Section 218 of BNSS, 2023 — Prosecution of Judges and Public Servants

Introduction

Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides a procedural safeguard for Judges, Magistrates and certain public servants in relation to acts done or purported to be done by them while acting in the discharge of their official duty.

The provision requires previous sanction of the appropriate Government before a Court can take cognizance of specified offences alleged to have been committed by such public servants in connection with their official functions.

The purpose is to protect public officials from vexatious or frivolous criminal proceedings arising from bona fide discharge of official duties, while allowing prosecution where the required governmental sanction is granted.

Object and Purpose

The main purposes of Section 218 are:

• to protect Judges, Magistrates and specified public servants from frivolous prosecution;
• to ensure that criminal proceedings arising from official acts are scrutinised before cognizance is taken;
• to prevent harassment of public servants for acts performed in the course of official duty;
• to balance official protection with accountability by permitting prosecution where the competent Government grants sanction.

The provision is therefore a procedural safeguard, not an immunity from criminal liability.

Who Is Covered?

Section 218 applies to specified categories of public officials, including:

• Judges;
• Magistrates;
• public servants who are not removable from office except by or with the sanction of the Government; and
• other public servants falling within the categories specified by the section.

The protection is connected with acts done or purported to be done while acting in the discharge of official duty.

Requirement of Previous Sanction

The central requirement under Section 218 is previous sanction.

Where the statutory conditions are satisfied, a Court cannot take cognizance of the specified offence against the concerned public servant unless the appropriate Government has first granted sanction.

The sanctioning authority depends upon the status of the public servant and the Government competent to remove the person from office.

Central Government and State Government

The section distinguishes between situations involving the Central Government and the State Government.

Central Government

Where the concerned public servant is employed in connection with the affairs of the Union and falls within the prescribed category, previous sanction of the Central Government may be required.

State Government

Where the concerned public servant is employed in connection with the affairs of a State and falls within the prescribed category, previous sanction of the State Government may be required.

The precise sanctioning authority must be determined according to the statutory conditions applicable to the particular public servant.

Acts Done in Discharge of Official Duty

This is one of the most important requirements of Section 218.

The protection is not available merely because the accused happens to be a public servant.

The alleged offence must have a connection with an act done or purported to be done in the discharge of official duty.

Therefore, the relevant question is whether the alleged act has a reasonable connection with the official functions of the public servant.

Official Act vs Private Act

Official Act

If the alleged act was performed while exercising or purporting to exercise official functions, the protection under Section 218 may become relevant.

Private Act

If the alleged conduct is entirely unrelated to official duties, the statutory protection ordinarily does not apply merely because the accused holds public office.

Thus, status alone is not sufficient. The connection between the alleged act and official duty is crucial.

Procedure Under Section 218

The general process can be understood as follows:

1. A public servant covered by Section 218 is alleged to have committed an offence.
2. The alleged act must have been done or purported to have been done while acting in the discharge of official duty.
3. The competent authority considers whether prosecution should be sanctioned.
4. Where previous sanction is required, the appropriate Government grants or refuses sanction.
5. After the required sanction is obtained, the competent Court may take cognizance.
6. The criminal proceedings then continue according to the BNSS.

Time Limit for Government Decision

Section 218 also provides a statutory framework concerning the period within which the Government is expected to make a decision on a request for sanction.

The provision seeks to prevent the sanction process from becoming an indefinite barrier to prosecution.

The statutory time requirement should therefore be considered when examining whether sanction has been properly dealt with in a particular case.

Protection Is Not Absolute

Section 218 does not provide blanket immunity to Judges or public servants.

The protection operates only when the conditions specified by the section are satisfied.

A public servant cannot claim protection merely by stating that the act occurred while holding public office.

The alleged conduct must have the required connection with the discharge of official duty.

Sanction and Cognizance

The distinction between sanction and cognizance is important.

Sanction

Sanction is the prior approval of the competent Government permitting prosecution where Section 218 applies.

Cognizance

Cognizance is the judicial application of mind by the Court to the alleged offence for the purpose of proceeding under criminal law.

Therefore:

Official act + covered public servant + applicable offence → previous sanction → cognizance

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

Important Distinctions

Section 218 vs Section 217

Section 217 deals with prosecution for specified offences against the State and criminal conspiracy to commit such offences.

Section 218 deals with prosecution of Judges, Magistrates and specified public servants for acts connected with official duty.

Section 218 vs Section 215

Section 215 concerns prosecution for specified offences relating to public servants, public justice and documents given in evidence.

Section 218 focuses on the status of the accused as a Judge, Magistrate or specified public servant and the connection of the alleged act with official duty.

Sanction vs Immunity

Sanction is a procedural requirement.

It does not mean that the public servant is immune from criminal liability.

Official Duty vs Public Office

Holding public office alone does not automatically attract Section 218.

The alleged act must have the required connection with official duty.

BNSS and CrPC

Section 218 of BNSS substantially corresponds to Section 197 of the Code of Criminal Procedure, 1973.

The basic principle has been retained: certain Judges, Magistrates and public servants receive a procedural safeguard against prosecution for acts connected with the discharge of official duties.

The BNSS provision also continues the requirement of previous governmental sanction before cognizance in cases falling within its scope.

Relationship with Section 210

Section 210 generally deals with cognizance of offences by Magistrates.

Section 218 places a specific limitation on that general power.

Thus, even if a Magistrate ordinarily possesses jurisdiction to take cognizance, the special sanction requirement under Section 218 must be satisfied where the provision applies.

Relationship with BNS

The BNS contains the substantive offences for which criminal liability may arise.

Section 218 BNSS does not create a separate offence.

Instead, it establishes a procedural safeguard before prosecution of specified public servants for acts connected with official duties.

Example

Suppose a Magistrate takes an official decision while exercising judicial functions, and a criminal allegation is subsequently made against the Magistrate concerning an act connected with that official function.

If the alleged offence falls within Section 218 and the statutory conditions are satisfied, the competent Court cannot take cognizance without the required previous sanction.

However, if the alleged conduct is entirely unrelated to the Magistrate’s official functions, Section 218 may not provide protection merely because the accused is a Magistrate.

Common Confusions

Does Section 218 protect every public servant from prosecution?

No.

Only the categories of public servants covered by the section receive the protection, and the alleged act must have the required connection with official duty.

Does sanction mean that prosecution can never happen?

No.

Sanction is a prerequisite where Section 218 applies. Once the required sanction is granted, prosecution may proceed according to law.

Can a public servant claim protection for purely private conduct?

Ordinarily, no.

The protection is connected with acts done or purported to be done in the discharge of official duty.

Is Section 218 a finding that the official acted lawfully?

No.

The existence of sanction does not determine whether the act was lawful or whether the accused is guilty.

Can the Court take cognizance without sanction?

Where previous sanction is mandatory under Section 218, no.

The statutory precondition must first be satisfied.

Key Features

• Applies to specified Judges, Magistrates and public servants.
• Concerns acts done or purported to be done in the discharge of official duty.
• Requires previous sanction where the statutory conditions are satisfied.
• Sanction is granted by the appropriate Government.
• It is a procedural safeguard, not absolute immunity.
• It limits the Court’s power to take cognizance until the sanction requirement is satisfied.
• It substantially corresponds to Section 197 CrPC.

Topic at a Glance

• Topic: Prosecution of Judges and public servants
• BNSS Section: Section 218
• Main safeguard: Previous sanction before cognizance
• Persons covered: Specified Judges, Magistrates and public servants
• Essential connection: Act done or purported to be done in discharge of official duty
• Sanctioning authority: Appropriate Government
• Nature: Procedural protection
• CrPC counterpart: Section 197 CrPC
• Core principle: Official acts of specified public servants cannot ordinarily be prosecuted without the required previous sanction

Quick Revision

• Section 218 BNSS deals with prosecution of Judges, Magistrates and specified public servants.
• It applies to acts done or purported to be done in the discharge of official duty.
• Previous sanction of the appropriate Government is required where the provision applies.
• It is a procedural safeguard, not blanket immunity.
• Holding public office alone is insufficient; the alleged act must have the required connection with official duty.
• Private acts ordinarily do not receive protection merely because the accused is a public servant.
• Section 218 substantially corresponds to Section 197 CrPC.
• The provision operates as a restriction on taking cognizance of the specified offences.

ALSO READ: Section 217 – Prosecution for offences against State and for criminal conspiracy to commit such offence

Conclusion

Section 218 of BNSS protects specified Judges, Magistrates and public servants from being subjected to criminal prosecution for acts connected with the discharge of their official duties without the required previous sanction of the appropriate Government. The provision seeks to strike a balance between protecting public officials from vexatious litigation and preserving accountability for unlawful conduct. It does not grant absolute immunity; where the statutory conditions are satisfied and the necessary sanction is obtained, the public servant may be prosecuted in accordance with law.