Section 197 of the Code of Criminal Procedure, 1973 (CrPC), which required prior government sanction before a court could take cognizance of offences committed by public servants in their official capacity, has been replaced by Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). While the core protection remains — that no court shall take cognizance without sanction for acts done in official duty — the new provision introduces a landmark 120-day deemed sanction mechanism that eliminates the government's ability to indefinitely stall prosecutions through inaction.
What changed
| Feature | Section 197 CrPC (Old) | Section 218 BNSS (New) |
|---|---|---|
| Core protection | No court shall take cognizance without prior sanction of government | Same — retained without change |
| Timeline for decision | No statutory timeline — government could delay indefinitely | Government must decide within 120 days of receiving sanction request |
| Deemed sanction | No such provision | If no decision within 120 days, sanction is deemed to have been granted |
| Scope of protection | Judges, Magistrates, public servants not removable without government sanction | Same categories of protected persons retained |
| Armed forces | Central Government sanction required for armed forces personnel | Same — retained without change |
| Exceptions (no sanction required) | No sanction required for certain IPC sexual offence sections | Significantly expanded — covers BNS sections 64-66, 68-71 (sexual offences), 74-79 (offences against women), 143 (kidnapping), 199-200 (public servant offences) |
| Lokpal Act | No express reference | Express carve-out: "save as otherwise provided in the Lokpal and Lokayuktas Act, 2013" |
| Public servant complaints | No pre-cognizance hearing for accused | Section 223 BNSS adds opportunity of hearing before cognizance |
Full statutory text
Section 197 CrPC (Old Law) — Relevant Extract:
(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 — (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.
(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.
Section 218 BNSS (New Law) — Relevant Extract:
(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 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 sanction of the Central Government.
Key differences
120-day deemed sanction: The most consequential change. Under CrPC, the absence of a statutory deadline allowed governments to effectively block prosecutions by simply not deciding on sanction requests. Section 218 BNSS creates a legal fiction: if the government fails to decide within 120 days, sanction is deemed granted. This shifts the balance decisively from government discretion toward accountability.
Time-bound consideration mandate: The first proviso to Section 218(1) imposes a positive obligation on the government to decide within 120 days. This is a mandatory timeline, not directory. The clock starts from the date of receipt of the sanction request by the appropriate government.
Consequence of inaction: Under the old regime, government inaction meant indefinite protection for the public servant. Under BNSS, inaction means automatic deemed sanction — the exact opposite outcome. This creates a strong incentive for timely government decision-making.
Expanded no-sanction exception: The exception for offences where no sanction is required has been significantly expanded. Under CrPC, this covered only certain sexual offences. Section 218 BNSS broadens this to cover BNS sections 64-66, 68-71 (sexual offences), sections 74-79 (offences against women including dowry death, cruelty), section 143 (kidnapping), and sections 199-200 (public servant offences). The inclusion of sections 74-79 (dowry death, cruelty by husband/relatives) is a notable expansion beyond the CrPC exception.
Lokpal Act carve-out: Section 218(1) BNSS adds the words "save as otherwise provided in the Lokpal and Lokayuktas Act, 2013" — creating an express statutory carve-out for Lokpal proceedings. Under CrPC Section 197, the Lokpal's power operated through its own Act; Section 218 makes this interplay textually explicit.
Article 356 proclamation proviso: A proviso clarifies that when a Proclamation under Article 356 is in force in a State, the expression "Central Government" substitutes for "State Government" in clause (b). This ensures sanction authority shifts to the Centre during President's Rule.
Interplay with Section 223 BNSS: When a private complaint is filed against a public servant, Section 223 BNSS now requires the Magistrate to give the accused an opportunity of being heard before taking cognizance. This introduces a procedural safeguard at the pre-cognizance stage that did not exist under CrPC Section 200.
What this means for practitioners
For prosecutors and complainants: The deemed sanction provision removes the most significant procedural bottleneck in prosecuting public servants. If 120 days pass without a government decision, practitioners can approach the court arguing that sanction is deemed granted. Maintain careful records of the date the sanction request was received by the government — this is the starting point for the 120-day computation.
For public servants: The deemed sanction mechanism means that inaction by the government is no longer a shield. Public servants facing sanction requests should actively engage with the sanction process and ensure the government is aware of the timeline. A failure to respond within 120 days results in deemed sanction, removing the protective bar under Section 218(1).
For government authorities: The 120-day deadline is not merely directory — it carries the consequence of deemed sanction. Government departments receiving sanction requests must immediately register and track them with clear date-stamping. Internal protocols for processing sanction requests within the deadline are now essential.
For pending cases: Cases where sanction was pending under CrPC Section 197 as of 1 July 2024 will need to be assessed under the transitional provisions of BNSS. The deemed sanction mechanism applies prospectively to requests received after the commencement of BNSS.
Does old case law still apply?
Subramanian Swamy v. Manmohan Singh (2012) 3 SCC 64: The Supreme Court's observations about the need for a time-bound sanction process remain highly relevant. The Court had flagged that indefinite delay in deciding sanction requests undermined the rule of law. Section 218 BNSS directly addresses this concern.
Devinder Singh v. State of Punjab (2016) 12 SCC 87: The Constitution Bench clarification on the scope of "acting or purporting to act in the discharge of official duty" continues to apply. The test for determining whether an act was performed in official capacity remains the same under Section 218 BNSS.
Mathai v. George (2016) 7 SCC 700: The distinction between acts that are an integral part of official duty and acts that are merely connected to official status remains good law. Section 218 BNSS does not alter the substantive test — only the timeline mechanism.
All existing case law interpreting the scope of protection, the meaning of "acting or purporting to act in official duty," and the question of which level of government must grant sanction continues to apply under Section 218 BNSS. The new provision changes only the temporal dimension — it does not alter the substantive protection or its scope.
Frequently asked questions
What is the 120-day deemed sanction provision under Section 218 BNSS? If the government does not decide on a sanction request within 120 days of receiving it, sanction is automatically deemed to have been granted. The court can then proceed to take cognizance of the offence against the public servant as if formal sanction had been accorded.
Does deemed sanction apply to armed forces personnel under Section 218(2)? The deemed sanction proviso is attached to sub-section (1). The applicability of the deemed sanction mechanism to armed forces personnel under sub-section (2) is a matter that may require judicial clarification, though the legislative intent appears to cover all sanction requests under the section.
Can the government refuse sanction after the 120-day period has expired? Once the 120-day period has elapsed without a decision, the bar under Section 218(1) disappears by operation of law. A refusal issued after the expiry of 120 days would be of no legal consequence since the sanction is already deemed granted.
Does the existing case law on what constitutes "official duty" still apply? Yes. The substantive test for determining whether an act was committed while acting or purporting to act in official duty is unchanged. All Supreme Court jurisprudence interpreting this phrase — including the Devinder Singh Constitution Bench decision — continues to govern Section 218 BNSS.