No sanction required under BNSS to prosecute public servants for disproportionate assets, rules Madras High Court
The Madras High Court dismissed a discharge petition filed by a former Tamil Nadu minister and his family members in a long-running disproportionate-assets case.
The court held that prior sanction under Section 218 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the provision that replaced Section 197 of the Code of Criminal Procedure (CrPC), is not required to prosecute a public servant for possessing assets disproportionate to known sources of income.
The case originates from a 2011 FIR alleging accumulation of disproportionate assets during the individual's tenure in ministerial office. A trial court granted discharge in 2016, but the Madras High Court set aside that discharge in April 2025, finding prima facie material to proceed to trial.
In the fresh discharge plea, the defence argued that because the individual was again holding ministerial office when the court took cognizance in 2025, prior sanction from the Governor was mandatory before prosecution could continue. The prosecution countered that at the time the FIR was registered and the chargesheet filed, he held no public office, so no sanction was required regardless of his subsequent re-appointment.
The court accepted the prosecution's position and dismissed the discharge plea, allowing the disproportionate-assets trial to proceed.
Sanction for prosecution of public servants: from CrPC Section 197 to BNSS Section 218
Section 197 CrPC (now Section 218 BNSS) protects a public servant from vexatious prosecution for acts done, or purported to be done, in discharge of official duty, by requiring prior sanction from the appropriate government before a court can take cognizance of the offence. The BNSS, which replaced the CrPC with effect from 1 July 2024, retains this protection in near-identical language but adds an important procedural change: the sanctioning authority must decide on a sanction request within 120 days, failing which sanction is deemed to have been granted.
Key Details
- The protection under Section 197 CrPC / Section 218 BNSS applies only to acts that have a reasonable nexus with the discharge of official duty, it is not a blanket immunity for anything done by a public servant while in office.
- BNSS Section 218 introduces the 120-day deemed-sanction rule, a response to long-standing criticism that sanctioning authorities could indefinitely stall corruption prosecutions by sitting on sanction requests.
- Courts have consistently held that corruption offences, including possession of disproportionate assets, have no reasonable connection to the discharge of official duty, since amassing personal wealth is never part of a public servant's official function, and such offences therefore fall outside the sanction requirement.
This is precisely the principle the Madras High Court applied, since accumulating disproportionate assets cannot be characterised as an act "done in discharge of official duty," no Section 218 BNSS sanction was needed to prosecute the case, irrespective of the accused's ministerial status when cognizance was taken.
Prevention of Corruption Act, 1988: disproportionate assets as "criminal misconduct"
The Prevention of Corruption Act, 1988 is India's principal anti-corruption statute for public servants. Section 13 defines "criminal misconduct." As the provision stood when the FIR in this case was registered in 2011, Section 13(1)(e) made it an offence for a public servant to possess, at any time during their office, pecuniary resources or property disproportionate to their known sources of income which they could not satisfactorily account for. The Prevention of Corruption (Amendment) Act, 2018 restructured Section 13; the disproportionate-assets/"illicit enrichment" offence is now contained in Section 13(1)(b), carrying enhanced punishment of four to ten years' imprisonment plus fine (up from one to seven years under the pre-2018 provision).
Key Details
- Old Section 13(1)(e) (applicable at the time of this FIR) and current Section 13(1)(b) both place the burden on the public servant to satisfactorily account for assets disproportionate to known income, an evidentiary presumption that shifts the onus onto the accused once disproportion is shown.
- Section 17A of the PC Act (inserted by the 2018 amendment) separately requires prior sanction before investigating a public servant for a decision or recommendation made in discharge of official functions, but this too does not extend to disproportionate-assets allegations, since amassing personal wealth is not an official "decision or recommendation."
- A well-known disproportionate-assets prosecution in Tamil Nadu is the case against a former Chief Minister (1996 FIR, decided by the Supreme Court in 2017), built on the same Section 13(1)(e) framework.
The underlying prosecution against the former minister rests on this very disproportionate-assets provision; the High Court's sanction ruling clears a procedural hurdle so the substantive Prevention of Corruption Act trial can now proceed.
- Court: Madras High Court.
- Case origin: 2011 FIR alleging disproportionate assets during a ministerial tenure.
- Case timeline: 2016 trial-court discharge, April 2025 Madras High Court sets aside discharge, September 2026 second discharge plea (on the sanction ground) dismissed.
- Relevant provisions: BNSS Section 218 (in force from 1 July 2024, replaces CrPC Section 197); Prevention of Corruption Act Section 13(1)(e)/13(1)(b) (disproportionate assets/illicit enrichment); PC Act Section 17A (sanction for investigation into official decisions, inserted 2018), held inapplicable to this case.
- BNSS Section 218's 120-day deemed-sanction rule has no equivalent in the pre-2024 CrPC Section 197 regime.