However, before we part with the matter, we deem it necessary to discuss the changes brought to the scheme of Section 156 of the Code of Criminal Procedure by the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, "the BNSS"). {Para 28}
29. Section 175 of the BNSS corresponds to Section 156 of the Code of Criminal Procedure. Sub-section (1) of Section 175 of the BNSS is in pari materia with Sub-section 156(1) of the Code of Criminal Procedure except for the proviso which empowers the Superintendent of Police to direct the Deputy Superintendent of Police to investigate a case if the nature or gravity of the case so requires. Sub-section (2) of Section 175 the BNSS is identical to Section 156(2) of the Code of Criminal Procedure. Section 175(3) of the BNSS empowers any Magistrate who is empowered to take cognizance Under Section 210 to order investigation in accordance with Section 175(1) and to this extent is in pari materia with Section 156(3) of Code of Criminal Procedure. However, unlike Section 156(3) of the Code of Criminal Procedure, any Magistrate, before ordering investigation Under Section 175(3) of the BNSS, is required to:
a. Consider the application, supported by an affidavit, made by the complainant to the Superintendent of Police Under Section 173(4) of the BNSS;
b. Conduct such inquiry as he thinks necessary; and
c. Consider the submissions made by the police officer.
30. Sub-section (4) of Section 175 of the BNSS is a new addition to the scheme of investigation of cognizable cases when compared with the scheme previously existing in Section 156 of the Code of Criminal Procedure. It provides an additional safeguard to a public servant against whom an accusation of committing a cognizable offence arising in the course of discharge of his official duty is made. The provision stipulates that any Magistrate who is empowered to take cognizance Under Section 210 of the BNSS may order investigation against a public servant upon receiving a complaint arising in course of the discharge of his official duty, only after complying with the following procedure:
a. Receiving a report containing facts and circumstances of the incident from the officer superior to the Accused public servant; and
b. Considering the assertions made by the Accused public servant as regards the situation that led to the occurrence of the alleged incident.
31. A comparison of Section 175(3) of the BNSS with Section 156(3) of the Code of Criminal Procedure indicates three prominent changes that have been introduced by the enactment of BNSS as follows:
a. First, the requirement of making an application to the Superintendent of Police upon refusal by the officer in charge of a police station to lodge the FIR has been made mandatory, and the applicant making an application Under Section 175(3) is required to furnish a copy of the application made to the Superintendent of Police Under Section 173(4), supported by an affidavit, while making the application to the Magistrate Under Section 175(3).
b. Secondly, the Magistrate has been empowered to conduct such enquiry as he deems necessary before making an order directing registration of FIR.
c. Thirdly, the Magistrate is required to consider the submissions of the officer in charge of the police station as regards the refusal to register an FIR before issuing any directions Under Section 175(3).
32. The introduction of these changes by the legislature can be attributed to the judicial evolution of Section 156 of the Code of Criminal Procedure undertaken by a number of decisions of this Court. In the case of Priyanka Srivastava v. State of U.P. reported in MANU/SC/0344/2015 : 2015:INSC:239 : (2015) 6 SCC 287, this Court held that prior to making an application to the Magistrate Under Section 156(3) of the Code of Criminal Procedure, the applicant must necessarily make applications Under Sections 154(1) and 154(3). It was further observed by the Court that applications made Under Section 156(3) of the Code of Criminal Procedure must necessarily be supported by an affidavit sworn by the applicant. The reason given by the Court for introducing such a requirement was that applications Under Section 156(3) of the Code of Criminal Procedure were being made in a routine manner and in a number of cases only with a view to cause harassment to the Accused by registration of FIR. It was further observed that the requirement of supporting the complaint with an affidavit would ensure that the person making the application is conscious and also to see that no false affidavit is made. Once an affidavit is found to be false, the applicant would be liable for prosecution in accordance with law. This would deter him from casually invoking the authority of the Magistrate Under Section 156(3).
28. Issuing a direction stating "as per the application" to lodge an FIR creates a very unhealthy situation in society and also reflects the erroneous approach of the learned Magistrate. It also encourages unscrupulous and unprincipled litigants, like Respondent 3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees.
29. At this stage it is seemly to state that power Under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same.
30. In our considered opinion, a stage has come in this country where Section 156(3) Code of Criminal Procedure applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or Under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
31. We have already indicated that there has to be prior applications Under Sections 154(1) and 154(3) while filing a petition Under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application Under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate Under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari [ MANU/SC/1166/2013 : 2013:INSC:748 : (2014) 2 SCC 1: (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.
(Emphasis supplied)
33. In a recent pronouncement of this Court in the case of Babu Venkatesh v. The State of Karnataka reported in MANU/SC/0214/2022 : 2022:INSC:209 : (2022) 5 SCC 639, the observations made in Priyanka Srivastava (supra) were referred to and it was held as follows:
24. This Court has clearly held that, a stage has come where applications Under Section 156(3) Code of Criminal Procedure are to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate.
25. This Court further held that, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also verify the veracity of the allegations. The Court has noted that, applications Under Section 156(3) Code of Criminal Procedure are filed in a routine manner without taking any responsibility only to harass certain persons.
26. This Court has further held that, prior to the filing of a petition Under Section 156(3) Code of Criminal Procedure, there have to be applications Under Sections 154(1) and 154(3) Code of Criminal Procedure. This Court emphasises the necessity to file an affidavit so that the persons making the application should be conscious and not make false affidavit. With such a requirement, the persons would be deterred from causally invoking authority of the Magistrate, Under Section 156(3) Code of Criminal Procedure. Inasmuch as if the affidavit is found to be false, the person would be liable for prosecution in accordance with law.
(Emphasis supplied)
34. In light of the judicial interpretation and evolution of Section 156(3) of the Code of Criminal Procedure by various decisions of this Court as discussed above, it becomes clear that the changes introduced by Section 175(3) of the BNSS to the existing scheme of Section 156(3) merely codify the procedural practices and safeguards which have been introduced by judicial decisions aimed at curbing the misuse of invocation of powers of a Magistrate by unscrupulous litigants for achieving ulterior motives.
35. Further, by requiring the Magistrate to consider the submissions made by the concerned police officer before proceeding to issue directions Under Section 175(3), BNSS has affixed greater accountability on the police officer responsible for registering FIRs Under Section 173. Mandating the Magistrate to consider the submissions of the concerned police officer also ensures that the Magistrate applies his mind judicially while considering both the complaint and the submissions of the police officer thereby ensuring that the requirement of passing reasoned orders is complied with in a more effective and comprehensive manner.
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 352/2020
Decided On: 16.01.2025
Om Prakash Ambadkar Vs. The State of Maharashtra and Ors.
Hon'ble Judges/Coram:
J.B. Pardiwala and R. Mahadevan, JJ.
Citation: MANU/SC/0134/2025, 2025 INSC 139.
Read full Judgment here: Click here.
