Protection under Section 197 of CrPC

Source: High Court of Jammu & Kashmir and Ladakh

Why in News? 

Justice M A Chowdhary of the Jammu & Kashmir and Ladakh High Court, in the case of Rajeshwar Singh v. State & Ors. (2026), held that the protection afforded under Section 197 of the Code of Criminal Procedure, 1973 (Now Section 218 of BNSS) extends to public servants even in cases where they have exceeded their powers, so long as the acts complained of bear a reasonable nexus with the discharge of official duty. The Court quashed the cognizance order passed by the Magistrate and the impugned order of the trial court, while clarifying that prosecution may still proceed upon receipt of valid government sanction.

What was the Background of Rajeshwar Singh v. State & Ors. (2026) Case? 

• The petitioner was a former Sub-Divisional Police Officer (SDPO), R S Pura, who filed a petition under Section 561-A of the J&K CrPC (analogous to Section 482 CrPC / Section 528 BNSS) seeking quashing of proceedings against him. 
• In May 2005, when the petitioner was posted as SDPO, one Indu Rani was found dead under mysterious circumstances. Inquest proceedings under Section 174 CrPC were initiated. 
• The complainant, Satish Kumar, was called to the police station for interrogation and was released after two hours. An FIR under Sections 302 RPC and 4/25 Arms Act was subsequently registered against Kulwant Singh Manhas and Rameshwar Singh Manhas, who were later convicted. 
• The complainant alleged that he was illegally detained from May 10 to June 1, 2005, rotated among various police stations, and subjected to third-degree torture at the instance of the petitioner and other police officers. 
• A criminal complaint was filed before the Chief Judicial Magistrate, Jammu, who took cognizance under Sections 342, 330, and 34 RPC and committed the case to the Sessions Court. 
• During pendency, the petitioner moved an application claiming protection under Section 197 CrPC, which the trial court dismissed on the ground that the alleged acts had no reasonable nexus with his official duty. 
• The petitioner challenged this rejection before the High Court.

What were the Court's Observations? 

• The Court analysed the legal position on Section 197 CrPC and  held that the expression "official duty" denotes a duty arising by reason of an office, and that a reasonable connection between the acts complained of and the duties of a public servant determines whether protection applies — even where those acts were in excess of authority. 
• The Court offered a clarifying illustration:  
  • A Deputy Superintendent of Police who beats a prisoner attempting to escape would be entitled to protection, since preventing escape is connected with official duty — even if excessive force was used. 
  • A police officer thrashing a passerby without reason would not be entitled to such protection, as there is no connection with official duty. 
• Applying these principles to the facts, the Court held that the petitioner — as a gazetted supervisory police officer (SDPO) — was alleged to have misused authority by keeping the complainant in illegal custody and subjecting him to torture. Even on the petitioner's own stand that the complainant was released the same day, the allegations of illegal custody and torture could not be dissociated from his official duties as a supervisory officer. 
• The Court held that the alleged acts were so inextricably connected with his official duty, or at least bore its colour, that the protective umbrella of Section 197 CrPC was attracted. 
• Accordingly, the Court allowed the petition, set aside the cognizance order and the impugned trial court order qua the petitioner, and clarified that the Magistrate would be at liberty to revisit cognizance upon receiving valid sanction to prosecute.

What is Section 218 of BNSS? 

Section 218 - Prosecution of Judges and Public Servants 

Scope of Protection: 

• Applies to Judges, Magistrates, and public servants not removable from office without government sanction. 
• Protection covers offences alleged to have been committed while acting or purporting to act in discharge of official duty. 
• Courts cannot take cognizance of such offences without previous sanction. 

Sanction Requirements: 

• Central Government sanction required for persons employed in connection with affairs of the Union. 
• State Government sanction required for persons employed in connection with affairs of a State. 
• During President's Rule (Article 356), Central Government sanction required even for State employees, 

Time Limit for Sanction Decision: 

• Government must decide on sanction request within 120 days from receipt. 
• If no decision is taken within 120 days, sanction is deemed to have been accorded automatically. 

Exceptions - No Sanction Required: 

• For offences under specific sections of Bharatiya Nyaya Sanhita, 2023: Sections 197, 198, 63, 66, 68, 70, 73, 74, 75, 76, 77, 141, or 351. 
• Exception also provided under the Lokpal and Lokayuktas Act, 2013. 

Armed Forces Protection: 

• No cognizance without Central Government's previous sanction for Armed Forces members. 
• State Government can extend this protection to forces maintaining public order through notification. 
• During President's Rule, Central Government sanction required for state forces as well. 

Prosecution Control: 

• Central/State Government may determine who will conduct prosecution. 
• Government may specify the manner of prosecution and specific offences to be prosecuted. 
• Government may designate the court where trial will be held.