In a landmark ruling, the Supreme Court of India, in Om Prakash Ambadkar vs. State of Maharashtra & Ors. (Criminal Appeal No. 352/2020), clarified the procedural changes introduced in the new Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) concerning the powers of Magistrates under Section 175(3), which replaces Section 156(3) of the Code of Criminal Procedure, 1973 (CrPC).
The verdict, delivered by a bench comprising Justice J.B. Pardiwala and Justice R. Mahadevan, quashed an earlier order of the Judicial Magistrate directing a police investigation against the appellant under Section 156(3) of the CrPC. The Court emphasized the evolving jurisprudence requiring stricter scrutiny by Magistrates before ordering police investigations, particularly in light of the newly enacted BNSS.
Background of the Case
The case stemmed from an application filed by Advocate Nitin Devidas Kubade, the complainant, before the Judicial Magistrate First Class, Digras, under Section 156(3) of the CrPC. Kubade alleged that he was assaulted, threatened, and humiliated by the accused, Om Prakash Ambadkar, a police officer, on December 31, 2011. When the local police refused to register his complaint, he approached the Magistrate, who directed the police to register an FIR for offences under Sections 323 (voluntarily causing hurt), 294 (obscene acts and songs), 500 (defamation), 504 (intentional insult with intent to provoke breach of peace), and 506 (criminal intimidation) of the Indian Penal Code (IPC).
Challenging this order, Ambadkar moved the Bombay High Court, which upheld the Magistrate’s direction. This led to an appeal before the Supreme Court.
Supreme Court’s Observations and Ruling
The apex court set aside both the Magistrate’s order and the Bombay High Court’s ruling, holding that the Magistrate had mechanically directed a police investigation without determining whether the complaint disclosed cognizable offences.
One of the key findings was regarding Section 294 IPC, where the Court reaffirmed its earlier ruling in N.S. Madhanagopal v. K. Lalitha (2022) 17 SCC 818, clarifying that “mere abusive, humiliating, or defamatory words do not amount to an offence under Section 294 unless they have lascivious elements arousing sexual thoughts or feelings.”
Similarly, for Sections 504 and 506 IPC, the Court referred to Mohammad Wajid v. State of U.P. (Criminal Appeal No. 2340/2023), emphasizing that mere threats or insults do not constitute criminal intimidation unless they create a genuine sense of alarm or provoke an immediate breach of peace.
The Court criticized the routine and mechanical manner in which Magistrates have been invoking Section 156(3) of the CrPC, reiterating that:
“The Magistrate is not expected to act merely as a Post Office and needs to adopt a judicial approach while considering an application seeking investigation by the Police.”
The ruling gains significance in the context of BNSS, 2023, which introduces additional safeguards before Magistrates can order investigations under the new Section 175(3).
Key Changes Introduced by BNSS, 2023
The Supreme Court highlighted three major procedural shifts under Section 175(3) of BNSS, compared to Section 156(3) of CrPC:
1. Mandatory Prior Application to Superintendent of Police – Before approaching a Magistrate, the complainant must first file an application with the Superintendent of Police (SP) under Section 173(4) of BNSS. The complaint to the Magistrate must be accompanied by an affidavit and a copy of this application.
2. Magistrate’s Power to Conduct Preliminary Inquiry – Unlike the CrPC, where a Magistrate could order an investigation based on a prima facie assessment, BNSS requires the Magistrate to conduct an inquiry before directing police action.
3. Consideration of Police Submissions – Before passing an order under Section 175(3) BNSS, the Magistrate must consider the reasons given by the officer in charge of the police station for refusing to register an FIR.
Additionally, Section 175(4) BNSS adds another safeguard for public servants, requiring the Magistrate to obtain a report from the superior officer of the accused before allowing an investigation.
