BNSS Expands Safeguards For Public Servants Before Judicial Order For FIR Registration : Supreme Court Explains In Pinarayi Vijayan Case

A bench of Justice Joymalya Bagchi and Justice V Mohana made the observation while allowing former Kerala Chief Minister Pinarayi Vijayan and other petitioners to challenge a Kerala High Court Single Judge's direction to register an FIR in the CMRL-Exalogic case.

“Today 175 subsection 4, if it is a public servant, an opinion of the public servant is taken before a direction magistrate gives for FIR. That public servant has the right to have his arguments heard on merits before shutting the door by saying that you have no locus”, Justice Bagchi said during the hearing.

The Court explained that Section 156(3) CrPC did not require a public servant or the public servant's superior to participate in the process before a Magistrate directed the registration of an FIR. Section 175(4) BNSS, however, incorporates a procedure involving the public servant and the superior officer in case of alleged offences committed during the course of the discharge of his official duties, the Court said.

“That apart, the scheme with regard to registration of an FIR through judicial intervention under BNSS has undergone a change from what was envisaged under the Code of Criminal Procedure. In the erstwhile Code, Section 156, sub-section 3 did not require the involvement of a former public servant or his superior in the process of taking a decision to issue direction for registration of FIR. However, under Section 175, sub-section 4, BNSS, such a requirement has been incorporated”, the Court observed.

The Court clarified that it was referring to the provision not to decide its applicability to the allegations against Vijayan, but to explain the expanded procedural safeguards available to a potential accused before registration of an FIR under the new criminal procedure law.

“We have referred to Section 175, sub-section 4, BNSS, not in reference to the merits of the case before us, but to elucidate the expansive jurisdiction envisaged in the new Code with regard to a potential accused prior to registration of FIR and nothing more,” the Court said.

The Court held that the petitioners had made out a prima facie case to challenge the Single Judge's order, particularly because it directed not only registration of an FIR but also commencement of an investigation under the Prevention of Corruption Act.

The Court set aside the High Court Division Bench's refusal to grant the petitioners leave to appeal and permitted them to pursue their appeals. It also stayed the investigation for seven days to enable them to seek interim relief from the High Court.

How Section 175(4) BNSS differs from Section 156(3) CrPC

Section 156 CrPC read –

“156. Police Officer's power to investigate cognisable case.

(1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognisable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned.”

Thus, Section 156(3) CrPC empowered a Magistrate to order a police investigation into a cognisable offence. Section 156 did not contain any provision requiring the Magistrate to obtain a report from the superior officer of a public servant or consider the public servant's response before directing an investigation.

Section 175 BNSS, the corresponding provision of section 156 CrPC, reads –

“175. Police officer's power to investigate cognizable case.

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIV:Provided that considering the nature and gravity of the offence, the Superintendent of Police may require the Deputy Superintendent of Police to investigate the case.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 210 may, after considering the application supported by an affidavit made under sub-section (4) of section 173, and after making such inquiry as he thinks necessary and submission made in this regard by the police officer, order such an investigation as above-mentioned.

(4) Any Magistrate empowered under section 210, may, upon receiving a complaint against a public servant arising in course of the discharge of his official duties, order investigation, subject to – (a) receiving a report containing facts and circumstances of the incident from the officer superior to him; and (b) after consideration of the assertions made by the public servant as to the situation that led to the incident so alleged.”

Section 175(4) of BNSS introduces a specific procedure for complaints against public servants in connection with acts alleged to have been committed in the discharge of their official duties.

Under the provision, a Magistrate may order an investigation after considering the assertions of the public servant and receiving a report on the incident from the public servant's superior officer. The provision's application depends on the nature of the allegations and their connection with official duties.