The legal landscape in India is currently undergoing a massive transformation. On July 1, 2024, the Bharatiya Nagarik Suraksha Sanhita 2023 replaced the old Code of Criminal Procedure (CrPC). Consequently, lawyers across India are re-learning fundamental investigative procedures.
Recently, in January 2026, the Supreme Court delivered a definitive ruling on BNSS Sections 175(3) and 175(4). This judgment clarifies how Magistrates should order investigations. Specifically, it harmonizes the power to investigate with new safeguards. This post explores how this “harmony mandate” impacts your criminal law practice.
The Shift from CrPC to BNSS
For over five decades, Section 156(3) of the CrPC governed magistrate-ordered investigations. Now, Section 175 of the BNSS has succeeded it. While the core power remains, the procedure has significantly changed.
The Supreme Court recently emphasized that BNSS is a transformative code. Therefore, its provisions must follow the principle of “harmonious construction.” In other words, one section cannot be read in a way that makes another redundant. This approach ensures that the new criminal procedure in India 2026 remains efficient yet fair.
Why Harmonious Construction Matters
The Court applied the legal maxim Ut res magis valeat quam pereat. This means the law should have effect rather than perish. Consequently, the Supreme Court rejected any contradictory reading of investigative powers. This ensures that procedural safeguards do not obstruct the path of justice.
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Understanding Section 175(3) of the BNSS: The Power to Investigate
BNSS Sections 175(3) and 175(4) define how a Magistrate oversees the initiation of an investigation. Specifically, Section 175(3) empowers a Magistrate to order a police probe. However, unlike the old CrPC, this power is no longer absolute or mechanical.
Mandatory Pre-conditions for Investigation
Under the new law, a complainant cannot directly approach a Magistrate. First, they must show evidence of a prior application to the Superintendent of Police (SP). Specifically, this requirement is found under Section 173(4).
Second, the complainant must submit a supporting affidavit. This rule follows the legacy of Priyanka Srivastava v. UP. It aims to prevent people from filing false or malicious petitions. As a result, the Magistrate now serves as a judicial filter rather than a mere post office.
Evaluating the Magistrate’s Judicial Mind
Moreover, the Magistrate must now consider “submissions made by the police officer.” This is a major shift from the previous era. For example, in the case of Om Prakash Ambadkar v. State of Maharashtra (2025), the court ruled that reasoned orders are mandatory.
Furthermore, the Magistrate must determine if state machinery is truly required. If the police have already conducted a preliminary inquiry, the Magistrate must weigh those facts. Therefore, the initiation of an investigation is now a much more deliberate process.
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Decoding Section 175(4): Safeguards and Procedural Compliance
While sub-section (3) gives the power, Section 175(4) provides the protection. This sub-section specifically protects public servants. In fact, it applies to acts committed during the discharge of official duties.
The Requirement of “Satisfaction”
Section 175(4) acts as a check and balance against the powers granted in 175(3). Before ordering an investigation against an official, the Magistrate needs a report. This report must come from the officer superior to the accused public servant.
Additionally, the Magistrate must consider the “assertions made by the public servant.” This offers the official a chance to explain the situation. For example, a police officer accused of using force during a riot can now present their side early.
Protecting the Integrity of Public Service
Most importantly, the “satisfaction” standard creates a high threshold for complaints against the government. This prevents frivolous litigation from paralyzing public administration. By requiring a “layer of truth” through a superior’s report, the BNSS filters out motivated complaints. Consequently, this procedure ensures that only genuine cases of misconduct reach the trial stage.
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The Doctrine of Harmonious Construction: The Supreme Court’s Verdict
In January 2026, the Supreme Court addressed a vital conflict. Some litigants argued that Section 175(4) was a standalone provision. They claimed it did not need to follow the rules of Section 175(3). However, the Court rejected this view.
The “Dual-Threshold” Rule
The Court held that BNSS Section 175(4) must be read in conjunction with 175(3). This created what experts call the “Dual-Threshold” Rule.
To order an investigation against a public servant: 1. The complainant must first approach the SP under 173(4). 2. The complainant must file a mandatory affidavit under 175(3). 3. The Magistrate must then seek the superior’s report under 175(4). 4. The Magistrate must hear the public servant’s assertions.
Rejecting Legal Redundancy
If 175(4) operated alone, it would create a loophole. People could bypass the affidavit requirement by simply naming a public servant. Therefore, the Supreme Court ruled that all conditions of 175(3) apply to 175(4). As a result, this interpretation ensures that “vague and malicious” complaints are stopped at the gates.
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Practical Implications for Criminal Defense Lawyers
The Supreme Court on BNSS has changed the strategy for defense lawyers. Specifically, you can now challenge FIRs based on procedural lapses. If a Magistrate skips any step in Section 175, the resulting investigation might be illegal.
Utilization of Quashing Petitions
Defense lawyers should look at Section 528 of the BNSS. This replaces Section 482 of the CrPC. If a Magistrate orders an investigation without hearing the police, the order is vulnerable. Consequently, you can move the High Court to quash the order for non-compliance with Section 175(3).
For instance, consider a case where a complainant fails to approach the SP first. In this scenario, the Section 175(3) application is not maintainable. Therefore, as a defense counsel, you can challenge the very foundation of the police probe.
Strategic Use of Pre-investigation Assertions
Section 175(4) allows for a “Preliminary Inquiry” window. Under Section 173(3), this can last up to 14 days for specific offenses. Use this time to present your client’s assertions before the Magistrate. By providing a strong factual context early, you can often prevent the registration of an FIR altogether.
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The Future of Criminal Jurisprudence under BNSS
The transition to BNSS is still evolving. We anticipate more judicial clarifications on investigative powers BNSS in the coming months. However, the trend is clear. The law is moving toward digitized and time-bound procedures.
The Impact of Digitization
Under the BNSS, case diaries and superior reports are increasingly served electronically. This streamlines the Section 175 process. Furthermore, digitization reduces delays in receiving the “superior’s report” required for public servants. Lawyers must adapt to this paperless environment to stay competitive.
Updating Law Firm Internal SOPs
Moreover, law firms should update their internal Standard Operating Procedures (SOPs). Ensure that every criminal complaint has a “paper trail” showing the SP was contacted. Additionally, verify that every Section 175 application includes a correctly formatted affidavit. Small procedural errors can lead to the dismissal of your case.
Conclusion on Section 175 BNSS Interpretation
The Supreme Court’s harmonious interpretation of BNSS Sections 175(3) and 175(4) balances power with accountability. It empowers Magistrates to act while protecting public servants from harassment.
For lawyers, the message is clear. Procedural compliance is no longer optional. It is the bedrock of your litigation strategy. By understanding these dual thresholds, you can better protect your clients’ rights in the new era of Indian criminal law.
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