Section 197 CrPC vs Section 218 BNSS — Sanction for Prosecution of Public Servants

In India, Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Section 197 of the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. The sanction bar for acts done in official duty is unchanged, but the second proviso to Section 218(1) now deems sanction accorded if the Government does not decide within 120 days of receiving the request.

At a glance

What changed

• s.218(1), main clause — Minor edit. Same words as s.197(1), including "save as otherwise provided in the Lokpal and Lokayuktas Act, 2013"; the Act number "(1 of 2014)" moves from the text to the margin. The Lokpal words are not new: a CrPC footnote records their insertion by Act 1 of 2014, s.58 and the Schedule, w.e.f. 16-1-2014.
• First proviso (Article 356) — Minor edit. Same words (punctuation only): during an Article 356(1) Proclamation, the Central Government sanctions in place of the State Government. A CrPC footnote records that it was added by Act 43 of 1991, s.2 (w.e.f. 2-5-1991).
• Second proviso (120-day deemed sanction) — New. "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".
• Third proviso (no-sanction list) — Modified. It replaces the Explanation to s.197(1), inserted by Act 13 of 2013, and drops its opening words "For the removal of doubts it is hereby declared that". The CrPC list: IPC ss.166A, 166B, 354, 354A, 354B, 354C, 354D, 370, 375, 376A, 376AB, 376C, 376D, 376DA, 376DB and 509. The BNSS list: BNS ss.64, 65, 66, 68, 69, 70, 71, 74, 75, 76, 77, 78, 79, 143, 199 and 200.
• s.218(2) and (3) — Identical. Armed Forces (Central Government sanction) and notified public-order forces (State Government).
• s.218(4) — Minor edit. Old s.197(3A); "no court" is printed "no Court".
• s.197(3B) CrPC — Omitted. This declared invalid State Government sanctions given between 20 August 1991 and the assent to Act 43 of 1991 for offences committed during President's Rule. It has no BNSS counterpart.
• s.218(5) — Minor edit. Old s.197(4); the words "as the case may be" are dropped.

Comparing the two no-sanction lists by section heading (a reading; headings read in both Codes):

Sexual intercourse by a husband during separation (IPC s.376B; BNS s.67) is in neither list; dowry death (BNS s.80) and cruelty by husband or relatives (BNS s.85) are not in the BNSS list.

Statutory text (relevant extract)

Section 197(1) CrPC — extract (original-PDF text):

(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)]— …

Explanation.—For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, … or section 509 of the Indian Penal Code (45 of 1860).

Section 218(1) BNSS — second and third provisos (Gazette text):

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.

How it works — the elements

1. Who is protected. A 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" (s.218(1)).
2. What is protected. An offence alleged to have been committed "while acting or purporting to act in the discharge of his official duty" — the reasonable-connection test in the judgments below.
3. Who sanctions. The Central Government for Union employees (clause (a)); the State Government for State employees (clause (b)), replaced by the Central Government during an Article 356 Proclamation (first proviso); the Central Government for the Armed Forces (s.218(2)); the State Government for notified public-order forces (s.218(3)), except during an Article 356 Proclamation (s.218(4)).
4. When the bar bites. At cognizance: "no Court shall take cognizance of such offence except with the previous sanction".
5. The clock. A decision within 120 days "from the date of the receipt of the request for sanction", failing which sanction "shall be deemed to have been accorded".
6. Exempt offences. None needed for the BNS offences in the third proviso.
7. Conduct of the prosecution. The Government may decide who prosecutes, the manner, the offences, and the trial court (s.218(5)).

Earlier gates for a complaint against a public servant. Under s.175(4), a Magistrate ordering investigation on such a complaint must first receive the superior officer's report and consider the public servant's assertions. Under s.223(2), cognizance on such a complaint needs the same two steps. The Supreme Court in XXX v. State of Kerala (2026 INSC 88, para 40) described the protection for public servants as a "two-tier protection": a threshold safeguard under s.175(4), and a second tier at the stage of taking cognizance, when the "previous sanction" of the Government is required.

What this means in practice

For complainants and prosecuting agencies. First ask whether sanction is needed at all: check the third proviso list and apply the reasonable-connection test. If it is, send the request so that its date of receipt can be proved. On a reading of the second proviso, once 120 days pass without a decision, the court can be asked to proceed on deemed sanction; the proviso names no document evidencing it, so proof of receipt and of the absence of a timely decision will carry the argument.

For public servants. The bar can be raised whenever facts showing a connection with official duty emerge (D. Devaraja, para 76). Government inaction is no longer a shield. Whether a refusal issued after 120 days can displace the deeming is not addressed by the proviso; on a reading of "shall be deemed to have been accorded", it would be difficult to reconcile, but no judgment on the point was located.

For sanctioning authorities. Register every request with its date of receipt and track the 120-day limit; silence now has a statutory consequence.

A State-level precursor. The CrPC text we hold records a Maharashtra amendment to s.156 (Maharashtra Act 33 of 2016, s.2) deeming sanction accorded if the sanctioning authority did not decide within ninety days. The BNSS central text has no such provision; the status of State amendments to the repealed Code is outside this page.

Judgments that still matter

Matajog Dobey v. H.C. Bhari, [1955] 2 S.C.R. 925 (1955 INSC 61), 31 October 1955 (five judges: S.R. Das Acting C.J., Vivian Bose, Jagannadhadas, Jafer Imam and Chandrasekhara Aiyar JJ.; judgment of the Court delivered by Chandrasekhara Aiyar J.). Officers who forcibly entered premises under a search warrant were charged with assault; sanction was held necessary. It required a reasonable connection between the act and the discharge of official duty: "the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty". The report has no paragraph numbers. Why it matters now: s.218(1) repeats the operative words, so on a reading of the text the reasonable-connection test continues to govern.

D. Devaraja v. Owais Sabeer Hussain, [2020] 6 S.C.R. 453 (2020 INSC 436), 18 June 2020 (R. Banumathi and Indira Banerjee JJ.; opinion of Indira Banerjee J.). On a complaint of custodial ill-treatment by a police officer, the Court held that protection "is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act" (para 69). If the act is reasonably connected, "it does not matter if the policeman has exceeded the scope of his powers" (para 73). Following Matajog Dobey, "whether sanction is necessary or not may have to be determined at any stage of the proceedings" (para 76). The complaint was quashed for want of sanction (para 81). The case arose under s.197 CrPC read with s.170 of the Karnataka Police Act. Why it matters now: the same operative words sit in s.218(1).

Subramanian Swamy v. Manmohan Singh, [2012] 3 S.C.R. 52 (2012 INSC 59), 31 January 2012 (G.S. Singhvi and Asok Kumar Ganguly JJ.). The case concerned delay in deciding a request for sanction under s.19 of the Prevention of Corruption Act, 1988. Singhvi J. recorded the earlier direction in Vineet Narain that the "Time-limit of three months for grant of sanction for prosecution must be strictly adhered to", with one more month for consultation with the Attorney General (para 29). In a separate concurring opinion, Ganguly J. suggested that Parliament "may … consider" guidelines under which, if no decision is taken at the end of the extended period, "sanction will be deemed to have been granted" (para 22 of his opinion). That is a single judge's suggestion, not a holding of the Court. Why it matters now: s.218 BNSS adopts a deemed-sanction rule, with a 120-day period, for sanction under the procedural Code.

Vijay Rajmohan v. State represented by the Inspector of Police, CBI, ACB, Chennai, [2022] 19 S.C.R. 563 (2022 INSC 1066), 11 October 2022 (B.R. Gavai and Pamidighantam Sri Narasimha JJ.; opinion of Narasimha J.). Considering the three-month period, extendable by one month, in the proviso to s.19(1) of the PC Act, the Court noted the Subramanian Swamy suggestion of deemed sanction (para 30). It held that non-compliance "cannot and should not automatically lead to the quashing of criminal proceedings" (para 31). Its conclusion was that the period is mandatory, but the consequence is accountability of the authority and judicial review, not quashing (para 38). Why it matters now: the Court supplied a consequence because the PC Act supplied none; s.218 BNSS supplies one — deemed sanction — for sanction under s.218, while Vijay Rajmohan remains the guide for PC Act sanction.

Post-2024 — XXX v. State of Kerala, 2026 INSC 88, 27 January 2026 (Dipankar Datta and Manmohan JJ.). Construing s.175(4) BNSS, the Court described a "two-tier protection" for public servants: the first "at the threshold stage" under s.175(4), the second "at the stage of taking cognizance when the 'previous sanction' of the concerned Government is required" (para 40). It decided no question on the 120-day proviso.

Which law applies to your case

The BNSS came into force on 1 July 2024. Section 531(2)(a) BNSS continues any appeal, application, trial, inquiry or investigation pending immediately before that date under the CrPC "as if this Sanhita had not come into force". Section 531(2)(c) provides that a sanction accorded under the CrPC "in pursuance of which no proceeding was commenced under that Code" is deemed accorded under the corresponding BNSS provision, and proceedings may be commenced under the BNSS on it. Whether the 120-day period runs for a request received before 1 July 2024 and still undecided is not addressed by the text. See which law applies to an offence before 1 July 2024.

Frequently asked questions

Which BNSS section replaces Section 197 CrPC? Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces Section 197 of the Code of Criminal Procedure, 1973, under the same heading, "Prosecution of Judges and public servants". Section 218(1) keeps the bar: no Court shall take cognizance, except with previous sanction, of an offence alleged against a Judge, Magistrate or public servant not removable save by or with the Government's sanction, committed "while acting or purporting to act in the discharge of his official duty".

What is the 120-day deemed sanction rule in Section 218 BNSS? The second proviso to Section 218(1) BNSS states 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". Section 197 CrPC had no time limit and no deeming rule.

When does the 120-day period start? From "the date of the receipt of the request for sanction" by the Government, under the second proviso to Section 218(1) BNSS. It does not run from the date of the offence, the FIR or the police report. A complainant or prosecuting agency relying on deemed sanction will need proof of the date the Government received the request.

Does the deemed-sanction rule apply to members of the Armed Forces? The text does not say. The deemed-sanction proviso sits in Section 218(1) and refers to "such Government", meaning the Government named in clauses (a) and (b). Section 218(2), which requires the previous sanction of the Central Government for members of the Armed Forces of the Union, contains no time limit of its own. Whether the one-hundred-and-twenty-day rule reaches sub-section (2) is a question the text leaves open.

For which offences is no sanction required under Section 218 BNSS? The third proviso to Section 218(1) BNSS says no sanction is required where a public servant is accused of an offence under BNS sections 64, 65, 66, 68, 69, 70, 71, 74, 75, 76, 77, 78, 79, 143, 199 or 200. Its CrPC counterpart was the Explanation to Section 197(1), which listed IPC sections 166A, 166B, 354, 354A to 354D, 370, 375, 376A, 376AB, 376C, 376D, 376DA, 376DB and 509.

How do courts decide whether an act was done in the discharge of official duty? Under Section 197 CrPC the Supreme Court's test is whether there is a reasonable connection between the act and the discharge of official duty. In Matajog Dobey (1955) the Court said the act must bear such relation to the duty that the accused could lay a reasonable, not a pretended or fanciful, claim that he did it in the course of duty. In D. Devaraja (2020) the Court added that sanction may have to be determined at any stage of the proceedings. Section 218(1) BNSS repeats the operative words.

Does the 120-day rule apply to sanction under the Prevention of Corruption Act? The deemed-sanction proviso is part of Section 218 BNSS and speaks of sanction under that section. Sanction for Prevention of Corruption Act offences is governed by Section 19 of that Act, which this page has not read. As described by the Supreme Court in Vijay Rajmohan (2022), Section 19 sets a three-month period, extendable by one month, and delay does not by itself quash the prosecution but makes the sanctioning authority accountable.

Related

• Complaint against a public servant — BNSS 175 and 218 vs CrPC 197
• Section 200 CrPC vs Section 223 BNSS — private complaint
• Zero FIR — BNSS Section 173(1)
• Offences against women — IPC vs BNS
• Offence before 1 July 2024 — which law applies
• Section 156 CrPC vs Section 175 BNSS — Police Investigation and the Magistrate's Direction
• Sections 166A and 166B IPC vs Sections 199 and 200 BNS — Public Servant Disobeying Direction under Law; Non-treatment of Victim

Sources

Acts and sections read (primary text):

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette of India, CG-DL-E-25122023-250884): ss.175(3)–(4), 218, 223, 531(2); commencement footnote to s.1 in the official text (S.O. 848(E), 23 February 2024).
• Bharatiya Nyaya Sanhita, 2023 (Gazette of India, CG-DL-E-25122023-250883): headings of ss.64–71, 74–79, 143, 199, 200.
• Code of Criminal Procedure, 1973 (original-PDF text): s.156 (with Maharashtra amendment), s.197 and its footnotes.
• Indian Penal Code, 1860 (original-PDF text): headings of ss.166A, 166B, 354–354D, 370, 375, 376, 376A, 376AB, 376B, 376C, 376D, 376E, 509.

Judgments read (Supreme Court, full text in the Veritect judgment corpus):

• Matajog Dobey v. H.C. Bhari, [1955] 2 S.C.R. 925 — 1955_2_925_938_EN.md
• Subramanian Swamy v. Manmohan Singh, [2012] 3 S.C.R. 52 — 2012_3_52_113_EN.md
• D. Devaraja v. Owais Sabeer Hussain, [2020] 6 S.C.R. 453 — 2020_6_453_485_EN.md
• Vijay Rajmohan v. State represented by the Inspector of Police, CBI, ACB, Chennai, [2022] 19 S.C.R. 563 — 2022_19_563_582_EN.md
• XXX v. State of Kerala, 2026 INSC 88 — Diary_8626-2025_Judgment.md

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.