Sanchayita Lahkar

The High Court of Kerala Single Bench of Justice V.G. Arun allowed criminal miscellaneous petitions filed by two forest officers and quashed the proceedings initiated against them by the Judicial Magistrate of First Class, Devikulam. The court held that the Magistrate took cognizance of offences without following the procedural safeguards prescribed under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The court further directed the Magistrate to recommence proceedings in strict compliance with the statutory provisions. In related matters, the court directed continuation of proceedings but mandated adherence to the procedure stipulated in Section 223(2) of BNSS.

The petitioners in these cases are forest officers: the first petitioner is the Divisional Forest Officer, Marayoor Forest Division, and the second petitioner is the Range Forest Officer. The cases arise out of the registration of three forest offences under O.R.Nos.1, 2, and 3 of 2024 at Marayoor Forest Range. These offences invoked 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.

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Following registration, arrests were made, and during custodial interrogation, several accused made confessional statements implicating others. Specifically, in Crl.M.C.Nos.73, 74, and 85 of 2025, the accused Sarath @ Siva, Manoj, and Rajesh were granted custody from 4 December 2024 to 9 December 2024. Upon being returned to judicial custody and after meeting with legal counsel, these accused submitted complaints to the Magistrate alleging physical torture by the petitioners during custody.

The Judicial Magistrate, Devikulam, directed medical examination and recorded sworn statements from the accused. Relying on these statements and medical evidence, the Magistrate took cognizance of alleged 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 issued summons to the petitioners. These proceedings were numbered as C.C.Nos.613, 612, and 614 of 2024.

In Crl.M.C.Nos.65 and 86 of 2025, the petitioners challenged separate complaints submitted by other accused—Sunil (4th accused in O.R.No.1 of 2024) and Liju (5th accused in O.R.No.3 of 2024). These complaints also alleged custodial torture. The Magistrate issued notices to the petitioners under Section 223(1) of BNSS.

The petitioners contended that the procedure adopted by the Magistrate violated Section 223 of BNSS. Specifically, the petitioners asserted that they were not granted an opportunity to make submissions before cognizance was taken, as mandated by Section 223(1). Furthermore, they argued that the Magistrate failed to comply with Section 223(2), which requires that in complaints against public servants concerning acts done in the course of official duties, the accused be allowed to provide a version of the incident and a report be obtained from their superior officer.

The petitioners relied on precedents such as Rizwan Ahmed Javed Shaikh v. Jammal Patel [(2001) 5 SCC 7] and Sankaran Moitra v. Sadhna Das [(2006) 4 SCC 584] to support their claims regarding procedural protection for public servants. They contended that interrogation is part of their official function and hence any alleged excess must still be addressed within the procedural framework prescribed under BNSS.

Respondents, including the accused and their counsel, opposed the petitions. They submitted that the accused were subjected to torture under the guise of interrogation, which is not protected by the BNSS procedural shield. Citing Om Prakash Yadav v. Niranjan Kumar Upadhyay [2024 KHC 6707] and Alavi C v. State of Kerala [2024 KHC 7210], the respondents argued that illegal acts such as torture cannot be considered part of official duties. They also questioned the applicability of Section 223(2) to the second petitioner, arguing he was not appointed by the government and hence not eligible for protection.

The State Government, represented by the Special Public Prosecutor for Forest, supported the petitioners. It was submitted that the Forest Department was facing operational difficulties due to the Magistrate's alleged hostile stance. The State argued that Section 223(2) protection must be available to all public servants, including forest officers, and invoked judgments such as P. Arulswami v. State of Madras [AIR 1967 SC 776] and Rakesh Kumar Mishra v. State of Bihar [(2006) 1 SCC 557].

Justice V.G. Arun examined the procedural requirements under Section 223 of BNSS. Referring to Suby Antony v. Susha [2025 (1) KHC 596], the court stated “after the complaint is filed, the Magistrate should first examine the complainant and witnesses on oath and thereafter, if the Magistrate proceeds to take cognisance of the offence/s, opportunity of hearing should be afforded to the accused."

The court noted that this procedure had not been followed in C.C.Nos.613, 612, and 614 of 2024, rendering the proceedings liable to be quashed.

Regarding Section 223(2), the court extracted the provision and contrasted it with Section 218 of BNSS (equivalent to Section 197 of CrPC). The court recorded that: "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."

Citing B. Saha v. M.S. Kochar [AIR 1979 SC 1841], the court observed "if those words are construed narrowly, the provision will be rendered sterile, for, it is not part of an official duty to commit an offence."

Referring to Rizwan Ahmed Javed Shaikh, the judgment quoted: "The real test to be applied... is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity."

The court concluded: "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 was further clarified: "Section 223(2), both duty and function are mentioned... It is apparent that the legislature has consciously used the expansive expression... to provide additional layer of protection to public servants."

The court rejected the argument that the 2nd petitioner did not qualify for protection under Section 223(2), holding: "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."

Thus, the court held that the Magistrate was obligated to comply with Section 223(2) before proceeding on complaints against the petitioners.

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The court quashed the proceedings in Crl.M.C.Nos.73, 74, and 85 of 2025. The court directed: "Crl.M.C.Nos.73, 74 and 85 of 2025 are allowed and the orders taking cognisance and further proceedings in C.C.Nos.613, 612 and 614 are quashed. The Magistrate is directed to commence fresh proceedings by adhering to the procedure prescribed in Sections 223(1) and 223(2) of the BNSS."

As regards Crl.M.C.Nos.65 and 86 of 2025, the court held: "Crl.M.C.Nos.65 and 86 of 2025 are disposed of by directing the Magistrate to continue the proceedings pursuant to Annexures C and D notices in accordance with the procedure prescribed in Section 223(2) of the BNSS."

The court stated: "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. The 1st petitioner being the immediate superior of the 2nd petitioner, the Magistrate may call for a report from an officer superior in rank to both the petitioners."

Advocates Representing the Parties:

For the Petitioners: Sri. Babu S. Nair, Advocate

For the Respondents: Smt. Sreelakshmi Sabu, Advocate; Sri. Thomas J. Anakallungal, Advocate; Sri. Nagaraj Narayanan, Special Public Prosecutor for Forest

Case Title: Suhyb P.J. & Anr. v. State of Kerala & Ors.

Neutral Citation: 2025: KER:49758

Case Numbers: Crl.M.C.Nos. 65, 73, 74, 85 and 86 of 2025

Bench: Justice V.G. Arun