Complaints before magistrate against public servants must be in writing supported by affidavit: Supreme Court

The Supreme Court on Tuesday held that a complaint seeking a court-ordered investigation against a public servant under the Bharatiya Nagarik Suraksha Sanhita (BNSS) cannot be oral and must be in writing and supported by an affidavit [XXX vs State of Kerala]

A Bench of Justices Dipankar Datta and Manmohan held that Section 175(4), a new provision introduced under the BNSS, must be read in conjunction with Section 175(3), which expressly requires an affidavit.

The Court said the provision cannot be interpreted in a manner that weakens procedural safeguards at the threshold stage of criminal process.

Although Section 175(4) of the BNSS uses the expression “complaint”, it cannot be read to permit oral allegations when a judicial magistrate is asked to direct an investigation, the top court said.

Further, once a magistrate passes a judicial order under Section 175(4), it cannot be interfered with through a writ petition under Article 226, the Court said.

The Court made the observations while upholding a Kerala High Court Division Bench’s decision setting aside a single-judge’s direction to register a first information report (FIR).

The Supreme Court held that the single-judge of the High Court exceeded his jurisdiction by intervening while proceedings under Section 175 BNSS were pending before the magistrate and by directing a course of action not prayed for.

On how the provision must be understood, the Court held that Section 175(4) has to be purposively read to require a written, affidavit-backed complaint.

“To give meaning, we hold that the opening words in sub-section (4) which reads ‘Any Magistrate empowered under Section 210, may, upon receiving a complaint against a public servant …’ have to be purposively read as ‘Any Magistrate empowered under Section 210, may, upon receiving a complaint in writing against a public servant of commission of offence arising in course of the discharge of his official duties, supported by an affidavit, order investigation," the top court held.

The Bench further held that the statutory definition of “complaint” under the BNSS, which includes oral complaints, cannot be mechanically applied in the context of Section 175(4). It ruled that the context requires a stricter reading, observing:

“The expression ‘complaint’ in sub-section (4) of Section 175 does not encompass oral complaints. Having regard to the text of the provision and the context in which it is set, and in light of our conclusion that sub-section (4) is not a provision which stands alone or is a proviso to sub-section (3), the term must derive its meaning in sync with allegations of cognisable offence levelled in an application of the nature referred to in sub-section (3) of Section 175, i.e., an application supported by affidavit.”

The two-judge bench further held that the provision is neither a standalone provision nor a proviso to Section 175(3), but operates as an extension of it.

“Sub-section (3) and sub-section (4) of Section 175 are not isolated silos but must be read in harmony with sub-section (4) forming an extension of sub-section (3)," the judgment said.

Further, the affidavit supporting an application under Section 175 must strictly comply with Section 333 of the BNSS, which governs the manner in which affidavits are to be sworn and what they may contain.

“It is also clarified that the JMFC 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," the bench stated.

The Supreme Court also laid down a structured decision-making framework for magistrates dealing with complaints against public servants under Section 175.

It held that upon receiving such a complaint, a magistrate may proceed in one of three ways, depending on how the alleged act relates to official duty.

“Upon receiving a complaint under sub-section (4) of Section 175, BNSS alleging commission of an offence by a public servant arising in course of the discharge of his official duties, the magistrate may do either of the following…Reading the complaint, if the judicial magistrate is prima facie satisfied that commission of the alleged act giving rise to an offence arose in course of discharge of official duties…Or, on a consideration of the complaint, where the judicial magistrate entertains a prima facie doubt…Or, where the judicial magistrate is satisfied that the alleged act of offence was not committed in the discharge of official duties… the complaint may be dealt with in accordance with the general procedure prescribed under sub-section (3) of Section 175,” the judgment stated.

The appeal before the Court was disposed of with the Court leaving it open to the complainant to pursue her remedies before the jurisdictional magistrate in accordance with the procedure laid down under Section 175 BNSS.

[Read Judgment]