‘Public Servant’ U/S 2(28) Of BNS Covered By Protective Umbrella Of Section 223(2) Of BNSS: Kerala High Court

The Kerala High Court held that all persons falling within the definition of ‘Public Servant’ under Section 2(28) of the Bharatiya Nyaya Sanhita, 2023 (BNS) are covered by the protective umbrella of Section 223(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

The Court held thus in Criminal Miscellaneous Cases filed by the forest officials in relation to the crimes registered for the offences under Sections 27(1)(d), 27(1)(e)(ii), 27(1) (e)(iii), and 27(1)(e)(iv) read with Sections 47C and 47G of the Kerala Forest Act, 1961 (KFA) against certain persons.

A Single Bench of Justice V.G. Arun observed, “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 223(2) of BNSS.”

The Bench emphasised that when 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.

Advocate Babu S. Nair appeared for the Petitioners while Special Government Pleader (SGP) Nagaraj Narayanan, Advocates Thomas J Anakallungal, and Sreelakshmi Sabu appeared for the Respondents.

Brief Facts

The Petitioners included the Divisional Forest Officer, Marayoor Forest Division and the Range Forest Officer. Three crimes were registered at the Marayoor Forest Range under the KFA against certain persons including the Respondents. Pursuant to the registration of crimes, the 5th accused was arrested and his confession statement was recorded. Thereafter, 1st accused was taken into custody who mentioned about the involvement of other three persons, who were also arrested. Subsequently, the accused persons were produced before the Judicial Magistrate of First Class (JMFC) and remanded to judicial custody.

While so, the Petitioners sought the custody of the accused for interrogation and the Magistrate allowed the prayer and granted the custody. On completion of the custody period, the accused were again produced before the Magistrate and later, the accused complained to the Magistrate that they were subjected to extreme harassment and physical torture by the Petitioners. The Magistrate took cognizance of the offences punishable under Sections 115(2), 118(1), 120(1), 127(2), 194, and 351(1) read with Section 3(5) of the BNS and issued summons to the Petitioners.

Court’s Observations

The High Court in the above regard, said, “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).”

The Court added that while Section 218(1) BNSS 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”, it further noted.

The Court observed that 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”, it also said.

The Court, therefore, concluded that the Magistrate should afford opportunity to the Petitioners to offer their explanation regarding the alleged incident and call for a report from their superior officer.

Accordingly, the High Court allowed the criminal miscellaneous cases and quashed the Orders taking cognizance.

Cause Title- Suhyb P. J v. State of Kerala & Anr. (Neutral Citation: 2025:KER:49758)

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