The Supreme Court has held that any complaint seeking a court-ordered investigation against a public servant under the Bharatiya Nagarik Suraksha Sanhita must be filed in writing and supported by an affidavit to prevent misuse and ensure accountability.
The Supreme Court that any complaint requesting a court-ordered investigation against a public servant under the Bharatiya Nagarik Suraksha Sanhita (BNSS) must be submitted in writing and accompanied by an affidavit.
Justice Dipankar Datta and Justice Manmohan emphasized that Section 175(4), a newly added provision in the BNSS, must be read alongside Section 175(3), which explicitly necessitates an affidavit.
The Court stated that this provision should not be interpreted in a way that undermines procedural safeguards at the early stages of the criminal process.
Although Section 175(4) mentions complaint, the Court clarified that it does not allow for oral complaints when a judicial magistrate is asked to initiate an investigation.
Moreover, once a magistrate issues a judicial order under Section 175(4), this order cannot be challenged through a writ petition under Article 226, the Court noted.
The Court made these remarks in support of a Kerala High Court Division Bench’s ruling that overturned a single-judge’s order for registering a first information report (FIR).
The Supreme Court concluded that the single-judge of the High Court exceeded his authority by intervening while the matter was still before the magistrate under Section 175 BNSS and by directing actions that were not requested.
Regarding the interpretation of this provision, the Court stated that Section 175(4) needs to be understood in a way that requires a written complaint backed by an affidavit.
The Court explained,
“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.”
The Bench further clarified that the statutory definition of complaint under the BNSS, which includes oral complaints, cannot be applied without consideration in the context of Section 175(4).
The Court stressed that a stricter interpretation is necessary,
“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.”
The two-judge bench emphasized that the provision does not function independently or merely as a supplementary clause to Section 175(3); instead, it serves as an extension of that section.
The judgment stated,
“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),”
Additionally, the affidavit accompanying an application under Section 175 must adhere strictly to the requirements of Section 333 of the BNSS, which outlines how affidavits should be sworn and the content they may include.
The bench noted,
“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,”
The Supreme Court also provided a structured framework for magistrates handling complaints against public officials under Section 175. It stated that upon receiving such a complaint, magistrates may proceed in one of three ways, depending on the relationship of the alleged act to official duty.
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The judgment elaborated,
“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…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…Or, on a consideration of the complaint, where the judicial magistrate entertains a prima facie doubt…Or, where the judicial magistrate is satisfied that the alleged act of offence was not committed in the discharge of official duties… the complaint may be dealt with in accordance with the general procedure prescribed under sub-section (3) of Section 175,”
The appeal was settled with the Court allowing the complainant to seek remedies before the relevant magistrate according to the laid-out procedures under Section 175 BNSS.
Case Title: XXX vs State of Kerala