Rajasthan HC Holds Section 223 BNSS Safeguards Apply Before Section 175(3) Is Invoked
The Jodhpur bench held that a Special Court cannot mechanically direct FIR registration against public servants without first following the mandatory pre-cognizance safeguards under Section 223 of the BNSS, 2023.
The Rajasthan High Court at Jodhpur has set aside an order by which a Special Judge for SC/ST (Prevention of Atrocities) Act Cases at Sri Ganganagar directed the Superintendent of Police to register an FIR against four serving police officials. Justice Farjand Ali, sitting singly, held on 7 April 2026 that the Special Judge had invoked Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 in a mechanical and non-speaking manner, without complying with the mandatory safeguards prescribed under Section 223 of the same code for complaints directed against public servants. The court set aside the impugned order dated 21 November 2025 along with all consequential proceedings and remanded the matter for fresh adjudication in accordance with the statutory framework.
The Complaint and the Impugned Direction
The four petitioners are serving police officials posted in Sri Ganganagar district: Prashant Kaushik, Deputy Superintendent of Police at Anupgarh; Manohar Singh, Assistant Sub-Inspector at Circle Office Anoopgarh; Sardar Singh, Sub-Inspector at Sameja Kothi; and Kishan Singh, a driver at Police Station Anoopgarh.
The dispute arose from a sequence of cross-FIRs. On 20 August 2025, FIR No. 500/2025 was registered at Police Station Anupgarh on the complaint of one Sanjay Kumar against Tek Chand, the respondent-complainant in the present proceedings and others, for offences under Sections 115(2), 126(2) and 3(5) of the Bharatiya Nyaya Sanhita, 2023, read with Sections 3(1)(r), 3(1)(s) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. A charge-sheet against Tek Chand was filed before the competent court on 21 October 2025.
Tek Chand, in turn, lodged FIR No. 587/2025 on 25 September 2025 at the same police station against Sanjay Kumar and others under Sections 115(2), 307, 190, 191(2) and 191(3) of the BNS, 2023. After investigation, the Investigating Officer submitted a negative final report on 25 November 2025, recording that the FIR appeared to have been lodged with an oblique motive to exert undue pressure in retaliation to FIR No. 500/2025.
Before that negative report was filed, Tek Chand had already moved a criminal complaint dated 1 November 2025 before the Special Court under Section 175(3) of the BNSS, alleging various offences under the BNS and the SC/ST Act against the four petitioners. The gravamen of the complaint was alleged irregularities in the investigation of FIR No. 587/2025 and inaction on a prior complaint submitted to the Director General of Police (Vigilance), Jaipur.
Acting on that complaint, the Special Judge passed the order dated 21 November 2025 directing the Superintendent of Police, Sri Ganganagar, under Section 175(3) of the BNSS to register an FIR against the petitioners. The petitioners challenged this order before the High Court by way of the present criminal revision petition.
The Legal Issue: Whether Section 223 BNSS Applies at the Section 175(3) Stage
The central question before Justice Farjand Ali was whether a Magistrate or Special Court, while exercising the power under Section 175(3) of the BNSS to direct registration of an FIR, is obligated to comply with the safeguards prescribed under Section 223 of the same code before proceeding against public servants.
Section 175(3) of the BNSS empowers a Magistrate, upon receipt of a complaint, to direct the police to register an FIR and investigate. Section 223, on the other hand, governs the examination of a complainant at the stage of taking cognizance. Sub-section (2) of Section 223 specifically provides that a Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in the course of discharge of official functions or duties unless the public servant is given an opportunity to make assertions about the circumstances of the alleged incident, and a report from the superior officer is received.
The petitioners argued that the Special Judge had bypassed these requirements entirely, producing a non-speaking order passed without any application of judicial mind. The State, represented by the Deputy Government Advocate, was also heard.
How the Court Reasoned
Justice Farjand Ali began by examining the nature of the allegations in the complaint. He found that the predominant allegations against the petitioners arose from and were intrinsically connected with the discharge of their official duties, particularly the investigation of FIR No. 587/2025. While the complaint also contained averments of abuse, use of force, and assault, the court observed that these did not exist in isolation but arose against the backdrop of pre-existing criminal litigation and cross-FIRs. Tek Chand himself stood arraigned as an accused in FIR No. 500/2025, and his own FIR No. 587/2025 had culminated in a negative final report with observations indicative of retaliatory intent.
In that factual matrix, the court held that allegations of abuse or assault against police officials made in proximity to investigative proceedings were highly disputed questions of fact that could not be mechanically accepted at face value. The question of whether such acts fell within or outside the ambit of official duty was itself a debatable issue dependent on evidence and surrounding circumstances.
Turning to Section 223 of the BNSS, the court described the provision as marking a conscious and substantive departure from the earlier regime by introducing a safeguard at the pre-cognizance stage. The scheme of Section 223, the court held, envisages that taking cognizance is no longer an instantaneous act but a calibrated judicial exercise. The expression “while taking cognizance” is of wide amplitude and signifies not merely the final act of cognizance but also the preparatory stage where the Magistrate must judiciously assess the complaint before proceeding further.
The court then addressed the argument that Section 223 is technically inapplicable at the Section 175(3) stage because directing registration of an FIR does not amount to taking cognizance. Justice Farjand Ali accepted that as a settled legal position, but declined to treat it as a complete answer. He reasoned that the power under Section 175(3) cannot be exercised in a casual, mechanical, or routine manner. The very act of examining a complaint, appreciating its averments, and forming an opinion as to whether the matter warrants invocation of police machinery necessarily postulates application of judicial mind. Once the Magistrate embarks on such an evaluative exercise, it reflects an incipient application of mind akin to the stage “while taking cognizance” as contemplated under Section 223.
On this basis, the court held that the statutory safeguards under Section 223, particularly in cases involving public servants, cannot be rendered otiose by resorting to Section 175(3) in a routine manner. The Magistrate was under a legal obligation to examine the nature of the allegations with greater circumspection and to consider whether the complaint necessitated adherence to the protective framework under Section 223(2), including affording an opportunity of hearing to the concerned public servants before setting the criminal law into motion.
The court characterised the object of Section 223(2) as striking a balance between the complainant's right to seek redressal and the need to shield public servants from undue harassment for bona fide acts performed in discharge of duty. The provision, the court said, acts as a judicial filter, a protective sieve, to ensure that criminal law is not set into motion mechanically or as a tool of vendetta where allegations stem from official actions.
Applying these principles to the impugned order, the court found that the Special Judge had failed entirely to advert to or comply with the mandatory requirements under Section 223. The order was non-speaking and mechanical. It did not reflect any application of judicial mind to the existence of prior FIRs, the negative final report, or the apparent retaliatory nature of the complaint. A bare perusal of the complaint would have revealed that the allegations were directed against public servants in relation to acts purportedly performed in discharge of official duties, thereby attracting the rigours of Section 223(2). The failure to undertake the required judicial exercise meant that the power under Section 175(3) had been invoked in a perfunctory manner, and the impugned order stood vitiated for non-application of mind.
Directions on Remand
While setting aside the impugned order, Justice Farjand Ali declined to foreclose the complainant's remedy. The matter was remanded to the Special Court for fresh adjudication.
The court directed the learned Magistrate to reconsider the complaint de novo by undertaking a comprehensive and independent evaluation of the allegations, the material on record, and the surrounding factual matrix. Given that the allegations were predominantly rooted in the earlier FIRs and the manner of investigation, the court directed that a preliminary inquiry be conducted first to ascertain the veracity, context, and substance of the allegations.
During such inquiry, the Magistrate was directed to strictly adhere to Section 223 of the BNSS. An effective and meaningful opportunity of hearing must be afforded to the public servants, and such opportunity shall not be treated as a mere formality. The Magistrate must also call for and consider a report from the competent superior authority as contemplated under Section 223(2).
Only after completing such inquiry, considering the explanation of the concerned public servants, and obtaining the required report, shall the Magistrate proceed to take a reasoned decision. The entire exercise must culminate in a well-reasoned and speaking order reflecting due application of judicial mind to all relevant aspects, including the background of prior FIRs, the nature of allegations, the outcome of earlier investigations, and the explanations furnished by the officials. Depending on the outcome, the court below would then be at liberty either to dismiss the complaint or to proceed further by taking cognizance and issuing process.
Outcome
The impugned order dated 21 November 2025 passed by the Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Sri Ganganagar, was set aside. All consequential proceedings taken pursuant to that order were quashed. The matter was remanded to the Special Court for fresh consideration strictly in accordance with the procedure outlined above. The revision petition was disposed of accordingly. All pending applications were also disposed of.