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The Supreme Court’s recent interpretation of Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has triggered an important debate in Indian criminal procedure: has the Court, in the name of procedural discipline, made it harder for citizens to complain against public servants?
In XXX v. State of Kerala & Ors., the Court held that Section 175(4) BNSS is not a standalone provision and must be read harmoniously with Section 175(3). Consequently, a complainant alleging misconduct by a public servant must first exhaust remedies under Section 173 BNSS—by approaching the police and then the Superintendent of Police (SP) through a written, affidavit-supported complaint—before seeking judicial intervention from a Magistrate.
While the ruling aims to prevent frivolous litigation, it raises serious concerns regarding access to justice, statutory interpretation, and accountability of public servants, particularly police officials.
Understanding the Statutory Framework Under BNSS
Section 173 BNSS: The First Point of Contact
Section 173 lays down the primary procedural route for reporting a cognisable offence. It mandates that:
- The complainant must approach the local police for registration of an FIR.
- If the police fail to act, the complainant must then approach the SP with a written complaint supported by an affidavit, affirming the truthfulness of the allegations.
This affidavit requirement, rooted in the Supreme Court’s decision in Priyanka Srivastava v. State of U.P. (2015), was designed to curb misuse of criminal law through false or motivated complaints.
Section 175(3) BNSS: Magistrate’s Power to Order Investigation
Section 175(3) (akin to Section 156(3) CrPC) empowers a Magistrate to direct a police investigation—but only after the complainant demonstrates compliance with Section 173.
Thus, exhaustion of police remedies and filing of an affidavit are statutory preconditions under this provision.
Section 175(4) BNSS: A New Mechanism for Complaints Against Public Servants
Unlike the CrPC, Section 175(4) BNSS is a newly introduced provision, specifically addressing complaints against public servants for acts committed in the discharge of official duties.
It provides two built-in safeguards:
- The Magistrate must call for a report from the superior officer of the accused public servant.
- The public servant must be given an opportunity of being heard before any direction for investigation is issued.
On its face, Section 175(4) appears to be a self-contained mechanism, crafted to balance accountability with protection against vexatious prosecution.
The Supreme Court’s Interpretation: Reading Section 175(4) With Section 175(3)
The Supreme Court held that Section 175(4) cannot operate independently and that a complainant must satisfy the procedural threshold of Section 175(3), including the affidavit requirement and prior approach to the police hierarchy.
In practical terms, this means:
- A complainant cannot directly approach a Magistrate under Section 175(4).
- Even when alleging misconduct by a public servant, the complainant must first approach the police and SP, and prove that these remedies failed.
This interpretation effectively judicially imports conditions into Section 175(4) that the provision does not expressly contain.
Doctrine of Casus Omissus: Has the Court Gone Too Far?
A key concern arising from the judgment is its compatibility with the doctrine of casus omissus, which holds that courts cannot supply omissions in a statute.
In Padma Sundara Rao v. State of Tamil Nadu (2002), the Supreme Court held that where the language of a statute is clear and unambiguous, courts must give effect to it as written, without adding words or conditions.
Section 175(4) BNSS:
- Does not mention any affidavit requirement.
- Does not mandate prior recourse to Section 173 remedies.
- Independently prescribes a detailed procedure for Magistrates.
If Parliament intended Section 175(4) to be subject to the same conditions as Section 175(3), it could have said so explicitly—just as it did in Section 175(3). Reading additional requirements into a clear provision risks crossing the line between interpretation and legislation.
Does the Judgment Undermine the Purpose of Section 175(4)?
One of the strongest criticisms of the ruling is that it may defeat the very rationale behind introducing Section 175(4).
Requiring complainants to first approach:
- The local police, and
- The Superintendent of Police,
even when allegations are against police officers or other public servants, may render the remedy illusory. It compels complainants to seek redress from the very institutional hierarchy implicated in the alleged wrongdoing.
Section 175(4) was arguably introduced to fill this structural gap, allowing judicial scrutiny at an earlier stage while still safeguarding public servants through:
- A superior officer’s report, and
- A pre-investigation hearing.
By superimposing Section 175(3)’s thresholds, the Court may have added an extra layer of insulation for public servants beyond what Parliament envisaged.
Overreliance on Priyanka Srivastava?
The judgment heavily relies on Priyanka Srivastava, a case decided in the context of Section 156(3) CrPC. However, that precedent addressed general misuse of Magistrate-directed investigations, not a special statutory mechanism targeting public servant misconduct.
Applying Priyanka Srivastava wholesale to Section 175(4) overlooks the distinct legislative context of BNSS, where Parliament consciously introduced a new, calibrated process.
Treating Section 175(4) as merely an extension of Section 175(3) risks collapsing its independent statutory purpose.
Conclusion: Discipline or Deterrence?
There is no doubt that the Supreme Court’s interpretation strengthens procedural discipline and guards against frivolous or vindictive complaints. However, it also raises uncomfortable questions about:
- Judicial overreach,
- Dilution of legislative intent, and
- Access to remedies against official misconduct.
By reading additional preconditions into Section 175(4) BNSS, the judgment arguably ventures close to judicially filling a legislative gap, contrary to settled principles of statutory interpretation.
Whether this balance ultimately protects the system or shields misconduct will depend on how lower courts and Magistrates apply this precedent. What is clear, however, is that the decision has significantly raised the procedural threshold for citizens seeking accountability from public servants under the BNSS.
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