Supreme Court Mandates Affidavit Support for Complaints Against Public Servants Under BNSS Section 175

Introduction

In a landmark ruling that reinforces procedural safeguards in criminal investigations involving public servants, the Supreme Court of India has clarified the interpretation of Section 175 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). A bench comprising Justices Dipankar Datta and Manmohan held that sub-section (4) of Section 175 is not a standalone provision and must be read harmoniously with sub-section (3), mandating that complaints against public servants—alleging offenses committed in the discharge of official duties—be submitted in writing and supported by an affidavit. This decision, delivered in XXX v. State of Kerala & Ors. (2026 INSC 88), arose from allegations of sexual assault by police officers in Kerala and underscores the balance between protecting public functionaries from frivolous claims and ensuring accountability for serious offenses.

The judgment addresses a novel provision in the BNSS, which replaced the Code of Criminal Procedure, 1973 (CrPC), and aims to prevent misuse of the criminal justice system at the threshold stage. By requiring an affidavit, the Court emphasized the need for complainants to take responsibility for their allegations, drawing from precedents like Priyanka Srivastava v. State of U.P. (2015). The ruling also provides guidance for judicial magistrates on when to invoke the special procedure under Section 175(4), potentially impacting how cases against officials, including those involving sexual offenses, are initiated. In a related development highlighted in concurrent reports, the Supreme Court in Niraj Jain v. Competent Authority-cum-Additional Collector, Jagdalpur & Ors. (2026 INSC 86) ruled that fraud by some landowners does not invalidate compensation awards for innocent parties in land acquisitions, further illustrating the Court's commitment to equitable procedural justice.

Case Background

The case originated from a property dispute in Kerala that escalated into grave allegations of sexual assault against three police officers. The appellant, XXX, claimed that in January and August 2022, while pursuing a complaint related to the dispute, she was assaulted by the officers. The first incident allegedly occurred when the fifth respondent (R-5), a police officer, visited her residence under the pretext of discussing the matter and raped her. A subsequent complaint to a Deputy Superintendent of Police led to another alleged assault at her home. The third incident involved a Superintendent of Police luring her to an isolated location under the guise of assistance, resulting in another rape.

Following these events, XXX lodged complaints with the Superintendent of Police's office in August 2022. However, a report from the Deputy Superintendent of Police on October 11, 2022, deemed the allegations untrue, prompting no further action for nearly two years. After a change in leadership at the district police in September 2024, XXX renewed her efforts: she filed a written complaint with the Station House Officer, Ponnani Police Station on September 6, 2024; approached the District Police Chief under Section 173(4) BNSS on September 8; and on September 9, submitted an application to the Judicial Magistrate First Class (JMFC), Ponnani, under Section 210 read with Section 173(4) BNSS, seeking directions for FIR registration against the officers.

On September 11, 2024, the JMFC, invoking Section 175(4) BNSS, ordered a report from the Deputy Inspector General of Police, Thrissur Range, to assess the allegations against public servants. While this application was pending, XXX filed a writ petition in the Kerala High Court on September 13, 2024 (WP(C) No. 33035/2024), alleging police inaction and seeking FIR registration per Lalita Kumari v. Govt. of U.P. (2014), along with a declaration that the assaults were not in the discharge of official duties, thus bypassing Section 175(4).

The Single Judge of the High Court allowed the writ on October 18, 2024, ruling that rape could not be an official duty and that Section 175(4) was directory due to the word "may." The JMFC then ordered FIR registration on October 24, 2024. R-5 appealed, and the Division Bench of the Kerala High Court set aside the Single Judge's order on November 13, 2024 (Writ Appeal No. 712/2024), holding that writ intervention was premature while the JMFC proceedings were ongoing. XXX appealed to the Supreme Court, challenging the Division Bench's decision and raising questions on Section 175's interpretation.

The core legal questions included: (1) Whether Section 175(4) BNSS is standalone or must align with Section 175(3); (2) The procedure for magistrates upon receiving complaints against public servants; (3) Whether the Single Judge exceeded jurisdiction; and (4) If the alleged acts were in the discharge of official duties.

Arguments Presented

The appellant, represented by Senior Advocate R. Basant, argued that Section 175(4) protection applies only to offenses "arising in course of the discharge of official duties," which sexual assault clearly does not. He contended that no special safeguards should apply, mandating immediate FIR registration under Lalita Kumari . Basant further asserted that Section 175(4) is not standalone but must incorporate Section 175(3)'s affidavit requirement, preventing oral complaints and aligning with Priyanka Srivastava , which emphasized affidavits to curb misuse. He highlighted the third proviso to Section 218(1) BNSS, exempting sexual offenses from prior sanction, arguing for parity at the investigation stage. Finally, he criticized the 2022 police report as exceeding Lalita Kumari 's preliminary inquiry scope, which should only verify if a cognizable offense is disclosed, not its veracity.

The respondents, including the State of Kerala (represented by Senior Advocate Ranjit Kumar) and R-5 (by Senior Advocate Siddharth Dave), defended the JMFC's actions. Kumar supported the report-calling under Section 175(4), questioning XXX's motives as vengeful, linked to suspended relatives and a news channel with grievances against the officers. A preliminary inquiry revealed inconsistencies, such as R-5's absence on the alleged date and XXX's vague details, concluding the claims were false and conspiratorial. He argued Sections 173 and 175 BNSS form a sequential remedy chain, with Section 175(3) linking to Section 173(4), and invoked the 247th Parliamentary Standing Committee Report recommending affidavits to prevent misuse.

Dave emphasized BNSS's two-tier protection for public servants: preliminary safeguards under Section 175(4) (report from superior and hearing for accused) and sanction under Section 218 at cognizance. He posited Section 175(4) as independent, allowing "complaints" (including oral per Section 2(1)(h) BNSS) without affidavits, as a deliberate omission to address judicial divergences like in Anil Kumar v. M.K. Aiyappa (2013) and Manju Surana v. Sunil Arora (2018). The assaults, per XXX's version, occurred during official visits, qualifying as official duties. He distinguished sanction exemptions for sexual offenses at cognizance (post-investigation) from threshold protections needed without material.

Legal Analysis

The Supreme Court, in a detailed analysis authored by Justice Datta, first reaffirmed Lalita Kumari 's mandate for mandatory FIR registration in cognizable offenses, with limited preliminary inquiries only to ascertain if such an offense is disclosed—not its truth. However, since XXX approached the JMFC after police refusal, the focus shifted to Sections 175(3) and (4) BNSS, which empower magistrates to order investigations.

Rejecting Section 175(4) as standalone, the Court noted it would allow bypassing Section 173(4)'s Superintendent of Police remedy, contrary to Ranjit Singh Bath v. Union Territory Chandigarh (2025). The absence of affidavit mention in (4) versus its explicit requirement in (3) could not negate safeguards from Priyanka Srivastava , which aimed to deter routine harassment. Placement as a sub-section, not independent, and harmonious reading principles compelled integration: (4) adds protective layers (superior's report, accused's hearing) atop (3)'s general power.

The Court purposively interpreted "complaint" in Section 175(4) to exclude oral allegations, per Section 2(1)(h)'s contextual qualifier, reading it as a written, affidavit-supported application. This aligns with CJI's 2014 circular on affidavits for judicial complaints, extending logically to public servants to filter frivolous claims. Precedents like Anil Kumar (sanction needed pre-cognizance in corruption cases) and Manju Surana (referring divergences) informed BNSS's design, but did not support diluting (3)'s safeguards.

On magistrate discretion ("may" in 175(4)), the Court guided: Invoke (4) if prima facie satisfied of official duties nexus; err cautiously if doubtful; use general (3) procedure if no nexus. Rejection of untenable applications remains possible, reasoned. For High Court jurisdiction, citing Radhe Shyam v. Chhabi Nath (2015) and Pradnya Pranjal Kulkarni v. State of Maharashtra (2025), judicial orders like the JMFC's report-call cannot be challenged via Article 226 writs without exhaustion.

The analysis distinguished quashing/investigation thresholds from cognizance sanctions, noting sexual offense exemptions under Section 218(3) apply post-investigation when evidence exists, unlike threshold protections preventing vexatious probes. This nuanced interplay ensures efficiency without weakening safeguards.

Integrating insights from other sources, the ruling echoes concerns in the Parliamentary Committee's 247th Report on BNSS, which recommended affidavits to curb misuse, directly influencing the Court's construction. In parallel, the Niraj Jain decision (2026 INSC 86) by Justices Sanjay Kumar and K. Vinod Chandran illustrates similar procedural equity: In a Chhattisgarh rail project land acquisition, fraud by specific landowners (colluding for enhanced compensation) did not taint awards for others like appellant Niraj Jain, who was uninvolved. The Court restored Jain's award, emphasizing targeted proceedings over blanket invalidation, rejecting Railways' abeyance plea pending related SLPs. This reinforces the BNSS theme: Safeguards protect innocents without broadly undermining processes.

Key Observations

The judgment features pivotal excerpts underscoring the Court's rationale:

• On harmonious reading: “Since sub-section (4) of Section 175 merely provides an additional protective layer in cases involving public servants, all mandatory procedural requirements governing the exercise of power under sub-section (3) of Section 175, in our opinion, must necessarily be complied with.” This highlights integration to preserve affidavit mandates.

• Purposive construction: “We hold 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…’” Emphasizing rejection of oral complaints.

• Legislative intent: “The legislative intention behind insertion of sub-section (4) of Section 175 is clear: the Parliament intended it as an additional safeguard for public servants when a complaint is made against them. Cognizant of practical realities and to prevent false or frivolous allegations…”

• Magistrate guidance: “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: [outlining three options based on prima facie satisfaction].”

• Affidavit necessity: “It is illogical that a magistrate would be precluded from ordering investigation against a person who is not a public servant without an affidavit supporting the allegations… but may order an investigation against a public servant without needing the informant to swear to the allegations.”

These observations, attributed to Justice Datta for the bench, crystallize the balance against misuse while enabling genuine probes.

Court's Decision

The Supreme Court upheld the Kerala High Court's Division Bench order, dismissing the appeal but on clarified terms. It set aside the Single Judge's interpretation and directions as beyond jurisdiction, affirming that writs under Article 226 cannot interfere with ongoing magisterial proceedings without challenging specific orders.

Practically, the JMFC's September 11, 2024, report-call under Section 175(4) stands, with notices now issued to the accused for hearings. The Court granted XXX liberty to participate before the JMFC, raising contentions like non-official duties or direct FIR sans report. Crucially: “It is also clarified that the JMFC must first satisfy himself that the application under Section 175(3), BNSS is accompanied by an affidavit sworn or affirmed in accordance with the terms of Section 333 thereof.”

Implications are profound: Future complaints against public servants require written affidavits (per Section 333 BNSS, sworn before specified authorities, stating provable facts), deterring oral or unsubstantiated claims and promoting accountability. Magistrates gain a discretionary framework: Invoke safeguards if official nexus is clear/doubtful; bypass if absent. This two-tier system—threshold under 175(4) and cognizance under 218—shields officials from harassment while exempting sexual offenses from sanctions post-investigation, aiding victims like XXX if evidence emerges.

For legal practice, the ruling standardizes BNSS application, reducing High Court overload by channeling disputes to magistrates. It may increase affidavit scrutiny, potentially delaying probes but enhancing quality. In broader justice system impacts, it aligns with anti-misuse reforms, echoing Niraj Jain 's equity in civil contexts—fraud probes target perpetrators, not innocents. Overall, the decision fosters a robust, balanced criminal process, likely influencing thousands of public servant cases annually, ensuring protection without impunity.