The Supreme Court of India has delivered a significant judgment clarifying the interpretation of Section 175 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), specifically regarding the procedure for Magistrates to follow when receiving complaints against public servants.
The Bench, comprising Justice Dipankar Datta and Justice Manmohan, held that sub-section (4) of Section 175, BNSS, is not a standalone provision but must be read harmoniously with sub-section (3). Consequently, the Court ruled that any application alleging the commission of an offence by a public servant in the discharge of official duties must be supported by an affidavit, a requirement explicitly mandated in sub-section (3) but absent in the text of sub-section (4).
The Court disposed of the appeal in the case of XXX v. State of Kerala & Ors (2026 INSC 88), upholding the decision of the Division Bench of the Kerala High Court which had set aside a Single Judge’s order directing the registration of an FIR.
Background of the Case
The case arose from a property dispute where the appellant alleged she was sexually assaulted by three police officers on separate occasions in 2022. Following a lack of action on her initial complaints, and a police report stating the allegations were untrue, the appellant approached the Judicial Magistrate First Class (JMFC), Ponnani, in September 2024. She filed an application under Section 210 read with Section 173(4) of the BNSS seeking a direction for the registration of an FIR.
On September 11, 2024, the JMFC, invoking Section 175(4) of the BNSS, called for a report from the Deputy Inspector General of Police. While this application was pending, the appellant filed a writ petition in the Kerala High Court.
A Single Judge of the High Court allowed the writ petition on October 18, 2024, holding that compliance with Section 175(4)(a) was not mandatory as the alleged offence of rape could not be regarded as being in the “discharge of official duties.” The Single Judge directed the Magistrate to dispose of the application, leading the JMFC to order the registration of an FIR on October 24, 2024.
The fifth respondent (a police officer) appealed this decision. The Division Bench of the High Court set aside the Single Judge’s order, ruling that interference was unwarranted while the matter was pending before the Magistrate. The appellant then approached the Supreme Court.
Arguments of the Parties
Appellant’s Submissions: Senior Advocate Mr. R. Basant, appearing for the appellant, argued that the protection under Section 175(4) BNSS is available only if the alleged offence arises “in course of the discharge of his official duties.” He contended that sexual assault cannot be considered an official duty, and thus the provision was not attracted. He further argued that Section 175(4) is not a standalone provision and must be read with sub-section (3), meaning the requirement of an affidavit applies. He relied on the Supreme Court’s decision in Lalita Kumari v. Govt. of U.P. regarding mandatory FIR registration.
Respondents’ Submissions: Senior Advocate Mr. Ranjit Kumar, appearing for the State, supported the JMFC’s decision to call for a report. He highlighted that a preliminary enquiry had found the allegations false and motivated by a conspiracy. He argued that Sections 173 and 175 BNSS are not standalone and must be read together to prevent misuse.
Senior Advocate Mr. Siddharth Dave, appearing for the accused police officer, argued that Section 175(4) is an independent provision designed to provide a “two-tier protection mechanism” for public servants—one at the investigation stage and another at the cognizance stage (Section 218 BNSS). He submitted that the absence of the affidavit requirement in sub-section (4) was a conscious legislative omission to allow for complaints but with added safeguards like a superior officer’s report.
The Court’s Analysis
The Supreme Court undertook a detailed interpretation of the newly enacted BNSS provisions.
On Section 175(4) BNSS: The Court rejected the argument that sub-section (4) is a standalone provision. It observed that if construed in isolation, a complainant could bypass the statutory hierarchy of approaching the Superintendent of Police under Section 173(4) BNSS, which is a prerequisite under Section 175(3).
Justice Datta, writing for the Bench, observed:
“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 sub-section (3) of Section 175, in our opinion, must necessarily be complied with.”
The Court reasoned that it is “illogical that a magistrate would be precluded from ordering investigation against a person who is not a public servant without an affidavit supporting the allegations… but may order an investigation against a public servant without needing the informant to swear to the allegations.”
The judgment clarified that the word “complaint” in sub-section (4) must be purposively read to mean a written complaint supported by an affidavit.
“We hold that the opening words in sub-section (4)… 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…'”
Guidance for Magistrates: The Court laid down that upon receiving a complaint against a public servant, a Magistrate has discretion (“may”) and can:
- Follow the procedure under Section 175(4) (calling for a report) if prima facie satisfied the act was in discharge of official duties.
- Err on the side of caution and follow Section 175(4) if there is doubt.
- Proceed under the general procedure of Section 175(3) if satisfied the act was not in the discharge of official duties.
On the High Court’s Jurisdiction: The Supreme Court held that the Single Judge exceeded his jurisdiction by entertaining the writ petition while the matter was seized of by the JMFC, especially when there was no challenge to the JMFC’s order calling for a report.
“The Single Judge would have been justified in interpreting the law if the order of the JMFC… been challenged… The JMFC having called for a report from the superior police officer by his order, it was a judicial order passed in exercise of power conferred by sub-section (4) of Section 175.”
Decision
The Supreme Court upheld the order of the Division Bench of the Kerala High Court. The Court noted that the JMFC has now issued notice to the accused under Section 175(4)(b) BNSS.
The Bench granted liberty to the appellant to participate in the proceedings before the JMFC and raise her contentions, including that the actions of the police officers were not in the discharge of official duties.
Crucially, the Court directed:
“It is also clarified that the JMFC must first satisfy himself that the application under Section 175(3), BNSS is accompanied by an affidavit sworn or affirmed in accordance with the terms of Section 333 thereof.”
Case Details:
- Case Title: XXX v. State of Kerala & Ors
- Case Number: Criminal Appeal No. 4629 of 2025
- Coram: Justice Dipankar Datta and Justice Manmohan
