Section 175(4) BNSS | Affidavit Is Not Optional — Even Complaints Against Public Servants Must Follow Procedural Rigour: Supreme Court

“Sub-sections (3) and (4) of Section 175 are not isolated silos. Section 175(4) is not a standalone provision — it is a procedural safeguard, not a shortcut to investigation”, In a landmark interpretation of the newly enacted Bharatiya Nagarik Suraksha Sanhita, 2023, the Supreme Court on January 27, 2026, laid down the definitive procedure to be followed by Judicial Magistrates when dealing with complaints against public servants, especially in cases alleging sexual offences. Dismissing the appellant’s plea for immediate registration of FIRs, the Court held that Section 175(4) BNSS is not an independent route to investigation but an extension of Section 175(3) — and both must be read harmoniously.

The Court categorically ruled, “It is illogical that a Magistrate would be precluded from ordering investigation against a person who is not a public servant without an affidavit... but may do so against a public servant without needing the informant to swear to the allegations.”

“A Complaint Is Not Enough — Without Affidavit, Magistrate Cannot Proceed Even Against Public Servants”

The case arose out of disturbing allegations of sexual assault by senior police officers, who the appellant claimed had abused their authority during the pendency of a property dispute. After initial complaints to police authorities yielded no FIR, she moved the Judicial Magistrate First Class (JMFC), Ponnani, under Section 210 read with Sections 173(4) and 175(4) BNSS, seeking registration of an FIR.

Though the JMFC had called for a report from the Deputy Inspector General of Police under Section 175(4), the appellant simultaneously moved the Kerala High Court under Article 226, seeking a declaration that Section 175(4) was inapplicable in cases involving sexual offences, arguing that such acts were not committed “in discharge of official duty.”

The High Court’s Single Judge accepted the argument, holding that Section 175(4) was merely directory, and directed the JMFC to proceed with the FIR. However, this decision was overturned by a Division Bench, prompting the appellant’s special leave petition before the Supreme Court.

“Section 175(4) is Not a Legal Loophole — It's a Safeguard Against Vexatious Prosecution of Public Servants”

In a detailed judgment delivered by a Bench comprising Justice Dipankar Datta and Justice Manmohan, the Supreme Court refused to entertain the notion that Section 175(4) created a separate channel for directing investigation against public servants.

The Court observed, “If sub-section (4) were to be read in isolation, it would allow complainants to bypass mandatory statutory steps, such as the affidavit requirement under Section 175(3) — a reading that Parliament clearly never intended.”

In doing so, the Court resoundingly upheld the principle laid down in Priyanka Srivastava v. State of U.P., declaring that no Magistrate can order an investigation on a bare complaint, even if the accused is a public servant.

Quoting Priyanka Srivastava, the Court reiterated, “A stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit... to make the applicant more responsible.”

“Writ Courts Are Not Substitute for Magistrates — Single Judge’s Intervention Was Jurisdictionally Flawed”

The Court also came down heavily on the Kerala High Court’s Single Judge, holding that he exceeded jurisdiction by interfering in pending criminal proceedings and interpreting Section 175(4) without even a challenge to the JMFC’s order.

“The writ court could not convert itself into a court for conducting a magisterial inquiry,” the Bench held, adding that the relief granted by the Single Judge — directing FIR registration and essentially nullifying the JMFC’s judicial order — was wholly impermissible in writ jurisdiction.

The Court made it abundantly clear: “The High Court, while exercising its writ jurisdiction, could not have directed the Magistrate to recall his own judicial order — a power unknown to criminal procedure.”

“Lalita Kumari Does Not Override BNSS — Once Complaint Reaches Magistrate, Statutory Procedure Takes Over”

The appellant had placed strong reliance on the Supreme Court’s Constitution Bench decision in Lalita Kumari v. Government of UP, contending that once a complaint disclosed a cognizable offence, FIR registration was mandatory. The Court clarified that Lalita Kumari governs police discretion under Section 173, not magisterial procedure under Section 175.

“There is no conflict between Lalita Kumari and Section 175 BNSS. The moment a complainant approaches the Magistrate, it is the statutory framework under Sections 175(3) and 175(4) that governs, not the directions in Lalita Kumari,” the Court explained.

“Public Servants Enjoy Threshold Protection — But It’s Not a Shield Against Genuine Prosecution”

While upholding the procedural protection for public servants under Section 175(4), the Court clarified that such protection exists only at the stage of pre-investigation. Whether or not the alleged act was done “in the discharge of official duty” is a matter of factual inquiry and cannot be pre-determined by a writ court.

“Whether the alleged acts arose in discharge of official duties requires factual assessment — the writ court cannot undertake magisterial fact-finding,” the Court noted, declining the appellant’s prayer to declare that sexual offences are never in discharge of duty.

Instead, the Court left it open for the JMFC to assess this question under the statutory process and directed that, “if the complaint is found to be in order, accompanied by an affidavit as required under Section 333 BNSS, the Magistrate may proceed in accordance with law.”

“Magistrate Must Apply Both Sub-sections (3) and (4) of Section 175 in Tandem — The Law Is Not a Buffet”

Summing up the procedural framework, the Court offered guidance to all Judicial Magistrates:

“If a complaint alleges commission of an offence by a public servant arising in the discharge of official duties, the Magistrate must not bypass Section 175(4). Where in doubt, he must err on the side of caution. Where the act clearly has no nexus with official duty, the Magistrate may proceed under Section 175(3).”

At the same time, the Bench warned that the requirement of an affidavit is not negotiable, stating, “An oral complaint cannot form the basis for initiating criminal investigation against public servants... unless it is transformed into a written complaint supported by an affidavit.”

Judgment Sets the Standard for BNSS Interpretation Going Forward

With this judgment, the Supreme Court has laid the first authoritative interpretation of Section 175 BNSS, and in doing so, balanced the competing demands of due process and victim protection.

The Court dismissed the appeal but clarified that the appellant was at liberty to pursue her complaint in accordance with law. The JMFC has already issued notice to the accused officers under Section 175(4)(b) and is expected to continue the proceedings, but only after verifying the existence of a proper affidavit under Section 333 BNSS.

Date of Decision: January 27, 2026