SRI. SHIVA SHANKAR vs STATE OF KARNATAKA
- Court
- Karnataka High Court
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 04 DAY OF NOVEMBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.3641 OF 2026
BETWEEN:
SRI SHIVA SHANKAR
S/O MALLANNA
AGED ABOUT 40 YEARS,
HEAD CONSTABLE TOKEN NO. 12856
BANDEPALYA POLICE STATION
BOMMANAHALLI POST,
BENGALURU – 560 068
(ACCUSED NO.3 IN P.C.R NO.
15677/2025)
... PETITIONER
(BY SRI RANGANATH REDDY R., ADVOCATE)
AND:
1 . STATE OF KARNATAKA
R
Digitally signed
by PADMAVATHI
B K
Location: High
Court of
Karnataka
BY BANDEPALYA POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
BENGALURU – 560 001.
2 . SRI M.D.ANIL KUMAR
S/O DASE GOWDA,
AGED ABOUT 42 YEARS,
RESIDING AT NO. 482,
TH
12 ‘A’ MAIN ROAD,
2
TH
HSR LAYOUT, 7 SECTOR,
BENGALURU – 560 102.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, SPP-I FOR R-1 )
THIS CRIMINAL PETITION IS FILED UNDER SECTION 528 OF
B.N.S.S., PRAYING TO 1.QUASH THE ORDER DATED 12.12.2025
PASSED IN P.C.R. NO.15677/2025 BY THE LEARNED IX ADDL.C.J.M
BENGALURU CITY ISSUING NOTICE TO THE PETITIONER UNDER
SEC.223(1) OF BNSS; 2.CONSEQUENTLY QUASH THE ENTIRE
PROCEEDINGS IN P.C.R. NO.15677/2025 PENDING ON THE FILE OF
THE LEARNED IX ADDL.C.J.M BENGALURU CITY IN SO FAR AS THE
PETITIONER IS CONCERNED.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner is before the Court seeking the following
prayer:
(a) “ Quash the order dated 12-12-2025 passed in P.C.R.No.
15677 of 2025 by the learned IX Additional Chief Judicial
Magistrate, Bengaluru City, issuing notice to the
petitioner under Section 223(1) of BNSS;
(b) Consequently, quash the entire proceedings in
P.C.R.No.15677 of 2025 pending on the file of the learned
IX Additional Chief Judicial Magistrate, Bengaluru City,
insofar as the petitioner is concerned;
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(c) Pass such other order or orders as this Hon’ble Court
deems fit in the interest of justice and equity.”
2. Heard Sri Ranganath Reddy R. , learned counsel
appearing for the petitioner and Sri B.N. Jagadeesha, learned
State Public Prosecutor – I appearing for respondent No.1.
3. Facts, in brief, germane, are as follows: -
The petitioner, a public servant – Head Constable at
Bandepalya Police Station is drawn as accused No.3 in a private
nd
complaint registered by the 2 respondent/complainant in
P.C.R.No.15677 of 2025 before the learned Magistrate invoking
Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023
('BNSS' for short). The learned Magistrate, on the complaint being
registered, passes the following order on 25-09-2025:
“ 25-09-2025
Order
ORDER
The complainant has filed this private complaint under Section
223(1) of BNSS against the accused Nos. 1 to 3 for the offences
punishable under Sections 61, 109, 115(1), 115(2), 118(1), 126(2),
130 and Section 3(5) of BNS. In support of complaint he has filed
documents.
I have perused the contents of the complaint and the
documents. Heard the arguments of the learned counsel for
complainants. It is just and necessary to record the sworn statement
of the complainant.
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For sworn statement, call on 27-10-2025 .”
The learned Magistrate records sworn statement of the complainant
and issues notices to the accused as obtaining under Section 223(1)
of the BNSS by the following order dated 12-12-2025:
“ 12-12-2025
Order
ORDER
The sworn statement of complainant is recorded.
Now, it is just and necessary to give an opportunity to the
accused Nos. 1 to 3 as required under proviso of Section 223(1)
of BNSS. Section 223(1) of BNS which reads as under:
223. Examination of complainant .
“(1) A Magistrate having jurisdiction while
taking cognizance of an offence on complaint shall
examine upon oath the complainant and the
witnesses present, if any, and the substance of
such examination shall be reduced to writing and
shall be signed by the complainant and the
witnesses, and also by the Magistrate:
Provided that no cognizance of an offence
shall be taken by the Magistrate without giving the
accused an opportunity of being heard :”
Such being so, in the instant PCR, it is just and necessary
to hear the accused No.1 to 3. Hence, this Court proceed to
pass the following:
ORDER
Issue notice to accused No.1 to 3 if PF paid.
For appearance of the accused No.1 to 3.
Call on 31-01-2026 .”
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The petitioner is now before the Court calling in question the order
of issuance of notice after recording the sworn statement of the
complainant, on the score that the order suffers from procedural
aberration as obtaining under Sections 218 and 223 of the BNSS.
SUBMISSIONS:
PETITIONER:
4. The learned counsel Sri Ranganath Reddy R. appearing
for the petitioner would submit that the order dated 12-12-2025
quoted supra is without jurisdiction for it suffering from bar under
Section 218 of the BNSS. It is his submission that without
sanction, the concerned Court cannot take cognizance of the
offence. If the cognizance itself is barred, the learned Magistrate
lacks jurisdiction to issue notice. It is his submission that even to
issue notice, there must be sanction at the hands of the competent
authority. The purport of BNSS is thus defeated is his submission.
THE STATE:
5. Per contra , the learned State Public Prosecutor - I
st
appearing for the 1 respondent Sri B. N. Jagadeesha would
vehemently refute the submissions in contending that the stage of
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cognizance is yet to arrive. Sanction would be required for taking
cognizance of the offence on a report. The issue is still at the
pre-cognizance stage. What is to be followed in a pre-cognizance
stage is correctly followed by the concerned Court. He would submit
that if the concerned Court would take cognizance without sanction,
it is then the procedural aberration and not as is now projected. The
learned State Public Prosecutor-I would seek dismissal of the
petition.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
CONSIDERATION:
7. The afore-narrated facts are not in the realm of dispute.
Equally undisputed is the position occupied by the petitioner as a
Police Head Constable attached to Bandepalya Police Station at the
relevant point in time. The genesis of the controversy lies in the
celebrations of Karaga Mahotsava, said to have been organised by
nd
the 2 respondent/complainant in Mangammanapalya and its
surrounding areas. The petitioner, arrayed as accused No.3, along
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with other police personnel attached to Bandepalya Police Station,
was allegedly deployed to the places where the festivities were
scheduled to be held, ostensibly for the maintenance of law and
order and preservation of public peace during the celebrations.
8. The gravamen of the complaint is that the accused police
personnel, including the petitioner, allegedly indulged in the use of
filthy and abusive language against the participants of the Karaga
Mahotsava, thereby disturbing public tranquillity and causing
nuisance to those assembled. This, in essence, constitutes the sum
nd
and substance of the allegations that propelled the 2 respondent
to invoke the jurisdiction of the learned Magistrate by presenting a
private complaint under Section 223 of the BNSS, alleging offences
punishable under Sections 61, 109, 115(1), 115(2), 118(1), 126(2)
and 130 read with Section 3(5) of the Bharatiya Nyaya Sanhita,
2023 ('BNS' for short).
9. What emerges with unmistakable clarity from a perusal of
the complaint is that the entire edifice of the allegations against the
petitioner/accused No.3 rests upon acts allegedly committed while
he was deployed in connection with the discharge of his official
8
duties. The alleged occurrence is neither divorced from his official
assignment nor entirely unconnected with the functions he was
called upon to perform as a police officer. Whether the alleged acts
were in the lawful discharge of official duty, or merely purported to
be so, is a matter that assumes significance, in the light of the
statutory protection engrafted under Section 218 of the BNSS.
10. The learned Magistrate, upon presentation of the
complaint, passes an order on 25-09-2025 directing recording of
the sworn statement of the complainant. The said order is extracted
supra . Thereafter, on 12-12-2025, the learned Magistrate records
the sworn statement and proceeds to issue notice to accused Nos.1
to 3. The latter order is also extracted supra . It is these
proceedings that have brought the petitioner before this Court,
calling in question the legality of the procedure adopted by the
learned Magistrate and the sustainability of the proceedings
initiated against him.
11. The controversy, therefore, crystallises into two distinct,
yet interconnected, questions of law.
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11.1. The first is, whether the protective mandate contained
in Section 218 of the BNSS, corresponding to Section 197 of the
erstwhile Code of Criminal Procedure, 1973, ('Cr.P.C.' for short)
operates as a statutory embargo upon the learned Magistrate,
taking cognizance of the alleged offences against a public servant,
in the absence of the requisite sanction, when the acts complained
of bear a reasonable nexus to the discharge or purported discharge
of official duties. In other words, whether the requirement of
previous sanction constitutes a condition precedent to the exercise
of jurisdiction by the learned Magistrate in the circumstances
obtaining in the case at hand.
11.2. The second is, whether the order directing issuance of
notice to the accused withstands scrutiny on the touchstone of the
procedure expressly prescribed under Section 223 of the BNSS, or
whether it stands vitiated by a procedural infraction that strikes at
the very foundation of the proceedings. The distinction between a
notice affording the accused an opportunity of hearing before
cognizance and a process issued upon taking cognizance is of
considerable significance, for the statutory stages cannot be
10
conflated, nor can the procedural safeguards ordained by the
legislature be reduced to empty formalities.
SANCTION UNDER SECTION 218 OF THE BNSS:
12. These questions are not merely matters of procedural
nicety. They concern the limits of judicial cognizance, the protection
accorded by law to public servants against prosecution for acts
reasonably connected with official duty, and the obligation of a
criminal Court to adhere scrupulously to the procedure prescribed
by the statute. A safeguard consciously woven into the fabric
of criminal procedure cannot be treated as an expendable
formality. It is in the delicate balance between these competing
considerations that the present controversy must be examined. To
consider the first of the aforesaid issues, it becomes necessary to
notice the statutory prescription contained in Section 218 of the
BNSS, which reads as follows:
“ 218. 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 save as
11
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:
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 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
12
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) 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.
(5) The Central Government or the State Government,
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.”
As observed, Section 218 of the BNSS is a statutory successor of
Section 197 of the Cr.P.C. Whether sanction as obtaining under
Section 218 of the BNSS for referring the matter for investigation
by the concerned Court is required or otherwise need not detain
this Court for long or delve deep into the matter.
13. The Apex Court in ANUMANDALA RAJESH REDDY v.
1
STATE OF KARNATAKA , interpreting Section 197 of the Cr.P.C.,
has held as follows:
1
2026 SCC OnLine SC 2050
13
“…. …. ….
26. We are of the firm opinion that the finding of the High
Court that the investigation into the FIR could not continue for
want of sanction under Section 197 CrPC [corresponding to
Section 218 BNSS] is per se erroneous. Section 197(1) CrPC is
quoted hereinbelow for sake of ready reference:—
“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 [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.]
[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 166-A, Section
166-B, Section 354, Section 354-A, Section 354-B,
Section 354-C, Section 354-D, Section 370, Section 375,
Section 376, [Section 376-A, Section 376-AB, Section
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376-C, Section 376-D, Section 376-DA, Section 376-DB]
or Section 509 of the Penal Code, 1860.]”
[Emphasis supplied]
27. A bare perusal of the aforesaid provision, which
confers a protective umbrella upon public servants who
are alleged to have committed an offence during the
discharge of their official duties, makes it clear that the
requirement of sanction comes into operation only when
the Court is to proceed to take cognizance of the offence.
The concept of obtaining sanction under Section 197 CrPC
at the stage of registration of an FIR is alien to the
scheme of CrPC or BNSS. An order under Section 156(3)
CrPC directing registration of an FIR and investigation is
a pre-cognizance step and does not amount to taking
cognizance of the offence. Consequently, where the
Magistrate has, by exercising powers under Section
156(3) CrPC, directed registration of an FIR and to
conduct investigation, the absence or otherwise of
previous sanction under Section 197 CrPC cannot operate
as a bar to such registration and investigation . This aspect
was considered by this Court in the case of Ashwini Kumar
10
Upadhyay v. Union of India , relevant paragraphs of which are
extracted hereinbelow:—
“120. In the present case, the High Court
has declined to direct registration of an FIR on the
ground that prior sanction under Sections 196 and
197 of CrPC had not been obtained. The High Court
has further proceeded on the premise that while
exercising jurisdiction under Section 156(3) of
CrPC, the Magistrate is deemed to have taken
cognizance, and therefore, the requirement of
prior sanction becomes a condition precedent.
121. A coordinate Bench of this Court in
35
State of Karnataka v. Pastor P. Raju , had
occasion to consider the stage at which prior
sanction becomes necessary under CrPC. The
Court categorically held that there is no embargo
on the registration of a criminal case, the conduct
of investigation by the police, or the submission of
a report under Section 173 of CrPC in the absence
of prior sanction.
15
122. The requirement of sanction, this Court
clarified, operates at the stage of taking
cognizance by the Court and not at the anterior
stage of investigation. In this context, after surveying
the earlier precedents on the subject, this Court
observed as follows: —
“12. In Narayandas Bhagwandas
Madhavdas v. State of W.B. [1959 SCC OnLine
SC 39: 1959 SCC OnLine SC 39 : (1960) 1 SCR
93: 1959 SCC OnLine SC 39 : AIR 1959 SC
1118: 1959 SCC OnLine SC 39 : 1959 Cri LJ
1368] it was held that before it can be said
that any Magistrate has taken cognizance
of any offence under Section 190(1)( a ) of
the Criminal Procedure Code, he must not
only have applied his mind to the contents
of the petition but must have done so for
the purpose of proceeding in a particular
way as indicated in the subsequent
provisions of the Chapter—proceeding
under Section 200 and thereafter sending
it for inquiry and report under Section
202. It was observed that there is no
special charm or any magical formula in
the expression “taking cognizance” which
merely means judicial application of the
mind of the Magistrate to the facts
mentioned in the complaint with a view to
taking further action. It was also
observed that what Section 190
contemplates is that the Magistrate takes
cognizance once he makes himself fully
conscious and aware of the allegations
made in the complaint and decides to
examine or test the validity of the said
allegations . The Court then referred to the
three situations enumerated in sub-section (1)
of Section 190 upon which a Magistrate could
take cognizance. Similar view was expressed in
Kishun Singh v. State of Bihar [(1993) 2 SCC
16 : 1993 SCC (Cri) 470: (1993) 2 SCC 16 :
1993 SCC (Cri) 470] that when the Magistrate
takes notice of the accusations and applies his
mind to the allegations made in the complaint
or police report or information and on being
satisfied that the allegations, if proved, would
constitute an offence, decides to initiate
judicial proceedings against the alleged
16
offender, he is said to have taken cognizance
of the offence. …”
Thus, defining attribute of “taking
cognizance” of an offence lies in the application of
judicial mind by the Magistrate to the contents of
the complaint or police report with a view to
proceed in accordance with law, including under
Sections 200 or 204 of CrPC. Until such stage is
reached, any action undertaken by the Magistrate
cannot be construed as taking cognizance of the
offence.
123. In Pastor P. Raju (supra), the FIR therein
had been registered under Section 153B of IPC, and the
respondent was arrested and produced before the
Magistrate. At the stage of remand under Section 167 of
CrPC, the respondent sought quashing of the
proceedings on the ground of absence of prior sanction
under Section 196(1-A) of CrPC. While delineating the
distinction between “taking cognizance” and subsequent
procedural stages, including issuance of process, this
Court held as follows: —
“13. It is necessary to mention here
that taking cognizance of an offence is not the
same thing as issuance of process. Cognizance
is taken at the initial stage when the
Magistrate applies his judicial mind to the facts
mentioned in a complaint or to a police report
or upon information received from any other
person that an offence has been committed.
The issuance of process is at a subsequent
stage when after considering the material
placed before it the court decides to proceed
against the offenders against whom a prima
facie case is made out.
14. In the present case neither any
complaint had been filed nor any police report
had been submitted nor any information had
been given by any person other than the police
officer before the Magistrate competent to take
cognizance of the offence. After the FIR had
been lodged and a case had been registered
under Section 153-B IPC, the respondent was
arrested by the police and thereafter he had
been produced before the Magistrate. The
Magistrate had merely passed an order
remanding him to judicial custody. Section 167
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CrPC finds place in Chapter XII which deals
with information to the police and their powers
to investigate. This section gives the procedure
which has to be followed when investigation
cannot be completed within twenty-four hours
and requires that whenever any person is
arrested and detained in custody and it
appears that the investigation cannot be
completed within the period of twenty-four
hours fixed by Section 57 and there are
grounds for believing that the accusation or
information is well founded, he shall be
forthwith transmitted to the nearest Judicial
Magistrate along with a copy of the entries in
the diary. Sub-section (2) of Section 167 will
show that even a Magistrate who has no
jurisdiction to try the case can _uthorize the
detention of the accused. A limited role has to
be performed by the Judicial Magistrate to
whom the accused has been forwarded viz. to
_uthorize his detention. This is anterior to
Section 190 CrPC which confers power upon a
Magistrate to take cognizance of an offence.
Therefore, an order remanding an accused to
judicial custody does not amount to taking
cognizance of an offence. In such
circumstances Section 196(1-A) CrPC can have
no application at all and the High Court clearly
erred in quashing the proceedings on the
ground that previous sanction of the Central
Government or of the State Government or of
the District Magistrate had not been obtained.
It is important to note that on the view taken
by the High Court, no person accused of an
offence, which is of the nature which requires
previous sanction of a specified authority
before taking of cognizance by the court, can
ever be arrested nor such an offence can be
investigated by the police. The specified
authority empowered to grant sanction does so
after applying his mind to the material
collected during the course of investigation.
There is no occasion for grant of sanction soon
after the FIR is lodged nor such a power can be
exercised before completion of investigation
and collection of evidence. Therefore, the
whole premise on the basis of which the
proceedings have been quashed by the High
Court is wholly erroneous in law and is liable to
be set aside.”
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124. A cumulative reading of the principles laid
down in Pastor P. Raju (supra) and Sakiri Vasu (supra)
makes the legal position abundantly clear that an order
passed by a Magistrate under Section 156(3) of CrPC
does not amount to “taking cognizance” of an offence
within the meaning of Section 190 of CrPC.
125. In the present case, the appellants, being
aggrieved by the inaction of the police authorities in
registering an FIR, approached the Magistrate by way of
an application under Section 156(3) of CrPC. The bar
contained in Sections 196 and 197 of CrPC operates only
at the stage of taking cognizance. In other words, it
restrains the Magistrate from proceeding under Section
190 and thereafter invoking the procedure under
Sections 200 or 204 of CrPC in the absence of prior
sanction.
126. The scheme of CrPC does not
contemplate any embargo on the direction for
registration of an FIR or the conduct of
investigation at the pre-cognizance stage. To hold
otherwise would amount to introducing a
restriction not envisaged by the legislature. The
process of criminal law is sequential: information
of a cognizable offence must first be received; an
FIR must then be registered; investigation must
follow; a report under Section 173 of CrPC must
thereafter be submitted; and it is only at that
stage that the question of taking cognizance
arises.
127. The requirement of sanction is,
therefore, a condition precedent only for taking
cognizance and not for the registration of an FIR
or for the conduct of investigation. Any
interpretation that makes the registration of an
FIR contingent upon prior sanction would invert
this statutory scheme and render the provisions
relating to investigation unworkable.
128. In the facts of the present case, the prayer
before the Trial Court was limited to seeking a direction
to the Station House Officer, Parliament Street Police
Station, to register an FIR on the basis of the complaint
th
dated 29 January, 2020. In law, the Magistrate had
two options: either to direct investigation under Section
19
156(3), or to take cognizance under Section 190(1)(a)
and proceed in accordance with Chapter XV.
129. The bar under Sections 196 and 197 of
CrPC would operate only in respect of the latter
course. It could not have been invoked to deny the
former. The Trial Court, therefore, fell in error in
declining to exercise jurisdiction under Section
156(3) of CrPC on the ground of absence of prior
sanction, and the High Court, in affirming such
view, has adopted an interpretation which cannot
be sustained in law.”
[Emphasis supplied]
28. Thus, it is clear that the impugned order, insofar
as it extends the benefit of the protective umbrella of
sanction to the respondents at the stage of direction for
registration of FIR under Section 156(3) CrPC, is per se
unsustainable in the eyes of law.”
The Apex Court, in the afore-quoted judgment, delineates with
unmistakable clarity the stage at which the protective mantle of
sanction, as contemplated under Section 197 of the erstwhile
Cr.P.C., corresponding to Section 218 of the BNSS, assumes
statutory significance. The Apex Court holds that the requirement of
previous sanction is attracted at the stage of taking cognizance of
the alleged offence against a public servant and not at a stage
anterior thereto. The embargo engrafted in the provision is thus
upon the Court taking cognizance without the requisite sanction,
wherever such sanction is warranted in law. It does not operate as
20
an absolute interdiction against every preliminary step that a
learned Magistrate may undertake before arriving at the stage of
cognizance.
14. When the facts obtaining in the case at hand are
examined on the touchstone of the aforesaid exposition of law,
what emerges is that the learned Magistrate has not yet crossed
the threshold of cognizance. The proceedings remain at the pre-
cognizance stage. The learned Magistrate has recorded the sworn
statement of the complainant and issued notice to the accused.
Such issuance of notice, at this stage, cannot by itself, be construed
as an act of taking cognizance of the alleged offences. The statutory
interdiction under Section 218 of the BNSS has, therefore, not yet
come into operation.
15. The submission advanced on behalf of the petitioner that
the learned Magistrate was denuded of jurisdiction even to issue
notice after recording the sworn statement of the complainant, for
want of previous sanction under Section 218 of the BNSS, is
consequently sans substance and merits no countenance. A
statutory safeguard that becomes operative at the threshold
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of cognizance cannot be invoked to invalidate proceedings
that have not yet reached that threshold. To hold otherwise
would be to advance the stage of the statutory embargo
beyond what the legislature has ordained and transform a
protection against unauthorised cognizance into an
impediment against even preliminary judicial consideration.
16. Therefore, insofar as the challenge founded upon Section
218 of the BNSS is concerned, the proceedings before the learned
Magistrate, up to the stage at which they are brought under
challenge before this Court, cannot be held to suffer from want of
jurisdiction, merely on the ground of absence of previous sanction.
This conclusion, however, does not foreclose the question of
sanction at the appropriate stage. Should the learned Magistrate
proceed to take cognizance, the mandate of Section 218 of the
BNSS, if attracted on the facts and in law, would necessarily require
consideration and compliance. The protection afforded to a
public servant is neither extinguished by the initiation of
preliminary proceedings nor prematurely attracted before
the statutory occasion for its application arises. The first
22
issue, therefore, stands answered against the petitioner, subject to
the aforesaid clarification.
PROCEDURE UNDER SECTION 223 OF THE BNSS QUA PUBLIC
SERVANTS:
17. The next issue, which assumes significance independent
of the question of sanction is, whether the procedure adopted by
the learned Magistrate bears fidelity to the statutory command
nd
contained in Section 223 of the BNSS. The 2 respondent sets the
criminal law in motion by presenting a private complaint invoking
Section 223 of the BNSS. The legality of the proceedings must,
therefore, be tested against the procedural architecture erected by
the said provision. This Court in the case of BASANAGOUDA R.
2
PATIL v. SHIVANANDA S. PATIL , while elucidating what would
be the procedural drill for a private complaint under Section 223 of
the BNSS, has held as follows:
“…. …. ….
7. The registration of the private complaint for offences
punishable under Section 356(2) of the BNSS is not in dispute.
The fulcrum of the compliant was that the petitioner made a
2
2024 SCC OnLine Kar 96
23
defamatory speech against the respondent at an election rally.
The issue that is brought before the Court, at this juncture, is
not on the merit of the matter. The complaint is filed by the
respondent invoking Section 223 of the BNSS, which is Section
200 in the earlier regime - Cr. P.C. The moment complaint is
registered, a notice is issued to the accused. Issuance of notice
to the accused has driven the petitioner to this Court, in the
subject petition, contending that it is contrary to the procedure
to be adopted in law. Therefore, it becomes germane to notice
certain provisions of the BNS 2023. Filing of the private
complaint is dealt with under Section 223 of the BNSS, which
was Section 200 of Cr. P.C., it reads as follows:
“ 223. Examination of complainant.—(1) A
Magistrate having jurisdiction while taking
cognizance of an offence on complaint shall
examine upon oath the complainant and the
witnesses present , if any, and the substance of such
examination shall be reduced to writing and shall be
signed by the complainant and the witnesses, and also
by the Magistrate:
Provided that no cognizance of an offence
shall be taken by the Magistrate without giving the
accused an opportunity of being heard:
Provided further that when the complaint is made
in writing, the Magistrate need not examine the
complainant and the witnesses—
(a) if a public servant acting or purporting to act in
the discharge of his official duties or a Court has
made the complaint; or
(b) if the Magistrate makes over the case for inquiry
or trial to another Magistrate under Section 212:
Provided also that if the Magistrate makes over
the case to another Magistrate under Section 212 after
examining the complainant and the witnesses, the latter
Magistrate need not re-examine them.
(2) A Magistrate shall not take cognizance on a
complaint against a public servant for any offence
alleged to have been committed in course of the
discharge of his official functions or duties unless—
24
(a) such public servant is given an opportunity to
make assertions as to the situation that led to
the incident so alleged; and
(b) a report containing facts and circumstances of
the incident from the officer superior to such
public servant is received.”
(Emphasis supplied)
Proviso to sub-section (1) of Section 223 of the
BNSS mandates that a Magistrate while taking
cognizance of an offence, on a complaint, shall examine
upon oath, the complainant and the witnesses present if
any and reduce it into writing. The proviso further
mandates that no cognizance of an offence shall be taken
by the Magistrate without giving an opportunity to the
accused of being heard. Section 227 of the BNSS deals with
issuance of process which is akin to Section 204 of the Cr. P.C.
This stage is yet to arrive in the case at hand.
8. The obfuscation generated in the case at hand is
with regard to interpretation of Section 223 of the BNSS,
as to whether on presentation of the complaint, notice
should be issued to the accused, without recording sworn
statement of the complainant, or notice should be issued
to the accused after recording the sworn statement, as
the mandate of the statute is, while taking cognizance of
an offence the complainant shall be examined on oath.
The proviso mandates that no cognizance of an offence
shall be taken by the Magistrate without giving the
accused an opportunity of being heard.
9. To steer clear the obfuscation, it is necessary to
notice the language deployed therein. The Magistrate
while taking cognizance of an offence should have with
him the statement on oath of the complainant and if any
witnesses are present, their statements. The taking of
cognizance under Section 223 of the BNSS would come
after the recording of the sworn statement, at that
juncture a notice is required to be sent to the accused, as
the proviso mandates grant of an opportunity of being heard.
25
10. Therefore, the procedural drill would be this
way:
A complaint is presented before the Magistrate
under Section 223 of the BNSS; on presentation of the
complaint, it would be the duty of the
Magistrate/concerned Court to examine the complainant
on oath, which would be his sworn statement and
examine the witnesses present if any, and the substance
of such examination should be reduced into writing. The
question of taking of cognizance would not arise at this
juncture. The magistrate has to, in terms of the proviso,
issue a notice to the accused who is given an opportunity
of being heard. Therefore, notice shall be issued to the
accused at that stage and after hearing the accused, take
cognizance and regulate its procedure thereafter.
11. The proviso indicates that an accused should
have an opportunity of being heard. Opportunity of being
heard would not mean an empty formality. Therefore, the
notice that is sent to the accused in terms of proviso to
sub-section (1) of Section 223 of the BNSS shall append
to it the complaint; the sworn statement; statement of
witnesses if any, for the accused to appear and submit
his case before taking of cognizance. In the considered
view of this Court, it is the clear purport of Section 223 of
BNSS 2023 .”
18. The question is not merely whether the learned
Magistrate possessed the jurisdiction to entertain the complaint, but
whether the jurisdiction so possessed has been exercised in the
manner prescribed by law. The existence of jurisdiction is one
thing; its exercise in conformity with the procedure ordained
by the statute is quite another. A proceeding may survive a
26
challenge founded upon the absence of sanction and yet falter if the
mandatory procedure governing its initiation has been observed in
breach, rather than in compliance. The answer to the first issue,
therefore, does not ipso facto furnish an answer to the second.
19. It becomes necessary, in that light, to notice the language
of Section 223 of the BNSS, particularly, the procedural safeguards
engrafted therein and the sequence of judicial steps contemplated
by the legislature. Section 223 of the BNSS reads as follows:
“ 223. Examination of complainant .—(1) A Magistrate
having jurisdiction while taking cognizance of an offence on
complaint shall examine upon oath the complainant and the
witnesses present, if any, and the substance of such
examination shall be reduced to writing and shall be signed by
the complainant and the witnesses, and also by the
Magistrate:
Provided that no cognizance of an offence shall be
taken by the Magistrate without giving the accused an
opportunity of being heard:
Provided further that when the complaint is made in
writing, the Magistrate need not examine the complainant and
the witnesses—
( a ) if a public servant acting or purporting to act in the
discharge of his official duties or a Court has made the
complaint; or
( b ) if the Magistrate makes over the case for inquiry or trial
to another Magistrate under Section 212:
27
Provided also that if the Magistrate makes over the case
to another Magistrate under Section 212 after examining the
complainant and the witnesses, the latter Magistrate need not
re-examine them.
(2) A Magistrate shall not take cognizance on a
complaint against a public servant for any offence
alleged to have been committed in course of the
discharge of his official functions or duties unless—
( a ) such public servant is given an opportunity to
make assertions as to the situation that led to the
incident so alleged; and
( b ) a report containing facts and circumstances of the
incident from the officer superior to such public
servant is received. ”
A conjoint reading of Section 223 of the BNSS, particularly the first
proviso to sub-section (1) and the safeguards engrafted under
sub-section (2), brings to the fore a carefully structured procedural
regime governing the entertainment of private complaints, more
particularly those levelled against public servants for acts alleged to
have been committed in the course of discharge of their official
functions or duties. The provision marks a significant departure
from the procedure obtaining under the erstwhile Cr.P.C. by
introducing safeguards at the threshold of cognizance. The
legislative intent is unmistakable: a public servant ought not to be
exposed to the rigours of criminal prosecution for acts reasonably
28
connected with the discharge of official functions without the
Magistrate first undertaking the scrutiny that the statute expressly
commands.
20. The procedural architecture emerging from Section 223 of
the BNSS, read in conjunction with Section 218 of the BNSS
wherever applicable, may be delineated thus:
A. PROCEDURE AT THE PRE-COGNIZANCE STAGE
Step 1 - Examination of the complaint and recording of
sworn statements:
20.1. Upon presentation of a private complaint, the learned
Magistrate is required to examine the complaint and, in accordance
with Section 223(1) of the BNSS, examine upon oath the
complainant and the witnesses present, if any. The substance of
such examination shall be reduced into writing and shall bear the
signatures of the complainant, the witnesses, if any, and the
Magistrate. This constitutes the foundational stage of preliminary
judicial scrutiny, enabling the Magistrate to ascertain the nature
29
and substance of the allegations, before proceeding further in
accordance with law.
Step 2 - Calling for a report from the superior officer:
20.2. Where the complaint alleges commission of an offence
by a public servant in the course of discharge of his official
functions or duties, the Magistrate is required, in terms of Section
223(2)(b) of the BNSS, to obtain a report containing the facts and
circumstances of the incident from an officer, superior to such
public servant. This requirement is not an ornamental addition to
the statute. It serves the salutary purpose of placing before the
Magistrate an account of the circumstances surrounding the alleged
occurrence, thereby enabling a more informed consideration of the
complaint. The report of the superior officer constitutes a statutory
safeguard against precipitate cognizance of allegations arising out
of the performance of official functions.
Step 2.1 - Consideration of the requirement of sanction:
20.3. Where the allegations concern acts committed by a
public servant while acting or purporting to act in the discharge of
30
official duty, the Magistrate must advert to the requirement of
previous sanction contemplated under Section 218(1) of the BNSS,
wherever the said provision is attracted. The necessity of sanction
must be examined in the light of the nature of the alleged acts,
their nexus with official duty and the status of the public servant
concerned. The actual statutory embargo upon proceeding without
such sanction operates at the stage of taking cognizance and not at
the antecedent stages of preliminary scrutiny.
Step 3 - Opportunity of hearing to the accused/public
servant:
20.4. The Magistrate is, thereafter, required to afford the
accused/public servant an opportunity of placing his version of the
circumstances leading to the alleged incident, as contemplated
under Section 223(2)(a) of the BNSS. This requirement must be
read in harmony with the first proviso to Section 223(1), which
mandates an opportunity of hearing to the accused before
cognizance is taken. To render such an opportunity meaningful and
effective, the accused/public servant must be apprised of the
allegations and furnished the material necessary to respond
31
thereto, including the complaint, the relevant sworn statements and
the report obtained from the superior officer.
20.5. An opportunity of hearing without adequate
knowledge of the allegations and the material forming their
foundation would be an opportunity in form and not in
substance. The legislature did not intend a hearing that is
reduced to a ritual, bereft of the means necessary to make
an effective representation.
B. PROCEDURE AT THE STAGE OF COGNIZANCE
Step 4 - Consideration of cognizance after compliance with
the prescribed safeguards:
20.6. Upon completion of the aforesaid preliminary
requirements, including affording the accused an opportunity of
hearing, the learned Magistrate may proceed to consider, whether
cognizance of the alleged offences is warranted. It is at this stage
that the Magistrate must apply judicial mind to the complaint, the
sworn statements, the report of the superior officer, wherever
applicable, and the submissions of the accused, for the purpose of
32
determining whether the complaint merits further proceedings in
accordance with law.
Step 4.1 — Previous sanction as a condition precedent to
cognizance:
20.7. Where the acts complained of bear the requisite nexus
to the discharge or purported discharge of official duties and the
public servant falls within the protective ambit of Section 218 of the
BNSS, cognizance cannot be taken, except in conformity with the
requirement of previous sanction prescribed thereunder. The
Magistrate must, therefore, ensure that the statutory requirement
of sanction, wherever attracted, stands satisfied before crossing the
threshold of cognizance. The opportunity of hearing contemplated
under Section 223 of the BNSS must also precede such cognizance.
21. The aforesaid stages demonstrate the distinction between
preliminary judicial scrutiny and the act of taking cognizance. The
examination of the complainant and recording of sworn statements
at Step 1, obtaining the report of the superior officer at Step 2 and
affording an opportunity of hearing to the accused public servant at
33
Step 3 are all steps anterior to cognizance. These preliminary
exercises do not, by themselves, attract the embargo contained in
Section 218 of the BNSS. Sanction is a statutory prerequisite to
cognizance, wherever Section 218 applies; it is not a
prerequisite to every preliminary step undertaken by the
Magistrate in contemplation of cognizance.
22. The distinction is of considerable importance. The law
does not prohibit the Magistrate from examining a complaint
against a public servant; it regulates the manner in which
the Magistrate may proceed to take cognizance thereof.
Equally, the absence of a requirement of sanction at the preliminary
stage does not dilute the independent procedural obligations
imposed by Section 223. The two provisions operate in their
respective spheres and must be construed harmoniously, so that
neither the safeguard of previous sanction nor the safeguard of
preliminary hearing is rendered otiose.
34
JUDICIAL LANDSCAPE ON PROCEDURE UNDER SECTION
223(2) OF THE BNSS:
23.1. Difference between Section 218(1) and Section 223(2)
of the BNSS is succinctly interpreted by the High Court of Kerala in
3
the case of SUHYB P.J. v. STATE OF KERALA , wherein it is held
as follows:
“…. …. ….
8. The first contention being regarding the failure of the
Magistrate to follow the procedure prescribed in Section 223 of
the BNSS, the said provision is extracted hereunder for easy
reference
“223. Examination of complainant.
(1) A Magistrate having jurisdiction while taking
cognizance of an offence on complaint shall examine
upon oath the complainant and the witnesses present, if
any, and the substance of such examination shall be
reduced to writing and shall be signed by the
complainant and the witnesses, and also by the
Magistrate:
Provided that no cognizance of an offence shall
be taken by the Magistrate without giving the accused
an opportunity of being heard:
Provided further that when the complaint is made
in writing, the Magistrate need not examine the
complainant and the witnesses-
(a) if a public servant acting or purporting to
act in the discharge of his official duties or
a Court has made the complaint; or
3
2025 SCC OnLine Ker 5070
35
(b) if the Magistrate makes over the case for
inquiry or trial to another Magistrate
under Section 212 : Provided also that if
the Magistrate makes over the case to
another Magistrate under Section 212
after examining the complainant and the
witnesses, the latter Magistrate need not
re-examine them.
(2) A Magistrate shall not take cognizance on a
complaint against a public servant for any offence
alleged to have been committed in course of the
discharge of his official functions or duties unless-
(a) such public servant is given an
opportunity to make assertions as to the
situation that led to the incident so
alleged; and
(b) a report containing facts and
circumstances of the incident from the
officer superior to such public servant is
received.”
(underline supplied)
9. The difference between the procedure prescribed in
Section 202 of the Code of Criminal Procedure and Section
223(1) was noticed by this Court in Suby Antony v. Susha ,
[2025 (1) KHC 596], the relevant portion of which is extracted
below;
“7. Indeed, a radical change in procedure is
brought about by the proviso to S. 223(1) of BNSS.
Pertinently, in spite of the proviso to S. 223(1) making it
mandatory to provide opportunity of hearing to the
accused before taking cognisance, S. 226 does not
reckon the accused's objection at the stage of taking
cognisance as a relevant factor for dismissing the
complaint. Being guided by the precedents on S. 200
and S. 202 of the Code and the plain language of the
proviso to S. 223(1) of the BNSS, this Court is of the
opinion that, after the complaint is filed, the Magistrate
should first examine the complainant and witnesses on
oath and thereafter, if the Magistrate proceeds to take
36
cognisance of the offence/s, opportunity of hearing
should be afforded to the accused.”
10. In so far as cognisance was taken by the Magistrate
in C.C. Nos. 612, 613 and 614 of 2024, without following the
prescribed procedure, Crl.M.C. Nos. 73, 74 and 85 are liable to
be allowed.
11. The next contention is regarding the failure to follow
the procedure prescribed in sub-section (2) to Section 223 of
BNSS. Here, it is pertinent to note that Section 202 of the Code
of Criminal Procedure did not contain a provision corresponding
to Section 223(2) of BNSS. The only provision in the Code
providing such protection to public servants was Section 197(1)
and the corresponding Section in the BNSS is Section 218(1),
extracted below;
“218. 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 officer 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)—
(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:
(underline supplied)
37
12. On careful scrutiny of Sections 218(1) and
223(2) it can be seen that the protection under Section
218 is confined to the offences alleged to have been
committed by a public servant while acting or purporting
to act in the discharge of official duty. On the other hand,
sub-section (2) of Section 223 covers offences alleged to
have been committed by a public servant in course of the
discharge of the official functions or duties. Interpreting
the words ‘any offence alleged to have been committed
by the public servant while acting or purporting to act in
the discharge of his official duty, the Apex Court in B.
Saha v. M.S. Kochar , [(1979) 4 SCC 177 : AIR 1979 SC
1841] has observed that if those words are construed
narrowly, the provision will be rendered sterile, for, it is
not part of an official duty to commit an offence and in
the wider sense the words will take under their umbrella
every act constituting an offence, committed in the
course of the same transaction in which the official duty
is performed or purports to be performed. Therefore, the
right approach lies between the two extremes. In Rizwan
Ahmed Javed Shaikh (supra), the Supreme Court laid down the
test for the applicability of Section 197 as under;
“ 15. The real test to be applied to attract the
applicability of Section 197(3) is whether the act which
is done by a public officer and is alleged to constitute an
offence was done by the public officer whilst acting in his
official capacity though what he did was neither his duty
nor his right to do as such public officer. The act
complained of may be in exercise of the duty or in the
absence of such duty or in dereliction of the duty, if the
act complained of is done while acting as a public officer
and in the course of the same transaction in which the
official duty was performed or purported to be
performed, the public officer would be protected.”
13. Later, in Sankaran Moitra (supra), after extensive
survey of precedents, the Supreme Court encapsulated its
conclusion as to the primary object of Section 197 in the
following words;
“ 67. From the aforesaid decisions, in my
opinion, the law appears to be well settled. The primary
object of the legislature behind Section 197 of the Code
38
is to protect public officers who have acted in discharge
of their duties or purported to act in discharge of such
duties. But, it is equally well settled that the act said to
have been committed by a public officer must have
reasonable connection with the duty sought to be
discharged by such public officer. If the act complained
of has no nexus, reasonable connection or relevance to
the official act or duty of such public servant and is
otherwise illegal, unlawful or in the nature of an
offence, he cannot get shelter under Section 197 of the
Code. In other words, protection afforded by the said
section is qualified and conditional.”
14. True, that in Alavi C. (supra), this Court, in the
context of Section 197, has held that acts of physical torture
and abuse cannot be said to have reasonable connection with
official duty. Here, it is pertinent to note that the wordings of
Section 223(2) of BNSS are much more expansive than
Section 197(1) of the Code (Section 218(1) of BNSS).
While Section 218(1) contemplates sanction of the
Government if the public servant is alleged to have
committed any offence while acting or purporting to act
in the discharge of his official duty, Section 223(2)
provides an opportunity to the public servant to make his
assertions with respect to any offence alleged to have
been committed in course of the discharge of his official
functions or duties. Undoubtedly, the words ‘any offence
alleged to have been committed in course of the
discharge of his official functions or duties’ would take in
an excessive act committed by such person in the course
of the discharge of his official functions or duties.
15. Another vital difference between the provisions
is that, in Section 218(1) only the word duty is used,
whereas in Section 223(2), both duty and function are
mentioned. While the expression ‘public duty’ refers to an
obligation or responsibility imposed on a public official,
the term public function refers to the activity, role or
service performed by a public official or a person acting
on behalf of the Government. Thus, it is apparent that the
legislature has consciously used the expansive
expression in Section 223(2) so as to provide additional
layer of protection to public servants from prosecution
based on false and frivolous complaints. Therefore, when
39
dealing with complaints alleging commission of offence
by a public servant in course of the discharge of his
official function or duty, the Magistrate is bound to follow
the procedure prescribed in Section 223(2) of BNSS.
16. While on the subject it may also be profitable to
note that while sanctioning under Section 218(1) of BNSS
is confined to persons employed by the Central and State
Governments, no such restriction is stipulated in Section
223(2), the expression used therein being public servant
simplicitor. Therefore, all persons falling within the
definition of ‘public servant’ under Section 2(28) of the
BNS are covered by the protective umbrella of Section
nd
223(2) of BNSS. Being so, the contention of the 2
nd
respondent that the 2 petitioner is not appointed by the State
Government and therefore do no fall within the ambit of Section
223(2) can only be rejected.
17. The above discussion leads to the conclusion that in
CMP Nos. 2814 of 2024 and 2869 of 2024, the Magistrate
should afford opportunity to the petitioners to offer their
explanation regarding the alleged incident and call for a report
st
from their superior officer. The 1 petitioner being the
nd
immediate superior of the 2 petitioner, the Magistrate may call
for a report from an officer superior in rank to both the
petitioners.”
23.2. While delineating the procedural drill that the learned
Magistrate should follow under Section 223(2) of the BNSS, the
High Court of Gujarat in the case of RAJDIPSINH NARSINH
4
NAKUM v. STATE OF GUJARAT has held as follows:
“…. …. ….
4
R/Criminal Revision Application (Against order passed by subordinate
Court) No.1151 of 2026 disposed of on 22-04-2026
40
7. The case of G.C. Manjunath And Others (supra), was
referred by learned senior advocate Mr. Nanavaty, para nos.42
to 46 is reproduced herein under:
42. Turning to the case at hand, there is little
doubt that the allegations levelled against the accused
persons are grave in nature. Broadly classified, the
accusations against the accused persons encompass the
following:
(1) abuse of official authority by the accused persons
in allegedly implicating the complainant in
fabricated criminal cases, purportedly driven by
malice or vendetta;
(2) physical assault and ill-treatment of the
complainant by the accused persons, constituting
acts of alleged police excess;
(3) wrongful confinement of the complainant; and
(4) criminal intimidation of the complainant.
43. In the circumstances at hand, we are of the
considered opinion that the allegations levelled against
the accused persons, though grave, squarely fall within
the ambit of "acts done under colour of, or in excess of,
such duty or authority," and “acting or purporting to act
in the discharge of his official duty,” as envisaged under
Section 170 of the Police Act and Section 197 of the
CrPC, respectively.
44 . This Court, while adjudicating on instances of
alleged police excess, has consistently held in
Virupaxappa and D. Devaraja, that where a police
officer, in the course of performing official duties,
exceeds the bounds of such duty, the protective shield
under the relevant statutory provisions continues to
apply, provided there exists a reasonable nexus between
the impugned act and the discharge of official functions.
It has been categorically held that transgression or
overstepping of authority does not, by itself, suffice to
displace the statutory safeguard of requiring prior
government sanction before prosecuting the public
servant concerned.
41
45 . In the present case, it is an admitted position
that the complainant was declared a rowdy sheeter by
the Deputy Commissioner of Police, Law and Order
(West), Bengaluru City, pursuant to a request made by
the Mahalakshmi Layout Police Station, Bengaluru, upon
due consideration of the criminal cases registered
against the complainant, vide order dated 23.08.1990.
Subsequently, multiple criminal cases have been
instituted against the complainant. It is in the course of
the investigation of these cases that the instant
allegations have been levelled against the accused
persons. As noted above, any action undertaken by a
public officer, even if in excess of the authority vested in
them or overstepping the confines of their official duty,
would nonetheless attract statutory protection, provided
there exists a reasonable nexus between the act
complained of and the officer’s official functions.
46. In the present case, it is evident that 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. As previously
observed, a mere excess or overreach in the
performance of official duty does not, by itself, disentitle
a public servant from the statutory protection mandated
by law. The safeguard of obtaining prior sanction from
the competent authority, as envisaged under Section
197 of the CrPC and Section 170 of the Police Act cannot
be rendered nugatory merely because the acts alleged
may have exceeded the strict bounds of official duty. In
view of the foregoing, we are of the considered opinion
that the learned VII Additional Chief Metropolitan
Magistrate erred in taking cognisance of the alleged
offences against the accused persons without the
requisite sanction for prosecution in the instant case.
The absence of the necessary sanction vitiates the very
initiation of criminal proceedings against the accused
persons.
8. Section 223 of the BNSS is with the heading of
‘Examination of complainant’. The first proviso itself
makes it clear that the Magistrate shall not take
cognizance of the offence without giving the accused an
opportunity of being heard. Such opportunity has to be
given in all the matters, even if, it would not be a case
42
against any public servant. The second proviso further
clarifies that when a complaint is in writing, there is no
need to examine the complainant and the witnesses, if
the public servant acting or purporting to act in discharge
of his official duty or a Court has made the complaint or
in the case, if the Magistrate makes over the case for
inquiry or trial to another Magistrate under section 212 of
the BNSS, 2023.
8.1 The relevant provision, which touches the issue
in dispute in the present matter is sub-section (2) of
section 223 of the BNSS, 2023. It has been very clearly
laid down that before taking the cognizance on the
complaint against the public servant for any offence
alleged to have been committed in course of discharge of
his official functions or duties, the public servant is
required to be given an opportunity, so that the public
servant can produce his own case with statement of facts
as to the situation that had led to the incident so alleged,
further unless the report containing the facts and
circumstances of the incident from the officers superior
to the public servant is received.
9. Here, in this matter, the learned Magistrate has issued
the process under section 227 of the BNSS, 2023 without
complying the provisions of sub-section (2) of section 223 of the
BNSS, 2023. Though, a complaint has been made of
custodial torture or mis-treatment or an assault, as
provided under sub-section (2) of section 223, the
provision mandates the Magistrate to hear the public
servant so that he can make his own assertion as to the
situation, which has been alleged by the complainant. It
also becomes necessary to ask for a report from the
superior officer of that of public servant, containing the
facts and circumstances of the incident. It is only after an
opportunity is granted to the public servant and on
receiving the report from the superior officer of the public
servant with regard to the facts and circumstances of the
incident and the assertions made by the public servant
with regard to the incident alleged, the learned
Magistrate under the inquiry is required to apply the mind
for taking the cognizance prior to issuance of the process
under section 227 of the BNSS, 2023.
43
10. This Court finds that the learned Magistrate has
erred by not following the procedure under the provision
of subsection (2) of section 223 of the BNSS, 2023. The
contention of learned advocate Mr. Dave that the revision ought
to be filed before the Sessions Court cannot be given a
countenance since both the High Court and Sessions Judge
would have equal power to exercise the revision jurisdiction.
Further, since the order has been passed by the Sessions Judge
in ‘Javak’ No.8173/2025 dated 02.06.2025, it would not have
been proper for the applicants to have approached the Sessions
Judge challenging the order, directing inquiry.
11. Hence, the present application is allowed. The order
dated 13.06.2025 passed by the Judicial Magistrate, First Class,
(3rd Court), Surat in Criminal Inquiry No.107 of 2025 is set
aside directing the learned Magistrate that since the statements
of the complainants have already been recorded, the Magistrate
to follow sub-section (2) of section 223 of the BNSS, for
considering the case for issuance of the process.”
(Emphasis supplied at each instance)
24. If the law laid down by the Apex Court, this Court and the
High Courts of Kerala and Gujarat, as noticed hereinabove, is
juxtaposed with the facts obtaining in the case at hand, three
dates assume decisive significance , for they trace the
progression of the proceedings and bring into sharp focus the
procedural infraction that has crept into the exercise undertaken by
nd
the learned Magistrate. The first is 08-09-2025 , when the 2
respondent presents a private complaint under Section 223(1) of
44
the BNSS against the petitioner, who is admittedly a public servant.
The allegations in the complaint themselves unmistakably disclose
that the acts complained of were allegedly committed when the
petitioner was deployed in connection with the Karaga Mahotsava
celebrations, in the course of performing his official duties. The
second is 25-09-2025 , when the learned Magistrate passes an
order posting the matter for recording the sworn statement of the
complainant. The third is 12-12-2025 , when the learned
Magistrate, upon recording the sworn statement, proceeds to issue
notice to the accused, in purported compliance with the first proviso
to Section 223(1) of the BNSS, affording them an opportunity of
hearing before cognizance.
25. The aforesaid chronology, though seemingly innocuous,
reveals a statutory infraction of considerable significance. The
infirmity does not lie in the learned Magistrate entertaining the
complaint, recording the sworn statement or even issuing notice to
the accused at the pre-cognizance stage. These are steps which the
statutory scheme permits. The infirmity lies in what the learned
Magistrate omitted to do while undertaking what the statute
45
otherwise permitted him to do. The complaint, on its very face,
alleges acts committed by the petitioner in connection with the
discharge of his official functions. This circumstance necessarily
invited the application of Section 223(2) of the BNSS, which
engrafts an additional and specific safeguard in the case of
complaints against public servants.
26. The learned Magistrate was, therefore, required to secure
a report, containing the facts and circumstances of the alleged
incident from an officer superior to the petitioner, as mandated
under Section 223(2)(b) of the BNSS, and to afford the petitioner
an opportunity to place his version of the circumstances leading to
the alleged incident, as contemplated under Section 223(2)(a). The
record, however, does not disclose that any such report was called
for or secured before the impugned order came to be passed. The
learned Magistrate appears to have proceeded under the general
procedure contemplated by Section 223(1) of the BNSS, without
adverting to the additional statutory safeguards specifically
incorporated under Section 223(2).
46
27. The generality of sub-section (1) of Section 223
cannot be permitted to eclipse the specificity of sub-section
(2) of Section 223. When the legislature has consciously carved
out a distinct procedure for complaints against public servants
arising out of acts connected with their official functions, the
Magistrate cannot proceed as though, the special prescription were
absent from the statute book. To countenance such a course
would be to render sub-section (2) a dead letter and reduce
a substantive legislative safeguard to a mere ornamental
appendage.
28. It must be emphasised that the present case does not
involve an infraction of Section 218 of the BNSS at this stage, for
the learned Magistrate has admittedly not yet taken cognizance.
The embargo of previous sanction, wherever attracted, would arise
at the stage of cognizance. The vice that afflicts the impugned
proceedings is not the absence of sanction under Section
218, but the failure to observe the mandatory procedure
engrafted under Section 223(2) of the BNSS. The distinction is
fundamental and cannot be lost sight of.
47
29. The order dated 12-12-2025, passed after recording the
sworn statement and directing issuance of notice to the accused
under the first proviso to Section 223(1), without compliance with
the requirements of Section 223(2), therefore, cannot be sustained
in its present form. The learned Magistrate ought to have
undertaken the exercise contemplated under the special statutory
provision, before proceeding further towards consideration of
cognizance. The omission to do so, renders the impugned order
procedurally infirm and warrants interference to the extent
necessary to restore the proceedings to the stage at which the
statutory mandate ought to have been observed.
30. The criminal process, however legitimate its
initiation, must travel only along the path charted by the
legislature. A Court cannot dispense with a statutory
safeguard, on the premise that the proceedings are merely
preliminary, when the safeguard itself has been designed to
operate at that very preliminary stage. The sanctity of
criminal procedure lies not merely in the ultimate decision
48
that a Court renders, but equally in the fidelity with which it
observes the law at every stage leading to that decision.
31. In the light of the aforesaid analysis, the challenge
founded upon Section 218 of the BNSS must fail, while the
challenge predicated upon non-compliance with Section 223(2) of
the BNSS deserves acceptance. The proceedings need not be
obliterated in their entirety; the procedural infirmity can be
remedied by requiring the learned Magistrate to undertake the
exercise mandated by law. The petition, therefore, deserves to
succeed, albeit in part, by setting aside the order dated
12-12-2025, insofar as it directs issuance of notice without
compliance with Section 223(2) of the BNSS, and remitting
the matter to the learned Magistrate to proceed afresh from
the appropriate stage, strictly in accordance with law.
32. For the aforesaid reasons, the following:
O R D E R
(i) Criminal Petition is allowed in part .
49
(ii) Proceedings before the learned Magistrate in
P.C.R.No.15677 of 2025 up to the order dated
25-09-2025 stands sustained and the order dated
12-12-2025 stands obliterated.
(iii) The matter is remitted back to the learned Magistrate to
redo the procedure after recording the sworn statement
of the complainant, bearing in mind the observations
made in the course of the order.
Sd/-
(M.NAGAPRASANNA)
JUDGE
Bkp
CT:MJ