Supreme Court Clarifies: Complaints Against Public Servants Under BNSS Section 175(4) Must Be in Writing with Affidavit – Not a Standalone Provision

The Hon'ble Supreme Court of India in XXX vs. State of Kerala & Ors. [Criminal Appeal No. 4629 of 2025] [2026 INSC 88] dated January 27, 2026 held that sub-section (4) of Section 175 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is neither an independent/standalone provision nor a proviso to sub-section (3) thereof, but must be read harmoniously with sub-section (3), with the former understood as a procedural restraint upon the power conferred under both sub-sections for ordering an investigation against a public servant. The Court held that the expression "complaint" in sub-section (4) of Section 175 does not encompass oral complaints and must be supported by an affidavit as required under sub-section (3). The Court further observed that the word "may" in sub-section (4) bears an element of discretion and has to be read as "may" and not "shall", thereby allowing the judicial magistrate to determine whether the alleged offence by a public servant arose in course of discharge of official duties before invoking the procedure under sub-section (4).

FACTS OF THE CASE

While pursuing a complaint relating to a property dispute, the Appellant was allegedly sexually assaulted by three police officers on separate occasions. The first incident occurred in January 2022, when the fifth Respondent visited her residence under the pretext of discussing the matter relating to the property dispute privately and allegedly proceeded to rape her. The second incident followed in quick succession, also in January 2022, when a senior officer of the rank of Deputy Superintendent of Police, to whom she had complained about the first incident, allegedly behaved inappropriately with her in her house. The third incident took place in August 2022, when another senior officer of the rank of Superintendent of Police, to whom she had complained about the previous two incidents, under the guise of offering help, allegedly called her to an isolated location and raped her.

The second incident led the Appellant to lodge a complaint with the office of the Superintendent of Police in August 2022. This complaint was forwarded to the office of the Deputy Superintendent of Police which on October 11, 2022 submitted a report stating that the allegations in the complaint filed by the Appellant were untrue. After change of incumbency in the office of the Superintendent of Police of the district in September 2024, the Appellant submitted a written complaint before the Station House Officer, Ponnani PS, on September 06, 2024; a complaint under sub-section (4) of Section 173, BNSS to the District Police Chief on September 08, 2024; and on September 09, 2024, she filed an application under Section 210 of the BNSS read with Section 173(4) before the Judicial Magistrate First Class, Ponnani (JMFC) seeking a direction for registration of a First Information Report against those police officials whom she perceived as offenders.

Having regard to sub-section (4) of Section 175, BNSS, the JMFC vide order dated September 11, 2024 called for a report from the Deputy Inspector General of Police, Thrissur Range. Two days later, while the Appellant's application was still pending before the JMFC, the Appellant invoked the writ jurisdiction of the High Court alleging unfair and unlawful investigation by the police. She sought directions for registration of an FIR and compliance with the directions made by the Supreme Court in Lalita Kumari v. Govt. of U.P. [(2014) 2 SCC 1]. Lastly, she implored the writ court to declare that the acts of the police officials, in sexually assaulting her, were not in the discharge of their official duties and, thus, sub-section (4) of Section 175, BNSS was not required to be followed.

A Single Judge of the High Court allowed the writ petition vide order dated October 18, 2024, holding that compliance with Section 175(4)(a), BNSS prior to registration of an FIR was not mandatory, as the alleged offence of rape could not be regarded as one committed by a public servant in the "discharge of official duties". The Single Judge further observed that the use of the word "may" in sub-section (4) of Section 175 indicates that the provision is directory, not mandatory. Accordingly, the JMFC was directed to dispose of the Appellant's application as per the law declared by the Single Judge, within ten days of receiving the order. In compliance with this direction, the Magistrate ordered registration of an FIR vide order dated October 24, 2024.

Aggrieved by the order of the Single Judge, the fifth Respondent preferred a writ appeal which was allowed by the Division Bench vide judgment and order dated November 13, 2024. The Division Bench set aside the order passed by the Single Judge and also the order of the JMFC dated October 24, 2024 directing registration of an FIR against the alleged offenders on the grounds that interference by the Single Judge with the order of the JMFC dated September 11, 2024 was unwarranted when the complaint before the JMFC was still pending; the Single Judge should not have issued directions to the JMFC when no order of the JMFC was under challenge; and owing to pendency of the application under Section 175(4), BNSS before the JMFC, the remedy under Article 226 could not have been invoked without exhausting the remedy under the BNSS.

Aggrieved by the same, the Appellant approached the Hon'ble Supreme Court challenging the impugned order of the Division Bench. The learned senior counsel for the Appellant submitted that the protection to a public servant under sub-section (4) of Section 175, BNSS is only available if the offence alleged "is arising in course of the discharge of his official duties", otherwise not. Since acts of sexual assault and rape, by no stretch of imagination are in the discharge of official duties, the protection cannot be afforded to the alleged offenders. It was further argued that sub-section (4) of Section 175, BNSS is not a stand-alone provision and must be read in continuation of / as a proviso to sub-section (3) thereof, and the law laid down by the Supreme Court in Lalita Kumari (supra) mandates registration of FIR when a complaint discloses a cognizable offence.

Per contra, the Respondents submitted that Sections 173 and 175 of the BNSS are not standalone provisions but must be read together, and sub-section (4) of Section 175 is a new addition providing an additional safeguard to a public servant against whom an accusation of committing a cognizable offence arising in the course of discharge of official duty is made. It was further submitted that sub-section (4) of Section 175 is an independent provision covering a special case, and the introduction of this provision was a well-considered legislative response to the divergence of judicial opinion on the issue as seen in Anil Kumar v. M.K. Aiyappa [(2013) 10 SCC 705] and Manju Surana v. Sunil Arora [(2018) 5 SCC 557].

ISSUE

I. Whether sub-section (4) of Section 175, BNSS is a stand-alone provision or is it to be read in continuation of / as a proviso to sub-section (3) thereof?

II. What procedure should a judicial magistrate follow upon receiving a complaint against an accused, who happens to be a public servant, for his acts "arising in course of the discharge of his official duties"?

III. Whether the Single Judge exceeded his jurisdiction by interpreting sub-section (4) of Section 175, BNSS while issuing consequential directions for the JMFC to pass an appropriate order on the Appellant's application without any prayer in this behalf and particularly in the absence of any challenge to the order of the JMFC?

HELD BY THE COURT

The Hon'ble Supreme Court of India in XXX vs. State of Kerala & Ors. [2026 INSC 88] held that:

1. On the interpretation of Section 175(4) BNSS: The Court held that sub-section (4) of Section 175, BNSS is neither an independent/standalone provision nor a proviso to sub-section (3) thereof. The Court observed that construing sub-section (4) as a standalone provision is susceptible of giving rise to certain difficulties. If sub-section (4) of Section 175 were to be read in isolation, it would be open to a complainant to directly approach the judicial magistrate while skipping to avail of the remedy provided by sub-section (4) of Section 173 before the Superintendent of Police. This would give rise to anomalous results because sub-section (3) of Section 175 expressly refers to "an application supported by an affidavit made under sub-section (4) of Section 173" which mandates that the remedy before the concerned Superintendent of Police be pursued, whereas sub-section (4) contains no such reference. The Court found no discernible reason for the Parliament to prescribe the procedural safeguard of affidavit in sub-section (3) while omitting it in sub-section (4), thereby undermining the safeguard which Priyanka Srivastava v. State of U.P. [(2015) 6 SCC 287] propounded. The placement of sub-section (4) immediately after sub-section (3) and not as an independent section also persuaded the Court to not read sub-section (4) as a provision that is independent or stands alone.

   
   

2. On whether sub-section (4) is a proviso to sub-section (3): The Court held that sub-section (4) of Section 175 cannot be considered a proviso. The Court observed that generally, a proviso is drafted in language such as "Provided that", and plainly, sub-section (4) does not start with similar words. Further, the normal function of a proviso is to except something out of the enactment or to qualify something enacted therein, whereas sub-section (4) creates an additional important safeguard for public servants not present either in the erstwhile Cr.PC or in sub-section (3) of Section 175. The placement of the provision as a sub-section rather than a proviso is also strongly indicative of the intent of the legislature.

   
   

3. On the construction of Section 175(4): The Court held that sub-sections (3) and (4) must be read harmoniously, with the latter understood as a procedural restraint upon the power conferred under both the sub-sections for ordering an investigation, and not as a substantive substitute for the former. The expression "complaint" in sub-section (4) of Section 175 does not encompass oral complaints. Having regard to the text of the provision and the context in which it is set, the term must derive its meaning in sync with allegations of cognisable offence levelled in an application of the nature referred to in sub-section (3), i.e., an application supported by affidavit. The Court held that the opening words in sub-section (4) have to be purposively read as "Any Magistrate empowered under Section 210, may, upon receiving a complaint in writing against a public servant of commission of offence arising in course of the discharge of his official duties, supported by an affidavit, order investigation, subject to...".

   
   

4. On the guide for judicial magistrates: The Court laid down that upon receiving a complaint under sub-section (4) of Section 175, BNSS alleging commission of an offence by a public servant arising in course of the discharge of his official duties, the magistrate may do either of the following: (i) 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, such magistrate may follow the procedure prescribed under sub-section (4) of calling for reports from the superior officer and the accused public servant; (ii) where the judicial magistrate entertains a prima facie doubt as to whether the offence arose in course of discharge of official duties, such magistrate might err on the side of caution and proceed to follow the procedure prescribed in sub-section (4); or (iii) where the judicial magistrate is satisfied that the alleged act of offence was not committed in the discharge of official duties and bears no reasonable nexus thereto, the complaint may be dealt with in accordance with the general procedure prescribed under sub-section (3).

   
   

5. On whether the Single Judge exceeded jurisdiction: The Court agreed with the Division Bench that the Single Judge could not have granted relief that the Appellant did not pray. The Court held that having prayed for directions to register an FIR and to secure compliance with the directions in Lalita Kumari at a stage when the JMFC had called for a report in exercise of power conferred by sub-section (4) of Section 175, there was no occasion for the Single Judge to interpret sub-section (4) and interfere with the proceedings. A judicial order in criminal matters cannot be challenged in a writ petition under Article 226 of the Constitution, as held in Radhe Shyam v. Chhabi Nath [(2015) 5 SCC 423] and Pradnya Pranjal Kulkarni v. State of Maharashtra [2025 SCC OnLine SC 1948]. Accordingly, the appeal was disposed of upholding the impugned order of the Division Bench, and it was left open to the Appellant to participate in the proceedings before the JMFC and raise such points as are available to her in law.

RELEVANT SECTIONS

• "Section 175 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)" – Police officer's power to investigate cognisable case

• "Section 175(3) of the BNSS" – Power of Magistrate empowered under Section 210 to order investigation upon application supported by affidavit

• "Section 175(4) of the BNSS" – Special procedure for ordering investigation against public servant for offence arising in course of discharge of official duties

• "Section 173 of the BNSS" – Information in cognizable cases (corresponding to Section 154, Cr.PC)

• "Section 173(4) of the BNSS" – Remedy before Superintendent of Police upon refusal to record information

• "Section 210 of the BNSS" – Cognizance of offences by Magistrates

• "Section 218 of the BNSS" – Prosecution of public servants (corresponding to Section 197, Cr.PC)

• "Section 223 of the BNSS" – Procedure for taking cognizance of complaint against public servant

• "Section 333 of the BNSS" – Authorities before whom affidavits may be sworn

• "Section 528 of the BNSS" – Revision

• "Section 156 of the Code of Criminal Procedure, 1973" – Police officer's power to investigate cognizable case

• "Section 154 of the Code of Criminal Procedure, 1973" – Information in cognizable cases

• "Article 226 of the Constitution of India" – Power of High Courts to issue writs

• "Article 227 of the Constitution of India" – Power of superintendence over all courts by the High Court

PARI MATERIA / CASES REFERRED

1. Lalita Kumari v. Govt. of U.P.: (2014) 2 SCC 1 – The Constitution Bench held that registration of FIR is mandatory under Section 154 of the Cr.PC if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. Preliminary inquiry may be conducted only in limited exceptional categories to ascertain whether cognizable offence is disclosed or not.

2. Priyanka Srivastava v. State of U.P.: (2015) 6 SCC 287 – The Hon'ble Supreme Court held that every application under sub-section (3) of Section 156, Cr.PC must be supported by a sworn affidavit to make the applicant more responsible and to prevent harassment through frivolous complaints.

3. Om Prakash Ambadkar v. State of Maharashtra: 2025 SCC OnLine SC 238 – The Hon'ble Supreme Court discussed the changes brought to the scheme of Section 156 of the Cr.PC by the enactment of the BNSS and noted that Section 175(4) is a new addition providing an additional safeguard to a public servant.

4. Anil Kumar v. M.K. Aiyappa: (2013) 10 SCC 705 – The Hon'ble Supreme Court held that even at the stage of directing an investigation against a public servant under Section 156(3), Cr.PC, prior sanction under Section 19 of the Prevention of Corruption Act, 1988 is required.

5. Manju Surana v. Sunil Arora: (2018) 5 SCC 557 – The Hon'ble Supreme Court noted a divergence of judicial opinion on the interplay of PC Act offences with CrPC and referred the matter to a larger Bench.

6. Ranjit Singh Bath v. Union Territory Chandigarh: 2025 SCC OnLine SC 1479 – The Hon'ble Supreme Court held that resort to the remedy before the Superintendent of Police is a mandatory precondition to invoke the jurisdiction of the judicial magistrate under Section 175(3).

7. Ram Narain Sons Ltd. v. Asstt. CST: (1955) 2 SCR 483 – The Hon'ble Supreme Court held that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision and carves out an exception to the main provision.

8. State of Rajasthan v. Vinod Kumar: (2012) 6 SCC 770 – The Hon'ble Supreme Court held that the natural presumption in law is that but for the proviso, the enacting part of the section would have included the subject-matter of the proviso.

9. Kedarnath Jute Mfg. Co. Ltd. v. CTO: AIR 1966 SC 12 – The Hon'ble Supreme Court formulated that the normal function of a proviso is to except something out of the enactment or to qualify something enacted therein.

10. S. Sundaram Pillai v. V.R. Pattabiraman: (1985) 1 SCC 591 – The Hon'ble Supreme Court laid down the test to determine whether a provision is a proviso or a separate provision.

11. Radhe Shyam v. Chhabi Nath: (2015) 5 SCC 423 – The three-Judge Bench held that a judicial order in a civil matter cannot be challenged in a writ petition under Article 226 of the Constitution.

12. Pradnya Pranjal Kulkarni v. State of Maharashtra: 2025 SCC OnLine SC 1948 – The Hon'ble Supreme Court extended the principle in Radhe Shyam to judicial orders passed in criminal matters.

13. Krishna Priya Ganguly v. University of Lucknow: (1984) 1 SCC 307 – The Hon'ble Supreme Court held that the writ court will normally grant relief that is prayed.

14. Om Prakash v. Ram Kumar: (1991) 1 SCC 441 – The Hon'ble Supreme Court held that the writ court cannot grant a relief not even prayed by the petitioner.

15. Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi: (2010) 1 SCC 234 – The Hon'ble Supreme Court reiterated that discretion to grant relief under Article 226 cannot ignore norms and principles governing grant of relief.

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