The Supreme Court of India.
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New Delhi: The Supreme Court has held that a plea filed before a magistrate alleging commission of offences by public servants in discharge of their official duties must also be supported by an affidavit.
A bench of Justices Dipankar Datta and Manmohan made the clarification in respect of sub-section (4) of Section 175 of the Bhartiya Nagrik Suraksha Sanhita in a judgment rendered on January 27, 2026.
In the case of public servants, where the allegation is that an offence was committed in the course of the discharge of official duties, the law now provides a two-tier protection, the court noted.
The first operated at the threshold stage, in the form of additional safeguards under sub-section (4) of Section 175 (when a prayer is made seeking an order for investigation against a public servant), and next under sub-section (1) of Section 218 (before cognizance is taken of the offence alleged). The second tier operates at the stage of taking cognizance when the “previous sanction” of the concerned government is required, the bench added.
The court also pointed out, when the authenticity of allegations against a judicial officer is required to be supported by an affidavit, there exists equal justification to insist upon a similar requirement in the case of public servants as well.
"No rational basis is discernible for drawing a distinction with regard to the insistence on an affidavit. The object underlying such a requirement is common in both cases, namely, to weed out false, frivolous, or vexatious complaints and to strike a balance between bringing public servants to book and protecting them against abuse of the judicial process,'' the bench said.
The court upheld the Kerala High Court's division bench judgment that set aside the orders by a single judge bench and also of the judicial magistrate directing registration of an FIR against the police officers on a woman's plea alleging sexual assault by three police officers on separate occasions between January, 2022 and August, 2022 when she was pursuing a complaint relating to a property dispute.
In the matter, the court found after the division bench order, the magistrate issued notice to the accused under Section 175(4)(b), BNSS, giving them a chance to state their side of the story.
"We leave it open to the appellant (woman) to participate in the proceedings before the magistrate and raise such points that are available to her in law, including that the actions of the accused police officers were not in discharge of their official duties and also that without considering the report that has been called for by the order of September 11, 2024, an FIR should be directed to be registered by the jurisdictional police station,'' the bench said.
The court also said the magistrate must first satisfy himself that the application under Section 175(3), BNSS is accompanied by an affidavit sworn or affirmed in accordance with the terms of Section 333 thereof.
In the judgment, Justice Datta for the bench wrote, "The BNSS being a statute of recent origin, which has been enacted after exactly half a century of its precursor (the CrPC) governing the field of criminal procedure, one would have expected the legislative drafting thereof to be of the highest order with clear expression of the will of the people. Sadly, Section 175, BNSS is somewhat confusing and requires ironing out the creases in the legislation without altering the material of which it is woven.''
The court said, since sub-section (4) of Section 175 merely provides an additional protective layer in cases involving public servants, all mandatory procedural requirements governing the exercise of power under subsection (3) of Section 175 must necessarily be complied with.
"A complaint against a public servant, which triggers the procedure under sub-section (4) must, in our view, be also founded on an affidavit,'' the bench said.
The court noted Sub-section (4) of Section 175 of the BNSS is a provision that was absent in the CrPC. The legislative intention behind insertion of sub-section (4) of Section 175 is clear: the Parliament intended it as an additional safeguard for public servants when a complaint is made against them, the bench said.