Sanction For Prosecution Of Public Servants – The Shift In The BNSS

Section 197(1) of the Cr.P.C

The principle of State immunity is recognised under Section 197(1) of the Code of Criminal Procedure, 1973 (for short 'the Code'). It provides that, 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 of the Government concerned.

There are two conditions for the applicability of Section 197(1) of the Code. The first condition is that the accused must be a public servant removable from his office by or with the sanction of the Government. The second condition is that the offence alleged against the public servant should have been committed by him while acting or purporting to act in the discharge of his official duty.²

Section 197 of the Code does not extend its protective cover to every act or omission of a public servant while in service. It is restricted to only those acts or omissions which are done by public servants in the discharge of official duties.³

When a complaint filed under Section 200 of the Code clearly discloses that the act committed by the public servant was in the discharge of his official duty, the Magistrate cannot take cognizance upon such complaint, without the complainant first obtaining sanction for prosecution. In such a case, the very initiation of the complaint would be non-est in the absence of prior order of sanction passed under Section 197 of the Code.⁴

Recently, in the case of Om Prakash Yadav v. Niranjan Kumar Upadhyay,⁵ after a survey of the important decisions covering Section 197 of the Code, the Supreme Court had occasion to summarize the principles regarding grant of sanction under that provision.

Lethargy or inaction

Very often, even in genuine cases, the requirement of sanction stands as a barrier to prosecution against public servants. It is very common that the Government do not act, for months and years, on requests made by the investigating agency or private persons for granting sanction for prosecution against public servants. Sanction would neither be granted nor refused and the request for granting sanction made to the Government would be kept dormant.

In the case of Vineet Narain v. Union of India,⁶ dealing with cases investigated by the Central Bureau of Investigation, the Supreme Court had prescribed a time limit of three months for grant of sanction for prosecution with an additional period of one month where consultation was required with the law officers. In Subramanian Swamy v. Manmohan Singh,⁷ dealing with sanction for prosecution under Section 19(1) of the Prevention of Corruption Act, the Supreme Court had suggested that the Parliament may consider prescribing clear time limits for the grant of sanction and to provide for deemed sanction, if no decision is taken by the end of such period.

The second proviso to Section 218(1) of the BNSS

Very recently, in the case of Suneeti Toteja v. State of U.P,⁸ the Supreme Court has observed that, Section 197 of the Code does not envisage a concept of deemed sanction. With reference to the case of Vineet Narain, the Supreme Court noticed that, while it did mention that the time limit for grant of sanction for prosecution must be strictly adhered to, there is no observation to the effect that lack of grant of sanction for prosecution within the time limit would amount to deemed sanction for prosecution. The Apex Court further observed that the judgment in Subramanian Swamy does not in any manner lay down the notion of deemed sanction. The Apex Court noticed that, in the said judgment, dealing primarily with the Prevention of Corruption Act and the sanction for prosecution under that statute, the Court had given some guidelines for the consideration of the Parliament for incorporating necessary provisions recognizing the concept of deemed sanction, but such a proposition has not yet been statutorily incorporated by the Parliament.

In this context, one may take notice that Section 197 of the Code now stands replaced by Section 218 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (for short 'the BNSS'). There is no material change in Section 218(1) of the BNSS, when it is compared to Section 197(1) of the Code. However, a new provision of crucial significance has been introduced as the second proviso to Section 218(1) of the BNSS, incorporating the concept of deemed sanction.

The second proviso to Section 218(1) of the BNSS states that, the Government concerned 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.

The impact

The second proviso to Section 218(1) of the BNSS creates a fiction as to the existence of sanction for prosecution against the public servant, when no decision is taken by the Government within a period of 120 days from the date of receipt of the request made for granting such sanction. In other words, when no decision is taken by the Government regarding grant or refusal of sanction, the bar under Section 218(1) of the BNSS would disappear on the expiry of a period of 120 days from the date of receipt, by the Government, of the request made to it for granting sanction. Thereafter, the court can take cognizance of the offence against the public servant, on the premise that there exists the necessary sanction for prosecution. The accused public servant would be then estopped from raising a contention that cognizance of the offence taken is invalid or non-est for want of sanction for prosecution against him.

Conclusion

The provision regarding deemed sanction for prosecution has been introduced in the statute with a view to prevent inertia and inaction on the part of the Government in dealing with requests for granting sanction for prosecution of public servants. The provision is intended to induce prompt action by the Government on such requests.

No doubt, the provision regarding deemed sanction would cause serious prejudice to the accused public servant. Application of mind by the competent authority to the materials placed before it is an essential requirement of a valid order granting sanction for prosecution. In the case of deemed sanction, a legal fiction as to the existence of sanction is created on the expiry of the period stipulated in the provision. Therefore, there is no question of any application of mind by the authority concerned. Thus the accused public servant is really deprived of a protection or immunity granted under the law. This may lead to a situation where an honest public servant may have to face prosecution merely on account of the inaction on the part of the Government on the request received for granting sanction. However, there is another side to this issue. The public servants have been now granted new privileges and protections under Section 175(4) and also under Section 223(2) of the BNSS.

At the same time, the new provision regarding deemed sanction is really a boon to a private citizen who files complaint against a public servant. Such a person, hitherto had to run from pillar to post to move the Government to take a decision on the request made by him for granting sanction for prosecution of a public servant. Now, he has only to wait for a period of 120 days after making such request to the Government.

Experience shows that, in most of the cases, the Government adopts a lethargic attitude or approach on requests made to it for granting sanction for prosecution against public servants. Considering this fact, it can be found that the introduction of the provision regarding deemed sanction is a welcome step taken by the Legislature in the right direction.

Author is Former Judge, High Court of Kerala. Views Are Personal. 

1. Parkash Singh Badal v. State of Punjab: AIR 2007 SC 1274.
2. Directorate of Enforcement v. Bibhu Prasad Acharya: 2024 SCC OnLine SC 3181: (2025) 1 SCC 404.
3. Shadakshari v. State of Karnataka: AIR 2024 SC 590.
4. Gurmeet Kaur v. Devender Gupta: 2024 SCC OnLine SC 3761: 2024 INSC 967.
5. 2024 SCC OnLine SC 3726.
6. AIR 1998 SC 889.
7. AIR 2012 SC 1185.
8. 2025 LiveLaw (SC) 249.