HC Can Entertain Plea U/S 528 BNSS To Monitor Probe By Forming SIT But Sufficient Cause For Not Approaching Magistrate Should Be Shown: P&H HC

The Punjab & Haryana High Court has made it clear that a High Court under Section 528 BNSS can entertain a plea for registering an FIR and monitoring an investigation by forming a Special Investigating Team (SIT) but the complainant should show a sufficient reason for not approaching the Ilaqa Magistrate first

Justice Sumeet Goel said, "In a given case, if the facts/circumstances so warrant, the High Court is well within its jurisdiction to entertain and consider plea(s) seeking registration of an FIR, monitoring of investigation in an FIR, constituting an SIT (Special Investigating Team), change of investigating officer & all such prayer(s) of such kind and nature. However, it would be prudent that an applicant/complainant, while seeking to invoke the jurisdiction of a High Court under Section 528 of BNSS, 2023 in the first instance seeking prayer(s) of above nature, shows sufficient cause for not having approached the Illaqa/Jurisdictional Magistrate in the first instance."

These observations were made while hearing the plea of an alleged rape victim stating that the police are not filing an FIR against the accused for committing rape and impregnating the complainant and only  Sections 354, 323, 506 and 34 of IPC in the FIR.

A status report was filed by the DSP wherein it was mentioned that allegations levelled by the petitioner against a man regarding developing physical relations with her prior to marriage and impregnating her could not be proved, as the petitioner failed to produce any cogent evidence and as such no action can be taken.

After hearing the submissions, the Court considered the question, "whether a person/complainant ought to approach the High Court under Section 528 of BNSS, 2023 for issuance of directions for registration of an FIR or such person/complainant ought to approach the concerned Illaqa/Jurisdictional Magistrate, in view of Sections 173 & 175 of BNSS, 2023, in the first instance."

The Court noted that Section 528 of BNSS, 2023 is, in fact, a reiteration of statutory recognition of the doctrine of inherent jurisdiction of a High Court.

These powers are to be exercised keeping in view the following salutary purposes: (a) to give effect to any order passed under the code (b) to prevent abuse of process of any Court (c) to otherwise secure the ends of justice, added the Court.

It further highlighted that the statutory provisions of Sections 173 and 175 of BNSS, 2023 clearly show that the Magistrate has been endowed with all requisite powers including direction for registration of an FIR, monitoring investigation in such FIR and direct for change of investigating officer if circumstances of the case so require.

"The factum of a Magistrate having requisite powers to direct for registration of an FIR, monitor investigation therein as also order to change of investigating officer cannot be construed to be ipso facto taking away the innate powers of a High Court under Section 528 of BNSS, 2023 to issue such direction(s). Ordinarily, a litigant/ complainant ought to approach the Magistrate in the first instance for issuance of such like direction(s) but the same does not divest a High Court of its inherent plenary jurisdiction," added the judge.

Justice Goel observed that the tendency to approach a High Court directly even when an independent and robust mechanism for dispensation of justice is available in the Illaqa or Jurisdiction Magistrate is "worrisome."

The Court opined that Magistracy is a robust judicial set-up which has been specifically put in place for expeditious and accessible judicial remedy within reasonable and easy reach of the litigant.

"By-passing the Magistracy, without a justifiable cause, is patent subversion of judicial authority in general. Instead knocking at the doors of a High Court directly indicates indifference towards the judicial process. Indubitably, the volume of such petitions pouring into a High Court is stalling the working as also proficiency of the Constitutional Court," it said.

It concluded that "unless there are accentuating facts/ circumstances, a litigant/ complainant ought not to approach a High Court under Section 528 of BNSS, 2023; in the first instance; seeking direction(s) for registration of an FIR, fair investigation therein etc. This Court must hasten to add a word of caution viz a petition filed under Section 528 of BNSS, 2023 thereby invoking the inherent powers of a High Court for above said like prayer(s) is “maintainable” in stricto- sense but it may not be “desirable” to entertain such a petition lest High Court may be flooded with litigations of this kind."

In light of the above, the Court dismissed the plea stating that the petitioner ought to have approached the illaqa Magistrate first invoking Section 175 of BNSS, 2023.

Mr. Nitish Garg, Advocate for the petitioner.

Mr. Adhiraj Singh Thind, AAG Punjab.

 AXXXXX v. State of Punjab and others [CRM-M-34678-2024]

Citation: 2024 LiveLaw (PH) 256