Read Time: 16 minutes

Synopsis

The Supreme Court has said that Bhartiya Nagrik Suraksha Sanhita, 2023 has affixed greater accountability on the police officer responsible for registering FIRs, by requiring the Magistrate to consider the submissions made by the concerned police officer before proceeding to issue directions under Section 175(3), corresponding to Section 156(3), CrPC.

The apex court said that 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. 

A bench comprising Justices J.B. Pardiwala and R. Mahadevan highlighted that the changes introduced by Section 175(3) of the BNSS to the existing framework of Section 156(3), CrPC merely codify procedural practices and safeguards. These safeguards, established through judicial decisions, are aimed at preventing the misuse of a Magistrate's powers by unscrupulous litigants seeking to further ulterior motives.

In a judgment, the court discussed the changes brought to the scheme of Section 156 of the CrPC by the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023, while allowing an appeal by a police officer, Om Prakash Ambadkar against the Bombay High Court's order of October 16, 2019, which rejected his plea against the direction by the Judicial Magistrate First Class, Digras to lodge an FIR against the appellant under Sections 323, 294, 500, 504 & 506, IPC on a private complaint by an advocate.

The court pointed out that unlike Section 156(3) of the CrPC, any Magistrate, before ordering an investigation under Section 175(3) of the BNSS, is required to: 

a. Consider the application, supported by an affidavit, made by the complainant to the Superintendent of Police under Section 173(4) of the BNSS;

b. Conduct such inquiry as he thinks necessary; and

c. Consider the submissions made by the police officer.

The court also noted that an additional safeguard has been provided to a public servant against whom an accusation of committing a cognizable offence arising in the course of discharge of his official duty is made. An FIR can be ordered only after receiving a report containing facts and circumstances of the incident from the officer superior to the accused public servant; and after considering the assertions made by the accused public servant as regards the situation that led to the occurrence of the alleged incident.

The bench also made a comparison of Section 175(3) of the BNSS with Section 156(3) of the CrPC, which indicated three prominent changes that have been introduced by the enactment of BNSS as follows: 

a. First, the requirement of making an application to the Superintendent of Police 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).

b. Secondly, the Magistrate has been empowered to conduct such enquiry as he deems necessary before making an order directing registration of FIR.

c. 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).

In Priyanka Srivastava Vs State of UP (2015), the bench pointed out that the top court has observed that the requirement of supporting the complaint with an affidavit would ensure that the person making the application is conscious and also see that no false affidavit is made. Once an affidavit is found to be false, the applicant would be liable for prosecution in accordance with law. This would deter him from casually invoking the authority of the Magistrate under Section 156(3).

In the case at hand, the advocate filed the complaint before the judicial magistrate alleging the accused policemen had humiliated him on January 3, 2012. He claimed he also approached the Superintendent of Police, Yavatmal but still no FIR was lodged.

On January 9, 2012, the magistrate passed the order, directing the police authorities to register an FIR and undertake the necessary investigation.

"It appears that the Magistrate passed an order directing police investigation mechanically and without ascertaining whether the allegations levelled disclose commission of any offence or not," the bench said.

The court said there are prerequisites to be followed by the complainant before approaching the Magistrate under Section 156(3) of the CrPC which is a discretionary remedy as the provision proceeds with the word ‘may’. The Magistrate is required to exercise his mind while doing so. He should pass orders only if he is satisfied that the information reveals commission of cognizable offences and also about the necessity of police investigation for digging out of evidence neither in possession of the complainant nor can be procured without the assistance of the police. 

Examining the offences alleged against the appellant police officer, the court also said, it failed to understand how the act of a police officer assaulting the complainant within public view or public as alleged would amount to an obscene act. Obscene acts for the purpose of Section 294 have a particular meaning. Mere abusive, humiliating or defamatory words by themselves are not sufficient to attract the offence under Section 294 of the IPC, court said.

The court also found none of the ingredients to constitute the offence punishable under Sections 504 and 506 of the IPC respectively were borne out.

Further, the bench said, "We fail to understand how the Magistrate could have directed the police to investigate into the offence of defamation punishable under Section 500 of the IPC. We are at a loss to understand as to why this aspect was not looked into even by the High Court." 

In the case of Ramdev Food Products (P) Ltd Vs State of Gujarat reported in (2015), the bench said, there are prerequisites to be followed by the complainant before approaching the Magistrate under Section 156(3) of the CrPC which is a discretionary remedy as the provision proceeds with the word ‘may’. The Magistrate is required to exercise his mind while doing so. He should pass orders only if he is satisfied that the information reveals commission of cognizable offences and also about the necessity of police investigation for digging out of evidence neither in possession of the complainant nor can be procured without the assistance of the police. 

"The Magistrate ought to direct investigation by the police only where the assistance of the Investigating Agency is necessary and the Court feels that the cause of justice is likely to suffer in the absence of investigation by the police. The Magistrate is not expected to mechanically direct investigation by the police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not," the bench said.

The Magistrate is, therefore, not supposed to act merely as a Post Office and needs to adopt a judicial approach while considering an application seeking investigation by the Police, the court added.

In the case, the court noted the incident was of the year 2012. This court while admitting this appeal had stayed the investigation, it highlighted. 

"In the overall view of the matter, we are convinced that no case is made out to put the appellant/accused to trial for the alleged offence. Continuance of the investigation by the police will be nothing short of abuse of the process of law," the bench said.

Case Title: Om Prakash Ambadkar Vs The State of Maharashtra & Ors