Complaint Under S.175(4) BNSS Against Public Servant Must Comply With Conditions Under S.175(3) : Supreme Court
The Supreme Court held that a Magistrate cannot entertain a complaint against a public servant under Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) unless the complainant first complies with Section 175(3), which requires the Magistrate to be satisfied that the complainant has already approached the Superintendent of Police with a written complaint supported by an...
The Supreme Court held that a Magistrate cannot entertain a complaint against a public servant under Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) unless the complainant first complies with Section 175(3), which requires the Magistrate to be satisfied that the complainant has already approached the Superintendent of Police with a written complaint supported by an affidavit.
A bench of Justices Dipankar Datta and Manmohan considered the issue of whether Section 175(4) operates independently, allowing a Magistrate to act even on an oral complaint, or whether it is a procedural extension of Section 175(3), thereby importing the safeguards recognised in Priyanka Srivastava v. State of U.P.(2015), which mandate a written complaint accompanied by an affidavit.
The Court held that 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.) under Section 175(3) is fulfilled.
Prior to directing any investigation, Section 175(3) of the BNSS requires the Magistrate to act only upon an application supported by an affidavit that the complainant has first approached the Superintendent of Police under Section 173(4). This essentially means that “a person aggrieved by omission/neglect of a police officer having authority to register an FIR under [Section 173(1)], at the first instance, is required to approach the Superintendent of Police under sub-section (4) of Section 173. If recourse thereto does not yield the desired result, the aggrieved person may approach the judicial magistrate under sub-section (3) of Section 175.”
“Resort to the remedy before the Superintendent of Police is a mandatory precondition to invoke the jurisdiction of the judicial magistrate.”, the court added.
The Court observed that if Section 175(4) were treated as a standalone provision, it would permit complainants to bypass the carefully structured statutory procedure, where a complaint against a public servant can be directly filed to magistrate even without filing an affidavit, leading to an anomalous and unintended outcome.
“if sub-section (4) of Section 175 were to be read in isolation or as a standalone provision, it would be open to a complainant to directly approach the judicial magistrate under the said provision 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, in effect, mandates that the remedy before the concerned Superintendent of Police be pursued, whereas sub-section (4) thereof contains no such reference. 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 held.
The Court summarised its conclusions as follows :
- Sub-section (3) and sub-section (4) of Section 175 are not isolated silos but must be read in harmony with sub-section (4) forming an extension of sub-section (3).
- The power to order investigation is conferred upon a judicial magistrate by sub-section (3) of Section 175. Sub-section (4) of Section 175 too confers such power but prescribes a special procedure to be followed in case of a complaint against a public servant alleging commission of offences in the discharge of official duties.
- 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, and in light of our conclusion that sub- section (4) is not a provision which stands alone or is a proviso to sub- section (3), 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) of Section 175, i.e., an application supported by affidavit.
Also From Judgment: S.175(4) BNSS | Superior's Report Must If Offence Was During Public Servant's Duties : Supreme Court Advises Magistrates
Headnote
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) – Section 175(3) and Section 175(4) – Interplay and Procedural Safeguards - The Supreme Court clarified that Section 175(4) is not an independent or standalone provision, nor is it a mere proviso to Section 175(3) - the two sub-sections must be read harmoniously. Section 175(4) acts as a procedural adjunct and an additional protective layer for public servants - Supreme Court held that although Section 175(4) uses the term "complaint" (which under Section 2(1)(h) can include oral allegations), in the context of proceedings against public servants, it must be interpreted as a written complaint supported by an affidavit - It is illogical to require an affidavit for allegations against private individuals under Section 175(3) but exempt it for public servants under Section 175(4). [Relied on Priyanka Srivastava v. State of U.P. 2015 6 SCC 287; Lalita Kumari v. Govt. of U.P 2014 2 SCC 1; Radhe Shyam v. Chhabi Nath 2015 5 SCC 423; Pradnya Pranjal Kulkarni v. State of Maharashtra 2025 SCC OnLine SC 1948; Paras 20-29, 37-39, 45-48]
Two-Tier Protection for Public Servants – Noted that BNSS provides a dual protection mechanism for public officials: i. Threshold Stage: Under Section 175(4), a Magistrate must call for a report from the superior officer and consider the assertions of the accused public servant before ordering an investigation; ii. Cognizance Stage: Under Section 218(1), prior government sanction is required before the Court takes cognizance.
Guide for Judicial Magistrates – Discretionary Power - The use of the word "may" in Section 175(4) signifies discretionary power- i. If the Magistrate is prima facie satisfied the act was in the discharge of official duty, they must follow the Section 175(4) procedure; ii. If they are satisfied the act had no reasonable nexus to official duty, they may proceed under the general procedure of Section 175(3); iii. Magistrates are not required to wait indefinitely for a report from superior officers; if a report is not submitted within a reasonable time, the Magistrate may proceed based on the public servant's version if available - Supreme Court reiterated that a judicial order passed by a Magistrate in criminal matters (such as calling for a report under Section 175(4)) cannot be challenged through a writ petition under Article 226 - The appropriate remedy is a petition under Section 528 of the BNSS or Article 227 of the Constitution. [Paras 46-55]
Cause Title: XXX VERSUS STATE OF KERALA & ORS
Citation : 2026 LiveLaw (SC) 85