The Allahabad High Court set aside an order directing the registration of an FIR against a police officer after finding that the Special Judge had failed to comply with the mandatory procedural safeguards under Sections 175(3) and 175(4) of the Bharatiya Nagarik Suraksha Sanhita (BNSS). The court held that, before ordering an investigation into a complaint against a public servant arising from the discharge of official duties, a magistrate must obtain a report from the officer superior to the accused public servant and consider the public servant’s assertions regarding the incident. The impugned order, which directed the Station House Officer to register an FIR and conduct an investigation without such inquiry, was deemed a manifest illegality and non-application of judicial mind.
Background & Facts
The Incident
On 22.07.2026, at about 2:00 - 3:00 a.m., Sub-Inspector Sandhya Jaiswal, along with two unknown police personnel, forcibly entered the house of Sushila Devi (wife of Bhaiyalal, resident of Village Dasnipur, Police Station Cholapur, District Varanasi). The police allegedly used caste-related derogatory words against the applicant and her family members and forcibly took away her son, Rohit Kumar Gautam, illegally detaining him at Police Station Cholapur without disclosing the grounds of arrest.
The Complaint and Application
Sushila Devi alleged that an FIR against her son was subsequently registered at about 1:58 p.m., while his arrest was shown on 23.07.2026 at about 2:00 a.m., indicating illegal detention for more than 24 hours. She possessed a call recording of her conversation with Sub-Inspector Sandhya Jaiswal and contended that CCTV footage from the police station could substantiate the alleged illegal detention. She also alleged previous enmity with Anjana Kumari, against whom her son had lodged a criminal case, and claimed the present proceedings were initiated to falsely implicate her son. Despite approaching local police authorities and higher police officials, no FIR was registered. Accordingly, she prayed for a direction to the Station House Officer, Police Station Cholapur, District Varanasi, to register an FIR and conduct investigation in accordance with law. An application under Section 173(4) BNSS was filed in the court of the Additional Sessions Judge/Special Judge (SC/ST Act), Varanasi by Sushila Devi (opposite party No. 2).
Procedural History
- 22.07.2026: Incident of alleged forcible entry, assault and illegal detention.
- 23.07.2026: Arrest shown in records (alleged illegal detention >24 hours).
- 25.08.2026: Police report dated 25.08.2026 was called for and submitted before the Special Judge.
- 02.09.2026: Impugned order passed by the Special Judge (SC/ST Act), Varanasi, allowing the application under Section 173(4) BNSS and directing the Station House Officer to register an FIR forthwith, ensure an impartial investigation by an independent gazetted officer, and submit the investigation report to the Court within 15 days.
- 30.09.2026: Matter reserved for judgment.
- 13.10.2026: Judgment delivered by Hon’ble Santosh Rai, J.
The Impugned Order
The Special Judge, SC/ST Act, Varanasi, observed that police records contained material discrepancies. Although the fact of taking Rohit away at night was admitted, the supurdginama regarding his custody was not produced along with the police report. The applicant had submitted written transcripts of CCTV footage and conversation. Accordingly, the application under Section 173(4) BNSS was allowed, and the Station House Officer, Police Station Cholapur, was directed to register an FIR forthwith on the basis of the applicant’s complaint, ensure an impartial investigation by an independent gazetted officer, and submit the investigation report to the Court within 15 days. A copy of the order was directed to be sent to the Station House Officer for compliance.
Relief Sought
The appellant, Sandhya Jaiswal, sought to set aside the impugned order dated 2.9.2026 and to have any consequential proceedings arising therefrom quashed.
The Legal Issue
The central question was whether a Special Judge, while entertaining an application under Section 173(4) BNSS, could order registration of an FIR and investigation without complying with the mandatory procedural safeguards prescribed in Sections 175(3) and 175(4) BNSS, namely, obtaining a report from the officer superior to the accused public servant and considering the public servant’s assertions regarding the incident.
Arguments Presented
For the Appellant
The appellant contended that the impugned order suffered from manifest illegality and non-compliance with the mandatory statutory procedure. She argued that the Special Judge had failed to consider the report of the officer superior to the public servant and the assertions of the public servant regarding the circumstances leading to the incident. The order was non-speaking and non-reasoned, reflecting a lack of application of judicial mind. Reliance was placed on the principles laid down by the Supreme Court in Om Prakash Ambadkar v. State of Maharashtra & Ors. and XXX v. State of Kerala & Ors., which emphasize that Section 175(3) BNSS requires the magistrate to consider the application supported by an affidavit, make such inquiry as he thinks necessary, and consider the submission made by the police officer, while Section 175(4) BNSS adds the specific safeguard of obtaining a report from the superior officer and hearing the public servant’s version before directing investigation.
For the Respondent
The State defended the order, submitting that the Special Judge had called for and received a detailed police report dated 25.08.2026, and that the material placed on record prima facie indicated the commission of a cognizable offence. It was argued that the Special Judge had applied his mind to the allegations and the available material, and that the directions issued were based on a reasonable satisfaction that an offence had been committed.
The Court's Analysis
The Court began by noting that Section 173(4) BNSS enables a person aggrieved by a refusal to record information to approach a magistrate, but such power is not unqualified. It examined the statutory scheme of Sections 175(3) and 175(4) BNSS, highlighting that Section 175(3) empowers a magistrate to order investigation after considering an application supported by an affidavit, making such inquiry as he thinks necessary, and considering the submission made by the police officer. Section 175(4) BNSS introduces an additional safeguard: when the complaint is against a public servant arising from the discharge of official duties, the magistrate must, before ordering investigation, (a) receive a report containing facts and circumstances of the incident from the officer superior to the accused public servant, and (b) consider the assertions made by the public servant as to the situation that led to the incident.
The Court relied on a catena of Supreme Court authorities - State of Haryana & Ors. v. Bhajan Lal & Ors., Anil Kumar v. M.K. Aiyappa & Anr., Priyanka Srivastava v. State of U.P. & Ors., Ramdev Food Products Private Limited v. State of Gujarat, Babu Venkatesh v. State of Karnataka & Anr., Om Prakash Ambadkar v. State of Maharashtra & Ors., and XXX v. State of Kerala & Ors. - to underscore that the power under Section 156(3) CrPC (and its BNSS counterpart) must be exercised with application of judicial mind and not mechanically. It emphasized that the introduction of Sections 175(3) and 175(4) BNSS was precisely to curb frivolous or mala fide complaints against public servants by requiring objective verification.
Applying these principles, the Court found that the impugned order disclosed no recording of any finding that the inquiry contemplated by Section 175(3) BNSS had been undertaken, nor any reason why, despite the police report and contemporaneous circumstances being available, no further inquiry was considered necessary. The order also failed to demonstrate consideration of the report of the officer superior to the public servant or the public servant’s assertions regarding the incident. Consequently, the Special Judge had overlooked the mandatory procedural requirements, rendering the order a manifest illegality and a failure to exercise jurisdiction in accordance with law.
The Verdict
The appeal was allowed. The impugned order dated 2.9.2026, passed by the Special Judge (SC/ST Act), Varanasi, on the application under Section 173(4) BNSS, is hereby set aside. Any consequential proceedings arising out of the said order shall also stand quashed. The Registrar (Compliance) is directed to serve a copy of this order within 48 hours by FAX/e-mail to the concerned court through the District & Sessions Judge, Varanasi for compliance.
What This Means For Similar Cases
Mandatory Procedural Safeguards for Public Servant Complaints
Magistrates must now insist on strict compliance with Sections 175(3) and 175(4) BNSS before entertaining any direction for investigation under Section 173(4) BNSS. This includes:
- Ensuring the application is supported by an affidavit sworn by the complainant.
- Obtaining a report from the officer superior to the accused public servant detailing the facts and circumstances of the incident.
- Considering the version of the public servant regarding the situation that led to the alleged offence.
Judicial Mind as a Condition Precedent
The judgment reaffirms that the power to order investigation is not a ministerial act. Magistrates must apply their mind to the allegations, the material placed by the applicant, the police report, and the public servant’s assertions. A mere statement that the complaint has been perused is insufficient; the order must reflect the magistrate’s reasoning.
Consequences of Non-Compliance
Failure to observe the statutory safeguards renders the order vulnerable to being set aside as a manifest illegality. Any consequential proceedings, such as the registration of an FIR or subsequent investigation, will also be quashed. Practitioners should therefore scrutinize orders under Section 173(4) BNSS for compliance with Sections 175(3) and 175(4) BNSS and challenge them on the ground of non-application of judicial mind where such safeguards are absent.
