Legal Review and Analysis of XXX vs State of Kerala & Ors 2026 INSC 88
Synopsis
This landmark Supreme Court judgment provides the first authoritative interpretation of the newly enacted Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, specifically focusing on the procedural safeguards for public servants under Section 175. The case arose from allegations of sexual assault by police officers, raising critical questions about the interplay between the general power of a Magistrate to order an investigation [Section 175(3)] and the special procedure mandated when the accused is a public servant alleged to have committed an offence in the discharge of official duties [Section 175(4)]. The Court delineated a harmonious construction of these provisions, established mandatory procedural requirements, and crucially, set boundaries for the exercise of writ jurisdiction under Article 226 when parallel criminal proceedings are pending before a Magistrate.
1. Basic Information of the Judgment
Case Title: XXX vs. State of Kerala & Ors.
Citation: 2026 INSC 88
Court: Supreme Court of India
Jurisdiction: Criminal Appellate Jurisdiction
Coram: Justice Dipankar Datta & Justice Manmohan
Bench Type: Division Bench (Not a Constitutional Bench)
Appeal Number: Criminal Appeal No. 4629 of 2025 [Arising out of SLP (Crl.) No. 5175 of 2025]
Judgment Date: January 27, 2026
2. Legal Framework and Relevant Precedents
The judgment is centered on the interpretation of the new criminal procedural code, harmonizing it with established constitutional and jurisprudential principles.
Governing Statute:
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): Replaced the Code of Criminal Procedure, 1973.
Section 173: Lodging of information in cognizable cases (analogous to old S. 154 CrPC).
Section 175: Police officer's power to investigate cognizable cases (analogous to old S. 156 CrPC). The crux of the dispute was the interpretation of sub-sections (3) & (4).
Section 210: Magistrates empowered to take cognizance.
Section 218: Previous sanction for prosecution of public servants (analogous to old S. 197 CrPC).
Section 333: Prescribes the form and authority for affidavits.Constitutional Provision:
Article 226: Power of High Courts to issue certain writs.Key Precedents Relied Upon:
Lalita Kumari vs. Govt. of U.P.: On the mandatory registration of FIR and the limited scope of preliminary enquiry.
Priyanka Srivastava vs. State of U.P.: Established that an application to a Magistrate for directing an investigation must be supported by a sworn affidavit.
Anil Kumar vs. M.K. Aiyappa & Manju Surana vs. Sunil Arora: Discussed the requirement of sanction for proceeding against public servants.
Radhe Shyam vs. Chhabi Nath & Pradnya Pranjal Kulkarni vs. State of Maharashtra: Held that a judicial order (civil or criminal) cannot be challenged directly under Article 226 of the Constitution.
3. Relevant Facts of the Case
The appellant alleged she was sexually assaulted on three separate occasions in 2022 by police officers who were ostensibly dealing with a property dispute complaint filed by her.
Her complaints to the police hierarchy did not result in an FIR. A preliminary enquiry report by a Deputy Superintendent of Police concluded the allegations were untrue.
In September 2024, she filed an application under Section 210 read with Section 173(4) BNSS before the Judicial Magistrate First Class (JMFC), Ponnani, seeking a direction to register an FIR.
The JMFC, invoking Section 175(4) BNSS, called for a report from the superior officer of the accused public servants.
Simultaneously, the appellant filed a writ petition in the High Court under Article 226 seeking a direction for FIR registration and a declaration that the alleged acts of rape were not performed in the discharge of official duties, and thus Section 175(4) was inapplicable.
A Single Judge allowed the writ petition, held that Section 175(4) was not mandatory for such offences, and directed the JMFC to pass a fresh order. The JMFC consequently ordered the registration of an FIR.
The accused police officer (Respondent No. 5) filed a writ appeal. A Division Bench set aside the Single Judge's order, holding that the writ jurisdiction was invoked prematurely while the magistrate's proceedings were pending.
The appellant approached the Supreme Court against the Division Bench's order.
4. Issues Before the Supreme Court
The Court framed two sets of issues:
General Issues of Law (for wider guidance):
I. Whether sub-section (4) of Section 175 BNSS is a standalone provision or is to be read in continuation of/as a proviso to sub-section (3)?
II. What procedure should a Judicial Magistrate follow upon receiving a complaint against a public servant for acts allegedly committed "in the discharge of his official duties"?
Specific Issues in the Case:
(A) Whether the Single Judge exceeded his jurisdiction by interpreting Section 175(4) and issuing directions to the JMFC, especially when the JMFC's order calling for a report was not under challenge?
(B) Whether, in the facts of the case, the alleged acts of the public servants were in the discharge of their official duties?
5. Ratio Decidendi (Court's Reasoning and Decision)
The Supreme Court dismissed the appeal, upholding the Division Bench's order. Its core reasoning is structured as follows:
a. Harmonious Construction of Section 175(3) and (4):
The Court rejected the argument that Section 175(4) is a standalone provision. It held that sub-section (4) is not independent and is also not a proviso to sub-section (3).
Instead, it established a symbiotic relationship: Section 175(3) contains the general power of a Magistrate to order an investigation. Section 175(4) is a special procedural adjunct that adds an extra layer of safeguards when the complaint is against a public servant for acts in the discharge of duty.
Consequently, the mandatory requirements of Section 175(3)—including the necessity of a written application supported by an affidavit (per Priyanka Srivastava) and prior recourse to the Superintendent of Police under Section 173(4)—apply equally to cases falling under Section 175(4).
The term "complaint" in Section 175(4) must be interpreted in this context and does not include oral complaints.
b. Procedure for the Magistrate – A Practical Guide:
Upon receiving a complaint against a public servant, the Magistrate must make a prima facie assessment of whether the alleged act has a reasonable nexus with the discharge of official duty.
Three possible scenarios:
If a prima facie nexus exists → Magistrate must follow Section 175(4) procedure (call report from superior, hear accused).
If the Magistrate is in doubt → May follow Section 175(4) procedure to gather material to decide the nexus.
If no reasonable nexus is evident → Magistrate may proceed under the general provision of Section 175(3) directly.
c. On the High Court's Writ Jurisdiction (Issue A):
The Court strongly condemned the Single Judge's intervention. It held that when a judicial order (the JMFC's order calling for a report) had been passed in a pending proceeding, it could not be circumvented or effectively reviewed under Article 226.
Following Radhe Shyam and Pradnya Kulkarni, the Court reiterated that a judicial order in a criminal case cannot be challenged via a writ of certiorari under Article 226.
The Single Judge, by declaring the law and directing the JMFC to pass a fresh order, effectively directed the recall of a judicial order, which was impermissible. The proper remedy against the JMFC's order was under Section 528 BNSS (revision) or Article 227 (supervisory jurisdiction).
Hence, the Single Judge exceeded his jurisdiction, and the Division Bench was correct in setting aside his order.
d. On the Nature of the Alleged Acts (Issue B):
The Supreme Court expressly refrained from deciding whether the alleged acts of sexual assault could be considered as performed in the discharge of official duties.
It held that this was a fact-intensive determination to be made first by the JMFC in the pending proceedings. Any observation by the Supreme Court would prejudice the parties before the Magistrate.
6. Legal Principles Established and Reaffirmed
This judgment is a seminal guide on the new BNSS and reiterates foundational procedural principles:
Integrated Reading of Safeguards: The affidavit requirement and the hierarchical escalation of complaint (to SP) under Section 175(3) are integral to the special procedure under Section 175(4). They cannot be bypassed.
Affidavit as a Filter Against Frivolous Litigation: The judgment universalizes the Priyanka Srivastava doctrine for complaints against all public servants under the BNSS, extending the logic previously applied to judicial officers.
"Discharge of Official Duty" – A Threshold Filter: The Magistrate acts as a gatekeeper. The application of Section 175(4)'s extra safeguards is triggered only if the alleged offence has a prima facie connection to official duty. This prevents misuse of the provision to shield public servants from personal crimes.
Non-Interference with Sub-Judice Judicial Orders: The judgment fortifies the principle that the extraordinary writ jurisdiction under Article 226 cannot be used to interfere with intermediate orders in pending judicial proceedings, especially when alternative statutory remedies exist.
7. Supreme Court's Analytical Methodology
The Court's analysis was comprehensive and multi-faceted:
Textual and Contextual Interpretation: It meticulously parsed the language of Sections 173, 175, 218, and 333 of the BNSS, noting omissions and commissions.
Legislative Intent Analysis: It referred to the 247th Report of the Parliamentary Standing Committee to understand the deliberate inclusion of safeguards in Section 175(3), which informed the interpretation of Section 175(4).
Harmonization to Avoid Absurdity: It rejected interpretations that would create anomalies (e.g., allowing oral complaints against public servants while requiring affidavits for others).
Precedent Integration: It seamlessly wove principles from the CrPC era (Lalita Kumari, Priyanka Srivastava) into the new statutory framework of the BNSS.
Providing a Clear Roadmap: Moving beyond abstract interpretation, the Court laid down a step-by-step, scenario-based guide for Magistrates, ensuring the judgment has immediate practical utility.
8. Critical Analysis and Final Outcome
Critical Analysis: This judgment achieves a delicate balance. It acknowledges the need to protect public servants from vexatious litigation that could hamper official work, while simultaneously ensuring that this protection is not misapplied to serious personal crimes like sexual assault. By making the Magistrate the initial arbiter of the "nexus to official duty," it places a significant responsibility on the judiciary to prevent the shielding of criminal conduct. The stern rebuke of the High Court's overreach reinforces the hierarchy of remedies and preserves the integrity of ongoing trials.
Core Final Outcome: The Supreme Court:
Dismissed the appeal and upheld the Division Bench's order.
Set aside the Single Judge's order and the consequential FIR registration order passed by the JMFC.
Restored the proceedings before the JMFC, directing that the application be considered afresh in accordance with the law laid down by the Supreme Court (i.e., after verifying the affidavit and following the procedure under Section 175(3) read with Section 175(4) as interpreted).
Allowed the appellant to raise all contentions, including on the nexus to official duty, before the JMFC.
(MCQs)
1. According to the Supreme Court's interpretation in XXX vs. State of Kerala, what is the relationship between Section 175(3) and Section 175(4) of the BNSS, 2023?
a) Section 175(4) is a completely independent and standalone provision.
b) Section 175(4) is a proviso that carves out an exception to Section 175(3).
c) Section 175(4) is a special procedural adjunct to Section 175(3), and the mandatory requirements of Section 175(3) apply to cases under Section 175(4) as well.
d) Section 175(3) is repealed insofar as it concerns public servants, and Section 175(4) is the exclusive provision for them.
2. The Supreme Court held that the term "complaint" in Section 175(4) BNSS?
a) Includes only written complaints but not necessarily an affidavit.
b) Includes oral complaints as per the general definition in Section 2(1)(h).
c) Must be interpreted in context and refers to a written application supported by a sworn affidavit.
d) Refers only to a formal police report.
3. In the context of this judgment, when can a High Court interfere under Article 226 in a matter where a Judicial Magistrate has seized an application under Section 175 BNSS and passed an interim order?
a) Always, as Article 226 confers wide discretionary power.
b) Only after the Magistrate passes a final order on the application.
c) It should not ordinarily interfere, as a judicial order in a pending criminal proceeding cannot be challenged under Article 226.
d) Only if the Magistrate's order is challenged simultaneously under Section 528 BNSS.
4. What is the first step a Judicial Magistrate must take upon receiving a complaint alleging an offence by a public servant?
a) Immediately issue a direction to register an FIR.
b) Automatically invoke Section 175(4) and call for a report from the superior officer.
c) Make a prima facie assessment of whether the alleged act has a reasonable nexus with the discharge of official duties.
d) Dismiss the complaint if it is not accompanied by an affidavit.
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