When Cognizance Is Barred, and Sanction Is Needed

except on the complaint in writing of that Court, or of an officer of the Court authorised in writing, or of some other Court to which that Court is subordinate.

So the rule is simple to state: an offence against a public servant's authority is prosecuted on his complaint, and an offence against the administration of justice in a court on that court's complaint.

Section 216, and it is new in this form. A witness or any other person may file a complaint in relation to an offence under section 232 of the Bharatiya Nyaya Sanhita, 2023. Section 232 is the offence of threatening a person to give false evidence. The point of section 216 is that the section 215 filter does not stand in the way: the threatened witness may complain himself.

Section 217: offences against the State

Sub-section (1). No Court shall take cognizance of an offence under Chapter VII of the Bharatiya Nyaya Sanhita, or under sections 196, 299 or 353(1) of it, or of a conspiracy to commit one, or of an abetment described in section 47 of it, except with the previous sanction of the Central Government or of the State Government.

Sub-section (2). For an offence under section 197 or section 353(2) or (3), or a conspiracy to commit one, the sanction may be that of the Central Government, the State Government, or the District Magistrate.

Sub-section (3), consent. No Court shall take cognizance of a criminal conspiracy punishable under section 61(2) of that Sanhita, other than a conspiracy to commit an offence punishable with death, imprisonment for life, or rigorous imprisonment for two years or upwards, unless the State Government or the District Magistrate has consented in writing. The proviso: no consent is needed where section 215 applies.

Sub-section (4), preliminary investigation. Before according sanction or giving consent, the Government or the District Magistrate may order a preliminary investigation by a police officer not below the rank of Inspector, who then has the powers in section 174(3).

Section 218: judges and public servants

This is the section examinations concentrate on.

Sub-section (1), the bar. Where a person who is or was a Judge, a Magistrate, or a public servant not removable from his office save by or with the sanction of the Government, is accused of an offence alleged to have been committed while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance except with the previous sanction, save as otherwise provided in the Lokpal and Lokayuktas Act, 2013:

(a) of the Central Government, where he is or was employed in connection with the affairs of the Union; (b) of the State Government, where in connection with the affairs of a State.

The first proviso. Where the offence was committed by a person under clause (b) while a Proclamation under article 356(1) was in force in the State, the sanction is the Central Government's.

The second proviso, and it is new. Such Government shall take a decision within a period of one hundred and twenty days from the date of receipt of the request for sanction, and in case it fails to do so, the sanction shall be deemed to have been accorded.

That deeming provision is the answer to a very old complaint, that sanction requests were simply never answered. Quote the one hundred and twenty days.

The third proviso, and it is also new. No sanction shall be required where a public servant is accused of an offence under sections 64, 65, 66, 68, 69, 70, 71, 74, 75, 76, 77, 78, 79, 143, 199 or 200 of the Bharatiya Nyaya Sanhita. Those are the sexual offences, trafficking, and the offences of a public servant disobeying the law or framing an incorrect record with intent to cause injury.

Sub-section (2), the armed forces. No Court shall take cognizance of an offence alleged to have been committed by a 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.

Sub-section (3). The State Government may by notification apply sub-section (2) to a class of members of a Force charged with the maintenance of public order, wherever serving, and then the sanction is the State Government's.

Sub-section (4). Notwithstanding sub-section (3), where the offence was committed by such a member while a Proclamation under article 356(1) was in force, the sanction is the Central Government's.

Sub-section (5). The Government may determine by whom, in what manner and for which offences the prosecution is to be conducted, and may specify the Court before which the trial is to be held.

Sections 219 to 222: offences where the aggrieved person decides

Section 219, offences against marriage. No Court shall take cognizance of an offence under sections 81 to 84 of the Bharatiya Nyaya Sanhita except upon a complaint made by some person aggrieved.

The proviso, three cases where somebody else may complain.

(a) Where the aggrieved person is a child, or of unsound mind, or has an intellectual disability requiring higher support needs, or is from sickness or infirmity unable to complain, or is a woman who according to local customs and manners ought not to be compelled to appear in public: another person may complain with the leave of the Court. (b) Where the aggrieved person is a husband serving in the Armed Forces under conditions certified by his Commanding Officer as precluding leave of absence: a person authorised under sub-section (4) may complain. (c) Where the aggrieved person is a wife and the offence is under section 82, that is bigamy: her father, mother, brother, sister, son or daughter, or her father's or mother's brother or sister, or, with the leave of the Court, any other person related to her by blood, marriage or adoption.

Sub-section (2). For an offence under section 84, no person other than the husband of the woman is deemed aggrieved.

Sub-section (3). Where a complaint is sought to be made for a child or a person of unsound mind by somebody who is not the appointed or declared guardian, and the Court is satisfied there is such a guardian, it shall give that guardian notice and a reasonable opportunity of being heard before granting leave.

Sub-sections (4) and (5). The authorisation under the proviso (b) must be in writing, signed or attested by the husband, contain a statement that he has been informed of the allegations, be countersigned by his Commanding Officer, and be accompanied by that officer's certificate that leave cannot be granted. Such documents are presumed genuine unless the contrary is proved.

Sub-section (6), the one year bar. No Court shall take cognizance of an offence under section 64 where it consists of sexual intercourse by a man with his own wife, the wife being under eighteen years of age, if more than one year has elapsed from the date of the commission of the offence.

Section 220, cruelty. No Court shall take cognizance of an offence under section 85 of the Bharatiya Nyaya Sanhita, which is cruelty by a husband or his relatives, except upon a police report of facts constituting the offence, or upon a complaint by the person aggrieved, or by her father, mother, brother, sister, or her father's or mother's brother or sister, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.

Section 221, and it is new. No Court shall take cognizance of an offence under section 67 of the Bharatiya Nyaya Sanhita where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitute the offence, upon a complaint having been filed or made by the wife against the husband.

Section 222, defamation. No Court shall take cognizance of an offence under section 356 of the Bharatiya Nyaya Sanhita except upon a complaint made by some person aggrieved. The proviso allows another person to complain with the leave of the Court where the aggrieved person is a child, of unsound mind, has an intellectual disability, is unable through sickness or infirmity, or is a woman who according to local customs and manners ought not to be compelled to appear in public.

A worked example

A Deputy Collector is accused of taking a bribe while deciding a licence application.

Can a Magistrate take cognizance at once? Not if the offence is alleged to have been committed while acting or purporting to act in the discharge of official duty. Section 218(1) requires the previous sanction of the Government that employs him.

The Government sits on the request. Under the second proviso it must decide within one hundred and twenty days of receiving the request, and if it does not, sanction is deemed to have been accorded.

Change the allegation. He is accused of an offence under section 74 of the Bharatiya Nyaya Sanhita. Then the third proviso applies and no sanction is required at all.

Change the accused. A soldier is accused of an offence committed while purporting to act in the discharge of his duty. Sanction of the Central Government is required, section 218(2).

A different case. A man forges a document and files it in a civil court. Cognizance of the offence under the relevant section, committed in respect of a document given in evidence in a proceeding, may be taken only on the complaint in writing of that Court, or an officer it authorises, or a Court to which it is subordinate, section 215(1)(b).

A witness is threatened with harm if he tells the truth. Section 216 lets the witness or any other person file a complaint under section 232 of the Bharatiya Nyaya Sanhita directly.

Another case. A woman's husband has married again. Bigamy is under section 82. She may complain herself under section 219(1). If she cannot, her father, mother, brother, sister, son or daughter, or her father's or mother's brother or sister, may, and any other relation by blood, marriage or adoption may with the leave of the Court, section 219(1) proviso (c).

Her mother-in-law is also alleged to have been cruel to her. That is section 85, and section 220 allows cognizance on a police report as well as on a complaint by her or the named relations.

Distinctions

What this does NOT mean

Sanction is not a formality. It is a condition of the court's power to take cognizance, and cognizance taken without it is without jurisdiction.

Section 218 does not protect everything a public servant does. The offence must be alleged to have been committed while acting or purporting to act in the discharge of official duty.

The 120 day deeming provision does not dispense with the request. It deems sanction where a request was made and not decided.

And section 220 is not confined to a complaint. Cruelty under section 85 may be taken cognizance of on a police report as well.

Quick revision

• 215: complaint in writing of the public servant for BNS sections 206 to 223 except 209; of the Court for offences against public justice in a proceeding and for documents in evidence.
• 216: a witness or any other person may complain for BNS section 232.
• 217: previous sanction of the Central or State Government for offences against the State; the District Magistrate may also sanction under sub-section (2); consent for certain conspiracies under section 61(2); a preliminary investigation by an officer not below Inspector may be ordered first.
• 218(1): previous sanction for a Judge, Magistrate or public servant not removable save by the Government, for acts in the discharge of official duty; Central or State Government according to the employment; Central during an article 356 Proclamation; decision within 120 days or sanction is deemed; no sanction for the listed sexual and related offences.
• 218(2) to (5): Central Government sanction for the Armed Forces; extension by notification to public order forces; Central during a Proclamation; and the Government may settle who prosecutes, how, for what, and in which Court.
• 219: complaint by the person aggrieved for BNS sections 81 to 84; substitutions for a child, a person of unsound mind or intellectual disability, the sick or infirm, and a secluded woman, with leave of the Court; for a husband in the Armed Forces, an authorisation countersigned by his Commanding Officer; for bigamy, the wife's named relations; only the husband is aggrieved under section 84; and a one year bar for section 64 where the wife is under eighteen.
• 220: BNS section 85 on a police report or a complaint by the aggrieved woman or her listed relations.
• 221, new: BNS section 67 within a marriage, only on the wife's complaint and on prima facie satisfaction.
• 222: defamation only on the complaint of the person aggrieved, with leave-of-court substitutions.

Test yourself

1. What sanction is needed to prosecute a State Government officer for an act done in the discharge of his official duty? The previous sanction of the State Government, section 218(1)(b), unless the act was done while a Proclamation under article 356(1) was in force, in which case the Central Government's.

2. What happens if the Government does not decide the sanction request? It must decide within one hundred and twenty days of receiving the request, and on failure the sanction is deemed to have been accorded, second proviso to section 218(1).

3. Is sanction needed to prosecute a public servant for an offence under section 74 of the Bharatiya Nyaya Sanhita? No. The third proviso to section 218(1) dispenses with sanction for that and the other listed offences.

4. Who may complain of an offence committed in relation to a document given in evidence in a court? That Court, or an officer of the Court authorised by it in writing, or a Court to which that Court is subordinate, by complaint in writing, section 215(1)(b).

5. Who may complain of bigamy where the aggrieved person is the wife? The wife herself, or her father, mother, brother, sister, son or daughter, or her father's or mother's brother or sister, or, with the leave of the Court, any other person related to her by blood, marriage or adoption, section 219(1) proviso (c).

6. May a court take cognizance of cruelty under section 85 on a police report? Yes. Section 220 permits cognizance on a police report of facts constituting the offence, as well as on a complaint by the aggrieved person or the listed relations.

7. What is new in section 221? It requires, for an offence under section 67 of the Bharatiya Nyaya Sanhita where the persons are in a marital relationship, a complaint filed or made by the wife against the husband and a prima facie satisfaction of the facts constituting the offence.