It is definitely in the fitness of things that the Orissa High Court in a most learned, laudable, landmark, logical and latest judgment titled Prajna Prakash Nayak vs State of Odisha & Ors in CRLMP No.107 of 2025 (In the matter of an application Under Articles 226 & 227 of the Constitution of India) that was heard and then finally pronounced on 05.02.2025 has minced just no words to make it indubitably clear 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. It must be noted that the Single Judge Bench comprising of Hon’ble Mr Justice G Satapathy has underscored unequivocally that there has to be strict adherence to the procedural safeguards that have been introduced under the new criminal law framework. We thus see that the Orissa High Court appropriately set aside the JMFC-II’s order and deemed it fit to remit the matter back for fresh consideration in strict compliance with Section 175 of BNSS. Very rightly so!

At the very outset, this progressive, pragmatic, pertinent and persuasive judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice G Satapathy of Orissa High Court at Cuttack sets the ball in motion by first and foremost putting forth in para 1 that:
The petitioner by way of this writ petition under Articles 226 & 227 of the Constitution of India prays for a direction for Crime Branch investigation in the matter and to take action against the accused persons in accordance with law post registration of FIR by Mancheswar Police Station and to initiate proceedings against all erring officials for their willful and deliberate disobedience to the Court’s order.

To put things in perspective, the Bench envisages in para 2 while dwelling on the facts of the case that:
The facts in gist are the petitioner and his wife claiming themselves to be the victims of fraud, forgery and cheating of Rs.6.2 crores had approached the Infocity Police Station and accordingly, Infocity FIR No. 252 of 2021 and Airfield FIR No. 265 of 2021 were registered against one Rajeev Lochan Das along with others, but it is alleged that during the pendency of investigation these two cases, the then DCP, Bhubaneswar tried to influence the petitioner and his wife by calling to the Police Station and calling over on Whatsapp call to withdraw the two cases and get into a compromise with the accused of these two cases which in fact the petitioner and his wife did not entertain and, therefore, in the process the police officials of the then Commissionerate Police, which includes Addl. DCPs, the then IIC Lingaraj PS, IIC Infocity PS and SI of Police pressurized the petitioner and his wife on different occasions to compromise in this case under the active instruction of the then DCP. The aforesaid police personnel in the process had abducted the petitioner at gun point and kept him in unlawful detention and tortured him and his wife mentally and physically by abusing, giving death threats and terrorizing them by trespassing into their house. Due to the aforesaid incident, not only the petitioner, but also his family members suffer mentally and their minor daughter developed some Neurological disease and taken to NIMHANS, Bangalore for her treatment.

On this incident, despite approaching the IIC, Mancheswar, DCP and even the CP Multiple times, the written report of the petitioner has not yet been registered as FIR and thereby the petitioner lodged two e-FIRs. Last time on 4th August, 2024, the petitioner has not only given written complaint to the IIC, Macheswar PS, but also has lodged an e-FIR and has also sent the copy of the written complaint by Speed Post to the IIC, Mancheswar PS and the DCP, Bhubaneswar and has also sent the same through e-mail to the IIC, Mancheswar PS and other senior officers, but everything was in vain.

Finding no way out, the petitioner ultimately approached the learned JMFC-II, Bhubaneswar with a complaint which was registered as ICC Case No. 7679 of 2024 and the learned JMFC-II, Bhubaneswar being satisfied in the matter by way of an order passed on 09.10.2024 in ICC Case No. 7679 of 2024 sent the complaint of the petitioner to the concerned IIC U/S. 175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 ( in short, BNSS) for registration of an FIR and investigation in the matter, but till date no FIR has yet been registered as claimed by the petitioner and thereby the petitioner has approached this Court in the present CRLMP.

It is worth paying attention that the Bench points out in para 8 that, Reverting back to the facts of the case, it appears that the allegations depicted in the complaint reveal serious allegation against the public officials which is unacceptable for a civilized society, no matter such allegation flows from the year 2021, however, a question may also come in mind as to whether such allegation can be covered within the meaning of discharge of official duty, but fact remains that two criminal cases were initiated by the complainant and in the course of investigation of such criminal cases, the excesses committed by the public officials have been alleged by the petitioner in the present complaint and, therefore, the same being a question of fact can be covered by the provision of Sub-Section (4) of Section 175 of the BNSS. In the context, it is considered apposite to refer to the law laid down in the decision in Matajog Dobey Vrs. H.C. Bihari; AIR 1956 SC 44, where in a Constitutional Bench of five Judges of the Apex Court has held thus:-

17. Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in Section 197 of the Code; any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. But the difference is only in language and not in substance. The offence alleged to have been committed must have something to do, or must be related in some manner with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty.

It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when trial proceeds on the merits. What we must find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.

It is also worth noting that the Bench notes in para 9 that:
The answer to the question as to whether the excesses committed by the public officials can be covered within the meaning of discharge of official duty as contemplated in Sec.175(4) of the BNSS, lies in the following discussions made in D. Devaraja Vrs. Owais Sabeer Hussain; (2020) 79 OCR (SC) 146, wherein the Apex Court at Paragraph-71 to 74, 77 and 78 has held as under:-

71. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of Government sanction for initiation of criminal action against him.

72. The language and tenor of section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority.

73. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law.

74. If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate Government is obtained under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act.

77. It is well settled that an application U/S. 482 of the Criminal Procedure Code is maintainable to quash proceedings which are ex-facie bad for want of sanction, frivolous or in abuse of process of the Court. If, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of Court.

78. There is also no reason to support that sanction will be withheld in case of prosecution, where there is substance in a complaint and in any case if, in such a case, sanction is refused, the aggrieved complaint can take recourse to law. At the cost of repetition it is reiterated that the records of the instant case clearly reveal that the complaint alleged of police excesses while the respondent was in custody, in the course of investigation in connection with Crime No.12/2012. Patently the complaint pertains to an act under colour of duty.

Most significantly and as a corollary, the Bench encapsulates in para 10 what constitutes the cornerstone of this notable judgment postulating that:
In view of the aforesaid discussion of facts and the law laid down by the Apex Court, since the learned JMFC-II, Bhubaneswar has not followed up the provisions of BNSS in letter and spirit, but he was supposed to follow the same in terms of the provision of Section 175 of the BNSS and keeping in view the law laid down by the Apex Court in Om Prakash Ambedkar (supra), although such order directing an investigation having not been challenged, but the same being not stood to the judicial scrutiny in terms of the mandatory law, the procedural error which may subsequently give rise to jurisdictional error cannot be allowed to be perpetuated once it is noticed by this Court involving the rights, liabilities and liberty of the parties.

At the same time, this Court cannot and shall not appreciate/countenance the conduct of the police officials in defying of the order of the learned JMFC-II, Bhubaneswar who has passed the order which has not been set aside or varied, but defying a valid order without any reason is not acceptable to a civilized society and, thereby, the learned JMFC-II, Bhubaneswar is at liberty to deal the matter of defiance of the order passed by the Court of learned JMFC-II, Bhubaneswar in accordance with law.

As a necessary corollary, the order dated 09.10.2024 directing for an investigation in ICC Case No. 7679 of 2024 by the learned JMFC-II, Bhubaneswar is hereby set aside and the matter is remitted back for passing of appropriate order on the complaint of the petitioner in the light of discussions made hereinabove and following the procedure prescribed under the relevant provisions of BNSS, since the complaint is admittedly filed on 09.10.2024 which is after coming into force of BNSS.

Finally, we see that the Bench then concludes by aptly holding in para 11 that, In the result, the CRLMP stands disposed of accordingly and the petitioner-complainant is, hereby, instructed to appear before the learned JMFC-II, Bhubaneswar for taking appropriate instruction. A copy of this order be immediately sent to the Court concerned for information and necessary action.

In conclusion, we thus see that the Orissa High Court at Cuttack has made it crystal clear that Magistrate can order probe against police officer only after hearing him and so also after receiving report from a superior officer. There can be thus just no gainsaying that the Magistrate must adhere to what has been held by the Orissa High Court in this leading case! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh