"Affidavit Mandatory": Top Court On Complaints Targeting Public Servants

The Supreme Court on Tuesday held that an application alleging commission of offence by public servants in discharge of their official duties must be supported by an affidavit.

A bench comprising Justices Dipankar Datta and Manmohan referred to a communication by the chief justice to all the high courts which emphasised the necessity to ensure that complaints against judicial officers should not be entertained unless supported by affidavit.

"When the authenticity of allegations against a judicial officer is required to be supported by an affidavit, there exists equal justification to insist upon a similar requirement in the case of public servants as well.

"No rational basis is discernible for drawing a distinction with regard to the insistence on an affidavit. The object underlying such a requirement is common in both cases, namely, to weed out false, frivolous, or vexatious complaints and to strike a balance between bringing public servants to book and protecting them against abuse of the judicial process," the bench said.

The top court clarified that the judicial magistrate has the authority to reject an application under sub-section (3) of Section 175 of BNSS, lodged against a public servant, where the allegations are wholly untenable, manifestly absurd, or so inherently improbable that no reasonable person could conclude that any offence is disclosed.

"However, it is needless to observe, such an order of rejection ought not to be based on whims and fancy but must have the support of valid reasons," the bench said.

Section 175 of the Bharatiya Nagarik Suraksha Sanhita, 2023, details the power of police officers to investigate cognizable cases without a magistrate's order. The top court's direction came while hearing a plea challenging an order of Kerala High Court on the issue of registration of FIR against three police officers for allegedly sexually assaulting a woman.

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