BNSS §218

197. 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 6[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: 1. Ins. by Act 5 of 2009, s.17 (w.e.f. 31-12-2009). 2. Subs. by Act 63 of 1980, s. 3, for “section 153B, section 295A or section 505” (w.e.f. 23-9-1980). 3. Ins. by s. 3, ibid. (w.e.f. 23-9-1980). 4. Subs. by Act 45 of 1978, s. 16, for “a cognizable offence” (w.e.f. 18-12-1978). 5. Subs. by Act 63 of 1980, s. 3, for “under sub-section (1)” (w.e.f. 23-9-1980). 6. Ins. by Act 1 of 2014, s. 58 and the Schedule (w.e.f. 16-1-2014). 1[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.] 2[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, section 354A, section 354B, section 354C, section 354D, section 370, section 375, 3[section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB] or section 509 of the Indian Penal Code (45 of 1860).]

(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[(3A) 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. (3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 (43 of 1991), receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause

(1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.]

(4) The Central Government or the State Government, as the case may be, 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. STATE AMENDMENT Tripura. — Insertion of a new Section 197(IA).—In the Code of Criminal Procedure, 1973, in section 197 after sub-section (I) the following sub-section shall be inserted, only for application in the State of Tripura, namely:— “(IA) When as per provision of any relevant law for the time being in force a public servant referred to in Sub-Section

(1) (b) is directly appointed, transferred or posted by the State Government in any local or other authorities including a Government Company, Corporation or Public Sector Undertaking, he shall be deemed to be employed in connection with the affairs of the State and no Court shall take cognizance of any offence as referred to in Sub-Section (I) without previous sanction of the State Government. [Vide Tripura Act 6 of 2003, s. 2] 1. Added by Act 43 of 1991, s. 2 (w.e.f. 2-5-1991). 2. Explanation ins. by Act 13 of 2013, s. 18 (w.e.f. 3-2-2013). 3. Subs. by Act 22 of 2018, s. 15, for “section 376A, section 376C, section 376D” (w.e.f. 21-4-2018). 4. Ins. by Act 43 of 1991, s. 2 (w.e.f. 2-5-1991). Assam.— In Section 197 of the Code. — (a) in sub-section (1), for the words “in the discharge of” the words “in or in connection with the discharge of” shall be substituted; (b) in sub-section (2), for the words “in the discharge of” the words “in or in connection with the discharge of” shall be substituted; (c) after sub-section (4), the fallowing subsections shall be inserted, namely: —

(5) Notwithstanding anything contained in this Code,— (a) where a complaint is made to a Court against a public servant belonging to any class or category specified under sub-section

(3) alleging that he has committed an offence, the Court shall postpone the issue of process against the accused and make a reference to the State Government; or (b) where an accused, either by himself or through a pleader, claims before a Court that he belongs to any class or category specified under sub-section

(3) and that the offence alleged to have been committed by him arose out of any action taken by him while acting or purporting to act in or in connection with the discharge of his official duty, the Court shall forthwith stay further proceedings and make a reference to the State Government.

(6) (i) Where a reference is received from a Court under sub-section (5), the State Government shall issue a certificate to the Court that the accused person was or was not acting or purporting to act in, or in connection with the discharge of his official duty. (ii) If the State Government certifies that the accused was acting or purporting to act in or in connection with the discharge of his official duty, the Court shall dismiss the complaint or discharge the accused: Provided that the complainant may, within sixty days from the date of the issue of such certificate prefer an appeal to the High Court against the Certificate: Provided further that the High Court may entertain the appeal after the expiry of the said period of sixty days if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period. (iii) If the State Government certifies that the accused was not acting or purporting to act in or in connection with, the discharge of his official duty, the Court may proceed further with the complaint in accordance with the provisions of this Code.

(7) The provisions of sub-sections

(5) and

(6) shall apply to all proceedings pending on the date of commencement of this Act in respect of which a Court had taken cognizance of an offence in accordance with the provisions of this Code. [Vide Assam Act 3 of 1984, s. 4.]