A magistrate cannot take cognizance of a complaint against a public servant for acts performed in the discharge of official duties without first providing the accused an opportunity to explain the circumstances of the incident and obtaining a report from their superior officer as mandated by law.

ORDER :

1. Rule to the respondent-State. Learned APP waives service of notice of Rule. Rule is fixed forthwith.

2. The challenge is given to the order dated 13.06.2025 passed by the Judicial Magistrate, First Class, (3rd Court), Surat in Criminal Inquiry No.107 of 2025, whereby the learned Judicial Magistrate, First Class, Surat issued summons under section 227 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (herein after referred to as the ‘BNSS, 2023’) for the offences under sections 115 and 54 of the Bharatiya Nyaya Sanhita, 2023 (herein after referred to as ‘BNS, 2023’), against the present three applicants, who are the police officials.

3. Learned Senior Advocate Mr. N.D. Nanavaty along with learned advocate Mr. Rahul R.Dholakia for the applicants submitted that the order passed by the Judicial Magistrate, First Class, under section 227 of the BNSS, 2023, would become illegal, and bad in law in view of the provisions of sub-section (2) of section 223 of the BNSS, 2023.

3.1 Learned Senior advocate Mr. Nanavaty relying upon the provision of section 223(2) of the BNSS, 2023, submitted that the learned Magistrate failed to take take into consideration the provisions, where the opportunity is required to be accorded to the public servant prior to taking cognizance of the offence. Mr. Nanavaty submitted that by sub-section (2) of section 223, a public servant has been provided sufficient safeguard against false and frivolous complaints, which would be in the wider interest of the justice as well as to protect the public servants, who would be discharging their official function and duties.

3.2 Learned senior advocate Mr. Nanavaty has also placed reliance on the judgment of G.C. Manjunath And Others Vs. Seetaram , reported in (2025) 5 SCC 390, to submit that even if the allegations are made of ill-treatment or assault during police custody, the statutory safeguard, which has been granted to the police officers, was required to be extended to even examine the fact whether there was any transgression or overstepping of authority, and submitted that section 223 of the BNSS, 2023 makes ample provision for this safeguard to be extended to the public servant.

4. Learned APP Mr. Niraj Sharma for the respondent State referring to the facts of the case stated that originally when three of the complainants were produced before the Court on 29.05.2025, they had made a complaint regarding ill-treatment and assault during the police custody; the statements of the applicants were recorded and on the very same day i.e. on 29.05.2025, the learned Magistrate had ordered to send the applicants for medical examination to Medical Officer, Civil Hospital, Surat. Learned APP Mr. Sharma stated that the treatment certificate was issued by the Civil Hospital, Surat and on 31.05.2025, the documents were sent to the District Judge, Surat, who vide communication ‘Javak’ No.8173/2025 dated 02.06.2025, ordered for an inquiry, therefore, Criminal Inquiry No.107/2025 was registered on 02.06.2025.

4.1 Learned APP Mr. Sharma submitted that the learned Magistrate has called the complainants under police Japta; their statements were recorded on 09.06.2025, which has been reproduced in the order and on the basis of the complaint, statements and the Medical Certificate, finding prima facie evidence, under section 227 of the BNSS issued summons against three of the applicants, who are in the rank of D.C.P. of D.C.B. Police Station, P.I. of Varachha Police Station and P.I. of Sarthana Police Station.

4.2 Learned APP Mr. Sharma submitted that the Sessions Judge had passed an order on 02.06.2025 by following the provision of Par