The non-compliance with the mandatory hearing requirement of Section 175(3) BNSS renders the Magistrate's directive for police investigation void.

JUDGEMENT AND ORDER (ORAL)

Pranjal Das, J.

Heard Mr. L. Perme, learned counsel for the petitioner. Also heard Mr. T. Ete, learned Additional Public Prosecutor for the State of Arunachal Pradesh.

2. This is an application filed under Article 227 of Constitution of India r/w Section 528 of BNSS, 2023, seeking interference with the impugned order dated 25.08.2025 passed by the CJM, Roing, Lower Dibang Valley District, Arunachal Pradesh in Misc. (Criminal) Case No. 24/2025 – whereby accepting the application of the informant/complainant under Section 175(3) of BNSS, 2023 [corresponding to Section 156(3) CrPC] the court was pleased to direct the police to investigate the FIR dated 27.02.2025 lodged by the informant.

3. The aforesaid direction of the learned Magistrate after compliance by the police resulted in registration of Roing P.S. Case No. 59/2025 under Section 318(3)/336(3)/3(5) of BNS, 2023.

4. The primary contention of the petitioner side is that the direction for investigation was given by the learned Magistrate without compliance with the procedural requirement of Section 175(3) of BNSS, especially, the hearing of the investigating officer. Before proceeding further, the said statutory provision may be reproduced herein below –

“Section 175(3) of BNSS- 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.”

5. In support of his submission, the learned counsel for the petitioner has relied upon decision of the Hon’ble Apex Court in the case of Om Prakash Ambadkar vs. State of Maharashtra & Ors. reported in 2025 Supreme(SC) 260 : 2025 SCC OnLine SC 238.

6. The learned counsel for the petitioner in the course of hearing has taken the Court through various relevant paragraphs of the aforesaid judgment, wherein the Hon’ble Apex Court has explained the changes brought about by the legislature in Section 175(3) of BNSS, pertaining to powers of the Magistrate to direct investigation by the police. For this purpose, para Nos. 29, 34 and 35 of Om Prakash Ambadkar (supra), may be reproduced herein below –

“29. Section 175 of the BNSS corresponds to Section 156 of the Cr. P.C. Sub- section (1) of Section 175 of the BNSS is in pari materia with sub-section 156(1) of the Cr. P.C. 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 Cr. P.C. 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 Cr. P.C. However, unlike Section 156(3) of the Cr.P.C., 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.

34. In light of the judicial interpretation and evolution of Section 156(3) of the Cr. P.C. 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