The Orissa High Court, in a significant ruling, has clarified that a Magistrate can order an investigation against a public servant only after considering his defence and obtaining a report from his superior officer, as mandated under Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The decision was delivered by Justice G. Satapathy in Prajna Prakash Nayak v. State of Odisha & Ors. (CRLMP No. 107 of 2025), emphasizing strict adherence to procedural safeguards introduced under the new criminal law framework.
Background of the Case
The case arose from a petition filed by Prajna Prakash Nayak under Articles 226 and 227 of the Constitution of India, seeking a direction for a Crime Branch investigation and action against police officials accused of wrongful detention, harassment, and torture. The petitioner alleged that he and his wife were victims of fraud amounting to Rs. 6.2 crores, leading to the registration of FIRs at Infocity and Airfield Police Stations in 2021 against Rajeev Lochan Das and others.
However, Nayak contended that during the pendency of the investigation, the then Deputy Commissioner of Police (DCP), Bhubaneswar, along with other senior police officials, attempted to coerce him and his wife into withdrawing their complaints. When they refused, the petitioner claimed that the officials abducted him at gunpoint, unlawfully detained him, and subjected his family to mental and physical torture. Despite filing multiple complaints, the Mancheswar Police Station allegedly refused to register an FIR, prompting Nayak to approach the Judicial Magistrate First Class-II (JMFC-II), Bhubaneswar, who subsequently directed an investigation under Section 175(3) of BNSS.
Legal Issues
The core legal issues before the High Court were:
Whether the JMFC-II, Bhubaneswar, had correctly exercised jurisdiction under Section 175(3) of BNSS in directing the registration of an FIR against police officers.
Whether the procedural safeguards under Section 175(4) of BNSS, which mandate a report from a superior officer and consideration of the accused public servant’s defence before ordering an investigation, were followed.
Whether the non-compliance with these procedural requirements rendered the Magistrate’s order invalid.
Court’s Observations and Decision
Justice G. Satapathy, after examining the provisions of BNSS and referring to the Supreme Court’s ruling in Om Prakash Ambadkar v. State of Maharashtra & Ors. (2025 Live Law (SC) 139), held that the Magistrate’s order suffered from procedural errors that went to the root of its maintainability. The Court noted:
Mandatory Procedural Requirements: Under Section 175(4) of BNSS, a Magistrate must first obtain a report from the accused public servant’s superior officer and consider the accused’s defence before directing an investigation. The JMFC-II, Bhubaneswar, had failed to follow this procedure.
Distinction Between BNSS and CrPC: Unlike Section 156(3) of the Criminal Procedure Code (CrPC), which allowed discretionary powers to order an investigation, Section 175(3) and 175(4) of BNSS impose stricter procedural safeguards to prevent misuse of criminal investigations against public servants.
Judicial Application of Mind: The Court emphasized that a Magistrate must conduct an independent inquiry and not act as a mere post office forwarding complaints to the police. Justice Satapathy remarked, “The Magistrate is not expected to mechanically direct investigation by the police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not.”
Defiance by Police Officials: While quashing the Magistrate’s order, the Court took a strong stance against the police officers’ refusal to register an FIR, stating that non-compliance with a court order is unacceptable in a civilized society. The Court left it open for the JMFC-II, Bhubaneswar, to take appropriate action for contempt or non-compliance.
In light of these findings, the Orissa High Court set aside the JMFC-II’s order and remitted the matter back for fresh consideration in strict compliance with Section 175 of BNSS. The Court directed that the Magistrate must:
Ensure that the complainant provides the affidavit mandated under Section 173(4) of BNSS.
Seek a report from the accused officials’ superior officers regarding the alleged incident.
Provide an opportunity to the accused public servants to present their defence.
Decide whether police investigation is genuinely necessary or if the case can proceed based on evidence already available.
