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2026 DIGILAW 51 (GAU)

Nun Pertin S/o Shri Bijoy Pertin v. State of AP

2026-01-09

PRANJAL DAS

body2026
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. 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 of Section 156(3) merely codify the procedural practices and safeguards which have been introduced by judicial decisions aimed at curbing the misuse of invocation of powers of a Magistrate by unscrupulous litigants for achieving ulterior motives. 35 . Further, by requiring the Magistrate to consider the submissions made by the concerned police officer before proceeding to issue directions under Section 175(3), BNSS has affixed greater accountability on the police officer responsible for registering FIRs under Section 173. Mandating the Magistrate to consider the submissions of the concerned police officer also ensures that the Magistrate applies his mind judicially while considering both the complaint and the submissions of the police officer thereby ensuring that the requirement of passing reasoned orders is complied with in a more effective and comprehensive manner.” 7. Mandating the Magistrate to consider the submissions of the concerned police officer also ensures that the Magistrate applies his mind judicially while considering both the complaint and the submissions of the police officer thereby ensuring that the requirement of passing reasoned orders is complied with in a more effective and comprehensive manner.” 7. It has been fairly submitted by the learned counsel for the petitioner that the application preferred by the informant before the learned Magistrate was accompanied by an affidavit, but hearing of the I/O as mandated by Section 173(3) BNSS was not done and contends in this regard that the said hearing is mandated by law, failing which the order directing investigation is vitiated. 8. On the other hand, learned Additional Public Prosecutor submits that the non-hearing of the police officer might be a procedural irregularity at best and would not make order illegal or the investigation untenable in law. In support of his contention, learned Additional Public Prosecutor has relied upon a recent decision of the Hon’ble Supreme Court – Anurag Bhatnagar & Anr. Vs. State (NCT of Delhi) & Anr ., reported in 2025(6) Supreme 205 : 2025 SCC OnLine SC 1514. 9. The learned prosecution has also taken the Court through some of the relevant paragraphs of this decision and contended that in the said judgment – which was with regard to Section 156(3) CrPC, the Hon’ble Supreme Court had held that – though the petition of the complainant did not disclose about approaching the Superintendent of Police as required under Section 154(3) CrPC and the principles laid down in Priyanka Srivastava vs. State of U.P. reported in 2015(3) Supreme 152 : (2015) 6 SCC 287 –the said order would be irregular at best and also subject to the test of prejudice of the party. The relevant paragraphs Nos. 33 and 34 of Anurag Bhatnagar (supra) are reproduced herein below – “ 33 . The relevant paragraphs Nos. 33 and 34 of Anurag Bhatnagar (supra) are reproduced herein below – “ 33 . To sum up, the Magistrate ought not to ordinarily entertain an application under Section 156(3) CrPC directly unless the informant has availed and exhausted his remedies provided under Section 154(3) CrPC, but as the Magistrate is otherwise competent under Section 156 (3) CrPC to direct the registration of an FIR if the allegations in the application/complaint discloses the commission of a cognizable offence, we are of the opinion that the order so passed by the Magistrate would not be without jurisdiction and would not stand vitiated on this count. 34 . The Magistrate by the order dated 01.07.2005 has simply directed for the registration of the FIR so as to set the criminal law in motion but has not exercised his power under Section 190 of the CrPC of taking cognizance thereof. In such a situation, the order so passed by the Magistrate, though irregular, is of no prejudice to any party, much less to the VLS. Therefore, it is not appropriate for this court to interfere in the matter or with the order of the Magistrate dated 01.07.2005 or with the order impugned passed by the High Court. Point (ii) : Whether the order dated 01.07.2005 passed by the Metropolitan Magistrate is an order passed without application of mind, irrespective of the fact that it states that the parties were “heard” and the documents were “perused”?” 10. I have clearly perused the impugned order of the learned Magistrate vide dated 25.08.2025. It is stated in para 9 that the learned Magistrate perused the petition along with the records annexed. From the order, there is no mention about conducting any hearing of the police officer as provided for under Section 175(3) of BNSS. Thus, from the impugned order, it is clear that one of the limbs of Section 175(3) pertaining to hearing of the police officer was not complied with before passing the said impugned order dated 25.08.2025. 11. Since the judgment in Om Prakash Ambadkar (supra) was with regard to Section 156(3) CrPC, the Court did not go into the aspect of whether hearing of the police officer is a mandatory requirement. It may be mentioned herein that the provision regarding hearing of the police official was newly inserted in BNSS. 11. Since the judgment in Om Prakash Ambadkar (supra) was with regard to Section 156(3) CrPC, the Court did not go into the aspect of whether hearing of the police officer is a mandatory requirement. It may be mentioned herein that the provision regarding hearing of the police official was newly inserted in BNSS. In Om Prakash Ambadkar (supra) , the Hon’ble Apex Court has explained the importance of hearing given to the police officer in para 35 thereof; but it has been perhaps rightly contended by the learned prosecution that the Hon’ble Apex Court in that case was not required go into the question as to whether non-hearing of the police officer would vitiate the order of the investigation. Thus, it is appears that the said remains an open question perhaps to be addressed at a later stage in the evolution of this law. 12. In the instant case, upon perusing the materials and considering the submissions of the learned counsels of both the sides, I am of the considered view that – perhaps the case can be disposed of at this stage itself by interfering with the order. At this stage, the learned Additional Public Prosecutor submits that perhaps the direction can be issued to restore the impugned order and the learned Magistrate can pass consequent order in terms of this order. I have given my consideration to the submission. 13. The order dated 25.08.2025 passed by the learned CJM, Roing, Lower Dibang Valley District, Arunachal Pradesh is hereby set aside and quashed. Consequently, Roing P.S. Case No. 59/2025 and consequent investigation are also required to be interfered with and accordingly quashed. 14. However, the informant/complainant would be liberty to file a fresh application before the learned Magistrate complying with the provision u/s 175(3) BNSS and if done so, the learned trial court may adjudicate such petition. 15. Thus, the complainant/informant shall be allowed to file a fresh application, accompanied by affidavit, before the learned Magistrate – in- compliance with the provision of Section 175(3) of BNSS. For this purpose, the learned trial court on the basis of this order shall issue notice to the said complainant. If such new complaint is filed by the informant, the learned Magistrate shall pass necessary order on the question of directing police investigation, after enquiry and full compliance with Section 175(3) of BNSS, including the hearing of the concerned police officer. If such new complaint is filed by the informant, the learned Magistrate shall pass necessary order on the question of directing police investigation, after enquiry and full compliance with Section 175(3) of BNSS, including the hearing of the concerned police officer. 16. The instant petition stands disposed on the aforesaid terms. 17. A copy of this order shall be sent to learned CJM, Roing, Lower Dibang Valley District, Arunachal Pradesh, for the needful.