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 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 :

1. 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).
2. 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.
3. 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

Cause Title: XXX VERSUS STATE OF KERALA & ORS

Citation : 2026 LiveLaw (SC) 85

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