Is Not The Magistrate A Prisoner Of Section 175 (3) Read With Section 173 (4) Of BNSS?
What impelled me to pen this article is the grievance voiced by some members of the Bar to the effect that on receiving “private complaints” all Magistrates are seeking the report of the Police before deciding to order investigation under Section 175 (3) of the Bharatiya Nagrik Suraksha Sanhita, 2023 (“BNSS” for short). 2. For a better assimilation of the problem, it may...
What impelled me to pen this article is the grievance voiced by some members of the Bar to the effect that on receiving “private complaints” all Magistrates are seeking the report of the Police before deciding to order investigation under Section 175 (3) of the Bharatiya Nagrik Suraksha Sanhita, 2023 (“BNSS” for short).
2. For a better assimilation of the problem, it may be necessary to make a comparative evaluation of Section 156 Cr.P.C. and Section 175 of BNSS by means of a tabular statement as given below—
S.156 Cr.P.C., 1973 | S.175 BNSS, 2023 | REMARKS |
Section 156: Police officer's power to investigate cognizable cases - (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 S.156 Cr.P.C., 1973 | Section 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 S.175 BNSS, 2023 | REMARKS |
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.
S.156 Cr.P.C., 1973 | 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 S.175 BNSS, 2023 | S. 175 (1) of BNSS has a proviso which is absent in S.156 (1) Cr.P.C. As per the said proviso, in the case of certain grave offences the investigation can be undertaken by a Deputy Superintendent of police. This is a welcome change. Sub-section (2) of both provisions is identical. S.175 (3) of BNSS contains certain pre-conditions the last of which is that before ordering investigation by the police, the Magistrate should consider the submission by the police officer. This article of mine is mainly focused on S. 175 (3) of BNSS. REMARKS |
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. | S.175 (4) of BNSS is a new provision in which if the Magistrate receives a private complaint against a “public servant” acting in discharge of his official duties, the Magistrate can order investigation only after obtaining a report from the official superior of the “public servant” and also after considering the assertions made by the “public servant”. This provision disregards the basic canons of criminal trial so far followed and will only add to the delay. |
3. Since Section 175 (3) of BNSS has to be read along with Section 173 (4) of BNSS, it is necessary to make a comparative evaluation of Section 154 Cr.P.C. and Section 173 BNSS as given below—
S.154 Cr.P.C., 1973 | S.173 BNSS, 2023 | REMARKS |
Section 154: Information in cognizable cases (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf: S.154 Cr.P.C.,1973 | Section 173: Information in cognizable cases (1) Every information relating to the commission of a cognizable offence, irrespective of the area where the offence is committed, may be given orally or by electronic communication to an officer in charge of a police station, and if given— (i) orally, it shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it; (ii) by electronic communication, it shall S.173 BNSS, 2023 | S.154 Cr.P.C. has only 3 sub-sections. S. 173 BNSS has 4 sub-sections. S.154 (1) Cr.P.C. by and large, corresponds to S.173 (1) of BNSS which, however, enables the giving of “information” relating to the commission of a cognizable offence irrespective of the area where the offence was committed. (This highlighted portion which is characteristic of a “Zero FIR” is absent in S.154 (1) Cr.P.C). REMARKS |
Provided that if the information is given by the woman against whom an offence under Section 326A, Section 326B, Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, Section 376DB, Section 376E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman S.154 Cr.P.C.,1973 | be taken on record by him on being signed within three days by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may by rules prescribe in this behalf: Provided that if the information is given by the woman against whom an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77, section 78, section 79 or section 124 of the Bharatiya Nyaya Sanhita, 2023 is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer: S.173 BNSS, 2023 | 1st proviso to S.154 (1) Cr.P.C. corresponds to the 1st proviso to S.173 (1) BNSS. REMARKS |
police officer or any woman officer: Provided further that-- (a) in the event that the person against whom an offence under Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, Section 376DB, Section 376E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's S.154 Cr.P.C.,1973 |
Provided further that— (a) in the event that the person against whom an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77, section 78, section 79 or section 124 of the Bharatiya Nyaya Sanhita, 2023 is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be; S.173 BNSS, 2023 | Clause (a) of the 2nd proviso to Section 154 (1) Cr.P.C. corresponds to Clause (a) of the 2nd proviso to Section 173 (1) BNSS. REMARKS |
choice, in the presence of an interpreter or a special educator, as the case may be; (b) the recording of such information shall be videographed; (c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of Section 164 as soon as possible. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. S.154 Cr.P.C.,1973 | (b) the recording of such information shall be videographed; (c) the police officer shall get the statement of the person recorded by a Magistrate under clause (a) of sub-section (6) of section 183 as soon as possible. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant or the victim. S.173 BNSS, 2023 | Clause (b) of the 2nd proviso to S.154 (1) Cr.P.C. corresponds to Clause (b) of the 2nd proviso to S.173 (1) BNSS. Clause (c) of the 2nd proviso to S.154 (1) Cr.P.C. corresponds to Clause (c) of the 2nd proviso to S.173 (1) Cr.P.C. S.154 (2) Cr.P.C. corresponds to S.173 (2) of BNSS. REMARKS |
| (3) Without prejudice to the provisions contained in section 175, on receipt of information relating to the commission of any cognizable offence, which is made punishable for three years or more but less than seven years, the officer in charge of the police station may with the prior permission from an officer not below the rank of Deputy Superintendent of Police, considering the nature and gravity of the offence,— (i) proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of fourteen days; or (ii) proceed with investigation when there exists a prima facie case. | S.173 (3) of BNSS is a new provision providing for a “preliminary enquiry” to be conducted by the SHO in certain category of cases. This provision is absent in Section 154 Cr.P.C and gives statutory recognition to “preliminary enquiry” which was approved by the Constitution Bench of the Supreme Court in Lalita Kumari v. Govt. of U.P. AIR 2014 SC 187, but deviates from “Lalita Kumari” to a considerable extent. |
S.154 Cr.P.C.,1973 | S.173 BNSS, 2023 | REMARKS |
(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence. | (4) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1), may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Sanhita, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence failing which such aggrieved person may make an application to the Magistrate. | S.154 (3) Cr.P.C. corresponds to S.173 (4) of BNSS. But, the last part of S.173 (4) gives the aggrieved first informant to move the Magistrate only if his application to the SP has failed. There was no such restriction in S.154 (3) of Cr.P.C. This article of mine is also focused on the last highlighted part of Section 175 (4) of BNSS. |
4. As per the Code of Criminal Procedure, 1973, (“Cr.P.C.” for short), on receipt of a “private complaint” alleging a cognizable offence, one of the options available to the Magistrate was to forward the “complaint” to the officer-in-charge of the Police Station (“SHO” for short) concerned for investigation under Section 156 (3) Cr.P.C and the said option could be exercised by the Magistrate without exercising the other option of taking cognizance of the offence. (Vide para 10 of Gopal Das Sindhi v. State of Assam AIR 1961 SC 986 = 1961 KHC 606 – 3 Judges – S. J. Imam, K. Subba Rao, Raghubar Dayal – JJ; Para 31 of A. R. Antulay v. R. S. Nayak AIR 1984 SC 718 = (1984) 2 SCC 500 – 5 Judges – D. A. Desai, R. S. Pathak, O. Chinnappa Reddy, A. P. Sen, V. Balakrishna Eradi – JJ; Tula Ram v. Kishore Singh AIR 1977 SC 2401 = (1977) 4 SCC 459 – S. Mutaza Fazal Ali, P. S. Kailasam; Paras 11 and 12 of Srinivas Gundluri v. SEPCO Electric Power Construction Corporation (2010) 8 SCC 206 = 2010 Cri.L.J. 4457 – P. Sathasivam, Anil R Dave – JJ.)
5. The binding precedent under the Cr.P.C was that instead of taking cognizance of the offence (by proceeding under Section 200 and the subsequent Sections of that Chapter in the Cr.P.C), if the Magistrate forwards the “complaint” for investigation under Section 156 (3) Cr.P.C he is not taking cognizance of the offence. (Vide para 9 of R. R. Chari v. State of U.P. AIR 1951 SC 207 = 1951 Cri.L.J. 775 – 3 Judges – M. H. Kania CJI, M. Patanjali Sastri, S. R. Das – JJ; Para 8 of Narayandas Bhagwandas Madhavdas v. State of W. B. AIR 1959 SC 1118 = 1959 Cri.L.J. 1368 – S. J. Imam, J. L. Kapur – JJ; Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy AIR 1976 SC 1672 = (1976) 3 SCC 252 – R. S. Sarkaria, P. N. Shingal – JJ; Paras 46 and 47 of Sunil Bharti Mittal v. Central Bureau of Investigation AIR 2015 SC 923 = (2015) 4 SCC 609 – 3 Judges – H. L. Dattu CJI, Madan B. Lokur, A. K. Sikri – JJ).
6. In Kishun Singh v. State of Bihar (1993) 2 SCC 16 = 1993 Cri.L.J. 1700 = 1993 KHC 1192 – A. M. Ahmadi, N. P. Singh, it was observed as follows:-
“The object (of Section 190 Cr.P.C.) is to ensure the safety of a citizen against the vagaries of the Police by giving him the right to approach the Magistrates directly if the Police does not take action or he has reason to believe that no such action will be taken by the Police.” (Vide para 7)
Again the Bench further observed as follows:-
“We have already pointed out earlier the two alternative modes in which the criminal law can be set in motion – by the filing of “information” with the police under Section 154 of the Code or upon receipt of a “complaint” or information by a Magistrate. The former would lead to investigation by the Police and may culminate in a “Police Report” under Section 173 of the Code on the basis whereof cognizance may be taken by the Magistrate under Section 190 (1) (b) of the Code. In the latter case, the Magistrate may either order investigation by the Police under Section 156 (3) of the Code or himself hold an inquiry under Section 202 before taking cognizance of the offence under Section 190 (1) (a) or (c) as the case may be.” (Vide para 13.)
In para 11 of State of Gujarat v. Girish Radhakrishnan Varde (2014) 3 SCC 659 – G. S. Singhvi, Gyan Sudha Misra – JJ, the Apex Court observed as follows:-
“The scheme underlying Cr.P.C. clearly reveals that any one who wants to give “information” of an offence may either approach the Magistrate or the officer-in-charge of the police station.”
Even otherwise, a perusal of Section 190 (1) Cr.P.C. will show that a “complaint” is an independent source for instituting a criminal case and it does not depend upon a “Police Report” which is another independent source for instituting a criminal case. Thus, it was not compulsory under the Cr.P.C. for the aggrieved complainant to move the police (SHO) first before approaching the Magistrate with a private complaint. Both options were available to the complainant in the alternative. Interestingly, the scheme under Section 190 (1) Cr.P.C. is kept intact by Section 210 of BNSS providing for alternate sources to ultimately reach the Magistrate. But, when it comes to moving the Magistrate by means of a private complaint, the said source is made available to the aggrieved complainant only if he exhausts the remedy before the Police. Now under Section 175 (3) of BNSS the complainant in a “private complaint” cannot straightaway seek from the Magistrate an order for investigation by the Police without first exhausting his right to move the police (SHO) initially under Section 173 (1) of BNSS (corresponding to Section 154 (1) Cr.P.C.) and if the said step taken by him has been unsuccessful, then he will have to move the superintendent of Police (SP) under Section 173 (4) of BNSS and it is only if he fails to get an order from the SP that he can approach the Magistrate under Section 175 (3) of BNSS in view of the last part of Section 175 (4) of BNSS, highlighted by me in the Second Tabular Statement at the appropriate place. The Magistrate when approached under Section 175 (3) of BNSS can order an investigation only –
- after considering the application by the complainant made to the SP under Section 173 (4) of BNSS and supported by an affidavit. (Vide S. 175 (3), and
- after making an inquiry as he thinks necessary. (Vide S. 175 (3), and
- after considering the submission made in this regard by the police officer. (Vide S. 175 (3)
The above pre-conditions mean that the complainant will have to produce before the Magistrate the application filed by him under Section 173 (4) of BNSS before the SP and it should be supported by an affidavit. The Magistrate will have to then conduct an inquiry and should also give notice of the complaint to the Police Officer concerned. It is only after considering the submission by the Police Officer can the Magistrate order an investigation under Section 175 (3) of BNSS. By the time, the above statutory formalities are complied with, precious evidence in support of the offence alleged, would be destroyed. Thus, without initially moving the SHO first and if unsuccessful, without then unsuccessfully moving the SP also, the aggrieved complainant cannot approach the Magistrate with a private complaint. (Vide the highlighted last portion of Section 173 (4) of BNSS). The Magistrate also cannot order an investigation without considering the submissions of the police officer. This means that the aggrieved person cannot have a direct judicial remedy against the commission of a cognizable offence without first going to the police. The hands of the Magistrate are also tied since he can order investigation under Section 175 (3) of BNSS only after considering the aforementioned factors including the submissions of the police officer. By giving precedence to the Police over the Magistracy, the framers of BNSS have really trampled upon the valuable right of access of the common man to justice. Even though, we have Janamythri (People Friendly) Police Stations in abundance, very rarely does one come across “a real friend” in a Policeman. If many of the present day reports could be believed, one has to say that Justice Ahmadi was using a mild expression by calling it “the vagaries of the police”.
7. After the verdict of the Supreme Court in Priyanka Srivastava v. State of U.P. AIR 2015 SC 1758 = (2015) 6 SCC 287 – Prafulla C. Pant, Dipak Misra – JJ, it could be said that even under the Cr.P.C the complainant could get an order for investigation by the Police under Section 156 (3) Cr.P.C only on the production of an affidavit. But, the above pre-condition was applicable only if the complainant was seeking from the Magistrate an order for investigation. The requirement of an affidavit would not apply if the Magistrate were to suo motu order an investigation under Section 156 (3) Cr.P.C. Now, it is doubtful whether the Magistrate can suo motu order investigation under Section 175 (3) of BNSS without proof of the complainant having exhausted his remedies under Section 173 (4) of BNSS and without at least considering the submissions of the Police Officer which pre-supposes a notice to such police officer and a submission, either oral or written, made by such police officer.
8. Is the aforesaid revised scheme under the BNSS congenial towards dispensation of justice or will it not amount to dispensing with justice ?
By materially deviating from the Cr.P.C in this regard, the common man's access to a Court of justice has been virtually denied by insisting that he should first go to the police for redressing his grievances. Under the erstwhile Cr.P.C, in cases where the police failed or refused to entertain an “information” regarding the commission of a cognizable offence, the aggrieved person could approach the Magistrate under Section 2(d) read with Section 200 Cr.P.C and could invoke the power of the Magistrate under Section 156 (3) Cr.P.C. Without first approaching the police the aggrieved person had also the right royal route of straightaway moving the Magistrate concerned under Section 200 Cr.P.C and could also, if necessary, invoke the power of the Magistrate under Section 156 (3) Cr.P.C. It was with a view to avoid misuse of the said provision that the Supreme Court of India in Priyanka Srivastava (Supra - AIR 2015 SC 1758) insisted on an affidavit by the party seeking from the Magistrate an order for police investigation. Even without any such affidavit the Magistrate could suo motu order police investigation under Section 156 (3) Cr.P.C.
9. While statutory intervention by replacing the law or by amending the existing law, may be necessary for ironing out the creases in the existing law, any such intervention if attempted without having in mind its implications, whether immediate or farfetched, may not only be counter-productive, but may also work injustice to the common man. The last part of Section 173 (4), as highlighted hereinabove, read with Section 175 (3) of BNSS, is a glaring example of legislative tinkering with the “complainant friendly” law which was being followed in this country for decades together. It is hoped that the Constitutional Courts in this country will not leave the common man in the lurch to be at the mercy of the police without any ray of hope of bypassing the Police and directly approaching the judicial Magistrate for redressal of his grievances.
Author is a Former Judge, High Court of Kerala.
Views Are Personal