Section 175 BNSS Public Servant Investigation: Supreme Court Clarifies Magistrate’s Powers

Case Summary

• Case: XXX v. State of Kerala & Ors., Criminal Appeal No. 4629 of 2025 (arising out of SLP (Criminal) No. 5175 of 2025) — reported as 2026 INSC 88

• Date of Judgment: 27 January 2026

• Bench: Honourable Justice Dipankar Datta; Honourable Justice Manmohan

• Counsel:

  • Mr R. Basant (for appellant)

  • Mr Ranjit Kumar (for State respondents)

  • Mr Siddharth Dave (for R-5)

• Statutes / Sections considered:

  • Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): Sections 173(4), 175(1), 175(3), 175(4), 210, 218(1), 333

  • Cross-reference to Code of Criminal Procedure, 1973: Sections 154, 156, 156(3), 197, etc.

• Key cited authorities:Lalita Kumari v. Govt. of U.P., Priyanka Srivastava v. State of U.P., Anil Kumar v. M.K. Aiyappa, Manju Surana v. Sunil Arora, Om Prakash Ambadkar v. State of Maharashtra, Ranjit Singh Bath v. Union Territory Chandigarh, Radhe Shyam v. Chhabi Nath and other Supreme Court precedents

Introduction

This carefully reasoned judgment by a two-Judge Bench (Honourable Justice Dipankar Datta and Honourable Justice Manmohan) addresses an issue of immediate practical significance: the scope and interplay of sub-sections (3) and (4) of Section 175 BNSS where allegations are levelled against a public servant.

The litigation arose from serious factual allegations of sexual assault by police officers and the procedural course adopted by the complainant when an FIR was not initially registered. The Court reconciles the new BNSS framework with existing jurisprudence—most notably Lalita Kumari and Priyanka Srivastava—and provides detailed guidance for trial magistrates.

Key Legal Problems Decided

At the heart of the decision are three inter-related issues:

1. Whether Section 175(4) BNSS is a standalone provision or must be read in continuity with Section 175(3).

2. What procedural steps a Judicial Magistrate should follow when faced with a complaint implicating a public servant for acts allegedly committed in the discharge of official duty.

3. Whether the Single Judge of the High Court exceeded jurisdiction by interfering while the JMFC had already called for a report under Section 175(4).

Summary of the Court’s Conclusions

• The Bench held that Section 175(4) is neither a free-standing provision nor a mere proviso to sub-section (3). It must be read harmoniously with sub-section (3) as an adjunct imposing additional procedural safeguards in cases involving public servants. 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.”

• A complaint under Section 175(4) must be in writing and supported by an affidavit in accordance with Section 333 BNSS. Permitting oral complaints against public servants while rejecting them in other cases would be irrational and inconsistent with safeguards recognised in Priyanka Srivastava.

• The Magistrate may call for a report from the superior officer and afford the accused public servant an opportunity to be heard. While the word “may” imports discretion, where the Magistrate is prima facie satisfied that the act arose in the discharge of official duty, the procedure under sub-section (4) must be followed.

• The Single Judge’s interference in ongoing proceedings before the JMFC was held to be impermissible. The Division Bench was therefore right in setting aside the Single Judge’s order.

Reasoning and Practical Guidance

Statutory harmony and purposive construction

The Court proceeds from the principle that subsections of the same provision should be read harmoniously. Section 175(3) reflects the magistrate’s power earlier located in Section 156(3) CrPC but with added safeguards. Section 175(4) overlays this power with additional protections in cases involving public servants.

The Court rejected the notion that sub-section (4) could be used as an escape route to bypass the statutory hierarchy under Section 173(4), including the mandatory approach to the Superintendent of Police.

Affidavit requirement

The insistence on an affidavit under Section 333 BNSS for applications under Section 175(4) is central. The Court recognised the risk of vexatious or conspiratorial complaints and held that the affidavit requirement operates as an essential procedural filter:

“No rational basis is discernible for drawing a distinction … The object underlying such a requirement is common … to weed out false, frivolous, or vexatious complaints.”

Magistrates’ discretion and the meaning of “may”

The Court set out a practical three-point guide:

1. If the Magistrate is prima facie satisfied that the alleged act arose in discharge of official duty, follow Section 175(4).

2. Where doubt exists, err on the side of calling for reports and hearing the accused.

3. Where the act is clearly unconnected with official duty, proceed under Section 175(3).

The discretion implied by “may” does not authorise arbitrary avoidance of the special procedure.

Limits of writ remedy

The Bench strongly disapproved of the Single Judge’s intervention in live magisterial proceedings. A writ court cannot direct a Magistrate to recall or modify interim steps when the magisterial process is ongoing and no final order is under challenge. Grant of relief not prayed for was held to be impermissible.

Practical Implications for Practitioners

• Defence and State counsel may insist on strict compliance with the affidavit requirement and exhaustion of the Section 173(4) route before magisterial intervention in public-servant cases.

• Complainants must ensure procedural compliance, including affidavits and proof of approach to the Superintendent of Police, failing which applications are vulnerable to dismissal.

• Trial magistrates must apply the structured approach articulated by the Court and ensure timely consideration of reports sought under Section 175(4).

Quotations from the Judgment

• “The legislative intention behind insertion of sub-section (4) … is clear: the Parliament intended it as an additional safeguard for public servants.”

• “No rational basis is discernible for drawing a distinction … to weed out false, frivolous, or vexatious complaints.”

• “The judicial magistrate would continue to retain the authority to reject an application … where the allegations are wholly untenable, manifestly absurd, or inherently improbable.”

Conclusion

The decision harmonises the BNSS with established criminal-procedure jurisprudence. It protects public servants from facile prosecutions while ensuring that genuine allegations are not thwarted by procedural manipulation. For criminal practitioners, the message is clear: compliance with BNSS procedures is indispensable, affidavits are mandatory, the Section 173(4) route must be exhausted, and Magistrates must adhere to the structured approach laid down by the Court.

In the court's words

“Sub-section (4) of Section 175 of the BNSS is a provision that was absent in the CrPC… The Parliament intended it as an additional safeguard for public servants… …While society’s interest is served by prosecuting offenders, it is equally vital to ensure that prosecution is not launched to settle scores or wreak vengeance… …Construing sub-section (4) as a standalone provision is susceptible of giving rise to certain difficulties which compels us to reject such a construction.”