Xxxxxxx vs. State Of Kerala

REPORTABLE
2026 INSC 88
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 4629 OF 2025
[ARISING OUT OF SLP (CRIMINAL) NO. 5175 OF 2025]

XXX … APPELLANT

VERSUS

STATE OF KERALA & ORS … RESPONDENTS


J U D G M E N T

DIPANKAR DATTA, J.
INDEX
PREFACE ......................................................................................... 2
FACTS ............................................................................................. 3
Proceedings before the High Court ............................................. 5
The Appeal .............................................................................. 6
SUBMISSIONS ON BEHALF OF THE APPELLANT .................................... 7
SUBMISSIONS ON BEHALF OF THE RESPONDENTS ............................. 10
QUESTIONS ................................................................................... 19
ANALYSIS ...................................................................................... 20
What is the law laid down in Lalita Kumari? ............................... 20

Questions I & II: Section 175(4), BNSS – Whether standalone or not,
and the procedure to be followed by a Judicial Magistrate? .......... 24
Object of Section 175 (4) ................................................ 28
Signature Not Verified
Digitally signed by
rashmi dhyani pant
Date: 2026.01.27
17:06:30 IST
Reason:
Section 175 (4) is not an independent provision - reasons .. 30
Is sub-section (4) to be read as a proviso to sub-section (3) of
Section 175? ................................................................. 32
1


Construction of Section 175(4) ........................................ 34
Summary of the discussion ............................................. 40
When must Section 175 (4) be invoked – a guide for Judicial
Magistrates ................................................................... 41
Question (A) : Whether the Single Judge exceeded his jurisdiction?
............................................................................................ 43
Question (B): Whether in the present case, the alleged acts of the
public servants were in the discharge of their official duties? ....... 45
CONCLUSION ................................................................................. 47


P REFACE
1. This appeal, by special leave, calls in question an order of reversal of a
1
Division Bench of the High Court of Kerala at Ernakulam , whereby a writ
2 3
appeal of the fifth respondent 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
4
enacted Bharatiya Nagarik Suraksha Sanhita, 2023 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

1
High Court
2
Writ Appeal No. 712/2024
3
R-5
4
BNSS
2


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.
F ACTS
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
3


th 5
11 October 2022 submitted a 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
th
complaint before Station House Officer, Ponnani PS, on 6 September;
a complaint under sub-section (4) Section 173, BNSS to the District
th th
Police Chief on 8 September; and on 9 September, she filed an
6
application under “Section 210 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 read with Section 173(4)” before the Judicial Magistrate
7
First Class, Ponnani seeking a direction for registration of a First
8
Information Report against those police officials whom she perceived as
9
offenders. Having regard to sub-section (4) of Section 175, BNSS , the
th
JMFC vide order dated 11 September 2024 called for a report from the
Deputy Inspector General of Police, Thrissur Range. Two days later, while
the appellant’s application was still pending before the JMFC, the
10
appellant invoked the writ jurisdiction of the High Court alleging unfair
and unlawful investigation by the police. She sought directions for
registration of an FIR and compliance with the directions made by this

5
as will unfold, submissions have been made challenging the validity of this report
6
C.M.P. No. 3288 of 2024
7
JMFC, hereafter
8
FIR
9
a new provision in the BNSS
10
WP (C) No. 33035 of 2024
4


11
Court in Lalita Kumari v. Govt. of U.P. . Lastly, she implored the writ
court to declare that the acts of the police officials, in sexually assaulting
her, were not in the discharge of their official duties and, thus, sub-
section (4) of Section 175, BNSS was not required to be followed. The
final prayer in the writ petition is reproduced below:
“3. The Petitioner respectfully prays before this Honourable Court to declare
that the immunity provided under Section 175(4) of BNSS shall not extend
to crimes committed by a public servant that are unrelated to their official
duties. Specifically, the Court is requested to rule that the protection
afforded to public servants does not apply to acts that constitute criminal
offenses committed outside the scope of their official functions. This prayer
is made to ensure that public servants are held accountable for any criminal
acts they commit in their personal capacity, without the shield of immunity
intended for their official duties.”
(emphasis ours)

ROCEEDINGS BEFORE THE IGH OURT
P H C

6. A Single Judge of the High Court allowed the writ petition vide order
th
dated 18 October, 2024, holding that compliance with Section
175(4)(a), BNSS prior to registration of an FIR was not mandatory, as
the alleged offence of rape could not be regarded as one committed by
a public servant in the “discharge of official duties” . The Single Judge
further observed that the use of the word “may” in sub-section (4) of
Section 175 indicates that the provision is directory, not mandatory.
Accordingly, the JMFC was directed to dispose of the appellant’s
application as per the law declared by the Single Judge, within ten days
of receiving the order. In compliance with this direction, the Magistrate,
th
ordered registration of an FIR vide order dated 24 October, 2024.

11
(2014) 2 SCC 1
5


7. Aggrieved by the order of the Single Judge, R-5 preferred the writ appeal
which stands allowed by the Division Bench vide a judgment and order
th 12
dated 13 November, 2024 . While the Division Bench acknowledged
that a substantial question of law did arise in the appeal, it declined to
adjudicate upon the same as “the main question is whether it was
appropriate to intervene at this stage under Article 226 of the
Constitution of India when the complaint was pending…” . The Division
Bench proceeded to set aside the order passed by the Single Judge and
th
also the order of the JMFC dated 24 October, 2024 directing registration
of an FIR against the alleged offenders on the grounds that: (i)
th
interference by the Single Judge with the order of the JMFC dated 11
September 2024 was unwarranted, when the complaint [read:
application under Section 175(3), BNSS] before the JMFC was still
pending; (ii) the Single Judge should not have issued directions to the
JMFC when no order of the JMFC was under challenge; and (iii) owing to
pendency of the application under Section 175 (4), BNSS before the
JMFC, the remedy under Article 226 could not have been invoked without
exhausting the remedy under the BNSS.
T HE A PPEAL
8. Thoroughly dissatisfied with the outcome of the writ appeal of R-5, the
appellant has approached us challenging the impugned order of the

12
impugned order
6


Division Bench for exercise of our appellate jurisdiction to set the same
at naught and to restore the order of the Single Judge.
S UBMISSIONS ON BEHALF OF THE A PPELLANT
9. Mr. R Basant, learned senior counsel appearing on behalf of the
appellant, argued that:
9.1 The protection to a public servant under sub-section (4) of Section
175, BNSS is only available if the offence alleged “is arising in course
of the discharge of his official duties” , otherwise not. Since acts of
sexual assault and rape, by no stretch of imagination are in the
discharge of official duties, the protection cannot be afforded to the
alleged offenders (police officers). As sub-section (4) of Section 175
is not attracted, the proper course for a judicial magistrate is to direct
registration of an FIR without calling for any report and/or giving any
opportunity to the accused public servant to respond to the
allegations.
9.2 Sub-section (1) of Section 218, BNSS [earlier Section 197(1), Code
13
of Criminal Procedure, 1973 ] requires prior sanction from the
concerned government before cognizance of an offence can be taken
against a public servant. However, the third proviso to Section 218(1)
excludes the requirement of prior sanction where a public servant is
14
alleged to have committed a sexual offence , reflecting the intent of

13
Cr. PC
14
“Provided also that no sanction shall be required in case of a public servant accused of
any offence alleged to have been committed under Section 64, Section 65, Section 66,
Section 68, Section 69, Section 70, Section 71, Section 74, Section 75, Section 76, Section
7


the law makers not to afford any special protection to public servants
in cases of sexual offences. Consequently, it is clear that the
legislature did not intend to afford public servants any special
protection. While Section 175, unlike Section 218, contains no
proviso, it must be read and interpreted in the light of the legislature’s
intent and, therefore, no protection under sub-section (4) of Section
175 can be extended in cases of sexual offences.
9.3 Another perspective on this is that a public servant cannot be afforded
greater protection at the stage of investigation than what is available
at the stage of cognizance. Since no protection is provided for sexual
offences at the stage of cognizance, where prior sanction is not
required, it cannot be claimed that such protection exists at the stage
of investigation.
9.4 Resultantly, when sub-section (4) of Section 175, BNSS does not
apply, the general law enshrined in sub-section (3) thereof is
applicable. Thus, the JMFC should have directed registration of an FIR
and having not so directed, the Single Judge was justified by his
interference to set things right.
9.5 Sub-section (4) of Section 175, BNSS is not a stand-alone provision.
The same must be read in continuation of / as a proviso to Section
sub-section (3) of Section 175 thereof. Failing to do so would result
in the anomalous position that the requirement of an “application

77, Section 78, Section 79, Section 143, Section 199 or Section 200 of the Bharatiya Nyaya
Sanhita, 2023.”
8


supported by an affidavit,” explicitly provided in Section 175(3),
would be deemed absent in Section 175(4). This would allow an order
for investigation against a public servant to be initiated on the basis
of a mere oral complaint, thereby depriving the public servant of the
safeguard recognized by this Court in Priyanka Srivastava v. State
15
of U.P. , which held that every application under sub-section (3) of
Section 156, Cr. PC must be supported by a sworn affidavit in the
passage extracted hereunder:
30. In our considered opinion, a stage has come in this country where
Section 156(3) CrPC applications are to be supported by an affidavit
duly sworn by the applicant who seeks the invocation of the
jurisdiction of the Magistrate. That apart, in an appropriate case, the
learned Magistrate would be well advised to verify the truth and also
can verify the veracity of the allegations. This affidavit can make the
applicant more responsible. We are compelled to say so as such kind
of applications are being filed in a routine manner without taking any
responsibility whatsoever only to harass certain persons. That apart,
it becomes more disturbing and alarming when one tries to pick up
people who are passing orders under a statutory provision which can
be challenged under the framework of the said Act or under Article
226 of the Constitution of India. But it cannot be done to take undue
advantage in a criminal court as if somebody is determined to settle
the scores.

9.6 The law laid down by this Court in Lalita Kumari (supra) is that when
a complaint discloses a cognisable offence, irrespective of whether
the allegations are credible or not, an FIR has to be registered.
Pursuant to the complaint made by the appellant after the second
incident, the office of the Deputy Superintendent of Police filed a
report stating that the allegations in the complaint were untrue. This
report was questioned on the ground that the same exceeds the

15
(2015) 6 SCC 287
9


scope of preliminary enquiry, as discussed in Lalita Kumari (supra)
according to which the objective of the enquiry is not to ascertain a
prima facie case but only to determine whether the allegations
constitute a cognizable offence. Thus, the report which came to be
submitted finding the allegations to be untrue constituted a gross
violation of the law declared by this Court. Not only that, but, as per
paragraph 120.3 of Lalita Kumari (supra), the outcome of any
preliminary enquiry must be recorded in writing and a copy supplied
to the complainant – which was not done in the present case.
10. Resting on the aforesaid arguments, Mr. Basant made a prayer for
setting aside the impugned order and for a direction to the police for
registration of an FIR, with further direction to fairly and impartially
investigate the crime alleged by the appellant.
S UBMISSIONS ON BEHALF OF THE R ESPONDENTS
11. Mr. Ranjit Kumar, learned senior counsel appeared on behalf of the
official respondents 1 to 4, namely the State of Kerala (R-1), the
Superintendent of Police, District Malappuram (R-2), the Additional
Superintendent of Police, District Malappuram (R-3) and the Station
House Officer of Ponnani Police Station, District Malappuram (R-4).
11.1 At the outset, Mr. Kumar supported the course of action adopted by
the JMFC in the present case [in calling for a report under sub-section
(4) of Section 175, BNSS].
11.2 Questioning the bona fide of the appellant in filing the complaint, Mr.
Kumar submitted that the allegations levelled by the appellant
10


against the accused police officers were stimulated by personal
vengeance and arose out of a conspiracy involving the appellant
herself, two of her relatives, and a television news channel. It was
contended that the appellant’s two relatives, who were serving police
officers, had earlier been suspended from service by one of the
accused officers and therefore bore animosity towards them. The
news channel, it was submitted, was similarly antagonistic, as its
owners had been charge-sheeted in a criminal case.
11.3 Further, Mr. Kumar pointed out that following the appellant’s
complaint, a preliminary enquiry was conducted, which revealed
serious inconsistencies and contradictions in her version. It was
found, inter alia , that R-5 was not present in town on the date on
which he is alleged to have raped the appellant. It was also revealed,
with respect to the alleged third incident, that the appellant had
herself travelled to the location and was not able to name the place
where the incident occurred, thereby casting serious doubt on the
veracity of her version. The preliminary report, upon consideration of
the materials on record, concluded that the allegations were false and
motivated, and that they formed part of a conspiracy between the
appellant, her suspended relatives, and the said news channel – all
of whom harboured personal grievances against the accused police
officers. The report further noted that the appellant was in the habit
of filing complaints against public officials with the object of extorting
money.
11


11.4 Mr. Kumar next contended that even assuming the allegations of the
appellant to be true, the acts complained of were performed in the
discharge of official duties by the police officers concerned.
Accordingly, it was urged that they are entitled to the protection
afforded under sub-section (4) of Section 175, BNSS, which seeks to
protect public servants from frivolous and vexatious criminal
proceedings in respect of acts performed in the course of their official
functions.
11.5 It was argued by Mr. Kumar that Sections 173 and 175 of the BNSS
(Sections 154 and 156 of the Cr. PC) are not standalone provisions
but must be read together. Combined, they provide the procedure for
registration of an FIR and sequential remedies in case of its non-
registration. Section 173, BNSS is pari materia with Section 154, Cr.
PC, save for a significant addition.
11.5.1 Sub-section (3) of Section 173, BNSS has now introduced a
statutory requirement of preliminary enquiry in cases of
offences punishable with three years or more but less than
seven years, to ascertain prima facie existence of an offence.
11.5.2 Furthermore, sub-section (4) of Section 173, BNSS is
substantially similar to sub-section (3) of Section 154, Cr. PC
but contains an additional and material phrase. Emphasis was
laid on sub-section (4) of Section 173 and in particular the last
few words, reading as follows:
(4). Any person aggrieved by a refusal on the part of an officer
in charge of a police station to record the information referred
12


to in sub-Section (1), may send the substance of such
information, in writing and by post, to the Superintendent of
Police concerned who, if satisfied that such information
discloses the 68 commission of a cognizable offence, shall
either investigate the case himself or direct an investigation to
be made by any police officer subordinate to him, in the
manner provided by this Sanhita, and such officer shall have
all the powers of an officer in charge of the police station in
relation to that offence failing which such aggrieved person
may make an application to the Magistrate.

(emphasis laid by Mr. Kumar)

11.5.3 It was, thus, submitted that the same makes clear the
intention of the legislature for sequential escalation of a
grievance arising out of non-registration of an FIR.
11.5.4 That Sections 173 and 175 of BNSS, according to Mr. Kumar,
are not standalone provisions was also sought to be highlighted
by submitting that sub-section (3) of Section 175 reflects a
linkage to sub-section (4) of Section 173:
3) Any Magistrate empowered under Section 210 may, after
considering the application supported by an affidavit made
under sub-Section (4) of Section 173, and after making such
inquiry as he thinks necessary and submission made in this
regard by the police officer, order such an investigation as
above-mentioned.
(emphasis laid by Mr. Kumar)
th
11.6 Our attention was invited to the relevant portions of the 247 Report
on the Bhartiya Nagarik Suraksha Sanhita, 2023 by the Department-
related Parliamentary Standing Committee on Home Affairs. The said
report, after referring to the provisions of the BNSS Bill, considered
the suggestions made and thereafter decided to adopt or reject the
suggestion. Sub-section (3) of Section 175 in the draft bill read as
follows:
13


“ 3.13.3 Further, Clause 175 (3) states that:
‘Any Judicial Magistrate empowered under Section 210 may,
after considering the application made under clause (b) of sub-
Section (4) of Section 173 and submission made in this regard by the
police officer, order such an investigation as above-mentioned’.”
Suggestions received by the Committee were as follows:
“SUGGESTIONS:
3.13.4 The words ‘affidavit’ and ‘after such enquiry as he may think
necessary’ should be added in Clause 175(3) at the appropriate
places, to provide safeguards against any misuse of the law.
3.13.5 Clause 173(4) is not explicitly divided into sub-clauses,
therefore, in Clause 175(3) the reference to 'clause (b) of sub-section
(4) of Section 173' is erroneous, and the reference should instead be
drawn to ‘sub-section (4) of Section 173’.”

Having considered the suggestions, the Committee proceeded to
decide as follows:
“OBSERVATIONS/RECOMMENDATIONS:-
3.13.6 The Committee is of the view that adequate safeguards should
be inbuilt in Clause 175(3) to prevent its misuse and the Clause may
therefore be reframed. The application made under Section 173(4),
may be considered by the Judicial Magistrate empowered under
Section 210, only if it is supported by an affidavit and after
conducting such enquiry as he may think necessary. The Committee,
therefore, recommends bringing out a suitable amendment in the
said Clause, so that its misuse can be prevented. The Committee
further recommends correcting the cross-referencing error in Clause
175(3) by replacing 'clause (b) of sub-section (4) of Section 173',
with ‘sub-section (4) of Section 173’.”

11.7 While concluding his address, Mr. Kumar urged that the impugned
order under challenge does not suffer from any infirmity and,
accordingly, the appeal deserves dismissal.
12. Mr. Siddharth Dave, learned senior counsel, appeared on behalf of R-5
(police officer).
14


12.1 Mr. Dave submitted that the Legislature has consciously incorporated
various procedural protection for public servants in the newly enacted
BNSS.
12.1.1 In cases where a litigant seeks a direction from the judicial
magistrate for registration of an FIR against a public servant,
the BNSS, unlike the Cr. PC, provides a two-tier protection
mechanism. First, at the stage of issuance of such an order
under Section sub-section (4) of Section 175, the judicial
magistrate must call for a report from the superior officer of
the accused and also provide an opportunity of hearing to the
accused. Secondly, at the stage of taking cognizance under
Section 218, BNSS, prior sanction from the concerned
government is required.
12.1.2 As a special provision, when a judicial magistrate is called upon
to take cognizance of a complaint alleging the commission of
an offence by a public servant, Section 223 provides similar
safeguards, requiring a report from the superior police officer
and an opportunity of hearing to be afforded to the public
servant.
12.2 Next, Mr. Dave submitted that sub-section (4) of Section 175 is an
independent provision covering a special case. While sub-section (3)
of Section 175 is the general law, the next sub-section alone governs
the field when a complaint is directed against a public servant for
offence allegedly committed in the discharge of official duties. That
15


sub-section (4) is a standalone provision - distinct and uncontrolled
by sub-section (3) - is apparent from the following: (i) sub-section
(3) of Section 175 can be invoked only by an application supported
by an affidavit, whereas sub-section (4) of Section 175 refers to a
“complaint” and thus encompasses oral complaints as well [as per
Section 2(1)(h), BNSS]; and (ii) sub-section (4) of Section 175
commences with the words “Any Magistrate empowered under
Section 210” rather than “the Magistrate above” underscoring the
Legislature’s intention to provide an additional safeguard for public
servants.
12.3 Further, the fact that sub-section (3) of Section 175 requires a
complaint to be accompanied by an affidavit, whereas no such
requirement exists under sub-section (4) thereof, reinforces the
rationale for providing an additional layer of protection to public
servants, as even oral complaints are accepted under the latter which
calls for additional caution.
12.4 The introduction of this provision is a well-considered legislative
response to the divergence of judicial opinion on the issue. In Anil
16
Kumar v. M.K. Aiyappa , this Court held that even at the stage of
directing an investigation against a public servant under Section sub-
section (3) of Section 156, Cr. PC, prior sanction under Section 19 of
the Prevention of Corruption Act, 1988 is required. However, in

16
(2013) 10 SCC 705
16


17
Manju Surana v. Sunil Arora , the Court noted a divergence of
judicial opinion on this issue and referred the matter to a larger
Bench. Recognizing this ambiguity, Parliament introduced sub-section
(4) of Section 175 as a clarificatory and protective measure for public
servants.
12.5 Relevant extracts from the decided cases referred to by Mr. Dave are
reproduced below:
a. Anil Kumar (supra):
17. We may now examine whether, in the abovementioned legal
situation, the requirement of sanction is a precondition for ordering
investigation under Section 156(3) CrPC, even at a pre-cognizance
stage.
21. The learned Senior Counsel appearing for the appellants raised the
contention that the requirement of sanction is only procedural in nature
and hence, directory or else Section 19(3) would be rendered otiose. We
find it difficult to accept that contention. Sub-Section(3) of Section 19
has an object to achieve, which applies in circumstances where a Special
Judge has already rendered a finding, sentence or order. In such an
event, it shall not be reversed or altered by a court in appeal,
confirmation or revision on the ground of absence of sanction. That does
not mean that the requirement to obtain sanction is not a mandatory
requirement. Once it is noticed that there was no previous sanction, as
already indicated in various judgments referred to hereinabove, the
Magistrate cannot order investigation against a public servant while
invoking powers under Section 156(3) CrPC. The above legal position,
as already indicated, has been clearly spelt out in Paras Nath
Singh [(2009) 6 SCC 372 : (2009) 2 SCC (L&S) 200] and Subramanian
Swamy [(2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC
(L&S) 666] cases.

b. Manju Surana (supra):
33. The catena of judgments on the issue as to the scope and power of
direction by a Magistrate under Chapters XII & XIV is well established.
Thus, the question would be whether in cases of the PC Act, a different
import has to be read qua the power to be exercised under Section
156(3) CrPC i.e. can it be said that on account of Section 19(1) of the
PC Act, the scope of inquiry under Section 156(3) CrPC can be said to
be one of taking “cognizance” thereby requiring the prior sanction in
case of a public servant? It is trite to say that prior sanction to prosecute

17
(2018) 5 SCC 557
17


a public servant for the offences under the PC Act is a provision
contained under Chapter XIV CrPC. Thus, whether such a purport can be
imported into Chapter XII CrPC while directing an investigation under
Section 156(3) CrPC, merely because a public servant would be involved,
would beg an answer.
35. The complete controversy referred to aforesaid and the conundrum
arising in respect of the interplay of the PC Act offences read with CrPC
is, thus, required to be settled by a larger Bench. The papers may be
placed before the Hon'ble the Chief Justice of India for being placed
before a Bench of appropriate strength.

12.6 Further, referring to the equivalence drawn by Mr. Basant between
sub-section (4) of Section 175 and the third proviso to sub-section
(1) of Section 218 of the BNSS, Mr. Dave submitted that such a
comparison is misplaced. The two provisions operate at distinct
stages of the criminal process. Sub-section (4) of Section 175 applies
at the threshold stage, governing the order for investigation, whereas
sub-section (1) of Section 218 comes into play at the post-
investigation stage, when the Court takes cognizance upon
completion of investigation. At the threshold stage, Parliament has
introduced a mandatory twin safeguard under sub-section (4) of
Section 175 to preserve the delicate balance between enabling
genuine prosecution and preventing frivolous or motivated
complaints against public servants. The legislative intent is, thus,
clear: — while the requirement of prior sanction has been excluded
for sexual offences at the stage of cognizance (by which time enough
material is available before the Court to take a decision on
cognizance), it has been consciously retained at the stage of ordering
18


investigation (when no material is available) to ensure fairness and
protect public functionaries from vexatious proceedings.
12.7 Lastly, it was submitted that the alleged acts occurred in the
“discharge of official duties” since, as per the appellant’s own version,
they were committed by the police officials while visiting her house
for the purpose of investigation and, therefore, the alleged offenders
are entitled to the protection under Section 175(4).
Q UESTIONS
13. In relation to interpretation of Section 175 read with Section 173, BNSS,
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” ?
14. However, on facts of the present appeal, we are tasked to decide the
following questions:
(A). Whether the Single Judge exceeded his jurisdiction by interpreting
sub-section (4) of Section 175, BNSS while issuing consequential
directions for the JMFC to pass an appropriate order on the
appellant’s application without any prayer in this behalf and
particularly in the absence of any challenge to the order of the JMFC
19


th
dated 11 September 2024 calling for a report per sub-section (4)
of Section 175?
(B). Whether the alleged acts of the public servants, in the facts and
circumstances of the present case, fall within the discharge of their
official duties?
A NALYSIS
15. Having heard learned senior counsel for the parties, we propose to
answer the questions framed sequentially.
W HAT IS THE LAW LAID DOWN IN L ALITA K UMARI ?
16. Since the appellant’s claim before the High Court was based on the
decision in Lalita Kumari (supra), it would not be inapt to remind
ourselves of what the law declared therein is before proceeding with the
task of answering the above formulated questions.
17. Lalita Kumari (supra) arose out of a writ petition under Article 32 of
the Constitution. Noticing divergent views, a three-Judge Bench ordered
that the petition may be placed before a Constitution Bench of five
Judges. The issue arising for an answer is noted in paragraph 1 of the
decision authored by the Hon’ble the Chief Justice, reading as follows:
The important issue which arises for consideration in the referred matter is
whether “a police officer is bound to register a first information report (FIR)
upon receiving any information relating to commission of a cognizable
offence under Section 154 of the Code of Criminal Procedure, 1973 (in short
‘the Code’) or the police officer has the power to conduct a ‘preliminary
inquiry’ in order to test the veracity of such information before registering
the same”?

20


18. The observations of this Court, relevant for the purpose of this
discussion, are summarised in brief as follows:
18.1 If information discloses commission of a cognizable offence, the
police has no discretion to refuse registration of an FIR or to conduct
a preliminary inquiry. The word “shall” in Section 154(1), Cr. PC is
used in a mandatory sense (Paragraphs 37.6, 54, 83 and 105).
18.2 The placement of Section 154 before 156 makes clear the legislative
intent: that recording of first information is the starting point of
investigation. The same acts as a safeguard against arbitrary police
actions (Paragraphs 38 and 39).
18
18.3 Although Section 166-A of the Indian Penal Code, 1860 provides for
penal consequences of non-registration of FIR by a public servant for
only certain kinds of offences against women, the same does not
mean that a public servant (police officer) has discretion to
register/not register FIR for other offences (Paragraphs 40–42).
18.4 The object of early registration of FIR is to ensure transparency,
avoid embellishments and maintain judicial oversight through prompt
reporting to the Magistrate (Paragraphs 93–97).

18
166A. Public servant disobeying direction under law.—Whoever, being a public servant,—
(a) *
(b) *
(c) fails to record any information given to him under sub-section (1) of section
154 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to cognizable
offence punishable under section 326A, section 326B, section 354, section 354B,
section 370, section 370A, section 376, section 376A, section 376AB, section 376B,
section 376C, section 376D, section 376DA, section 376DB, section 376E or section
509,
shall be punished with rigorous imprisonment for a term which shall not be less than six
months but which may extend to two years, and shall also be liable to fine.
21


18.5 While mandatory registration of an FIR is the rule, the Constitution
Bench recognised a limited need for preliminary inquiry in exceptional
categories of cases. Such exceptions include cases of medical
negligence, corruption cases involving public servants, situations
where the information received does not, on its face, disclose a
cognizable offence. Even in such cases, the scope of preliminary
inquiry is limited only to determine whether a cognizable offence is
disclosed. If the information, ex facie discloses such an offence, the
police is bound to register the FIR forthwith, and any inquiry into
falsity or credibility must follow only during investigation (Paragraphs
115-119).
18.6 In brief, this Court held the registration of FIR to be mandatory in all
cognizable offences, while permitting preliminary inquiry only in
limited, exceptional situations.
18.7 The “Conclusion/Directions” in Lalita Kumari (supra) read as
follows:
Conclusion/Directions
120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154 of the Code,
if the information discloses commission of a cognizable offence and no
preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence
but indicates the necessity for an inquiry, a preliminary inquiry may be
conducted only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the
FIR must be registered. In cases where preliminary inquiry ends in closing
the complaint, a copy of the entry of such closure must be supplied to the
first informant forthwith and not later than one week. It must disclose
reasons in brief for closing the complaint and not proceeding further.
22


120.4. The police officer cannot avoid his duty of registering offence if
cognizable offence is disclosed. Action must be taken against erring officers
who do not register the FIR if information received by him discloses a
cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity or
otherwise of the information received but only to ascertain whether the
information reveals any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to be
conducted will depend on the facts and circumstances of each case. The
category of cases in which preliminary inquiry may be made are as under:
( a ) Matrimonial disputes/family disputes
( b ) Commercial offences
( c ) Medical negligence cases
( d ) Corruption cases
( e ) Cases where there is abnormal delay/laches in initiating criminal
prosecution, for example, over 3 months’ delay in reporting the matter
without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions
which may warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the accused and the
complainant, a preliminary inquiry should be made time-bound and in any
case it should not exceed fifteen days generally and in exceptional cases,
by giving adequate reasons, six weeks’ time is provided. The fact of such
delay and the causes of it must be reflected in the General Diary entry.
120.8. Since the General Diary/Station Diary/Daily Diary is the record of
all information received in a police station, we direct that all information
relating to cognizable offences, whether resulting in registration of FIR or
leading to an inquiry, must be mandatorily and meticulously reflected in the
said diary and the decision to conduct a preliminary inquiry must also be
reflected, as mentioned above.
19. In the present case, the appellant, however, having approached the
JMFC with the application under Section 210 read with sub-section (4)
of Section 173, BNSS upon the omission/neglect of the Station House
Officer to register an FIR based on her complaint, it is obvious that the
JMFC was required to follow the mandate of the law as in sub-sections
(3) and (4) of Section 175, to the extent relevant and applicable. The
advisability or otherwise of any preliminary inquiry before registration of
23


an FIR, as explained in Lalita Kumari (supra) would, therefore, stricto
sensu not arise in the present case.
Q UESTIONS I & II: S ECTION 175(4), BNSS – WHETHER STANDALONE OR NOT ,
AND THE PROCEDURE TO BE FOLLOWED BY A J UDICIAL M AGISTRATE ?
20. The present appeal could have been disposed of on the basis of our
finding on issue (A) (discussed in the later part of the judgment);
however, having heard erudite submissions from learned senior counsel
on either side and cognizant of the fact that Section 175, which
necessarily would also include sub-sections (3) and (4) thereof, read
with Section 173 and certain other provisions of the BNSS fall for a
meaningful construction, which is of labyrinthine significance, we are
inclined to observe how the law ought to be read upon undertaking an
intrusive study of the relevant provisions.
21. Since the BNSS has been newly enacted and contains certain provisions
which have been included to keep pace with time and are otherwise not
to be found in the Cr. PC, obviously there is a dearth of rulings in regard
thereto. However, we consider it appropriate to take note of the first
decision of this Court which has a brief discussion on Section 175, BNSS
before taking the discussion further.
19
22. In Om Prakash Ambadkar v. State of Maharashtra , this Court
pointed out the difference between Section 156, Cr. PC and Section 175,
BNSS, referred to what is the ordainment of sub-section (4) of Section

19
2025 SCC OnLine SC 238
24


175 and thereafter noted that the changes therein can be attributed to
the judicial evolution of Section 156, Cr. PC through numerous decisions
of the Court including Priyanka Srivastava (supra). It was observed
thus:
28. However, before we part with the matter, we deem it necessary to
discuss the changes brought to the scheme of Section 156 of the Cr. P.C. by
the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short,
“the BNSS”).
29. Section 175 of the BNSS corresponds to Section 156 of the Cr.
P.C. Sub-Section (1) of Section 175 of the BNSS is in pari materia with sub-
Section 156(1) of the Cr. P.C. except for the proviso which empowers the
Superintendent of Police to direct the Deputy Superintendent of Police to
investigate a case if the nature or gravity of the case so requires. Sub-
Section (2) of Section 175 of the BNSS is identical to Section 156(2) of
the Cr. P.C. Section 175(3) of the BNSS empowers any Magistrate who is
empowered to take cognizance under Section 210 to order investigation in
accordance with Section 175(1) and to this extent is in pari materia with
Section 156(3) of Cr. P.C. However, unlike Section 156(3) of the Cr. P.C.,
any Magistrate, before ordering investigation under Section 175(3) of the
BNSS, is required to:
a. Consider the application, supported by an affidavit, made by the
complainant to the Superintendent of Police under Section 173(4) of
the BNSS;
b. Conduct such inquiry as he thinks necessary; and
c. Consider the submissions made by the police officer.
30. Sub-section (4) of Section 175 of the BNSS is a new addition to the
scheme of investigation of cognizable cases when compared with the
scheme previously existing in Section 156 of the Cr. P.C. It provides an
additional safeguard to a public servant against whom an accusation of
committing a cognizable offence arising in the course of discharge of his
official duty is made. The provision stipulates that any Magistrate who is
empowered to take cognizance under Section 210 of the BNSS may order
investigation against a public servant upon receiving a complaint arising in
course of the discharge of his official duty, only after complying with the
following procedure:
a. Receiving a report containing facts and circumstances of the
incident from the officer superior to the accused public servant; and
b. Considering the assertions made by the accused public servant as
regards the situation that led to the occurrence of the alleged
incident.
25


31. A comparison of Section 175(3) of the BNSS with Section 156(3) of
the Cr. P.C. indicates three prominent changes that have been introduced
by the enactment of BNSS as follows:
a. First , the requirement of making an application to the
Superintendent of Police upon refusal by the officer in charge of a
police station to lodge the FIR has been made mandatory, and the
applicant making an application under Section 175(3) is required to
furnish a copy of the application made to the Superintendent of Police
under Section 173(4), supported by an affidavit, while making the
application to the Magistrate under Section 175(3).
b. Secondly , the Magistrate has been empowered to conduct such
enquiry as he deems necessary before making an order directing
registration of FIR.
c. Thirdly , the Magistrate is required to consider the submissions of
the officer in charge of the police station as regards the refusal to
register an FIR before issuing any directions under Section 175(3).
32. The introduction of these changes by the legislature can be attributed
to the judicial evolution of Section 156 of the Cr. P.C. undertaken by a
number of decisions of this Court. In the case of Priyanka Srivastava v.
State of U.P., (2015) 6 SCC 287, this Court held that prior to making an
application to the Magistrate under Section 156(3) of the Cr. P.C., the
applicant must necessarily make applications under Sections 154(1) and
154(3). ……

23. A bare reading of Section 175, BNSS reveals the marginal note as “Police
officer’s power to investigate cognisable case” . While sub-section (1)
confers power on any officer in charge of a police station to investigate
a cognisable case and sub-section (2) provides the effect of investigation
by a police officer not empowered under sub-section (1), sub-sections
(3) and (4) relate to the power of a magistrate, empowered under
Section 210, BNSS to order investigation as “above-mentioned” , i.e., an
investigation that a police officer is required to undertake as in sub-
section (1) of Section 175. Reference to Section 210 in sub-sections (3)
and (4) is for the purpose of drawing guidance as to the class of
magistrate empowered to take cognisance of an offence.
26


24. We are minded to hold that by the very nature of its contents, sub-
sections (3) and (4) of Section 175 could have formed a different section
of the BNSS altogether. Suffice it to record at the outset that the BNSS
being a statute of recent origin, which has been enacted after exactly
half a century of its precursor (the Cr. PC) governing the field of criminal
procedure, one would have expected the legislative drafting thereof to
be of the highest order with clear expression of the will of the people.
Sadly, Section 175, BNSS is somewhat confusing and requires ironing
out the creases in the legislation without altering the material of which
it is woven.
25. As noticed, elaborate arguments have been advanced canvassing the
different ways in which Section 175 and in particular sub-section (4)
thereof should be/can be interpreted. One contention is that sub-section
(4) must be read in continuity with sub-section (3). Per this
interpretation, sub-section (4) is not an independent provision but
operates subject to the procedural safeguards that sub-section (3)
embodies, including the requirement that the application be supported
by an affidavit. It was argued that any other reading would result in the
affidavit requirement being rendered nugatory in cases under sub-
section (4), thereby weakening an important safeguard against possible
frivolous or mala fide proceedings. In contrast, the contention is that
sub-section (4) has to be viewed as a distinct and self-contained
provision, not controlled by sub-section (3), starting with the words “Any
Magistrate ...” and not ‘Such Magistrate as referred to above ...’. Also,
27


the term “complaint” in sub-section (4) must be understood in light of
clause (h) of sub-section (1) of Section 2, BNSS, which defines complaint
as including an oral complaint as well. Concerns regarding abuse of
process through oral complaints (without the support of affidavit) were
countered by the submission that sub-section (4) itself contains
adequate additional safeguards (report from superior officer and
opportunity of hearing to the accused public servant), making the
requirement of an affidavit unnecessary and unwarranted.
26. After a careful and considered examination of the arguments advanced,
we find ourselves in respectful disagreement with the latter view
[according to which sub-section (4) of Section 175, BNSS is a standalone
provision].
O BJECT OF S ECTION 175 (4)
27. Sub-section (4) of Section 175 of the BNSS is a provision that was
absent in the Cr. PC. It reads as follows:
(4) Any Magistrate empowered under Section 210, may, upon receiving a
complaint against a public servant arising in course of the discharge of his
official duties, order investigation, subject to—
(a) receiving a report containing facts and circumstances of the incident
from the officer superior to him; and
(b) after consideration of the assertions made by the public servant as
to the situation that led to the incident so alleged.

28. Sub-section (4) prescribes a special procedure to be followed before an
order for investigation is made in cases involving offences committed by
a public servant “in course of the discharge of his official duties” . Having
regard to the modal verb “may”, appearing in sub-section (4), a judicial
28


magistrate has the discretion to order an investigation upon (i) calling
for a report regarding the incident from an officer superior to the accused
public servant; and (ii) considering the version of the public servant
concerning the incident. It is “subject to” these conditions, that “( A)ny
Magistrate ..., may, ... ” , if satisfied of sufficient grounds existing, pass
an order for investigation against the accused public servant.
29. 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, it appears
to us that the mandate is to obtain a report from the accused public
servant’s superior officer and to extend to such public servant an
opportunity to explain his side of the story. While society’s interest is
served by prosecuting offenders, it is equally vital, if not more, to ensure
that prosecution is not launched against individuals, including public
servants, to settle a score or wreak vengeance or put them in such an
awkward position that it becomes difficult for them to act in a similar
future occasion. The responsibility, nay duty, after all, is not just to
pursue the actual culprit, but also to protect the innocent from being
falsely implicated, wrongly accused and unnecessarily victimised.
30. Having analysed sub-section (4) of Section 175, its scope, and the object
it seeks to achieve, the question that now arises for consideration is the
manner in which such provision has to be interpreted – whether sub-
29


section (4) stands alone or serves as an adjunct to sub-section (3) or is
it to be read as a proviso to sub-section (3)?
S ECTION 175 (4) IS NOT AN INDEPENDENT PROVISION - REASONS
31. Upon examination of the provision vis-à-vis consideration of the
arguments advanced, we find that construing sub-section (4) as a
standalone provision is susceptible of giving rise to certain difficulties
which compels us to reject such a construction.
31.1 As per the statutory scheme ordained by the BNSS, a person
aggrieved by omission/neglect of a police officer having authority to
register an FIR, at the first instance, is required to approach the
Superintendent of Police under sub-section (4) of Section 173. If
recourse thereto does not yield the desired result, the aggrieved
person may approach the judicial magistrate under sub-section (3)
of Section 175. Resort to the remedy before the Superintendent of
Police is a mandatory precondition to invoke the jurisdiction of the
judicial magistrate, as held by this Court in Ranjit Singh Bath v.
20
Union Territory Chandigarh following earlier decisions.
31.2 However, if sub-section (4) of Section 175 were to be read in isolation
or as a standalone provision, it would be open to a complainant to
directly approach the judicial magistrate under the said provision
while skipping to avail of the remedy provided by sub-section (4) of
Section 173 before the Superintendent of Police. This would give rise

20
2025 SCC OnLine SC 1479
30


to anomalous results because sub-section (3) of Section 175
expressly refers to “an application supported by an affidavit made
under sub-section (4) of Section 173” which, in effect, mandates that
the remedy before the concerned Superintendent of Police be
pursued, whereas sub-section (4) thereof contains no such reference.
Permitting a complainant to circumvent the statutory hierarchy in
cases involving public servants by such an interpretation is likely to
produce an outcome which, in our considered view, would run
contrary to the legislative intent.
31.3 Further, the requirement of an application supported by an affidavit,
which is expressly stipulated in sub-section (3) of Section 175, is
conspicuously absent in sub-section (4) thereof. If sub-section (4) of
Section 175 is construed in isolation, on its plain reading, such a
requirement is entirely absent. We find no discernible reason for the
Parliament to prescribe this procedural safeguard in sub-section (3)
while omitting it in sub-section (4), thereby undermining the
safeguard which Priyanka Srivastava (supra) propounded. Had
sub-section (4) of Section 175 been intended to operate as an
independent provision, it would be reasonable to expect an express
exclusion of all the attendant procedural safeguards (the requirement
of an affidavit and prior recourse to the Superintendent of Police).
31.4 In addition to the above, the placement of sub-section (4)
immediately after sub-section (3) and not as an independent section
31


also persuades us to not read sub-section (4) as a provision that is
independent or stands alone.
I S SUB - SECTION (4) TO BE READ AS A PROVISO TO SUB - SECTION (3) OF S ECTION
175?
32. A proviso is an internal aid to construction. It is appended to a section
of an enactment or any sub-section of a section.
21
33. In Ram Narain Sons Ltd. v. Asstt. CST , this Court held that it is a
cardinal rule of interpretation that a proviso to a particular provision of
a statute only embraces the field which is covered by the main provision.
It carves out an exception to the main provision to which it has been
enacted as a proviso and to no other.
22
34. In State of Rajasthan v. Vinod Kumar , a coordinate Bench noted
several precedents and held as follows:
22. The natural presumption in law is that but for the proviso, the
enacting part of the section would have included the subject-matter of
the proviso; the enacting part should be generally given such a
construction which would make the exceptions carved out by the proviso
necessary and a construction which would make the exceptions
unnecessary and redundant should be avoided. Proviso is used to
remove special cases from the general enactment and provide for them
separately. Proviso may change the very concept of the intendment of
the enactment by insisting on certain mandatory conditions to be fulfilled
in order to make the enactment workable. (Vide S. Sundaram Pillai v.
V.R. Pattabiraman, (1985) 1 SCC 591 , Union of India v. Wood Papers
Ltd., (1990) 4 SCC 256 , Grasim Industries Ltd. v. State of M.P., (1999)
8 SCC 547 , Laxminarayan R. Bhattad v. State of Maharashtra (2003) 5
SCC 413 , IRDP v. P.D. Chacko, 2010 6 SCC 637, and CCE v. Hari Chand
Shri Gopa (2011) 1 SCC 236 .)


21
(1955) 2 SCR 483
22
(2012) 6 SCC 770
32


35. In our considered opinion, sub-section (4) of Section 175 cannot be
considered a proviso for the following reasons:
a. Generally, a proviso is drafted in language such as “Provided
that” . Plainly, we are not faced with a provision starting with
similar words.
b. As formulated in “ Craies on Statute Law ”, 6th Edn., p. 217, and
23
further expounded in Kedarnath Jute Mfg. Co. Ltd. v. CTO ,
the normal function of a proviso is to except something out of
the enactment or to qualify something enacted therein which
but for the proviso would be within the purview of the
enactment. In the instant case, as we shall hold hereafter, this
is not the purport of the concerned sub-section. It, in fact,
creates an additional important safeguard for public servants
not present either in the erstwhile Cr. PC or in sub-section (3)
of Section 175.
c. Placement of the sub-section is also strongly indicative of the
intent of the legislature. The Courts must presume that the
legislature intended the provision to be not a proviso when
placing the provision as a sub-section rather than a proviso.
d. A test one may apply to determine whether a provision is a
proviso rather than a separate provision is to ask whether if the
“main” provision is removed, would the concerned provision
still be capable of being applied. If yes, then the provision

23
AIR 1966 SC 12
33


cannot normally be considered a proviso. One may make a
reference to the decisions in S. Sundaram Pillai v. V.R.
24 25
Pattabiraman , Hiralal Rattanlal v. State of U.P. , and
26
Union of India v. VKC Footsteps (India) (P) Ltd. for the
formulation of this test. In the instant case, it is but obvious
that sub-section (4) can very well be applied if sub-section (3)
of Section 175 is erased from the statute book.
36. We are, thus, not inclined to hold that sub-section (4) has to be read as
a proviso to sub-section (3) of Section 175.
ONSTRUCTION OF ECTION
C S 175(4)
37. Having held that sub-section (4) of Section 175 is neither an
independent / a standalone provision nor a proviso to sub-section (3)
thereof, the next question that arises is in relation to the manner in
which it ought to be construed.
37.1 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. While the authority to direct

24
(1985) 1 SCC 591
25
(1973) 1 SCC 216
26
(2022) 2 SCC 603
34


investigation flows from sub-section (3) as well as from sub-section
(4), the latter provides a qualifying procedural layer.
37.2 Ordinarily, sub-sections of a section of an Act usually deal with
related, parallel aspects with one sub-section dealing with a general
principle and the other providing for a specific aspect, on its own
terms. Viewed in this light, sub-section (3) lays down the general
principle whereas sub-section (4) dives into specifics of public
servants in the given situation, introducing an additional procedural
requirement before the power to order investigation is exercised.
Consequently, the exercise of power to order investigation must be
preceded by satisfaction of not only the conditions expressly stated
in sub-section (4) but also those implicit and traceable to sub-section
(3).
37.3 Much has been argued by Mr. Dave by referring to the opening words
of both sub-sections (3) and (4), which read as “Any Magistrate
empowered under section 210”, to buttress his contention that if the
requirements of sub-section (4) were intended to operate in addition
to sub-section (3), the legislature, in sub-section (4), would have
used the expression “Any such Magistrate as above ...” or the like.
Having given the contention serious consideration and without being
too critical of the legislative draftsman’s efforts, what we infer from
the expression “Any Magistrate empowered under section 210” is the
emphasis or stress being laid on who is competent to order
investigation, namely, the judicial magistrate empowered under
35


Section 210, both by sub-sections (3) and (4) of Section 175.
However, in a case to which sub-section (4) is prima facie attracted,
the additional requirements need also be complied with. Nothing
much, therefore, turns on the similarity of the words used.
37.4 The use of the expression “complaint” in sub-section (4) also does
not alter this position. Clause (h) of sub-section (1) of Section 2,
BNSS defines “complaint” to mean “any allegation made orally or in
writing to a Magistrate, with a view to his taking action under this
Sanhita, that some person, whether known or unknown, has
committed an offence, but does not include a police report” . Though
the definition of “complaint” under clause (h), as aforesaid, taken
literally, includes oral complaints, the definition clause (Section 2,
BNSS) (commonly known as the “dictionary clause” for
understanding words and expressions used in enactments) itself
qualifies every definition with the rider “ (U)nless the context
otherwise requires, ...” . In the context of sub-section (4), which
operates only as a procedural adjunct to sub-section (3), the word
“complaint” in such context clearly requires to be understood in the
sense of an ‘allegation’ relating to commission of an offence which,
for reasons we propose to discuss hereafter, must be in the form of a
written complaint supported by an affidavit and may not include any
allegation orally made.
37.5 One mandatory requirement of sub-section (3) is that the application
seeking an order for investigation must be supported by an affidavit.
36


It is true that sub-section (4) does not expressly require receipt by a
magistrate of a written complaint but refers to a “complaint” only.
However, 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 of cognisable offence
committed by him, but may order an investigation against a public
servant without needing the informant to swear to the allegations.
37.6 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. Any contrary interpretation would result in
incorporation of the procedural safeguard taking cue from the judicial
precedent in Priyanka Srivastava (supra) in sub-section (3) being
robbed off much of its substance. Consequently, a complaint against
a public servant, which triggers the procedure under sub-section (4)
must, in our view, be also founded on an affidavit.
37.7 The reasons discussed above suffice for us to conclude that an
application alleging commission of offence(s) by public servants in
discharge of their official duties must also be supported by affidavit.
37.8 Looked from another angle and in addition to the reasons discussed
above, there is one more reason for our conclusion. Cognizant of the
increasing number of complaints against judicial officers of the trial
judiciary, and to prevent harassment of such officers, the Hon’ble the
37


27
Chief Justice of India vide a communication addressed to the Chief
Justices of the High Courts emphasized the necessity to ensure that
such complaints should not be entertained unless supported by
28
affidavit. The said communication was later circulated as a circular
29
by the Government of India, Ministry of Law and Justice .
37.9 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. No rational basis is discernible for drawing a
distinction with regard to the insistence on an affidavit. The object
underlying such a requirement is common in both cases, namely, 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 the judicial process.
38. Accordingly, in our firm opinion, sub-sections (3) and (4) must be read
harmoniously, with the latter understood as a procedural restraint upon
the power conferred under both the sub-sections for ordering an
investigation, and not as a substantive substitute for the former.

27 rd
D.O. letter No. CJI/CC/Comp/2014/1405 dated 03 October, 2014
28
F.No.L-15011/50/12-Jus.
29
"As you are aware, recently, Hon'ble the CJI, vide his D.O. No.CJI/CC/Comp/2014/1405
dt. 03.10.2014 addressed to the Chief Justice of all the High Courts has asked the High
Courts and subordinate judiciary not to entertain any complaint against a judicial officer
unless it is accompanied by sworn affidavits and verifiable material to substantiate the
allegation. Expressing concern over the large number of complaints being filed against
subordinate judiciary by people having vested interest and personal agenda, Hon'ble CJI
has directed that authenticity of the complaints must be ascertained before any action is
taken on it. In view of the provisions of the Article 235 of the Constitution, further action
relating to the grievance/complaints against the judicial officers lies at the High Court
level."
38


39. To give meaning, we hold that the 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 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 ... ’.
40. So read, in the case of public servants, where the allegation is that an
offence was committed in course of the discharge of official duties, the
law now provides a two-tier protection. The first operates at the
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 the offence alleged). The
second tier, with which we are presently not concerned, operates at the
stage of taking cognizance when the “previous sanction” of the
concerned Government is required.
41. We make it clear that an affidavit, such as the one referred to in sub-
section (3) of Section 175, must fulfil the conditions provided in Section
333, BNSS which reads as follows:
“ 333. Authorities before whom affidavits may be sworn .—(1)
Affidavits to be used before any Court under this Sanhita may be sworn or
affirmed before—
(a) any Judge or Judicial or Executive Magistrate; or
(b) any Commissioner of Oaths appointed by a High Court or Court
of Session; or
(c) any notary appointed under the Notaries Act, 1952 (53 of 1952).
39


(2) Affidavits shall be confined to, and shall state separately, such facts as
the deponent is able to prove from his own knowledge and such facts as he
has reasonable ground to believe to be true, and in the latter case, the
deponent shall clearly state the grounds of such belief.
(3) The Court may order any scandalous and irrelevant matter in the
affidavit to be struck out or amended.”

UMMARY OF THE ISCUSSION
S D
42. Sub-section (3) and sub-section (4) of Section 175 are not isolated silos
but must be read in harmony with sub-section (4) forming an extension
of sub-section (3).
43. The power to order investigation is conferred upon a judicial magistrate
by sub-section (3) of Section 175. Sub-section (4) of Section 175 too
confers such power but prescribes a special procedure to be followed in
case of a complaint against a public servant alleging commission of
offences in the discharge of official duties.
44. The expression “complaint” in sub-section (4) of Section 175 does not
encompass oral complaints. Having regard to the text of the provision
and the context in which it is set, and in light of our conclusion that sub-
section (4) is not a provision which stands alone or is a proviso to sub-
section (3), the term must derive its meaning in sync with allegations of
cognisable offence levelled in an application of the nature referred to in
sub-section (3) of Section 175, i.e., an application supported by
affidavit.


40


W HEN MUST S ECTION 175 (4) BE INVOKED – A GUIDE FOR J UDICIAL
M AGISTRATES
45. Having clarified the symbiotic relationship between sub-sections (3) and
(4) of Section 175, it is indispensable to indicate the circumstances in
which the procedure under sub-section (4) could get activated.
Significantly, sub-section (4) of Section 175 uses the modal verb “may”
and not ‘shall’. In the context where it finds place and the object that is
sought to be achieved, “may” has to be read as “may” , bearing an
element of discretion, and not ‘shall’. The principles, discussed in the
following paragraphs, are intended to guide judicial magistrates at the
stage of considering applications under Section 175.
46. 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:
46.1 Reading the complaint, if the judicial magistrate is prima facie
satisfied that commission of the alleged act giving rise to an offence
arose in course of discharge of official duties by the public servant,
such magistrate may not have any option other than following the
procedure prescribed under sub-section (4) of Section 175 of calling
for reports from the superior officer and the accused public servant.
46.2 Or, on a consideration of the complaint, where the judicial magistrate
entertains a prima facie doubt depending upon the circumstances as
to whether the offence alleged to have been committed by the public
41


servant arose in course of discharge of his official duties, such
magistrate might err on the side of caution and proceed to follow the
procedure prescribed in sub-section (4) of Section 175.
46.3 Or, where the judicial magistrate is satisfied that the alleged act of
offence was not committed in the discharge of official duties and/or
it bears no reasonable nexus thereto, and also that the rigours of
sub-section (4) of Section 175 are not attracted, the complaint may
be dealt with in accordance with the general procedure prescribed
under sub-section (3) of Section 175.
47. It is hereby clarified that the judicial magistrate would continue to retain
the authority to reject an application under sub-section (3) of Section
175, lodged against a public servant, where such magistrate finds that
the allegations made therein are wholly untenable, manifestly absurd,
or so inherently improbable that no reasonable person could conclude
that any offence is disclosed. However, it is needless to observe, such
an order of rejection ought not to be based on whims and fancy but must
have the support of valid reasons.
48. A situation may arise where, in an appropriate case, the judicial
magistrate has called for a report from the 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 the report within a
reasonable period of time. What is the course open to the magistrate in
such a situation? In the unlikely event of such a situation, we hold, the
judicial magistrate is not obliged to wait indefinitely for compliance and
42


may proceed further in accordance with sub-section (3) of Section 175
after considering the version of the 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 the facts and circumstances of each case
before the judicial magistrate who has to take the call.
Q UESTION (A) : W HETHER THE S INGLE J UDGE EXCEEDED HIS JURISDICTION ?
49. Perusing the prayers in the writ petition, we find that the appellant had
sought directions for registration of an FIR, securing compliance with
this Court’s directions in Lalita Kumari (supra), and for a declaration
that the acts of the police officials were not in the discharge of official
functions and, therefore, not covered by the protection afforded under
Section 175(4), BNSS.
50. Should the Single Judge have entertained the writ petition, interpreted
Section 175(4) and granted relief to the appellant? We think not.
51. As rightly held by the Division Bench, the Single Judge could not have
granted relief that the appellant did not pray. We may profitably refer to
the decisions of this Court in Krishna Priya Ganguly v. University of
30 31
Lucknow , Om Prakash v. Ram Kumar and Bharat Amratlal
32
Kothari v. Dosukhan Samadkhan Sindhi where this Court held that
the writ court will, normally, grant relief that is prayed; and, though

30
(1984) 1 SCC 307
31
(1991) 1 SCC 441
32
(2010) 1 SCC 234
43


discretion to grant relief under Article 226 is wide, the writ court cannot,
ignoring and keeping aside the norms and principles governing grant of
relief, proceed to grant a relief not even prayed by the petitioner.
52. Having prayed for directions in the writ petition to register an FIR and
to secure compliance with the directions made by this Court in Lalita
Kumari (supra) and that too, at a stage, when the JMFC seized of the
application under Section 210 read with sub-section (4) of Section 173,
BNSS had called for a report in exercise of power conferred by sub-
section (4) of Section 175, there was no occasion for the Single Judge
to interpret sub-section (4) and interfere with the proceedings that had
been set in motion pursuant to the order of the JMFC. The Single Judge
would have been justified in interpreting the law if the order of the JMFC,
by which he had called for a report in accordance with sub-section (4)
of Section 175, BNSS been challenged in a petition under Section 528
thereof or even under Article 227 of the Constitution – which is not the
case here. The JMFC having called for a report from the superior police
officer by his order, it was a judicial order passed in exercise of power
conferred by sub-section (4) of Section 175. A three-Judge Bench of this
33
Court in Radhe Shyam v. Chhabi Nath has held that a judicial order
in a civil matter cannot be challenged in a writ petition under Article 226
of the Constitution. In Pradnya Pranjal Kulkarni v. State of
34
Maharashtra , the principle has been extended by this Court to judicial

33
(2015) 5 SCC 423
34
2025 SCC OnLine SC 1948
44


orders passed in criminal matters. Notwithstanding that such a judicial
order could not have been challenged in a writ petition under Article 226
of the Constitution and despite the absence of any challenge to the
JMFC’s order, the Single Judge directed the Magistrate to pass an order
in accordance with the law that such Judge declared. This was plainly
impermissible. Nevertheless, as directed by the Single Judge, the JMFC
proceeded to direct registration of an FIR against the accused persons.
In effect, the Single Judge directed the Magistrate to recall his own order
– which again constitutes exercise of a power unknown to the law of
criminal procedure.
53. We, thus, agree with the Division Bench that the facts before the Single
Judge did not call for an interpretation of sub-section (4) of Section 175,
BNSS.
Q UESTION (B): W HETHER IN THE PRESENT CASE , THE ALLEGED ACTS OF THE
PUBLIC SERVANTS WERE IN THE DISCHARGE OF THEIR OFFICIAL DUTIES
?
54. The answer to this question should well be avoided having regard to the
particular jurisdiction of the High Court, which the appellant had
invoked, coupled with the pendency of the appellant’s application before
the JMFC. We, thus, refrain from so answering lest any observation
prejudicially affects any party to the proceedings before the JMFC.
Invocation of the writ jurisdiction under Article 226 of the Constitution
by the appellant was ill-advised. Not only did the appellant approach the
writ court when proceedings before the JMFC under Section 175, BNSS
45


were underway and thereby indulged in pursuing parallel remedies, no
interference was even merited having regard to the relief claimed.
55. Be that as it may, at the insistence of the parties, we now proceed on a
limited examination as to whether the appellant could at all have sought
any declaratory relief of the nature claimed before the Single Judge in
the writ petition.
56. Although declaratory relief can, inter alia , be sought before a writ court
and granted by it upon establishment of a threatened breach or an
apprehended breach of a legal right at the instance of a respondent,
being a public authority, the nature of declaratory relief prayed by the
appellant could not have been granted by the writ court without a
challenge being mounted to the order of the JMFC calling for a report.
Seeking a declaratory relief that the acts of offence committed by the
accused public servants did not arise in the discharge of official duties
by them without the order of the JMFC (calling for a report) being
challenged would have necessarily required the writ court to embark on
a fact-finding exercise in that behalf, as if it were a court of a magistrate.
A writ court is a court exercising high prerogative writ jurisdiction; such
court could not have been urged by the appellant to convert itself into a
court for conducting sort of a magisterial inquiry. The Single Judge
overlooked this fundamental flaw.
57. Thus, no relief could have been granted by the High Court to the
appellant in exercise of writ jurisdiction.

46


C ONCLUSION
58. As a sequel to our foregoing discussion, we uphold the impugned order
of the Division Bench.
59. After the order of the Single Judge was set aside by the impugned order,
the JMFC has issued notice to the accused under Section 175(4)(b),
BNSS, giving them a chance to state their side of the story. We leave it
open to the appellant to participate in the proceedings before the JMFC
and raise such points that are available to her in law, including that the
actions of the accused police officers were not in discharge of their
official duties and also that without considering the report that has been
th
called for vide the order dated 11 September, 2024, an FIR should be
directed to be registered by the jurisdictional police station. 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.
60. The appeal is disposed of on the aforesaid terms. Parties shall, however,
bear their own costs.

………..…………………J.
(DIPANKAR DATTA)




…………..………………J.
(MANMOHAN)


NEW DELHI;
JANUARY 27, 2026.
47