Section 175 BNSS Explained: Supreme Court Draws the Line Between Protection of Public Servants and Victims’ Rights

Introduction

The enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) marks a significant shift in India’s criminal procedural law, replacing the Code of Criminal Procedure, 1973. While the broad framework remains familiar, several provisions introduce new safeguards, procedures, and balances. One such provision is Section 175, particularly sub-section (4), which deals with complaints against public servants.

In a detailed and authoritative judgment delivered in January 2026, the Supreme Court examined the scope, nature, and interpretation of Section 175(4) BNSS, especially when allegations are made against police officers. The Court addressed important questions relating to the registration of FIRs, the role of Judicial Magistrates, the extent of protection available to public servants, and the rights of victims, particularly in serious offences such as sexual assault.

This judgment is of great practical importance for criminal lawyers, magistrates, police authorities, and complainants. The Court has clarified the procedural roadmap and removed ambiguities surrounding the newly enacted provision.

Background of the Case

The appellant, a woman, alleged that while pursuing a property dispute, she was subjected to sexual assault by police officers on three separate occasions. According to her version, the first incident occurred in January 2022 when a police officer visited her residence under the pretext of discussing her complaint and raped her. The second incident allegedly involved another senior police officer who behaved inappropriately when she approached him with a grievance. The third incident, as alleged, took place in August 2022 when a Superintendent of Police allegedly raped her at an isolated location.

Following these incidents, the appellant made complaints to the police authorities. A preliminary enquiry was conducted, and a report was submitted stating that the allegations were untrue. For nearly two years thereafter, no substantive action followed.

After a change in the office of the Superintendent of Police in September 2024, the appellant again pursued remedies. She filed complaints before the Station House Officer, the District Police Chief under Section 173(4) BNSS, and finally approached the Judicial Magistrate First Class under Section 210 read with Section 175 BNSS, seeking a direction for registration of an FIR.

Proceedings Before the Magistrate and the High Court

Upon receiving the application, the Judicial Magistrate invoked Section 175(4) BNSS and called for a report from the superior police officer. While the application was pending, the appellant approached the High Court under Article 226 of the Constitution, alleging non-compliance with the law laid down in Lalita Kumari v. Government of Uttar Pradesh and unfair investigation.

A Single Judge of the High Court allowed the writ petition. The Single Judge held that compliance with Section 175(4) BNSS was not mandatory because the alleged offence of rape could not be said to have been committed in the discharge of official duties. The Magistrate was directed to order registration of an FIR, which was done.

However, a Division Bench of the High Court, in a writ appeal filed by one of the accused police officers, reversed the order. The Division Bench held that the Single Judge ought not to have interfered when the Magistrate’s proceedings were still pending and when no specific challenge had been made to the Magistrate’s order.

Aggrieved by this reversal, the appellant approached the Supreme Court.

Issues Before the Supreme Court

The Supreme Court framed two broad sets of issues.

First, issues relating to interpretation of law:

1. Whether Section 175(4) BNSS is a standalone provision or must be read along with Section 175(3).
2. What procedure a Judicial Magistrate must follow when a complaint is made against a public servant for acts allegedly committed in the discharge of official duties.

Second, issues relating to the present case:

1. Whether the Single Judge of the High Court exceeded jurisdiction by issuing directions when the Magistrate’s application was still pending.
2. Whether the alleged acts of the police officers could be said to have been committed in the discharge of official duties.

The Law on Registration of FIRs: Lalita Kumari Revisited

The appellant relied heavily on Lalita Kumari, where a Constitution Bench held that registration of an FIR is mandatory when information discloses a cognizable offence. The Supreme Court carefully revisited this decision.

The Court reiterated that Lalita Kumari lays down that no preliminary enquiry is permissible once a cognizable offence is disclosed, except in limited categories. The purpose of a preliminary enquiry is only to determine whether a cognizable offence is disclosed, not to test the truth or falsity of allegations.

However, the Court clarified that in the present case, the appellant had already moved beyond the stage of Section 173 BNSS and had invoked the jurisdiction of the Magistrate under Section 175. Therefore, the strict application of Lalita Kumari, in its original context of police duty under Section 154 CrPC, did not directly govern the situation.

Scheme of Section 175 BNSS

The Court undertook a detailed analysis of Section 175 BNSS, which corresponds to Section 156 CrPC but with significant changes.

Section 175(1) and (2) deal with the power of police to investigate cognizable offences.

Section 175(3) empowers a Judicial Magistrate to order investigation, subject to important safeguards:

• The complainant must first approach the Superintendent of Police under Section 173(4).
• The application to the Magistrate must be supported by an affidavit.
• The Magistrate may conduct an enquiry and consider submissions of the police officer.

Section 175(4), which is new, provides an additional safeguard when the accused is a public servant, and the alleged offence arises in the course of discharge of official duties.

Object and Purpose of Section 175(4)

The Supreme Court held that Section 175(4) was introduced to protect public servants from frivolous or motivated complaints, especially at the threshold stage when material is scarce and reputational harm can be severe.

The provision mandates that before ordering investigation against a public servant, the Magistrate:

• Must call for a report from the superior officer, and
• Must consider the version of the accused public servant.

The Court emphasized that this protection does not exist to shield criminal conduct, but to ensure that honest public servants are not harassed through misuse of criminal process.

Whether Section 175(4) Is a Standalone Provision

One of the most important findings of the judgment is that Section 175(4) is not a standalone provision.

The Court rejected the argument that Section 175(4) operates independently of Section 175(3). It held that such an interpretation would lead to serious anomalies, including:

• Allowing complainants to bypass the mandatory step of approaching the Superintendent of Police.
• Permitting investigation orders against public servants without affidavits, undermining safeguards laid down in Priyanka Srivastava v. State of U.P..

The Court held that Section 175(4) must be read harmoniously with Section 175(3). The power to order investigation flows from both provisions, but Section 175(4) imposes additional procedural restraints in cases involving public servants.

Is Section 175(4) a Proviso?

The Court also examined whether Section 175(4) should be treated as a proviso to Section 175(3). After analysing settled principles of statutory interpretation, the Court held that it is not a proviso.

A proviso typically carves out an exception. Section 175(4), however, creates a special procedure, not an exception. It introduces safeguards that were absent in the CrPC and are not merely qualifications of Section 175(3).

Thus, Section 175(4) is neither standalone nor a proviso, but a procedural extension to be read along with Section 175(3).

Requirement of Affidavit

Although Section 175(4) does not expressly mention an affidavit, the Court held that an affidavit is mandatory even in cases covered by sub-section (4).

The reasoning was clear: it would be illogical and unjust if a Magistrate could order investigation against a public servant on the basis of an oral or unsupported complaint, when stricter safeguards apply to complaints against private individuals.

The Court reiterated that affidavits serve as a deterrent against false complaints and ensure accountability of the complainant.

Guidance for Judicial Magistrates

One of the most valuable aspects of the judgment is the practical guidance provided to Magistrates.

The Court held that when a complaint is received against a public servant:

• If it prima facie appears that the alleged act arose in the discharge of official duties, the Magistrate must follow Section 175(4).
• If there is doubt, the Magistrate should err on the side of caution and still follow the procedure under Section 175(4).
• The word “may” in Section 175(4) confers discretion, but that discretion must be exercised judicially and with reasons.

Whether Sexual Assault Can Be in Discharge of Official Duty

On facts, the Court examined whether acts of sexual assault could ever be said to be in discharge of official duties.

The Court made it clear that rape or sexual assault can never be considered part of official duty. Merely because a police officer visits a complainant in connection with an investigation does not convert a criminal act into an official act.

However, the Court clarified that this determination must ordinarily be made by the Magistrate following the statutory procedure, and not pre-empted by writ courts.

Limits of Writ Jurisdiction

The Supreme Court upheld the view of the Division Bench that the Single Judge exceeded jurisdiction. The Magistrate had already invoked Section 175(4) and the matter was pending. There was no challenge to that order.

The Court held that writ jurisdiction should not be used to short-circuit statutory remedies, especially under a newly enacted procedural law.

Conclusion

This judgment is a landmark interpretation of Section 175 BNSS. It strikes a careful balance between:

• Protecting victims’ rights,
• Ensuring mandatory registration and investigation of serious offences, and
• Safeguarding public servants from misuse of criminal law.

The Supreme Court has clarified that procedural safeguards are not shields for crime, but instruments to ensure fairness. At the same time, courts must respect statutory processes and avoid premature intervention.

For criminal practitioners, this judgment will serve as a foundational precedent on how Section 175 BNSS is to be applied in practice.

Case Name:

XXX v. State of Kerala & Ors., Criminal Appeal No. 4629 of 2025 (arising out of SLP (Crl.) No. 5175 of 2025), Supreme Court of India, Judgment dated 28 January 2026 (2026 INSC 88).