Introduction:
In Swarnalata Jena v. State of Odisha & Ors. (CRLMP No. 1633 of 2024), the Orissa High Court, through a judgment delivered on February 3, 2025, by Justice Gourishankar Satapathy, ruled that before directing an investigation under Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the Magistrate must hear the submissions of the concerned police officer regarding the refusal to register a First Information Report (FIR). The case arose from a petition filed by Swarnalata Jena, who alleged that the police failed to register her FIR despite her grievances. Instead of approaching the jurisdictional Magistrate under the prescribed legal procedure, she directly moved to the High Court, seeking directions for the police to register the FIR. The Court, while reiterating settled legal principles, dismissed the petition but granted her liberty to approach the appropriate forum. The judgment not only upheld the procedural mandates under the BNSS but also reaffirmed the Supreme Court’s guidance in cases such as Sakiri Vasu v. State of Uttar Pradesh and Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, emphasizing that aggrieved persons must first exhaust statutory remedies before seeking High Court intervention.
Arguments of Both Sides:
The petitioner, represented by Advocate R.D. Mohapatra, contended that the refusal by the police to register her FIR left her with no choice but to seek the High Court’s intervention. She argued that the police authorities had unjustly dismissed her complaint, thereby violating her fundamental rights. The petitioner maintained that non-registration of an FIR by the police amounts to a dereliction of duty and urged the Court to issue a writ directing the police to act on her complaint. She also argued that under the previous regime of the Criminal Procedure Code (CrPC), the aggrieved party had the right to directly approach the High Court or file a petition under Section 482 CrPC when an FIR was not registered. The petitioner highlighted the urgency of the matter, claiming that the refusal to register her FIR left her in a state of limbo and denied her the possibility of a proper investigation into her grievances.
On the other hand, the State, represented by Additional Public Prosecutor S.K. Rout, pointed out that the petitioner had failed to follow the prescribed legal procedure under the relevant provisions of the Bharatiya Nagarik Suraksha Sanhita (BNSS). The State argued that the aggrieved person should first approach the jurisdictional Magistrate by Chapter XIII of the BNSS, particularly Section 175(3), before approaching the High Court. The State also referred to the Supreme Court’s rulings, which discourage the practice of directly approaching the High Court or filing petitions under Section 482 CrPC in cases of non-registration of FIRs. It was emphasized that there were adequate statutory remedies available for the petitioner, including the option to apply to the Magistrate for an investigation order under Section 156(3) of the CrPC, or to file a criminal complaint under Section 200 CrPC.
Court’s Judgment:
The Orissa High Court, after examining the arguments and the relevant legal provisions, emphasized that the mandatory procedure under Section 175(3) of the BNSS must be followed. According to this provision, before passing an order for investigation, the Magistrate must hear the submissions of the police officer who has refused to register the FIR. The Court stressed that this requirement is critical to ensure judicial fairness and transparency, allowing the Magistrate to apply their judicial mind before issuing any orders for investigation.
Justice Satapathy clarified that the mandatory nature of this provision ensures that all sides are heard and considered before a decision is made, thereby ensuring that the decision-making process is thorough and reasoned. The Court cited the Supreme Court’s judgment in Sakiri Vasu v. State of Uttar Pradesh and the more recent judgment in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, which directed that the aggrieved party must first approach the Magistrate before seeking judicial intervention. The Court noted that the petitioner’s failure to exhaust the statutory remedies before approaching the High Court was a significant procedural error.
Furthermore, the Court discussed the differences between Section 156(3) of the CrPC and Section 175(3) of the BNSS, especially the additional requirements introduced by the BNSS. These include the necessity for the complainant to submit an application to the Superintendent of Police in case of police refusal, and to provide a copy of this application when approaching the Magistrate. Additionally, the Magistrate is now empowered to conduct an inquiry into the matter before passing an order for investigation, a step which was not present in the previous legal regime.
Given that the petitioner had bypassed the prescribed procedure by directly approaching the High Court, the Court dismissed the petition. However, it granted the petitioner the liberty to approach the appropriate forum, namely the jurisdictional Magistrate, to seek a remedy for the non-registration of her FIR. The Court underscored the importance of following the proper legal channels and stressed that this procedural requirement is in place to ensure a fair and just legal process.