Has Supreme Court's Interpretation Of S 175(4) BNSS Made Complaints Against Public Servants Harder? A Critical Analysis

The Supreme Court recently held in XXX versus State of Kerala and others that Section 175(4) BNSS is not a standalone provision and must be read with Section 175(3), requiring a complainant to first approach the police and the Superintendent of Police through a written, affidavit-supported complaint before moving the Magistrate against a public servant. While aimed at procedural discipline, the ruling raises concerns that it may unduly shield public servants and make the complaint process burdensome for genuine complainants despite existing safeguards against false cases.

Before critically analysing the judgment, it is essential to understand Sections 173, 175(3), and 175(4) of the BNSS.

Under Section 173 of BNSS, a person alleging a cognisable offence must first approach the local police and seek registration of an FIR. If the police fail to act, the complainant must then approach the Superintendent of Police (SP) with a written complaint supported by an affidavit affirming that the allegations are true and not frivolous. This affidavit requirement is meant to deter false or motivated complaints and ensure accountability. Only after both these remedies are exhausted can the complainant approach a Magistrate to seek a direction for investigation under Section 175(3).

Section 175(3) of the BNSS (earlier Section 156 Cr.P.C.) empowers the Magistrate to direct a police investigation, subject to the condition that the complainant has first exhausted the remedies under Section 173 by approaching the police and thereafter the Superintendent of Police through a written complaint supported by an affidavit. This is a general provision enabling the Magistrate to order an investigation against an accused person.

Whereas, unlike erstwhile Cr.P.C, Section 175(4) of the BNSS is a new provision, which specifically deals with complaints against public servants for acts committed in the discharge of official duties. It authorises the Magistrate to order an investigation upon a complaint received under Section 210 of BNSS only after calling for a report from the superior officer and after giving the public servant an opportunity of being heard. Thus, it incorporates a two-fold safeguard: firstly, calling for a report from the public servant's superior authority about the facts and circumstances of the incident, and secondly, the right to a hearing for the public servant to present their version of the situation that led to the alleged incident.

Critical Reflection

The judgment says Section 175 BNSS sub-clause (4) is not a standalone provision and must be read harmoniously with preceding sub-clause (3). This means no direct complaint can be filed against a public servant before the magistrate under Section 175(4) to seek an investigation, unless the threshold requirement for a sworn affidavit supporting the complaint (as established in Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287) under Section 175(3) is fulfilled.

In simple terms, the Court held that the procedure under Section 175(3) applies even when a complaint is made against a public servant under Section 175(4) of the BNSS. In effect, a complainant must now state on affidavit that they first approached the police and then the SP, and that both remedies failed, before a Magistrate can be moved. Although Section 175(4) does not expressly contain this requirement, the Court has read it into the provision, making prior recourse to the police hierarchy a mandatory precondition even in cases alleging misconduct by public servants.

From the standpoint of statutory interpretation, the Court's approach arguably stretches beyond the text of Section 175(4). The provision does not expressly incorporate the affidavit requirement or the prior-approach condition found in Section 175(3). By judicially importing these safeguards, the judgment impinges the doctrine of casus omissus, which means that it is not the role of the judiciary to fill gaps or correct perceived omissions in a statute/regulation. If the legislature (or rule-making authority) has left something out, it is for them to amend it, not for the courts to supply the missing words through interpretation. [Refer Padmausundara Rao (Dead) &Ors vs State Of T.N. & Ors, 2002 (3) SCC 533]

When Section 175(4) was clear, unambiguous and unavoidable saying that the provision exclusively deals with the complaint against the public servant, would it be reasonable to give a different interpretation to the provision to make it compliant with Section 175(3)? Even if the Court presumed or presupposes that there was an omission in Section 175(4) about whether it should comply with Section 175(3) conditions or not, it was not open for the Court to supply this omission, an area exclusively reserved for the legislative consideration as held in Padmausundara Rao (supra).

It is not the case here that the Parliament had deliberately omitted that Section 175(4) cannot be a standalone provision, rather the provision makes a detailed outline for a magistrate, independent of Section 175(3), of approaching in complaints against the public servant in discharge of official duties. It is a well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. Moreover, the language employed in a statute is the determinative factor of legislative intent, and the first and primary rule of construction is that the intention of the Legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said. If Parliament intended Section 175(4) to be subject to the same preconditions, it could have stated so explicitly, as it did in Section 175(3). [See Union of India vs. V.R. Nanukuttan Nair]

Requiring a complainant to first exhaust remedies under Section 173 BNSS before proceeding against a public servant, especially a police official, may render the process illusory, as it forces the complainant to approach the very authorities against whom allegations are made. It is precisely to address this gap that Parliament introduced Section 175(4), enabling a complainant to directly approach the Magistrate against an erring public servant, a mechanism absent under the CrPC. Moreover, even when acting under Section 175(4), a Magistrate is statutorily bound to undertake a two-stage verification before directing an investigation. Against this backdrop, importing the procedural threshold of Section 175(3) into Section 175(4) unduly tilts the balance in favour of public servants by creating an additional layer of protection not envisaged by the statute.

The Court's reasoning rests heavily on importing the safeguards laid down in Priyanka Srivastava (supra) into the framework of the BNSS. While that precedent sought to prevent misuse of criminal process by influential litigants under Section 156(3) of the CrPC, its wholesale application to Section 175(4) of the BNSS overlooks the different legislative context. Section 175(4) was crafted as a targeted mechanism to deal with allegations against public servants acting in the discharge of official duties. By treating it merely as an extension of Section 175(3), the judgment offends an independent statutory purpose and recasts it as a subordinate procedural step rather than a distinct judicial safeguard.

In essence, while the judgment fortifies procedural discipline and protects public servants from abuse of criminal process, it arguably ventures close to judicially filling a legislative gap, contrary to the doctrine of casus omissus, and risks constraining the remedial role of Magistrates in cases involving alleged official misconduct.

Views Expressed Are Personal.

(The author is a Supreme Court Correspondent at Live Law. He can be reached at yash@livelaw.in.)