S.175(4) BNSS | Magistrate Can Order Probe Against Public Servant Only After Hearing Him & Receiving Report From Superior Officer: Orissa HC

The Orissa High Court has held that a Magistrate can order investigation against a public servant only after complying with the requirements provided under Section 175 of the Bharatiya Nagarik Suraksha Sanhita, i.e. While setting aside an order for investigation against highly-ranked police officials, the Single Bench of Justice Gourishankar Satapathy observed –“The new provision in Sub-Section to Section 175 of the BNSS is an additional safeguard provided for the public servant against whom an accusation of committing cognizable offence arising in course of discharge of his official duty has been made and, therefore, any Magistrate who is empowered to take cognizance U/S.210 of BNSS may order an investigation against a public servant upon receiving a complaint arising in course of discharge of his official duty, only after complying with the procedure prescribed in Section 175 of the BNSS.” Case Background The petitioner and his wife claimed to be the victims of fraud, forgery and cheating of Rs. “It is also not found from the aforesaid order that what inquiry the learned Magistrate has made before ordering for registration of the FIR and investigation, but certainly neither he has called for any submissions from the concerned police officials nor did she provide any opportunity to the concerned police officials to make submissions which is a mandatory requirement as held by the Apex Court in Om Prakash Ambadkar,” it added. Furthermore, the Court highlighted Section 175 of BNSS, which provides that Magistrate may upon receiving a complaint against a public servant arising in course of discharge of his official duties, order an investigation, subject to:- receiving a report containing facts and circumstances of the incident from the officer superior to him; and after consideration of the assertions made by the public servant as to the situation that led to the incident so alleged.