Whether Act Was in Discharge of Official Duty Is a Question of Fact — Magistrate, Not High Court, Must Decide: Supreme Court Restricts Writ Interference in BNSS Cases

“A writ court cannot undertake magisterial fact-finding — Whether an act was committed in discharge of official duty is a factual issue to be determined by the Magistrate under BNSS”, In a judgment of considerable significance for criminal jurisprudence under the newly enacted Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the Supreme Court declared that whether a public servant committed an offence in the discharge of official duties is a question of fact that must be adjudicated by the Magistrate — not by the High Court under Article 226.

“Whether the alleged acts arose in discharge of official duties requires factual assessment — the writ court cannot undertake magisterial fact-finding,” held a Bench comprising Justice Dipankar Datta and Justice Manmohan, as it declined to grant a declaratory relief sought by a sexual assault complainant against police officers.

The Court emphasized that Section 175(4) BNSS, which prescribes a special procedural safeguard before ordering investigation against public servants, is triggered only when the alleged act occurred in the course of official duty. Determining whether such a nexus exists, the Court held, is not a legal abstraction but a question of fact — and must be decided at the magisterial level, not through a constitutional shortcut.

“Declaratory Relief Without a Factual Foundation Is Impermissible — Writ Court Cannot Assume Role of Trial Court”

The appellant, who had alleged sexual assault by senior police officials during the pendency of a property dispute, approached the High Court under Article 226 seeking a declaration that the accused officers were not acting in discharge of official duties, and that Section 175(4), therefore, did not apply.

The Supreme Court found such a prayer to be misconceived, as it would require the writ court to pre-judge facts that were yet to be determined in the pending proceedings before the Judicial Magistrate First Class (JMFC), Ponnani.

“The nature of declaratory relief prayed by the appellant could not have been granted by the writ court without a challenge being mounted to the Magistrate’s order,” the Court observed.
“Such relief would have necessarily required the writ court to embark on a fact-finding exercise... a function that falls within the exclusive domain of the Magistrate.”

“Public Servant or Private Wrongdoer? The Line Is Factual, Not Presumed”

One of the central arguments raised by the appellant was that acts of sexual assault can never be considered as part of a public servant’s official duty, and thus, no procedural protection under Section 175(4) should apply. The Court, however, refused to issue a blanket ruling on that point, holding that the existence of nexus to official duty is not a matter of assumption, but a context-dependent factual question.

“The distinction between acts committed in official capacity and private wrongdoing by a public servant is a question of evidence — not a constitutional presumption,” the Court noted.

While not denying that many sexual offences by public officials may fall outside the scope of official duties, the Court held that such determination must be made on the basis of evidence before the Magistrate, and not by speculative writ intervention.

“High Court’s Declaration Would Have Pre-Empted Magistrate’s Inquiry — An Unwarranted Judicial Shortcut”

The Supreme Court was particularly critical of the Single Judge of the Kerala High Court, who not only entertained the writ petition but went on to hold that rape could not be treated as an act done in discharge of official duty, thereby implying that Section 175(4) protections were inapplicable.

The Apex Court warned that such overreach could have far-reaching consequences, as it undermines the statutory role of the Magistrate and allows parties to sidestep statutory procedure by securing constitutional declarations.

“Seeking a declaration that the acts of offence committed by public servants did not arise in the discharge of official duties... would have required the writ court to convert itself into a court for conducting a magisterial inquiry. The Single Judge overlooked this fundamental flaw.”

“Proceedings Under BNSS Must Be Respected — Parallel Remedies Before Writ Court Not Permissible”

The Court noted with concern that the writ petition had been filed even as the JMFC had already taken cognizance of the complaint and issued directions under Section 175(4). The Court termed this “parallel remedy” approach as ill-advised, reiterating that litigants must exhaust remedies under the BNSS before invoking writ jurisdiction.

“Invocation of the writ jurisdiction under Article 226 of the Constitution by the appellant was ill-advised. No interference was merited having regard to the relief claimed,” the Court firmly held.

Ultimately, the Court allowed the appellant to continue pursuing her application before the Magistrate, directing that she may raise all contentions available in law — including the argument that the alleged acts were not connected to official duties — before the JMFC, and not elsewhere.

Judicial Discipline and Statutory Deference: A Message to All Courts

This judgment not only protects procedural sanctity under the BNSS but also underscores a broader message — that High Courts must not pre-empt statutory proceedings through declaratory shortcuts, particularly where facts are contested and evidence is yet to be led.

By drawing a clear jurisdictional boundary between fact-finding Magistrates and constitutional courts, the Supreme Court has reinforced the federal design of India’s criminal justice system and ensured that statutory processes under BNSS are given full play.

Date of Decision: January 27, 2026