The Supreme Court has said that the Bharatiya Nagarik Suraksha Sanhita (BNSS), which replaced the colonial-era Code of Criminal Procedure (CrPC), gives public servants a stronger shield against the registration of criminal cases than the old law did. The observation came from a bench of Justice Joymalya Bagchi and Justice V Mohana on Wednesday, October 21, while hearing a matter involving former Kerala Chief Minister Pinarayi Vijayan in connection with the CMRL-Exalogic case.
At the heart of the discussion was a seemingly technical but enormously consequential question: before a magistrate orders the police to investigate a public servant, must the public servant be heard? Under the old Section 156(3) of the CrPC, the answer was effectively no.
The provision allowed a magistrate to direct the registration of an FIR and the commencement of an investigation when the police refused to act on a complaint, and it did not contemplate any role for the public servant concerned, nor for his superior officer, at that preliminary stage.
Justice Bagchi, speaking during the hearing, pointed out how the landscape has shifted under the new statute. The relevant provision now is Section 175(4) of the BNSS, and it introduces an additional layer of procedure that the CrPC never contained.
Where the person named in the complaint is a public servant, and the alleged offence is said to have been committed in the course of discharging official duties, the magistrate cannot simply pass an order directing registration of an FIR. The court must now hear the public servant's version of events before shutting the door on him, the judge observed.
"Today 175 subsection 4, if it is a public servant, an opinion of the public servant is taken before a direction magistrate gives for FIR. That public servant has the right to have his arguments heard on merits before shutting the door by saying that you have no locus," Justice Bagchi said.
The remark captures a significant policy choice made by the drafters of the BNSS. The CrPC framework treated the pre-FIR stage as largely one-sided: a complainant approached the magistrate, the magistrate formed a prima facie view, and an investigation followed. The public servant who might eventually face the investigation had no formal opportunity to place his version before the court at that threshold stage.
Section 175(4) of the BNSS changes that dynamic by inserting the public servant and his superior officer into the procedure. The magistrate is expected to call for a report from the superior officer and to consider the public servant's account of the matter before directing any investigation.
This is not a mere procedural nicety. For public servants, the registration of an FIR is itself a serious professional and reputational blow, even if the investigation eventually closes without a charge sheet. The criminal process carries stigma, media scrutiny, and administrative consequences that begin long before a trial, if one ever follows.
The BNSS therefore builds a filter at the very first gate: the magistrate must pause, gather the superior officer's report, and listen to the public servant before deciding whether the complaint warrants the coercive machinery of a criminal investigation.
The October 21 observation did not arrive in a vacuum. Earlier this year, in a judgment delivered on January 27, the Supreme Court had already given authoritative content to Section 175 of the BNSS. In that matter, decided by Justice Dipankar Datta and titled XXX v State of Kerala, the court held that the procedural safeguards contained in Section 175 are mandatory in nature.
They cannot be treated as directory or optional, and a magistrate who directs investigation against a public servant without following them commits a jurisdictional error.
It is important to keep the two judicial moments distinct. The January 27 ruling laid down the law as a settled proposition: the safeguards in Section 175 are compulsory, and any order directing investigation against a public servant that bypasses them is liable to be set aside.
The October 21 observation, by contrast, was made in the course of arguments in the Pinarayi Vijayan matter, where the bench was dealing with a challenge to a Kerala High Court Single Judge's direction to register an FIR in the CMRL-Exalogic case. The observation explains and reinforces the rationale behind the January ruling, but it does so in the context of a live dispute rather than as a fresh binding pronouncement.
What connects the two is a consistent judicial reading of legislative intent. The BNSS, which broadly replaces Section 156 of the CrPC, was not intended to make it easier to haul public servants into criminal proceedings on untested complaints. Section 175(4) adds a deliberate checkpoint: the superior officer's report and the public servant's version must be on the table before the magistrate exercises the power to order an FIR.
The Supreme Court's reading in January treated this checkpoint as mandatory, and the bench's elaboration in October spelt out precisely why that matters — the public servant has a right to be heard on merits before being told he has no locus.
For litigants and magistrates across the country, the practical takeaway is clear. Any private complaint seeking the registration of an FIR against a public servant for acts connected with official duties must now pass through the Section 175(4) sieve. Magistrates who are approached under the provision will need to demonstrate, on the record, that they called for the superior officer's report and considered the public servant's response.
Orders that skip this step will be vulnerable to challenge, as the January 27 judgment made plain. Complainants, for their part, will need to account for the fact that their allegations will be tested against the other side's version at a much earlier stage than they would have been under the CrPC.
The broader context is worth noting. The replacement of the CrPC by the BNSS, along with the replacement of the Indian Penal Code by the Bharatiya Nyaya Sanhita and the Indian Evidence Act by the Bharatiya Sakshya Adhiniyam, was presented by the government as a decolonising and modernising project. Critics have argued that the new codes tilt the balance of power towards the state.
But in this particular corner of the statute, the BNSS tilts in the opposite direction — towards the individual public servant, by giving him a right of audience that the CrPC denied. Whether one views that as a principled protection against malicious prosecution or as an additional hurdle for accountability will depend on one's vantage point, but the legal position as it stands is unambiguous.
The Pinarayi Vijayan matter itself continues. The bench has allowed the former Kerala Chief Minister and the other petitioners to challenge the High Court's direction for FIR registration in the CMRL-Exalogic case, and the October 21 observations form part of the reasoning that will inform how that challenge is adjudicated.
The CMRL-Exalogic controversy, which relates to alleged payments involving a private company and the former chief minister's family, has been a long-running political flashpoint in Kerala. Its legal trajectory will now be shaped significantly by the BNSS framework that the Supreme Court has been elaborating.
For the moment, the message from the apex court is twofold. First, as a matter of settled law since January, the Section 175 BNSS safeguards are mandatory and must precede any direction for investigation against a public servant.
Second, as a matter of judicial reasoning articulated this week, those safeguards represent a conscious expansion of the protection available to public servants — a deliberate departure from Section 156(3) of the CrPC, under which the public servant had no voice at the pre-FIR stage at all. Magistrates, complainants, and public servants alike will now operate within that rebalanced framework.
(Reporting based on Live Law.)