S.175(3) BNSS | Can Plea Seeking FIR Be Sent To Magistrate When Special Judge Finds No Offence Under Special Statute? Delhi High Court To Decide
The Delhi High Court is set to decide a question as to whether a Special Court, after finding that no offence under any special statute is prima facie made out, should transmit an application seeking registration of an FIR under Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) to the concerned Magistrate.Justice Girish Kathpalia raised the question while hearing two pleas filed...
The Delhi High Court is set to decide a question as to whether a Special Court, after finding that no offence under any special statute is prima facie made out, should transmit an application seeking registration of an FIR under Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) to the concerned Magistrate.
Justice Girish Kathpalia raised the question while hearing two pleas filed by various police officials from Delhi and Haryana challenging an order passed by the Special Judge (POCSO Act), directing the concerned DCP to register an FIR against them under relevant provisions of Bharatiya Nyaya Sanhita, 2023
The pleas arose from an incident in which police officials had gone to the residence of a woman in Delhi's Badarpur, to apprehend her son, who was allegedly involved in several criminal cases.
According to the police officials, the woman resisted the arrest and allegedly threatened to implicate them in false POCSO cases through complaints by her granddaughters.
The police officials claimed that the proceedings were video-recorded and that they subsequently took the woman to PS Jaitpur for recording a GD entry and thereafter to Mahila Thana, Sector-16, Faridabad for questioning.
The woman thereafter moved an application under Section 175(3) of BNSS before the Special Judge (POCSO Act) seeking FIR against the alleged delinquent officers, which was allowed.
The police officials argued that the Special Judge had, in the impugned order, recorded a prima facie finding that no offence under the POCSO Act was made out against them, after examining the CCTV footage and video recordings on record.
It was therefore contended that once the Special Judge found that no POCSO offence was made out, the application seeking FIR ought to have been transmitted to the concerned Magistrate, instead of the Special Judge proceeding to pass the impugned direction.
The counsel for the woman, however, submitted that the finding regarding absence of a POCSO offence was only prima facie in nature and did not prevent the local police from registering an FIR if the requisite material was available.
It was further argued that Section 175(3) of BNSS read with Section 173 and Section 199 of BNS mandates registration of an FIR without a preliminary inquiry.
In his order, Justice Kathpalia noted that the operative portion of the impugned order did not merely direct registration of an FIR under any provision of law, but specifically directed registration under the relevant provisions of the BNS.
The Court accordingly framed the question:
“Whether in a case where the Special Judge under any statute arrives at a finding that no offence under the said statute is made out, they should transmit the application under Section 175(3) BNSS to the magisterial court or not.”
The Court said that both sides would have to address the issue, while staying the operation of the impugned order till the next date.
The matter is now listed on December 18. .
Title: SUB INSPECTOR JITENDER & ORS v. STATE (NCT OF DELHI) & ANR & other connected matter