BNSS Section 175(4): SC Explains Public Servant Safeguard

🗞️ Why in News The Supreme Court observed on 21 October 2026 that Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) expands the safeguards available to public servants before a Magistrate orders an investigation against them, unlike the erstwhile Section 156(3) of the Code of Criminal Procedure (CrPC). A special Bench of Justices Joymalya Bagchi and V. Mohana made the observation while allowing former Kerala Chief Minister Pinarayi Vijayan and other petitioners to pursue their appeal in the Kerala High Court, and said it was not speaking on the merits of the case.

The case before the Bench was about who may appeal, not about guilt. But to explain why a potential accused deserves to be heard, the Court turned to the new criminal procedure code and set out a change every aspirant should know. Section 156(3) of the CrPC did not require the public servant or his superior to be involved before a Magistrate directed an FIR. Under Section 175(4) of the BNSS, where the complaint is against a public servant and arises from official duties, the Magistrate must first receive a report from the officer superior to the public servant and consider the public servant’s own account.

The Case at a Glance

How the Case Reached the Supreme Court

The background: the Enforcement Directorate (ED) supplied information under Section 66(2) of the Prevention of Money Laundering Act (PMLA). Acting on a writ petition filed by K.M. Shajahan, a Single Judge of the Kerala High Court on 9 October 2026 directed the registration of an FIR under the PC Act in the CMRL-Exalogic case. As the Supreme Court read that order, “the single judge has not only directed to register the FIR, but also the commencement of the investigation and the filing of the final report.”

Against that background, on 15 October 2026, a Division Bench of the High Court refused to entertain the petitioners’ appeal. The question that reached the Supreme Court was therefore one of locus: whether the petitioners could even seek leave to appeal against the Single Judge’s direction.

How Section 175(4) Works: Two Steps Before the Order

The new sub-section says that a Magistrate empowered under section 210 “may, upon receiving a complaint against a public servant arising in course of the discharge of his official duties, order investigation, subject to”:

• (a) “receiving a report containing facts and circumstances of the incident from the officer superior to him; and”
• (b) “after consideration of the assertions made by the public servant as to the situation that led to the incident so alleged.”

The Court described the shift in these terms: the scheme for registering an FIR “through judicial intervention” under the BNSS “has undergone a change” from the CrPC. Section 156(3) did not require the involvement of the public servant or his superior; under Section 175(4), “such a requirement has been incorporated”.

CrPC Section 156(3) and BNSS Section 175 Compared

A BNSS-CrPC comparison table hosted on keralaprisons.gov.in states the purpose: sub-section (4) “is newly added to protect public servants in the course of discharge of public duty against undue harassment”.

Locus, Not Merits: Why the Court Cited the Provision

The Bench was explicit that it referred to Section 175(4) “not in reference to the merits of the case” but “to elucidate the expansive jurisdiction envisaged in the new Code with regard to a potential accused” before an FIR is registered. At the hearing, Justice Bagchi put the point this way: “That public servant has the right to have his arguments heard on merits before shutting the door by saying that you have no locus”.

The order then rested locus on what the Single Judge had directed. Starting an investigation under the Prevention of Corruption Act and taking it to its logical conclusion, the Court noted, requires compliance with the other conditions of that special law; these facts, it said, made out a prima facie case of locus for the petitioners to seek leave to appeal against the Single Judge’s judgment.

What the order does:

• Sets aside the Division Bench’s refusal and lets the petitioners pursue their appeal before the Division Bench.
• Stays the investigation for ten days, per the published order. The oral pronouncement in open court had specified seven days; the published order says ten. The stay is not an opinion on interim relief, which the Division Bench may decide independently.
• Keeps the FIR. “We are not against any investigation. We will maintain the FIR but no investigation until and unless the issues are decided by the appellate court,” Justice Bagchi said at the hearing.
• Limits itself to locus. The observations concern only the petitioners’ locus to pursue the appeal, not the merits of the matter.
• Leaves the ED’s case alone. The Court expressed no opinion on the ECIR that the ED registered after the State FIR.

The Hearing: Section 17A and the ED’s Role

At the hearing, the Bench asked how an investigation against a former Chief Minister could proceed without prior approval under Section 17A of the PC Act. The ED’s counsel argued that such approval was not required in court-directed investigations. Justice Bagchi observed that the investigation here was not court-directed but arose from information the ED furnished under Section 66(2) of the PMLA. The order itself records that the registration of the FIR and the start of the investigation followed the High Court’s order.

The Bench said the ED could continue its examination under the PMLA but could not meddle in other agencies’ domain. “Don’t extend your hand beyond your statutory limits,” Justice Bagchi told the agency’s counsel. These were questions and remarks at the hearing: the order does not decide whether Section 17A applies to this case.

Section 17A, inserted into the Prevention of Corruption Act, 1988 by the 2018 amendment, says: “No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval”. The authority must convey its decision within three months, which may be extended by a further month for reasons recorded in writing; no approval is needed for an arrest on the spot on the charge of accepting or attempting to accept any undue advantage. As background, on 13 January 2026, a two-judge Bench of Justices B.V. Nagarathna and K.V. Viswanathan delivered a split verdict on whether corruption investigations against public servants need such prior approval. A separate ruling of 16 October 2026 on Section 17A, in a police constable’s bribery case, was covered in our 20 October 2026 roundup. For context, in Subramanian Swamy v. Director, CBI (2014), a Constitution Bench struck down Section 6A of the Delhi Special Police Establishment Act, 1946, which had required the CBI to obtain the Central Government’s prior sanction before investigating corruption cases against officers of the rank of Joint Secretary and above.

Three Shields for Public Servants

For offences under the PC Act itself, Section 19 adds a parallel bar: no court shall take cognizance of an offence punishable under Sections 7, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the government or authority competent to remove that public servant.

Two Earlier Rulings on the Road to an FIR

Lalita Kumari v. Government of Uttar Pradesh. A Constitution Bench of Chief Justice P. Sathasivam and Justices B.S. Chauhan, Ranjana Prakash Desai, Ranjan Gogoi and S.A. Bobde decided it on 12 November 2013; it is reported as (2014) 2 SCC 1. Its core direction: “Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.”

Priyanka Srivastava v. State of Uttar Pradesh, (2015) 6 SCC 287. A two-judge Bench of Justices Dipak Misra and P.C. Pant held: “a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate.” The BNSS now writes the affidavit into Section 175(3).

Read together, the two rulings and the new code show how the Magistrate’s route to an FIR has been tightened in steps: first a sworn affidavit from the complainant, now, for complaints against public servants over official duties, a superior’s report and the public servant’s own account.

Mains Lens: Shield or Hurdle?

The case for the safeguard. A public servant’s decisions often leave someone aggrieved, and a complaint that turns straight into an investigation can make officers wary of deciding at all. A report from the superior officer and the public servant’s own account give the Magistrate the context of the decision before a probe is ordered. That comparison table frames the sub-section as protection “against undue harassment”.

The concerns. The filter works before any investigation, and the account of the person complained against is weighed at the threshold. Section 175(4) states no time limit for the superior’s report, unlike the 120-day deemed sanction in Section 218 or the three-month limit, extendable by one month, in Section 17A. Stacked one on another, Section 175(4), Section 17A and Section 218 can lengthen the road from complaint to cognizance in corruption cases.

The balance. The safeguard protects the decision, not the decision-maker: it is tied to complaints “arising in course of the discharge of his official duties”. The test for any filter is whether it screens out vexatious complaints without making a genuine one wait indefinitely.

Way Forward

• A time limit for the superior’s report, on the lines of the 120-day deemed sanction in Section 218, would keep the safeguard from turning into delay.
• Clarity on scope. Section 175(4) speaks of “a public servant”, while Section 218 covers a person who is or was one. How the new filter applies to a former office-holder, or to an investigation directed by a High Court in writ jurisdiction, is not settled by the 21 October order, which was limited to locus.
• Settling Section 17A. After the split verdict of 13 January 2026, the question of prior approval for corruption investigations remains open, and it overlaps with the new BNSS filter.
• What to watch: the Kerala High Court Division Bench will hear the appeal; interim relief is for it to decide.

UPSC Relevance

GS Paper 2: Functioning of the judiciary; criminal justice reform under the new criminal laws; accountability and protection of public servants.

Prelims: BNSS Section 175(3) and 175(4); CrPC Section 156(3); BNSS Section 218 and CrPC Section 197 (120-day deemed sanction); PC Act Section 17A and Section 19; Subramanian Swamy (2014, Section 6A of the DSPE Act); Lalita Kumari (2013); Priyanka Srivastava (2015); BNSS in force since 1 July 2024 (enacted in 2023).

Mains: “The Bharatiya Nagarik Suraksha Sanhita adds a safeguard for public servants before a Magistrate orders an investigation. Examine how Section 175(4) differs from Section 156(3) of the CrPC, and discuss whether it balances protection of honest officers with accountability.” (GS2, 250 words)

📌 Facts Corner, Knowledgepedia

Prelims, statement-ready facts:

• BNSS Section 175(4): a Magistrate empowered under section 210 may order investigation on a complaint against a public servant arising from official duties.
• Two conditions: a report on the facts and circumstances from the officer superior, and consideration of the public servant’s assertions.
• CrPC Section 156(3) let a Magistrate empowered under section 190 order an investigation, with no step involving the public servant or superior.
• BNSS, 2023 (Act No. 46 of 2023): assent 25 December 2023; in force from 1 July 2024.
• BNSS Section 218 (earlier CrPC Section 197): previous sanction before a court takes cognizance; deemed granted if no decision in 120 days.
• PC Act Section 17A (inserted in 2018): previous approval before police enquiry into a public servant’s decision or recommendation.
• Lalita Kumari (Constitution Bench, 12 November 2013): FIR registration is mandatory if the information discloses a cognizable offence.
• Priyanka Srivastava (2015): Section 156(3) applications to be supported by an affidavit; BNSS Section 175(3) now requires one.
• Order of 21 October 2026: special Bench of Justices Joymalya Bagchi and V. Mohana.

Prelims, the traps:

• The Court observed; it did not rule on merits. It cited Section 175(4) only to explain a potential accused’s position before an FIR.
• The stay is ten days in the published order (the oral pronouncement said seven), and it stays the investigation, not the FIR.
• Section 175(4) is new: CrPC Section 156(3) had no such condition, so it is not a renumbered old clause.
• Sanction under Section 218 works when a court takes cognizance; Section 175(4) works earlier, before a Magistrate orders an investigation.
• Section 17A was a question at the hearing; the order did not apply it to this case.

Mains, arguments and keywords:

• Keywords: procedural safeguard, undue harassment, locus, judicial intervention, potential accused, layered filters, accountability.
• For: shields decision-making from vexatious complaints; the superior’s report gives the Magistrate context before a probe is ordered.
• Against: the complained-against officer’s account is weighed before investigation; no time limit for the superior’s report, unlike the 120-day deemed sanction.
• Way forward: a time limit for the report, clarity on former office-holders and writ-court directions, and settling the Section 17A question.

Interview, be ready for:

• “Does Section 175(4) make corruption harder to investigate?” Say it adds a filter on the Magistrate route for duty-related complaints; argue for time limits so protection does not become delay.
• “Why did the Court say it was not ruling on merits?” Explain that its order was limited to locus; the merits are for the High Court’s Division Bench.

Sources: LiveLaw (Amisha Shrivastava), reports of 21 October 2026 on the Supreme Court’s order and hearing in the Pinarayi Vijayan case. The Hindu, 22 October 2026, on the ten-day stay in the published order. LawChakra, 21 October 2026 (cause title). Statute background: Gazette of India Extraordinary, 25 December 2023, The Bharatiya Nagarik Suraksha Sanhita, 2023 (No. 46 of 2023); PIB, Ministry of Home Affairs, 10 December 2024, on the new criminal laws; Prevention of Corruption Act, 1988, Section 17A. Case-law background: The Wire, 13 January 2026, on the Section 17A split verdict; Supreme Court: Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1; Priyanka Srivastava v. State of Uttar Pradesh, (2015) 6 SCC 287.

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