Supreme Court: While considering this appeal which involved interpretation of certain provisions of Nagarik Suraksha Sanhita, 2023 (BNSS), especially Section 175(4), the Division Bench of Dipankar Datta* and Manmohan, JJ., held that Section 175(3) and Section 175(4) are not isolated silos but must be read in harmony, with sub-section (4) forming an extension of sub-section (3). In the case of public servants, where the allegation is that an offence was committed in course of the discharge of official duties, the law (BNSS) now provides a two-tier protection. The first operates at the threshold stage, in the form of additional safeguards under sub-section (4) of Section 175 (when a prayer is made seeking an order for investigation against a public servant), and next under sub-section (1) of Section 218 (before cognizance is taken of the offence alleged). The second tier operates at the stage of taking cognizance when the “previous sanction” of the concerned Government is required. The Court further laid down several principles in order to guide Judicial Magistrates on invoking Section 175(4) BNSS.
Background and Legal Trajectory:
While pursuing a complaint relating to a property dispute, the appellant was allegedly, sexually assaulted by three police officers on separate occasions. The appellant lodged a complaint with the office of the Superintendent of Police, in August 2022 after the second incident of sexual assault. This complaint was forwarded to the office of the Deputy Superintendent of Police which submitted a report stating that the allegations in the complaint filed by the appellant were untrue. There was no further progress after this report.
In 2024, after change of incumbency in the office of the Superintendent of Police, the appellant submitted a written complaint before Station House Officer; a complaint under Section 173(4) BNSS to the District Police Chief and an application under Section 210 of the BNSS read with Section 173(4) before the Judicial Magistrate First Class, Ponnani seeking a direction for registration of an FIR against those police officials whom the appellant perceived as offenders.
The JMFC called for a report from the Deputy Inspector General of Police, Thrissur Range. Two days later, while the appellant’s application was still pending before the JMFC, she invoked the writ jurisdiction of the Kerala High Court alleging unfair and unlawful investigation by the police. Appellant implored the High Court to declare that the acts of the police officials, in sexually assaulting her, were not in the discharge of their official duties and, thus, Section 175(4), BNSS was not required to be followed.
Single Judge Bench of the High Court allowed the writ petition holding that compliance with Section 175(4)(a), BNSS prior to registration of an FIR was not mandatory, as the alleged offence of rape could not be regarded as one committed by a public servant in the “discharge of official duties”. Aggrieved with this decision, the respondents preferred appeal before the Division Bench, which proceeded to set aside the order passed by the Single Judge and the order of the JMFC directing registration of an FIR. The Division Bench held that interference by the Single Judge with the order of the JMFC was unwarranted, when the complaint under Section 175(3) BNSS was still pending. Owing to pendency of the application under Section 175 (4), BNSS before the JMFC, the remedy under Article 226 could not have been invoked without exhausting the remedy under the BNSS.
Subsequently, the matter reached the Supreme Court.
Issues framed:
The following issues arose for consideration
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Whether sub-section (4) of Section 175, BNSS is a stand-alone provision or is it to be read in continuation of / as a proviso to subsection (3) thereof?
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What procedure should a judicial magistrate follow upon receiving a complaint against an accused, who happens to be a public servant, for his acts “arising in course of the discharge of his official duties”?
However, on basis of the facts of this case, the Court had to determine the following issues:
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Whether the Single Judge exceeded his jurisdiction by interpreting sub-section (4) of Section 175, BNSS while issuing consequential directions for the JMFC to pass an appropriate order on the appellant’s application without any prayer in this behalf and particularly in the absence of any challenge to the order of the JMFC dated 11-9-2024 calling for a report per sub-section (4) of Section 175?
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Whether the alleged acts of the public servants, in the facts and circumstances of the present case, fall within the discharge of their official duties?
Court’s Assessment:
Perusing the case, the Court firstly delved into the law laid down in Lalita Kumari v. Govt. of UP, (2014) 2 SCC 1, wherein the Court held that registration of FIR to be mandatory in all cognizable offences, while permitting preliminary inquiry only in limited, exceptional situations.
Reiterating the guidelines in Lalita Kumari (supra), the Court noted that in the present case, the appellant approached the JMFC with the application under Section 210 read with sub-section (4) of Section 173, BNSS upon the omission/neglect of the Station House Officer to register an FIR based on her complaint, it is obvious that the JMFC was required to follow the mandate of the law as in sub-sections (3) and (4) of Section 175, to the extent relevant and applicable. The advisability or otherwise of any preliminary inquiry before registration of an FIR, as explained in Lalita Kumari (supra) would, therefore, stricto sensu not arise in the present case.
On the question of Section 175(4) BNSS whether a standalone provision or not and the procedure to be followed by a Judicial Magistrate, the Court noted that since the BNSS has been newly enacted and contains certain provisions which have been included to keep pace with time and are otherwise not to be found in the CrPC, there is a dearth of rulings in regard thereto. Section 175 BNSS deals with “Police officer’s power to investigate cognisable case”.
The Court stated that by the very nature of its contents, sub-sections (3) and (4) of Section 175 could have formed a different section of the BNSS altogether. “Suffice it to record at the outset that the BNSS being a statute of recent origin, which has been enacted after exactly half a century of its precursor governing the field of criminal procedure, one would have expected the legislative drafting thereof to be of the highest order with clear expression of the will of the people. Sadly, Section 175, BNSS is somewhat confusing and requires ironing out the creases in the legislation without altering the material of which it is woven”.
The Court stated that this provision which prescribes a special procedure to be followed before an order for investigation is made in cases involving offences committed by a public servant “in course of the discharge of his official duties”, was absent in the erstwhile CrPC.
With Section 175(4) the Parliament intended it as an additional safeguard for public servants when a complaint is made against them. The mandate is to obtain a report from the accused public servant’s superior officer and to extend to such public servant an opportunity to explain his side of the story. The Court emphasised that while society’s interest is served by prosecuting offenders, it is equally vital to ensure that prosecution is not launched against individuals, including public servants, to settle a score or wreak vengeance or put them in such an awkward position that it becomes difficult for them to act in a similar future occasion. “The responsibility, nay duty, after all, is not just to pursue the actual culprit, but also to protect the innocent from being falsely implicated, wrongly accused and unnecessarily victimised”.
The Court stated that construing Section 175(4) as a standalone provision is susceptible of giving rise to certain difficulties. The Court explained that if sub-section (4) of Section 175 were to be read in isolation or as a standalone provision, it would be open to a complainant to directly approach the judicial magistrate under the said provision while skipping to avail of the remedy provided by sub-section (4) of Section 173 before the Superintendent of Police. This would give rise to anomalous results because sub-section (3) of Section 175 expressly refers to “an application supported by an affidavit made under sub-section (4) of Section 173” which, in effect, mandates that the remedy before the concerned Superintendent of Police be pursued, whereas sub-section (4) thereof contains no such reference. Permitting a complainant to circumvent the statutory hierarchy in cases involving public servants by such an interpretation is likely to produce an outcome which would run contrary to the legislative intent. The Court further explained that had Section 175(4) been intended to operate as an independent provision, it would be reasonable to expect an express exclusion of all the attendant procedural safeguards (the requirement of an affidavit and prior recourse to the Superintendent of Police).
The Court further added that sub-section (4) of Section 175 cannot be considered a proviso the normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. It, in fact, creates an additional important safeguard for public servants not present either in the erstwhile CrPC or in sub-section (3) of Section 175.
Thereafter, the Court explained the manner in which Section 175(4) ought to be construed. On a plain and contextual reading of the scheme of Section 175, the Court found that sub-section (3) vests the judicial magistrate (empowered under Section 210) with the power to order investigation, while subsection (4) while conferring similar power additionally prescribes a special procedural safeguard to be observed by the judicial magistrate (empowered under Section 210) where the proposed direction could concern a public servant. While the authority to direct investigation flows from sub-section (3) as well as from sub-section (4), the latter provides a qualifying procedural layer.
The Court explained that sub-section (3) lays down the general principle whereas sub-section (4) dives into specifics of public servants in the given situation, introducing an additional procedural requirement before the power to order investigation is exercised. Consequently, the exercise of power to order investigation must be preceded by satisfaction of not only the conditions expressly stated in sub-section (4) but also those implicit and traceable to sub-section (3). The Court further stated that since sub-section (4) of Section 175 merely provides an additional protective layer in cases involving public servants, all mandatory procedural requirements governing the exercise of power under subsection (3) of Section 175, must necessarily be complied with.
An application alleging commission of offence(s) by public servants in discharge of their official duties must also be supported by affidavit. Sub-sections (3) and (4) must be read harmoniously, with the latter understood as a procedural restraint upon the power conferred under both the sub-sections for ordering an investigation, and not as a substantive substitute for the former. Opening words in sub-section (4) which reads “Any Magistrate empowered under Section 210, may, upon receiving a complaint against a public servant (…)” have to be purposively read as ‘Any Magistrate empowered under Section 210, may, upon receiving a complaint in writing against a public servant of commission of offence arising in course of the discharge of his official duties, supported by an affidavit, order investigation, subject to (…)’.
When to invoke Section 175(4) – A guide for Judicial Magistrates:
Upon receiving a complaint under sub-section (4) of Section 175, BNSS alleging commission of an offence by a public servant arising in course of the discharge of his official duties, the magistrate may do either of the following:
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Reading the complaint, if the judicial magistrate is prima facie satisfied that commission of the alleged act giving rise to an offence arose in course of discharge of official duties by the public servant, such magistrate may not have any option other than following the procedure prescribed under sub-section (4) of Section 175 of calling for reports from the superior officer and the accused public servant.
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OR, on a consideration of the complaint, where the judicial magistrate entertains a prima facie doubt depending upon the circumstances as to whether the offence alleged to have been committed by the public servant arose in course of discharge of his official duties, such magistrate might err on the side of caution and proceed to follow the procedure prescribed in sub-section (4) of Section 175.
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OR, where the judicial magistrate is satisfied that the alleged act of offence was not committed in the discharge of official duties and/or it bears no reasonable nexus thereto, and also that the rigours of sub-section (4) of Section 175 are not attracted, the complaint may be dealt with in accordance with the general procedure prescribed under sub-section (3) of Section 175.
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The Court clarified that the judicial magistrate would continue to retain the authority to reject an application under sub-section (3) of Section 175, lodged against a public servant, where such magistrate finds that the allegations made therein are wholly untenable, manifestly absurd, or so inherently improbable that no reasonable person could conclude that any offence is disclosed.
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In cases where the judicial magistrate has called for a report from the concerned superior officer under clause (a) of sub-section (4) of Section 175, but such officer fails to comply with the direction or does not submit the report within reasonable time, the judicial magistrate is not obliged to wait indefinitely for compliance and may proceed further in accordance with sub-section (3) of Section 175 after considering the version of the accused public servant under clause (b) of sub-section (4) of Section 175, if on record. “What would constitute ‘reasonable time’ cannot be determined in rigid or inflexible terms and must necessarily depend upon the facts and circumstances of each case before the judicial magistrate who has to take the call”.
Decision on the case:
Coming onto the matter, the Court held that the Single Judge Bench should not have entertained the writ petition, interpreted Section 175(4) and granted relief to the appellant. It was rightly held by the Division Bench that the Single Judge could not have granted relief that the appellant did not pray.
[XXX v. State of Kerala, 2026 SCC OnLine SC 114, decided on 27-1-2026]
*Judgment by Justice Dipankar Datta
Advocates who appeared in this case:
For Appellant(s): Mr. R. Basant, Sr. Adv. Mr. Raghenth Basant, Sr. Adv. Mr. Vikas Jain, AOR Mr. Muhammed Firdouz Av, Adv. Ms. Shrawani, Adv. Mr. Hardik Jayal, Adv. Mr. Akash Rajeev, Adv. Ms. Hima Bhardwaj, Adv. Mr. Aviral Saxena, Adv. Mr. Paritosh Goyal, Adv. Mr. Raunak Arora, Adv. Mr. Kavinesh Rm, Adv. Mr. Nilesh Singh Srineth, Adv.
For Respondent(s): Mr. Siddhartha Dave, Sr. Adv. Mr. A. Karthik, AOR Ms. Smrithi Suresh, Adv. Mr. Ujjwal Sharma, Adv. Mr. Sugam Agrawal, Adv. Mr. Nayan Dham, Adv. Mr. Ranjit Kumar, Sr. Adv. Mr. C. K. Sasi, AOR Ms. Meena K Poulose, Adv. Mr. Akash Diks