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

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 –

1. 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).
2. Secondly, the Magistrate has been empowered to conduct such enquiry as he deems necessary before making an order directing registration of FIR.
3. 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 had further underlined that the aforesaid changes were introduced to adapt to the procedural practices and safeguards which have been introduced by judicial decisions aimed at curbing the misuse of invocation of powers of a Magistrate by unscrupulous litigants for achieving ulterior motives.

“Further, by requiring the Magistrate to consider the submissions made by the concerned police officer before proceeding to issue directions under Section 175(3), BNSS has affixed greater accountability on the police officer responsible for registering FIRs under Section 173. Mandating the Magistrate to consider the submissions of the concerned police officer also ensures that the Magistrate applies his mind judicially while considering both the complaint and the submissions of the police officer thereby ensuring that the requirement of passing reasoned orders is complied with in a more effective and comprehensive manner,” it had further observed.

Having regard for the aforesaid position of law, Justice Satapathy said that it not known whether the complainant has in fact produced the affidavit as required under Section 173(4) of BNSS in case of refusal on the part of an officer in charge of a police station to record the information.

The Court also emphasized on the importance of sending of substance of such information in writing and by post to the SP concerned, which cannot be termed as empty formality inasmuch as if the SP is satisfied that such information discloses the commission of a cognizable offence, he shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him.

“It is also not found from the aforesaid order that what inquiry the learned Magistrate has made before ordering for registration of the FIR and investigation, but certainly neither he has called for any submissions from the concerned police officials nor did she provide any opportunity to the concerned police officials to make submissions which is a mandatory requirement as held by the Apex Court in Om Prakash Ambadkar (supra),” it added.

Furthermore, the Court highlighted Section 175(4) of BNSS, which provides that Magistrate may upon receiving a complaint against a public servant arising in course of discharge of his official duties, order an 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.

However, in the present case, the Bench observed, the Magistrate neither sought for any report containing the facts and circumstance of the incident from the officer superior to the police officials arrayed as accused persons in the complaint nor has considered the assertion made by the public servant(s) as to the situation that led to the incident so alleged.

“In this case, on a studied scrutiny of the order directing an investigation as passed by the learned JMFC-II, Bhubaneswar, it appears that neither the Magistrate has discussed the requirement of investigation by police nor has referred to any foundational facts to direct for an investigation by the police,” it observed.

Therefore, although such order directing the investigation was not challenged, the Court held that such procedural error may subsequently give rise to jurisdictional error, which cannot be allowed to be perpetuated once it is noticed by the High Court.

Accordingly, the order of the JMFC, which directed investigation, was set aside and the matter was remitted back to the Court concerned for passing of fresh order in strict accordance with the provisions prescribed in the BNSS, as discussed above.

Case Title: Prajna Prakash Nayak v. State of Odisha & Ors.

Case No: CRLMP No. 107 of 2025

Date of Judgment: February 05, 2025

Counsel for the Petitioner: Mr. H.S. Mishra, Advocate

Counsel for the State: Mr. R.B. Mishra, Addl. Public Prosecutor

Citation: 2025 LiveLaw (Ori) 25

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