Madras High Court · 2025

Crl.RC.No.362 of 2025For Petitioners : Mr.M.DeivanandamFor R1:Mr.M.Senthil KumarFor R2& R3: Mr.A.Gopinath Government Advocate (Crl.Side)ORDERThis Criminal Revision petition has been filed challenging the order dated 31.01.2025 in Crl.M.P.No.275 of 2025 on the file of the Principal Sessions Judge, Krishnagiri, thereby seeking a direction to direct the 2nd respondent under section 175(3) of BNSS to investigate the case. 2. The 1st respondent lodged a complaint alleging that her father intended to purchase a property of 11 cents comprised in Survey Nos.31/15, 31/17B, 31/29 and 31/28C, in Devaneri Village, Hamlet of old No.162, New No.156, Mahabalipuram Village, Thirukazhukundaram Taluk, Kancheepuram District, and the said purchase was made via a registered sale deed dated 24.01.2001, vide document No.302/2001. Subsequently, the petitioner and her husband moved to U.S.A., and her father also moved to Singapore. After some years, upon returning to Chennai, she visited the subject property for cleaning. While so, the petitioners herein who are also named as Jayasudha W/o. 2/15 https://www.mhc.tn.gov.in/judis Crl.RC.No.362 of 2025K.V.Kathiravan, allegedly forged documents and registered the property in her husband's favour through a settlement deed dated 09.06.2023. Her husband later mortgaged the said property and obtained a loan. A complaint was immediately lodged, and the 3rd respondent issued a CSR. However, no action was taken, leading the 1st respondent to file a petition under section 175(3) of BNSS.3. The learned Magistrate, by an order dated 31.01.2025, in Crl.M.P.No.275 of 2025, directed the 3rd respondent to investigate the case. 4. In pursuant to the direction, the 3rd respondent registered FIR in Crime No.4 of 2025 for the offences under sections, 468, 471,419 and 420 of IPC as against the petitioners and others including the Inspector of Police, who issued a non-traceable certificate on the complaint lodged by the 1st respondent herein and the Sub Registrar who registered the settlement deed in favour of the 2nd petitioner. Now the investigation is pending in Crime No.4 of 2025. The 1st and 2nd accused filed this revision challenging the order passed under section 175 (3) of BNSS.3/15 https://www.mhc.tn.gov.in/judis Crl.RC.No.362 of 20255. The learned counsel for the petitioners would submit that after the FIR was registered, the subject property was reconveyed in favour of the 1st respondent herein. Further, the 1st respondent failed to comply the provision under section 175(3) of BNSS, as she directly filed a petition under this section before the learned Magistrate immediately after receiving the CSR for her complaint. Further the learned Magistrate failed to comply the provisions under section 175(4) of BNSS and mechanically directed the 3rd respondent to investigate the complaint.6. Per contra, the learned counsel for the 1st respondent would submit that the petitioners are being an accused have no locus to challenge the order passed in Crl.M.P.No.275 of 2025. Since the 3rd respondent has now registered FIR in Crime No.4 of 2025 as directed by the learned Magistrate, the present revision has become infructuous. If at all there are any grievances over registration of the FIR, the petitioners ought to have challenged the FIR in the manner known to law. He further submitted that the learned Magistrate followed the procedures as contemplated under section 175 (3) and (4) of the Act and directed the 3rd respondent to investigate the complaint. The 1st respondent also duly complied with the provisions under section 175(3) of BNSS; after 4/15 https://www.mhc.tn.gov.in/judis Crl.RC.No.362 of 2025lodging a complaint before the Commissioner of Police and the same was forwarded to Deputy Commissioner of Police and subsequently reached the 3rd respondent herein. Although the 1st respondent was issued a CSR, the 3rd respondent failed to register a FIR, hence, the 1st respondent had rightly approached the learned Magistrate under section 175(3) of BNSS.7. The leaned Government Advocate (Crl.Side) appearing for the respondents 2 and 3 would submit that the petitioners, being an accused in Crime No.4 of 2025, have no locus to challenge the order passed under section 175(3) of BNSS and it would interfere with the investigation. In fact, after issuance of direction, the 3rd respondent now registered the FIR and it is pending for investigation. At this stage of proceedings under section 175(3) of BNSS, the petitioners have no audience. Even assuming that the 1st respondent failed to follow the procedure as contemplated under section 175(3) of BNSS, the order passed by the learned Magistrate would not be without jurisdiction and would not stand vitiated, if the allegations in the complaint discloses the commission of a cognizable offence. Therefore, the order passed by the learned Magistrate under section 175(3) does not warrant any interference by this Court.5/15 https://www.mhc.tn.gov.in/judis Crl.RC.No.362 of 20258. Heard the learned counsel for the petitioners and learned counsel for the respondents and perused the materials available on record.9. On the complaint lodged by the 1st respondent, she was issued a CSR by the 3rd respondent. However, thereafter there was no action taken and as such the 1st respondent was constrained to file a petition under section 175(3) of BNSS. On the submissions made by the learned counsel for the petitioners, the following points cropped up for determination:1.Whether an application under section 175(3) of BNSS could filed without approaching the police authorities?2.Whether the order passed in Crl.M.P.No.275 of 2025 on the file of the learned Judicial Magistrate-II, Chengalpattu dated 31.01.2025 is without application of mind and without hearing the parties as contemplated under section 175(3) and 175(4) of BNSS?3.Whether this revision would become infructuous by the order passed by the learned Magistrate now complied with by the 3rd respondent by registering an FIR in Crime No.4 of 2025?6/15 https://www.mhc.tn.gov.in/judis Crl.RC.No.362 of 202510. On perusal of records, it is revealed that the 1st respondent lodged a complaint before the Superintendent of Police, Chengalpet District on 30.12.2024. Thereafter, the said complaint was forwarded to the 3rd respondent herein, who did not issue any CSR. Consequently, the 1st respondent approached the learned Magistrate under section 175(3) of BNSS. There is no evidence to show that the 1st respondent subsequently approached a superior officer by way of any representation stating that no action has been taken by the 3rd respondent herein.11. It is relevant to extract the provisions under Section 175(3) of BNSS as under:“175(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 an investigation as above mentioned.”12. Accordingly, the petition under section 175(3) shall be supported by an affidavit. An investigation can be ordered after enquiry 7/15 https://www.mhc.tn.gov.in/judis Crl.RC.No.362 of 2025and receipt of submissions made by the police officer. However, on perusal of the petition filed under section 175(3) of BNSS revealed that it was not supported with any affidavit. Further it is revealed that after forwarding the complaint from the Superintendent of Police, Chengalpet to the 3rd respondent, the 1st respondent failed to submit any representation or complaint before the immediate superior officer. Further the learned Magistrate failed to receive any report from the 3rd respondent and also there was no notice to the 3rd respondent before the issuance of direction. In this regard, the learned counsel for the petitioners relied upon the judgement of Honourable Supreme Court in the case of Om Prakash Ambadkar Vs.The State of Maharashtra and others made in Criminal Appeal No.352 of 2020, in para 35 held as follows:“35.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 8/15 https://www.mhc.tn.gov.in/judis Crl.RC.No.362 of 2025submissions of the police officer thereby ensuring that the requirement of of passing reasoned orders is complied with in a more effective and comprehensive manner.”13. Thus it is clear that the submissions of the 3rd respondent is mandatory before issuance of direction to investigate. Since the submissions of the 3rd respondent ensures that the Magistrate applies his mind judicially while considering the complaint and the submissions of the police officer as stated supra. In this case, the learned Magistrate failed to issue any notice to the 3rd respondent and no report was received from the 3rd respondent before issuance of direction to investigate on the complaint lodged by the 1st respondent. Further, in the case cited supra, it was discussed that, as per the provisions under section 175(3) of BNSS, three prominent changes came into effect as follows:“31. A comparison of Section 175(3) of the BNSS with section 156(3) of the Cr.P.C indicates 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 9/15 https://www.mhc.tn.gov.in/judis Crl.RC.No.362 of 2025application 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).”Therefore, the learned Magistrate ought to have issued notice to the concerned police officer who received complaint and failed to take any action and on receipt of such the submissions or report, the learned Magistrate has to pass an order to investigate. 14. Further, it is relevant to extract provisions under Section 175(4) of the BNSS as follows:“175(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-10/15 https://www.mhc.tn.gov.in/judis Crl.RC.No.362 of 2025(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.” 15. Thus it is clear that if a complaint is received against a public servant arising in course of his/her official duties, the learned Magistrate ought to have received report from the officer superior to the said public servant before issuance of direction. As per the complaint lodged by the 1st respondent alleging that the jurisdictional Inspector of Police who issued a non-traceable certificate regarding the missing parent document in respect of the subject property and the person who registered the settlement deed namely the Sub Registrar are the proposed accused. On presentation of settlement deed by impersonating the 1st respondent, the 1st petitioner herein presented the settlement deed for registration. Therefore, the Inspector of Police issued non traceable certificate while discharging official duty and the Sub Registrar who registered the settlement deed while discharging the official duty.11/15 https://www.mhc.tn.gov.in/judis Crl.RC.No.362 of 202516. Therefore, it is mandatory for the learned Magistrate to obtain a report from the superior officers of the concerned officials. In the case on hand, admittedly the learned Magistrate failed to issue any notice to the Superior Officers of the 3rd respondent and also did not receive any reports with regard to the facts and circumstances of the allegations. Therefore, the learned Magistrate failed to follow the mandatory procedures as contemplated under section 175(3) and 175(4) of BNSS.17. In view of the above findings, directions issued by the Magistrate under section 175(3) of BNSS are vitiated and is liable to be set aside. Accordingly, point 1 and 2 are answered.18. As far as point No.3 is concerned, pursuant to the directions issued by the learned Magistrate, the 3rd respondent now registered the FIR in Crime No.4 of 2025 and now the investigation is pending. When the order passed under section 175(3) is not sustainable, consequent registration of FIR also cannot be sustained.19. That apart, pursuant to the registration of the FIR, the petitioners cancelled the deed of settlement and re-conveyed the property 12/15 https://www.mhc.tn.gov.in/judis Crl.RC.No.362 of 2025in favour of the 1st respondent. They also cancelled the mortgage deed executed in favour of the banker. The entire family members of the petitioners, namely their son and daughter are impleaded as accused. The subject property was mortgaged, and a loan was obtained for their son's and daughter's educational purpose. The witnesses to the settlement deed are also named as accused. The Inspector of Police, who issued the non-traceable certificate concerning the parent title deed of the subject property and the Sub-Registrar who registered the settlement deed are arrayed as accused. The subsequent registration of the FIR cannot be sustained and is liable to be set aside. 20. Once the direction issued by the learned Magistrate to investigate the case is set aside, the consequential registration of FIR will also become non est in the eye of law. The registration of FIR would have no lawful existence if the very direction to investigate itself is bad and illegal.21. In view of the above, the order passed under section 175(3) in Crl.M.P.No.275 of 2025 dated 31.01.2025, on the file of the learned Judicial Magistrate-II, Chengalpattu, cannot be sustained and is 13/15 https://www.mhc.tn.gov.in/judis Crl.RC.No.362 of 2025accordingly set aside. 22. In view of the above order, the 1st respondent is at liberty to take recourse for the remedies under section 175 of BNSS in accordance with law.23. The Criminal Revision case is allowed on the above terms. Consequently, connected miscellaneous petition is closed.21.08.2025 mpaTo1.The Judicial Magistrate-II, Chengalpattu. 2.The Superintendent of Police, Chengalpattu District, Chengalpattu.3.The Inspector of Police, District Crime Branch (Land Grabbing), O/o.Superintendent of Police, Chengalpattu District, Chengalpattu.4.The Public Prosecutor, High Court, Madras.14/15 https://www.mhc.tn.gov.in/judis Crl.RC.No.362 of 2025G.K.ILANTHIRAIYAN, J.mpaCrl.RC.No.362 of 2025andCrl.M.P.No.3590 of 202521.08.202515/15