Magistrates Must Follow S.223(2) BNSS In Complaints Against Public Servants Over Official Duties : Kerala High Court Explains New Provision

The Kerala High Court noted that the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has introduced a material change from the Code of Criminal Procedure by prescribing through Section 223(2) that cognizance of a complaint against a public servant can be taken only after giving an opportunity of hearing to the accused and after calling for a report from the superior officer.The Court noted that the CrPC did not have a similar provision."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 Court observed. Quashing criminal proceedings initiated against forest officials accused of custodial torture, Justice V.G. Arun emphasised that when allegations of criminal conduct are made against public servants in the course of discharging their official functions, courts must strictly adhere to the protective procedures laid out under Section 223(2) of the BNSS.The case revolved around multiple complaints of custodial torture by accused persons who were in the custody of forest officials, including the Divisional Forest Officer and the Range Forest Officer of Marayoor Forest Division. Following their custody, several accused persons alleged severe physical abuse and harassment. Based on their written complaints and sworn statements, the Judicial Magistrate of First Class, Devikulam took cognizance of offences under various provisions of the Bharatiya Nyaya Sanhita (BNS) and summoned the officials.The accused made complaints of torture after being released from custody, leading the Judicial Magistrate of First Class, Devikulam, to take cognisance and issue summons to the officers under Sections 115(2), 118(1), 120(1), 127(2), 194, and 351(1) read with Section 3(5) of the Bharatiya Nyaya Sanhita (BNS), 2023.The officers challenged the proceedings, arguing that the Magistrate had ignored the mandatory protections provided to public servants under the BNSS.The counsel for the petitioners argued that by taking cognizance without issuing notice to the petitioner, the Magistrate acted in violation of the procedure prescribed in Section 223 of the BNSS. They argued that if the complaint is against a public servant, for any offence alleged to have been committed in the course of the discharge of his functions or suits, opportunity should be given to the public servant to make assertions as to the situation that led to the alleged incident and a report containing the facts and circumstances of the incident obtained from an officer superior to such public servant. Reliance was placed on the decisions of the Supreme Court in Rizwan Ahmed Javed Shaikh and Others v. Jammal Patel and Others [(2001) 5 SCC 7] and Sankaran Moitra v. Sadhna Das and Another [(2006) 4 SCC 584] to contend that any act constituting an offence directly and reasonably connected with the official duty of the public servant will fall within the ambit of Section 223(2) of BNSS.The Counsel for the respondents argued by relying on decisions of the Supreme Court in Om Prakash Yadav v. Niranjan Kumar Upadhyay [2024 KHC 6707] and of the High Court in Alavi C v. State of Kerala [2024 KHC 7210] and stated that the Magistrate was not bound to follow the procedure under section 223(2) of BNSS since torturing of accused persons “ under the guise of interrogation has nothing to do with the discharge of official duties.” They also contended that the second petitioner, being a Range Officer, whose appointing authority is not the Government, is not entitled for the protection under Section 223(2) of BNSS. Relying on various Supreme Court decision, which include B Saha and Other v M S Kochar [AIR 1979 SC 1841], and Rizwan Ahmed Javed Shaikh and Others v. Jammal Patel and Others [(2001) 5 SCC 7], the court noted that the wordings of Section 223 (2) of BNSS are much more expensive than Section 197 (1) of the CrPC. While interpreting the sections 218 and 223 of BNSS, the Court observed:“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 the 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” the court noted. The court interpreted that the expression 'public duty' referred to an obligation or responsibility imposed on a public official, and 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. The court observed that the legislature has...

Magistrates Must Follow S.223(2) BNSS In Complaints Against Public Servants Over Official Duties : Kerala High Court Explains New Provision

Anamika MJ

All persons falling within the definition of 'public servant' under Section 2(28) of the BNS are covered by S. 223(2) of BNSS, the Court added.

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