The Supreme Court has clarified that the procedural safeguards under Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023, are not optional or standalone but must be read in harmony with Section 175(3), requiring an affidavit, a report from a superior officer, and an opportunity of hearing before any investigation against a public servant can be ordered. This decision resolves a critical ambiguity in the new criminal procedure code and reinforces the balance between accountability and protection for public officials.
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 an application under Section 210 read with Section 175(4) BNSS before the Judicial Magistrate First Class, seeking an order for registration of an FIR.
Procedural History
- September 2024: Appellant filed application under Section 175(4) BNSS before the Judicial Magistrate First Class, Ponnani.
- 11 September 2024: The Magistrate called for a report from the Deputy Inspector General of Police, Thrissur Range, as required under Section 175(4).
- 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 act in discharge of official duty and that Section 175(4) is directory, not mandatory.
- 24 October 2024: The Magistrate, following the Single Judge’s direction, ordered registration of an FIR.
- 13 November 2024: The Division Bench of the Kerala High Court set aside the Single Judge’s order, holding that the writ petition was premature since the Magistrate’s proceedings were pending and no order had been challenged.
Relief Sought
The appellant sought a declaration that the alleged acts of the police officers were not in discharge of their official duties and therefore not protected under Section 175(4) BNSS. She also sought directions for immediate registration of an FIR and a fair investigation, invoking Lalita Kumari v. State of U.P. as precedent.
The Legal Issue
The central question was whether Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 operates as a standalone provision permitting investigation against a public servant on the basis of an oral complaint, or whether it must be read in conjunction with Section 175(3), which mandates an affidavit and prior recourse to the Superintendent of Police.
Arguments Presented
For the Appellant
Mr. R Basant, Senior Counsel, argued that Section 175(4) is not applicable to sexual offences because they cannot be considered acts in discharge of official duty. He relied on the third proviso to Section 218(1) BNSS, which excludes the requirement of prior sanction for sexual offences against public servants, to argue that the legislature intended no special protection at any stage. He further cited Priyanka Srivastava v. State of U.P. to assert that every application under Section 175(3) must be supported by an affidavit, and that Section 175(4) cannot override this safeguard. He contended that the use of the word "may" in Section 175(4) indicates discretion, not mandatory immunity, and that Lalita Kumari mandates immediate FIR registration when a cognizable offence is disclosed.
For the Respondent
Mr. Ranjit Kumar and Mr. Siddharth Dave, Senior Counsel for the State and the accused officer respectively, argued that Section 175(4) is a distinct, protective provision designed to prevent frivolous complaints against public servants. They emphasized that the provision was introduced to resolve judicial divergence, as seen in Anil Kumar v. M.K. Aiyappa and Manju Surana v. Sunil Arora. They contended that the term "complaint" under Section 175(4) includes oral complaints and that the requirement of an affidavit in Section 175(3) does not apply to Section 175(4). They further argued that the legislative intent, as reflected in the 247th Parliamentary Standing Committee Report, was to create a two-tier protection: procedural safeguards at the investigation stage and prior sanction at the cognizance stage.
The Court's Analysis
The Court undertook a detailed textual, contextual, and purposive analysis of Section 175(3) and Section 175(4). It rejected the argument that Section 175(4) is a standalone provision, noting that such an interpretation would allow complainants to bypass the mandatory requirement under Section 173(4) BNSS to approach the Superintendent of Police before approaching the Magistrate. This would render the statutory hierarchy meaningless.
"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 Section 175(4) is a proviso to Section 175(3), observing that a proviso must qualify the main provision and typically begins with "Provided that." Section 175(4) does neither. Instead, the Court held that Section 175(4) is a procedural adjunct - a special condition that supplements the general power under Section 175(3).
Crucially, the Court addressed the absence of an affidavit requirement in Section 175(4). It held that the requirement of an affidavit under Section 175(3) must apply equally to Section 175(4), as the legislative intent behind Priyanka Srivastava - to prevent frivolous litigation - applies with equal force to public servants. The Court reasoned:
"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 Court further relied on the Chief Justice of India’s circular requiring affidavits for complaints against judicial officers, noting the identical policy objective: to filter out vexatious complaints. The term "complaint" in Section 175(4) was therefore purposively interpreted to mean a written complaint supported by an affidavit, consistent with the context of the entire statutory scheme.
The Court also held that the Single Judge of the High Court exceeded his jurisdiction by interpreting Section 175(4) and directing the Magistrate to recall his order, when no challenge to the Magistrate’s order had been filed. The writ jurisdiction under Article 226 cannot be used to interfere with pending magisterial proceedings.
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 harmoniously with Section 175(3). Any application against a public servant alleging an offence in discharge of official duty must be supported by an affidavit, require a report from a superior officer, and afford the accused an opportunity to be heard. The Magistrate’s order calling for a report was reinstated.
What This Means For Similar Cases
Affidavit Is Mandatory Even Under Section 175(4)
- Practitioners must now ensure that every application under Section 175(4) BNSS is accompanied by a sworn affidavit complying with Section 333 BNSS.
- Magistrates must reject applications lacking affidavits, regardless of whether the accused is a public servant.
- Oral complaints alone are insufficient to trigger the procedure under Section 175(4).
Sequential Remedy Cannot Be Bypassed
- Before approaching a Magistrate under Section 175(3) or (4), the complainant must first approach the Superintendent of Police under Section 173(4) BNSS.
- Writ petitions under Article 226 cannot be used to circumvent this statutory hierarchy.
- Courts must dismiss writ petitions filed while magisterial proceedings are pending.
Discharge of Official Duty Must Be Assessed by Magistrate, Not Writ Court
- Whether an act was performed in discharge of official duty is a factual question to be determined by the Magistrate under Section 175(4), not by a writ court.
- Writ courts must not engage in fact-finding or issue declarations on this issue without a challenge to the Magistrate’s order.
- Practitioners must raise the issue of official duty before the Magistrate, not in a writ petition.
