Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — Section 175(3) & Section 175(4) [corresponding to Section 156(3) Cr.P.C.] — Statutory codification of procedural safeguards: Section 175(3) of the BNSS statutorily codifies the safeguards developed in Priyanka Srivastava v. State of U.P. and Babu Venkatesh v. State of Karnataka. It introduces three mandatory procedural shifts: The applicant must attach a copy of the application sent to the Superintendent of Police under Section 173(4) supported by a sworn affidavit. The Magistrate is empowered to conduct such inquiry as deemed necessary. The Magistrate must consider the submissions of the concerned police officer explaining the reasons for the refusal to register an FIR. Additionally, Section 175(4) of the BNSS introduces a statutory shield for public servants acting in the discharge of official duties, barring an order of investigation until the Magistrate receives a factual report from the superior officer and considers the assertions/explanation offered by the accused public servant. (Paras 28–31, 34, 35)

 

• Code of Criminal Procedure, 1973 (Cr.P.C.) — Section 156(3) & Section 482 — Judicial application of mind vs. Mechanical referral:

  The power under Section 156(3) of the Cr.P.C. is discretionary and pre-cognizance in nature; the Magistrate is not bound to direct an investigation merely because an application is presented. The Magistrate cannot act as a mere "post office" or pass routine, cryptic orders. Before ordering an investigation, the Magistrate is obligated to apply their judicial mind to determine whether the necessary ingredients of the alleged cognizable offences are disclosed on a plain reading of the complaint, and whether the assistance of the state investigative machinery is actually necessary to collect evidence. If the allegations are simple and the complainant possesses the evidence, the Magistrate should proceed under Chapter XV of the Cr.P.C. rather than delegating the matter to the police.

  (Paras 10–13, 21, 23–25)

• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — Section 175(3) & Section 175(4) [corresponding to Section 156(3) Cr.P.C.] — Statutory codification of procedural safeguards:

  Section 175(3) of the BNSS statutorily codifies the safeguards developed in Priyanka Srivastava v. State of U.P. and Babu Venkatesh v. State of Karnataka. It introduces three mandatory procedural shifts:

  1. The applicant must attach a copy of the application sent to the Superintendent of Police under Section 173(4) supported by a sworn affidavit.

  2. The Magistrate is empowered to conduct such inquiry as deemed necessary.

  3. The Magistrate must consider the submissions of the concerned police officer explaining the reasons for the refusal to register an FIR.

     Additionally, Section 175(4) of the BNSS introduces a statutory shield for public servants acting in the discharge of official duties, barring an order of investigation until the Magistrate receives a factual report from the superior officer and considers the assertions/explanation offered by the accused public servant.

     (Paras 28–31, 34, 35)

• Indian Penal Code, 1860 (IPC) — Section 294(b) — Obscenity vs. Abusive language:

  The essence of an offence under Section 294(b) of the IPC is that the act or uttered words must be "obscene" and cause "annoyance to others." The legal test of obscenity requires a tendency to deprave, corrupt, or arouse lustful desires or impure sexual thoughts (R. v. Hicklin, Ranjit D. Udeshi, and N.S. Madhanagopal followed). Mere defamatory, humiliating, insolent, or abusive words—even if uttered in public view by or against a police officer—do not satisfy the threshold of obscenity under Section 294 of the IPC.

  (Paras 13–16)

• Indian Penal Code, 1860 (IPC) — Section 500, Section 504 & Section 506 — Defamation, Intentional Insult, and Criminal Intimidation:

  • Section 500: Defamation is a non-cognizable offence; directing police investigation under Section 156(3) of the Cr.P.C. for defamation alone or mechanically adding it is legally impermissible.

  • Section 504: To constitute intentional insult provoking breach of the peace, the complaint must specify the exact abusive words used and demonstrate an intention or knowledge that the insult was calculated to cause the complainant to break public peace or commit an offence. Mere vague or omnibus allegations of abuse are insufficient.

  • Section 506: An offence of criminal intimidation requires the prosecution/complainant to establish that a threat to person, property, or reputation was made with the specific intent to cause alarm.

    (Paras 17–20, 28)

RATIO DECIDENDI

1. Judicial Scrutiny over Police Delegation: Directing police investigation under Section 156(3) of the Cr.P.C. requires an active application of judicial mind to confirm that (a) the essential ingredients of the alleged cognizable offences are clearly disclosed on the face of the complaint, and (b) state police machinery is indispensable to unearth evidence. Cryptic, mechanical referral orders amount to an abuse of process.

2. Narrow Scope of Obscenity (Section 294 IPC): Abusive, humiliating, or defamatory words do not constitute "obscene acts or songs" under Section 294 of the IPC unless they contain a lascivious tendency to deprave or arouse impure sexual desires to the actual annoyance of the public.

3. Legislative Safeguards in BNSS: The newly enacted Section 175(3) and 175(4) of the BNSS statutorily mandate prior exhaustion of remedies (supported by affidavit), consideration of police submissions, discretionary preliminary inquiry, and special protective filters for public servants before any direction to register an FIR can be ordered.

ANALYSIS OF FACTS AND LAW

1. Factual Matrix

• The Parties & the Incident: The appellant was a police officer; the respondent/complainant was a practicing advocate in Digras, Yavatmal, Maharashtra. The complainant alleged that on 31.12.2011, the appellant humiliated, abused, and assaulted him.

• Application under Section 156(3) Cr.P.C.: After the police station allegedly refused to lodge an FIR on 03.01.2012, and after submitting representations through the local Bar Association to the Superintendent of Police, the complainant filed an application before the JMFC, Digras, on 06.01.2012 alleging offences under Sections 323, 294, 500, 504, and 506 of the IPC.

• Magistrate’s Order (09.01.2012): The JMFC concluded that an offence under Section 294 was cognizable, held that sanction under Section 197 Cr.P.C. was unnecessary as the act was not in the discharge of official duties, and directed the Digras Police Station to register an FIR and investigate under Section 156(3).

• High Court Judgment (16.10.2019): The Bombay High Court (Nagpur Bench) rejected the appellant's Section 482 petition, affirming the Magistrate’s referral order.

2. Legal Scrutiny by the Supreme Court

• Failure of Essential Ingredients of Alleged Offences:

  The Supreme Court found that the Magistrate ordered an investigation mechanically without examining whether the ingredients of the offences were prima facie established:

  • Section 294 IPC: The complaint contained general assertions of humiliation, threats, and assault. No lascivious, sexually impure, or obscene words or acts causing public annoyance were specified.

  • Section 500 IPC: Defamation is non-cognizable and could not have been referred for police investigation under Section 156(3).

  • Sections 504 & 506 IPC: The complaint lacked particulars of the exact words used to demonstrate an intentional insult likely to provoke a breach of public peace or an intent to cause alarm.

  • Section 323 IPC: The vague allegations of simple hurt did not inspire confidence.

• Improper Exercise of Discretion under Section 156(3) Cr.P.C.:

  Relying on Ramdev Food Products, the Court held that the Magistrate must balance whether a case calls for an immediate police investigation or whether the matter should proceed under the complaint procedure (Sections 200/202 Cr.P.C.). In personal altercations where evidence is readily within the complainant's control, delegating the matter to the police without reason turns the Magistrate into an unthinking conduit.

• Statutory Evolution under BNSS, 2023:

  The Court analyzed the structural transition from Section 156 Cr.P.C. to Section 175 BNSS, emphasizing that:

  • Judicial directives from Priyanka Srivastava (requiring two-tier prior complaints under Sections 154(1) and 154(3) backed by sworn affidavits to prevent vindictive litigation) have been made express statutory prerequisites under Section 173(4) read with Section 175(3) BNSS.

  • Section 175(4) BNSS introduces a strict statutory safeguard ensuring public servants are not harassed for official acts without a superior officer's report and consideration of their defense.

Conclusion & Outcome:

The Supreme Court allowed the appeal, set aside the High Court's judgment dated 16.10.2019, and quashed the JMFC's referral order dated 09.01.2012, holding that the continuation of criminal proceedings against the police officer was a clear abuse of the process of law.

Mandatory Compliance with Sections 173(4), 175(3), and 175(4) BNSS: A Magistrate lacks jurisdiction to order police investigation under Section 175(3) BNSS unless the complaint is supported by a sworn affidavit demonstrating prior exhaustion of remedies under Sections 173(1) and 173(4) BNSS, the submissions of the police officer are taken into account, and reasoned judicial application of mind is evident from the order. Statutory Immunity and Threshold for Public Servants: Under Section 175(4) BNSS, no investigation can be ordered against a public servant acting in the discharge of official duties without first securing a fact-finding report from their superior officer and considering the written assertions/explanation of the accused public servant.

  

Andhra Pradesh High Court - Amravati

Between vs The State Of Andhra Pradesh on 5 January, 2026

    APHC010473892025

• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — Section 175(3) [corresponding to Section 156(3) Cr.P.C.] read with Section 173(4) [corresponding to Section 154(3) Cr.P.C.] — Pre-requisites for ordering investigation upon private complaint:

  Section 175(3) BNSS statutorily codifies the procedural safeguards laid down in Priyanka Srivastava v. State of U.P. An order directing police investigation cannot be passed mechanically. The Magistrate must satisfy themselves that the complainant has exhausted remedies under Section 173(1) and Section 173(4) BNSS (lodging report at the police station and subsequent application to the Superintendent of Police). The application under Section 175(3) BNSS must be supported by a sworn affidavit, the Magistrate may conduct such inquiry as deemed necessary, and must consider any submissions made by the concerned police officer before ordering an investigation.

  (Paras 10–15, 20, 22, 26)

• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — Section 175(4) — Statutory safeguards for public servants — Mandatory pre-conditions:

  Where a complaint alleges commission of a cognizable offence by a public servant arising in the course of the discharge of official duties, Section 175(4) BNSS imposes a strict statutory bar. The Magistrate cannot direct an investigation without:

  1. Receiving a report containing the facts and circumstances of the incident from an officer superior to the public servant; and

  2. Considering the assertions/explanation made by the public servant regarding the circumstances leading to the alleged incident.

     An order directing investigation without adhering to these twin mandatory conditions is illegal and void.

     (Paras 16, 23, 26)

• Criminal Procedure — Duties of Magistrates under Section 175(3) BNSS — Judicial mind vs. Mechanical referral:

  Magistrates cannot act as mere conduits, passive transmitters, or "post offices" by passing cryptic orders directing police to "register and investigate." Passing an order directing investigation entails serious consequences and requires reasoned, judicious exercise of discretion. Where allegations are straightforward and can be resolved through sworn statements/evidence, the Magistrate ought to follow the complaint case procedure rather than routinely referring the matter for police investigation.

  (Paras 17–22, 24, 26)

• Conduct of Litigants — Counter-affidavits and party-in-person decorum:

  Litigants, including parties appearing in person, have no license to make scandalous, vague, or intimidating remarks against judicial officers or the courts. Emotional distress cannot excuse undermining judicial discipline and decorum. Statutory appellate and revisional remedies exist to correct erroneous judicial orders, and the Registry must exercise due diligence in screening party-in-person appearances.

  (Para 25)

RATIO DECIDENDI

1. Mandatory Compliance with Sections 173(4), 175(3), and 175(4) BNSS: A Magistrate lacks jurisdiction to order police investigation under Section 175(3) BNSS unless the complaint is supported by a sworn affidavit demonstrating prior exhaustion of remedies under Sections 173(1) and 173(4) BNSS, the submissions of the police officer are taken into account, and reasoned judicial application of mind is evident from the order.

2. Statutory Immunity and Threshold for Public Servants: Under Section 175(4) BNSS, no investigation can be ordered against a public servant acting in the discharge of official duties without first securing a fact-finding report from their superior officer and considering the written assertions/explanation of the accused public servant.

ANALYSIS OF FACTS AND LAW

1. Facts & Procedural History

• Incident & Allegations: Respondent No. 2 (complainant) alleged that on 15.01.2023, the Petitioner (a Sub-Inspector of Police) along with others abused her using caste-based slurs and threatened her family following her father's refusal to surrender assigned land under a housing scheme.

• Petitioner's Defense: The Petitioner served at the concerned police station only until 27.01.2022 and was not posted there on the alleged date of incident (15.01.2023). The complaint was lodged after an unexplained delay of over two years (first filed with police on 10.02.2025 and before the Magistrate on 11.02.2025). Respondent No. 2 was also cited as a habitual litigant with multiple prior FIRs.

• Magistrate's Order (26.07.2025): The Additional Judicial First Class Magistrate, Ananthapuramu, in C.F. No. 277 of 2025, forwarded the private complaint under Section 175(3) BNSS with a one-sentence administrative directive instructing the SHO, II Town P.S., Anantapuramu, to "investigate the matter and submit the report."

• High Court Challenge: The Petitioner approached the High Court under Section 528 BNSS (corresponding to Section 482 Cr.P.C.) to quash the referral proceedings.

2. Legal Scrutiny by the High Court

• Total Absence of Reasons & Judicial Mind: The High Court observed that the Magistrate acted as a mere conduit/post office. The Magistrate merely forwarded the complaint based on a photocopy of a medical certificate without passing a speaking order, evaluating the prima facie veracity of the delay, or conducting any preliminary inquiry.

• Violation of Section 173(4) & Section 175(3) BNSS Requirements: The complainant did not satisfy the mandatory criteria established in Priyanka Srivastava (now statutorily codified under BNSS), nor did the Magistrate examine whether proper representations under Section 173(1) and 173(4) were made with supporting affidavits, nor were submissions from the police officer obtained.

• Failure to Comply with Section 175(4) BNSS: The Petitioner was a serving Sub-Inspector of Police. The Magistrate completely bypassed the mandatory safeguards in Section 175(4) BNSS by failing to call for a report from the Petitioner's superior officer or obtaining the Petitioner’s version of the incident before ordering an investigation.

• Scandalous Allegations by Party-in-Person: The High Court took strong exception to derogatory pleadings made by Respondent No. 2 against the Magistrate in her counter-affidavit, reminding that litigants cannot scandalize the court or intimidate judicial officers merely because an order is perceived as adverse.

Conclusion & Outcome:

The High Court allowed Criminal Petition No. 9676 of 2025, quashed the cryptic referral order dated 26.07.2025, and remanded the complaint back to the Magistrate for fresh consideration in accordance with the mandatory procedures under Section 175(3) and Section 175(4) BNSS. The Court also directed the circulation of the judgment to all judicial officers in Andhra Pradesh and the State Judicial Academy for sensitization on the application of the newly enacted criminal procedural framework.

Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — Section 223(1), First Proviso & Article 21 of the Constitution of India — Opportunity of being heard before taking cognizance — Mandatory and substantive nature: The first proviso to Section 223(1) of the BNSS bars a Magistrate/Special Court from taking cognizance of an offence on a complaint without giving the accused an opportunity of being heard. Held, this proviso is not merely procedural; it confers a substantive right on the accused forming an integral part of the right to a fair trial under Article 21 of the Constitution. The word "shall" is mandatory. Failure to afford a hearing before taking cognizance is an incurable illegality (not a mere irregularity) that renders the cognizance order void ab initio. Prejudice need not be separately established by the accused. (Paras 26, 27, 37, 38)

  Parvinder Singh vs Enforcement Of Directorate on 19 May, 2026 - 2026 INSC 519

HEADNOTES

• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — Section 223(1), First Proviso & Article 21 of the Constitution of India — Opportunity of being heard before taking cognizance — Mandatory and substantive nature:
  The first proviso to Section 223(1) of the BNSS bars a Magistrate/Special Court from taking cognizance of an offence on a complaint without giving the accused an opportunity of being heard. Held, this proviso is not merely procedural; it confers a substantive right on the accused forming an integral part of the right to a fair trial under Article 21 of the Constitution. The word "shall" is mandatory. Failure to afford a hearing before taking cognizance is an incurable illegality (not a mere irregularity) that renders the cognizance order void ab initio. Prejudice need not be separately established by the accused.
  
  
  (Paras 26, 27, 37, 38)
  
  
• Prevention of Money Laundering Act, 2002 (PMLA) — Sections 43, 44(1)(b), 44(1)(d), 46, 65 & 71 read with BNSS Sections 223 to 228 (CrPC Sections 200 to 205) — Applicability of general complaint procedure to PMLA Special Courts:
  Sections 223 to 228 of the BNSS (formerly Sections 200 to 205 of the CrPC) are not inconsistent with the scheme of the PMLA and apply to complaints instituted by the Enforcement Directorate under Section 44(1)(b). The Special Court, deemed to be a Court of Session, possesses powers to dismiss a complaint, postpone process, issue summons/warrants, or dispense with personal appearance under these provisions. Consequently, the mandatory pre-cognizance hearing requirement under the first proviso to Section 223(1) of the BNSS fully applies to prosecution complaints filed under the PMLA. Tarsem Lal v. ED, (2024) 7 SCC 61; Yash Tuteja v. Union of India, (2024) 8 SCC 465; and Kushal Kumar Agarwal v. ED, 2025 SCC OnLine SC 1221, followed and reaffirmed.
  
  
  (Paras 14–19, 30–33)
  
  
• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — Section 2(1)(k) & Section 531(2)(a) — Definition of "Inquiry" and Repeal/Savings clause — Ministerial vs. Judicial acts:
  Under Section 2(1)(k) of the BNSS, an "inquiry" requires an active application of judicial mind by a Magistrate or Court. Mere ministerial or administrative acts—such as receiving a prosecution complaint, directing it to be numbered/registered as a miscellaneous case, or fixing a future date for consideration—do not constitute the commencement of an "inquiry". Where a complaint is filed under the CrPC before 01.07.2024, but judicial mind for taking cognizance is applied on or after 01.07.2024, no inquiry was "pending" immediately before the BNSS came into force. Therefore, Section 531(2)(a) of the BNSS does not save the erstwhile CrPC procedure, and the new mandate of Section 223(1) of the BNSS applies prospectively to the cognizance stage. Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, discussed and relied upon.
  
  
  (Paras 10, 21, 28, 29, 34–36)
  
  

RATIO DECIDENDI

1. Mandatory Pre-Cognizance Hearing: Compliance with the first proviso to Section 223(1) of the BNSS is an absolute statutory and constitutional prerequisite. Taking cognizance on a complaint without affording the accused an opportunity of being heard is an incurable illegality rendering the order void ab initio.
   
   
2. Harmonization of PMLA and BNSS: Sections 223 to 228 of the BNSS govern complaints under Section 44(1)(b) of the PMLA as they are not inconsistent with PMLA provisions (Sections 46, 65, and 71 of the PMLA).
   
   
3. Scope of Section 531(2)(a) Savings: For the savings clause under Section 531(2)(a) of the BNSS to preserve the old CrPC regime, an "inquiry" must have actually commenced through a conscious judicial act prior to 01.07.2024. Routine administrative registration and listing do not trigger an inquiry; hence, any cognizance considered after 01.07.2024 must conform to the BNSS.
   
   

FACTUAL & LEGAL ANALYSIS

1. Chronology of Facts

• 24.07.2023: ED registered ECIR/DNSZO/04/2023 against the appellant; appellant arrested on 27.04.2024.
  
  
• 24.06.2024: ED filed a prosecution complaint under Sections 44 & 45 PMLA before the Special Court. The Special Court ordered it to be registered as a miscellaneous case and listed it for hearing on cognizance on 28.06.2024.
  
  
• 28.06.2024: Presiding Officer on recess; matter relisted for 02.07.2024.
  
  
• 01.07.2024: The BNSS, 2023 came into force, repealing the CrPC, 1973.
  
  
• 02.07.2024: Special Court took cognizance of offences under Section 3 read with Section 4 of the PMLA without providing the appellant an opportunity of being heard.
  
  
• 24.12.2024 – 22.03.2025: Appellant filed a recall application citing non-compliance with the first proviso to Section 223(1) of the BNSS. The Special Court dismissed it as dilatory, framed charges, and set the matter for trial.
  
  
• 19.05.2025: High Court of Uttarakhand dismissed the challenge to the cognizance order via Section 531(2)(a) BNSS (holding proceedings commenced under CrPC), though it remanded the framing of charges.
  
  

2. Legal Analysis & Resolution

• PMLA Special Courts vs. BNSS Complaint Procedure:
  
  
  The respondent argued that PMLA is a self-contained code excluding Chapters XIV–XVII of the BNSS. The Supreme Court rejected this, reiterating Tarsem Lal, Yash Tuteja, and Kushal Kumar Agarwal. Sections 44(1)(d), 46, and 65 of the PMLA deliberately import procedural provisions of the Code (now BNSS) to the extent they are not inconsistent. If Section 223 were inapplicable, the Special Court would lack fundamental powers under Sections 225–228 (such as dismissing frivolous complaints or dispensing with personal attendance).
  
  
• Administrative Filing vs. Judicial "Inquiry":
  
  
  The ED contended under Section 531(2)(a) that an "inquiry" was pending before 01.07.2024 because the complaint was filed and registered on 24.06.2024. The Court clarified the distinction between administrative/ministerial acts and judicial inquiry:
  
  
  • An "inquiry" under Section 2(1)(k) requires the active application of judicial mind to the facts and law.
    
    
  • Numbering a complaint and scheduling a hearing date are purely ministerial steps.
    
    
  • Judicial application of mind occurred only on 02.07.2024—the date cognizance was taken—by which time BNSS was the governing procedural code. Therefore, no inquiry was pending prior to 01.07.2024 to warrant the application of the old CrPC.
    
    
• Effect of Non-Compliance with Section 223(1) First Proviso:
  
  
  The requirement of hearing the accused prior to taking cognizance is mandatory ("shall") and substantive, tied directly to Article 21 fair trial safeguards. It cannot be excused as a technical or curable irregularity under Section 506 or 511 of the BNSS. The cognizance order dated 02.07.2024 was therefore declared void ab initio.
  
  

Final Verdict:

The Supreme Court allowed the appeal, set aside the High Court's judgment dated 19.05.2025 and the Special Court's cognizance order dated 02.07.2024, and remanded the matter to the Special Court to hear the appellant afresh at the stage of taking cognizance within 8 weeks.