Introduction:

In XXX versus State of Kerala & Others, reported as 2026 LiveLaw (SC) 85, the Supreme Court of India examined the scope and inter-relationship of sub-sections (3) and (4) of Section 175 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and clarified whether a Magistrate can directly entertain a complaint against a public servant without the complainant first approaching the Superintendent of Police with a written complaint supported by an affidavit; the case arose from proceedings where a complainant had invoked Section 175(4) before the Magistrate alleging commission of cognisable offences by a public servant in discharge of official duties, and the core legal issue before the Bench of Justice Dipankar Datta and Justice Manmohan was whether Section 175(4) operates independently, permitting even oral complaints, or whether it must be read as procedurally linked to Section 175(3), thereby importing the safeguards laid down in Priyanka Srivastava v. State of U.P. (2015) which mandate a written application supported by an affidavit after first approaching the Superintendent of Police; the Court was thus called upon to interpret the statutory architecture of the new criminal procedure code, assess legislative intent, prevent procedural abuse, and ensure that accountability of public servants is balanced with safeguards against frivolous and motivated complaints.

Arguments:

The complainant’s side contended that Section 175(4) of the BNSS is an independent provision specifically crafted for cases involving allegations against public servants acting in discharge of official duties, and that the legislature deliberately used the expression “complaint” in sub-section (4) without importing the affidavit requirement expressly stated in sub-section (3); it was argued that since sub-section (4) does not expressly require an affidavit or prior approach to the Superintendent of Police, the Magistrate is empowered to act even on a simple complaint, including an oral one, particularly where allegations involve abuse of official power and where immediate judicial oversight may be necessary to protect citizens from state excesses; it was further submitted that reading sub-section (4) as dependent on sub-section (3) would unduly restrict access to justice and could result in genuine complaints being delayed or frustrated at the police hierarchy level, especially when allegations are against influential officials; reliance was placed on the textual distinction between the two sub-sections, emphasizing that while sub-section (3) speaks of “an application supported by an affidavit”, sub-section (4) merely uses the term “complaint”, and therefore the legislature must be presumed to have intended a different procedural route; it was also argued that the BNSS, being a new enactment, reflects legislative reconsideration of procedural safeguards and that importing judicially created safeguards from Priyanka Srivastava into sub-section (4) would amount to judicial legislation, contrary to the plain wording of the statute; additionally, it was contended that public servants should not enjoy an extra procedural shield beyond what is statutorily provided, and that requiring citizens to first approach senior police officers may not be effective when allegations concern misuse of official machinery itself, thereby making direct recourse to the Magistrate a necessary democratic safeguard.

On the other hand, the State and supporting respondents argued that Section 175 must be read as a cohesive procedural scheme and not in fragmented isolation, and that sub-section (4) is not a free-standing provision but an extension of the power already conferred on Magistrates under sub-section (3); it was submitted that the structure of Section 175 clearly indicates that the power to order investigation flows primarily from sub-section (3), which itself is conditioned upon prior recourse to the Superintendent of Police under Section 173(4) and a sworn affidavit, and sub-section (4) merely adds an additional layer of scrutiny when the allegations are against a public servant acting in official capacity; the State emphasized that allowing direct complaints under sub-section (4) without affidavit would create an anomalous situation where a complainant could bypass both the police supervisory hierarchy and the affidavit safeguard, thereby defeating the very purpose of judicial caution articulated in Priyanka Srivastava, which was to curb frivolous, vindictive, and motivated litigation; it was further argued that the affidavit requirement is not a mere technicality but a substantive safeguard that places legal responsibility on the complainant and deters false allegations, especially in cases involving public servants whose official actions are frequently challenged; the respondents also highlighted that BNSS has retained the essential procedural philosophy of the earlier Code of Criminal Procedure while reorganizing provisions, and that legislative intent cannot be read as diluting safeguards that the Supreme Court had already recognized as integral to responsible invocation of Magistrate’s powers; additionally, it was submitted that public servants acting in discharge of official duties require institutional protection from vexatious litigation, and therefore the requirement of prior verification through superior officers and sworn statements is both reasonable and constitutionally justified; lastly, the respondents argued that interpreting sub-section (4) as independent would undermine statutory hierarchy, disrupt investigative discipline, and overload Magistrates with matters that could be resolved administratively at the supervisory police level.

Judgment:

The Supreme Court categorically rejected the interpretation that Section 175(4) operates independently and held that sub-sections (3) and (4) of Section 175 are not isolated silos but must be read harmoniously as part of a single procedural continuum, with sub-section (4) functioning as a special procedural extension applicable when allegations are made against public servants in discharge of official duties; the Court held that the power to order investigation is primarily conferred by sub-section (3), which mandates that before approaching the Magistrate, the aggrieved person must first approach the Superintendent of Police under Section 173(4) and must thereafter file an application supported by an affidavit, and this threshold requirement is mandatory and not merely directory; the Bench reiterated that the remedy before the Superintendent of Police is a compulsory precondition to invoking the jurisdiction of the Magistrate, and failure to comply with this statutory step renders the Magistrate incompetent to entertain the request for investigation; addressing the textual argument based on the use of the word “complaint” in sub-section (4), the Court held that this expression cannot be read to include oral complaints, and must derive its meaning from the context of sub-section (3), meaning thereby that the complaint contemplated under sub-section (4) is also in the nature of a written application supported by an affidavit; the Court reasoned that if sub-section (4) were interpreted as a standalone route permitting direct access to Magistrates without affidavit and without approaching the Superintendent of Police, it would allow complainants to circumvent the carefully structured statutory hierarchy, leading to anomalous and unintended results that would be contrary to legislative intent; the Bench emphasized that statutory interpretation must avoid constructions that produce absurdity or render other provisions redundant, and treating sub-section (4) as independent would effectively neutralize the safeguards built into sub-section (3); the Court also reaffirmed the continued relevance of the principles laid down in Priyanka Srivastava v. State of U.P., holding that the requirement of affidavit is a substantive safeguard against abuse of criminal process and continues to apply with full force under the BNSS framework; additionally, the Court advised Magistrates that in cases involving allegations against public servants relating to acts performed in discharge of official duties, it is not only necessary to insist on compliance with Section 175(3) but also to call for a report from the superior officer, thereby ensuring institutional verification before judicial directions for investigation are issued; summarizing its conclusions, the Court held that Section 175(4) does not permit bypassing Section 175(3), that the Magistrate’s power to order investigation is conditioned upon prior approach to the Superintendent of Police and a sworn affidavit, that complaints under sub-section (4) must be written and supported by affidavit, and that procedural safeguards are essential to protect both the integrity of criminal process and the functioning of public administration; consequently, the Court clarified the legal position that no Magistrate can entertain or act upon a complaint against a public servant under Section 175(4) unless the complainant has first complied with the mandatory requirements of Section 175(3), thereby reinforcing procedural discipline and judicial caution in matters involving public officials.