Magistrate Cannot Mechanically Order FIR Against Public Servants Without Following S.223 BNSS Safeguards: Rajasthan High Court
The Rajasthan High Court has held that a Magistrate cannot take cognizance of an offence against public servants or direct registration of FIR under Section 175 BNSS without first following the safeguards provided under Section 223 BNSS.For context, Section 223 BNSS lays down the requirement for providing opportunity of being heard to the accused, before the Magistrate takes cognizance....
The Rajasthan High Court has held that a Magistrate cannot take cognizance of an offence against public servants or direct registration of FIR under Section 175 BNSS without first following the safeguards provided under Section 223 BNSS.
For context, Section 223 BNSS lays down the requirement for providing opportunity of being heard to the accused, before the Magistrate takes cognizance.
Moreover, Section 223(2) BNSS lays two mandatory conditions before taking cognizance when the complaint is against public servant for acts committed during discharge of their official duties. These include: a) providing opportunity of being heard to the public servant; b) obtaining a factual report from the superior officer.
The bench of Justice Farjand Ali considered the fact that the complaint against the public servants was registered by a person against whom an FIR was registered at the same police station, and charge sheet was filed by the police. Further, the investigating officer, in the present matter had submitted a negative final report opining a retaliatory motive behind the FIR.
The Court observed that due to the intertwined nature of allegations and the surrounding factual complexities, it becomes imperative to adopt a cautious and balanced approach, ensuring that while the grievance of the complainant is not prematurely discarded, adequate protection is also afforded to public servants against vexatious or retaliatory prosecution.
"The order, being non-speaking and mechanical, fails to demonstrate the satisfaction required for invoking powers under Section 175(3) of the BNSS. It is evident that the learned Magistrate has proceeded with a closed or uncritical approach, without meaningfully engaging with the contents of the complaint. A bare perusal of the complaint would have revealed that the allegations are directed against public servants in relation to acts purportedly performed in discharge of their official duties, thereby attracting the rigours of Section 223(2) of the BNSS. In such a situation, the Magistrate ought to have, before directing registration of an FIR, at least considered whether it was necessary to call for a response from the concerned public servants and to obtain a report from their superior officer, as statutorily mandated.
The failure to undertake such an exercise indicates that the power under Section 175(3) has been invoked in a perfunctory manner, without due regard to the legislative safeguards designed to prevent misuse of criminal process against public officials. The law does not countenance a blind or mechanical forwarding of complaints for registration of FIR; rather, it obligates the Magistrate to read, analyse, and scrutinize the complaint with care, and upon such scrutiny, to form an informed opinion as to whether the case falls within the domain of Section 175(3) or calls for recourse to the procedure under Section 223".
For context, the Court was hearing a petition challenging the order of the Special Judge, SC/ST Act, wherein based on a complaint, the court had directed to register FIR against the petitioners.
Before filing of this complaint, an FIR was registered against the complainant, in which the investigating agency had submitted a charge-sheet. Subsequently, the complainant filed a complaint in the same police station alleging irregularities in investigation, abuse, use of force, and assault, against the petitioners-police officers.
A negative police report was filed in the matter, with an observation that the FIR seemed to have been filed with a motive to exert pressure on the petitioners, as a retaliation.
Irrespective, the Special Court directed to register an FIR against the petitioners. Hence, the petition was filed on the ground that the order was passed without compliance with mandatory requirement of Section 175(4), BNSS.
After hearing the contentions, the Court highlighted the backdrop of pre-existing criminal litigation and cross FIRs between parties. Further, the fact that the allegations in the present matter largely emanated from the discharge of official duties by the petitioners.
The Court held that in such circumstances, the allegations of abuse and assault became highly disputes questions of facts, and could not be mechanically accepted at face value without preliminary judicial scrutiny. In this background, the Court made a reference to Section 223.
“The said provision marks a conscious and substantive departure from the earlier regime by introducing a safeguard at the pre-cognizance stage. The scheme of Section 223 BNSS clearly envisages that the process of taking cognizance is no longer an instantaneous act but a calibrated judicial exercise, wherein the Magistrate is required to apply his mind in a structured and informed manner…This statutory requirement is not an empty formality but a substantive safeguard intended to protect public servants from frivolous, retaliatory, or vexatious prosecutions arising out of their official functions.”
The Court held that the object of the provision was to strike a balance between complainant's right to seed redressal and necessity to shield public servants from undue harassment for performing their duties in a bona-fide manner.
It was further stated that directing registration of FIR and investigation under Section 175(3) did not strictly mean taking of cognizance at that stage. However, that did not mean that the power had to be exercised in a casual manner.
At the same time the Court clarified that the expression “while taking cognizance” used in Section 223 was of wide amplitude, and signified not only final act of cognizance, but also the preparatory stage where the Magistrate was required to judiciously assess the complaint before moving further.
In this background, the Court observed that in the present matter, the Special Judge proceeded with an uncritical approach, without meaningfully engaging with the contents of the complaint or following the mandatory requirement under Section 223, BNSS.
Accordingly, the directions of the Special Judge were set aside and the matter was remanded for fresh adjudication, while mandatorily adhering to Section 223.
Title: Prashant Kaushik & Ors. v State of Rajasthan & Anr.
Citation: 2026 LiveLaw (Raj) 189