Section 218 BNSS: Prosecution of Judges and Public Servants
Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 governs when previous sanction is required before a Court can take cognizance of certain offences alleged against Judges, Magistrates, specified public servants and members of the Armed Forces or public-order forces acting or purporting to act in discharge of official duty.
Text of Section 218 BNSS
218. (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-
(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.
Meaning and Scope of Section 218
Section 218 creates a protection at the stage of cognizance where the alleged offence is connected with the discharge, or purported discharge, of official duty by the categories of persons specified in the section. Where the statutory conditions are met, the Court cannot take cognizance unless the competent Government has granted previous sanction, subject to the express statutory exceptions.
The section does not create immunity from criminal liability. Instead, it regulates the procedural gateway for prosecution in cases covered by the provision.
Who Grants Sanction Under Section 218?
| Person / Situation | Competent Authority |
|---|---|
| Judge, Magistrate or covered public servant employed in connection with the affairs of the Union | Central Government |
| Judge, Magistrate or covered public servant employed in connection with the affairs of a State | State Government |
| State-affairs public servant where the alleged offence was committed during an Article 356 Proclamation in that State | Central Government |
| Member of the Armed Forces of the Union acting or purporting to act in discharge of official duty | Central Government |
| Specified public-order forces covered by a State notification under Section 218(3) | State Government, subject to Section 218(4) |
120-Day Decision Period and Deemed Sanction
A significant feature of Section 218(1) is the statutory time limit. The competent Government must take a decision on a request for sanction within one hundred and twenty days from the date on which the request is received. If it fails to do so within that period, the provision states that sanction shall be deemed to have been accorded.
What Does "Acting or Purporting to Act in the Discharge of Official Duty" Mean?
Section 218 applies only where the alleged offence is stated to have been committed while the person was acting or purporting to act in discharge of official duty. This language connects the sanction requirement to the alleged official character of the act. Whether that connection exists is a fact-sensitive legal question and may depend on the nature of the duty, the alleged conduct and the circumstances of the case.
Offences for Which Section 218 Expressly Says No Sanction Is Required
The third proviso to Section 218(1) expressly removes the sanction requirement for a public servant accused of an offence under the following BNS provisions:
Sections 64, 65, 66, 68, 69, 70, 71, 74, 75, 76, 77, 78, 79, 143, 199 and 200 of the Bharatiya Nyaya Sanhita, 2023.
These provisions include serious offences against women, trafficking-related offences, specified offences involving sexual harassment or privacy, and certain offences concerning public servants and treatment of victims. The precise ingredients and punishment must be read from the relevant BNS section in the facts of a particular case.
Relationship with the Lokpal and Lokayuktas Act, 2013
Section 218(1) begins its sanction rule with the qualification "save as otherwise provided in the Lokpal and Lokayuktas Act, 2013". This means that where that Act contains an applicable special mechanism or rule concerning sanction, Section 218 must be read subject to it.
Armed Forces and Forces Maintaining Public Order
Under Section 218(2), previous sanction of the Central Government is required before a Court can take cognizance of an offence alleged against a member of the Armed Forces of the Union while acting or purporting to act in discharge of official duty.
Section 218(3) allows a State Government, by notification, to extend the same protection to specified classes or categories of forces charged with maintaining public order, with the State Government substituted as the sanctioning authority. Section 218(4), however, requires Central Government sanction where the alleged offence by such public-order forces occurred during the operation of a Proclamation under Article 356(1) of the Constitution.
Government Power Over Conduct of Prosecution
Section 218(5) authorises the Central Government or State Government to determine who will conduct the prosecution, the manner in which it will be conducted, the offence or offences for which prosecution will proceed, and the Court before which the trial will be held.
Key Legal Points
- Section 218 operates at the stage when a Court is asked to take cognizance.
- The provision covers current as well as former Judges, Magistrates and specified public servants, subject to its statutory conditions.
- The alleged act must have been committed while acting or purporting to act in discharge of official duty.
- The competent Government depends on whether the person was connected with Union or State affairs.
- The Government has 120 days from receipt of the sanction request to decide; otherwise sanction is deemed to have been accorded.
- The third proviso expressly lists BNS offences for which sanction is not required.
- Special rules apply to members of the Armed Forces and notified forces maintaining public order.
Commencement of the BNSS
The Bharatiya Nagarik Suraksha Sanhita, 2023 is Act No. 46 of 2023. The Central Government appointed July 1, 2024 as the date on which the Sanhita came into force, except for the notified First Schedule entry relating to Section 106(2) of the Bharatiya Nyaya Sanhita, 2023.
Official Legal Sources
For authoritative statutory text and commencement information, refer to the official Government sources below.