Bharatiya Nagarik Suraksha Sanhita come into force?
Section 218 of the Bharatiya Nagarik Suraksha Sanhita, cited as BNSS 218, came into force on 01 Jul 2024, having been enacted on 25 Dec 2023. It is in force as at the date shown on this page.
Other sections of this Act
- 359. Compounding of offences1355 words
- 187. Procedure when investigation cannot be completed in twenty-four hours1122 words
- 2. Definitions956 words
- 243. Trial for more than one offence930 words
- 35. When police may arrest without warrant881 words
- 480. When bail may be taken in case of non-bailable offence823 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Text as in force on 14 Oct 2026. This page is not a substitute for legal advice.