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

Code:

(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.

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.