Kiran Raj

The Supreme Court of India Division Bench of Justices Dipankar Datta and Manmohan on Tuesday (January 27) prescribed how Magistrates should deal with complaints seeking an investigation against a public servant under Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita when the alleged offence is said to have arisen in the course of official duties. Unlike Section 156(3) of the Cr.P.C., the BNSS provision allows the Magistrate to order investigation after calling for a report from the superior officer and considering the public servant’s version, with “may” remaining discretionary. In the case, a woman alleged sexual assault by police officers and sought registration of an FIR. The Court upheld the High Court’s Division Bench order and left the complainant to pursue remedies before the Magistrate, clarifying that the application must be supported by an affidavit.

The appeal arose from a challenge to a judgment of the Kerala High Court Division Bench which had set aside directions issued by a Single Judge for registration of an FIR against police officers accused of sexual offences. The appellant alleged that three police officers sexually assaulted her on different occasions while dealing with a property-related complaint. Following earlier departmental enquiries that concluded the allegations were untrue, the appellant filed a complaint before the Judicial Magistrate First Class seeking registration of an FIR under the Bharatiya Nagarik Suraksha Sanhita, 2023.

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The Magistrate, invoking Section 175(4) BNSS, called for a report from the superior police officer. While this application was pending, the appellant approached the High Court under Article 226 seeking directions for FIR registration and a declaration that Section 175(4) BNSS was inapplicable as the alleged acts were not in discharge of official duty.

The Single Judge allowed the writ petition and directed registration of the FIR, holding Section 175(4) to be directory. On appeal, the Division Bench reversed this decision, holding that writ jurisdiction had been prematurely invoked. The present appeal questioned the correctness of that reversal and required interpretation of Sections 173 and 175 of the BNSS.

The Supreme Court examined the scope and construction of Section 175 BNSS in detail. It observed that “Section 175, BNSS is somewhat confusing and requires ironing out the creases in the legislation without altering the material of which it is woven. 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, and not 'shall'."

On receiving a complaint under Section 175(4) of the BNSS alleging an offence by a public servant linked to the discharge of official duties, the Court said the Magistrate has the discretion to proceed in either of these ways.

"Reading the complaint, if the judicial magistrate is prima facie satisfied that commission of the alleged act giving rise to an offence arose in course of discharge of official duties by the public servant, such magistrate may not have any option other than following the procedure prescribed under sub-section (4) of Section 175 of calling for reports from the superior officer and the accused public servant.”

“Or, on a consideration of the complaint, where the judicial magistrate entertains a prima facie doubt depending upon the circumstances as to whether the offence alleged to have been committed by the public servant arose in course of discharge of his official duties, such magistrate might err on the side of caution and proceed to follow the procedure prescribed in sub-section (4) of Section 175.”

Or, where the judicial magistrate is satisfied that the alleged act of offence was not committed in the discharge of official duties and/or it bears no reasonable nexus thereto, and also that the rigours of sub-section (4) of Section 175 are not attracted, the complaint may be dealt with in accordance with the general procedure prescribed under sub-section (3) of Section 175.”

The Court observed: “A situation may arise where, in an appropriate case, the judicial magistrate has called for a report from the concerned superior officer under clause (a) of sub-section (4) of Section 175, but such officer fails to comply with the direction or does not submit the report within a reasonable period of time. What is the course open to the magistrate in such a situation? In the unlikely event of such a situation, we hold, 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 under clause (b) of sub-section (4) of Section 175, if on record. What would constitute 'reasonable time' cannot be determined in rigid or inflexible terms and must necessarily depend upon the facts and circumstances of each case before the judicial magistrate who has to take the call.”

The Court clarified that “the power to order investigation is conferred upon a judicial magistrate by sub-section (3), while sub-section (4) prescribes a special procedural safeguard where the proposed direction could concern a public servant.” It further stated that “sub-section (4) is neither an independent provision nor a proviso to sub-section (3).”

On the requirement of an affidavit, the Court observed that “it is illogical that a magistrate would be precluded from ordering investigation against a private individual without an affidavit but may do so against a public servant without such safeguard.” It therefore held that “a complaint against a public servant… must also be supported by an affidavit.”

Regarding the High Court’s exercise of writ jurisdiction, the Court recorded that “there was no occasion for the Single Judge to interpret sub-section (4) and interfere with the proceedings that had been set in motion pursuant to the order of the JMFC.” It further observed that “the Single Judge directed the Magistrate to recall his own order – which constitutes exercise of a power unknown to criminal procedure.”

The Court refrained from determining whether the alleged acts were in discharge of official duty, stating that “we refrain from so answering lest any observation prejudicially affects any party to the proceedings before the JMFC.”

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The Supreme Court directed that “the impugned order of the Division Bench is upheld. 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 Section 333 thereof. It is left open to the appellant to participate in the proceedings before the JMFC and raise such points as are available to her in law.”

“The appeal is disposed of on the aforesaid terms and parties shall bear their own costs.”

Advocates Representing the Parties

For the Appellant: Mr. Raghenth Basant, Sr. Adv. Mr. Vikas Jain, AOR Ms. Hima Bhardwaj, Adv. Mr. Akash Rajeev, Adv. Mr. Muhammad Firdouz, Adv. Ms. Shrawani, Adv. Mr. Aviral Saxena, Adv. Mr. Hardik Jayal, Adv. Mr. Nilesh Singh, Adv. Mr. Shashank S Pandey, Adv.

For the Respondents: Mr. Siddhartha Dave, Sr. Adv. Mr. A. Karthik, AOR Ms. Smrithi Suresh, Adv. Mr. Ujjwal Sharma, Adv. Mr. Sugam Agrawal, Adv. Mr. Nayan Dham, Adv. Mr. Ranjit Kumar, Sr. Adv. Mr. C. K. Sasi, AOR Ms. Meena K Poulose, Adv. Mr. Akash Dikshit, Adv.

Case Title: XXX v. State of Kerala & Ors.
Neutral Citation: 2026 INSC 88
Case Number: Criminal Appeal No. 4629 of 2025
Bench: Justice Dipankar Datta, Justice Manmohan