Sanction for prosecution of a public servant under Section 218 of the BNSS is only required if the alleged offence was committed while acting or purporting to act in the discharge of official duty; it is not required for acts falling outside official duties.

Order

13/10/2025

1. By way of filing this petition, a challenge has been led to the impugned order dated 21.03.2024 passed by the Special Judge, PMLA and CBI Cases No.3, Jaipur Metro-I in criminal complaint case No.5/2024 by which cognizance has been taken against the petitioner under Section 3/4 of the Prevention of Money Laundering Act, 2002 (for short, “the Act of 2002”).

2. Learned counsel for the petitioner submits that the petitioner is a public servant and after filing of the charge-sheet against him, cognizance has been taken for the above stated offences without taking prosecution sanction under Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, “the BNSS”).

3. Learned counsel for the petitioner submits that in absence of sanction to prosecute the petitioner neither the charge-sheet can be filed nor the cognizance can be taken.

4. In support of his contention, counsel for the petitioner has placed reliance upon the judgment passed by the Hon’ble Apex Court in the cases of Enforcement Directorate Vs. Bhibhu Prasad Acharya reported in (2025) 1 SCC 404, Anil Tuteja Vs. Enforcement Directorate in Criminal Revision Petition No.246/2025 decided by High Court of Chhattisgarh at Bilaspur & P. Chidambaram Vs. Enforcement Directorate in Criminal Miscellaneous Case No.8996/2024 decided by the Delhi High Court. Counsel submits that under these circumstances, interference of this Court is warranted.

5. Per contra, learned counsel appearing on behalf of respondent opposed the arguments raised by counsel for the petitioner and submitted that a huge amount of Rs.2,31,15,000/- in cash along with one gold bar amounting to Rs.61,00,000/- were found in the almirah and the same was in possession of the petitioner. Counsel submits that the offence committed by the petitioner does not fall within the official discharge of duties, hence, under these circumstances, sanction under Section 218 of the BNS is not required to be taken for prosecution of the petitioner. Counsel submits that on the finding of prima facie case against the petitioner, cognizance has been taken by the learned Trial Judge against the petitioner for the above stated offences, hence, interference of this Court is not warranted and the instant petition is liable to be rejected.

6. In support of his contention, counsel for the respondent has placed reliance upon the judgment passed in the case of Shambhoo Nath Misra Vs. State of U.P. & Ors. reported in (1997) 5 SCC 326.

7. The only argument which has been raised before this Court is that the petitioner is a public servant and without getting sanction from the Department, he has been prosecuted and cognizance has been taken against him under Section 3/4 of the PMLA Act.

8. Section 218 of BNSS deals with the procedure of prosecution of judges and public servants. For ready reference, the same is reproduced as under:-

“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 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, cla