I. Introduction
The Supreme Court (‘SC’) in XXX v. State of Kerala (‘XXX’) held that Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) must be read conjunctively with Section 175(3) BNSS. Section 175(3) requires a complainant applying for a direction of registration of a First Information Report (FIR) or initiation of investigation by the Magistrate to first approach the police and the Superintendent of Police before moving the Magistrate. The complainant must also attach an affidavit confirming that they have followed the aforementioned scheme. Section 175(4) provides that before an order of investigation is passed, the Magistrate is obligated to receive a report regarding the alleged incident from the officer superior to the impugned public servant, and, essentially, allow the said servant to be heard, if the alleged offence is committed in the course of public duty.
The decisive question before the SC was whether a complainant must comply with Section 175(3) for a Magistrate regarding Section 175(4). The SC answered in the positive. But another question remains unanswered.
Given that the allegations in XXX concerned sexual offences, a critical issue before the SC was whether the alleged acts of the public servants were committed in the discharge of official duties. The SC avoided this examination and instead remitted the question back to the Magistrate, directing them to decide it based on the inquiry and the police officer’s report under Section 175(3).
I contend that in doing so, the Court has overlooked the nuances of the provision, and, subsequently, I underline the potentially tricky questions bound to arise in its implementation. I do so by comparing the Section with the existing jurisprudence of a similarly phrased Section 197 of the Code of Criminal Procedure, 1973 (‘CrPC’) (Section 218 BNSS).
Consequently, Part II of the piece will briefly introduce how the concept of “in the course of public duty” has been interpreted with respect to Section 197 CrPC. Part III explains, by juxtaposing the differences between Section 197 CrPC (Section 218 BNSS) and Section 175(4) BNSS, how the latter raises novel questions, which should have been resolved by the SC in XXX. Part IV notes how the explicit exemption of certain offences in Section 197 CrPC (Section 218 BNSS) is absent from Section 175(4) BNSS, how the SC has tacitly interpreted it, and the potential consequences. Finally, the piece concludes by summarising the critical gaps left unaddressed by the SC despite having the opportunity resolve them.
II. What has the Phrase Meant
The sphere of the locution ‘in the course of public duty’ has been dealt primarily in the context of Section 197 CrPC. The Section necessitates approval from the appropriate government before taking cognisance against a public servant for actions committed in the discharge of their public duty. The SC has previously held that whether an act is committed in the course of public duty must necessarily be determined based on the distinctive facts, and there cannot be any ‘universal rule’ to determine the same.
The broad principle is that any act in the course of public duty would have ‘reasonable connection with the duty sought to be discharged by such public officer.’ However, the SC has held that some acts cannot be considered as being committed in the course of such duty. For instance, abuses of power by a public servant to do something illegal, “like threatening to provide a tutored statement or trying to obtain signatures on a blank sheet of paper; causing the illegal detention of an accused; engaging in a criminal conspiracy to create false or fabricated documents; conducting a search with the sole object of harassing and threatening individuals, amongst others” cannot be termed as in course of duty.
Importantly, the explanation of Section 197(1) CrPC (218 Proviso III BNSS) exempts the requirement of sanctions for cases where the allegations involve sexual offences, offences relating to outraging the modesty of a woman, stalking, voyeurism, trafficking of persons, custodial sexual violence, and abuse of official authority to commit sexual or gender-based crimes.
III. Differences between Section 175(4) BNSS and 218 BNSS
There might be certain difficulties in replicating this jurisprudence under Section 175(4) for the following reasons.
First, under Section 218, the Court is at the stage of cognisance. In taking cognisance, the Court accepts that a prima facie case exists. Whereas, under S. 175(4), the case is at its inception, and the Court is merely considering whether FIR should be registered to commence investigation. Given the advanced juncture under Section 218, the Court is in a better position to adjudge whether the offence was in fact committed in the course of public duty or not. While examining the complaint vis-à-vis Section 175(4), the Court instead has sparse evidence limited to the allegations and the police’s submission received under S. 175(3) of the BNSS. While the Magistrate has the authority to conduct an additional inquiry under Section 175(3), given the preliminary stage, even this inquiry is bound to be limited. Thus, there is an increased chance of error in deciding this question under Section 175(4).
Secondly, the consequences of this error may not be clear. This can be best explained by a comparison in this respect with Section 197 CrPC. Here, if the Trial Court, believing that an offence was committed beyond the course of duty, takes cognisance without the sanction of the government and later finds that a sanction was necessary, then it can seek the sanction at a later stage. The trial may be stayed till the grant of such sanction. Nothing that has unfolded, regarding either the trial or the investigation, would be affected. Thus, the remedy of erring over whether the impugned offence was committed in the course of official duty is a retrospective sanction that can be procured after the initiation of the trial.
This capacity is absent under Section 175(4). Once an investigation has been directed or an FIR registered without the conditions given in the provision, it becomes obsolete. Question now arises about the course of action if the Magistrate errs in answering whether the action was committed in the course of official duties and orders an investigation without hearing the public official or receiving a report from their superior. It might be argued that the High Courts may simply quash the magistrate’s order, but if so, what becomes of the material gathered during the investigation instituted based on the erring order? Wouldn’t the investigation conducted as a result of the quashed order become void in itself? However, it would seem strange to discard an investigation if it disclosed the commission of an offence. These questions remain woefully unaddressed and cannot be resolved by importing the existing jurisprudence on the subject.
Furthermore, as there isn’t any clear remedy to errant decisions other than quashing of the order itself, and there would be minimal material before the magistrates as they assess the question of whether the public servant has acted in the course of public duty or not, the magistrates might prefer to err on the side of caution. This could result in a mechanical approach of invoking Section 175(4) BNSS in every allegation against public servants without proper application of mind.
IV. Exemption for Sexual Offences
Another critical question that emerges is whether the exemptions in 218 Proviso III BNSS would apply when considering a complaint under Section 175(4), considering that an express exemption remains absent from the provision.
If the exemption is applicable, then the SC in XXX should have held that Section 175(4) cannot be evoked and the act could not be considered the course of public duty, since the complaint involved allegations of sexual offences.
If this exemption does not apply to the provision, then the result is visibly absurd. Such interpretation countenances the possibility of the magistrate treating, say, a sexual offence as occurring in the course of public duty while directing investigation under Section 175(4), yet treating it as having occurred outside the scope of public duty in relation to 218 BNSS.
Considering that neither the provision nor the SC interpretation excludes sexual offences, the mechanical approach noted above will be adopted even in allegations of such offences, and delay the investigation. This could be fatal to the prosecution’s case, since expeditious investigation, especially in sexual offences, often becomes critical. Prolonging the process by adding extra steps only goes to detrimentally affect the complainant’s case.
The SC in XXX appears to have opted for this latter interpretation in directing the magistrate to conduct an inquiry with the material present to decide whether the public servant was acting in the course of their duty.
V. Conclusion
To conclude, Section 175(4) BNSS presents three vital impediments. First, it forces the magistrate to determine whether the alleged offence committed by the accused public official was indeed in the course of their duty or not. Second, the consequences of deciding the answer to the aforementioned question incorrectly and thereby not invoking Section 175(4) are unclear. And lastly, the provision does not exempt any offences from the scope of the phrase ‘public duty’, unlike Section 218 BNSS. Given the wont of most orders from the Magistrate being challenged before the High Courts under Section 528, the nuances of the provision must be properly expatiated. XXX presented an opportunity for the SC to iron out the creases of Section 175(4), and while it made important observations in that regard, it has left significant questions unanswered. These issues will eventually boomerang back to the SC for resolution.
Author Bio: The author is a third-year BALLB student at Rajiv Gandhi National University of Law
Ed Note: This piece was edited by Abhishek Sanjay and published by Tamanna Yadav from the Student Editorial Team.
