Section 175(4) BNSS| Complaint Against Public Servant Must Be Supported By Affidavit: Supreme Court

The Court was hearing an appeal arising from an order of the High Court of Kerala, which had set aside a Single Judge’s directions concerning registration of an FIR and the interpretation of the procedure under Sections 173 and 175 of the BNSS.

A Bench of Justice Dipankar Datta and Justice Manmohan examined whether Section 175(4) operates as a standalone provision or whether it must be read in conjunction with Section 175(3), and observed: “On a plain and contextual reading of the scheme of Section 175, we find that sub-section (3) vests the judicial magistrate (empowered under Section 210) with the power to order investigation, while sub section (4) while conferring similar power additionally prescribes a special procedural safeguard to be observed by the judicial magistrate (empowered under Section 210) where the proposed direction could concern a public servant”.

Accordingly, the Bench held that “a complaint against a public servant, which triggers the procedure under sub-section (4) must, in our view, be also founded on an affidavit”.

Senior Advocates R. Basant and Ranjit Kumar, along with other counsel, appeared for the appellant and respondents, respectively.

Background

The appellant had approached the Magistrate seeking directions for registration of an FIR against certain public servants for offences alleged to have arisen from multiple instances of sexual assault by various police officials in connection with the discharge of their official duties. The Magistrate had invoked Section 175(4) of the BNSS and called for a report from the superior officer of the concerned public servants.

The matter reached the High Court, where a Single Judge held that compliance with Section 175(4) was not mandatory in the facts of the case and directed registration of an FIR. The Division Bench, however, set aside the Single Judge’s order, holding that interference at that stage was unwarranted and that the statutory procedure under the BNSS ought to be followed.

Before the Supreme Court, a central issue was the interpretation of Sections 173 and 175 of the BNSS, particularly whether a Magistrate could order an investigation against a public servant under Section 175(4) without the complaint being supported by an affidavit.

Court’s Observation

The Supreme Court undertook a detailed analysis of the statutory scheme of Sections 173 and 175 of the BNSS and the legislative intent behind introducing sub-section (4) to Section 175.

The Court held that Section 175(4) was introduced as an additional protective layer for public servants, requiring a Magistrate to obtain a report from the superior officer and consider the public servant’s version before ordering an investigation. However, the Court emphasised that this additional safeguard does not dilute or override the mandatory procedural requirements governing the exercise of power under Section 175(3).

The Court reasoned that Section 175(3) expressly mandates that an application seeking an order for investigation must be supported by an affidavit, a safeguard introduced in line with the principles laid down in Priyanka Srivastava v. State of U.P. to prevent abuse of the criminal process.

It held that interpreting Section 175(4) as dispensing with the affidavit requirement would undermine this safeguard and allow investigations against public servants to be initiated based on unsupported complaints, thereby defeating the purpose of the procedural protections.

The Bench observed that Section 175(4) is neither a standalone provision nor a proviso to Section 175(3), but operates as a procedural restraint and additional layer of protection within the broader framework of Section 175. Accordingly, the power to order an investigation against a public servant must be exercised only after satisfying both the general requirements under Section 175(3) and the special safeguards under Section 175(4).

The Court expressly held that since Section 175(4) merely provides an additional protective layer, while stating that “all mandatory procedural requirements governing the exercise of power under Section 175(3) must necessarily be complied with.

Taking note of a communication from the Chief Justice of India to the Chief Justices of States, which emphasised that complaints against Judicial Officers should not be entertained unless supported by an affidavit, the Bench observed that “when the authenticity of allegations against a judicial officer is required to be supported by an affidavit, there exists equal justification to insist upon a similar requirement in the case of public servants as well.”

Concluding, the Apex Court held that a contrary interpretation would render the affidavit safeguard nugatory. On this basis, the Court held that a complaint against a public servant triggering the procedure under Section 175(4) must also be founded on an affidavit.

Conclusion

The Supreme Court affirmed that the additional safeguards under Section 175(4) operate as a procedural restraint and do not dispense with the mandatory affidavit requirement.

While disposing of the appeal, the Court also issued a detailed procedural framework to guide judicial magistrates on the circumstances in which the procedure under Section 175(4) of BNSS must be invoked in complaints alleging offences by public servants in the discharge of official duties.

All pending applications were accordingly closed. 

Cause Title: XXX v. State of Kerala & Ors. (Neutral Citation: 2026 INSC 88)

Appearances

Appellant: R. Basant, Senior Advocate, Raghenth Basant, Senior Advocate, with Advocates Vikas Jain, AOR, Muhammed Firdouz Av, Shrawani, Hardik Jayal, Akash Rajeev, Hima Bhardwaj, Aviral Saxena and Others

Respondents: Siddhartha Dave, Senior Advocate, Ranjit Kumar, Senior Advocate, with Advocates A. Karthik, AOR, Smrithi Suresh, Ujjwal Sharma, Sugam Agrawal, Nayan Dham, C. K. Sasi, AOR, and Others.

Click here to read/download Judgment