Section 197 CrPC and Section 218 BNSS: Prosecution of Judges and Public Servants
Prior government sanction is a procedural safeguard for certain judges, magistrates and public servants accused of offences connected with their official duties. The current general provision is Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), corresponding to Section 197 of the Code of Criminal Procedure, 1973 (CrPC).
What does Section 197 CrPC mean?
Section 197 CrPC restricted a criminal court from taking cognizance of certain alleged offences committed by protected public officials while acting, or purporting to act, in discharge of official duty unless the competent government first sanctioned prosecution. Cognizance means the court's judicial consideration of an alleged offence for proceeding under criminal law; it is not synonymous with conviction.
Section 218 BNSS carries forward this central safeguard. It is not blanket immunity from criminal liability: the official status of the accused and the relationship between the alleged act and official duties are both material.
When is prior sanction required?
The general protection applies where the accused is or was a judge, magistrate, or public servant not removable from office except by or with government sanction, and the alleged offence was committed while acting or purporting to act in discharge of official duty. A mere employment connection is not enough; the alleged conduct must have a reasonable nexus to official functions.
Whether sanction is necessary depends on the facts and the governing law. Acts wholly unrelated to official duty are not protected merely because the accused holds public office. The question may arise at different stages depending on the material before the court.
Who grants prosecution sanction?
| Category | Ordinarily competent authority |
|---|---|
| Officials serving in connection with Union affairs | Central Government |
| Officials serving in connection with State affairs | State Government |
| Specified State officials during an Article 356 proclamation | Central Government, as provided by the statute |
| Members of Union Armed Forces acting in official duty | Central Government |
New under Section 218 BNSS: The government is required to decide a request for sanction within 120 days of receipt. If it fails to do so, sanction is deemed to have been accorded under the statutory proviso. This time-bound deemed-sanction rule was not contained in the general text of Section 197 CrPC.
When is sanction not required?
The statutory explanation excludes the sanction requirement for specified serious offences, including identified offences concerning sexual violence, sexual harassment, trafficking, disobedience of protective legal duties and refusal of treatment. Section 218 BNSS identifies these exceptions by reference to provisions of the Bharatiya Nyaya Sanhita, 2023. For proceedings governed by the old Code, the explanation to Section 197 CrPC referred to the corresponding specified provisions of the Indian Penal Code, 1860, including Sections 166A, 166B, 354 to 354D, 370, 375, specified provisions in the 376 series and 509.
The protection is also expressly subject to the Lokpal and Lokayuktas Act, 2013. Requirements under other laws, including the Prevention of Corruption Act, 1988, must be examined separately; sanction under one enactment is not automatically a substitute for another.
Armed Forces and public-order forces
Section 197(2) CrPC and the corresponding BNSS provision require previous Central Government sanction for alleged offences by members of the Armed Forces of the Union while acting or purporting to act in discharge of official duty. The legislation also allows specified extension of protection to classes of forces maintaining public order by notification, and contains special rules relating to periods of President's Rule under Article 356.
Under the historical CrPC, subsections 197(3A) and 197(3B) addressed Central Government sanction and the validity of certain sanctions during specified Article 356 periods. These provisions remain relevant when interpreting proceedings saved under the earlier Code.
Conduct of prosecution
Under Section 197(4) CrPC, the competent government could determine who would conduct the prosecution, the manner of prosecution, the offences covered and the court for trial. The corresponding power is retained in Section 218 BNSS, subject to its statutory text.
Section 197 CrPC versus Section 218 BNSS
| Issue | CrPC Section 197 | BNSS Section 218 |
|---|---|---|
| Legal status | Repealed, subject to savings | In force from 1 July 2024 |
| Subject | Prosecution of judges and public servants | Same core subject |
| Sanction decision period | No general 120-day deemed-sanction proviso | 120 days; deemed sanction if no decision |
| Specified offence exceptions | References to IPC offences | Updated references to BNS offences |
Section 531 BNSS (repeal and savings) preserves the CrPC procedure for certain appeals, applications, trials, inquiries and investigations pending immediately before commencement. It also addresses existing notifications, orders and sanctions. Therefore, do not assume that every matter involving conduct before July 2024 automatically follows the old procedural Code; examine the precise saving clause and procedural stage.
State amendments: Assam, Tripura and Arunachal Pradesh
Tripura - Act 6 of 2003
The historical insertion of Section 197(1A) treated certain public servants appointed, transferred or posted by the State Government to local authorities, government companies, corporations and public-sector undertakings as employed in connection with State affairs for purposes of sanction. Its present application requires verification against BNSS transition provisions and current State legislation.
Assam - Act 3 of 1984
The Assam amendment historically broadened the official-duty connection and introduced a reference-and-certificate procedure for specified public-order personnel. Under the amended provisions, the court could postpone process or stay proceedings and refer the question to the State Government. A certificate could lead to dismissal or discharge, with an appeal to the High Court within 60 days, subject to condonation for sufficient cause. The current operation of this historical procedure must be checked against applicable State law and the BNSS.
Arunachal Pradesh - Act 3 of 2019
The historical State amendment modified the list of IPC offences in the explanation to Section 197, including additional specified sexual-offence provisions. Its effect on a present-day case requires examination of the operative State amendments and the corresponding BNSS and BNS provisions.
State amendments above are preserved as historical legal information from the original article, not represented as independently confirmed amendments to Section 218 BNSS.
Practical questions
Does every government employee require sanction?
No. The statutory category of protected official, the conditions of removal and the official-duty connection must be satisfied, subject to express exceptions.
Does sanction prove that the accused is guilty?
No. Sanction permits the court to proceed where the statutory requirement applies; criminal liability must still be established in accordance with law.
Can a court consider sanction after proceedings begin?
The necessity and timing of sanction can depend on when the official-duty connection becomes apparent. Courts examine the facts and applicable binding precedents; a case-specific assessment is essential.
Official legislation and references
Read the Bharatiya Nagarik Suraksha Sanhita, 2023 (India Code), the official BNSS text (BPR&D), the Code of Criminal Procedure, 1973 (India Code) and the government's new criminal laws resource page. Consult the official texts, current notifications and judicial decisions before relying on a provision in litigation.
General legal information only. Statutory amendments, State notifications and judicial interpretations may affect individual cases.