Sanction for Prosecution of Public Servants — Section 218 BNSS Explained

This article is for educational and legal awareness purposes only. It does not constitute legal advice or solicitation. Please consult a qualified advocate for advice on specific legal matters.

Overview

Criminal law in India places one significant check on prosecuting a judge, magistrate, or public servant for something done while discharging official duty: before a criminal court can even take cognizance of the offence, the appropriate government must first grant sanction. This is not a technicality that can be waived lightly — it is a jurisdictional pre-condition. Without valid sanction, a court has no authority to proceed at all. This article explains the sanction requirement as it now stands under Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the successor provision to Section 197 of the Code of Criminal Procedure, 1973, and what happens when a prosecution proceeds without it.

Statutory Framework — Section 218 BNSS

Section 218 BNSS is titled “Prosecution of Judges and Public servants.” Its sub-section (1) bars a court from taking cognizance of an offence alleged to have been committed by a judge, a Magistrate, or a public servant “not removable from his office save by or with the sanction of the Government,” while such person was acting or purporting to act in the discharge of official duty, except with the previous sanction of the appropriate government. Where the accused is employed in connection with the affairs of the Union, sanction lies with the Central Government; where employed in connection with the affairs of a State, sanction lies with the State Government — subject to the specific carve-outs applicable to matters covered by the Lokpal and Lokayuktas Act, 2013.

Two features distinguish Section 218 from the older Section 197 CrPC and are worth flagging separately:

A statutory deadline for the sanctioning authority. The government must take a decision on a sanction request within 120 days of receiving it. If it fails to do so within that period, sanction is deemed to have been granted on expiry of the 120 days. This is a new, time-bound mechanism absent from the 1973 Code, aimed at preventing indefinite delay by the executive in deciding sanction applications.
A statutory exclusion for specified offences. No sanction is required at all where the accusation involves certain offences under the Bharatiya Nyaya Sanhita, 2023 — mostly sexual-offence provisions of that Sanhita (such as those dealing with rape and sexual harassment), together with a few others, including Section 143 (trafficking of persons), Section 199 (public servant disobeying direction under law) and Section 200 (non-treatment of a victim). For these listed offences, no sanction is required before a court takes cognizance.

Sub-section (2) extends a parallel, Central-Government-only sanction requirement to members of the Armed Forces of the Union who are accused of an offence while acting or purporting to act in the discharge of their official duty. Sub-section (3) allows a State Government, by notification, to extend this Armed-Forces-style protection to members of a force charged with the maintenance of public order that is raised or maintained by that State. Sub-section (4) makes Central Government sanction mandatory — irrespective of any State notification — during the operation of a Proclamation of Emergency under Article 356 of the Constitution of India, for offences committed by members of a force charged with maintenance of public order in that State. Sub-section (5) empowers the concerned government, when according sanction, to determine the person by whom, the manner in which, and the offence(s) or offences in respect of which the prosecution is to be conducted, and may specify the court before which the trial is to be held.

Who Is Protected, and For What

The protection is not a blanket shield for every act of a public servant. Two conditions must both be satisfied:

The person must be a judge, Magistrate, or a public servant who is not removable from office save by or with the sanction of the government (that is, holding a post with a statutory or constitutional protection against arbitrary removal).
The act complained of must have been done, or purportedly done, in the discharge of official duty.

The second condition is the one most frequently litigated. The protection does not extend to every act a public servant happens to commit while on duty — it extends to acts that have a reasonable and direct nexus with the official duty being performed, even if the act itself was in excess of, or an abuse of, that duty. An act done for purely private reasons, or one having no connection with the official function at all, falls outside the protection even if the accused happened to be a public servant at the time.

Key Case Law — When the Sanction Question Can Be Raised

The leading authority on the procedural timing of the sanction question remains Matajog Dobey v. H.C. Bhari (Supreme Court of India, 1956 AIR 44, decided 31 October 1955). The Court rejected the argument that the need for sanction must be conclusively settled at the very threshold, before the trial can begin. It held that “the question may arise at any stage of the proceedings,” and that facts bearing on whether the accused’s act was done in discharge of official duty “may have to be determined from stage to stage” — including facts that come to light only during investigation or even in the course of prosecution evidence at trial. In other words, the absence of an initial sanction plea, or an initial view that no sanction was needed, does not foreclose the question; if it later emerges that the act was official in character, the requirement of sanction — and its absence — can still be fatal to the prosecution at that later stage.

Consequences of Proceeding Without Sanction

Section 218(1) is framed in mandatory, negative language: “no Court shall take cognizance of an offence” without previous sanction where the section applies. Because sanction is thus made a statutory pre-condition to the court’s jurisdiction to take cognizance, cognizance taken in its absence is not a mere irregularity — it is an act without the legal authority to do it. A prosecution launched, or continued to trial, without the sanction that the section requires is liable to be quashed or set aside on that ground, and the defect can be raised by an accused at any stage of the case, consistent with the flexible approach in Matajog Dobey. This is precisely why the question of whether the alleged act was done “in the discharge of official duty” is treated with such care by investigating agencies and prosecutors before a chargesheet naming a protected public servant is filed.

Practical Points

Identify the right government. Whether sanction must come from the Union or a State depends on whose affairs the public servant is connected with — getting this wrong can itself be a ground of challenge.
The 120-day clock cuts both ways. A pending sanction request does not permit indefinite executive silence; once 120 days elapse without a decision, sanction is deemed granted, and the prosecution may proceed.
Sexual offences are outside the sanction net. Where the alleged conduct falls within the specified Bharatiya Nyaya Sanhita, 2023 provisions carved out under Section 218(1), no sanction is required regardless of the accused’s office.
“Official duty” is not the same as “on duty.” The protection turns on a reasonable connection between the act and the official function, not merely on the fact that the accused was a public servant at the relevant time.
The plea can surface late. Because the necessity for sanction may become apparent only as the facts unfold, an accused is not barred from raising it merely because it was not raised at the first opportunity.

Takeaway

Section 218 BNSS carries forward the long-settled policy of shielding judges, Magistrates, and protected public servants from being harassed with criminal prosecution for genuine acts of official duty, while adding a firm 120-day timeline to stop the sanction process itself from being used to stall prosecutions indefinitely. The requirement is jurisdictional, not procedural window-dressing — a court that takes cognizance without the sanction the section demands has acted without authority to do so, and, per the Supreme Court’s approach in Matajog Dobey, that defect can be raised at any stage once the official character of the act becomes apparent.

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