DATE: 23/06/2025
COURT: High Court of Kerala
BENCH: Justice V.G. Arun
FACTS:
The petitioners in this case are forest
officials specifically, the Divisional Forest Officer of Marayoor Forest
Division (1st petitioner) and the Range Forest Officer (2nd petitioner). They
are facing criminal proceedings based on complaints alleging custodial torture
of several accused persons arrested in connection with three forest offence
cases registered as O.R. Nos. 1, 2, and 3 of 2024 under various provisions of
the Kerala Forest Act. Following the arrest of several accused persons,
including Sarath, Manoj, Rajesh, and others, the petitioners obtained custodial
remand for interrogation. After their release from custody and consultation
with their legal counsel, the accused complained of severe physical harassment
and torture during their time in forest officials’ custody. Based on their
complaints and sworn statements, supported by medical reports, the Judicial
Magistrate of First Class, Devikulam, took cognisance of offences 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), and summoned the petitioners to face
trial in C.C. Nos. 612, 613, and 614 of 2024.
In parallel, in two other connected cases
(Crl.M.C. Nos. 65 and 86 of 2025), further complaints of custodial torture were
raised by other accused persons during or after their judicial custody. Acting
on these complaints, the Magistrate issued notices to the petitioners under
Section 223(1) of the BNSS without reportedly following the procedure under
Section 223(2), which mandates a preliminary inquiry when public servants are
accused of offences committed during the discharge of official duties. The petitioners
contend that the procedure under Section 223(2) was wrongly bypassed, and that
the Magistrate acted with personal bias, even contemplating contempt action
against them based on media reports. They seek transfer of the proceedings to
another court and argue that the allegations are directly related to their
official functions, thus entitling them to procedural protection under Section
223(2) of the BNSS. The accused, however, argue that custodial torture is not a
part of official duty and therefore the procedural protections do not apply.
ISSUES:
The central issues in this case revolve
around whether the Judicial Magistrate was correct in taking cognisance of
offences and initiating proceedings against the petitioners, forest officials
accused of custodial torture without adhering to the mandatory procedural
safeguards under Section 223(2) of the Bharatiya Nagarik Suraksha Sanhita
(BNSS). Specifically, the questions were whether the alleged acts of custodial
torture were committed in the course of discharge of official duties and
whether the Magistrate erred by not affording the petitioners an opportunity to
respond or obtaining a report from their superior officer as mandated under
Section 223(2).
JUDGEMENT WITH REASONING:
The Kerala High Court quashed the orders
taking cognisance and all further proceedings in C.C. Nos. 612, 613, and 614 of
2024, arising from Crl.M.C. Nos. 73, 74, and 85 of 2025, and directed the
Magistrate to initiate fresh proceedings strictly in accordance with the
procedure outlined in Sections 223(1) and 223(2) of the BNSS. In Crl.M.C. Nos.
65 and 86 of 2025, the Court allowed the proceedings to continue but instructed
the Magistrate to comply with Section 223(2), which includes providing the
petitioners an opportunity to respond and calling for a report from a superior
officer.
The Court observed that Section 223(2) of
BNSS provides a procedural safeguard to public servants accused of offences
committed in the course of their official functions or duties—language that is
significantly broader than that in Section 218(1), which deals with sanction
for prosecution. The Court relied on Supreme Court precedents, particularly B.
Saha v. M.S. Kochar and Rizwan Ahmed Javed Shaikh v. Jammal Patel, to clarify
that an act, even if excessive or allegedly illegal, would attract procedural
protection under such provisions if it has a reasonable nexus to the public
servant’s official role. The Court further emphasized that the broader language
of Section 223(2), including both “duty” and “function” was intentionally
adopted by the legislature to prevent frivolous or vindictive prosecutions
against public servants engaged in sensitive functions like law enforcement.
The Court also rejected the argument that
the 2nd petitioner (a Range Forest Officer) was not entitled to the protection
of Section 223(2) merely because he was not appointed by the State Government.
It clarified that the benefit of Section 223(2) extends to all public servants
as defined in Section 2(28) of the BNS, regardless of their appointing
authority. Moreover, it held that before initiating criminal proceedings based
on allegations of custodial torture during interrogation, which is an integral function
of a forest officer in investigating forest offences, the Magistrate was
legally bound to provide the petitioners a chance to explain and to seek a
factual report from a superior officer. Since this mandatory process was not
followed in the present case, the orders of cognisance were deemed legally
unsustainable.
ANALYSIS:
This case underscores the crucial balance
between ensuring accountability of public servants and safeguarding them from
frivolous or premature prosecution. The Kerala High Court’s decision reinforces
the procedural safeguards embedded in Section 223(2) of the BNSS, emphasizing
that when allegations arise from acts committed in the course of official
duties such as custodial interrogation by forest officials—statutory
protections must be strictly adhered to before initiating criminal proceedings.
The Court rightly noted that even excessive or potentially unlawful conduct, if
reasonably connected to official functions, cannot be exempted from these
procedural protections. The distinction between acts committed in the course of
duty and acts entirely divorced from official responsibilities becomes pivotal
in such scenarios, ensuring that honest performance of duty is not undermined
by vexatious litigation.
Moreover, the Court’s expansive
interpretation of the terms "official function" and "duty"
under Section 223(2), as opposed to the narrower scope of Section 218(1), signals
the legislature’s intent to provide a robust procedural shield to all public
servants under the BNSS framework. By rejecting the argument that only those
appointed by the State Government are covered and instead applying the
protection to all public servants under the definition in Section 2(28) of the
BNS, the Court closed a potential loophole that could have denied officers like
the Range Forest Officer the benefit of the law. This interpretation not only
aligns with precedent but also fortifies the principle of fairness in
prosecuting alleged misconduct by public functionaries, while preserving the
integrity of procedural due process.
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