Magistrate Not Bound to Order FIR in Every Case Under Section 175(3) BNSS if Complainant Possesses Material Evidence: Allahabad High Court
Allahabad High Court has reaffirmed an important principle of criminal procedure under the Bharatiya Nagarik Suraksha Sanhita, 2023, which reads that the Magistrate is not duty bound to record an FIR under Section 175(3) BNSS in all the cases where a cognizable offence is disclosed. If there is adequate material evidence before the complainant and the matter may be resolved as a complaint case, the Magistrate may lawfully refuse to investigate it by the police, and treat the application as a private complaint.
This verdict is in the context of an FIR filed by the complainant seeking directions for an FIR and police investigation under Section 175(3) of the BNSS (corresponding to Section 156(3) of the old Criminal Procedure Code). The complainant had contended that the allegations were serious and that the weapons should be recovered and the case investigated by the police and the police man require custodial interrogation. But the Magistrate did not want to register an FIR against the complainant, instead he treated the application as a complaint case under the BNSS. This was appealed before the High Court.
The High Court has stated that the question was rejected and that section 175(3) BNSS does not give any automatic or mandatory power of registration of an FIR by the Court. The Court has reminded of the judicial discretion vested in the Magistrate and that the police investigation must be really necessary. If the complainant has already some documents, witnesses, medical reports or other evidence that would be able to establish the allegations, then the Magistrate may proceed under the complaint procedure without referring the matter to the police for investigation.
The Court quoted the previous precedents that had been established in the context of Section 156(3) CrPC, including the argument that Magistrates must not be “post offices” that pass on every complaint to the police. Rather, they are required to exercise judicial judgment and decide whether in the particular case there is a need for investigative assistance not available to the complainant. The judgment reiterated that the principles applicable to Section 156(3) CrPC remain applicable to Section 175(3) BNSS, as both the provisions have a similar nature.
Importantly, the Court observed that the BNSS has implemented other safeguarding measures before it ordered an investigation. Previously, Section 175(3) only required the Magistrate to take into account the complainant’s affidavit for directions, but this has changed and the police’s submissions are also to be considered. The changes are designed to meet the legislative purpose in order to avoid frivolous or vindictive use of the criminal law.
The decision will have large repercussions for criminal litigation. Prevents the proliferation of FIRs in all disturbances, even if there is already evidence available with the litigant. The judgment also safeguards police machinery against unwarranted directions by court in matters which can be handled as a complaint case before the Magistrates.
The decision, however, may open itself up to criticism. But some complain that granting too much discretion to the judiciary in refusing to register an FIR could further infringe the rights of citizens to access the justice system, particularly when the police has not taken any action on the complaint. If police help is not available, it might be hard for victims with little influence and resources to gather the evidence themselves. There is also the concern that if serious allegations were to be treated as complaint cases, it would be dilution of the investigative process, in offences that need scientific investigation and/or custodial investigation.
However, the judgment is done in the spirit of the BNSS approach. It acknowledges that criminal law ought to be available to victims, but that the judicial process shouldn’t be “the police process in every dispute”. The judgment reinforces the concept that Section 175(3) BNSS is a judicial remedy based on discretion, and does not provide an absolute right to call for the registration of an FIR.
