SC Lays Down Guardrails For FIRs Against Public Servants

New Delhi: Interpreting a key provision of the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, the Supreme Court has held that magistrates cannot do away with procedural safeguards while directing investigation against public servants. A bench led by Justice Dipankar Datta, while deciding an appeal arising from allegations of sexual assault by police officers, has held that the procedural safeguards built into Section 175 of the BNSS are mandatory and must be followed before directing investigation against a public servant for acts allegedly committed during the discharge of official duties.

The judgment, delivered in XXX v. State of Kerala, on January 27, settles a significant question that has arisen with the transition from the Code of Criminal Procedure, 1973 (CrPC) to the new criminal procedure framework of the BNSS: whether the special protection provided to public servants at the investigation stage operates independently or as part of a structured and sequential process overseen by judicial magistrates.

Section 175 of the BNSS broadly replaces Section 156 of the CrPC, which empowered magistrates to order investigation when police refused to register an FIR. What is new – and central to this case – is Section 175(4), which introduces an additional procedural layer when the proposed investigation concerns a public servant accused of an offence arising “in the course of the discharge of official duties”.

Under this sub-section, a magistrate may order an investigation only after calling for a report from the public servant’s superior officer and taking into consideration the public servant’s version of events. Since the BNSS came into force, high courts have differed on how this provision is to be read. Is it a standalone safeguard, a proviso or an extension of the general power under Section 175(3)?

The Supreme Court has now resolved that uncertainty.

The facts behind the appeal

The case arose from a woman’s complaint in Kerala alleging that she was sexually assaulted on three separate occasions by police officers while she was pursuing a property dispute. According to her, the first assault occurred when a police officer visited her home under the pretext of inquiry. Subsequent incidents allegedly involved senior officers to whom she had complained earlier.

Although she approached the police, her complaints were subjected to a preliminary inquiry and eventually closed as untrue. Nearly two years later, following a change in police leadership in the district, she renewed her efforts –submitting a complaint to the Station House Officer, approaching the Superintendent of Police under Section 173(4) of the BNSS and, finally, moving the Judicial Magistrate First Class under Section 210 read with Section 173(4), seeking a direction for registration of an FIR.

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Invoking Section 175(4), the magistrate called for a report from the Deputy Inspector General of Police. While this application was pending, the complainant approached the Kerala High Court under Article 226, arguing that offences like rape could never be treated as acts committed in the discharge of official duties and that compliance with Section 175(4) was therefore unnecessary.

A single judge bench accepted this argument, held Section 175(4) to be directory rather than mandatory and directed immediate registration of an FIR. On appeal, a division bench of the high court reversed that order, holding that the writ court should not have intervened while the magistrate’s statutory process was still underway.

The complainant then approached the Supreme Court.

What the court was asked to decide

Although the appeal arose from a deeply troubling factual background, the Supreme Court bench comprising Justices Datta and Manmohan consciously framed the case around institutional and procedural questions, not the truth or falsity of the allegations.

Two interpretive issues lay at the heart of the case. First, whether Section 175(4) is a standalone provision independent of Section 175(3) or whether both must be read together. Second, what procedure a magistrate must follow when asked to order investigation against a public servant under the BNSS.

In addition, the court had to decide whether the High Court of Kerala single judge was justified in bypassing the magistrate’s process and directing registration of an FIR through writ jurisdiction.

Harmonising sections 175(3) and 175(4)

Rejecting the argument that Section 175(4) operates independently, the Supreme Court held that sub-sections (3) and (4) form part of a single, integrated scheme.

Justice Datta’s judgement reasons that under the BNSS, an aggrieved complainant must first approach the Superintendent of Police when the police refuse to register an FIR. Only thereafter can the jurisdiction of the magistrate be invoked.

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Reading Section 175(4) as standalone would allow complainants to bypass this statutory hierarchy – an outcome the court found inconsistent with legislative intent.

Crucially, the court also held that the requirement of an affidavit, expressly mandated under Section 175(3), cannot disappear merely because the accused is a public servant. Allowing oral or unsupported complaints to trigger an investigation against public servants, while requiring affidavits in all other cases, would invert the logic of procedural safeguards, the court said.

Accordingly, the court held that any complaint invoking Section 175(4) must be in writing, supported by an affidavit and preceded by recourse to the Superintendent of Police under Section 173(4).

Additional safeguards, not immunity

At the same time, the court was careful to clarify what Section 175(4) does – and does not – do. It does not confer immunity on public servants. Nor does it bar investigation into serious offences, including sexual offences. Instead, it introduces a threshold scrutiny mechanism at the stage where a magistrate is asked to set the criminal process in motion against a public servant: at a point when no investigation has yet occurred.

The judgement emphasises that parliament consciously created a two-tier structure under the BNSS: procedural safeguards at the stage of ordering an investigation under Section 175(4), and the familiar requirement of sanction at the cognisance stage under Section 218, subject to statutory exceptions. These operate at different stages and serve different purposes.

Restraint on writ intervention

On the facts of the case, the Supreme Court agreed with the division bench of the Kerala high court that the single judge had exceeded jurisdiction. The magistrate had neither refused to act nor finally decided the complainant’s application. Intervening at that stage, the court held, disrupted the statutory process envisaged by the BNSS.

The Supreme Court therefore restored the magistrate’s order calling for a report and held that it would be for the magistrate, applying the principles laid down, to decide whether investigation should be ordered.

Significantly, the court did not conclusively rule on whether the alleged acts in this case were committed in the discharge of official duties, leaving that determination to the magistrate on the facts.

Why the judgment matters

Beyond the immediate dispute, the ruling has wide implications for criminal procedure under the BNSS. Magistrates across the country are now bound by a clear framework when dealing with complaints against public servants – one that insists on procedural discipline without foreclosing genuine prosecution.

For complainants, the judgement underscores the importance of exhausting statutory remedies and supporting allegations with sworn affidavits. For public servants, it affirms that while they are not shielded from the law, the criminal process cannot be set in motion casually or punitively.

Most importantly, the court has signalled that the transition to the new criminal codes will be mediated through strict adherence to statutory procedure, even where a more interventionist, victim-centric response might appear compelling.

By upholding the division bench’s setting aside of the single judge’s victim-centric intervention, the Supreme Court has underscored that under the new criminal codes, even serious allegations must pass through the procedural filters parliament has enacted, with magistrates – not writ courts – occupying the first line of decision-making.

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