The Supreme Court has clarified that the procedural safeguards under Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023, are not a standalone exception but must be read harmoniously with Section 175(3), requiring an affidavit and prior escalation to the Superintendent of Police. This decision reinforces the balance between protecting public servants from frivolous complaints and ensuring genuine allegations of misconduct are not stifled by procedural loopholes.
Background & Facts
The Dispute
The appellant, a woman, alleged that three police officers sexually assaulted her on three separate occasions between January and August 2022, while ostensibly investigating a property dispute involving her. She claimed the officers used their official positions to gain access to her residence and isolate her for the assaults. After her complaints were dismissed by internal police reports, she filed multiple applications under the BNSS seeking FIR registration.
Procedural History
- September 2024: The appellant filed an application under Section 210 read with Section 173(4) BNSS before the Judicial Magistrate First Class, Ponnani, seeking direction for FIR registration.
- 11 September 2024: The Magistrate invoked Section 175(4) BNSS and called for a report from the Deputy Inspector General of Police, Thrissur Range, as the accused were public servants.
- 18 October 2024: A Single Judge of the Kerala High Court set aside the Magistrate’s order, holding that sexual assault cannot be considered an official duty and that Section 175(4) was directory, not mandatory.
- 24 October 2024: The Magistrate complied with the Single Judge’s direction and ordered FIR registration.
- 13 November 2024: The Division Bench of the Kerala High Court reversed the Single Judge’s order, holding that the writ petition was premature as the Magistrate’s proceedings were pending and no challenge had been filed against the Magistrate’s order.
Relief Sought
The appellant sought: (1) a declaration that Section 175(4) does not apply to sexual offences committed by public servants outside their official duties; (2) directions for immediate FIR registration; and (3) a fair and impartial investigation.
The Legal Issue
The central question was whether Section 175(4) of the BNSS operates as a standalone provision permitting oral complaints against public servants without an affidavit, or whether it must be read as a procedural extension of Section 175(3), requiring compliance with its mandatory safeguards including an affidavit and prior recourse to the Superintendent of Police.
Arguments Presented
For the Appellant
Mr. R Basant argued that: (1) sexual offences like rape cannot be considered acts performed in discharge of official duties; (2) Section 218(1) of the BNSS explicitly excludes the requirement of prior sanction for sexual offences, indicating legislative intent to deny special protection; (3) Lalita Kumari v. Govt. of U.P. mandates mandatory FIR registration upon disclosure of a cognizable offence; and (4) Priyanka Srivastava v. State of U.P. requires affidavits to prevent frivolous complaints, a safeguard that must apply equally under Section 175(4).
For the Respondents
Mr. Ranjit Kumar and Mr. Siddharth Dave contended that: (1) Section 175(4) is a distinct, protective provision introduced to prevent vexatious litigation against public servants; (2) the term "complaint" under Section 2(1)(h) BNSS includes oral complaints, and Parliament deliberately omitted the affidavit requirement to allow broader access; (3) the two-tier protection under Section 175(4) and Section 218(1) reflects a deliberate legislative design to shield public servants at the investigation stage, even where sanction is not required at the cognizance stage; and (4) the legislative history of the BNSS, including the 247th Parliamentary Report, confirms the intent to introduce additional safeguards.
The Court's Analysis
The Court undertook a detailed textual, contextual, and purposive analysis of Section 175 BNSS. It rejected the argument that Section 175(4) is a standalone provision, noting that such an interpretation would permit complainants to bypass the mandatory precondition under Section 173(4) - requiring recourse to the Superintendent of Police - thereby undermining the statutory hierarchy.
"Permitting a complainant to circumvent the statutory hierarchy in cases involving public servants by such an interpretation is likely to produce an outcome which, in our considered view, would run contrary to the legislative intent."
The Court also dismissed the contention that the absence of the word "affidavit" in Section 175(4) renders it inapplicable. It held that the term "complaint" in Section 175(4) must be read in harmony with Section 175(3), which explicitly requires an affidavit. To hold otherwise would create an illogical disparity: a non-public servant must file an affidavit to trigger investigation, while a public servant could be investigated on an oral complaint alone - a result inconsistent with the principle of equal protection under the law.
The Court emphasized that Section 175(4) is not a proviso to Section 175(3), as it does not begin with "Provided that" and can function independently. Instead, it is a qualifying procedural layer that supplements Section 175(3). The Court held that all mandatory requirements under Section 175(3) - including the affidavit, prior recourse to the Superintendent of Police, and opportunity for inquiry - must be satisfied before invoking Section 175(4).
The Court further noted that the requirement of an affidavit is not merely procedural but substantive, serving to deter mala fide complaints. It cited the Chief Justice of India’s circular requiring affidavits for complaints against judicial officers as a parallel rationale applicable to public servants.
Regarding jurisdiction, the Court held that the Single Judge of the High Court exceeded his authority by interpreting Section 175(4) and directing the Magistrate to recall his order, when no challenge had been filed against the Magistrate’s judicial order. The Court reaffirmed that writ jurisdiction under Article 226 cannot be used to interfere with pending magisterial proceedings or grant unprayed-for relief.
The Verdict
The appellant’s appeal was dismissed. The Supreme Court upheld the Division Bench’s order, holding that Section 175(4) BNSS is not a standalone provision and must be read in conjunction with Section 175(3). The Magistrate’s order calling for a report under Section 175(4) was valid, and the appellant must pursue her remedies before the Magistrate, ensuring her application is supported by an affidavit as required under Section 333 BNSS.
What This Means For Similar Cases
Affidavit Is Mandatory Even Under Section 175(4)
- Practitioners must ensure all applications under Section 175(3) or Section 175(4) are supported by a sworn affidavit complying with Section 333 BNSS.
- Oral complaints alone are insufficient to trigger investigation against public servants, regardless of the nature of the alleged offence.
- Courts must reject applications lacking affidavits at the threshold, even if the allegations involve serious crimes like rape.
Sequential Remedy Cannot Be Bypassed
- Before approaching a Magistrate under Section 175(3) or Section 175(4), the complainant must first approach the Superintendent of Police under Section 173(4).
- Failure to exhaust this remedy renders the Magistrate’s jurisdiction defective.
- Writ petitions under Article 226 cannot be used to circumvent this statutory hierarchy.
Judicial Magistrates Must Assess Nexus to Official Duty
- Magistrates must conduct a preliminary assessment of whether the alleged offence has a reasonable nexus to the public servant’s official duties.
- If no nexus exists, Section 175(4) does not apply and the general procedure under Section 175(3) governs.
- The term "may" in Section 175(4) confers discretion, but not license to ignore mandatory procedural safeguards.
