Magistrate May Conduct Inquiry Before Ordering Investigation Under 156 (3) Crpc Under New Bnss Legislation

Case title:

Om Prakash Ambadkar v The State of Maharashtra & Ors.

Date of Order:

16 January 2025

Bench:

Hon’ble Justice Mr. J.B. Pardiwala
Hon’ble Justice R. Mahadevan

Parties:

Petitioner: Om Prakash Ambadkar
Respondent: The State of Maharashtra & Ors.

SUBJECT

• The Honorable Supreme Court (henceforth referred to as "the Court" or "the Supreme Court") overturned the High Court of Bombay’s contested ruling and the magistrate's order ordering a police investigation under Section 156(3) of the Cr.P.C., stressing that rather than serving as just middlemen, magistrates must use judicial discretion. The Supreme Court criticized the frequent and robotic use of Section 156(3) Cr.P.C. to order police investigations, making it clear that a magistrate should only order such an investigation when the Investigating Agency's participation is crucial and the pursuit of justice would be jeopardized without an investigation.

IMPORTANT PROVISIONS

The Code of Criminal Procedure, 1973

• Section 482 - Allows the High Court to prevent abuse of the law and secure justice by quashing FIRs or proceedings. 
• Section 156(3) - Empowers a Magistrate to direct police investigation of cognizable offenses, often used to prevent miscarriage of justice.

Bharatiya Nagarik Suraksha Sanhita, 2023

• Section 175(3) - Refers to the provisions relating to the penalty for failing to comply with police directives. It especially addresses disobedience to a valid command issued by a police officer in the course of their responsibilities.

The Indian Penal Code, 1860

• Section 294 - Whoever, to the annoyance of others, (a) does any obscene act in any public place, or (b) sings, recites, or utters any obscene song, ballad, or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with a fine, or with both.

BRIEF FACTS

• Respondent No. 3, Advocate Nitin Devidas Kubade, a practicing attorney from Digras, Yavatmal, is the original complainant in this matter. The police officer who has been the target of the complaint is the appellant in this case. 
• The complainant is a permanent resident and an advocate in Digras. On 31.12.2011, between 11:30 and 11:40 PM, the appellant, who is a police officer, humiliated him.
• Following the event, the applicant (complainant) attempted to file a FIR at the Digras Police Station, but the authorities refused to accept his report. 
• Following this refusal, he filed a formal grievance with the Bar Association of Digras and a report with the Superintendent of Police in Yavatmal, but the police there refused to record the FIR, claiming that the accused were also police personnel.
• Following these futile attempts, the complainant filed an application under Section 156(3) of the Code of Criminal Procedure, 1973 (CrPC) with the Judicial Magistrate First Class, Digras and asked the Magistrate to direct the police to file a FIR based on his earlier allegation. After reviewing the application, accompanying reports, and legal submissions, the Judicial Magistrate First Class, Digras, determined that there were prima facie allegations of cognizable offenses under Sections 323, 294, 500, 504, and 506 of the Indian Penal Code, 1860 (IPC).
• Consequently, the Magistrate directed the Digras Police Station to register a FIR and initiate an investigation under Section 156(3) of the CrPC. Aggrieved by this order, the appellant filed an application under Section 482 of the CrPC before the High Court of Judicature at Bombay, Nagpur Bench, challenging its legality.
• However, the High Court, through its judgment dated October 16, 2019, dismissed the application and affirmed the order of the Magistrate, thereby upholding the directive to register the FIR and proceed with the investigation. 
• The appellant has now approached the Supreme Court by filing the present appeal against the judgment of the High Court.

ISSUES RAISED

• Whether the Judicial Magistrate’s order requiring the filing of a formal complaint under Section 156(3) CrPC was lawfully warranted?
• Whether a police case is automatically created by an order for a police inquiry under Section 156(3), which, after the investigation is over, results in either a chargesheet or a closure report?

ARGUMENTS ADVANCED BY THE RESPONDENT/APPLICANT

• The learned counsel for the applicant submitted that a cognizable offence is made out from the allegations levelled by the appellant and that the ratio laid down in Govind Rambilasji Sarda And Others vs The State of Maharashtra And Others is applicable.
• It’s further submitted that, there is no bar to register the offence against the police as under Section 197 of Cr.P.C. as the act of the policeman was not in discharge of his official duties.
• Furthermore, upon a cursory examination of the report submitted for the consideration of this Court would indicate that the accused has committed an offense under sections 323, 294, 504, 506, 500 of the I.P.C prima-facie; however, the police are steadfastly resisting the registration of the offense. In such cases, it is imperative to exercise the authority granted to the Hon'ble Court under sec.156(3) of the Cr.P.C., which allows the court to instruct the police to register the offense. 

ARGUMENTS ADVANCED BY THE APPELLANT

• The alleged attack of the applicant by a police officer in public would not qualify as an indecent act.
• For the purposes of Section 294, an obscene conduct has a specific definition. Simply using degrading, or abusive language is insufficient to constitute an offense under Section 294 of the IPC.

JUDGEMENT ANALYSIS

• The Court ruled that when police officials refuse to file a First Information Report (FIR), the complainant typically invokes Section 156(3) of the CrPC. The concerned magistrate, however, has the authority to reject the complaint under Section 203 of the CrPC, take cognizance of the complaint and issue a process, or order a police investigation under Section 156(3) of the CrPC.
• A police case is created once an order for a police inquiry is issued under Section 156(3) of the CrPC. Following the investigation, the police may file a chargesheet or closure report. 
• But if the Magistrate receives an application for investigation under Section 156(3), it is his responsibility to use his judgment to determine whether or not the accusations stated amount to a crime subject to prosecution.
• The Court ruled that the elements of the claimed offense are not at all established in the current facts and illustrates how the police inquiry order under Section 156(3) was issued in a robotic fashion. 
• Given that the word "may" is included in Section 156(3) of the CrPC, the magistrate must use his judgment before directing an investigation. Accordingly, the Court determined that, under the circumstances of this case, the police's further investigation would only constitute an abuse of the legal system.
• The court highlighted how the BNSS introduced three changes to Section 175(3) of the Cr.P.C.: applicants must apply to the Superintendent of Police after refusal to register a FIR, the Magistrate can conduct an inquiry before ordering registration, and the officer in charge's submissions must be considered before issuing direction.
• These legislative changes were referred to in the ruling of Priyanka Srivastava v. State of U.P. (2015), where it was held that petitions filed under Section 156(3) of the Cr.P.C. must always be accompanied by an affidavit that the petitioner has sworn. 
• In Babu Venkatesh v. The State of Karnataka [(2022) 5 SCC 639], the Court reaffirmed the observations made in Priyanka Srivastava (supra). It emphasized that applications under Section 156(3) of the CrPC must be supported by a duly sworn affidavit from the complainant seeking the Magistrate’s intervention.
• Furthermore, the Court advised that, in appropriate cases, the Magistrate should verify both the truth and veracity of the allegations, noting that such applications are often filed routinely and irresponsibly, merely to harass certain individuals.
• It also held that Section 175 of the BNSS conforms to Section 156 of the CrPC, with the exception of a substantial addition, and that sub-section (1) of Section 175 is in pari materia with Section 156(1) of the CrPC. The proviso to Section 175(1), which was not there in the previous framework, gives the Superintendent of Police the authority to order the Deputy Superintendent of Police to look into a case if its nature or seriousness so demands.

CONCLUSION

• Allowing the appeal and setting aside the Magistrate’s order, the Court emphasized that Section 175(3) of the BNSS enhances police accountability by requiring the Magistrate to consider the submissions of the concerned police officer before issuing directions. This provision ensures that the officer responsible for registering FIRs under Section 173 is held to a higher standard of responsibility. Additionally, by mandating the Magistrate to evaluate both the complaint and the police officer’s submissions, the law reinforces the necessity of judicial application of mind, thereby promoting the issuance of well-reasoned and comprehensive orders.