Bharatiya Nagarik Suraksha Sanhita, 2023–Sec. 175(4)[Newly Inserted]–What procedure should a Judicial Magistrate follow upon receiving a complaint against an accused, who happens to be a public servant, for his acts, arising in the course of the discharge of his official duties ?
Upon receiving a complaint under sub-section (4) of Section 175, BNSS alleging commission of an offence by a public servant arising in course of the discharge of his official duties, the Magistrate may do either of the following:
(1) Reading the complaint, if the Judicial Magistrate is prima facie satisfied that commission of the alleged act giving rise to an offence arose in the course of discharge of official duties by the public servant, such Magistrate may not have any option other than following the procedure prescribed under sub-section (4) of Section 175 of calling for reports from the superior officer and the accused public servant.
(2) Or, on a consideration of the complaint, where the Judicial Magistrate entertains a prima facie doubt depending upon the circumstances as to whether the offence alleged to have been committed by the public servant arose in course of discharge of his official duties, such Magistrate might err on the side of caution and proceed to follow the procedure prescribed in sub-section (4) of Section 175.
(3) Or, where the Judicial Magistrate is satisfied that the alleged act of offence was not committed in the discharge of official duties and/or it bears no reasonable nexus thereto, and also that the rigours of sub-section (4) of Section 175 are not attracted, the complaint may be dealt with in accordance with the general procedure prescribed under sub-section (3) of Section 175.
The Judicial Magistrate would continue to retain the authority to reject an application under sub-section (3) of Section 175, lodged against a public servant, where such Magistrate finds that the allegations made therein are wholly untenable, manifestly absurd, or so inherently improbable that no reasonable person could conclude that any offence is disclosed–However, such an order of rejection ought not to be based on whims and fancy but must have the support of valid reasons.
A situation may arise where, in an appropriate case, the Judicial Magistrate has called for a report from the concerned superior officer under Clause (a) of sub-section (4) of Section 175, but such officer fails to comply with the direction or does not submit the report within a reasonable period of time–The Judicial Magistrate is not obliged to wait indefinitely for compliance and may proceed further in accordance with sub-section (3) of Section 175 after considering the version of the accused public servant under Clause (b) of sub-section (4) of Section 175, if on record–What would constitute ‘reasonable time’ cannot be determined in rigid or inflexible terms and must necessarily depend upon the facts and circumstances of each case before the Judicial Magistrate who has to take the call.
