The Supreme Court has clarified the scope and operation of Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), holding that the provision is neither a standalone power nor a proviso to Section 175(3), but must be read harmoniously with Section 175(3).
The Division Bench of Justice Dipankar Datta and Justice Manmohan set aside the Kerala High Court Division Bench’s order which had reversed directions issued by a Single Judge for registration of an FIR, and undertook a detailed interpretation of the newly introduced BNSS provisions. The Court clarified that a Magistrate cannot order an investigation against a public servant unless all procedural safeguards, including an affidavit-supported application, are complied with.
The case arose from allegations of sexual assault made by the appellant against three police officers. After the police did not register an FIR, the appellant approached the Judicial Magistrate under Section 210 of BNSS, read with Sections 173(4) and 175 BNSS. The Magistrate called for a report from the superior police officer under Section 175(4) of BNSS. While the proceedings were pending, the appellant moved the Kerala High Court, where a Single Judge held that Section 175(4) was directory and inapplicable to sexual offences, and directed registration of an FIR. This order was later set aside by a Division Bench, leading to the present appeal.
Upholding the Division Bench order, the Supreme Court held that the Single Judge exceeded his jurisdiction by interfering while the Magistrate’s proceedings under Section 175(4), BNSS were still pending and without any challenge to the Magistrate’s order, thereby pre-empting the statutory process. The Court also held that, at the threshold stage, the alleged acts could not be conclusively held to be outside the discharge of official duties, and therefore the safeguards under Section 175(4), BNSS were rightly attracted.
The Court held that Section 175(4) of the BNSS cannot operate as a standalone provision. Reading it independently would allow complainants to bypass the statutory hierarchy under Section 173(4) and approach the Magistrate directly, defeating the legislative scheme. The Court noted that treating Section 175(4) as independent would also dilute the safeguard of a sworn affidavit mandated under Section 175(3), contrary to settled law aimed at preventing frivolous prosecutions. The placement of Section 175(4) immediately after Section 175(3) further indicated that it was intended to function as an extension of the general power to order investigation, not as a separate source of power.
The Court rejected the contention that Section 175(4) should be read as a proviso to Section 175(3). It held that Section 175(4) does not carve out an exception to the general rule but instead introduces an additional procedural safeguard for cases involving public servants. The provision is structurally framed as a separate sub-section, not in the language or form of a proviso, and is capable of independent application even if Section 175(3) were absent. Accordingly, the Court concluded that Section 175(4) is neither a proviso nor an exception, but a complementary procedural restraint on the Magistrate’s power to direct investigation.
Rejecting the argument that Section 175(4) permits oral complaints or allows complainants to bypass safeguards laid down in Priyanka Srivastava v. State of U.P. (2015) 6 SCC 287, the Court held that such an interpretation would defeat the purpose of the law and allow misuse of the process. The term “complaint” in Section 175(4), the Court clarified, must therefore be understood as a written complaint accompanied by an affidavit.
Accordingly, the Supreme Court upheld the judgment of the Division Bench of the Kerala High Court, restored the proceedings before the Magistrate.
Guide for Judicial Magistrates on When to Invoke Section 175(4)
The Supreme Court clarified that Section 175(4) must be invoked only when the complaint alleges that a public servant committed an offence in the course of discharge of official duties. In such cases, before directing investigation, the Magistrate must ensure compliance with both Section 175(3) and Section 175(4). This includes prior recourse to the Superintendent of Police, a written complaint supported by a sworn affidavit, calling for a report from the accused public servant’s superior officer, and considering the public servant’s explanation.
The Court emphasised that Section 175(4) is a threshold safeguard, meant to balance accountability of public servants with protection against vexatious or retaliatory criminal proceedings.
Appearance:
For Petitioner(s): Senior Advocate Raghenth Basant, with AOR Vikas Jain, Advocate Hima Bhardwaj, Akash Rajeev, Muhammad Firdouz, Shrawani, Aviral Saxena, Hardik Jayal, Nilesh Singh, Shashank S Pandey.
For Respondent(s): Senior Advocate Siddhartha Dave, C. K. Sasi, with AOR A. Karthik, Meena K Poulose, Advocate Smrithi Suresh, Ujjwal Sharma, Sugam Agrawal, Nayan Dham, Ranjit Kumar, Akash Dikshit.
