{"id":374004,"date":"2026-01-29T10:30:27","date_gmt":"2026-01-29T05:00:27","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=374004"},"modified":"2026-01-30T17:14:28","modified_gmt":"2026-01-30T11:44:28","slug":"sc-guidelines-invoking-section-1754-bnss","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2026\/01\/29\/sc-guidelines-invoking-section-1754-bnss\/","title":{"rendered":"SC| FIRs Against Public Servants Can’t Be Ordered Just Like That: Magistrates Must Follow Two-Tier Safeguard Under Sections 175(3) & 175(4) BNSS"},"content":{"rendered":"
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Supreme Court:<\/span> While considering this appeal which involved interpretation of certain provisions of Nagarik Suraksha Sanhita, 2023<\/a> (BNSS), especially Section 175(4), the Division Bench of Dipankar Datta*<\/span> 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)<\/span>. 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)<\/a> BNSS<\/a>.<\/p>\n

Background and Legal Trajectory:<\/h3>\n

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.<\/p>\n

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)<\/a> BNSS<\/a> to the District Police Chief and an application under Section 210<\/a> of the BNSS<\/a> 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.<\/p>\n

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)<\/a>, BNSS<\/a> was not required to be followed.<\/p>\n

Single Judge Bench of the High Court allowed the writ petition holding that compliance with Section 175(4)(a)<\/a>, BNSS<\/a> 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)<\/a> BNSS<\/a> was still pending. Owing to pendency of the application under Section 175 (4)<\/a>, BNSS<\/a> before the JMFC, the remedy under Article 226 could not have been invoked without exhausting the remedy under the BNSS.<\/p>\n

Subsequently, the matter reached the Supreme Court.<\/p>\n

Issues framed:<\/h3>\n

The following issues arose for consideration<\/p>\n