The Supreme Court of India, in Xxx v. State of Kerala (2026 LiveLaw (SC) 85), has delivered its first major interpretation of Section 175 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which replaces the erstwhile Section 156(3) of the Code of Criminal Procedure. The Bench of Justice Dipankar Datta and Justice Manmohan held that where the alleged offence arises during discharge of official duties, magistrates may direct investigation under Section 175(4) only after the prescribed procedural safeguards are satisfied.
Background
The BNSS, which replaced the CrPC with effect from July 1, 2024, introduced Section 175 as the successor provision to CrPC Section 156(3), but with significant structural differences. Under the prior regime, any complainant could approach a Magistrate under Section 156(3) CrPC seeking a direction for police investigation, and courts had evolved extensive jurisprudence on when such directions were appropriate.
Section 175 of the BNSS introduces a layered procedural framework for complaints against public servants. Sub-section (3) mandates that complaints alleging offences committed by public servants during the discharge of official duties must first be lodged in writing, accompanied by an affidavit, before the Superintendent of Police. Sub-section (4) then provides that the Magistrate may order an investigation only after obtaining a report from the public servant's superior officer. The legislative intent appears to be the creation of a preliminary filter before judicial machinery is engaged against public functionaries.
Key Holdings
Mandatory Threshold Under Section 175(3): The Court held that complaints against public servants alleging offences arising from the discharge of official duties must comply with the threshold requirement under Section 175(3) of the BNSS. This requires the complainant to submit a written complaint supported by an affidavit to the Superintendent of Police before approaching the Magistrate.
Discretionary Power Under Section 175(4): The Bench clarified that the Magistrate's power to order investigation under Section 175(4) is discretionary and not mandatory. The Court observed that the statutory language employs "may" rather than "shall," indicating that even upon receipt of the superior officer's report, the Magistrate retains the discretion to determine whether an investigation is warranted.
Prior Compliance Is a Precondition: The Court emphasised that the procedural requirements under Section 175(3) constitute a precondition to the exercise of the Magistrate's power under Section 175(4). A Magistrate cannot bypass the requirement of obtaining the superior officer's report when the complaint involves conduct in the discharge of official duties.
Departure From CrPC Section 156(3) Framework: The Bench recognised that Section 175 of the BNSS represents a deliberate legislative departure from the relatively unrestricted access that CrPC Section 156(3) afforded to complainants. The new framework introduces a calibrated process designed to provide a measure of insulation for public servants acting in their official capacity.
Implications for Practitioners
Practitioners should note that this decision establishes the first authoritative judicial guidance on the procedural safeguards embedded in Section 175 of the BNSS. Criminal law practitioners filing complaints against public servants must now ensure strict compliance with the written complaint and affidavit requirement before the Superintendent of Police as a necessary precondition, failing which the Magistrate may decline to entertain the matter.
For counsel representing public servants, this judgment provides a potent preliminary objection. Any complaint that bypasses the Section 175(3) threshold can be challenged as procedurally deficient at the very inception.
Defence practitioners should also note the Court's characterisation of the Magistrate's power as discretionary. Even where all procedural prerequisites are met, the Magistrate is not compelled to order an investigation. This creates an additional layer of judicial scrutiny that did not exist in the same form under the CrPC regime.
Significantly, practitioners engaged in the transition from CrPC to BNSS jurisprudence should carefully distinguish between the two frameworks when relying on precedent. Judicial decisions interpreting Section 156(3) CrPC may have limited applicability given the materially different structure of Section 175 BNSS.
Source: Xxx v. State of Kerala, 2026 LiveLaw (SC) 85 (Supreme Court of India, January 27, 2026). This article is based on a publicly available judicial decision. Veritect Legal Intelligence does not guarantee the completeness or continued accuracy of this information and recommends consulting the full judgment and seeking independent legal advice for specific matters.