Section 175(4) BNSS Expands Safeguards for Public Servants

Source: Supreme Court 

Why in News? 

A bench of Justice Joymalya Bagchi and Justice V Mohana of the Supreme Court decided Pinarayi Vijayan v. Adv KM Shajahan (2026). The Court allowed former Kerala Chief Minister Pinarayi Vijayan and other petitioners to challenge a Kerala High Court Single Judge's direction to register an FIR in the CMRL-Exalogic case. While doing so, it explained how Section 175(4) BNSS differs from the erstwhile Section 156(3) CrPC. 

What was the Background of Pinarayi Vijayan v. Adv KM Shajahan (2026) Case? 

• The matter arose from the CMRL-Exalogic case in Kerala. 
• A Single Judge of the Kerala High Court directed registration of an FIR and commencement of an investigation under the Prevention of Corruption Act against the petitioners, including former Chief Minister Pinarayi Vijayan. 
• The petitioners sought leave to appeal against this order before a Division Bench of the High Court. 
• The Division Bench refused to grant leave to appeal. 
• Aggrieved, the petitioners filed a Special Leave Petition before the Supreme Court. 

What were the Court's Observations? 

On the change brought by the BNSS: 

• The Court noted that the scheme for registration of an FIR through judicial intervention has changed under the BNSS compared to the CrPC. 
• Under Section 156(3) CrPC, there was no requirement to involve the public servant or their superior before a Magistrate directed registration of an FIR. 
• Under Section 175(4) BNSS, where a complaint is made against a public servant for acts arising in the course of official duties, the Magistrate must:  
  • Receive a report on the facts and circumstances from the public servant's superior officer; and 
  • Consider the assertions of the public servant about the situation that led to the alleged incident. 

On the right of the public servant to be heard: 

• During the hearing, Justice Bagchi observed that under Section 175(4), the public servant's opinion is taken before the Magistrate directs an FIR. 
• Such a public servant is entitled to have their arguments heard on merits, rather than being shut out at the threshold for want of locus. 

Limited purpose of the reference: 

• The Court clarified that it referred to Section 175(4) BNSS only to explain the expanded safeguards available to a potential accused before registration of an FIR under the new law. 
• It did not decide whether the provision applied to the allegations against the petitioners. 

On the petitioners' challenge: 

• The Court found that the petitioners had made out a prima facie case to challenge the Single Judge's order, particularly since it directed not only registration of an FIR but also commencement of investigation under the Prevention of Corruption Act. 

Directions: 

• The Division Bench's refusal to grant leave to appeal was set aside, and the petitioners were permitted to pursue their appeals. 
• The investigation was stayed for seven days to enable the petitioners to seek interim relief from the High Court. 

What is Section 175 of the BNSS? 

About: 

• Section 175 BNSS deals with the police officer's power to investigate cognizable cases. 
• It corresponds to Section 156 of the CrPC. 

Sub-sections: 

• Section 175(1): An officer in charge of a police station may investigate a cognizable case without a Magistrate's order, within the local jurisdiction of the court that can try it under Chapter XIV.  
  • Proviso: Considering the nature and gravity of the offence, the Superintendent of Police may require a Deputy Superintendent of Police to investigate the case. 
• Section 175(2): Proceedings of a police officer cannot be questioned on the ground that the officer was not empowered to investigate under this section. 
• Section 175(3): A Magistrate empowered under Section 210 may order investigation after:  
  • Considering an application supported by an affidavit made under Section 173(4); 
  • Making such inquiry as deemed necessary; and 
  • Considering the submission made by the police officer. 
• Section 175(4): A Magistrate empowered under Section 210 may, upon a complaint against a public servant arising in the course of official duties, order investigation, subject to:  
  • (a) Receiving a report containing facts and circumstances of the incident from the officer superior to the public servant; and 
  • (b) Considering the assertions made by the public servant about the situation that led to the incident. 

How does Section 175(4) BNSS Differ from Section 156(3) CrPC?