Compliance with Mandates under Section 175(4) and Section 218 BNSS is Condition Precedent for Investigating Public Servants.

The Applicant, a Member of the Legislative Assembly (MLA), was accused of unauthorizedly constructing a hall and commercial premises on MHADA-reserved plots using public funds and subsequently renting them out

On December 17, 2025, the Special Judge, Greater Bombay, forwarded the complaint to the Anti-Corruption Bureau (ACB) for investigation under Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS)

The Applicant challenged this order on the grounds that it was passed without a prior report from a superior officer, without a hearing, and without the mandatory prior sanction required for public servants

1. Whether the Special Judge followed the mandatory procedure prescribed under Section 175(4) of the BNSS before directing an investigation against a public servant

2. Whether the impugned order violated Section 218 of the BNSS regarding the requirement of prior sanction before taking cognizance of an offence against a public servant

3. Whether the Special Judge failed to comply with the notice requirements under Section 223(2) of the BNSS

The court primarily applied Section 175(3) and 175(4) of the BNSS, which mandates that orders against public servants require a report from a superior officer and the consideration of the public servant’s assertions

It relied on the principle from Priyanka Srivastava & Anr. v. State of U.P. (interpreting the pari materia Section 156(3) CrPC), establishing that remedies under Section 173 (erstwhile 154 CrPC) must be exhausted and supported by an affidavit

Section 218 of the BNSS prohibits a court from taking cognizance against a public servant without prior sanction from the Government

Section 223(2) mandates notice to the proposed accused before taking cognizance

The Court found that the Special Judge jumped to directing an investigation based solely on a MHADA letter without adhering to the procedural safeguards of the BNSS

Specifically, the Magistrate failed to call for a report from the Applicant’s superior officer as required by Section 175(4)(a) and failed to hear the Applicant’s version as required by Section 175(4)(b)

The Court noted that the complainant had approached the ACB and the Additional CP on the same day, failing to demonstrate the exhaustion of remedies required under Section 173

Additionally, the Special Judge ignored the statutory protection under Section 218, which requires prior sanction for acts done in official duty, and violated Section 223(2) by failing to serve notice to the Applicant before passing the order

The High Court quashed and set aside the order dated December 17, 2025, and remanded the matter to the Special Judge, Greater Bombay, for a fresh hearing on its merits in compliance with the law

Consequently, any show-cause notices issued to police authorities pursuant to the quashed order were also set aside