Section 175(4) of BNSS

Source: Supreme Court 

Why in News? 

The bench of Justices Dipankar Datta and Manmohan in the case of XXX v. State of Kerala & Ors. (2025) issued comprehensive guidelines to Magistrates on Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), clarifying when and how to seek superior officer reports before ordering investigation against public servants. 

What was the Background of XXX v. State of Kerala & Ors. (2025) Case? 

• A woman alleged that she was sexually assaulted on three occasions by police officers while pursuing a complaint relating to a property dispute. 
• After the police filed a report terming her allegations as "untrue", she approached the Judicial Magistrate First Class (JMFC) under Section 210 BNSS read with Section 175, seeking directions for registration of an FIR. 
• Invoking Section 175(4), the Magistrate called for a report from the superior officer of the accused police personnel. 
• While those proceedings were pending, the woman moved the Kerala High Court by way of a writ petition. 
• A Single Judge allowed the petition, holding that Section 175(4) was not mandatory in cases involving serious offences such as rape and directed the Magistrate to order registration of an FIR. 
• However, a Division Bench of the High Court reversed the Single Judge decision, observing that interference under Article 226 of the Constitution was inappropriate when statutory proceedings before the Magistrate were already pending. 
• This led to an appeal before the Supreme Court. 

What were the Court's Observations? 

• The Supreme Court affirmed the Division Bench order, holding that the Single Judge erred in interfering with the magistrate's decision to seek a superior official's report in compliance with Section 175(4) of BNSS. 
• Two-fold Safeguard for Public Servants: 
• The Court explained that Section 175(4) introduces a two-fold safeguard: 
  • First, at the investigation stage, the Magistrate must call for a report from the superior officer and afford an opportunity of hearing to the accused public servant. 
  • Second, at the stage of taking cognizance, a sanction under Section 218(1) BNSS would ordinarily be required, subject to statutory exceptions for certain categories of offences such as sexual offences. 
• Interpretation of "may": 
  • The Court noted that Section 175(4) uses the modal verb "may" and not "shall". The Court held that "may" has to be read as "may" itself, bearing an element of discretion, and not as "shall". 
• Guidelines for Magistrates: 
  • Upon receiving a complaint under Section 175(4) alleging commission of an offence by a public servant arising in the course of discharge of official duties, the magistrate may do either of the following: 
  • Option 1: 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 Section 175(4) of calling for reports from the superior officer and the accused public servant. 
  • Option 2: 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 servant arose in course of discharge of official duties, such magistrate might err on the side of caution and proceed to follow the procedure prescribed in Section 175(4). 
  • Option 3: 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 Section 175(4) are not attracted, the complaint may be dealt with in accordance with the general procedure prescribed under Section 175(3). 
• Authority to Reject Frivolous Complaints: 
  • The Court clarified that the judicial magistrate would continue to retain the authority to reject an application under Section 175(3), 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, such an order of rejection ought not to be based on whims and fancy but must have the support of valid reasons. 
• Non-submission of Superior Officer Report: 
  • The Court addressed situations where the superior officer fails to submit the report within a reasonable period. In such unlikely events, the judicial magistrate is not obliged to wait indefinitely and may proceed further in accordance with Section 175(3) after considering the version of the accused public servant under Section 175(4)(b), if on record. What would constitute 'reasonable time' must depend upon the facts and circumstances of each case. 
• Mandatory Affidavit Requirement: 
  • A key ruling of the judgment is that even complaints invoking Section 175(4) must be supported by an affidavit. Although the text of sub-section (4) refers only to a "complaint", the Court held that the term must be understood contextually and harmonised with Section 175(3), which expressly mandates an affidavit. 

What is Section 175 of BNSS? 

Section 175 BNSS – Police Officer’s Power to Investigate Cognizable Case: 

• The officer in charge of a police station may investigate a cognizable offence without prior permission of a Magistrate. 
• Such investigation can be conducted for offences which a court having jurisdiction over the local area can inquire into or try. 
• Superintendent of Police (SP) may, considering the nature and gravity of the offence, direct that the investigation be conducted by a Deputy Superintendent of Police (DSP). 
• Validity of investigation protected: 
  No proceedings of a police officer shall be questioned merely on the ground that the officer was not empowered to investigate the case. 
• A Magistrate empowered under Section 210 BNSS may order investigation: 
  • After considering an application supported by an affidavit under Section 173(4), and 
  • After making such inquiry as deemed necessary and considering the police officer’s submission. 
• In cases involving a complaint against a public servant arising during discharge of official duties, the Magistrate may order investigation only after: 
  • Receiving a report from the superior officer of the public servant, and 
  • Considering the version/explanation of the public servant regarding the incident. 
• Key Change: 
  Section 175 BNSS replaces Section 156 of the CrPC, introducing additional safeguards, particularly in cases involving public servants. 

What are the Safeguards Introduced by Section 175 of BNSS? 

• The following are the new changes which are introduced in the form of safeguards to prevent abuse of process of law: 
  • Firstly, 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). 
  • Secondly, the Magistrate has been empowered to conduct such enquiry as he deems necessary before making an order directing registration of FIR. 
  • 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). 
• It is to be noted that Section 175 (3) of BNSS is a result of law laid down by the judicial decisions over the years. 
• In the case of Priyanka Srivastava v. State of U.P. (2015) the Court held that prior to making an application to the Magistrate under Section 156(3) of the CrPC, the applicant must necessarily make applications under Sections 154(1) and 154(3). 
  • It was further observed by the Court that applications made under Section 156(3) of the CrPC must necessarily be supported by an affidavit sworn by the applicant. 
  • The reason given by the Court for introducing such a requirement was that applications under Section 156(3) of the CrPC were being made in a routine manner and in a number of cases only with a view to cause harassment to the accused by registration of FIR.