Magistrate Can't Mechanically Order FIR Against Public Servants Without Following S.223 BNSS Safeguards: Rajasthan High Court

The Rajasthan High Court has held that Magistrate cannot under Section 175(3) BNSS mechanically direct registration of FIR against public servants over acts committed in discharge of their official duties, without following the statutory safeguards provided under Section 223(2) BNSS. In doing so the court underscored that Section 223(2) is a substantive safeguard so that criminal law is not used as a tool of vendetta. Section 223(2) specifically mandates that where the complaint is directed against a public servant for acts purportedly committed in discharge of official duties, the Magistrate shall not take cognizance unless the public servant is given an opportunity to explain the circumstances leading to the alleged incident and a report containing the factual matrix is obtained from the superior officer.Setting aside the Special Court's directions to register FIR against petitioner-police officials, Justice Farjand Ali held that the object of Section 223(2) BNSS was to balance the right of a complainant to seek redressal and the necessity to shield public servants from undue harassment."...when a Magistrate directs registration of an FIR and investigation under Section 175(3), he does not, strictly speaking, take cognizance of the offence at that stage. However, such a proposition cannot be construed to mean that the power under Section 175(3) is to be exercised in a casual, mechanical, or routine manner. The very act of examining a complaint, appreciating its averments, and forming an opinion as to whether the matter warrants invocation of police machinery or requires further judicial scrutiny necessarily postulates application of judicial mind. Once the Magistrate embarks upon such evaluative exercise and reaches a stage where he considers whether an inquiry ought to be undertaken on the complaint, it reflects an incipient application of mind akin to the stage “while taking cognizance” as contemplated under Section 223 of the BNSS".The court said expression “while taking cognizance” used in Section 223 signifies not just the final act of cognizance, but also the "preparatory stage" where the Magistrate is required to judiciously assess the complaint before proceeding further.The court further held that Section 223 BNSS marks a conscious and substantive departure from the earlier regime by introducing a safeguard at the pre-cognizance stag and its scheme 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.On the requirements enumerated under Section 223(2) the court said that it was 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 provision acts as a judicial filter, a protective sieve, to ensure that criminal law is not set into motion mechanically or as a tool of vendetta, particularly in cases where allegations stem from official actions. It ensures that before the coercive machinery of criminal law is activated, the Magistrate is equipped with a more complete and balanced perspective, having considered the version of the proposed accused and the administrative context in which the alleged acts occurred...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," the court added. The court thus held that even if in the strict technical sense cognizance is not said to have been taken, the statutory safeguards embedded under Section 223, particularly in cases involving public servants, cannot be rendered otiose by resorting to Section 175(3) in a routine manner.The Court was hearing a revision petition that challenged order of SC/ST special judge that directed registration of FIR against the petitioners-police officers. It was revealed that in the background of this, an FIR was registered against the respondent for causing hurt and wrongful restraint by a third person. This was followed by a counter FIR by the respondent against the petitioners. However, in the latter FIR, a negative final report was filed with an observation that the same appeared to be filed with an oblique motive. This was followed by a criminal complaint by the respondent against the petitioners under BNS and SC/ST act. Pursuant to this complaint, the special judge directed registration of FIR against the petitioners against...

Magistrate Can't Mechanically Order FIR Against Public Servants Without Following S.223 BNSS Safeguards: Rajasthan High Court

Nupur Agrawal

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