Himachal Pradesh High Court
Reserved On : 12.08.2025 vs Of on 11 November, 2025
Author: Virender Singh
Bench: Virender Singh
2025:HHC:38284 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. : 426 of 2025 Reserved On : 12.08.2025 .
Decided on : 11.11.2025
Kashmir Singh ...Petitioner
Versus
of
State of Himachal Pradesh & Ors. ...Respondents
Coram rt
The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 Yes.
For the petitioner : Mr. Ajay Kochhar, Senior Advocate, with Mr. Shubham Singh Guleria, Advocate.
For the respondents : Mr. H.S. Rawat and Mr. Mohinder Zharaick, Additional A.G., for respondents No. 1 to 3. Mr. Sanjay Prashar, Advocate for respondent No. 4.
Virender Singh, Judge.
Petitioner-Kashmir Singh has filed the present petition, under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as 'BNSS'), for quashing of FIR No. 63/2025, dated 15.05.2025, 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 05/12/2025 21:15:48 :::CIS2 2025:HHC:38284 (hereinafter referred to as 'FIR in question') registered under Sections 420 and 34 of Indian Penal Code .
(hereinafter referred to as the 'IPC'), with Police Station Dharampur, District Mandi, H.P., as well as, the order dated 13.05.2025, passed by the Court of learned Judicial Magistrate First Class - 1, Sarkaghat, District Mandi, H.P. of (Camp at Dharampur), (hereinafter referred to as 'the learned trial Court') in Private Complaint No. 01 of 2025.
rt
2. The FIR in question, as per the petitioner, has been registered, pursuant to order dated 13.05.2025, passed by the learned trial Court, in the application under Section 175(3) of BNSS, 2023, in case titled as "Arjun Singh Himalayan Vs Kashmir Singh & Anr."
3. The learned trial Court, has passed the order dated 13.05.2025, in the complaint filed by respondent No. 4 Arjun Singh Himalayan. In the complaint, it has been alleged that the petitioner has misappropriated Government funds in his official capacity, as he was Pradhan of Gram Panchayat Ghanala, under Swachh Bharat Mission (Gramin). It has been alleged that the matter was inquired by Block Development Officer, wherein ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 3 2025:HHC:38284 report was submitted to District Panchayat Officer Mandi.
Respondent No. 4 (complainant) Arjun Singh Himalayan, .
has also made the complaint, against the petitioner, before SHO, Police Station Dharampur and Superintendent of Police, Mandi, however, no action has been taken.
4. On the basis of the inquiry report, the learned of trial Court, has passed the impugned order dated 13.05.2025, to register the FIR.
rt
5. It is the case of the petitioner that when, respondent No. 4, made a complaint, Block Development Officer conducted the preliminary inquiry and after conducting the preliminary inquiry, a show cause notice was issued to the petitioner, by District Panchayat Officer Mandi, under Section 145(1) of H.P. Panchayati Raj Act, read with Panchayati Raj Rules, directing the petitioner to file his response within 15 days, with respect to three issues raised by Arjun Singh Himalayan. In the show cause notice, following three points were raised:
(i) Firstly, it is found that in Ward No. 1 & Ward No. 5 of the panchayat two toilets have been constructed under the Swachh Bharat Mission Gramin Scheme on the land of Sh. Balraj & Sh. Chander Pal. It is asserted that only Affidavit to ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 4 2025:HHC:38284 donate the land & Tatima of the land has been obtained from the proposer, whereas, land has not been officially transferred to Rural Development .
Department, Govt. of Himachal Pradesh by way of gift deed.
(ii) Secondly, as per the preliminary enquiry, Rs. 548/ has been spent in excess for the construction of the toilet in Ward No. 5 & the same is shown to be recoverable from Pradhan/ Secretary of of the Gram Panchayat Ghanala.
(iii) Thirdly, the show cause notice highlights a discrepancy in the rt construction of toilets in Ward No. 1 at Chokru. It states that permission was granted for two toilets at different locations, but only one toilet was constructed. Additionally, it is claimed that two sanctioned amounts were spent on one incomplete toilet without obtaining prior approval.
6. The said show cause notice was duly replied, within the stipulated period, and no further action had been taken by the District Panchayat Officer.
7. Relying upon the provisions of Section 145(3) of H.P. Panchayati Raj Act, it has been pleaded that in case, suspension order is passed by the prescribed authority under the Panchayati Raj Act, then, the Deputy Commissioner is to proceed, as per Section 146 of the Panchayati Raj Act, by conducting an enquiry, which shall be completed within a period of six months and in case, ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 5 2025:HHC:38284 the same is not concluded within stipulated period, the order of suspension shall be deemed to have been revoked.
.
These facts have been pleaded to demonstrate that no suspension order has been passed by the prescribed authority and as per Section 145, the proceedings are deemed to have been closed by the competent authority of under the Panchayati Raj Act.
8. On the basis of the inquiry report submitted by rt Block Development Officer, the Chief Executive Officer, M.C. Mandi, took appropriate action, under Rule 15 of Himachal Pradesh Panchayati Raj (Appointment and Conditions of Service of Panchayat Secretary in Zila Parishad) Rules, 2019, read with Rule 11(i) of the CCS (CCA) Rules, 1965, by issuing a censure, against the Panchayat Secretary, who has also been named as second accused in the FIR. All these facts have been pleaded to show that competent authority has taken necessary disciplinary action against the Panchayat Secretary.
9. It is the further case of the petitioner that the administrative proceedings, initiated under the statute, have now been concluded and the petitioner cannot be ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 6 2025:HHC:38284 subjected to further suffering or harassment, through parallel criminal proceedings, based on the same statutory .
grounds.
10. According to the petitioner, respondent No. 4 filed the complaint before the learned trial Court, claiming certain irregularities, in respect of official decisions taken of by the petitioner, in his capacity, as Pradhan of Gram Panchayat, Ghanala. The learned trial Court, according to rt the petitioner, has neither conducted any preliminary enquiry, nor, verification, and without issuing any notice or granting any opportunity of hearing to the petitioner, passed order dated 13.05.2025, directing the police to register the FIR in question and investigate the matter.
11. The impugned order is stated to have been passed mechanically and without satisfying the necessary procedural safeguards or calling for any clarification, from the office of the Gram Panchayat, or, the petitioner, in his capacity, as Pradhan, as per the mandate of Section 175(4) of the BNSS.
12. On the basis of the above facts, the order passed by the learned trial Court, as well as, the FIR in ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 7 2025:HHC:38284 question, which has been registered, in pursuance of the said order, has been sought to be quashed, on the ground, .
that the provisions of Section 175(3) of BNSS have not been adhered to, by the learned trial Court, as such, the learned trial Court has exceeded its jurisdiction, by not complying with the mandate of the provisions of BNSS.
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13. Similarly, the provisions of Section 175(3) of BNSS, have also been stated to have been violated by the rt learned trial Court, as, in case of a public servant, Magistrate shall firstly, receive a report, containing facts and circumstances, from the officer superior to the public servant concerned. Not only this, the learned trial Court has denied the petitioner a valuable statutory right to explain or clarify his conduct, which is expressly required, under Section 175(4)(b) of the BNSS.
14. The relief has also been sought on the ground that the subject matter of the present complaint is already covered under proceedings initiated by the District Panchayat Officer, under Section 145(1) of the H.P. Panchayati Raj Act, 1994 and no suspension order was passed. Also, no further inquiry was initiated within the ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 8 2025:HHC:38284 stipulated time, as such, parallel criminal proceedings, on the same set of facts, amount to abuse of the process of .
law. No offence under Section 420 of IPC is stated to have made out.
15. On the basis of above facts, the following substantive reliefs have been sought: of i. Quash and set aside FIR No. 63/2025, dated 15.05.2025, under Section 420 and Section 34 of IPC, registered in Police rt Station Dharampur, District Mandi, H.P. and order dated 13.05.2025 passed by the learned JMFC1, Sarkaghat, District Mandi, H.P. (Camp at Dharampur) in Private Complaint No. 1 of 2025, as well as, consequential proceedings arising out of it, against the petitioner herein; and ii. Initiate appropriate legal proceedings against respondent No. 4 for suppression of material facts and filing of false affidavit in complaint filed before learned JMFC in Private Complaint No. 1/2025.
16. Along with the petition, copy of FIR; copy of the complaint; copy of the order passed by the learned trial Court; copy of the report submitted by BDO Block Dharampur; copy of the complaint made by the residents of Gram Panchayat Ghanala; letter dated 21.12.2023, written by District Panchayat Officer to BDO Dharampur, by virtue of which, the complaint of respondent No. 4 Arjun ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 9 2025:HHC:38284 Singh Himalayan was forwarded to BDO Dharampur for inquiry, have been annexed.
.
17. Apart from this, information obtained under Right to Information Act; show cause notice, dated 28.02.2024, issued to petitioner; complaint made by respondent No. 4; reply to the show cause notice submitted of by the petitioner; and copy of the proceedings book, have also been annexed.rt
18. When put to notice, respondents No. 1 to 3, have filed the reply, by taking the preliminary objection that the case is under investigation, as such, present petition is not maintainable. According to them, respondent No. 4 has levelled serious allegations against the petitioner, as such, in compliance of the order passed by the learned trial Court, the FIR in question has been registered against the petitioner and Panchayat Secretary Sanjay Kumar.
19. It is the case of respondents No. 1 to 3 that the FIR in question has been registered on the direction of the learned trial Court, passed in Private Complaint No. 1 of ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 10 2025:HHC:38284 2025, titled as "Arjun Singh Himalayan Vs Kashmir Singh & anr.".
.
20. It is their further case that on 15.05.2025, a complaint along with documents under Section 173 (3) of the BNSS, was received from the learned trial Court, in which, directions to register the FIR, have been passed.
of Consequently, the FIR in question was registered.
21. Respondent No. 4, has filed his separate reply, rt by taking preliminary objection that the present petition is not maintainable, as, the investigation of the FIR in question is at initial stage. Apart from this highlighting the seriousness and gravity of the offences, it has been prayed that the petitioner is not entitled for any relief.
22. According to respondent No. 4, the petitioner has approached this Court with unclean hands and has suppressed the material facts. Assertion of the petitioner, qua the fact, that he is not having any criminal antecedents, has been controverted by pleading that he has been convicted by the competent Court of law under Section 11 of the Prevention of Cruelty to Animals Act, 1960, vide judgment dated 01.03.2013.
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23. The factual position, qua registration of the FIR in question, has not been disputed. However, according to .
respondent No. 4, complaint was filed by him before the learned trial Court, and vide order dated 13.05.2025, a direction was issued to police to register the FIR in question.
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24. The stand, as taken by the petitioner, in the petition, has also been opposed, on the ground that in rt case, no suspension order has been passed by the competent authority, under Section 145(1) of the Panchayati Raj Act, it does not exonerate the petitioner from criminal liability, however, 'punishment of censure' was issued to the Panchayat Secretary Sanjay Kumar, who has been arrayed as coaccused with the petitioner.
25. It is the further case of respondent No. 4 that the petitioner is not entitled for hearing or preliminary inquiry, at this stage.
26. The order passed by the learned trial Court, on 13.05.2025, has been supported by respondent No. 4, on the ground, that all the safeguards have been complied with, in the present case.
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27. It has also been contended on behalf of respondent No. 4 that so far as the noncompliance of the .
provisions of Section 175(4) of BNSS has been pleaded, the term used by the legislature is "may" in the Section, and as such, the said provision is discretionary and not mandatory.
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28. Lastly, the prayer made by the petitioner, has been contested, on the ground that the exoneration of the rt petitioner in the departmental inquiry, would not automatically result into the dropping of criminal proceedings against him. In this regard, respondent No. 4 has relied upon the decision of Hon'ble Supreme Court in State of Bihar Vs Dhirendra Prasad Shrivastava, reported as (SC) 2015 (1) RCR (Criminal) 445.
29. On the basis of above facts, a prayer has been made to dismiss the petition.
30. The petitioner is before this Court under Section 528 of the BNSS (Section 482 CrPC). The scope of Section 482 CrPC (Section 528 of the BNSS) has elaborately been discussed by the Hon'ble Supreme Court, in the year 1992, in the case titled as State of Haryana ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 13 2025:HHC:38284 Vs. Chaudhary Bhajan Lal & Others, reported as 1992 CrLJ, 527, in which, the Hon'ble Supreme Court has .
formulated the guidelines for exercising the powers under Section 482 Cr.P.C. Relevant paragraph 107 of the judgment is reproduced, as under: "107. In the backdrop of the interpretation of the of various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary rt power under Article 226 or the inherent powers under section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the FIR. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate with the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 14 2025:HHC:38284 commission of any offence and make out a case against the accused.
4. Where, the allegations in the FLR do not constitute a cognizable offence but constitute .
only. a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that of there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the rt concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
31. This view has again been reiterated by a three Judge Bench of the Hon'ble Supreme Court in Neeharika Infrastructure Pvt. Ltd. Versus State of Maharashtra & Others, reported as 2021 SCC Online SC 315.
Relevant paragraph 38 of the judgment is reproduced, as under:
38. In the case of Golconda Lingaswamy (supra), after considering the decisions of this Court in the ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 15 2025:HHC:38284 cases of R.P. Kapur (supra) and Bhajan Lal (supra) and other decisions on the exercise of inherent powers by the High Court under Section 482 Cr.P.C., in paragraphs 5, 7 and 8, it is observed .
and held as under:
"5. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the of enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely: (i) to give effect to an order under the Code, (ii) to rt prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice.
It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything, it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision.
::: Downloaded on - 05/12/2025 21:15:48 :::CIS16 2025:HHC:38284 Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests .
specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist.
Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to of prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of rt the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 17 2025:HHC:38284 the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect .
and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed of over to an accused to shortcircuit a prosecution and bring about its sudden death.....
8. As noted above, the powers possessed rt by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hardandfast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892] and Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1 : (1964) 1 Cri LJ 1] .] It would not be proper for the High Court to analyse the case of the complainant in the ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 18 2025:HHC:38284 light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be .
quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or of oppressive. If the allegations set out in the complaint do not constitute the offence of which cognisance has been taken by the Magistrate, it is open to the High Court to rt quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/FIR has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the FIR that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/FIR is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding."
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32. It is no longer res integra that at the time of deciding the petition, under Section 482 CrPC (Section 528 .
of the BNSS), this Court cannot assume the powers of the appellate/revisional Court, nor, this Court can act as trial Court. While holding so, the view of this Court is being guided by the decision of Hon'ble Supreme Court in of Chilakamarthi Venkateswarlu & Another versus State of Andhra Pradesh & Another, reported as (2019) rt 10 SCALE 239. Relevant paragraph 15 of the judgment is reproduced, as under: "15. In exercising jurisdiction under Section 482 it is not permissible for the Court to act as if it were a trial Court. The Court is only to be prima facie satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate materials and documents on record, but it cannot appreciate the evidence to conclude whether the materials produced are sufficient or not for convicting the accused."
33. Similar view has also been taken by the Hon'ble Supreme Court in S.W. Palanitkar & Others versus State of Bihar & Another, reported as (2002) 1 Supreme Court Cases 241.
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34. Being guided by the above decisions of Hon'ble Supreme Court, this Court would now proceed further to .
ascertain as to whether the petitioner is entitled to the relief, as prayed for, or not.
35. The relief of quashing of FIR in question, has mainly been sought on the ground of noncompliance of of Section 175 of the BNSS. The provisions of Section 175 of the BNSS, are reproduced as under: rt "175. Police officer's power to investigate cognizable case. (1)Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIV:Provided that considering the nature and gravity of the offence, the Superintendent of Police may require the Deputy Superintendent of Police to investigate the case.
(2)No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3)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.
::: Downloaded on - 05/12/2025 21:15:48 :::CIS21 2025:HHC:38284 (4)Any Magistrate empowered under section 210, may, upon receiving a complaint against a public servant arising in course of the .
discharge of his official duties, order investigation, subject to
(a) receiving a report containing facts and circumstances of the incident from the officer superior to him; and
(b) after consideration of the assertions made of by the public servant as to the situation that led to the incident so alleged."
36. It is not in dispute that the petitioner, being rt Pradhan of Gram Panchayat Ghanala, Development Block Dharampur, District Mandi, H.P., falls within the definition of 'public servant', as per Section 2(28) of the Bharatiya Nyaya Sanhita, 2023 (BNS), read with Section 190 of the H.P. Panchayati Raj Act, 1994, which read, as under: "Section 2(28) of BNS:
(28) "public servant" means a person falling under any of the descriptions, namely:--
(a) every commissioned officer in the Army, Navy or Air Force;
(b) every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;
(c) every officer of a Court including a liquidator, receiver or commissioner whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 22 2025:HHC:38284 authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in .
the Court, and every person specially authorised by a Court to perform any of such duties;
(d) every assessor or member of a panchayat assisting a Court or public servant;
(e) every arbitrator or other person to whom of any cause or matter has been referred for decision or report by any Court, or by any other competent public authority; rt
(f) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;
(g) every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;
(h) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenueprocess, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government;
(i) every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 23 2025:HHC:38284 district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;
.
(j) every person who holds any office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;
(k) every person--
(i) in the service or pay of the Government or of remunerated by fees or commission for the performance of any public duty by the Government;
rt
(ii) in the service or pay of a local authority as defined in clause (31) of section 3 of the General Clauses Act, 1897, a corporation established by or under a Central or State Act or a Government company as defined in clause (45) of section 2 of the Companies Act, 2013.
Explanation.--
(a) persons falling under any of the descriptions made in this clause are public servants, whether appointed by the Government or not;
(b) every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation is a public servant;
(c) "election" means an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of selection to which is by, or under any law for the time being in force.
::: Downloaded on - 05/12/2025 21:15:48 :::CIS24 2025:HHC:38284 "Section 190 of H.P. Panchayati Raj Act, 1994: Members and servants of Panchayat to be public servants. .
Every office bearer of a Panchayat and every officer or servant thereof shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code, 1860 (45 of 1860)."
37. Once, it has been held by this Court that of petitioner falls within the definition of public servant, then, the provisions of Section 175(4) of the BNSS comes into play.
rt
38. The powers of the Magistrate, as per Section 175(3) of the BNSS, are subject to the condition, as contained in Section 175(4) of the BNSS, in case, the person, against whom the allegations have been levelled, is a public servant, for the act done by him, in course of discharge of his official duty.
39. Section 175(4) of the BNSS stipulate two conditions, in which, the Magistrate can order investigation, against a public servant, for an act done by him in discharge of his official duty. Firstly, the Magistrate has to receive a report, containing facts and circumstances of the incident from the officer superior to the public ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 25 2025:HHC:38284 servant and after consideration of the assertions made by the public servant. Meaning thereby, before passing any .
order under Section 175(3) of BNSS, it was incumbent upon the Magistrate to comply with the provisions of Section 175(4) of the BNSS.
40. Admittedly, in the present case, no such of procedure is adopted by the learned trial Court in the present case. The scope of the newly added provisions in rt BNSS by way of Section 175(4) has elaborately been discussed by the Hon'ble Supreme Court in Om Prakash Ambadkar Vs State of Maharashtra & Ors., reported in 2025 SCC Online SC 238. Relevant paras No. 30 to 35, of the judgment, are reproduced, as under: "30. Subsection (4) of Section 175 of the BNSS is a new addition to the scheme of investigation of cognizable cases when compared with the scheme previously existing in Section 156 of the Cr.P.C. It provides an additional safeguard to a public servant against whom an accusation of committing a cognizable offence arising in the course of discharge of his official duty is made. The provision stipulates that any Magistrate who is empowered to take cognizance under Section 210 of the BNSS may order investigation against a public servant upon receiving a complaint arising in course of the discharge of his official duty, only after complying with the following procedure:
::: Downloaded on - 05/12/2025 21:15:48 :::CIS26 2025:HHC:38284 a. Receiving a report containing facts and circumstances of the incident from the officer superior to the accused public servant; and .
b. Considering the assertions made by the accused public servant as regards the situation that led to the occurrence of the alleged incident.
31. A comparison of Section 175(3) of the BNSS with Section 156(3) of the Cr.P.C. indicates three prominent changes that have of been introduced by the enactment of BNSS as follows:
rta. First, the requirement of making an application to the Superintendent of Police upon refusal by the officer in charge of a police station to lodge the FIR has been made mandatory, and the applicant making an application under Section 175(3) is required to furnish a copy of the application made to the Superintendent of Police under Section 173(4), supported by an affidavit, while making the application to the Magistrate under Section 175(3).
b. Secondly, the Magistrate has been empowered to conduct such enquiry as he deems necessary before making an order directing registration of FIR.
c. Thirdly, the Magistrate is required to consider the submissions of the officer in charge of the police station as regards the refusal to register an FIR before issuing any directions under Section 175(3).
32. The introduction of these changes by the legislature can be attributed to the judicial evolution of Section 156 of the Cr.P.C. undertaken by a number of decisions of this ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 27 2025:HHC:38284 Court. In the case of Priyanka Srivastava v. State of U.P. reported in (2015) 6 SCC 287, this Court held that prior to making an application to the Magistrate under Section .
156(3) of the Cr.P.C., the applicant must necessarily make applications under Sections 154(1) and 154(3). It was further observed by the Court that applications made under Section 156(3) of the Cr.P.C. must necessarily be supported by an affidavit sworn by the applicant. The reason given by the Court for introducing such a requirement was that of applications under Section 156(3) of the Cr.P.C. were being made in a routine manner and in a number of cases only with a view to cause harassment to the accused by rt registration of FIR. It was further observed that the requirement of supporting the complaint with an affidavit would ensure that the person making the application is conscious and also to see that no false affidavit is made. Once an affidavit is found to be false, the applicant would be liable for prosecution in accordance with law. This would deter him from casually invoking the authority of the Magistrate under Section 156(3). The relevant observations made by the Court are reproduced hereinbelow:
"27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the Bank. We are absolutely conscious that the position does not matter, for nobody is above ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 28 2025:HHC:38284 the law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is .
remotely made out. It is also to be noted that when a borrower of the financial institution covered under the Sarfaesi Act, invokes the jurisdiction under Section 156(3) Cr.P.C. and also there is a separate procedure under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, of an attitude of more care, caution and circumspection has to be adhered to.
28. Issuing a direction stating "as per rt the application" to lodge an FIR creates a very unhealthy situation in society and also reflects the erroneous approach of the learned Magistrate. It also encourages unscrupulous and unprincipled litigants, like Respondent 3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees. As the factual exposition would reveal, Respondent 3 had prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of Appellant 1, who is presently occupying the position of Vice President, neither was the loan taken, nor was the default made, nor was any action under the SARFAESI Act taken. However, the action under the SARFAESI Act was taken on the second time at the instance of the present Appellant 1. We are only ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 29 2025:HHC:38284 stating about the devilish design of Respondent 3 to harass the appellants with the sole intent to avoid the payment of loan. When a citizen avails .
a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156(3) of Cr.P.C. is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a rt document is filed to show the compliance with Section 154(3), indicating it has been sent to the Superintendent of Police concerned.
29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same.
30. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 30 2025:HHC:38284 appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This .
affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up of people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the rt Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 31 2025:HHC:38284 allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, .
commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be of aware of the delay in lodging of the FIR." (Emphasis supplied)
33. In a recent pronouncement of this Court in rt the case of Babu Venkatesh v. The State Of Karnataka reported in (2022) 5 SCC 639, the observations made in Priyanka Srivastava (supra) were referred to and it was held as follows:
"24. This Court has clearly held that, a stage has come where applications under Section 156(3)Cr.P.C. are to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate.
25. This Court further held that, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also verify the veracity of the allegations. The Court has noted that, applications under Section 156(3)Cr.P.C. are filed in a routine manner without taking any responsibility only to harass certain persons.
26. This Court has further held that, prior to the filing of a petition under Section 156(3)Cr.P.C., there have to be ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 32 2025:HHC:38284 applications under Sections 154(1) and 154(3)Cr.P.C.. This Court emphasises the necessity to file an affidavit so that the persons making the application .
should be conscious and not make false affidavit. With such a requirement, the persons would be deterred from causally invoking authority of the Magistrate, under Section 156(3)Cr.P.C.. Inasmuch as if the affidavit is found to be false, the person would be liable for prosecution of in accordance with law." (Emphasis supplied)
34. In light of the judicial interpretation and rt 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."
::: Downloaded on - 05/12/2025 21:15:48 :::CIS33 2025:HHC:38284 (self emphasis supplied)
41. Being guided by the decision of the Hon'ble .
Supreme Court in Om Prakash Ambadkar's case (supra), now, this Court would proceed further to determine as to whether the requirement of Sections 175 (3) and 175 (4) of of the BNSS, has been complied with, by the learned trial Court, before passing the order, dated 13.05.2025, by rt virtue of which, the FIR in question was registered, by the police, in this case.
42. As per the zimni orders, Annexure P2, annexed with the petition, when, the complaint was filed before the learned trial Court, the same was listed on 17.04.2025, for consideration. On 17.04.2025, the case was ordered to be listed on 13.05.2025, for orders. On 13.05.2025, a direction was issued to the police, to register the FIR. The order, dated 13.05.2025, passed by the learned trial Court, is reproduced, as under:
"This order shall dispose of an application filed under Section 175 (3) BNSS for forwarding the accompanying complaint to SHO of Police Station of Dharampur for registration of FIR and investigation in the complaint.::: Downloaded on - 05/12/2025 21:15:48 :::CIS
34 2025:HHC:38284 It is averred in the application that complaint has been made by the applicant and others to District Panchayat Officer Mandi, Deputy Commissioner Mandi & Block Development .
Officer Dharampur regarding the misappropriation of Government funds by the respondents under the Swach Bharat Mission (Gramin). The matter was inquired by Block Development Officer wherein copy of report has been submitted to District Panchayat Officer Mandi, in which some allegations were found against respondent to be true. Perusal of of report of Block Development Officer Dharampur alongwith the report submitted by Office of Block Development Officer Dharampur and PWD Dharampur, it appears rt that the allegations levelled against the respondents discloses commission of the cognizable offence to the tune of misappropriation of funds.
Accordingly the present application is allowed, copy of this complaint as well as the supported documents be sent to SHO Dharampur with direction to register FIR upon the application of applicant and investigate the matter by proceeding as per law.
Accordingly, the present application is allowed. Application stands disposed of, same after due completion be consigned to record room."
43. Admittedly, before passing the direction, under Section 175 (3) of the BNSS, the learned trial Court has not sought the report from the officer superior to the accused public servant.
44. It has rightly been highlighted by the learned senior counsel appearing for the petitioner that the ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 35 2025:HHC:38284 complainant has also not complied with the provisions of Section 173 (4) of the BNSS, which reads, as under:
.
"S. 173. Information in cognizable cases.
... ... ...
(4) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub section (1), may send the substance of such of information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall rt either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Sanhita, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence failing which such aggrieved person may make an application to the Magistrate."
45. As per the documents annexed with the petition, the complainantrespondent No. 4 has made the complaint to the SHO, Police Station Dharampur, as well as, to Superintendent of Police, Mandi, on the same day, i.e. 12.11.2024 (Annexure A8). Meaning thereby, the complainant has just done the formality by forwarding the complaints to the police, as well as, to the Superintendent of Police, simultaneously. Mere sending of the complaints, simultaneously, to the police, as well as, to the ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 36 2025:HHC:38284 Superintendent of Police, in the considered opinion of this Court, does not fulfill the requirement of Section 175 (3) of .
the BNSS, according to which, the Magistrate has to consider the submissions made by the police officer, before ordering investigation, in the matter.
46. In this case, no notice, as per Section Section of 175 (4) (b) of the BNSS was issued to the accused petitioner, before passing any order, under Section 175 (3) rt of the BNSS.
47. So far as the argument of the learned counsel appearing for respondent No. 4complainant, as well as, the learned Additional Advocate General, qua the fact that the legislature, in its wisdom, has used the word 'may', in Section 175 (4) of the BNSS, is concerned, the said argument is not liable to be accepted as, merely because the word 'may' has been used in the language of Section 175 (4) of the BNSS, does not make it discretionary, since, the Hon'ble Supreme Court in Om Prakash Ambadkar's case (supra) has elaborately discussed the provisions of Section 175 (4) of the BNSS, and has categorically held that the changes introduced, by the legislature, in Sections ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 37 2025:HHC:38284 175 (3) and 175 (4) of the BNSS, are attributable to the judicial evolution of Section 156 of the CrPC, undertaken .
by a number of decisions, of the Hon'ble Supreme Court.
48. In "Priyanka Srivastava and Anr. Vs State of Uttar Pradesh and Ors., reported in (2015) 6 SCC 287", the Hon'ble Supreme Court has elaborately discussed the of purpose of filing affidavit, in support of the contents of the plaint, filed with the prayer, to direct the police to register rt the case under Section 156(3) Cr.P.C. Relevant paras No. 19 to 22, of the judgment, are reproduced, as under: "19. We have narrated the facts in detail as the present case, as we find, exemplifies in enormous magnitude to take recourse to Section 156(3) Cr.P.C., as if, it is a routine procedure. That apart, the proceedings initiated and the action taken by the authorities under the SARFAESI Act are assailable under the said Act before the higher forum and if, a borrower is allowed to take recourse to criminal law in the manner it has been taken it, needs no special emphasis to state, has the inherent potentiality to affect the marrows of economic health of the nation. It is clearly noticeable that the statutory remedies have cleverly been bypassed and prosecution route has been undertaken for instilling fear amongst the individual authorities compelling them to concede to the request for one time settlement which the financial institution possibly might not have acceded. That apart, despite agreeing for withdrawal of the complaint, no steps were taken in that regard at least to show the bonafide. On the contrary, there is a contest with a perverse sadistic attitude. Whether the complainant could have withdrawn the ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 38 2025:HHC:38284 prosecution or not, is another matter. Fact remains, no efforts were made.
20. The learned Magistrate, as we find, while exercising the power under Section 156(3) Cr.P.C.
.
has narrated the allegations and, thereafter, without any application of mind, has passed an order to register an FIR for the offences mentioned in the application. The duty cast on the learned Magistrate, while exercising power under Section 156(3) Cr.P.C., cannot be marginalized. To understand the real purport of the same, we think it apt to reproduce the said provision:
of "156. Police officer's power to investigate congnizable case. (1) Any officer in charge of a police station may, without the order of a rt Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was no empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned."
21. Dealing with the nature of power exercised by the Magistrate under Section 156(3) of the CrPC, a threeJudge Bench in Devarapalli Lakshminarayana Reddy and others v. V. Narayana Reddy and others[2], had to express thus:
"It may be noted further that an order made under subsection (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or chargesheet under Section 173."
22. In Anil Kumar v. M.K. Aiyappa (2013) 10 SCC 705, the twoJudge Bench had to say this:
::: Downloaded on - 05/12/2025 21:15:48 :::CIS39 2025:HHC:38284 "The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed [(2008) 5 SCC 668] examined the requirement of the .
application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant of without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has rt gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation."
49. By way of enacting Section 175(4) of BNSS, the legislature in its wisdom has provided special protection to the public servant to perform their duties freely. In other words, it can be said that the said provisions are sort of extra protection given to the public servant, from being harassed on account of performing their official duties. The provisions of Section 175(4) Sub Clause 'A' and Sub Clause ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 40 2025:HHC:38284 'B', are enacted for the benefit of the persons i.e. public servant.
.
50. The House of Lords, in a case titled as "Julius Vs Lord Bishop of Oxford and Anr., reported in 1874 to 1880 The All England Law Reports Rep. 43", has elaborately discussed the term "may". The relevant of paragraph, of the judgment, is reproduced as under: "The question has been argued and has been spoken rt of by some of the learned Judges in the Courts below as if the words "it shall be lawful" might have a different meaning, and might be differently interpreted in different Statutes, or in different parts of the same Statute. I cannot think that this is correct. The words "it shall be lawful" are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. Whether the power is one coupled with a duty such as I have described is a question which, according to our system of law, speaking generally, it falls to the Court of Queen's Bench to decide, on an application for a mandamus. And the words "it shall be lawful"
being according to their natural meaning permissive or enabling words only, it lies upon those, as it seems to me, who contend that an obligation exists ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 41 2025:HHC:38284 to exercise this power, to shew in the circumstances of the case something which, according to the principles I have mentioned, creates this obligation."
.
51. The Hon'ble Supreme Court in a case "Ramji Missar and Anr. Vs State of Bihar, reported in AIR 1963 Supreme Court 1088", has also interpreted the term "may". Relevant paras No. 16 and 17, of the judgment, are of reproduced as under: "16. Though the word "may" might connote merely rt an enabling or permissive power in the sense of the usual phrase ""it shall be lawful", it is also capable of being construed as referring to a compellable duty, particularly when it refers to a power conferred on a court or other judicial authority. As observed in Maxwell on Statutes "Statutes which authorise persons to do acts for the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they 'may' or 'shall' if they think fit, or '&hall have power,' or that, 'it shall be lawful' for them to do such acts, a statute appears to use the language of mere permission but it has been so often decided as to have become an axiom that in such cases such expressions may haveto, say the leasta compulsory force. The fact that the power is conferred on a Court might militate against the literal interpretation of "may" suggested by the respondent. This apart, the power conferred by s. 11(1) is to pass "'an order under the Act" and the question arises as to the precise import of these words, and in particular whether these words would not imply that the order to be passed would be subject to the same limitations or conditions as the orders under what might be termed the primary provisions of the Act. Thus s. 3 empowers a court to release certain ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 42 2025:HHC:38284 offenders on probation of good conduct after due admonition, and it lays down certain tests as a guidance or the bases upon which that discretion is to be exercised : (1) that no previous conviction .
should have been proved against him, and (2) that the court by which the person is found guilty should be of the opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender it is expedient so to do. Similarly, s. 4 empowers a court to release certain offenders on probation of good conduct, The criteria laid down there. and the of guidance set out is that the court by which the person is found guilty should be of opinion that, having regard to the circumstances of the case including the nature of the offence and the character rt of the offender, it is expedient to release him, on probation of good conduct, with a proviso that the power is not to be exercised unless the court were satisfied that the offender or his surety has :a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
17. Would it be a proper construction of s. 11 (1) to hold that the High Court etc. could pass orders in appeal or revision without reference to these standards, tests or guidance which the statute has prescribed for the primary courts? We are clearly of the opinion that this is capable only of a negative answer and that the power conferred on appellate or other courts by s. II (1) was of the same nature and characteristics and subject to the same criteria and limitations as that conferred on the courts under ss. 3 & 4. We are confirmed in this view by the terms of s. 11(3). If this were so it would not be possible to adopt a, different rule of interpretation when one came to consider the power under s. 6. It cannot, for instance, be suggested that the High Court could in its discretion exercise the power under s. 6 in the case of a person who is above the age of 21, nor where a person is found guilty of an offence punishable with death or imprisonment for life. These limitations on the exercise of the discretion ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 43 2025:HHC:38284 have surely to be gathered only from the terms of s. 6(1). If s. 6(1) applies so far to restrict the absolute and unfettered discretion implied by the word "may", it appears to us that logically the conclusion is .
inescapable that the entirety of s. 6(1) applies to guide or condition the jurisdiction of the High Court under s. 11(1). We there. fore reject the submission made to us on behalf of the respondent that an appellate court has an unfettered discretion in dealing with a case which comes before it under s. 11 and that its discretion and powers are not to be governed by the terms of s. 6(1)."
of
52. Similarly, in a case "State of Uttar Pradesh Vs rt Jogendra Singh, reported in AIR 1963 Supreme Court 1618", the Hon'ble Supreme Court has again interpreted the term "may". Relevant para No. 8, of the judgment, is reproduced as under: "Rule 4 (2) deals with the class of gazetted government servants and gives them the right to make a request to the Governor that their cases should be' referred to the Tribunal in respect of matters specified in clauses (a) to (d) of subrule (1). The question for our decision is whether like the word " may" in rule 4 (1) which confers the discretion on the Governor, the word ",may" in subrule (2) confers discretion on him, or does the word ,(may" in sub rule (2) really mean "shall" or "'must" ? There is no doubt that the word "'may" generally does not mean "must" or "shall". But it is well settled that the word "may" is capable of meaning "must" or "'shall"
in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word "may" which denotes discretion should be construed to mean a command. Sometimes, the legislature uses the word "may" out of deference to the high status of the ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 44 2025:HHC:38284 authority on whom the power and the obligation are intended to be conferred and imposed. In the present case, it is the context which is decisive. The whole purpose of rule 4 (2) would be frustrated if the word .
"may" in the said rule receives the same construction as in subrule (1). It is because in regard to gazetted government servants the discretion had already been given to the Governor to refer their cases to the tribunal that the rulemaking authority wanted to make a special provision in respect of them as distinguished from other government servants falling under rule 4 (1) and rule 4 (2) has been prescribed, of otherwise rule 4 (2) would be wholly redundant. In other words, the plain and unambiguous object of enacting rule 4 (2) is to provide an option to the gazetted government servants to request the rt Governor that their cases should be tried by a Tribunal and not otherwise. The rulemaking authority presumably thought that having regard to the status of the gazetted government servants, it would be legitimate to give such an opinion to them. Therefore, we feel no difficulty in accepting the view taken by the High Court that rule 4(2) imposes an obligation on the Governor to grant a request made by the gazetted government servant that' his case should be referred to the Tribunal under the Rules.
Such a request was admittedly made by the respondent and has not been granted. Therefore, we are satisfied that the High Court was right in quashing the proceedings proposed to be taken by the appellant against the respondent otherwise than by referring his case to the Tribunal under the Rules."
53. If the term "may", as used by the legislature, in its wisdom, in Section 175(4) of BNSS, is seen, in view of the decisions of Hon'ble Supreme Court, then, it can be easily said that the said provision has been enacted for the benefit of the public servants, who are performing their ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 45 2025:HHC:38284 duties, as such. When the statute created a beneficial provision for the public servants, then merely because the .
term "may" has been used in the statute, does not make it discretionary, rather, it is obligatory for the Court to call for the report, as per the provisions of Section 175 (4) (a) and (b).
of
54. In this case, complainantrespondent No. 4 has not complied with the provisions of Section 173 (4) of the rt BNSS, as also, the learned Magistrate has not complied with the provisions of Sections 175 (3) and 175 (4) of the BNSS, as, neither the reports of the police officer or the officer superior to the public servant have been called for, before passing the impugned order, nor, the opportunity was given to the accusedpetitioner to make assertions to the alleged accusations against him.
55. Having glance of the above discussion, this Court is of the view that all the safeguards, which have been introduced by the legislature, in its wisdom, are to curb the misuse of the process of law. Moreover, if the report of the officer superior to the public servant is called and assertions of such public servant are considered by ::: Downloaded on - 05/12/2025 21:15:48 :::CIS 46 2025:HHC:38284 the Magistrate, that would give a broader picture to the Magistrate to consider the stand of the complainant in the .
light of report and assertions as referred to above.
56. In view of the above, due to the noncompliance of the above provisions, order, dated 13.05.2025, passed by the learned trial Court, does not stand the judicial of scrutiny by this Court. Consequently, the same is set aside. Resultantly, the FIR in question, registered in rt pursuance of the said direction/order, dated 13.05.2025, also does not survive and the same is also quashed.
57. The petition is allowed, in above terms.
Pending miscellaneous applications, if any, are also disposed of accordingly.
( Virender Singh ) Judge November 11, 2025 ( rajni / Pramod ) ::: Downloaded on - 05/12/2025 21:15:48 :::CIS