Magistrate must mandatorily comply with Section 175(4) BNSS safeguards—report from public servant's superior and consideration of servant's assertions—before ordering FIR under 175(3) against official acts; non-compliance quashes proceedings.

JUDGMENT :

VIRENDER SINGH, J.

1. Petitioner–Kashmir Singh has filed the present petition, under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’) for quashing of FIR No. 63/2025, dated 15.05.2025 (hereinafter referred to as ‘FIR in question’) registered under Sections 420 and 34 of Indian Penal Code (hereinafter referred to as the ‘IPC’), with Police Station Dharampur, District Mandi, H.P., as well as, the order dated 13.05.2025, passed by the Court of learned Judicial Magistrate First Class–1, Sarkaghat, District Mandi, H.P. (Camp at Dharampur), (hereinafter referred to as ‘the learned trial Court’) in Private Complaint No. 01 of 2025.

2. The FIR in question, as per the petitioner, has been registered, pursuant to order dated 13.05.2025, passed by the learned trial Court, in the application under Section 175(3) of BNSS, 2023, in case titled as Arjun Singh Himalayan Vs. Kashmir Singh & Anr.

3. The learned trial Court, has passed the order dated 13.05.2025, in the complaint filed by respondent No. 4 Arjun Singh Himalayan. In the complaint, it has been alleged that the petitioner has mis-appropriated Government funds in his official capacity, as he was Pradhan of Gram Panchayat Ghanala, under Swachh Bharat Mission (Gramin). It has been alleged that the matter was inquired by Block Development Officer, wherein report was submitted to District Panchayat Officer Mandi. Respondent No. 4 (complainant) Arjun Singh Himalayan, has also made the complaint, against the petitioner, before SHO, Police Station Dharampur and Superintendent of Police, Mandi, however, no action has been taken.

4. On the basis of the inquiry report, the learned trial Court, has passed the impugned order dated 13.05.2025, to register the FIR.

5. It is the case of the petitioner that when, respondent No. 4, made a complaint, Block Development Officer conducted the preliminary inquiry and after conducting the preliminary inquiry, a show cause notice was issued to the petitioner, by District Panchayat Officer Mandi, under Section 145(1) of H.P. Panchayati Raj Act, read with Panchayati Raj Rules, directing the petitioner to file his response within 15 days, with respect to three issues raised by Arjun Singh Himalayan. In the show cause notice, following three points were raised:-

(i) Firstly, it is found that in Ward No. 1 & Ward No. 5 of the panchayat two toilets have been constructed under the Swachh Bharat Mission Gramin Scheme on the land of Sh. Balraj & Sh. Chander Pal. It is asserted that only Affidavit to donate the land & Tatima of the land has been obtained from the proposer, whereas, land has not been officially transferred to Rural Development Department, Govt. of Himachal Pradesh by way of gift deed.

(ii) Secondly, as per the preliminary enquiry, Rs. 548/- has been spent in excess for the construction of the toilet in Ward No. 5 & the same is shown to be recoverable from Pradhan/ Secretary of the Gram Panchayat Ghanala.

(iii) Thirdly, the show cause notice highlights a discrepancy in the construction of toilets in Ward No. 1 at Chokru. It states that permissi