Source: Supreme Court  

Why in News? 

Recently, the bench of Justice Sudhanshu Dhulia and Justice Ahsanuddin Amanullah. has held that its judgments are generally retrospective unless explicitly stated otherwise, clarifying the distinction between legislative and judicial lawmaking. 

• The Supreme Court held this in the matter of Kaniskh Sinha v. State of West Bengal case (2025). 

What was the Background of Kaniskh Sinha v. State of West Bengal case ? 

• The appellants in this case are a husband and wife who filed appeals against an order dated 27th June 2024 passed by a Single Judge of the Calcutta High Court. 
• The appellants were accused in two separate criminal cases registered as First Information Reports (FIRs) at Bhowanipur Police Station, Kolkata. 
• The first FIR (No. 179 of 2010) was registered on 27th April 2010 under Sections 120B, 420, 467, 468, 469, 471 of the Indian Penal Code, 1860,(IPC) read with Section 66A (a)(b)(c) of the Information Technology Act,(IT) 2000. The complainant in this case was Keyur Majumder. 
• The second FIR (No. 298 of 2011) was registered on 08th June 2011 following a complaint made to a Magistrate who directed its registration under Section 190 read with 156(3) of the Criminal Procedure Code, 1973 (CrPC). This FIR was registered under Sections 466, 469, 471 read with 120B of the IPC. The complainant was Supriti Bandopadhyay. 
• Both FIRs contained similar allegations against the appellants related to forgery, fraud, deception, cheating, damage to reputation, unlawful extraction of money, threat, misrepresentation, and criminal conspiracy. 
• Charge sheets had been filed in both cases at the time of the Supreme Court hearing.

What were the Court’s Observations? 

High Court 

• The High Court dismissed the criminal revisions filed by the appellants. 
• The High Court held that the directions issued by the Supreme Court in the Priyanka Srivastava v. State of Uttar Pradesh (2015) (requiring affidavits with Section 156(3) complaints) would operate prospectively and not have retrospective application. 
• The High Court determined that these directions would not be applicable to complaints lodged against the appellants in 2010-2011, as they predated the Priyanka Srivastava judgment of 2015. 

Supreme Court 

• The Supreme Court clarified the distinction between legislative and judicial pronouncements regarding retrospective application:  
  • Laws made by the legislature are always prospective unless specifically stated otherwise, while judgments of Constitutional Courts are retrospective unless specifically stated to be prospective. 
• The Court observed that prospective operation of a judgment is normally implemented to avoid unnecessary burden or undue hardships to persons who acted in good faith based on the law as it existed at the relevant time. 
• The Court noted that prospective application also prevents unsettling long-settled matters, which could cause widespread injustice. 
• Regarding the Priyanka Srivastava v. State of Uttar Pradesh (2015) judgment, the Supreme Court observed that the language used in that judgment ("a stage has come in this country") clearly indicated prospective application. 
• The Supreme Court concluded that the High Court was correct in holding that the direction requiring complaints to be accompanied by affidavits would operate prospectively. 
• The Court further noted that if charges had not yet been framed, the appellants would be at liberty to move an application for their discharge, which would be considered according to law. 

What are the Legal Provisions Provided? 

• Section 156(3) of the Criminal Procedure Code, 1973 (CrPC) - This provision was a central focus of the case, which allows Magistrates to direct police to register an FIR and investigate a complaint. 
• Section 190 of the Criminal Procedure Code, 1973 - This was mentioned in conjunction with Section 156(3), as the Magistrate exercised powers under these sections to direct registration of the second FIR. 
• Sections 120B, 420, 467, 468, 469, 471 of the Indian Penal Code, 1860 (IPC) - These were the offences alleged in the first FIR against the appellants, relating to criminal conspiracy, cheating, forgery, and using forged documents. 
• Section 66A (a)(b)(c) of the Information Technology Act, 2000 - This was included in the first FIR along with the IPC provisions. 
• Sections 466, 469, 471 read with 120B of IPC - These were the offences  relating to forgery and criminal conspiracy. 
• Article 226 of the Constitution of India - This was referenced in the Supreme Court's quotation from the Priyanka Srivastava judgment, noting that statutory provisions can be challenged under this Article. 
• The case of Priyanka Srivastava v. State of Uttar Pradesh (2015)  This precedent established the requirement that applications under Section 156(3) CrPC must be supported by an affidavit sworn by the applicant. 

What is Section 156(3) of the Code of Criminal Procedure? 

• About: 
  • This section empowers a Magistrate to direct the police to conduct an investigation into a cognizable offence. 
• Cognizable Offences: 
  • Cognizable offences are defined under Section 2(c) of CrPC they are those for which a police officer may arrest a person without a warrant. These offences are usually more serious in nature. 
• Application by a Complainant: 
  • If a person makes an application to the Magistrate and satisfies the Magistrate that an offence has been committed, the Magistrate can order the police to investigate the matter. 
• Judicial Discretion: 
  • The Magistrate has the discretion to determine whether a case merits a police investigation based on the facts presented. 
• Purpose: 
  • The initiation of criminal proceedings typically begins with the registration of a First Information Report (FIR) with the police. However, there may be situations where an individual, aggrieved by the commission of an offence, seeks the intervention of the judiciary to ensure a proper and unbiased investigation. 
  • Section 156(3) comes into play when a Magistrate, who has the authority to take cognizance of an offence under section 190, is approached with a complaint or an application requesting the initiation of an investigation. 
  • The provision empowers the Magistrate to direct the police or any other competent authority to conduct an investigation into the matter. 

What are the Safeguards Introduced by Section 175 of BNSS?  

• The following are the new changes which are introduced in the form of safeguards to prevent abuse of process of law:  
  • Firstly, 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).  
  • Secondly, the Magistrate has been empowered to conduct such enquiry as he deems necessary before making an order directing the registration of FIR.  
  • 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).  
• It is to be noted that Section 175 (3) of BNSS is a result of law laid down by the judicial decisions over the years.  
• In the case of Priyanka Srivastava v. State of U.P. (2015) the Court held that prior to making an application to the Magistrate under Section 156(3) of the CrPC. 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 CrPC must necessarily be supported by an affidavit sworn by the applicant.  
  • The reason given by the Court for introducing such a requirement was that applications under Section 156(3) of the CrPC were being made in a routine manner and in a number of cases only with a view to cause harassment to the accused by registration of FIR.