Safiya Malik

The Orissa High Court has set aside an order issued by the Judicial Magistrate First Class-II, Bhubaneswar, which had directed the registration of an FIR and investigation under Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The court recorded that the magistrate had not followed the procedural requirements under the provision and remitted the matter back for reconsideration in accordance with the prescribed legal framework.

The petitioner, Prajna Prakash Nayak, filed a writ petition under Articles 226 and 227 of the Constitution of India, seeking a Crime Branch investigation into allegations of unlawful detention, torture, and intimidation by police officials. The petitioner stated that he had approached the Infocity and Airfield Police Stations with complaints regarding an alleged fraud of ₹6.2 crores, resulting in the registration of FIR No. 252 of 2021 and FIR No. 265 of 2021.

The petitioner alleged that while the investigation was ongoing, police officials attempted to pressurize him and his wife to withdraw their complaints. The petitioner stated that he was allegedly abducted at gunpoint, unlawfully detained, and subjected to threats and physical abuse. The petitioner also stated that repeated attempts to register an FIR regarding these allegations, including written complaints to the Inspector-in-Charge (IIC) of Mancheswar Police Station, the Deputy Commissioner of Police (DCP), and other senior officers, were unsuccessful.

The petitioner filed a complaint before the Judicial Magistrate First Class-II (JMFC-II), Bhubaneswar, which was registered as ICC Case No. 7679 of 2024. By an order dated October 9, 2024, the magistrate directed the IIC of Mancheswar Police Station to register an FIR and conduct an investigation under Section 175(3) of BNSS. The petitioner subsequently approached the High Court, stating that the police had not complied with the magistrate’s order and seeking a Crime Branch investigation.

The High Court examined the provisions of Section 175 of BNSS and recorded that it introduced procedural safeguards that were required to be followed before a magistrate could order an investigation. The court extracted the text of Section 175(3) of BNSS, which states: "Any Magistrate empowered under Section 210 may, after considering the application supported by an affidavit made under sub-section (4) of Section 173, and after making such inquiry as he thinks necessary and submission made in this regard by the police officer, order such an investigation as above mentioned."

The court also examined Section 175(4), which states: "Any Magistrate empowered under Section 210, may, upon receiving a complaint against a public servant arising in course of the discharge of his official duties, order investigation, subject to— (a) receiving a report containing facts and circumstances of the incident from the officer superior to him; and (b) after consideration of the assertions made by the public servant as to the situation that led to the incident so alleged."

The court recorded that in Om Prakash Ambadkar v. State of Maharashtra and Others, the Supreme Court had outlined procedural changes introduced under BNSS. The Supreme Court stated: "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)."

The High Court recorded that the magistrate’s order did not indicate whether an affidavit under Section 173(4) had been submitted, whether an inquiry had been conducted, or whether the submissions of the concerned police officers had been considered before directing the registration of an FIR. The court stated: "The order directing an investigation neither calls for submissions from the concerned police officials nor provides them an opportunity to make representations, which is a mandatory requirement."

The court further recorded that when allegations are made against public officials, Section 175(4) requires the magistrate to obtain a report from the superior officer of the accused public servant before ordering an investigation. The court recorded that the magistrate had not sought such a report or considered the assertions of the accused public officials.

The High Court set aside the magistrate’s order dated October 9, 2024, directing the registration of an FIR and investigation. The matter was remitted back to the magistrate for reconsideration in accordance with Section 175 of BNSS. The High Court directed that the magistrate must ensure compliance with the procedural safeguards under BNSS before passing any further order.

The High Court also recorded that the magistrate retains the authority to address any non-compliance with judicial orders by the police. The court stated: "Defying a valid order without any reason is not acceptable to a civilized society, and the learned JMFC-II, Bhubaneswar, is at liberty to deal with the matter of defiance in accordance with law."

The petitioner was directed to appear before the magistrate for further proceedings.

The High Court disposed of the writ petition, setting aside the magistrate’s order on procedural grounds and directing reconsideration of the complaint under BNSS.

Case Title: Prajna Prakash Nayak v. State of Odisha & Ors.
Case Number: CRLMP No. 107 of 2025
Bench: Justice Gourishankar Satapathy

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