Bharatiya Nagarik Suraksha Sanhita, 2023
Section 218
Prosecution of Judges and public servants
(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.
Why this exists
This provision descends from Section 197 of the old Code of Criminal Procedure, which was designed to protect honest public officials, judges, and soldiers from being harassed by vexatious or politically motivated criminal complaints for actions taken in good faith while performing official duties. The idea is to let officials do their jobs — including tough or unpopular ones — without constant fear of retaliatory prosecution. At the same time, over decades courts and Parliament recognised that this shield was sometimes misused to indefinitely delay or block genuine prosecutions (including corruption cases), so safeguards like the 120-day deadline for deciding sanction requests were added, along with a carve-out removing the sanction requirement altogether for certain serious offences such as sexual offences, so that the protection cannot be used to shield such conduct.
How courts read it
Under the predecessor CrPC Section 197, the Supreme Court in Matajog Dobey v. H.C. Bhari (1955) held that the crucial test is whether the act complained of has a reasonable connection with the discharge of official duty, not merely whether it occurred during official employment. In P.V. Narasimha Rao v. State (1998) and later Prakash Singh Badal v. State of Punjab (2007), courts clarified that sanction is required only for acts reasonably linked to official duty, not for criminal acts merely committed 'under cover of' office. The 120-day deemed-sanction rule appearing here was first laid down by the Supreme Court in Subramanian Swamy v. Manmohan Singh (2012) to stop governments from sitting indefinitely on sanction requests to shield the accused, and Parliament has now written this timeline directly into the statute.
Common misconceptions
- Myth: Government sanction means public servants can never be prosecuted for crimes committed on duty.
Fact: Sanction is only a procedural precondition before a court can take cognizance; it does not grant immunity from prosecution, and courts have held it applies only when there is a reasonable connection between the act and official duty, not to abuse of office generally. - Myth: The government can delay a sanction request forever to protect an accused official.
Fact: The law now requires a decision within 120 days; if the government fails to decide, sanction is deemed granted automatically, closing that loophole. - Myth: All public servants need sanction for all offences.
Fact: Sanction is not required for public servants accused of certain serious offences listed in the third proviso, such as specific sexual offences under the Bharatiya Nyaya Sanhita, 2023.