Heera Lal v. Sudhir Kumar and Others) by
Case Details
Acts & Sections
It is in the aforesaid circumstances that the complainant has prayed to lodge FIR and when same was not lodged he has moved an application under section 173 (4) BNSS for registration of the FIR. It is on the said application that impugned FIR has been lodged which has been assailed before this Court. Learned counsel for the petitioner has submitted that the order of the Magistrate dated 31.01.2025 by which the learned Magistrate has directed the registration of the FIR is itself arbitrary and in violation of the specific provisions of BNSS and most specifically as per Section 175 (4) BNSS no FIR could have been lodged and the order itself is liable to be set aside. He has submitted that according to section 175 (4) of the BNSS in cases where allegations are levelled against public servant in course of dishcarge of his official duties then prior to direction of registration for FIR Magistrate is bound to receive a report from the superior of the said officer and it is only after considering the said report any order can be passed by him for registration of the FIR under section 175 (3) BNSS and by not following prescribed procedure under law the Magistrate has erred and consequently, no investigation can be done by such an arbitrary order and, accordingly, prayed for setting aside of the order dated 31.01.2025. The second ground raised by the petitioner is that the sanction ought to have been obtained by the Magistrate prior to passing of any order under section 175 (3) of BNSS and on this account also the order is illegal and arbitrary. Considering the first submission made by the petitioner, it is necessary to refer to the provisions of Section 175 of the BNSS. Section 175 BNSS. “ 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 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 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 in this regard by the police officer, order such 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.” Perusal of the aforesaid provisions clearly indicate the fact that any Magistrate who is empowered under section 210 BNSS, he upon receiving any complaint against public servant arising during the course of discharge of his duties may receive report from the officer superior to him. Considering the aforesaid provisions along with Section 175 (3) of BNSS it is noticed that whenever an application is made for registration of the FIR the Magistrate concerned may call for police report and in case the complaint discloses an offence by a public servant during discharge of his duties it is open for him to obtain the report from his superior. Considering the fact that the legislature has used the word ‘may’ in sub section 4 of Section175, it is clear that it is a discretion vested upon the Magistrate while exercising the power under section 175 (3) to seek such a report in case he wishes to clarify the situation as to whether the act alleged which has been termed as an offence by the complainant can be considered to be one falling under the discharge of the official duties or any other aspect on which any clarification is sought by him. In case the Magistrate is of the opinion that the complaint and the statements recorded under section 223 of the BNSS are correct then nothing restrains him from directing registration of the FIR in exercise of power under section 175 (3) of BNSS and he would not be bound to seek a police report or in case matter involves the public servant, any report from the superior. Accordingly, considering the aforesaid facts, this Court is of the considered view that it is not mandatory for the Magistrate to seek a report from the superior officers against whom allegations have been made with regard to the act which has been conducted by him in discharge of his official duties. Accordingly, we are not in agreement to the submissions advanced by the learned counsel for the petitioner and accordingly the same is rejected. With regard to the second argument of the petitioner that sanction ought to have been taken prior to initiation of direction for lodging of the FIR, is an argument which we are not inclined to accept at the very outset. In case of public servants the sanction is required under Section 19 of the Prevention of Corruption Act as well as Section 218 of the BNSS prior to taking cognizance. We notice that provision of Section 218 BNSS fall under Chapter 15 which provide conditions requisite for initiation of proceedings. In support of his submissions, learned counsel for the revisionist has placed reliance on the judgment of Hon'ble Supreme Court in the case of Manju Surana Vs. Sunil Arora, (2018) 5 SCC 557, wherein the Court has considered the said issue and following observations were :-
It is in the aforesaid circumstances that the complainant has prayed to lodge FIR and when same was not lodged he has moved an application under section 173 (4) BNSS for registration of the FIR. It is on the said application that impugned FIR has been lodged which has been assailed before this Court. Learned counsel for the petitioner has submitted that the order of the Magistrate dated 31.01.2025 by which the learned Magistrate has directed the registration of the FIR is itself arbitrary and in violation of the specific provisions of BNSS and most specifically as per Section 175 (4) BNSS no FIR could have been lodged and the order itself is liable to be set aside. He has submitted that according to section 175 (4) of the BNSS in cases where allegations are levelled against public servant in course of dishcarge of his official duties then prior to direction of registration for FIR Magistrate is bound to receive a report from the superior of the said officer and it is only after considering the said report any order can be passed by him for registration of the FIR under section 175 (3) BNSS and by not following prescribed procedure under law the Magistrate has erred and consequently, no investigation can be done by such an arbitrary order and, accordingly, prayed for setting aside of the order dated 31.01.2025. The second ground raised by the petitioner is that the sanction ought to have been obtained by the Magistrate prior to passing of any order under section 175 (3) of BNSS and on this account also the order is illegal and arbitrary. Considering the first submission made by the petitioner, it is necessary to refer to the provisions of Section 175 of the BNSS. Section 175 BNSS. “ 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 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 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 in this regard by the police officer, order such 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.” Perusal of the aforesaid provisions clearly indicate the fact that any Magistrate who is empowered under section 210 BNSS, he upon receiving any complaint against public servant arising during the course of discharge of his duties may receive report from the officer superior to him. Considering the aforesaid provisions along with Section 175 (3) of BNSS it is noticed that whenever an application is made for registration of the FIR the Magistrate concerned may call for police report and in case the complaint discloses an offence by a public servant during discharge of his duties it is open for him to obtain the report from his superior. Considering the fact that the legislature has used the word ‘may’ in sub section 4 of Section175, it is clear that it is a discretion vested upon the Magistrate while exercising the power under section 175 (3) to seek such a report in case he wishes to clarify the situation as to whether the act alleged which has been termed as an offence by the complainant can be considered to be one falling under the discharge of the official duties or any other aspect on which any clarification is sought by him. In case the Magistrate is of the opinion that the complaint and the statements recorded under section 223 of the BNSS are correct then nothing restrains him from directing registration of the FIR in exercise of power under section 175 (3) of BNSS and he would not be bound to seek a police report or in case matter involves the public servant, any report from the superior. Accordingly, considering the aforesaid facts, this Court is of the considered view that it is not mandatory for the Magistrate to seek a report from the superior officers against whom allegations have been made with regard to the act which has been conducted by him in discharge of his official duties. Accordingly, we are not in agreement to the submissions advanced by the learned counsel for the petitioner and accordingly the same is rejected. With regard to the second argument of the petitioner that sanction ought to have been taken prior to initiation of direction for lodging of the FIR, is an argument which we are not inclined to accept at the very outset. In case of public servants the sanction is required under Section 19 of the Prevention of Corruption Act as well as Section 218 of the BNSS prior to taking cognizance. We notice that provision of Section 218 BNSS fall under Chapter 15 which provide conditions requisite for initiation of proceedings. In support of his submissions, learned counsel for the revisionist has placed reliance on the judgment of Hon'ble Supreme Court in the case of Manju Surana Vs. Sunil Arora, (2018) 5 SCC 557, wherein the Court has considered the said issue and following observations were :-