Custodial Violence is Not “Official Duty”: Detailed Commentary on
Smt. Mamta Gurjar v. Pooja Kushwah & Ors., 2025 MPHC-GWL 31772

I. Introduction

The judgment of the Madhya Pradesh High Court, Gwalior Bench, in Smt. Mamta Gurjar v. Pooja Kushwah & Others (Misc. Criminal Case No. 26331 of 2025, decided on 05.12.2025 by Justice Rajesh Kumar Gupta) revisits two recurring themes in Indian criminal procedure:

• the limited power of Magistrates to recall summoning orders; and
• the scope of protection to public servants under sanction provisions now reflected in Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), corresponding to Section 197 of the Code of Criminal Procedure, 1973 (CrPC).

At its core, the case concerns serious allegations of custodial violence and sexual assault within a police station, and the attempt by a serving Sub‑Inspector (the petitioner, Smt. Mamta Gurjar) to shield herself from prosecution by invoking the statutory protection requiring prior governmental sanction to prosecute public servants for acts done in the purported discharge of official duty.

The decision assumes particular significance in the emerging BNSS-era, because it affirms that:

• Custodial assault, torture and sexual violence cannot be treated as acts in discharge of “official duty”, and
• Sanction under Section 218 BNSS / Section 197 CrPC is neither automatic nor available for acts of this nature.

This commentary examines the judgment’s facts, procedural history, core holdings, reliance on Supreme Court precedents, legal reasoning, conceptual clarifications, and its broader impact on police accountability and criminal procedure jurisprudence.

II. Factual and Procedural Background

A. Alleged Incident of 12.10.2019

According to the private complaint filed by respondent No. 1, Smt. Pooja Kushwah:

• On 12.10.2019 at about 4:30 p.m., her brother Dhirendra was riding a motorcycle with one Devendra Sharma as pillion.
• Near village Partwada, they were allegedly surrounded by the accused (including the present petitioner, a Sub‑Inspector) and subjected to filthy abuses.
• On the pretext of checking vehicle papers, the accused allegedly:
  • slapped Dhirendra repeatedly,
  • held him, and
  • beat him with sticks on his thighs, causing visible injuries.
• It is alleged that Dhirendra was then forcibly taken to Bargawan Police Station, stripped of his pants, shirt, and vest, abused and beaten with sticks in the police station, locked in the lock-up, and threatened with being “encountered”.

When Pooja, on receiving information from Devendra, reached the police station:

• She allegedly saw Dhirendra in the lock-up with injuries, and demanded that the incident be recorded and action taken.
• The petitioner (Sub‑Inspector) allegedly abused Pooja, threatened to beat her, and when Pooja objected to the language used, allegedly:
  • grabbed Pooja’s face and slapped her 4–5 times, causing injuries,
  • hit her with a stick on her left hand, elbow, knee, leg, chest and body,
  • causing her to fall to the ground,
  • pulled off her dupatta and threw it away, and
  • one accused, Ravi Khare, allegedly bit her on her shoulder and mouth “with ill intention”.

The complaint further alleges:

• Continuous harassment of Pooja and Dhirendra at the police station that evening.
• Late-night shifting of Dhirendra for MLC at the Community Health Centre, Karahal, and return to the police station.
• Pooja’s medical treatment at Sanjivani Hospital, Baran, which was said to be ongoing.
• Attempts by Pooja’s mother, Premlata, to complain to the Superintendent of Police and higher authorities, including written complaints on 22.10.2019 to SP Sheopur, the Home Ministry, DGP, IG, and Human Rights Legal Cell, allegedly without any action.

B. Complaint and Cognizance

On this factual foundation, Pooja filed a private criminal complaint before the Judicial Magistrate First Class (JMFC), Sheopur.

The JMFC:

• Acquitted the accused at the complaint stage (in effect, refused to proceed) of offences under:
  • Section 341 IPC (wrongful restraint),
  • Section 354 IPC (outraging modesty of a woman), and
  • Section 506-B IPC (criminal intimidation – aggravated form).
• However, took cognizance on 06.02.2024 of the following offences:
  • Section 294 IPC (obscene acts and songs),
  • Section 342 IPC (wrongful confinement),
  • Section 323 IPC (voluntarily causing hurt),
  • Section 34 IPC (acts done by several persons in furtherance of common intention),
  • Section 506 Part I IPC (criminal intimidation).

After cognizance, the presence of the accused was secured and the case was fixed for prosecution evidence.

C. Defence Application under Section 218 BNSS (Equivalent to Section 197 CrPC)

On 30.01.2025, the petitioner and other accused moved an application under Section 218 BNSS, 2023 (expressly stated to correspond to Section 197 CrPC) seeking dismissal of the complaint on the ground that:

• On the date of the incident, the petitioner was posted as a Sub‑Inspector and was on official duty.
• The complainant and her brothers had allegedly lodged an incident at the police station in which the police staff themselves suffered injuries and their uniforms were torn and bloodstained.
• The uniforms were allegedly seized as evidence, suggesting that the accused were actually the aggressors.
• Therefore, the acts complained of were done in the discharge of official duties, and prior Government sanction under Section 218 BNSS / 197 CrPC was mandatory.
• As no sanction was obtained before filing the complaint, the proceedings were argued to be non-maintainable.

The JMFC, by order dated 10.02.2025, dismissed this application, holding essentially that:

• cognizance had already been taken by the predecessor Magistrate,
• the present Magistrate had no power to review or recall that order, and
• the accused could seek appropriate relief before the revisional court.

D. Revisional Proceedings and Petition under Section 482 CrPC

Aggrieved, the petitioner filed a criminal revision (Criminal Revision No. 3/2025) before the Sessions Judge, Sheopur, which was dismissed on 27.05.2025 with reasoning broadly aligned to the JMFC’s view.

Thereafter, the petitioner approached the High Court under Section 482 CrPC, challenging:

1. the JMFC’s order dated 10.02.2025 rejecting the sanction application; and
2. the Sessions Judge’s order dated 27.05.2025 affirming the same.

The petitioner also raised a procedural grievance that in this private complaint, arrest warrants were issued without prior service of summons or bailable warrants, allegedly rendering the process illegal. This aspect, however, is not substantively decided in the judgment.

III. Summary of the High Court’s Judgment

Justice Rajesh Kumar Gupta dismissed the petition under Section 482 CrPC, with the following key holdings:

• On Magistrate’s power to recall:
  • Relying on Adalat Prasad v. Rooplal Jindal, AIR 2004 SC 4674, and Subramanium Sethuraman v. State Of Maharashtra, AIR 2004 SC 4711, the Court affirmed that a Magistrate who has taken cognizance and issued process cannot recall or review that order because the CrPC does not confer any such power of review.
  • The only remedy for an aggrieved accused at that stage is to move the High Court under Section 482 CrPC or Article 227 of the Constitution.
• On sanction under Section 197 CrPC / Section 218 BNSS:
  • The central question was whether the alleged acts of custodial assault, torture and sexual violence could be said to be acts done “while acting or purporting to act in the discharge of official duty”.
  • On the facts pleaded, the Court found:
    • the complainant and her brother were not accused in any existing case prior to the incident;
    • they were not required for interrogation or investigation at that time; and
    • the alleged assault arose from a mere altercation and not from any lawful exercise of police power.
  • Accordingly, the alleged acts were wholly unrelated to any official duty and did not have the required “reasonable connection” with such duty.
  • Therefore, Section 197 CrPC (and its BNSS equivalent) did not apply, and no prior sanction was required for the Magistrate to take cognizance.
• On the stage of sanction and custodial violence:
  • Reaffirming Supreme Court precedents, the Court held that custodial violence, illegal detention, assault and torture in police custody are not protected by Section 197 CrPC.
  • With reference to Dr. S.M. Mansoori v. Surekha Parmar, 2023 SCC OnLine SC 436, it emphasized that, particularly in such cases, the question of sanction:
    • is not a threshold bar at cognizance/charge stage, and
    • is often a matter of evidence to be assessed in the course of trial if at all relevant.

On these grounds, the High Court held that the courts below committed no error in rejecting the petitioner’s Section 218 BNSS / 197 CrPC application, and the petition under Section 482 CrPC was dismissed. The trial court was directed to proceed in accordance with law, without being influenced by the High Court’s observations on the factual merits.

IV. Detailed Analysis

A. Precedents on the Magistrate’s Power to Recall Summoning Orders

The High Court first addressed a procedural issue: once the Magistrate has taken cognizance and issued process, can the Magistrate later recall that order on an application by the accused (such as under Section 218 BNSS / 197 CrPC)?

1. Adalat Prasad v. Rooplal Jindal, AIR 2004 SC 4674

Adalat Prasad overruled an earlier line of authority (especially K.M. Mathew v. State of Kerala) which had suggested that a Magistrate could recall a summoning order. The Supreme Court held:

Thus, two propositions were settled:

• No review or recall power exists in the Magistrate under the CrPC once process has been issued.
• The proper remedy for an accused challenging an illegal or unjustified summoning order is to move the High Court under Section 482 CrPC (or, where applicable, Article 227 of the Constitution or a revision, depending on context).

2. Subramanium Sethuraman v. State Of Maharashtra, AIR 2004 SC 4711

In Subramanium Sethuraman, the Supreme Court reaffirmed Adalat Prasad, clarifying that the bar on recall applies:

• not only in summons cases but equally in warrant cases covered by Chapter XIX CrPC, and
• even after the plea of the accused has been recorded; once the trial has commenced, the Magistrate is bound to proceed with evidence and cannot discharge the accused by “recalling” the process.

The High Court in the present case correctly observed that:

• In both Adalat Prasad and Subramanium Sethuraman, the Supreme Court focused on whether a Magistrate can cancel his own summoning order, and not on the maintainability of a revision against summoning orders.
• The key held ratio: no power of review/recall in subordinate criminal courts.

3. Application to the Present Case

The JMFC had already taken cognizance on 06.02.2024 and had issued process against the petitioner. The subsequent application under Section 218 BNSS / 197 CrPC was, in substance, an attempt to:

• have the court withdraw or nullify the earlier decision to proceed with the case, or
• at least to forestall the continuation of the proceedings on the ground that sanction was absent.

Relying on the above Supreme Court authorities, the High Court upheld the reasoning that:

• The JMFC had no jurisdiction to review or recall the cognizance order.
• Any challenge to the correctness of that order lay before the High Court (which is precisely what was attempted via Section 482 in this case).

This part of the decision is a straightforward reaffirmation of the law and does not create new doctrine, but it highlights that the defence of want of sanction, if raised after cognizance, is not a basis for recall at the Magistrate level.

B. Sanction to Prosecute Public Servants: Section 218 BNSS / Section 197 CrPC

1. The Statutory Scheme and Purpose

Section 197 CrPC (and its successor provision, Section 218 BNSS) requires prior sanction of the Government before a court can take cognizance of certain offences alleged to have been committed by public servants “while acting or purporting to act in the discharge of their official duty”.

The rationale is to:

• protect honest public servants from vexatious or frivolous litigation in respect of acts reasonably connected to their official functions,
• ensure that fear of criminal prosecution does not paralyze administrative decision-making, and
• preserve a measure of executive control over the initiation of prosecutions in sensitive situations.

However, this protection is not absolute. As the Supreme Court has repeatedly held, it is conditional upon:

• a demonstrable reasonable nexus between the impugned act and official duty; and
• the act being such that it would not have been performed at all but for the official role of the accused public servant.

2. The “Reasonable Connection” Test: Budhikota Subbarao

In State Of Maharashtra v. Dr. Budhikota Subbarao, (1993) 3 SCC 339, the Supreme Court articulated the core test:

• Whether there is a reasonable connection between the act complained of and the official duty of the public servant;
• If the act is so integrally connected with the performance of official duty that it could be claimed to have been done by virtue of that office, even if in excess of or in improper manner of discharge of such duty, then sanction may be required.
• If, however, the act is entirely unrelated to official duty, or is a mere cloak for private or illegal acts, then the protection of Section 197 does not apply.

The High Court in the present case explicitly invokes this “reasonable connection” or “reasonable nexus” test and frames its own factual analysis around it.

C. Custodial Violence and the Non-Applicability of Sanction

A substantial portion of the judgment is dedicated to explaining why custodial assault and torture fall outside the protective scope of Section 197 CrPC / Section 218 BNSS. For this, the High Court draws extensively on Supreme Court precedents.

1. P.P. Unnikrishnan v. Puttiyottil Alikutty, (2000) 8 SCC 131

In P.P. Unnikrishnan, the Supreme Court held that:

• Assault by police officers on persons in custody is not an act done in the discharge of official duty.
• A police officer who assaults a prisoner inside the lock-up cannot claim a connection with official duty unless he can demonstrate that such force was:
  • in self-defence, or
  • in defence of others or of property, or
  • otherwise justified by law.

Thus, the presumption runs against treating custodial violence as “official duty”; if an officer wants that protection, the burden is on him to show a lawful basis and reasonable nexus.

2. D.K. Basu v. State of West Bengal, (1997) 1 SCC 416

D.K. Basu is the seminal decision on custodial violence and deaths. The Supreme Court:

• recognized custodial torture as a serious violation of Article 21 of the Constitution (right to life and personal liberty);
• held such practices to be illegal, unconstitutional and indefensible;
• laid down detailed guidelines and safeguards to be followed by police officers during arrest and detention.

The High Court in the present case cites D.K. Basu to underline the normative foundation: custodial violence cannot, “by any stretch”, be understood as part of legitimate police duty.

3. Devinder Singh v. State of Punjab, (2016) 12 SCC 87

In Devinder Singh, the Supreme Court again rejected the argument that misuse or abuse of power in custody can be cloaked as “official duty” attracting Section 197 protection. If the act is beyond the pale of lawful authority, Section 197 is inapplicable.

4. Dr. S.M. Mansoori v. Surekha Parmar, 2023 SCC OnLine SC 436

The High Court refers to this recent Supreme Court decision for two critical propositions:

• At the stage of cognizance or framing of charge, the court is often not required to insist on sanction where allegations concern acts such as custodial violence or illegal acts by police officers.
• The determination of whether an act is “connected with official duty” may be a mixed question of law and fact best resolved at the stage of evidence, rather than as a preliminary bar to trial.

The Supreme Court in Mansoori refused to quash proceedings against police officials on the ground of absence of sanction, underscoring that sanction is not an automatic shield and must be tested against the nature of allegations.

D. The High Court’s Application of These Principles to the Facts

1. Were the Complainant and Her Brother Lawful Objects of Police Action?

The High Court first notes that:

• There was no prior registered case against Pooja or her brother Dhirendra at the time of the incident.
• They were not required for interrogation or investigation in any pre-existing offence.

Thus, unlike situations where a suspect is lawfully arrested, detained or interrogated pursuant to a registered FIR, here the Court found no pre-existing legal basis justifying their presence in custody or the exercise of coercive police powers.

2. Nature of the Acts Alleged

The acts alleged include:

• unprovoked assault with hands and sticks on the road,
• forcible transportation to the police station,
• stripping and beating inside the police station,
• locking in the lock-up and threatening a fake encounter,
• assault, sexualised violence (slapping, pulling dupatta, biting) and beating of a woman complainant inside the police station.

The Court characterizes these allegations as acts of custodial beating, torture and illegal detention, which, by their very nature, are antithetical to lawful policing.

3. No “Demand of the Situation” and No Reasonable Nexus

An important phrase the Court uses is that the alleged assault was “not the requirement/demand of the moment.” Translating this into doctrinal language:

• The Court found no factual circumstances that would justify the use of such force as part of an official function (e.g., self-defence, preventing an escape, controlling a violent mob, etc.).
• Therefore, the acts did not bear the necessary reasonable connection with any bona fide discharge of police duties.

The Court then draws a doctrinal line:

4. Cumulative Conclusion on Section 197 / Section 218 BNSS

Connecting the doctrinal test (from Budhikota Subbarao, Unnikrishnan, D.K. Basu, Devinder Singh and Mansoori) with the factual findings, the Court holds that:

• Allegations of custodial beating, torture and humiliation cannot, even prima facie, be treated as part of the petitioners’ official duties.
• Section 197 CrPC thus does not bar the complaint for want of prior sanction.
• The absence of sanction is no ground to quash the proceedings at the Section 482 stage.

Hence, the attempt to use sanction as a shield in a custodial violence case fails.

E. Continuity of Jurisprudence under BNSS 2023

The petitioner’s application was formally framed under Section 218 BNSS 2023, explicitly described in the order as the counterpart of Section 197 CrPC.

By relying entirely on the extensive body of Supreme Court case-law developed under Section 197 CrPC, the High Court implicitly affirms that:

• Despite renumbering and codal change from CrPC to BNSS, the substantive principles governing “sanction for prosecution of public servants” remain continuous.
• Existing precedents on the interpretation of Section 197 CrPC are fully applicable to Section 218 BNSS, unless and until the statutory language materially diverges or is interpreted differently by higher courts.

This is an important point for the future: transitional litigation under BNSS will continue to be guided by decades of CrPC jurisprudence, providing doctrinal stability and predictability.

V. Clarification of Complex Legal Concepts

For readers less familiar with criminal procedure, several concepts used in the judgment warrant brief explanation.

1. “Cognizance” by a Magistrate

“Cognizance” is the stage at which a Magistrate applies his judicial mind to the facts of a case for the purpose of proceeding under the criminal law. It is:

• the formal acknowledgment by the court that a prima facie case exists (whether based on a police report or a private complaint);
• followed by the issuance of “process” (summons or warrant) to the accused under Section 204 CrPC (or the equivalent in BNSS).

Once cognizance is taken and process issued, the Magistrate cannot review or recall that order, in light of Adalat Prasad and Subramanium Sethuraman.

2. “Process”: Summons and Warrants

When a court decides to proceed against an accused, it issues “process”:

• Summons: an order to appear before the court on a specified date.
• Bailable warrant: a warrant of arrest where the accused can secure release on bail as a matter of right.
• Non-bailable warrant: a more coercive form of process where bail is not a matter of right.

The petitioner alleged that the Magistrate issued an arrest warrant directly, without first trying summons or bailable warrants. While this could, in other contexts, raise procedural fairness concerns, the High Court’s judgment does not meaningfully engage with this issue, as its focus is on sanction and magistrate’s power to recall.

3. Section 197 CrPC / Section 218 BNSS: Sanction for Prosecution

This provision restricts courts from taking cognizance of certain offences alleged against public servants for acts done “while acting or purporting to act in the discharge of official duty” without prior Government approval. Key points:

• The protection is personal to public servants.
• It does not immunize illegal acts; it protects only acts reasonably connected to official duties.
• The question is: would the act complained of have been performed at all if the accused were not a public servant? If yes, and it occurs in the course of work, sanction may apply; if no, sanction is unnecessary.
• For blatantly illegal acts like custodial torture or sexual assault in custody, courts have consistently refused to treat them as “official duty”.

4. Section 482 CrPC: Inherent Powers of the High Court

Section 482 CrPC preserves the inherent powers of the High Court to:

• make orders necessary to give effect to any order under the CrPC,
• prevent abuse of the process of any court, or
• otherwise secure the ends of justice.

Accused persons often invoke Section 482 to seek quashing of criminal proceedings, especially where:

• the allegations do not even prima facie constitute any offence,
• the proceedings are manifestly mala fide or oppressive, or
• there is a clear legal bar (such as lack of sanction where truly applicable).

In this case, the petitioner used Section 482 to challenge the refusal to apply the sanction bar, but the High Court held that there was no such bar.

5. Revision vs. Recall

A revision is a supervisory jurisdiction (typically under Sections 397–401 CrPC), allowing higher courts to correct jurisdictional or material legal errors in orders of subordinate courts. It is distinct from “recall”:

• “Recall” or “review” would mean the same court undoing its own earlier order, which subordinate criminal courts are not permitted to do.
• “Revision” involves an independent higher court reviewing the legality or propriety of a subordinate court’s order.

The petitioner first attempted to have the Magistrate effectively recall the cognizance order via the Section 218 BNSS application; when that failed, a revision to the Sessions Court was filed, and then a Section 482 petition to the High Court.

VI. Impact and Implications

A. Reinforcing Police Accountability in Custodial Violence Cases

The judgment adds to a strong and consistent judicial message:

• Custodial violence will not be excused as an “official act”, and
• sanction will not serve as a pre-trial shield in cases alleging torture, illegal detention, or sexual assault in custody.

For victims and complainants, this means:

• they are less likely to see their complaints stymied at the threshold on technical sanction grounds;
• trial courts are empowered (and indeed obliged) to proceed with such cases without first waiting for Government sanction, unless there is a clearly demonstrable, reasonable nexus to lawful official functions.

B. Guidance for Trial Courts under BNSS 2023

As the BNSS comes into fuller operation, trial courts will inevitably face questions about:

• how to apply Section 218 BNSS,
• whether distinct procedural or doctrinal standards apply under the new code, and
• how much weight to accord existing CrPC jurisprudence.

This judgment:

• confirms that established principles under Section 197 CrPC – particularly the “reasonable nexus” test – seamlessly transfer to Section 218 BNSS;
• underscores that sanction is an exception to access to justice, not the norm, and must be strictly construed;
• signals that BNSS will not dilute accountability in custodial violence cases.

C. Clarifying Defence Strategies for Public Servants

For public servants, especially police officers, the judgment sends a clear message:

• Invoking sanction is not a blanket tactic. It will be carefully scrutinized for reasonable connection to official duty.
• In cases of routine law-enforcement (e.g., lawful arrest, controlled use of force, acts strictly necessary to fulfill legal duties), sanction may be a valid defence.
• But in alleged acts of:
  • third-degree methods,
  • illegal detention,
  • fabrication of evidence,
  • sexual violence or humiliation in custody,
  sanction will ordinarily not apply.

Strategically, this may push defence counsel to:

• focus more on contesting facts and evidence at trial, rather than seeking early quashing on sanction grounds, and
• reserve sanction arguments for truly borderline cases where the act can be plausibly linked to bona fide official functions.

D. Procedural Discipline: No Recall Power in Subordinate Criminal Courts

The reaffirmation of Adalat Prasad and Subramanium Sethuraman has systemic implications:

• Accused persons cannot repeatedly re-litigate the correctness of summoning orders before the trial Magistrate.
• Once cognizance is taken, challenges must be addressed to higher courts (revision/Section 482/writ), not before the same court.
• This curbs delays and prevents Magistrate courts from becoming arenas for endless pre-trial skirmishes over maintainability.

E. Interaction with Human Rights and Constitutional Jurisprudence

By explicitly citing D.K. Basu and reaffirming the illegality of custodial violence, the judgment integrates:

• criminal procedural safeguards (Section 197/Section 218 BNSS),
• substantive penal norms (IPC offences like Sections 323, 342, 354, 506), and
• constitutional guarantees (Article 21).

In doing so, it reinforces a broader constitutional narrative:

• Police powers are not absolute; they are constitutionally bounded.
• Procedural devices like sanction cannot be allowed to hollow out fundamental rights protections against torture and degrading treatment.

VII. Conclusion

Smt. Mamta Gurjar v. Pooja Kushwah stands as a pointed reaffirmation of a crucial legal and moral proposition: custodial violence, illegal detention, and sexualized abuse in police custody are never part of a police officer’s “official duty”.

Doctrinally, the judgment:

• reapplies and consolidates Supreme Court precedents on:
  • the absence of recall power in Magistrates (Adalat Prasad, Subramanium Sethuraman), and
  • the limited and conditional nature of sanction protections for public servants (Budhikota Subbarao, Unnikrishnan, D.K. Basu, Devinder Singh, Mansoori).
• clarifies that Section 218 BNSS will be interpreted harmoniously with Section 197 CrPC, preserving continuity in the law of sanction.
• rejects the attempt to treat serious allegations of custodial torture and assault as shielded by “official duty”, ensuring such cases can proceed to trial without prior governmental sanction.

Practically, the decision strengthens:

• the hands of complainants in custodial violence cases,
• the resolve of trial courts to proceed without undue hesitation on sanction issues in such contexts, and
• the broader legal framework of police accountability consistent with constitutional guarantees under Article 21.

As BNSS 2023 begins to shape Indian criminal procedure, this judgment marks an important early signal: renumbering of provisions will not dilute long-standing judicial commitments to protect citizens from torture and abuse of power in custody, nor will it expand the protective envelope of “official duty”. The law remains clear: sanction cannot be a refuge for custodial violence.