Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(SC) 95

SUPREME COURT OF INDIA
DIPANKAR DATTA, MANMOHAN, JJ.
XXX – Appellant
Versus
State of Kerala & Ors – Respondents
Criminal Appeal No. 4629 of 2025 [Arising out of SLP (Criminal) No. 5175 of 2025]
Decided On : 27-01-2026

Advocates appeared:
For the Appellant(s) : Mr. R. Basant, Sr. Adv. Mr. Raghenth Basant, Sr. Adv. Mr. Vikas Jain, AOR Mr. Muhammed Firdouz Av, Adv. Ms. Shrawani, Adv. Mr. Hardik Jayal, Adv. Mr. Akash Rajeev, Adv. Ms. Hima Bhardwaj, Adv. Mr. Aviral Saxena, Adv. Mr. Paritosh Goyal, Adv. Mr. Raunak Arora, Adv. Mr. Kavinesh Rm, Adv. Mr. Nilesh Singh Srineth, Adv.
For the Respondent(s): Mr. Siddhartha Dave, Sr. Adv. Mr. A. Karthik, AOR Ms. Smrithi Suresh, Adv. Mr. Ujjwal Sharma, Adv. Mr. Sugam Agrawal, Adv. Mr. Nayan Dham, Adv. Mr. Ranjit Kumar, Sr. Adv. Mr. C. K. Sasi, AOR Ms. Meena K Poulose, Adv. Mr. Akash Dikshit, Adv.

IMPORTANT POINTS
(1) Commission of offence by public servant in course of discharge of his official duty – Sub-section (4) of Section 175 is neither an independent / a standalone provision nor a proviso to sub-section (3) thereof – Application alleging commission of offence(s) by public servants in discharge of their official duties must also be supported by affidavit.
(2) When authenticity of allegations against a judicial officer is required to be supported by affidavit, there exists equal justification to insist upon a similar requirement in case of public servants as well – No rational basis is discernible for drawing a distinction with regard to insistence on an affidavit.
(3) Judicial Magistrate would continue to retain authority to reject application under sub-section (3) of Section 175, BNSS, lodged against a public servant, where such Magistrate finds that allegations made therein are wholly untenable.

Headnote:
(A) Bharatiya Nagarik Suraksha Sanhita, 2023 – Sections 175(4) and 218 – Commission of offence by public servant in course of discharge of his official duty – Sub-section (4) of Section 175 is neither an independent / a standalone provision nor a proviso to sub-section (3) thereof – Application alleging commission of offence(s) by public servants in discharge of their official duties must also be supported by affidavit – Registration of FIR to be mandatory in all cognizable offences, while permitting preliminary inquiry only in limited, exceptional situations – In present case, appellant having approached JMFC with application under Section 210 read with sub-section (4) of Section 173, BNSS upon omission/neglect of Station House Officer to register FIR based on her complaint, JMFC was required to follow mandate of law as in sub-sections (3) and (4) of Section 175, to the extent relevant and applicable – Advisability or otherwise of any preliminary inquiry before registration of FIR, would, stricto sensu not arise in present case. (Paras 18.6, 19, 37 and 37.7)
(B) Bharatiya Nagarik Suraksha Sanhita, 2023 – Sections 175(4) and 333 – Commission of offence by public servant in course of discharge of his official duty – When authenticity of allegations against a judicial officer is required to be supported by affidavit, there exists equal justification to insist upon a similar requirement in case of public servants as well – No rational basis is discernible for drawing a distinction with regard to insistence on an affidavit – Object underlying such a requirement is common in both cases, to weed out false, frivolous, or vexatious complaints and to strike a balance between bringing public servants to book and protecting them against abuse of judicial process – Sub-sections (3) and (4) must be read harmoniously, with latter understood as a procedural restraint upon power conferred under both sub-sections for ordering an investigation, and not as a substantive substitute for former – Opening words in sub-section (4) which reads “Any Magistrate empowered under Section 210, may, upon receiving a complaint against a public servant ……” have to be purposively read as ‘Any Magistrate empowered under Section 210, may, upon receiving complaint in writing against a public servant of commission of offence arising in course of discharge of his official duties, supported by an affidavit, order investigation, subject to ... ’ – In case of public servants, where allegation is that an offence was committed in course of discharge of official duties, law now provides a two-tier protection – First operates at threshold stage, in the form of additional safeguards under sub-section (4) of Section 175 (when a prayer is made seeking an order for investigation against a public servant), and next under sub-section (1) of Section 218 (before cognizance is taken of offence alleged) – Second tier operates at stage of taking cognizance when “previous sanction” of concerned Government is required – Affidavit, such as one referred to in sub-section (3) of Section 175, must fulfil conditions provided in Section 333, BNSS. (Paras 37.9, 38, 39, 40 and 41)
(C) Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 175(4) – Commission of offence by public servant in course of discharge of his official duty – Judicial Magistrate would continue to retain authority to reject application under sub-section (3) of Section 175, lodged against a public servant, where such Magistrate finds that allegations made therein are wholly untenable, manifestly absurd, or so inherently improbable that no reasonable person could conclude that any offence is disclosed – However, such order of rejection ought not to be based on whims and fancy but must have support of valid reasons – A situation may arise where, Judicial Magistrate has called for a report from concerned superior officer under clause (a) of sub-section (4) of Section 175, but such officer fails to comply with the direction or does not submit report within a reasonable period of time – In such a situation, Judicial Magistrate is not obliged to wait indefinitely for compliance and may proceed further in accordance with sub-section (3) of Section 175 after considering version of accused public servant under clause (b) of sub-section (4) of Section 175, if on record – What would constitute ‘reasonable time’ cannot be determined in rigid or inflexible terms and must necessarily depend upon facts and circumstances of each case before Judicial Magistrate who has to take the call. (Paras 47 and 48)
Facts of the case:
This appeal, by special leave, calls in question an order of reversal of a Division Bench of the High Court of Kerala at Ernakulam [High Court], whereby a writ appeal [Writ Appeal No. 712/2024] of fifth respondent [R-5] stood allowed and judgment and order under challenge of a Single Judge was set aside. Important questions relating to interpretation of certain provisions of recently enacted Bharatiya Nagarik Suraksha Sanhita, 2023 [BNSS] are involved in appeal.
The following two questions arise for determination:
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”?
Findings of Court:
We leave it open to appellant to participate in proceedings before JMFC and raise such points that are available to her in law, including that actions of accused police officers were not in discharge of their official duties and also that without considering the report that has been called for vide order dated 11th September, 2024, an FIR should be directed to be registered by jurisdictional police station. It is also clarified that JMFC must first satisfy himself that application under Section 175(3), BNSS is accompanied by an affidavit sworn or affirmed in accordance with terms of Section 333 thereof.
Result : Appeal disposed of.

Judgement Key Points

The court emphasized that when allegations are made against a public servant for acts committed in the course of official duties, such complaints must be supported by an affidavit. This requirement serves as a safeguard to prevent false, frivolous, or vexatious accusations and ensures accountability of the complainant. The court clarified that Section 175(4) of the relevant law is not an independent or standalone provision; rather, it must be read in conjunction with Section 175(3). The purpose of Section 175(4) is to introduce an additional procedural safeguard before ordering an investigation against a public servant, especially in cases involving allegations of offences committed during official duties (!) (!) .

The court also held that the term "complaint" in Section 175(4) should be understood as an allegation supported by an affidavit, and oral complaints alone would not suffice. This interpretation aligns with the object of the law to prevent misuse and protect public servants from malicious accusations. The procedural steps mandated include obtaining a report from the superior officer and considering the public servant’s version, but all these steps are contingent upon the complaint being supported by a sworn affidavit (!) (!) .

Furthermore, the court observed that if the complaint is related to acts in the discharge of official duties, the law requires that it be supported by an affidavit, fulfilling the conditions specified in the relevant procedural law. This requirement is essential to strike a balance between enabling genuine accountability and safeguarding public servants from unfounded allegations (!) (!) .

The court clarified that Section 175(4) should not be read as a proviso to Section 175(3), nor as an independent provision. Instead, it functions as a procedural extension that introduces additional safeguards when a complaint involves allegations of offences committed in the course of official duties by a public servant (!) (!) .

Finally, the court highlighted that the procedure to be followed by a judicial magistrate involves examining whether the complaint is supported by an affidavit and whether the allegations pertain to acts in official discharge. If the complaint is supported by an affidavit and the allegations are credible, the magistrate may order an investigation, considering the circumstances and the nature of the complaint. If not, the magistrate has the authority to reject the complaint or proceed under the general provisions (!) (!) .

JUDGMENT :

DIPANKAR DATTA, J.

INDEX

PREFACE

FACTS3

Proceedings before the High Court

The Appeal

SUBMISSIONS ON BEHALF OF THE APPELLANT

SUBMISSIONS ON BEHALF OF THE RESPONDENTS

QUESTIONS

ANALYSIS

What is the law laid down in Lalita Kumari?

Questions I & II: Section 175(4), BNSS – Whether standalone or not, and the procedure to be followed by a Judicial Magistrate?

Object of Section 175 (4)

Section 175 (4) is not an independent provision - reasons

Is sub-section (4) to be read as a proviso to sub-section (3) of Section 175?

Construction of Section 175(4)

Summary of the discussion

When must Section 175 (4) be invoked – a guide for Judicial Magistrates

Question (A) : Whether the Single Judge exceeded his jurisdiction?

Question (B): Whether in the present case, the alleged acts of the public servants were in the discharge of their official duties?

CONCLUSION

PREFACE

1. This appeal, by special leave, calls in question an order of reversal of a Division Bench of the High Court of Kerala at Ernakulam¹[High Court], whereby a writ appeal²[Writ Appeal No. 712/2024] of the fifth respondent³[R-5] stood allowed and the judgment and order under challenge of a Single Judge was set aside. Important questions relating to interpretation of certain provisions of the recently enacted Bharatiya Nagarik Suraksha Sanhita, 2023⁴[BNSS] are involved in the appeal. Although the facts of the appeal are not too complicated and, hence, the same could have been decided by a short order, we thought it appropriate to consider the rival arguments in some depth since, by the time we reserved judgment and even thereafter, there has been no authoritative pronouncement of this Court on the interplay between sub- sections (3) and (4) of Section 175, BNSS, which creates a nuanced framework for determining the overall scope thereof. Having regard to the same, while concluding our judgment, we also wish to indicate in brief the considerations that ought to weigh in the minds of the magistrates, empowered under Section 210, BNSS, while they are seized of applications/complaints alleging commission of an offence by a public servant in course of discharge of his official duty as well as provide a guide for due exercise of the power to direct investigation.

FACTS

2. 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 R-5 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 (not a party herein), 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 (also not a party herein), 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.

3. 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 11th October 2022 submitted a report⁵[as will unfold, submissions have been made challenging the validity of this report] stating that the allegations in the complaint filed by the appellant were untrue.

4. After the report in August 2022, there was not much of a development over the next two years.

5. After change of incumbency in the office of the Superintendent of Police of the district in September 2024, the appellant submitted a written complai