Section 218 – Bharatiya Nagarik Suraksha Sanhita(BNSS) – Prosecution Of Judges And Public Servants.

Bharatiya Nagarik Suraksha Sanhita (BNSS) – Section 218

Code: Bharatiya Nagarik Suraksha Sanhita (BNSS) – Section 218

Explanation: This section deals with the requirement of
prior sanction from the government before a court can take cognizance of an
offence alleged to have been committed by certain public officials while
acting in their official capacity. It aims to protect public servants from
frivolous or malicious prosecutions, ensuring they can perform their duties
without fear of undue interference.

Key Points of Section 218:

• Applies to: Judges, Magistrates, and public servants who
  are not removable from office except by or with the sanction of the
  government.
• Offence: The offence must be alleged to have been
  committed while acting or purporting to act in the discharge of official
  duty.
• Sanction Required: No court can take cognizance of the
  offence without prior sanction from the relevant government.
• Exceptions:
  • The Lokpal and Lokayuktas Act, 2013 may provide for different
    sanction requirements.
  • Certain specific offences under the Bharatiya Nyaya Sanhita, 2023,
    do not require sanction.
• Armed Forces: Prior sanction from the Central
  Government is required for offences committed by members of the Armed
  Forces while on duty.
• State Forces: The State Government may extend the
  sanction requirement to members of State forces charged with public
  order maintenance.
• Proclamation under Article 356: During a period when
  Article 356 of the Constitution is in force, the Central Government
  sanction is required for offences committed by State forces even if
  they are normally under the State Government’s jurisdiction.
• Government’s Discretion: The government can determine
  the mode of prosecution, the person conducting it, and the court
  where the trial will be held.

Illustration:

A police officer arrests a person for allegedly violating a curfew order.
The arrested person claims the officer used excessive force and files a
complaint alleging assault. Since the police officer was acting in his
official duty, the court would require prior sanction from the State
Government before taking cognizance of the alleged assault.

Common Questions and Answers:

• Q: Who is required to obtain prior sanction?
  
  A: Judges, Magistrates, and public servants who are not
  removable from office except by or with the sanction of the government.
• Q: What if the alleged offence was committed while off duty?
  
  A: Prior sanction is not required if the offence was
  committed outside the scope of official duty.
• Q: What if the government refuses to grant sanction?
  
  A: The court cannot take cognizance of the offence. The
  person alleging the offence may have recourse to other legal remedies.