by AS CLICHE AS IT MAY SOUND, the quote “power tends to corrupt and absolute power corrupts absolutely” captures the malady of governance afflicted by unbridled power and poor standards of accountability. Though the Constitution of India recognises ‘equality before the law’ as a fundamental right and enshrines the concept of a limited government, several provisions of law continue to grant immunity to the State’s agents from prosecution for offences committed against citizens.
Among other laws, the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’) and the erstwhile Code of Criminal Procedure, 1973 (‘CrPC’) embody such immunity by restricting the courts’ power to take cognizance of offences committed by public servants. The BNSS (Section 218) and the CrPC (Section 197) stipulate that if a public servant is accused of committing a crime “while acting or purporting to act in the discharge of his official duty”, no court shall take cognizance of the offence unless the government has accorded sanction to prosecute the public servant.
The Supreme Court and the High Courts have delivered divergent judgments on the scope of immunity enjoyed by public servants under these provisions. This piece analyses the flawed legislative design of provisions pertaining to sanction for prosecution, the ramifications of divergent judicial opinions by benches of the same strength and the pressing need for reforming the law on sanction for prosecution.
The legislative design
The relevant portion of Section 218 of the BNSS reads as follows:
“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 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.”
This provision is similar to the erstwhile Section 197 of the CrPC. The expression “committed by him while acting or purporting to act in the discharge of his official duty” was first used in Section 197 of the CrPC, 1898 and has been reproduced in Section 197 of the CrPC, 1973 and Section 218 of the BNSS.
The implication of prohibiting courts from taking cognizance without sanction is that a ‘police report’ (chargesheet in common parlance) or a ‘complaint’ (private complaint in common parlance) may not be acted upon by a court despite the existence of incriminating material against the public servant. Furthermore, the immunity extends to all offences except those mentioned in the proviso which mainly pertain to sexual offences against women and public servants disobeying directions of the law.
When does a public servant ‘act or purport to act in discharge of official duties’?
The expression “accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty” is ambiguous and judicial attempts to lay down tests to ascertain when a public servant acts or purports to act in discharge of official duties have further obfuscated the scope of the provision.
For instance, does a police officer act or purport to act in discharge of official duties when he inflicts torture on an arrestee? The Supreme Court’s answers have been at variance with each other as its benches have delivered divergent opinions on whether inflicting torture on an arrestee ought to be brought under the umbrella of Section 197 of the CrPC.
In G.C. Manjunath & Others v. Seetaram (2025), the appellant-a police officer, was accused of stripping an arrestee (the complainant) and inflicting grievous bodily injuries using a lathi and an iron rod. When the complainant was produced before the magistrate, he informed the magistrate about the torture inflicted upon him.
The magistrate immediately directed the jailor and the investigating officer to ensure that the complainant received medical treatment for his injuries. Thereafter, the complainant lodged a complaint before the magistrate, accusing the police officers of causing grievous hurt using weapons and several other offences. On perusing the complaint and the medical records, the magistrate took cognizance of the offences and summoned the accused. It is relevant to note that despite repeated attempts of the complainant, the state government had not granted sanction to prosecute the accused police officers.
The police officers challenged the magistrate’s order before the Karnataka High Court on the ground that the magistrate could not have taken cognizance of the offences without the state government’s sanction. They contended that the alleged acts of inflicting torture fell within the scope of “acting or purporting to act in the discharge of his official duty” under Section 197.
They also relied on Section 170 of the Karnataka Police Act, 1963 (KP Act) which is wider in scope than Section 197 as prior sanction is required for “any act done under colour or in excess of any such duty or authority” as well. The High Court dismissed the petition on the ground that there was sufficient incriminating material against the accused and that the alleged acts of torture bore no connection with official duties.
However, the Supreme Court set aside the High Court’s order. Relying primarily on the decision in D.Devaraja v. Owais Sabeer Hussain (2020), the Supreme Court held that a transgression of authority would not disentitle a public servant from protection under Section 197 of the CrPC or Section 170 of the KP Act. It further held
“The actions attributed to the accused persons emanate from the discharge of their official duties, specifically in connection with the investigation of criminal cases pending against the complainant.”
In stark contrast to this line of reasoning, the Supreme Court in Dr. S.M Mansoori v. Surekha Parmar (2023) had refused to grant relief to police officers charged with the offence of inflicting bodily injuries on a person at the time of arresting him in connection with a case under Section 498A of the Indian Penal Code and the Dowry Prohibition Act, 1964.
The Supreme Court held that the accused were not entitled to protection under Section 197 of the CrPC, especially at a nascent stage of the case. The relevant observation reads as follows: “Looking at the nature of the allegations in the complaint, at this stage, it is impossible to conclude that the acts allegedly done by the first respondent were committed by her while acting or purporting to act in the discharge of her official duty.”
Contradictory tests laid down by the Supreme Court
The confusion regarding the scope of Section 197 has arisen due to the use of the vague expression “purporting to act in the discharge of official duties” and certain futile tests laid down by the judiciary to discern the applicability of Section 197.
In Amrik Singh v. State of PEPSU (1955), a three-judge bench of the Supreme Court held “if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties” (emphasis supplied). If this test were to be applied, causing custodial death during interrogation can be termed as an act committed by virtue of the office (as opposed to having been caused in private capacity).
Similarly, a fake encounter killing of an arrestee can be termed as an act committed during investigation of a crime and by virtue of the office. Therefore, it is unsurprising that the Supreme Court in cases such as D T Virupakshappa v. C Subash (2015), D.Devaraja v. Owais Sabeer Hussain (2020), and G.C. Manjunath v. Seetaram (2025) concluded that police officers accused of inflicting custodial torture could not be prosecuted without sanction under Section 197. Similarly, in Om Prakash v. State of Jharkhand (2012), the Supreme Court held that police officers accused of killing an accused in a fake encounter could not be prosecuted without prior sanction. These decisions have been relied upon by the Supreme Court and the High Courts in several cases pertaining to Section 197.
The futility of certain tests laid down by the Supreme Court to interpret Section 197 is evidenced by the test in State of Orissa v. Ganesh Chandra Jew (2004) wherein the Court held that “protection under section 197 is available only when the act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. The test to determine a reasonable connection between the act complained of and the official duty is that even in case the public servant has exceeded in his duty, if there exists a reasonable connection it will not deprive him of the protection. This Court has also observed that there cannot be a universal rule to determine whether there is a reasonable connection between the act done and the official duty nor is it possible to lay down any such rule”.
This test is futile as a public servant may very well use his official duty as a cloak to commit an illegal act and thereafter contend successfully that the act may have been in excess of official duty but is nevertheless connected to his official duty.
For instance, in connection with an investigation of a case of theft, a malicious search conducted in the house of a person unconnected with the crime can be justified as a misdeed connected to the official duty of investigation although it is an illegal act committed using official duties as a cloak.
Furthermore, in the same case (Ganesh Chandra Jew), the Supreme Court came up with another test which reads as follows “One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant.”
It is perhaps needless to emphasise that these tests are significantly different as the second test is narrow and precise. If this test is applied, a police officer accused of inflicting custodial torture would not get the benefit of Section 197 but a police officer accused of shooting at a violent mob indulging in arson would enjoy immunity under Section 197 as the failure to protect lives of citizens and property would amount to dereliction of duty. This test was approved by a three-judge bench of the Supreme Court in Centre for Public Interest Litigation v. Union of India (2005).
In P.P. Unnikrishnan v. Puttiyottil Alikutty (2000), the Supreme Court refused to grant the benefit of Section 197 to police officers accused of inflicting custodial torture. It reasoned that inflicting custodial torture and unlawful detentions were an abuse or a transgression of official duty as these acts were beyond the scope of official duty and authority.
The Court drew a distinction between custodial torture and the use of force against an unruly person and held that in case of the latter, Section 197 would apply. Similarly, in Om Prakash Yadav v. Niranjan Kumar Upadhyay (2024), the topCourt held that acts such as filing a false case and fabricating evidence would not fall within the scope of Section 197 as they are not a part of official duties.
A missed opportunity for reform
By now, it is fairly obvious that the law laid down by the Supreme Court is unclear and inherently contradictory. The outcome of a case pertaining to Section 197 of the CrPC or Section 218 of the BNSS would depend on which precedent a court or the Supreme Court itself would choose to apply. In fact, if a case such as Ganesh Chandra Jew (2004) is cited, the outcome would depend on which test the court chooses to apply.
Though the BNSS, along with the Bharatiya Nyaya Sanhita (‘BNS’)and the Bharatiya Sakshya Adhiniyam (‘BSA’), was described as the “biggest reform of the 21st century”, it has failed to revamp the law on sanction for prosecution and harmonise it with the constitutional scheme. While it is admirable that Section 218 of the BNSS stipulates that the government shall take a decision pertaining to sanction within one-hundred and twenty days from the date of receipt of the request, it does not clear the confusion prevailing regarding the scope of immunity as it retains the expression “acting or purporting to act in the discharge of his official duty”.
Furthermore, the concept of a deemed sanction under Section 218 if the government fails to take a decision within one-hundred and twenty days may be assailed before the Supreme Court or the High Courts as the act of granting sanction requires application of mind in accordance with the standards of administrative law.
Pressing need for reform
It is dismaying that an archaic provision which is traceable to a colonial procedural law has been retained by the lawmakers notwithstanding the importance accorded to liberty, equality and dignity by the Constitution. The vague and inherently contradictory law on sanction violates Article 14 of the Constitution as it deprives ‘equal protection of the laws’ to citizens at the receiving end of police brutality and abuse of power.
Furthermore, a public servant who abuses his authority to commit heinous offences such as a custodial death may escape prosecution if the government refuses to grant sanction for prosecution. This is an affront to ‘equality before the law’ as such a public servant enjoys immunity merely because of the nature of his employment, notwithstanding his blatant disregard for the law.
In the interest of protecting human rights, there is a pressing need to explicitly exclude custodial torture and police excesses during investigation from the ambit of requirement of prior sanction for prosecution under the BNSS and the state laws. A cue may be taken from the exclusion of sexual offences and the offence of disobeying a direction of the law, from immunity under Section 218 of the BNSS and Section 197 of the CrPC. If a generic offence regarding disobeying a direction of the law falls outside the ambit of prior sanction, it makes little sense not to exclude custodial torture and other police excesses as these acts have been criminalised explicitly and implicitly.
It would be fallacious to assume that limiting the scope of immunity would expose public servants to unjustified incarceration and harassment. The BNS and the erstwhile IPC carve out exceptions and recognise defences to protect public servants who may have used force for legitimate reasons. Furthermore, the argument that an aggrieved victim is free to challenge the refusal of sanction is untenable as not all victims have the requisite resources and the tenacity to challenge the refusal of sanction before the High Court or the Supreme Court. More importantly, it delays the commencement of the trial and hinders the prosecution’s ability to lead evidence before witnesses are dissuaded and evidence is destroyed.
Substantive and procedural criminal law ought to be scrutinised through the constitutional lens, periodically. Meaningful criminal law reforms require infusion of constitutional principles, bearing in mind the power structures and inequalities that exist in society.