S.175(4) BNSS | Magistrate Can Order Probe Against Public Servant Only After Hearing Him & Receiving Report From Superior Officer: Orissa HC

The Orissa High Court has held that a Magistrate can order investigation against a public servant only after complying with the requirements provided under Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), i.e. upon receiving report containing facts and circumstances of the incident from the officer superior to him and after considering the assertions made by the public servant as to the situation that led to the incident so alleged. While setting aside an order for investigation against highly-ranked police officials, the Single Bench of Justice Gourishankar Satapathy observed –“The new provision in Sub-Section(4) to Section 175 of the BNSS is an additional safeguard provided for the public servant against whom an accusation of committing cognizable offence arising in course of discharge of his official duty has been made and, therefore, any Magistrate who is empowered to take cognizance U/S.210 of BNSS may order an investigation against a public servant upon receiving a complaint arising in course of discharge of his official duty, only after complying with the procedure prescribed in Section 175(4)(a)(b) of the BNSS.” Case Background The petitioner and his wife claimed to be the victims of fraud, forgery and cheating of Rs. 6.2 crores. They had approached the Infocity Police Station and accordingly, two FIRs were registered against certain persons. It is alleged that during the pendency of investigation of these two cases, the then Deputy Commissioner of Police, Bhubaneswar tried to influence the petitioner and his wife by calling them to the Police Station and trying to contact them over WhatsApp call and thereby, pressurized to withdraw the two cases in order to get into a compromise with the accused persons. When the petitioner and his wife did not entertain such interventions, they alleged that the police officials of the then Commissionerate Police, including Addl. DCPs, IICs and SI of Police pressurized them on different occasions to compromise under the active instruction of the then DCP. It was further asserted that the aforesaid police personnel had even abducted the petitioner at gun point and kept him in unlawful detention and tortured him and his wife mentally and physically by abusing, giving death threats and terrorizing them by trespassing into their house. The petitioner alleged that despite approaching the IIC, DCP and even the Police Commissioner multiple times, no FIR was registered and thereby, the petitioner lodged two e-FIRs. On August 04, 2024, the petitioner not only gave written complaint to the IIC but also lodged an e-FIR and also sent the copy of the written complaint by speed post to the IIC and the DCP, Bhubaneswar, but everything was in vain. Ultimately, he approached the JMFC-II, Bhubaneswar with a complaint and the Magistrate after being satisfied in the matter sent the complaint of the petitioner to the concerned IIC under Section 175(3) of the BNSS for registration of an FIR and carrying out investigation in the matter, but still no FIR was registered. Therefore, the petitioner approached the High Court with his grievance and prayed for an investigation by the Crime Branch. Court's Observations Before going into the merit of the petition, the Court flagged the procedural defects on the part of the JMFC in passing an order for investigation without complying with the provision of Section 175(3) of the BNSS. The Court noted that before ordering such an investigation, the Magistrate is required to consider the application, supported by an affidavit, made under Section 173(4), and after making such an inquiry as he deems necessary and submission made in this regard by the concerned police officer. Justice Satapathy referred to the recent ruling in Om Prakash Ambadkar v. State of Maharashtra & Ors., 2025 Live Law (SC) 139 wherein the Apex Court analysed the contours of Section 156(3) of the CrPC vis-à-vis its corresponding provision under Section 175(3) of the BNSS. It held that the following major changes were introduced by the latter provision – First, the requirement of making an application to the Superintendent of Police (SP) upon refusal by the officer in charge of a police station to lodge the FIR has been made mandatory, and the applicant making an application under Section 175(3) is required to furnish a copy of the application made to the Superintendent of Police under Section 173(4), supported by an affidavit, while making the application to the Magistrate under Section 175(3). Secondly, the Magistrate has been empowered to conduct such enquiry as he deems necessary before making an order directing registration of FIR. Thirdly, the Magistrate is required to consider the submissions of the officer in charge of the police station as regards the refusal to register an FIR before issuing any directions under Section 175(3). The top Court...

S.175(4) BNSS | Magistrate Can Order Probe Against Public Servant Only After Hearing Him & Receiving Report From Superior Officer: Orissa HC

Jyoti Prakash Dutta

Tags