Under Section 175(3) of the BNSS, the 'inquiry' required to be conducted by a Magistrate before ordering an investigation must be performed by the Magistrate himself and cannot be delegated to the police.

Item no.48

Ct. No.5

CRIMINAL REVISIONAL JUISDICTION

APPELLATE SIDE

The present revisional application has been filed under Sections 438 /442 and 528 of the BNS, corresponding to Sections 397 /401 read with Section 482 of the Code of Criminal Procedure, 1973, challenging the legality and propriety of the order dated 09.04.2026 passed by the learned Additional Chief Judicial Magistrate, Siliguri, District Darjeeling, in Misc. Petition Case No. 23 of 2026. By the said order, passed on a petition under Section 175(3) of the BNSS (corresponding to Section 156(3) of the Code), the Inspector-in-Charge of Matigara Police Station was directed to conduct a preliminary enquiry into the allegations made therein and to submit a report.

Mr. Dhar, learned advocate appearing for the petitioner, submits that it is well settled that upon receipt of a complaint under Section 175(3) of the BNSS, a Court may either direct investigation into the allegations contained therein or conduct an enquiry itself; however, it cannot direct the police authorities to conduct a preliminary enquiry. He contends that, in the present case, the learned Court below has done precisely that, acting contrary to the settled principles of law, and as such, the order dated 09.04.2026 cannot be allowed to stand. In support of his submissions, he relies upon an unreported judgment of a Coordinate Bench of this Court passed in CRR 467 of 2026 (Kousik Panja vs. The State of West Bengal & Ors.), along with two other revisional applications, being CRR No. 363 of 2026 (Manoj Kumar Sharma vs. The State of West Bengal & Ors.) and CRR No. 4982 of 2025 (Sri Nabakumar Das vs. The State of West Bengal & Ors.).

Having noted the submissions advanced on behalf of the petitioner, and upon perusal of the materials on record, as well as considering that the issue raised in this revisional application is no longer res integra, I am of the view that no useful purpose would be served by keeping the present revisional application pending

To shed illuminating light on the issue, it would be apposite to refer to and extract the relevant portion of the decision reported in AIR 2025 SC 970 (Omprakash Ambedkar vs. State of Maharashtra & Ors.), wherein the Hon’ble Supreme Court drew a distinction between the provisions of Section 156(3) of the Code and Section 175(3) of the BNSS, which reads as follows:

[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.

[30] Sub-Section (4) of Section 175 of the BNSS is a new addition to the scheme of investigation of cognizable cases when compared with the scheme previously existing in Section 156 of the Cr.P.C. It provides an additional safeguard to a public servant against whom an accusation of committing a cognizable offence arising in the course of discharge of his official duty is made. The provision stipulates that any Magistrate who is empowered to take cognizance under Section 210 of the BNSS may order investigation against a pub