Prosecution of Public Servants
What is 'Prosecution of Public Servants'
Official Definition of 'Prosecution of Public Servants'
'Term' as defined in legislation(s)
The statutory foundation for understanding the prosecution of public servants rests primarily on the definition of “public servant” under Section 2(28) of the Bharatiya Nyaya Sanhita, 2023 (BNS). The Code of Criminal Procedure, 1973 (CrPC) does not have any such definition. Under Section 2(28) BNS, the term “public servant” encompasses a wide range of individuals entrusted with public duties, responsibilities, or authority. It covers the following categories:
- Armed Forces: Every commissioned officer in the Army, Navy, or Air Force.
- Judicial Officers: Every Judge, including any person legally empowered to perform adjudicatory functions, either individually or as part of a collective body.
- Court Officers: Every officer of a Court—such as a liquidator, receiver, or commissioner—whose official duties involve investigating facts or law, preparing or maintaining judicial records, administering oaths, executing judicial processes, maintaining order in Court, or handling court property.
- Auxiliary Judicial Roles: Every assessor or member of a panchayat assisting a Court or a public servant, as well as arbitrators or persons to whom any matter has been referred for decision or report by a Court or competent public authority.
- Custodial Officers: Every person who holds an office authorising them to place or keep another person in confinement.
- Executive Officers:
- Every officer of the Government responsible for preventing offences, reporting crimes, bringing offenders to justice, or safeguarding public health, safety, and convenience.
- Every officer whose duty involves managing, receiving, keeping, or expending public property, conducting surveys, executing government contracts, or ensuring protection of the Government’s pecuniary interests.
- Officers responsible for maintaining public financial records, preventing financial offences, or managing documentation concerning Government property or revenue.
- Local and Revenue Officers: Every officer tasked with handling property, collecting taxes or rates for secular public purposes, maintaining records of land rights, or preparing and preserving documents concerning local populations, villages, towns, or districts.
- Electoral Officers: Every person holding office by virtue of which they are empowered to prepare, maintain, or revise electoral rolls or conduct elections, wholly or partially.
- Persons in Government or Public Employment:
- Every person in the service or pay of the Government, or remunerated by fees or commissions for performing public duties under governmental authority;
- Every person in the service or pay of a local authority, statutory corporation, or government company, as defined under the General Clauses Act, 1897 and Companies Act, 2013.
Legal provision(s) relating to 'Prosecution of Public Servants'
1. Substantive Provisions under the Bharatiya Nyaya Sanhita, 2023
The Bharatiya Nyaya Sanhita, 2023 (BNS), though primarily a substantive criminal law statute, contains several provisions that either criminalize misconduct by public servants or protect them while discharging their official duties. The key provisions are as follows:
- Sections 198–204 – These provisions collectively deal with offences by public servants relating to corruption, disobedience, and dereliction of duty, including acts such as framing incorrect records, issuing unlawful orders, and intentional violation of law by public servants with intent to cause injury.
- Section 59 – Prescribes liability for abetment by a public servant of offences committed through the abuse of their official position or authority.
- Sections 255–257 – Penalize public servants who knowingly prepare false records, issue forged certificates, or falsify official documents, thereby ensuring accountability in administrative processes.
- Sections 259–261 – Cover offences of public servants engaged in misconduct related to judicial proceedings, such as delivering improper verdicts or intentionally acting contrary to law.
- Sections 121, 132, and 195 – Provide protection to public servants from obstruction, assault, or resistance in the lawful discharge of their duties, recognizing the need for operational security in public administration.
- Sections 64(2)(b) and 68 – Stipulate enhanced punishment where the offender is a public servant, particularly in cases of sexual offences or abuse of authority committed under the colour of office.
- Section 101, Exception 3 – Grants legal protection to acts done in good faith by public servants in the advancement of public justice.
2. Procedural Provisions under the Bharatiya Nagarik Suraksha Sanhita, 2023
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides the procedural framework for prosecuting public servants, replacing and updating the corresponding provisions under the Code of Criminal Procedure, 1973.
It establishes both preconditions for cognizance and procedural safeguards, thereby balancing accountability and institutional protection for officials acting in the discharge of their duties.
(a) Taking Cognizance of Offences Against Public Servants
- Section 210(3) and Section 175(4) together prescribe that when a complaint is made against a public servant arising in the course of discharge of official duties, a Magistrate may take cognizance only after:
- Receiving a factual report from the officer superior to such public servant outlining the incident and circumstances; and
- Considering the assertions made by the accused public servant regarding the situation leading to the alleged act. These provisions ensure that frivolous or malicious complaints against public officials do not proceed without preliminary verification and official context.
(b) Cognizance of Certain Offences Requiring Complaint by Public Servant or Court
- Section 215(1) restricts the power of courts to take cognizance of specified offences (for example, those under Sections 204–224, 227–231, 234, 235, 240–246, and 265 of the BNS**) except on the written complaint of:
- The public servant concerned;
- Another administratively superior officer; or
- A public servant authorised by the concerned officer. For offences related to proceedings in court, cognizance may only be taken on the complaint of that Court itself or a superior court. Sub-section (2) authorises withdrawal of such complaints by the competent authority, provided the trial has not concluded, reinforcing executive control over the initiation and continuation of prosecutions involving public officials.
(c) Requirement of Prior Sanction
- Section 218(1) provides that no court shall take cognizance of an offence allegedly committed by a Judge, Magistrate, or public servant acting or purporting to act in the discharge of official duties without prior sanction from the appropriate government:
- Central Government, for officials connected with Union affairs;
- State Government, for officials connected with State affairs. The provision expressly incorporates a 120-day time limit within which the Government must decide on the request for sanction, failing which sanction is deemed to be granted. The proviso also exempts certain serious offences (such as those under Sections 63, 66, 68, 70, 73–77, 141, 197–198, and 351 of the BNS) from the requirement of prior sanction—reflecting a legislative intent to prevent misuse of official status as a shield against prosecution for grave misconduct.
- Section 218(2)–(4) extends similar protection to members of the Armed Forces and allows the State Government to notify analogous protections for State forces responsible for public order.
- Sub-section (5) empowers the Government to determine the authority, manner, and forum for conducting prosecutions against such officials.
(d) Sanction for Offences Against the State or Relating to Conspiracy
- Section 217 prescribes additional sanction requirements before courts may take cognizance of offences:
- Against the State or public order (e.g., under Chapter VI or Sections 194, 297, 351(1) of the BNS);
- Involving criminal conspiracy or abetment of such offences. Depending on the offence, sanction must be obtained from the Central Government, State Government, or District Magistrate. This ensures procedural control over politically or administratively sensitive prosecutions.
(e) Procedural Safeguards during Complaint and Trial
- Section 223 mandates that, while taking cognizance on a complaint, the Magistrate must examine the complainant and witnesses on oath, except where:
- The complaint is made by a public servant acting in official capacity; or
- It is transferred to another Magistrate under Section 212. Further, for complaints against a public servant, the Magistrate must follow the special procedure in Section 217, reinforcing procedural fairness at the pre-trial stage.
- Section 254(2) authorises that the evidence of a police officer or public servant may be recorded through audio-video electronic means, facilitating witness protection and procedural transparency.
- Section 331 allows evidence by affidavit where allegations are made against a public servant in the course of any proceeding, enabling efficient adjudication without unnecessary disruption of official duties.