The BNSS and the Public Servant: A Second Gate Before the FIR

On 21 October the Supreme Court stayed, for seven days, the investigation in a Kerala FIR against former Chief Minister Pinarayi Vijayan and his family in the Exalogic case. The order is interim and the facts are contested, but the legal point is not: the Court read Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita as a safeguard that must be applied before a Magistrate can order an investigation into a public servant.

That provision has a short history and a large consequence. It moves a protection that used to live inside anti-corruption law into the general criminal procedure, which means it now covers every public servant in every kind of case, not only corruption.

The two gates

Before the BNSS, a public servant facing a criminal complaint met one gate at the stage of investigation, Section 17A of the Prevention of Corruption Act, and one at the stage of taking cognizance, Section 197 of the Code of Criminal Procedure. Section 17A was inserted in 2018 and requires prior approval before an inquiry or investigation into an offence under the Act. Section 197 required government sanction before a court could take cognizance of an offence alleged against a public servant acting in the discharge of official duty.

The BNSS keeps the sanction requirement in Section 218 and adds a procedural protection in Section 175(4). The result is two gates at two stages, and the second gate is no longer confined to corruption.

Gate	What it requires
Section 175(4) BNSS	A hearing and a sworn affidavit before a Magistrate orders investigation
Section 218 BNSS	Sanction by the government before a court takes cognizance

How the provision is built

Section 175 gives a Magistrate the power to order an investigation where the police have refused to register a case. Sub-section (3) sets the procedure: the application must be supported by an affidavit made under Section 173(4), the Magistrate may hold an inquiry, and he must consider the submission of the police officer before ordering investigation.

Sub-section (4) deals with complaints against public servants. Its protection is not free-standing. In January 2026, in a case reported as XXX v State of Kerala, a bench of Justices Dipankar Datta and Manmohan held that sub-section (4) must be read with sub-section (3), and that a complainant cannot approach the Magistrate without the sworn affidavit that sub-section (3) requires. The Court also held that once the Magistrate has begun the process, a High Court should not intervene in the middle of it.

That ruling is the architecture. The affidavit is the price of admission, and the hearing is the safeguard. A public servant is not entitled to an immunity from investigation. He is entitled to a procedure in which the Magistrate satisfies himself that there is material before directing one.

The case for the safeguard

The argument is that a criminal complaint against a public servant is not an ordinary complaint. It can be filed by a political rival, a contractor who lost a tender, or a litigant who lost a case. The investigation itself is the punishment: a suspension, a transfer, a headline, and years of pendency. The affidavit requirement exists because the Supreme Court has repeatedly seen complaints filed to harass rather than to prosecute, and the Court has said so since Priyanka Srivastava v State of Uttar Pradesh in 2015.

Read in that light, Section 175(4) is not a privilege. It is a filter. The Magistrate has to look at the material, hear the police, and record why an investigation is warranted. That record is also what makes the order reviewable.

The case against

The objection is that the filter has a cost, and the cost is time. Every additional stage is a stage at which a case can stall, and the public servant controls the resources to stall it. The experience of Section 17A is the reference point. Since 2018, investigating agencies have had to obtain approval from the appropriate authority before beginning an inquiry, and the criticism has been that approvals are slow, that the competent authority is often the same department that is the subject of the complaint, and that the provision converts a criminal investigation into an administrative negotiation.

There is also a textual argument, and it is the strongest one. Section 218 contains a proviso that excludes sexual offences from the sanction requirement. Parliament therefore knew how to carve out an exception when it wanted to. Section 175 contains no such proviso. The inference is either that Parliament intended the protection to be broad, or that it simply did not think about the interaction. A court has to choose between those readings, and the choice determines whether a police officer accused of sexual assault gets a hearing before an investigation begins.

What the Court has not settled

Three questions remain open.

The first is whether the protection applies to former public servants. The Exalogic matter involves a former Chief Minister, and the acts alleged relate to his time in office. If the protection is attached to the office, it may lapse when the office does. If it is attached to the act, it survives. The Court has not said which.

The second is the boundary of "official duty". The classic test is whether the act is so connected with the duty that it can be described as done in the discharge of it, and the test has been applied to sanction under Section 197 for decades with inconsistent results. Section 175(4) inherits that uncertainty.

The third is the remedy for breach. If a Magistrate orders an investigation without the procedure, is the order void, or merely irregular? The January 2026 ruling suggests that the High Court should not intervene once the process has begun, which points toward the Magistrate being trusted to correct himself, but it does not answer the question.

Why it matters beyond one case

The order is being read as a political event, and it is one. But the legal significance is wider. India has spent a decade trying to make the prosecution of public servants both less arbitrary and less slow, and the BNSS has added a procedural layer without adding a time limit. A safeguard without a deadline is a safeguard that can be used as a delay.

The policy question is therefore not whether the protection should exist. It is whether it should come with a clock. A hearing within thirty days, a written order that records the material relied on, and an appeal that does not require the accused to wait for the charge sheet would preserve the protection and remove the incentive to stall.

What to watch

• Whether the seven-day stay is extended, and whether the Court writes an order on the former public servant question.
• Whether the Kerala High Court or the Supreme Court lays down a timeline for the Section 175(4) hearing.
• Whether the next round of BNSS amendment rules adds a proviso for sexual offences, mirroring Section 218.
• The Law Commission's or the Ministry's review of Section 17A, which will be read as a signal for the wider question.

Quick answers

What does Section 175(4) do? It requires a Magistrate to follow a protective procedure, including the affidavit and the hearing under Section 175(3), before ordering an investigation into a complaint against a public servant for an act in the discharge of official duty.

How is it different from Section 218? Section 218 is a sanction requirement applied by the government before a court takes cognizance. Section 175(4) operates earlier, at the stage of investigation, and is applied by the Magistrate.

What is the main criticism? That it adds time and discretion to every case against a public servant, and that the Section 17A experience shows how such safeguards can be used to delay.

Sources

1. Bharatiya Nagarik Suraksha Sanhita, 2023, Sections 173, 175 and 218.
2. Prevention of Corruption Act, 1988, Section 17A, inserted by the Prevention of Corruption (Amendment) Act, 2018.
3. Supreme Court, XXX v State of Kerala, 2026 INSC 88, decided 27 January 2026.
4. Supreme Court, Pinarayi Vijayan v K M Shajahan, interim order of 21 October 2026.
5. Supreme Court, Priyanka Srivastava v State of Uttar Pradesh, 2015.
6. Code of Criminal Procedure, 1973, Section 197, for the predecessor sanction provision.