Shivaji Rathore, 28-01-2026
The Supreme Court laid down an authoritative interpretation of Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), prescribing the procedure to be followed by Magistrates while considering complaints seeking investigation against public servants for acts alleged to have arisen “in the course of discharge of official duties.” The judgment assumes significance as Section 175(4) BNSS introduces a procedural safeguard that did not exist under Section 156(3) of the Code of Criminal Procedure, 1973, particularly in cases involving public servants. Statutory Scheme Under Section 175 BNSS
Unlike Section 156(3) Cr.P.C., which permits a Magistrate to direct registration of an FIR without seeking any preliminary report, Section 175(4) BNSS contemplates a distinct mechanism when allegations are made against a public servant in relation to official acts. Under this provision, before directing investigation, the Magistrate may:- Call for a report from the superior officer of the accused public servant; and Afford an opportunity of hearing to the public servant concerned. The Supreme Court categorically held that the use of the word “may” in Section 175(4) is deliberate and cannot be read as “shall.”
“Significantly, sub-section (4) of Section 175 uses the modal verb ‘may’ and not ‘shall’. In the context where it finds place and the object that is sought to be achieved, ‘may’ has to be read as ‘may’, bearing an element of discretion.”
Guidelines Issued for Magistrates:-
To remove ambiguity and ensure uniform application, the Court laid down three clear procedural pathways available to a Magistrate upon receiving a complaint under Section 175(4) BNSS:
1. Where Official Duty Nexus Is Prima Facie Established
If, upon reading the complaint, the Magistrate is prima facie satisfied that the alleged offence arose in the course of discharge of official duties, the Magistrate has no option but to follow the procedure under Section 175(4) by:- Calling for a report from the superior officer; and
Considering the version of the accused public servant.
2. Where There Is Prima Facie Doubt:- If the Magistrate entertains doubt as to whether the alleged act arose out of official duties, the Magistrate should err on the side of caution and proceed under Section 175(4).
3. Where No Nexus With Official Duty Exists
Where the Magistrate is satisfied that: – The alleged act was not committed in discharge of official duties, or There is no reasonable nexus between the act and official functions, the complaint may be dealt with under the general procedure prescribed under Section 175(3) BNSS, without invoking Section 175(4).
Background of the Case:- The case arose from allegations made by a woman who claimed that she was sexually assaulted on three occasions by police officers while pursuing a complaint relating to a property dispute. After the police filed a report terming the allegations as “untrue,” the complainant approached the Judicial Magistrate First Class (JMFC) under Section 210 BNSS read with Section 175, seeking directions for registration of an FIR. The Magistrate, invoking Section 175(4), called for a report from the superior officer of the accused police personnel.
While these proceedings were pending, the complainant moved the Kerala High Court under Article 226 of the Constitution. A Single Judge allowed the petition, holding that Section 175(4) was not mandatory in serious offences such as rape and directed registration of an FIR. However, the Division Bench reversed this decision, holding that writ interference was unwarranted when statutory proceedings before the Magistrate were already underway:- leading to the appeal before the Supreme Court.
Supreme Court’s Ruling
A Bench comprising Justice Dipankar Datta and Justice Manmohan, affirming the Division Bench decision, held that the Single Judge erred in interfering with the Magistrate’s decision to follow the statutory procedure under Section 175(4) BNSS.
Justice Datta, authoring the judgment, observed that Section 175(4) introduces a two-fold safeguard for public servants: At the investigation stage: – the Magistrate must call for a superior officer’s report and grant a hearing to the accused public servant.
At the cognizance stage: – sanction under Section 218(1) BNSS would ordinarily be required, subject to statutory exceptions such as sexual offences.
Power to Reject Frivolous Complaints:- The Court clarified that Magistrates retain full authority to reject applications under Section 175(3) BNSS against public servants where allegations are:
Wholly untenable, Manifestly absurd, or So inherently improbable that no reasonable person could conclude that an offence is disclosed. However, such rejection must be reasoned and not arbitrary, resting on sound judicial justification. Non-Submission of Superior Officer’s Report Addressing a practical concern, the Court held that a Magistrate cannot be compelled to wait indefinitely if a superior officer fails to submit a report under Section 175(4):
“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.”
What constitutes “reasonable time” was left to be determined on a case-to-case basis.
Mandatory Affidavit Requirement:- One of the most significant rulings is that complaints under Section 175(4) BNSS must be supported by an affidavit, despite the provision referring only to a “complaint.” The Court harmonised Section 175(4) with Section 175(3), holding that exempting complaints against public servants from the affidavit requirement would defeat the very object of preventing abuse of the criminal justice process.
The ruling follows the principle laid down in Priyanka Srivastava v. State of U.P., now statutorily reinforced under Section 333 BNSS.
Conclusion
The Supreme Court consciously declined to determine whether the alleged sexual assaults were committed in discharge of official duties, holding that such determination involves factual adjudication and lies within the exclusive domain of the Magistrate.
Accordingly, the matter was remitted to the JMFC, with directions to:
First verify whether the application is supported by a proper affidavit under Section 333 BNSS; and
Thereafter proceed in accordance with Sections 175(3) and 175(4) BNSS, as clarified in the judgment.
Cause Title
XXX v. State of Kerala & Ors.
Criminal Appeal no. 4629 of 2025
