Section 175(4) BNSS as a Procedural Restraint on Section 175(3): Written, Affidavit-Supported Complaints and Mandatory Safeguards Before Ordering Investigation Against Public Servants
Case: XXX v. STATE OF KERALA & Ors
Citation: 2026 INSC 88
Court: Supreme Court of India
Date: 27-01-2026
Coram: Dipankar Datta, J.; Manmohan, J.
1. Introduction
The appeal arose from a criminal-law procedural dispute triggered by allegations of repeated sexual assault by police officers against the appellant (complainant). After the local police did not register an FIR, the appellant invoked the statutory escalation route under the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) and approached the Judicial Magistrate First Class (“JMFC”). The JMFC, relying on Section 175(4), BNSS, called for a report from a superior police officer.
While the magistrate’s process was pending, the appellant also filed a writ petition under Article 226 seeking, inter alia, registration of FIR and a declaration that the alleged sexual offences were not “in discharge of official duties” so as to avoid the protection embedded in Section 175(4). A Single Judge accepted that approach and effectively pushed the magistrate to order FIR registration. The Division Bench reversed, holding the writ intervention premature and impermissible when BNSS remedies were underway. The Supreme Court affirmed the Division Bench.
Beyond disposing of the appeal, the Court used the occasion to authoritatively construe the new BNSS framework—particularly the “nuanced” relationship between Section 175(3) and the newly introduced Section 175(4)—and to lay down a magistrate-facing guide for dealing with complaints against public servants.
Key Issues
- Whether Section 175(4), BNSS is standalone, or must be read in continuity with Section 175(3).
- What procedure a magistrate must follow when asked to direct investigation against a public servant for acts allegedly arising “in course of the discharge of his official duties”.
- Whether a writ court may intervene midstream in magistrate proceedings and interpret Section 175(4) absent challenge to the magistrate’s order.
2. Summary of the Judgment
2.1 Core Holdings on Section 175(4), BNSS
- Section 175(4) is neither (i) a standalone provision nor (ii) a proviso to Section 175(3).
- Section 175(3) and Section 175(4) must be read harmoniously, with Section 175(4) operating as an additional procedural restraint/protective layer when the proposed direction concerns a public servant and the alleged offence arises in course of official duty.
- Even though Section 175(4) uses the word “complaint” (which is defined to include oral complaints under Section 2(1)(h), BNSS), in context it must be purposively read as requiring a written complaint supported by an affidavit (aligning with Section 175(3) and the safeguard in Priyanka Srivastava v. State of U.P.).
- The affidavit must satisfy Section 333, BNSS.
2.2 Guide for Magistrates: When and How to Invoke Section 175(4)
The Court stated that “may” in Section 175(4) retains discretion, and set out three operational pathways:
- If the magistrate is prima facie satisfied the alleged act arose in discharge of official duties, the magistrate should follow Section 175(4) safeguards (superior officer’s report + consider accused public servant’s assertions).
- If the magistrate has a prima facie doubt, the magistrate may “err on the side of caution” and follow Section 175(4).
- If the magistrate is satisfied the act was not in discharge of official duties / bears no reasonable nexus, the magistrate may proceed under Section 175(3) without invoking Section 175(4) rigours.
If the superior officer fails to submit the report within a reasonable time, the magistrate need not wait indefinitely and may proceed under Section 175(3) after considering the public servant’s version if available.
2.3 Writ Intervention: Limits and Jurisdictional Error
- The Single Judge ought not to have interpreted Section 175(4) and directed the JMFC while the BNSS process was ongoing and without a challenge to the JMFC’s judicial order.
- A judicial order (including in criminal matters) is not ordinarily amenable to challenge under Article 226; appropriate routes include statutory remedies and supervisory jurisdiction (e.g., Article 227), consistent with Radhe Shyam v. Chhabi Nath and Pradnya Pranjal Kulkarni v. State of Maharashtra.
- Relief not prayed for cannot ordinarily be granted in writ jurisdiction; reliance was placed on Krishna Priya Ganguly v. University of Lucknow, Om Prakash v. Ram Kumar, and Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi.
Disposition
The Supreme Court upheld the Division Bench’s decision, leaving the appellant to pursue remedies before the JMFC, while clarifying that the JMFC must first ensure the application is accompanied by an affidavit as per Section 333, BNSS and that the appellant may argue the “official duty nexus” issue before the magistrate.
3. Analysis
3.1 Precedents Cited and Their Role
The appellant invoked Lalita Kumari to insist on mandatory FIR registration when a cognizable offence is disclosed and to attack a prior police “preliminary enquiry” report as exceeding permissible scope. The Supreme Court restated the key takeaways of Lalita Kumari (mandatory FIR registration; preliminary enquiry only in limited categories; enquiry cannot test veracity but only whether a cognizable offence is disclosed; closure must be recorded and supplied).
However, the Court decisively limited Lalita Kumari’s immediate operational relevance: once the complainant has moved the magistrate under the BNSS escalation pathway, the magistrate must act within Section 175(3)/(4), BNSS; the “preliminary enquiry before FIR” debate does not strictly govern that stage.
This case was pivotal to the Court’s construction exercise. Priyanka Srivastava required that applications under Section 156(3), Cr. PC be supported by an affidavit to curb abuse. The Supreme Court treated BNSS Section 175(3)’s affidavit requirement as a statutory incorporation of that safeguard, and refused to allow Section 175(4) to become a “loophole” permitting investigation orders against public servants without an affidavit.
This was treated as the Court’s first decision briefly discussing Section 175, BNSS. It identified three changes in BNSS Section 175(3) (mandatory prior approach to SP; magistrate’s enquiry power; consideration of police submissions), and noted Section 175(4) as a new safeguard for public servants. The present judgment deepens and systematizes that analysis, particularly rejecting the “standalone” reading of Section 175(4).
These authorities collectively informed the Court’s interpretive framework on what constitutes a “proviso” and how to test whether a statutory sub-provision is truly proviso-like. Applying that doctrine, the Court held Section 175(4) is not a proviso: it is not drafted as one; it does not merely carve out an exception; and it remains workable even if Section 175(3) is hypothetically removed.
(E) Ranjit Singh Bath v. Union Territory Chandigarh 20 25 SCC OnLine SC 1479
Cited for the proposition that approaching the Superintendent of Police (now Section 173(4), BNSS) is a mandatory precondition before invoking the magistrate’s Section 175(3) power. This became a key reason to reject Section 175(4) as standalone: a standalone reading could allow bypassing the statutory hierarchy, producing “anomalous results”.
These were deployed to frame the jurisdictional error: (i) judicial orders are not to be attacked through Article 226 writs; (ii) criminal judicial orders are equally protected from such collateral writ review; and (iii) writ courts should not grant relief not prayed for nor supervise pending magistrate processes by indirect directions amounting to recall/alteration of judicial orders.
(G) Public Servant Protection Debate: Anil Kumar v. M.K. Aiyappa (2013) 10 SCC 705; Manju Surana v. Sunil Arora (2018) 5 SCC 557
Respondent arguments invoked these cases to suggest Section 175(4) is a legislative response to controversy on protective thresholds when public servants are targeted. While the Court did not ground Section 175(4) specifically on the sanction debate under the PC Act, it accepted the broader legislative purpose: preventing frivolous/vexatious initiation against public servants at the threshold.
3.2 Legal Reasoning
(A) The interpretive problem: text, structure, and potential misuse
The Court candidly observed that Section 175’s drafting is “somewhat confusing” and required “ironing out the creases” without altering the legislative fabric. The central risk identified was that a literal, isolated reading of Section 175(4) would:
- Enable complainants to bypass Section 173(4) (SP-level escalation) in public servant cases, contrary to the sequential remedial design.
- Permit the most consequential orders (investigation directions against public servants) to be triggered by an oral complaint, without the affidavit safeguard embedded in Section 175(3) and mandated by Priyanka Srivastava.
(B) The Court’s “third way”: not standalone, not proviso, but a procedural restraint
Rejecting both extremes, the Court adopted a functional-harmonious construction:
- Section 175(3) supplies the general authority and baseline preconditions (including affidavit and prior SP approach).
- Section 175(4) adds extra safeguards (superior officer’s report and consideration of accused public servant’s assertions) when the alleged offence arises in course of official duty.
This produces a unified scheme: Section 175(4) is a “qualifying procedural layer”, not an alternative entry-point that dilutes Section 175(3)’s gatekeeping.
(C) Contextual narrowing of “complaint” in Section 175(4)
Although “complaint” in Section 2(1)(h), BNSS includes oral complaints, the definitional clause is prefaced by “unless the context otherwise requires”. The Court held the context here does require otherwise, because Section 175(4) is tethered to Section 175(3)’s procedural discipline. Hence, “complaint” in Section 175(4) must mean a written complaint supported by affidavit.
(D) “May” means discretion—yet structured discretion
The Court refused to convert “may” into “shall” in the abstract, but simultaneously structured the discretion with a practical judicial workflow: if official-duty nexus is clear or doubtful, invoke Section 175(4); if clearly unrelated, proceed under Section 175(3). This calibrates protection for public servants without immunizing wrongdoing.
(E) Separation of roles: writ court vs magistrate fact evaluation
On the attempted declaratory relief that rape cannot be “official duty”, the Court emphasized that granting such relief in the absence of a challenge to the magistrate’s order would require the writ court to undertake a magisterial fact assessment—an impermissible conversion of writ jurisdiction into an inquiry forum.
3.3 Impact
(A) Immediate procedural precedent under BNSS
This judgment is a foundational interpretive precedent on BNSS Section 175. It effectively standardizes that:
- Public servant complaints at the “direct investigation” stage cannot be used to bypass statutory escalation or affidavit discipline.
- Magistrates must treat Section 175(4) as a structured safeguard mechanism, not an independent track.
(B) Abuse-prevention and accountability balance
By requiring affidavit support even in Section 175(4) scenarios, the Court strengthens complainant accountability (perjury risk) while preserving the possibility of investigation through judicial order. Simultaneously, by mandating a superior officer report and considering the accused public servant’s assertions when official-duty nexus is present or doubtful, the ruling seeks to reduce retaliatory criminalization of administrative actions.
(C) Constraining parallel proceedings and “midstream” writ intervention
The decision reinforces remedial discipline: once the magistrate process is invoked and is pending, parallel writ proceedings to force FIR registration or to indirectly overturn the magistrate’s interlocutory order will face strong resistance.
(D) Practical implications for sensitive allegations (including sexual offences)
Notably, the Court did not hold that Section 175(4) is automatically inapplicable to allegations of sexual offences; instead, it anchored the trigger in the statutory phrase “arising in course of the discharge of his official duties” and left that determination to the magistrate on a prima facie assessment. This means future cases will likely litigate the “reasonable nexus” threshold, but within the magistrate’s structured discretion and not by collateral writ declaration.
4. Complex Concepts Simplified
- “FIR registration is mandatory” (from Lalita Kumari): If the information shows a cognizable offence on its face, police must register an FIR; they cannot test truthfulness first, except in limited situations where the goal is only to see if a cognizable offence is disclosed.
- “Section 173(4), BNSS escalation”: If the police station refuses to register FIR, the complainant must approach the Superintendent of Police first; only then can the magistrate be moved under Section 175(3).
- “Affidavit requirement”: A sworn statement supporting the application, intended to deter false complaints because false swearing can attract legal consequences. Under this judgment, it applies to Section 175(4) complaints too.
- “Section 175(4) safeguards”: Before ordering investigation against a public servant for acts tied to official duty, the magistrate should call for a superior officer report and consider the accused public servant’s explanation—an early screening mechanism.
- “Standalone vs proviso vs procedural restraint”:
- Standalone would mean Section 175(4) can be used independently, even bypassing Section 175(3) conditions.
- Proviso would mean it is merely an exception carved out from Section 175(3).
- The Court held it is neither; it is an additional procedural layer that operates together with Section 175(3).
- “Why writ court intervention was barred here”: The magistrate’s order calling for a report is a judicial order; writ courts under Article 226 generally do not sit in appeal over judicial orders, especially when statutory/supervisory remedies exist.
5. Conclusion
The judgment establishes an early and influential BNSS precedent: Section 175(4) cannot be used to dilute the gatekeeping safeguards of Section 175(3). Complaints seeking investigation directions against public servants for acts allegedly arising in discharge of official duties must be written and affidavit-supported and must travel through the statutory escalation hierarchy, while magistrates must apply the additional Section 175(4) screening safeguards where official-duty nexus is apparent or doubtful.
Equally significant is the Court’s insistence on remedial discipline: parties should not pursue parallel writ remedies to short-circuit pending magistrate proceedings, and writ courts should not indirectly override unchallenged judicial orders or grant unprayed relief. In sum, the decision tightens procedural integrity at the threshold stage, balancing accountability for wrongdoing with protection against vexatious prosecution of public servants.