The Kerala High Court, in a significant ruling, emphasized that Magistrates must mandatorily comply with Section 223(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), before taking cognizance of any complaint involving alleged offences committed by public servants during the discharge of their official functions.
This clarification came in a series of criminal miscellaneous petitions filed by forest officials—Suhyb P.J. and Abju K. Arun—against whom criminal proceedings had been initiated by the Judicial Magistrate of First Class, Devikulam, following complaints of custodial torture made by accused persons during forest-related criminal inquiries.
Background of the Case
The issue stemmed from three separate forest crime cases—O.R. Nos. 1, 2, and 3 of 2024—registered against several individuals for offences under the Kerala Forest Act. Accused persons, who were taken into custody and interrogated by forest officers, later alleged torture while in custody and submitted complaints before the Magistrate after their release.
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The Magistrate recorded their sworn statements and took cognizance under multiple sections of the Bharatiya Nyaya Sanhita (BNS), including Sections 115(2), 118(1), 120(1), 127(2), 194, and 351(1) read with Section 3(5), and issued summons to the officers involved.
Core Legal Argument
The petitioners challenged the Magistrate’s cognizance, contending that Section 223(2) of BNSS specifically mandates procedural protection for public servants. According to this section:
“A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in the course of the discharge of his official functions or duties unless such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged, and a report containing facts and circumstances of the incident from the officer superior to such public servant is received.”
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The Court noted that such procedural safeguards did not exist under the earlier Code of Criminal Procedure, 1973 (CrPC), particularly under Section 202.
“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.
The accused had submitted complaints only after consultation with their counsel. Importantly, no immediate complaints of torture were made to doctors or the Magistrate at the time of custody. The petitioners alleged that the process followed was irregular and demonstrated bias on the part of the Magistrate.
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Key Judicial Observations
Justice V.G. Arun, delivering the order, highlighted the expansive nature of Section 223(2) BNSS:
“The legislature has consciously used the expansive expression in Section 223(2) so as to provide an additional layer of protection to public servants from prosecution based on false and frivolous complaints.”
The Court also drew a distinction between Sections 218(1) and 223(2) of the BNSS. While Section 218(1) requires prior sanction from the Government for prosecuting certain public servants, Section 223(2) applies universally to all public servants, regardless of their appointing authority.
“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.”
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The Judge further stated:
“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.”
On the Nature of 'Public Duty'
Clarifying the scope of 'public duty' and 'public function', the Court interpreted that both terms are used deliberately and expansively. ‘Public duty’ refers to obligations imposed on officials, while ‘public function’ pertains to roles or services performed on behalf of the government.
“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.”
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Outcome of the Case
The High Court quashed the orders taking cognizance in three cases—C.C.Nos. 612, 613, and 614 of 2024—due to the Magistrate’s failure to comply with Section 223(2). The Court instructed the Magistrate to restart proceedings strictly in line with the BNSS protocol:
“The Magistrate is directed to commence fresh proceedings by adhering to the procedure prescribed in Sections 223(1) and 223(2) of the BNSS.”
In the connected cases (Crl.M.C.Nos. 65 and 86 of 2025), the Court directed the Magistrate to continue proceedings in accordance with the same provisions.
Case No - Crl. M C 65/2025
Case Title - Suhyb P J v State of Kerala and Ors