Section 217 of BNSS, 2023 — Prosecution for Offences Against State and for Criminal Conspiracy to Commit Such Offence

Introduction

Section 217 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) lays down a special procedural requirement for prosecution of certain offences against the State and criminal conspiracy to commit such offences.

The provision requires previous sanction of the Central Government or the State Government before a Court can take cognizance of the specified offences.

It is intended to ensure that prosecutions involving serious offences against the State are initiated only after the appropriate Government has considered the matter.

Object and Purpose

The primary purpose of Section 217 is to regulate the initiation of prosecution for offences that directly concern the security and sovereignty of the State or other serious offences against the State.

The provision:

• requires prior governmental sanction in specified cases;
• prevents frivolous or politically motivated prosecutions;
• provides an administrative screening mechanism before cognizance;
• distinguishes between offences requiring Central Government sanction and those requiring State Government sanction;
• extends the requirement to certain criminal conspiracies connected with such offences.

Offences Covered

Section 217 applies to specified offences under the Bharatiya Nyaya Sanhita, 2023 (BNS), particularly offences falling within the provisions relating to offences against the State.

It also covers criminal conspiracy to commit such offences.

The section is therefore concerned not merely with the completed substantive offence but, in specified circumstances, also with a conspiracy to commit an offence against the State.

Previous Sanction Requirement

The central feature of Section 217 is the requirement of previous sanction.

A Court cannot take cognizance of the specified offences unless the required sanction has been obtained from the appropriate Government.

Depending upon the offence and circumstances, the sanctioning authority may be:

• the Central Government, or
• the State Government.

The requirement applies before the Court takes cognizance.

Central Government and State Government

Section 217 differentiates between offences based on the governmental authority whose sanction is required.

Central Government

For specified offences concerning matters within the Central Government’s authority, previous sanction of the Central Government is required.

State Government

For specified offences falling within the State Government’s jurisdiction, previous sanction of the State Government is required.

The applicable sanctioning authority therefore depends upon the particular offence and statutory conditions.

Criminal Conspiracy

Section 217 also applies to criminal conspiracy to commit an offence covered by the provision.

This means that where the law requires previous sanction for prosecution of the substantive offence against the State, the statutory safeguard may also apply to a conspiracy to commit that offence.

The purpose is to ensure that the sanction requirement cannot simply be avoided by framing the prosecution as one for conspiracy.

Procedure

The general procedure under Section 217 can be understood as follows:

1. An offence covered by the provision is alleged to have been committed.
2. The investigating or prosecuting authorities proceed according to the applicable criminal procedure.
3. The matter is placed before the appropriate Government where previous sanction is required.
4. The Central Government or State Government considers whether sanction should be granted.
5. If the required sanction is granted, the competent Court may take cognizance in accordance with the BNSS.
6. The criminal proceedings then continue under the applicable procedure.

Government’s Role

The Government’s role under Section 217 is not to conduct the criminal trial.

Its role is to determine whether the prosecution of the specified offence should be permitted to proceed to the stage of judicial cognizance.

The ultimate determination of guilt remains with the competent criminal Court.

Sanction as a Procedural Safeguard

The requirement of sanction operates as a procedural safeguard.

It does not mean that the accused is declared innocent or that the offence is legally extinguished if sanction is not granted.

Rather, the sanction requirement restricts the Court’s ability to take cognizance until the statutory precondition is satisfied.

Cognizance and Sanction

The distinction between sanction and cognizance is important.

Sanction

Sanction is the prior governmental approval required by Section 217 for prosecution of specified offences.

Cognizance

Cognizance is the judicial act by which the Court applies its mind to the alleged offence for the purpose of proceeding under criminal law.

Therefore:

Government sanction → statutory precondition → Court’s cognizance

Where sanction is mandatory and has not been obtained, the Court cannot ordinarily take cognizance of the specified offence.

Scope of the Provision

Section 217 does not impose a sanction requirement for every offence against the State or every criminal conspiracy.

The requirement applies to the offences and circumstances specifically identified by the section.

Therefore, the exact nature of the alleged offence must be examined before determining whether previous sanction is necessary.

Important Distinctions

Section 217 vs Section 215

Section 215 deals with prosecution for specified offences involving public servants, public justice and documents given in evidence.

Section 217 concerns specified offences against the State and criminal conspiracy to commit such offences.

The two provisions therefore deal with different categories of offences and different sanction or complaint requirements.

Section 217 vs Section 216

Section 216 permits a witness or any other person to file a complaint concerning an offence under Section 232 BNS.

Section 217 instead deals with previous governmental sanction for prosecution of specified offences against the State.

Sanction vs Complaint

A complaint is an accusation made to a Magistrate in accordance with criminal procedure.

A sanction under Section 217 is prior governmental approval required before the Court can take cognizance of the specified offence.

They are distinct procedural concepts.

BNSS and CrPC

Section 217 of BNSS substantially corresponds to Section 196 of the CrPC, 1973.

The core principle has been retained: specified offences against the State and certain conspiracies connected with such offences require previous sanction of the appropriate Government before cognizance can be taken.

The BNSS therefore continues the earlier procedural safeguard.

Relationship with BNS

Section 217 BNSS is a procedural provision and should be read alongside the relevant substantive offences under the BNS.

The BNS identifies and defines the substantive offences.

The BNSS determines the procedural conditions under which prosecution for those offences may proceed.

Thus:

• BNS: substantive offence.
• BNSS Section 217: procedural sanction requirement.

Relationship with Section 210

Section 210 generally deals with cognizance of offences by Magistrates.

Section 217 imposes a specific restriction in relation to certain offences.

Therefore, even where a Magistrate ordinarily has power to take cognizance, the special requirement of previous sanction under Section 217 must be satisfied where applicable.

Relationship with Court of Session

Certain serious offences against the State may be triable by a Court of Session.

Section 217 is concerned with the precondition for cognizance, while the provisions governing Sessions jurisdiction and trial determine the subsequent judicial process.

The requirement of previous sanction therefore operates independently of which particular criminal Court ultimately conducts the trial.

Example

Suppose a person is accused of committing an offence against the State that falls within the offences specified under Section 217.

Before the competent Court can take cognizance, the required previous sanction must be obtained from the appropriate Government.

If the statutory requirement is satisfied, the Court may proceed to take cognizance and deal with the case according to the BNSS.

If the required sanction has not been obtained, cognizance cannot ordinarily be taken where sanction is mandatory.

Common Confusions

Does Section 217 apply to every offence against the State?

No.

It applies to the offences and circumstances specifically covered by the provision.

Does sanction mean the accused is guilty?

No.

Sanction only permits the prosecution to proceed to the stage of cognizance. Guilt must be determined by the competent Court after trial.

Can the Court take cognizance without mandatory sanction?

No.

Where previous sanction is expressly required by Section 217, the statutory precondition must be satisfied before cognizance can be taken.

Is sanction the same as permission to convict?

No.

Sanction is only a procedural precondition for prosecution. It does not determine the outcome of the case.

Does Section 217 cover criminal conspiracy?

Yes.

The provision extends to specified criminal conspiracies to commit offences covered by the section.

Who grants sanction?

Depending on the offence and the applicable statutory conditions, sanction is granted by the Central Government or the State Government.

Key Features

• It is a procedural safeguard.
• It applies to specified offences against the State.
• It also covers specified criminal conspiracies to commit such offences.
• Previous sanction is required before cognizance in the cases covered by the provision.
• The sanctioning authority may be the Central Government or State Government.
• Sanction does not determine guilt.
• It corresponds substantially to Section 196 CrPC.

Topic at a Glance

• Topic: Prosecution for offences against State and criminal conspiracy to commit such offence
• BNSS Section: Section 217
• Main requirement: Previous sanction before cognizance
• Sanctioning authority: Central Government or State Government, as applicable
• Covers: Specified offences against the State and specified criminal conspiracies
• Nature: Procedural safeguard
• CrPC counterpart: Section 196 CrPC
• Core principle: Certain prosecutions concerning offences against the State require prior governmental sanction

Quick Revision

• Section 217 BNSS deals with prosecution for specified offences against the State.
• It also covers specified criminal conspiracies to commit such offences.
• Previous sanction of the appropriate Government is required before cognizance where the provision applies.
• The sanction may be granted by the Central Government or State Government, depending on the case.
• Sanction is a procedural precondition, not a finding of guilt.
• The Court retains the ultimate authority to determine guilt through judicial proceedings.
• Section 217 should be read with the relevant substantive provisions of the BNS.
• Section 217 substantially corresponds to Section 196 CrPC.

ALSO READ: Section 216 – Procedure for witnesses in case of threatening, etc.

Conclusion

Section 217 of BNSS establishes a prior governmental sanction requirement for prosecution of specified offences against the State and criminal conspiracies to commit such offences. The provision acts as a procedural safeguard by requiring the appropriate Government to consider the proposed prosecution before the Court exercises its power to take cognizance. At the same time, the sanction does not determine the guilt or innocence of the accused; that question remains exclusively for the competent criminal Court.