Can Section 175(4) of the BNSS be invoked independently of Section 175(3), and what procedure must a magistrate follow when ordering an investigation against a public servant?

Summary

Practical Impact

What’s New / What Lawyers Should Note

• Section 175(4) must be read with Section 175(3); it cannot be invoked independently or as a mere proviso.
• Complaints under Section 175(4) require a written application supported by an affidavit (per Section 333 BNSS).
• Before ordering investigation, magistrates must:
  • Call for a report from the public servant’s superior officer
  • Afford the public servant an opportunity to be heard
• If no superior officer’s report arrives within a reasonable time, the magistrate may continue under Section 175(3) after hearing the accused.
• The term “complaint” in Section 175(4) excludes oral allegations in practice, aligning procedural safeguards with those in Section 175(3).

Summary of Legal Reasoning

1. Sub-section (3) of Section 175 empowers magistrates to order investigation on an affidavit-supported application under Section 173(4).
2. Sub-section (4) adds a special procedural layer for public servants accused of offences “in course of official duties,” requiring a superior officer’s report and hearing.
3. A standalone or proviso reading of Section 175(4) would conflict with the hierarchy and affidavit safeguard of sub-section (3).
4. Harmonious construction necessitates affidavit, Section 173(4) recourse, and Section 333 compliance.
5. The term “complaint” in Section 175(4) must be confined to written, sworn allegations.
6. A two-tier safeguard emerges: Section 175(4) at the investigation stage, Section 218 (sanction) at the cognizance stage.
7. Magistrates retain discretion to dismiss manifestly untenable applications and to proceed under Section 175(3) if reports are unduly delayed.

Arguments by the Parties

Petitioner (appellant)

• Section 175(4) applies only to offences “in course of official duties,” not to private sexual offences.
• Affidavit requirement in Section 175(3) reflects intent to exclude protection for sexual offences; Section 175(4) must be similarly limited.
• No greater protection at investigation stage than at cognizance (Section 218 proviso excludes sexual offences).
• The magistrate should have ordered FIR registration under Section 175(3) without calling for a report.
• The preliminary police report violated Lalita Kumari’s limits on enquiry scope and lacked written reasons.

Respondents (State and police officers)

• Sections 173(4) and Sections 175(3)–(4) form an integrated escalation mechanism.
• Section 175(4) is an independent safeguard allowing oral complaints.
• BNSS introduces twin safeguards: report/hearing at investigation stage (Section 175(4)) and prior sanction at cognizance (Section 218).
• Preliminary enquiry exposed inconsistencies and possible conspiracy against the officers.
• The alleged rapes occurred during investigatory visits, qualifying as “official duties.”

Factual Background

The appellant, embroiled in a property dispute, alleged she was raped on three occasions by police officers at her home in January and August 2022. A DS P’s report (Oct 2022) found her allegations untrue. In September 2024 she filed complaints anew and an application under Section 210 read with Section 173(4) BNSS; the JMFC (11 Sept 2024) called for a superior officer’s report under Section 175(4). While that application was pending, she filed a writ petition alleging unlawful investigation and sought a declaration that Section 175(4) immunity did not apply. The Single Judge directed FIR registration; the Division Bench reversed.

Statutory Analysis

• Section 173(4) BNSS → Remedy before Superintendent of Police on non-registration of FIR; mandatory precursor to magistrate recourse.
• Section 175(3) BNSS → Magistrate may order investigation on an application supported by an affidavit under Section 173(4).
• Section 175(4) BNSS → Additional procedure for public servants: superior officer’s report + accused’s assertions before investigation.
• Section 218(1) proviso BNSS → Post-investigation safeguard: no sanction required for sexual offences at cognizance, but Section 175(4) protection remains at investigation stage.
• Section 333 BNSS → Affidavit must state facts within deponent’s knowledge or belief, and courts may strike irrelevant matter.

Procedural Innovations

• Two-tier protection: Section 175(4) (report/hearing) → Section 218 (sanction at cognizance).
• Mandatory affidavit under Sections 175(3) and (4), per Section 333 BNSS.
• Hierarchical escalation via Section 173(4) before magistrate intervention.
• Clear magistrate guidelines on rejecting untenable applications and proceeding if reports are delayed.