XXX v. State of Kerala & Ors., 2026
The judgment draws a clear distinction between CrPC Section 156(3) and BNSS Section 175(4), highlighting the enhanced procedural protection under the BNSS.
Judgement Details
Court
Supreme Court of India
Date of Decision
28 January 2026
Judges
Justice Dipankar Datta & Justice Manmohan
Citation
Acts / Provisions
Facts of the Case
- The case arose from allegations by a woman that she was sexually assaulted on three occasions by police officers while pursuing a complaint relating to a property dispute.
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The police conducted an enquiry and filed a report terming her allegations as “untrue.”
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Dissatisfied, the complainant approached the Judicial Magistrate First Class (JMFC) under Section 210 BNSS read with Section 175 BNSS, seeking registration of an FIR.
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Invoking Section 175(4) BNSS, the Magistrate called for a report from the superior officer of the accused police personnel.
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While proceedings before the Magistrate were pending, the complainant filed a writ petition before the Kerala High Court.
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A Single Judge of the High Court held that Section 175(4) was not mandatory in serious offences like rape and directed registration of an FIR.
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The Division Bench of the High Court reversed this order, holding that interference under Article 226 was unwarranted when statutory proceedings were pending.
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The matter reached the Supreme Court in appeal.
Issues
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Whether the procedure prescribed under Section 175(4) of the BNSS for calling a report from the superior officer of a public servant is mandatory or discretionary in nature?
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Whether a Magistrate is bound to bypass Section 175(4) BNSS in cases involving serious offences such as sexual assault?
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Whether the word “may” used in Section 175(4) BNSS should be construed as “shall”?
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Whether the High Court can exercise writ jurisdiction under Article 226 to interfere with Magistrate proceedings pending under Section 175 BNSS?
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Whether a complaint under Section 175(4) BNSS must be supported by an affidavit?
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Whether failure of a superior officer to submit a report under Section 175(4) BNSS obliges the Magistrate to wait indefinitely?
Judgement
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The Supreme Court affirmed the Division Bench judgment of the Kerala High Court.
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It held that Section 175(4) BNSS is discretionary, not mandatory.
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The Court clarified that the word “may” must be read as “may” and not “shall.”
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It ruled that the Single Judge erred in directing registration of FIR by bypassing the Magistrate’s statutory discretion.
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The Court prescribed guidelines for Magistrates while dealing with complaints under Section 175(4) BNSS.
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It held that complaints under Section 175(4) must be supported by an affidavit, harmonising it with Section 175(3) BNSS.
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The matter was remitted back to the JMFC to proceed in accordance with law after verifying the affidavit requirement.
Held
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Section 175(4) BNSS provides a procedural safeguard for public servants and is not mandatory in all cases.
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The Magistrate retains discretion depending on whether the alleged act has a reasonable nexus with official duty.
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Judicial interference under Article 226 is impermissible when statutory remedies before the Magistrate are pending.
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The Magistrate is not bound to wait indefinitely for a superior officer’s report.
Analysis
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The judgment draws a clear distinction between CrPC Section 156(3) and BNSS Section 175(4), highlighting the enhanced procedural protection under the BNSS.
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By interpreting “may” as discretionary, the Court preserves judicial flexibility while preventing mechanical application of safeguards.
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The Court balances accountability of public servants with protection against frivolous or vexatious prosecutions.
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The insistence on an affidavit strengthens the filter against abuse of process, in line with Priyanka Srivastava.
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The ruling reinforces judicial discipline, discouraging premature High Court interference.
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Importantly, the Court refrained from deciding whether sexual assault could constitute acts in discharge of official duties, reaffirming that fact-finding lies with the Magistrate.