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2025 Supreme(Online)(Mad) 75962

IN THE HIGH COURT OF JUDICATURE AT MADRAS
HONOURABLE MR. JUSTICE K.MURALI SHANKAR
P. Parthiban – Appellant
Versus
The State of Tamilnadu – Respondent
CRL.A(MD).No. 986 of 2025 | Crl.M.P(MDNo.12964 of 2025 | Crl.M.P.No.125 of 2025

Advocates:
For the Appellants/Petitioners: R. Anand
For the Respondents: B. Thanga Aravindh (for R1), No Appearance (for R2)

Before ordering investigation against a public servant under BNSS, a Magistrate must comply with Sections 175(3) and 175(4), and for an offence under Section 4 of the SC/ST Act, an administrative recommendation is mandatory; failure to do so renders the order invalid.

Headnote:(A) Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) - Sections 175(3) and 175(4) - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 4 and proviso to sub-section (2) - Private complaint against public servant for wilful neglect of duty - Magistrate's order forwarding complaint for investigation without complying with mandatory procedural safeguards - Order set aside. (Paras 6-18)

(B) Criminal Procedure - Investigation against public servant - Under Section 175(4) BNSS, before ordering investigation, Magistrate must (i) receive a report containing facts and circumstances from the officer superior to the accused public servant, and (ii) consider the assertions made by the accused public servant as to the situation that led to the alleged incident. Non-compliance renders the order unsustainable. (Paras 10-13)

(C) SC/ST Act - Offence under Section 4 - Punishment for neglect of duties by public servant - Proviso to Section 4(2) mandates that taking cognizance or setting in motion penal proceedings requires a recommendation of an administrative enquiry. This is a sine qua non. Absence of such recommendation vitiates the proceedings. (Paras 15-18)

(D) Criminal Procedure - Cognizance - Once Magistrate takes cognizance of a complaint after recording sworn statements and finding a prima facie case, he cannot thereafter forward the complaint under Section 175(3) BNSS for registration of FIR and investigation. Such dual procedure is legally invalid. (Para 6)

Facts of the case:
The second respondent (complainant) filed a private complaint under Section 223 of BNSS against the appellant (a former Inspector of Police) and another police officer, alleging that they neglected to conduct proper investigation into her complaint and acted in favour of the other side because she belongs to a Scheduled Caste community. The learned Sessions Judge, upon receiving the complaint, recorded the sworn statement of the complainant, perused documents (P1 to P4) and an affidavit, and recorded that a prima facie case was made out. Despite having taken cognizance, the Judge forwarded the complaint to the Deputy Superintendent of Police, Central Crime Branch, Madurai, to register an FIR and investigate. The appellant challenged this order.

Findings of Court:
The High Court held that the impugned order was legally unsustainable because (i) the Sessions Judge failed to comply with Section 175(3) BNSS by not calling for a report from the jurisdictional police or hearing them before directing investigation; (ii) the Judge violated Section 175(4) BNSS by not obtaining a report from the appellant's superior officer and not giving the appellant an opportunity of being heard; (iii) the Judge failed to obtain a recommendation of an administrative enquiry as required by the proviso to Section 4(2) of the SC/ST Act before taking cognizance or ordering investigation for an offence under Section 4; and (iv) having already taken cognizance, the Judge could not thereafter forward the complaint for investigation under Section 175(3).

Issues: The main issues were whether the Sessions Judge complied with the mandatory procedure under Sections 175(3) and 175(4) of BNSS before directing investigation against a public servant, and whether the absence of an administrative recommendation under Section 4(2) of the SC/ST Act vitiated the proceedings.

Ratio Decidendi: The court ruled that the procedural safeguards under BNSS and the SC/ST Act are mandatory and designed to protect public servants from frivolous complaints. Failure to follow them renders the Magistrate's order invalid. Once cognizance is taken, the Magistrate cannot simultaneously direct investigation under Section 175(3). Additionally, for an offence under Section 4 of the SC/ST Act, a prior administrative recommendation is a sine qua non for taking cognizance.

Result: Criminal Appeal allowed. Impugned order dated 02.08.2025 in Crl.M.P.No.125 of 2025 on the file of the learned III Additional District and Sessions Judge (PCR) (FAC) Madurai is set aside. Connected Miscellaneous Petition closed.

JUDGMENT

This Criminal Appeal is directed against the order made in Crl.M.P.No.125 of 2025, dated 02.08.2025 on the file of the II nd Additional District Court (PCR) Cases, Madurai.

2.The second respondent filed a private complaint under Section 223 of BNSS, against the appellant/Inspector of Police, Central Crime Branch, Madurai and against Tmt.Annalakshmi, Sub Inspector of Police, Central Crime Branch, Madurai, alleging that they have neglected to conduct proper investigation into the complaint given by the defacto complainant and acted in favour of the other side, as the complainant belongs to Schedule Caste Community.

3.The learned Sessions Judge, upon receiving the private complaint under Section 223 of BNSS, passed the impugned order, dated 02.08.2025 and is extracted hereunder for better appreciation :

“Sworn Statement of complainant and Documents P1 to P4 perused. Affidavit also filed. On perusal of complaint and the documents, prima facie case made for the alleged offences mentioned in the complaint. Hence, it is forwarded to DSP CCB, Madurai to register the FIR and investigate the matter and file the final report before this court.”

Challenging the impugned order, the present appeal came to be filed.

4. The learned counsel for the appellant attacked the impugned order on the four grounds namely,

a) The learned Sessions, Judge without calling for and considering the submissions made by the concerned police, failed to comply with the requirement under Section 175(3) of BNSS;

b) that the appellant being a public servant and allegations were levelled arising in the course of discharge of his duties, the learned Sessions Judge should have received a report from the officer Superior to the appellant;

c) that the learned Sessions Judge failed to hear the proposed accused including the appellant and that therefore, the learned Sessions Judge has violated the mandatory requirements contemplated under Section 175(4) of BNSS;

d) that the learned Sessions Judge, after recording that a prima facie case made out for the offences shown in the complaint, should not have forwarded the complaint to the DSP/CCB for registering FIR and for investigation and that since none of the ingredients for making out the offence under the provisions of SC/ST (PoA) Act are found available for the private complaint, the learned Sessions Judge ought not to have directed the first respondent to register the FIR against the appellant.

5. During arguments, the learned counsel for the appellant raised another ground that since there has been no recommendation on the administrative side for a positive finding with regard to the negligence as required under Section 4(2) of SC/ST (PoA)Act, the impugned order is unsustainable.

6. It is pertinent to note that the learned Sessions Judge, upon receipt of the private complaint filed under Section 223 of BNSS, (200 Cr.P.C) proceeded to record the sworn statement of the complainant and marked the documents produced by the complainant and upon perusing the complaint, affidavit, sworn statement and the documents (P 1 to P 4), the learned Sessions Judge has recorded his satisfaction that a prima facie was made out for the offence shown in the complaint. Considering the above, it is very much clear that the learned Magistrate had taken cognizance of the case, but even thereafter, proceeded to forward the complaint to the DSP/CCB for registration of FIR and for investigation. Since the learned Sessions Judge had taken cognizance, he was not having any jurisdiction to forward the complaint, allegedly under Section 175(3) of BNSS ( 156 (3) of Cr.P.C.) Considering the above, the impugned order forwarding the complaint for registration of FIR and for investigation, after the learned Sessions Judge himself has taken cognizance, cannot legally be sustained.

7. It is necessary to refer Section 175 (3) of BNSS :

“(3) Any Magistrate empowered under Section 210 may, after considering the application supported by an affidavit made under sub- s

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2025 Supreme(Online)(Mad) 75962

IN THE HIGH COURT OF JUDICATURE AT MADRASHONOURABLE MR. JUSTICE K.MURALI SHANKARP. Parthiban – AppellantVersusThe State of Tamilnadu – RespondentCRL.A(MD).No. 986 of 2025 | Crl.M.P(MDNo.12964 of 2025 | Crl.M.P.No.125 of 2025

Before ordering investigation against a public servant under BNSS, a Magistrate must comply with Sections 175(3) and 175(4), and for an offence under Section 4 of the SC/ST Act, an administrative recommendation is mandatory; failure to do so renders the order invalid.

IN THE HIGH COURT OF JUDICATURE AT MADRAS
HONOURABLE MR. JUSTICE K.MURALI SHANKAR
P. Parthiban – Appellant
Versus
The State of Tamilnadu – Respondent
CRL.A(MD).No. 986 of 2025 | Crl.M.P(MDNo.12964 of 2025 | Crl.M.P.No.125 of 2025